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Case Law Database

Access over workers' compensation decisions, including En Banc, Significant Panel Decisions, and writ-denied cases.

Case No. ADJ8731516
Regular
Oct 17, 2018

JOSE NIEVES vs. CITY OF HAYWARD

This case involves Jose Nieves' claim for workers' compensation benefits following an industrial injury. The Workers' Compensation Appeals Board (WCAB) granted reconsideration to review a prior decision awarding 47% permanent disability and specific vocational expert costs. Applicant argued for total permanent disability and higher expert fees, while the defendant claimed apportionment for pre-existing conditions. The WCAB affirmed the prior decision regarding permanent disability but rescinded the vocational expert fee, remanding for a new determination of reasonable costs. A dissenting opinion argued the WCJ misunderstood vocational and medical evidence regarding the applicant's limitations and earning capacity.

Workers' Compensation Appeals BoardReconsiderationIndustrial InjuryCumulative PeriodVocational ExpertPermanent DisabilityApportionmentLabor Code Section 4664Agreed Medical EvaluatorWhole Person Impairment
References
15
Case No. RDG 0095368; RDG 0095369; RDG 0095573; RDG 0126270
Regular
Sep 25, 2007

HENRY PHILLIPE vs. GOTTSCHALKS, LIBERTY MUTUAL INSURANCE

The Appeals Board granted reconsideration to allow reimbursement for the applicant's vocational expert fees, reversing the WCJ's decision. The Board found it reasonable for the applicant to hire his own vocational expert to rebut the defendant's expert, especially given the passage of time since the original vocational feasibility report. Consequently, the defendant was ordered to reimburse the applicant's attorney for the $1,075.00 vocational expert cost.

Workers' Compensation Appeals BoardReconsiderationExpert Witness FeesVocational ExpertLabor Code Section 5811Qualified Rehabilitation Representative (QRR)LeBoeuf argumentAgreed Medical Examination (AME)Permanent DisabilityIndustrial Injury
References
3
Case No. ADJ7682218
Regular
Aug 05, 2015

RICHARD ROSSI vs. BINKS MANUFACTURING COMPANY, TIG INSURANCE COMPANY, ZENITH [RIVER STONE GROUP], HARTFORD INSURANCE, ACE INSURANCE COMPANY, COMMERCE AND INDUSTRY INSURANCE, AIG DOMESTIC CLAIMS, CALIFORNIA INSURANCE GUARANTEE ASSOCIATION, INTERCARE INSURANCE SERVICES, AMERICAN MOTORISTS INSURANCE COMPANY, AMERICAN MANUFACTURERS MUTUAL INSURANCE COMPANY, LUMBERMEN'S MUTUAL CASUALTY, ILLINOIS TOOL WORKS, FINISHING BRANDS, ZURICH AMERICAN INSURANCE COMPANY, BROADSPIRE

The Appeals Board granted reconsideration to address applicant's contentions regarding the admissibility of vocational expert reports and his disability level. The Board reversed the exclusion of applicant's vocational expert reports, finding they should have been admitted into evidence despite CIGA's claims of insufficient notice. Issues regarding applicant's permanent disability exceeding 79%, entitlement to additional attorney's fees, and CIGA's liability for the vocational expert's costs were deferred. The case was returned to the trial level for further proceedings and decisions on these deferred issues.

CIGAvocational expertpermanent disabilityindustrial injurycancerlatency perioddue processsubstantial evidenceadmissibilityreconsideration
References
10
Case No. ADJ1979366 (SBR 0335915) ADJ4029179 (SBR 0335933)
Regular
Sep 25, 2013

MARY PENA vs. FRITO LAY, ACE AMERICAN INSURANCE

This case concerns the dismissal of liens for failure to timely pay activation fees. The defendant argued that liens from Vasquez Vocational Experts and JAM Medical Equipment should have been dismissed at a lien conference due to non-payment of the activation fee prior to the scheduled conference. While the WCJ did not dismiss the liens, the Appeals Board granted the defendant's petition for removal. The Board found that both lien claimants failed to comply with Labor Code section 4903.06(a)(4), as JAM paid after the conference began and Vasquez paid months later. Consequently, the liens of Vasquez Vocational Experts and JAM Medical Equipment were dismissed with prejudice.

Petition for RemovalLien TrialLien ConferenceLien Activation FeeLabor Code Section 4903.06(a)(4)Dismissal with PrejudiceVasquez Vocational ExpertsJAM Medical EquipmentFigueroa v. B.C. Doering Co.Declaration of Readiness to Proceed
References
2
Case No. ADJ7143821
Regular
Jan 30, 2015

DANA ESPARZA vs. MICHAEL'S COMMUNICATION, ZURICH NORTH AMERICA

This case concerns an applicant's petition for reconsideration of a prior award regarding new and further psychiatric disability. The Appeals Board granted reconsideration, specifically amending the prior decision to allow reimbursement for a vocational expert's fee. While the Board affirmed the finding of increased permanent disability, it reversed the denial of the vocational expert's costs. The Board reasoned that the expert's report was reasonable and necessary when incurred and had the potential to prove disputed facts, even if it didn't ultimately rebut the permanent disability rating.

Petition to ReopenNew and Further DisabilityVocational Expert FeeLabor Code 5811ReconsiderationFindings and AwardWCJPermanent DisabilityRebuttal EvidenceAgreed Medical Examiner
References
3
Case No. OAK 328137
Regular
Aug 20, 2007

AARON DE MATTEO vs. JOINERY STRUCTURES, STATE COMPENSATION INSURANCE FUND

The Workers' Compensation Appeals Board denied reconsideration, upholding the liability of Joinery Structures and State Compensation Insurance Fund for the applicant's vocational expert costs. The Board affirmed that vocational expert fees are recoverable expenses under Labor Code Section 5811, as such testimony is relevant to determining permanent disability and aligns with the mandate for expeditious and inexpensive resolution. The denial also addressed the defendants' arguments regarding the timing of the expert's report and its compliance with specific Labor Code sections, finding them unpersuasive.

WORKERS' COMPENSATION APPEALS BOARDReconsiderationApplicantDefendantJOINERY STRUCTURESSTATE COMPENSATION INSURANCE FUNDWCJvocational expertloss of future earning capacity1997 Guidelines
References
6
Case No. MISSING
Regular Panel Decision
May 28, 1997

Schomber v. Schomber

This case concerns a postjudgment application for a change of custody which was ultimately withdrawn without prejudice. The remaining issues for the court were the award and apportionment of counsel and expert fees. The court reviewed the affidavits of legal services and net worth statements from both the plaintiff and defendant, noting the defendant's superior earning capacity. It also addressed the fees for the Law Guardian and a forensic expert, whose qualifications were challenged by the plaintiff. The court affirmed the expert's role and fees, stating that licensure is not a prerequisite for court-appointed experts in this context. Ultimately, the court ordered the apportionment of legal, Law Guardian, and forensic expert fees between the parties, with the defendant responsible for 80% and the plaintiff for 20% of the expert and Law Guardian fees, based on their respective financial circumstances.

custody disputechild supportlegal feesexpert witness feesLaw Guardian feespostjudgment applicationmatrimonial lawfee apportionmentfinancial disclosureSuffolk Academy of Law
References
4
Case No. SAC 0315585
Regular
Sep 18, 2007

Bradley Dorigo vs. State of California, Subsequent Injuries Benefits Trust Fund

This case concerns the Subsequent Injuries Benefits Trust Fund's (SIF) liability for an applicant's vocational rehabilitation counselor fees. The Appeals Board affirmed a prior award requiring SIF to reimburse a portion of the vocational expert's fees, despite SIF's arguments that it was not liable for such costs. The Board cited prior writ-denied cases and relevant statutes, including Code of Civil Procedure section 1028 and Labor Code section 5708, to support its decision.

Subsequent Injuries Benefits Trust FundVocational rehabilitation expertLabor Code section 4751Compromise and releaseStipulated awardPermanent disabilityReimbursementWorkers' Compensation Appeals BoardAdministrative law judgeCode of Civil Procedure section 1028
References
3
Case No. ADJ648677
Regular
Mar 22, 2011

GUSTAVO LEON vs. SOUTH WEST MATERIAL HANDLING, STATE COMPENSATION INSURANCE FUND

This case concerns a lien claimant's request for reconsideration after a WCJ disallowed their expert witness fee. The Appeals Board found the WCJ erred in disallowing the lien solely because the vocational expert's report did not definitively alter the permanent disability rating. Citing *Costa v. Hardy Diagnostic*, the Board held that expert costs are reimbursable if reasonable and necessary when incurred, and potentially capable of affecting the outcome, even if unsuccessful or deemed inadmissible. The matter was returned to the trial level for further proceedings on the lien claim's reasonableness.

Workers' Compensation Appeals BoardReconsiderationLien ClaimantVocational ExpertDiminished Future Earning CapacityPermanent Disability RatingCompromise and ReleaseLabor Code Section 5811Medical-Legal CostsReasonable and Necessary Costs
References
4
Case No. ADJ8772254
Regular
Jul 20, 2017

Lorenzo Hernandez vs. STATE OF CALIFORNIA, DEPARTMENT OF CORRECTIONS AND REHABILITATION, NORTH KERN STATE PRISON, STATE COMPENSATION INSURANCE FUND

The Workers' Compensation Appeals Board denied Lorenzo Hernandez's petition for reconsideration, upholding the original award of 24% permanent disability for a right shoulder injury. The applicant argued that a vocational expert's report should have rebutted the scheduled disability rating, but the Board found this report insufficient. Relying on *Ogilvie* and *Dahl*, the Board determined that an applicant's amenability to vocational rehabilitation precludes using vocational expert testimony to challenge a scheduled rating based on lost earning capacity. Therefore, the vocational expert's opinion was deemed not substantial evidence to overcome the QME's scheduled rating.

Workers' Compensation Appeals BoardPermanent DisabilityVocational ExpertQualified Medical EvaluatorScheduled RatingReconsiderationLabor Code §4660.1AMA Guides 5th EditionAmenability to Vocational RehabilitationDiminished Future Earning Capacity
References
3
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