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

Case No. ADJ10817362; ADJ10814219; ADJ10815251
Regular
Apr 14, 2023

SHANE PERRY vs. MASTEC, INC., ACE AMERICAN INSURANCE, ADMINISTERED BY ESIS

The Workers' Compensation Appeals Board granted reconsideration and affirmed the original decision finding the applicant permanently and totally disabled, with one amendment. The Board agreed to exclude the applicant's vocational rebuttal expert's report, as recommended by the Workers' Compensation Judge. However, the Board rejected the defendant's arguments regarding a subsequent injury, the vocational expert's legal standard, and the exclusion of defense vocational expert evidence.

Permanent and Total DisabilityVocational ExpertPetition for ReconsiderationMedical EvidenceLegal StandardAdmissibility of EvidenceCompensable Consequence InjuryLabor Market AccessDiminished Future Earning CapacityQME Reporting
References
14
Case No. MISSING
Regular Panel Decision

Luxenberg v. Jericho Atrium Associates, Inc.

Marcy Luxenberg, a plaintiff in a personal injury action against Jericho Atrium Associates, Inc. for a slip and fall, sought a protective order against the defendant's request for an examination by an occupational and rehabilitation therapist, Dr. Ehrenreich. The plaintiff argued that CPLR 3121 restricts such examinations to physicians. Justice Bernard F. McCaffrey, presiding in a trial court within the Second Department, noted the conflicting precedents across Appellate Division departments, with the First, Third, and Fourth Departments generally limiting examinations to physicians, while the Second Department allowed non-physician experts under specific conditions, such as for psychological injuries or when reciprocity is established. However, the court found that the plaintiff's injuries were primarily orthopedic and neurological, and she had already agreed to examinations by medical doctors. The defendant failed to prove the inadequacy of these existing examinations or a compelling need for reciprocity, as the plaintiff had not yet designated her own vocational expert. Consequently, the court granted the plaintiff's protective order, denying the defendant's request for examination by Dr. Ehrenreich, but allowed the defendant to renew the motion if the plaintiff later retains a vocational expert.

Personal InjurySlip and FallDiscoveryCPLR 3121Non-Physician ExaminationVocational RehabilitationOccupational TherapyProtective OrderInter-Departmental ConflictSecond Department Precedent
References
10
Case No. ADJ7454504
Regular
Aug 01, 2019

JANE ELLIS vs. CALIFORNIA DEPARTMENT OF SOCIAL SERVICES legally uninsured, administered by YORK RISK SERVICES GROUP

The Workers' Compensation Appeals Board granted reconsideration and rescinded the prior Findings and Award. The Board found that the agreed medical examiner's opinion on permanent disability was not substantial evidence because it was based on an outdated medical examination and an inaccurate assumption about the applicant's current medications. Additionally, the Board noted that vocational expert reports failed to address the impact of apportionment. The case is returned to the WCJ for further proceedings to obtain updated medical opinions and address vocational expert reporting deficiencies.

Petition for ReconsiderationFindings and AwardAgreed Medical ExaminerQualified Medical ExaminerPermanent DisabilityApportionmentSubstantial EvidenceInadequate Medical HistoryVocational ExpertLabor Code Section 5903
References
10
Case No. ADJ1651527 (SBR 0314707)
Regular
Apr 11, 2023

TERRI GLASGOW vs. MASSIE DIAGNOSTIC IMAGING, STATE COMPENSATION INSURANCE FUND

The Workers' Compensation Appeals Board (WCAB) granted reconsideration of a prior award, rescinded the award, and returned the case to the trial level for further proceedings. The applicant contended the judge failed to rate her bladder injury and ignored vocational expert opinions. The WCAB agreed that the judge improperly applied the pyramiding principles to rate the bladder and lumbar injuries and misapplied case law regarding the consideration of medical and vocational expert opinions. Additionally, the WCAB noted the decision lacked sufficient detail regarding the basis for the overall permanent disability rating.

Petition for ReconsiderationFindings and AwardPermanent Disability RatingBladder InjuryUrinary Stress IncontinenceSacral NeuropathyLumbar Spine InjuryPyramiding PrincipleMultiple Disabilities TableApportionment
References
9
Case No. ADJ8840014
Regular
Mar 27, 2017

CHARLES LOPEZ vs. JLJ TRUCKING, INCORPORATED, SPARTA INSURANCE COMPANY, GALLAGHER BASSETT SERVICES

The Workers' Compensation Appeals Board denied JLJ Trucking's petition for reconsideration, affirming the finding of 100% permanent disability for applicant Charles Lopez due to an admitted industrial injury. The Board found substantial medical evidence, including multiple surgeries, ongoing pain, sleep disturbance, and limitations on sitting, supports the total permanent disability finding. Applicant's vocational expert's opinion, considering work restrictions and pain, also substantiated the conclusion that Lopez is unable to work and has lost earning capacity. A dissenting opinion argued that Agreed Medical Examiners' findings and applicant's vocational expert's report did not adequately support total permanent disability.

Workers' Compensation Appeals BoardPetition for ReconsiderationFindings and Awardpermanently disabledindustrial injuryvocational expertsubstantial evidenceAgreed Medical Examinersneck injuryheadaches
References
2
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. ADJ767882 (SAL 0102012)
Regular
Dec 14, 2020

Stella Avila vs. Sutter Santa Cruz, State Compensation Insurance Fund

Here's a summary for a lawyer: The Workers' Compensation Appeals Board denied reconsideration of an award for admitted industrial injury to the applicant's spine, psyche, and upper extremities. The applicant sought total permanent disability based on a vocational expert, while the defendant argued the psychiatric injury was not compensable due to less than six months' employment and that permanent disability indemnity should not be awarded during VRMA payments. The Board affirmed the finding that prior and current employment with the employer exceeded six months, making the psychiatric injury compensable, and deemed the VRMA issue moot due to an amended award. The Board also found the vocational experts' opinions less persuasive than those of the Agreed Medical Examiners regarding the extent of permanent disability.

ADJ767882Stella AvilaSutter Santa CruzState Compensation Insurance FundPermanent DisabilityVocational Rehabilitation Maintenance AllowanceVRMAPsychiatric InjuryLabor Code Section 3208.3(d)Gottschalks Dept. Stores v. Workers' Comp. Appeals Bd. (Garcia)
References
1
Case No. ADJ7679237
Regular
Oct 27, 2017

VALERIE TRUJILLO vs. COLTON JOINT UNIFIED SCHOOL DISTRICT

The Workers' Compensation Appeals Board granted reconsideration and amended a previous award. The Board found that the administrative law judge erred by failing to address the applicant's vocational expert evidence concerning permanent total disability. The Board also directed the judge to incorporate an agreed medical evaluator's opinion on right ankle impairment if the vocational evidence is rejected. Jurisdiction was reserved on the issue of permanent disability, allowing for further evaluation of the vocational evidence.

WCABPetition for ReconsiderationFindings and AwardSpecial Education AideLumbar SpineRight AnklePsychePermanent DisabilityAgreed Medical EvaluatorAMA Guides
References
8
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
Case No. ADJ4280526 (OXN 0148727)
Regular
Dec 09, 2013

CLARA ARBIZU vs. WESTAC, INC., WAUSAU INSURANCE COMPANY

This case concerns an applicant's request for the defendant to prepay the cost of a vocational expert. The Appeals Board affirmed the original decision that defendants are not obligated to prepay these expenses. However, the Board clarified that vocational expert costs are considered medical-legal expenses under Labor Code section 4620 et seq., and defendants are liable for reasonable and necessary expenses incurred for proving or disproving a contested claim. The parties are ordered to proceed with a vocational expert evaluation, with the defendant ultimately responsible for the costs.

ArbizuVocational expertPrepaymentMedical-legal expenseLabor Code Section 4620Labor Code Section 4621Labor Code Section 5811Labor Code Section 5708Ogilvie analysisWhole Person Impairment
References
5
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