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Case Law Database

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

Case No. ADJ7712746
Regular
Dec 08, 2015

Glen Rizuto vs. United Parcel Service, Gallagher Bassett

The Appeals Board granted UPS's Petition for Removal, rescinding the WCJ's order to negotiate a QME selection. The Board found the WCJ erred by not addressing UPS's contentions regarding the validity of the second QME panel issued over 24 months after the first. UPS successfully argued they would be prejudiced if forced to negotiate when the second panel was allegedly the only valid one. The Board ordered parties to select a QME from the July 2, 2014 panel, allowing each to strike one name.

Petition for RemovalQualified Medical Evaluator (QME)Panel SelectionCumulative Trauma InjuryLabor Code Section 4062.1Labor Code Section 4062.2Romero v. Costco WholesaleIrreparable HarmPrejudiceMedical Unit
References
3
Case No. G107 435
Regular Panel Decision
Jun 02, 2023

Matter of Marku v. ABM Industries

This case concerns the claim of Denise Perry under the Workers' Compensation Law. The Workers' Compensation Law Judge (WCLJ) previously found that the employer, Adventist Home Care, established a violation of Workers' Compensation Law § 114-a by the claimant for willfully making false statements to obtain benefits. Consequently, the WCLJ disallowed indemnity benefits and imposed both mandatory and discretionary penalties. A Board Panel decision filed on February 17, 2022, affirmed the WCLJ's findings. The claimant subsequently filed an application for reconsideration on March 18, 2022, which the Board Panel reviewed. After considering the claimant’s arguments, the Board Panel determined that the application did not raise new issues or present new material evidence, nor did it demonstrate an erroneous statement of material fact or law in the prior decision. Therefore, the Board Panel, by a majority vote, affirmed its prior decision.

Workers' Compensation FraudFalse RepresentationIndemnity Benefits DisallowanceWCL § 114-a PenaltyApplication for Reconsideration DeniedBoard Panel AffirmationWillful MisrepresentationWorkers' Compensation Law Judge DecisionEmployer Established Violation
References
0
Case No. ADJ11139513
Regular
Jul 23, 2018

TEMPE EVERSON vs. STATE OF CALIFORNIA, CTF SOLEDAD, STATE COMPENSATION INSURANCE FUND

This case concerns the proper Qualified Medical Evaluator (QME) panel selection after an applicant became represented by an attorney. Initially unrepresented, applicant received QME panel #2194142, but no evaluation occurred before she retained counsel. A new panel, #2200955, was issued for represented cases, from which applicant timely struck a physician. However, the defendant's strike from this second panel was found to be untimely. The Appeals Board granted removal, amended the prior order, and directed the parties to proceed with an evaluation by Dr. Scheinbaum from the second panel, deeming it the appropriate one.

Petition for RemovalQualified Medical Evaluator (QME) panelrepresented vs. unrepresentedtimely strikeRomero v. CostcoLabor Code section 4062.1Labor Code section 4062.2Code of Civil Procedure section 1013Razo v. Las Posas Country Clubcomprehensive medical-legal evaluation
References
3
Case No. ADJ7087412; ADJ7087413
Regular
Feb 19, 2014

MARCOS MORALES vs. THE KROGER CO. dba RALPH'S; SEDGWICK CMS

This case concerns a dispute over the selection of a Qualified Medical Evaluator (QME) to determine industrial injuries related to diabetes and cardiovascular issues. The defendant, Kroger Co., objected to the WCJ's order for a replacement QME panel in internal medicine, arguing they had selected endocrinology and would be prejudiced. The Appeals Board granted the defendant's Petition for Removal, finding the WCJ erred by ordering a QME panel after trial when the parties had waived their right to that procedure. The Board rescinded the WCJ's order and remanded the case with instructions for the WCJ to appoint a "regular physician" to develop the medical record.

Petition for RemovalQualified Medical Evaluator (QME)Agreed Medical Evaluator (AME)Regular PhysicianLabor Code Section 4062.2Medical Record DevelopmentVocational Produce WorkerDiabeticCardiovascularWaiver
References
2
Case No. ADJ7514657
Regular
Jun 09, 2016

Kenneth White vs. City of San Pablo

The Workers' Compensation Appeals Board (WCAB) denied the City of San Pablo's petition for reconsideration, adopting the reasoning of the workers' compensation judge (WCJ). The WCAB found that the applicant's psychiatric injury claim was not barred by the statute of limitations, as the employer failed to provide a claim form, thus tolling the limitations period. Furthermore, the WCAB upheld the WCJ's finding that the applicant, acting through his "attorney-in-fact" (his aunt with power of attorney), was unrepresented for the purposes of selecting a Qualified Medical Evaluator (QME). Therefore, the applicant retained the right to select a QME from the panel, and the employer could not strike a physician from that panel.

WCABPetition for ReconsiderationWorkers' Compensation Administrative Law JudgeWCJQMEQualified Medical EvaluatorStatute of LimitationsDurable Power of AttorneyAttorney-in-FactDWC-1
References
3
Case No. MISSING
Regular Panel Decision

Matter of Burns v. New York State Workers' Compensation Board

Claimant sought workers' compensation benefits due to injuries from an automobile accident. As an employee of the Workers’ Compensation Board, his claim was processed through a neutral outside arbitration process. An arbitrator established his claim and average weekly wage. Claimant appealed, arguing his average weekly wage should have been calculated differently due to a recent promotion, as per Workers’ Compensation Law § 14 (2). An arbitration panel declined to address this argument because it was not raised before the arbitrator. The appellate court affirmed the panel's decision, citing that the panel could decline review of issues not previously raised, consistent with 12 NYCRR 300.13 [e] [1] [iii].

ArbitrationAverage Weekly WageWorkers' CompensationAppellate ReviewIssue PreservationAdministrative LawProcedural Due ProcessStatutory InterpretationWorkers’ Compensation Board
References
2
Case No. MISSING
Regular Panel Decision

Claim of Mulligan v. Workers' Compensation Board

The claimant, a former workers' compensation law judge, appealed the denial of reduced earning benefits, which stemmed from his claim that stress from his job caused him to voluntarily withdraw from the labor market. He had previously received benefits for a 1995 angina attack. An arbitrator and subsequent arbitration panel concluded that he voluntarily withdrew from the labor market, a determination the claimant contested, asserting his retirement was due to work-related stress. The court, led by Judge Carpinello, found substantial evidence supported the panel's decision, noting the claimant never complained of stress to supervisors, sought accommodations, or applied for disability retirement. The court affirmed the arbitration panel's decision, denying the claimant's appeal.

Voluntary Withdrawal from Labor MarketReduced Earning BenefitsWorkers Compensation BenefitsArbitration Panel DecisionSubstantial EvidenceDisability RetirementJob-Related StressAppellate ReviewLabor Market WithdrawalClaim Denial
References
8
Case No. ADJ7199986 ADJ7399845
Regular
Oct 03, 2011

ELMIRA SMITH vs. PACIFIC AUTISM CENTER FOR EDUCATION, TRI- STAR RISK MANAGEMENT

The applicant sought removal to challenge a finding that defendant's requested Qualified Medical Evaluator (QME) panel was properly assigned. The Appeals Board granted removal, rescinded the finding, and determined that *neither* panel was properly assigned. Both panel requests were found to be premature as they were made before the statutory 10-day period for agreeing on an Agreed Medical Evaluator had expired, plus an additional five days for mail service. This decision clarifies the timing requirements for QME panel requests following an unsuccessful attempt to select an AME.

Petition for RemovalQualified Medical Evaluator (QME)Agreed Medical Evaluator (AME)Labor Code section 4062.2(b)WCAB Rule 10507Messele v. Pitco FoodsInc.Premature RequestPanel AssignmentMedical Unit
References
2
Case No. ADJ11861160
Regular
Oct 25, 2019

ADRIANA MARTINEZ vs. AVITUS, AMERICAN ZURICH INSURANCE COMPANY, GALLAGHER BASSETT SERVICES

This case involves a dispute over the selection of Qualified Medical Evaluator (QME) panels for an applicant with claimed injuries to multiple body parts. The Workers' Compensation Appeals Board (WCAB) granted the applicant's petition for removal, rescinded the prior decision, and found that the applicant's chiropractic QME panel request was proper while the defendant's orthopedic surgery panel request was improper. The WCAB determined that chiropractic medicine is the appropriate specialty and struck the orthopedic surgery panel, ordering the parties to proceed with the chiropractic QME. The WCAB clarified that while chiropractors cannot perform surgery or prescribe medication, they are qualified to evaluate injuries within their scope of practice.

QME panel disputeremoval petitionchiropractic specialtyorthopedic surgery specialtyLabor Code 4062.2Medical Directoradministrative law judgeWorkers' Compensation Appeals Boardproper panel selectioninvalid panel request
References
9
Case No. WCB No. G076 2707
Regular Panel Decision
Dec 09, 2021

Matter of Duncan v. John Wiley & Sons, Inc.

This Board Panel Decision concerns an appeal by the applicant, Joseph Lafayette, regarding a Workers' Compensation Law Judge's (WCLJ) finding on the causal relationship of his back injury. The applicant sustained injuries to his back, neck, and shoulder during his employment. The WCLJ had previously established a causal relationship for the neck and shoulder injuries but disallowed the claim for the back injury. Upon review, the Board Panel determined that the medical evidence in the record supports a causal relationship between the claimant's employment and his lower back injury. As a result, the Panel modified the WCLJ's decision to establish a causal relationship for the back injury, while affirming the other aspects of the original decision.

Workers' CompensationBack InjuryNeck InjuryShoulder InjuryCausal RelationshipMedical EvidencePanel ReviewWCLJ DecisionModificationAppeal
References
2
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