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

Case No. ADJ8772254
Regular
Jul 20, 2017

What Happened in Felix vs. Weber Metals Reconsideration?

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
Case No. MISSING
Regular Panel Decision
May 14, 2014

How Did the WCAB Rule in Hardgrove vs. Intercon Security?

Plaintiff Forest Rehabilitation Medicine PC sued defendant Allstate to recover $3,490 for no-fault medical benefits provided to assignor Tracy Fertitta. The core issue was the medical necessity of "Calmare pain therapy" (scrambler therapy), a novel treatment. The court conducted a bench trial, hearing expert testimony from both sides. Dr. Ayman Hadhoud, for the defense, argued the treatment was not medically necessary, not cost-effective, and essentially a form of physical therapy. Dr. Jack D’Angelo, for the plaintiff, countered that the therapy, though new, had FDA approval, was used by the military, and reduced the assignor's pain levels. Applying the Frye standard, the court found the evidence regarding Calmare scrambler therapy reliable and ruled it was medically necessary for Ms. Fertitta's pain management. Consequently, judgment was awarded to the plaintiff, Forest Rehabilitation Medicine PC, for $3,490 plus attorney's fees and interest.

No-Fault InsuranceMedical NecessityCalmare Pain TherapyScrambler TherapyNovel TreatmentFrye StandardExpert TestimonyPain ManagementFDA ApprovalCervical Radiculopathy
References
14
Case No. ADJ5836774
Regular
Nov 04, 2015

What Did the WCAB Decide in Cuadra vs. Community Home Care?

In this workers' compensation case, the applicant sought reconsideration of a decision denying his claim to rebut the Permanent Disability Rating Schedule (PDRS). The applicant argued his diminished future earning capacity (DFEC) was greater than the PDRS accounted for, citing vocational expert testimony. The Workers' Compensation Appeals Board (WCAB) denied the petition, finding the applicant failed to prove his industrial injury precluded vocational rehabilitation, a requirement to rebut the PDRS. The WCAB concluded that the applicant's vocational expert's opinion did not meet the legal standards for rebuttal as established in *Ogilvie v. City and County of San Francisco*.

Diminished Future Earning CapacityPDRSOgilvie IIIVocational RehabilitationRebuttalAMA GuidesPermanent DisabilityApportionmentIndustrial InjuryWCJ
References
3
Case No. MISSING
Regular Panel Decision

How Were Death Benefits Handled in Bocanegra vs. Sun-Gro Commodities?

This is a toxic tort case brought by fifty-three individuals and related claimants against defendants engaged in uranium mining and milling activities in Karnes County, Texas. Plaintiffs allege that exposure to ionizing radiation from uranium ore and its decay products caused their various cancers. The Court considered Defendants’ motion to exclude the expert testimony of Dr. Malin Dollinger, the Plaintiffs’ sole expert on specific causation. Dr. Dollinger's methodology, based on differential diagnosis and the linear no-threshold hypothesis, was found unreliable for determining specific causation. Consequently, the Court granted Defendants' motion to exclude Dr. Dollinger's testimony and subsequently granted summary judgment in favor of the Defendants, dismissing the case with prejudice due to Plaintiffs' lack of admissible proof on specific causation.

Toxic TortUranium MiningRadiation ExposureCancer CausationExpert TestimonyDaubert StandardSummary JudgmentSpecific CausationGeneral CausationEpidemiology
References
46
Case No. MISSING
Regular Panel Decision

Can a WCJ Be Disqualified for Appearance of Bias?

Claimant, a mechanical engineer, sustained a work-related injury and received initial workers' compensation benefits. The employer later contested further disability, leading to a Workers' Compensation Law Judge (WCLJ) order for medical expert depositions, including one from the employer's expert, Robert Orlandi. Claimant's counsel objected to Orlandi's telephone deposition but failed to formally challenge the notice or raise a specific objection to the oath administration during the deposition. Orlandi's testimony, taken via telephone with the court reporter in New York and Orlandi in Connecticut, concluded that the claimant was no longer disabled. Both the WCLJ and the Workers' Compensation Board credited Orlandi's testimony, finding the claimant waived objections to the deposition's procedural irregularities. The Appellate Division affirmed the Board's decision, ruling that the claimant's failure to make a timely and specific objection to the oath's administration during the deposition constituted a waiver, thus allowing the Board to properly rely on Orlandi's evidence.

Workers' CompensationMedical TestimonyDeposition ProcedureWaiver of ObjectionCPLROath AdministrationDisability AssessmentAppellate ReviewExpert WitnessProcedural Irregularities
References
2
Case No. STK 0197148
Regular
Oct 11, 2007

What Were the Key Rulings in Torrez vs. SuperShuttle?

The Appeals Board rescinded a prior order compelling the defendant to pay for a vocational expert to assess the applicant's permanent disability. While vocational expert testimony may be allowed to rebut the permanent disability rating schedule, it is not considered a medical-legal expense. The Board clarified that costs for such expert testimony are discretionary under Labor Code section 5811 and not mandatory prior to a determination of necessity and relevance.

Vocational expertpermanent disability ratingdiminished future earning capacitymedical-legal expenseAMA Guidesapportionmentrebuttal evidenceLabor Code section 4660(b)(1)Labor Code section 5811Labor Code section 4663(c)
References
1
Case No. GRO 32009
Regular
Jan 04, 2008

Why Was Removal Denied in Rush vs. California Correctional Institution?

The Workers' Compensation Appeals Board affirmed a 19% permanent disability rating for an industrial injury sustained on October 25, 2004, ruling the 2005 Permanent Disability Rating Schedule applies. The Board also found applicant's vocational expert's testimony insufficient to rebut the rating and that the defendant is not liable for the expert's trial testimony costs. However, the Board remanded the issue of the vocational expert's lien for further determination of its reasonableness and necessity.

Workers' Compensation Appeals BoardPermanent Disability Rating Schedule (PDRS)vocational expertdiminished future earning capacity (DFEC)Labor Code section 4660Dr. Anne Wallacelienreasonableness and necessitymedical-legal costsexpert testimony
References
4
Case No. ADJ8189392
Regular
Jan 19, 2015

What Did the WCAB Clarify in Ontiveros vs. Savers Stores?

The Workers' Compensation Appeals Board denied the defendant's petition for reconsideration regarding an award of permanent total disability. The defendant argued the vocational rehabilitation expert's report lacked substantial evidence and failed to apportion the injury. The Board found the vocational expert's opinion that the applicant was not amenable to vocational rehabilitation and had a complete loss of earning capacity was supported by medical evidence. This analysis was unaffected by the *Dahl* decision, leading to the denial of the petition.

Petition for ReconsiderationFindings and AwardNotice of IntentionVocational Rehabilitation ExpertSubstantial EvidenceApportionmentPermanent Total DisabilityLoss of Earnings CapacityDahl holdingContra Costa County v. Workers' Comp. Appeals Bd.
References
2
Case No. ADJ9025732
Regular
Apr 07, 2023

Why Was Reconsideration Denied in Gomez vs. Dorothy Stevens?

The Workers' Compensation Appeals Board denied the defendant's petition for reconsideration, upholding the finding of 100% permanent total disability for the applicant, Albert Mata. The defendant argued that the applicant's vocational counselor's reports and medical reports did not constitute substantial evidence for total disability. However, the Board affirmed the Administrative Law Judge's decision, finding the vocational expert's opinions were substantial evidence, not based on speculation, and correctly applied California's 2005 Permanent Disability Rating Schedule for psychiatric impairments. Therefore, the Board concluded the applicant was precluded from vocational rehabilitation and participating in the labor force.

Permanent total disabilityPsychiatric injuryVocational Rehabilitation CounselorAmerican Medical Association GuidesGlobal Assessment of FunctioningPermanent Disability Rating ScheduleSubstantial evidencePetition for ReconsiderationAdministrative Law JudgeAgreed Medical Examiner
References
7
Case No. MISSING
Regular Panel Decision

Why Was Reconsideration Dismissed in Sabino vs. Johnson Pump Company?

This court opinion addresses whether a certified social worker can be qualified as an expert witness to provide testimony regarding a defendant's mental capacity to proceed and future competency. The defense sought to qualify Hillel Bodek, a certified social worker specializing in forensic clinical social work, as an expert witness for these purposes. The court meticulously reviewed the qualifications of clinical social workers, acknowledging their critical role in the diagnosis of mental disorders, including their involvement in the development of the DSM III. Despite statutory provisions in CPL article 730 outlining who may serve as psychiatric examiners, the court emphasized that other appropriately trained and experienced experts can also offer testimony on competence. Ultimately, the court ruled in the affirmative, concluding that certified social workers with demonstrated training and supervised clinical experience in diagnosis and capacity assessment are qualified to provide expert testimony on these crucial issues.

Expert Witness QualificationCertified Social WorkerMental Capacity AssessmentCompetency to ProceedForensic Mental HealthDiagnostic AssessmentPrognostic StatementsCriminal Procedure Law Article 730DSM IIINon-Medical Expert Testimony
References
13
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