The Appeals Board held that: (1) the repeal of section 139.5 terminated any rights to vocational rehabilitation benefits or services pursuant to orders or awards that were not final before January 1, 2009; (2) a saving clause was not adopted to protect vocational rehabilitation rights in cases still pending on or after January 1, 2009; (3) the vocational rehabilitation statutes that were repealed in 2003 do not continue to function as “ghost statutes” on or after January 1, 2009; (4) effective January 1, 2009, the WCAB lost jurisdiction over non-vested and inchoate vocational rehabilitation claims, but the WCAB continues to have jurisdiction under sections 5502(b)(3) and 5803 to enforce or terminate vested rights; and (5) subject matter jurisdiction over non-vested and inchoate vocational rehabilitation claims cannot be conferred by waiver, estoppel, stipulation, or consent.

The Appeals Board designated this case, which had already been granted for study as a panel decision, as an en banc case, and issued a decision allowing amicus curiae briefing from interested persons or entities on the issue of whether the WCAB has jurisdiction to award vocational rehabilitation benefits after the January 1, 2009 repeal of Labor Code section 139.5. Following the briefing time allowed in the decision the Appeals Board will issue a Decision After Reconsideration on the issue.

Wanda Ogilvie
v.
City and County of San Francisco,
Permissibly Self-Insured

Mario Almaraz
v.
Environmental Recovery Services (aka Enviroserve);
State Compensation Insurance Fund

-and-

Joyce Guzman
v.
Milpitas Unified School District, Permissibly Self-Insured;
Keenan & Associates

Wanda Ogilvie
v.
City and County of San Francisco,
Permissibly Self-Insured

The Appeals Board held in substance that: (1) the Diminished Future Earnings Capacity (DFEC)  portion of the 2005 Schedule is rebuttable; (2) the DFEC portion of the 2005 Schedule ordinarily is not rebutted by establishing the percentage to which an injured employee’s future earning capacity has been diminished; (3) the DFEC portion of the 2005 Schedule is not rebutted by taking two-thirds of the injured employee’s estimated diminished future earnings and then comparing the resulting sum to the permanent disability money chart to approximate a corresponding permanent disability rating; and (4) in the usual case, the DFEC portion of the 2005 Schedule may be rebutted only in a manner consistent with Labor Code section 4660 – including section 4660(b)(2) and the RAND data to which section 4660(b)(2) refers.

This holding involves the application or interpretation of Labor Code section 4660(c), which continues to state: "This schedule…shall be prima facie evidence of the percentage of permanent disability…." The Appeals Board has previously held in prior en banc decisions in Costa I (71 Cal.Comp.Cases 1797) and Costa II (72 Cal.Comp.Cases 1492) that, pursuant to this section and case law, the percentage of disability resulting from the 2005 Permanent Disability Rating Schedule is rebuttable. This decision discusses how the DFEC portion of the schedule can be rebutted.

Mario Almaraz
v.
Environmental Recovery Services (aka Enviroserve);
State Compensation Insurance Fund

-and-

Joyce Guzman
v.
Milpitas Unified School District, Permissibly Self-Insured;
Keenan & Associates

The Appeals Board held in substance that:  (1) the American Medical Association (AMA) Guides portion of the 2005 Schedule is rebuttable; (2) the AMA Guides portion of the 2005 Schedule is rebutted by showing that an impairment rating based on the AMA Guides would result in a permanent disability award that would be inequitable, disproportionate, and not a fair and accurate measure of the employee’s permanent disability; and (3) when an impairment rating based on the AMA Guides has been rebutted, the WCAB may make an impairment determination that considers medical opinions that are not based or are only partially based on the AMA Guides.

This holding involves the application or interpretation of Labor Code section 4660(c), which continues to state:  "This schedule … shall be prima facie evidence of the percentage of permanent disability…."  The Appeals Board has previously held in prior en banc decisions in Costa I (71 Cal.Comp.Cases 1797) and Costa II (72 Cal.Comp.Cases 1492) that, pursuant to this section and case law, the percentage of disability resulting from the 2005 Permanent Disability Rating Schedule is rebuttable.  This decision discusses how the AMA Guides portion of the schedule can be rebutted.

Maria Tapia
v.
Skill Master Staffing; and
Liberty Mutual Insurance Company,
SB Surgery Center

The Appeals Board held that consistent with its en banc decision in Kunz v. Patterson Floor Coverings, Inc. (2002) 67 Cal.Comp.Cases 1588: (1) an outpatient surgery center lien claimant (or any medical lien claimant) has the burden of proving that its charges are reasonable; (2) the outpatient surgery center lien claimant’s billing, by itself, does not establish that the claimed fee is “reasonable”; therefore, even in the absence of rebuttal evidence, the lien need not be allowed in full if it is unreasonable on its face; and (3) any evidence relevant to reasonableness may be offered to support or rebut the lien; therefore, evidence is not limited to the fees accepted by other outpatient surgery centers in the same geographic area for the services provided.

Dee Anne Ramirez
v.
Drive Financial Services; and One Beacon Insurance Co.

The Appeals Board held: (1) that the amount of the penalty under Labor Code section 5814(a) is discretionary and should be determined upon consideration of the factors enumerated in this opinion; (2) that although, under new section 5814(a), a successive penalty may still be awarded for an unreasonable delay in making a prior penalty payment, it should not be awarded where the defendant had genuine doubt as to its liability or where there is no legally significant intervening event; (3) that, if an unreasonable delay in payment of an award of compensation occurred after January 1, 2003, section 5814.5 entitles an applicant’s attorney to receive fees for enforcing the award, even against a private employer and even when the injury occurred prior to January 1, 2003, the effective date of the amendment to section 5814.5; and (4) that such fees are to be awarded “in addition to” applicant’s section 5814(a) penalty - not as a percentage of the penalty - and are to be based on the reasonable number of hours expended and a reasonable hourly rate.

The Board denied Mr. Pellicer’s request for permission to appear in Workers’ Compensation Appeals Board proceedings under WCAB Rule 10799 (Cal. Code Regs., tit. 8, sec. 10799) because he was suspended and placed on involuntary inactive enrollment from the practice of law by the State Bar, and because such persons, as well as those who have been disbarred or suspended, or who have resigned with disciplinary proceedings pending,  may not be allowed to appear on behalf of another in judicial or quasi-judicial hearings and proceedings before administrative boards and commissions, pursuant to Benninghoff v. Superior Court (2006) 136 Cal.App.4th 61 [38 Cal.Rptr.3rd 759] and In the Matter of John H. Hoffman, Jr. (2006) 71 Cal. Comp. Cases 609, Appeals Bd. Sig. Panel Decision.

The Board held that the applicant did not carry his burden of demonstrating that the adoption of the 2005 Permanent Disability Rating Schedule (PDRS) by the Administrative Director of the Division of Workers’ Compensation was arbitrary or capricious, or inconsistent with Labor Code section 4660(b)(2), and therefore that he failed to rebut the presumptive validity of the 2005 PDRS.

The Board held that the rule in Wilkinson, (i.e., basically allowing a combined award of permanent disability in successive injury cases,) is not consistent with the new requirement that apportionment be based on causation and that, therefore, Wilkinson is no longer generally applicable. The Board must determine and apportion to the cause of disability for each industrial injury. The Board noted that consideration must be given to all potential causes of disability, whether from a current industrial injury, a prior or subsequent industrial injury, or a prior or subsequent non-industrial injury or condition. It was observed, however, that there may be limited circumstances, not present in these cases, where the evaluating physicians cannot parcel out, with reasonable medical probability, the approximate percentages to which each successive injury causally contributed to the employee's overall permanent disability. Under those limited circumstances, a combined award of permanent disability may still be justified.

The holding as applied in these cases resulted in separate awards of permanent disability. This opinion involved an interpretation of Labor Code §§4663 and 4664(a) as enacted under SB 899 and the impact on prior legal principles.

The Board reaffirmed its prior holding that Labor Code §4660 continues to allow the parties to present evidence on and/or in rebuttal to a permanent disability rating under the new PDRS, and that the costs of such evidence may be allowable. Additionally, the Board noted that the standards for allowing such cases will be by analogy to medical-legal costs – whether such costs are reasonable and necessary at the time they are incurred.

The Board held that the word "amputations," as used in section 4656(c)(2)(C), means the severance or removal of a limb, part of a limb, or other body appendage, including both traumatic loss in an industrial injury and surgical removal during treatment of an industrial injury. This definition conforms to our understanding of the common meaning of the term "amputation," which encompasses external projecting body parts, not internal parts, even if they include bone.

This holding involved one of the exceptions under Labor Code ?4656(c)(2), that, if triggered, would entitle an injured worker to temporary disability indemnity beyond the 104-week/two year cap set forth in Labor Code ?4656(c)(1).

The Board held that "the date of commencement of temporary disability payment" as used in section 4656(c)(1) means the date on which temporary disability indemnity is first paid, and not the date for which temporary disability indemnity is first owed.

In this case, applicant was injured on July 16, 2004. Defendant's first payment of temporary disability indemnity was made on May 3, 2005, which covered the period of TD from July 17, 2004 through May 3, 2005 and defendant then made periodic temporary disability indemnity payments through July 14, 2006. The WCJ's decision concluded that the "period of two years from the date of commencement of temporary disability payment" as provided in section 4656(c)(1) began on May 3, 2005, the date on which temporary disability indemnity was first paid, and not from July 17, 2004, the date for which temporary disability indemnity was first owed. The WCJ's decision was accordingly, affirmed.

This holding involved an interpretation of an addition to Labor Code ?4656 under SB 899.

The Board, reversing its prior en banc decision of January 24, 2007, held that if the last payment of temporary disability indemnity was made for any period of temporary disability ending before January 1, 2005, then the 1997 Permanent Disability Rating Schedule applies to determine the extent of permanent disability, pursuant to section 4660(d), because section 4061 requires the employer to provide the injured worker with a notice regarding permanent disability "[t]together with the last payment of temporary disability indemnity."

This holding involved one of the exceptions under Labor Code section 4660(d) that, if triggered, would result in determining permanent disability in a case under the former PDRS rather than under the new PDRS effective January 1, 2005.

The Board, reversing its prior en banc decision of January 24, 2007, held that in order for the 1997 Permanent Disability Rating Schedule to apply to a pre-1/1/05 injury claim under Labor Code Section 4660(d), the existence of permanent disability must be indicated in either a pre-2005 comprehensive medical-legal report or a pre-2005 report from a treating physician.

This holding involved one of the exceptions under Labor Code section 4660(d) that, if triggered, would result in determining permanent disability in a case under the former PDRS, rather than under the new PDRS effective January 1, 2005.

The Board held that a defendant may satisfy its obligation under Labor Code section 4600 to provide reasonable medical treatment by transferring an injured worker into an authorized Medical Provider Network in conformity with applicable statutes and regulations regardless of the date of injury or the date of an award of future medical treatment.

The Board held that because a comprehensive medical-legal report issued in this case prior to January 1, 2005, the former Permanent Disability Rating Schedule (PDRS) applies under section 4660(d), whether or not the comprehensive medical-legal report indicates the existence of permanent disability.

This holding involved one of the exceptions under Labor Code section 4660(d) that, if triggered, would result in determining permanent disability in a case under the former PDRS, rather than under the new PDRS effective January 1, 2005.

The Board held that because an employer's duty to provide notice under Labor Code section 4061 arises with the first payment of temporary disability indemnity, if the first date of compensable temporary disability occurred prior to January 1, 2005, the former Permanent Disability Rating Schedule (PDRS) applies to determine the extent of permanent disability in that case.

This holding involved one of the exceptions under Labor Code section 4660(d) that, if triggered, would result in determining permanent disability in a case under the former PDRS rather than under the new PDRS effective January 1, 2005.

The Board held 1) that the applicant had not met his burden of proving that the new Permanent Disability Rating Schedule (PDRS) under Labor Code section 4660 was invalid, and 2) that, as under former Labor Code section 4660, current Labor Code section 4660 allows the parties to present rebuttal evidence to a proposed rating and that the costs of such rebuttal evidence may be allowable.

In this particular case, it was determined that defendant's failure to provide applicant with notice of his rights under the MPN had resulted in a neglect or refusal to provide medical treatment rendering defendant liable for applicant's self-procured medical treatment.

The Board held that the revised permanent disability rating schedule, adopted by the Administrative Director of the Division of Workers' Compensation, effective January 1, 2005, applies to injuries occurring on or after that date, and that in cases of injury occurring prior to January 1, 2005, the revised permanent disability rating schedule applies, unless one of the exceptions delineated in the third sentence of section 4660(d) is present.

The matter was returned to the trial level to consider whether any exception to the application of the revised permanent disability schedule was present based upon the facts of this case

Consistent with the opinion of the Court of Appeal, the Board found that the special employer's insurance in this case is not "other insurance" available to applicant within the meaning of Insurance Code section 1063.1(c)(9). Accordingly, the California Insurance Guarantee Association's (CIGA) dismissal as a party was set aside and CIGA remained a party with potential liability for covered claims.

The Board also concluded:
1. Our en banc decision in this case was reversed by the Court of Appeal and for that reason it is not legal precedent. In addition, the unpublished Court of Appeal decision in this case may not be generally cited or relied upon in any other action, except when relevant under the doctrines of law of the case, res judicata or collateral estoppel;
2. The May 14, 2002 consolidation and stay order was only intended to apply during the pendency of the appellate proceedings in this case and it is now rescinded so that each case covered by that order may be individually resolved on its own particular facts;
3. The request by RemedyTemp to be dismissed from each of the consolidated cases is denied because the consolidation order no longer applies and there is no authority to support dismissal because the Court of Appeal decision was decertified for publication by the Supreme Court.
4. The joint request by RemedyTemp and CIGA for a new consolidation and/or stay order is denied because each case must be evaluated on its own facts, including consideration of the intent of the parties and the effect of the various insurance policies involved;
5. The petition filed by Assurance for reimbursement of costs it claims to have incurred in the Court of Appeal proceeding is dismissed."

In denying the applicant's Petition for Removal which sought, in essence, to preclude the application of the new apportionment statutes under SB 899, the Board held:

(1) The new apportionment provisions of SB 899 apply to the issue of increased permanent disability alleged in any petition to reopen (see sections 5803, 5804, 5410) that was pending at the time of the legislative enactment on April 19, 2004, regardless of date of injury;
(2) Consistent with Section 47 of SB 899, the new apportionment statutes cannot be used to revisit or recalculate the level of permanent disability, or the presence or absence of apportionment, determined under a final order, decision, or award issued before April 19, 2004; and
(3) In applying the new apportionment provisions to the issue of increased permanent disability, the issue must be determined without reference to how, or if, apportionment was determined in the original award.

(1) An order approving a compromise and release agreement, without more, is not a "prior award of permanent disability" within the meaning of section 4664(b);

(2) Where there is no "prior award of permanent disability" within the meaning of section 4664(b), the medical reports and other evidence relating to a prior industrial injury that was settled by a compromise and release still may be relevant in determining whether any of the permanent disability found after a subsequent industrial injury was caused by "other factors" under section 4663; and

(3) The concept of medical rehabilitation from a prior industrial disability remains viable under section 4663; however, even if an injured employee has medically rehabilitated from a prior industrial disability, this does not necessarily preclude a prior industrial injury from being an "other factor" causing the employee's present disability.

(1) Where an employee suffers an industrial injury causing permanent disability, and where there is a prior award of permanent disability relating to the same region of the body, section 4664 requires the apportionment of overlapping permanent disabilities;

(2) The defendant has the burden of proving the existence of any prior permanent disability award(s) relating to the same region of the body;

(3) When the defendant has established the existence of any prior permanent disability award(s) relating to the same body region, the permanent disability underlying any such award(s) is conclusively presumed to still exist, i.e., the applicant is not permitted to show medical rehabilitation from the disabling effects of the earlier industrial injury or injuries;

(4) When the defendant has established the existence of any prior permanent disability award(s) relating to the same region of the body, the percentage of permanent disability from the prior award(s) will be subtracted from the current overall percentage of permanent disability, unless the applicant disproves overlap, i.e., the applicant demonstrates that the prior permanent disability and the current permanent disability affect different abilities to compete and earn, either in whole or in part;

(5) The issue of whether the prior permanent disability for the same region of the body overlaps the current disability is determined using substantially the same principles that were applied prior to the enactment of section 4664; and

(6) The sum of the permanent disability awards for any one body region cannot exceed 100%, even where the permanent disability caused by the applicant's new injury does not overlap the permanent disability underlying the prior award(s), unless the employee's new industrial injury causes disability that is conclusively presumed to be total under section 4662.

(1) Where an employee suffers an industrial injury causing permanent disability to one region of the body, and where there is a prior award of permanent disability involving and/or including any other region(s) of the body, section 4664 requires the apportionment of overlapping permanent disabilities;

(2) The defendant has the burden of proving the existence of any prior permanent disability award(s) involving and/or including any other region(s) of the body;

(3) When the defendant has established the existence of any prior permanent disability award(s) involving and/or including any other region(s) of the body, the permanent disability underlying any such award(s) is conclusively presumed to still exist, i.e., the applicant is not permitted to show medical rehabilitation from the disabling effects of the earlier industrial injury or injuries;

(4) When the defendant has established the existence of any prior permanent disability award(s) involving and/or including any other region(s) of the body, the percentage of permanent disability from the prior award(s) will be subtracted from the percentage of permanent disability for the body region of the most recent injury, unless the applicant disproves overlap, i.e., the applicant demonstrates that the prior permanent disability and the current permanent disability affect different abilities to compete and earn, either in whole or in part; and

(5) The issue of whether the prior permanent disability for a different region of the body overlaps the current disability is determined using substantially the same principles that were applied prior to the enactment of section 4664.

(1) If a defendant undertakes utilization review to determine whether a proposed treatment is medically necessary, and if the utilization review physician finds that the treatment is medically necessary but raises questions as to whether the treatment is industrially-related, the utilization review report is admissible in evidence for the limited purposes of establishing: (a) utilization review was undertaken and the date(s) of the utilization review physician's report(s); (b) the utilization review physician found the proposed treatment to be medically necessary; and (c) the utilization review process has resulted in a dispute as to whether the industrial injury caused or contributed to the need for the treatment;

(2) A utilization review physician finds that a treatment is medically necessary but questions whether the need for that treatment is causally related to the industrial injury, the defendant must either: (a) authorize the treatment; or (b) timely deny authorization based on causation within the deadlines set forth in section 4610(g)(1); timely communicate the denial based on causation to both the treating physician and the applicant within the deadlines set forth in section 4610(g)(3)(A); and timely initiate the AME/QME process within 20 days of the receipt of the utilization of physician's report, if the employee is represented by an attorney, or 30 days, if the employee is unrepresented, in accordance with section 4062(a)*; and

(4) Although the ACOEM guidelines are "presumptively correct on the issue of extent and scope of medical treatment" (Lab.Code 4604.5(c), they are not presumptively correct on the issue of whether a need for medical treatment is causally related to the industrial injury.

* In reaching this holding, we are not addressing any issues relating to proposed spinal surgery under sections 4610(g)(3)(A) & (B) and 4062(b).

1) Section 4663(a)'s statement that the apportionment of permanent disability shall be based on "causation" refers to the causation of the permanent disability, not causation of the injury, and the analysis of the causal factors of permanent disability for purposes of apportionment may be different from the analysis of the causal factors of the injury itself.

2) Section 4663(c) not only prescribes what determinations a reporting physician must make with respect to apportionment, it also prescribes what standards the WCAB must use in deciding apportionment; that is, both a reporting physician and the WCAB must make determinations of what percentage of the permanent disability was directly caused by the industrial injury and what percentage was caused by other factors.

3) Under section 4663, the applicant has the burden of establishing the percentage of permanent disability directly caused by the industrial injury, and the defendant has the burden of establishing the percentage of disability caused by other factors. 4) Apportionment of permanent disability caused by "other factors both before and subsequent to the industrial injury, including prior industrial injuries," may include not only disability that could have been apportioned prior to SB 899, but it also may include disability that formerly could not have been apportioned (e.g., pathology, asymptomatic prior conditions, and retroactive prophylactic work preclusions), provided there is substantial medical evidence establishing that these other factors have caused permanent disability.

5) Even where a medical report "addresses" the issue of causation of the permanent disability and makes an "apportionment determination" by finding the approximate relative percentages of industrial and non-industrial causation under section 4663(a), the report may not be relied upon unless it also constitutes substantial evidence.

The Board defined "final" as a decision where appellate rights have been exhausted prior to April 19, 2004.

2) If a defendant undertakes an untimely utilization review procedure, any utilization review report obtained as to the particular treatment in dispute is not admissible in evidence, and any utilization review report obtained cannot be forwarded to an AME or QME if section 4062(a) procedures are timely pursued; and;

3) When a defendant does not meet the section 4610(g)(1) deadlines, it may use the procedure established by section 4062(a) to dispute the treating physician's treatment recommendation; however, the defendant (not the applicant) is then the "objecting party" and the defendant must meet the section 4062(a) deadlines, unless those deadlines are extended for good cause or by mutual agreement.

(2) Once the panel QME's evaluation has been obtained, neither the treating physician nor the utilization review physician may issue any further reports addressing the post-utilization review treatment dispute;

(3) The panel QME should ordinarily be provided with and consider both the reports of the treating physician and the utilization review physician regarding the disputed issues;

(4) If a post-utilization review medical treatment dispute goes to trial after the panel QME issues his or her report, both the treating physician's and the utilization review physician's reports are admissible in evidence;

(5) When a WCJ or the Appeals Board issues a decision on a post-utilization review medical treatment dispute, the reports of the panel QME, the treating physician, and the utilization review physician will all be considered, but none of them is necessarily determinative.

There were also a concurring and dissenting opinion and a dissenting opinion.

The Board also concluded that following the filing of an Application of Adjudication of Claim ("application"), and as soon as an applicant determines that the employer is or may be uninsured and has made a good faith effort to determine the correct legal identity of the employer, UEF may be ordered to appear provisionally at proceedings and ordered to assist in determining the correct legal identity of the employer pursuant to section 3716(d)(4). The Board announced several procedures intended to obtain the early and active participation of UEF when either the employee has difficulty in establishing the correct legal identity of the employer after good faith efforts, or when UEF objects to the correct legal identity of the employer as asserted by the employee.

Carol Nokes
Placer Savings Bank; Fremont Compensation Insurance Company; Paula Insurance Company (in liquidation); California Insurance Guarantee Association;