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En banc decisions

En banc decisions | Significant panel decisions | Cases pending on appellate grants | Disclaimer

To view decisions, click on the name of the decision (to the right of the date) and you will access the file which contains the decision. Use of the California Compensation Cases citation is used for the community's information and convenience only with a recognition that the text and/or summary of the decisions may also appear in other publications.

2014 en banc decisions

Roque Neri Hernandez
v.
Geneva Staffing, Inc. dba Workforce Outsourcing, Inc.; Tower Point National Insurance Company, administered by Tower Select Insurance

June 12, 2014 2014-EB-6
Case No: ADJ7995806
79 Cal. Comp. Cases

With regard to the SB 863 additions and amendments to the Labor Code regarding home health care services, which became effective January 1, 2013, the Appeals Board held:

  1. Sections 4600(h), 4603.2(b)(1), and 5307.8 apply to requests for home health care services in all cases which are not final regardless of date of injury or dates of service.
  2. The prescription required by section 4600(h) is either an oral referral, recommendation or order for home health care services for an injured worker communicated directly by a physician to an employer and/or its agent; or, a signed and dated written referral, recommendation or order by a physician for home health care services for an injured worker. 
  3. Under section 4600(h) home health care services are subject to   either section 5307.1 or section 5307.8; section 5307.1 applies where an official medical fee schedule or Medicare schedule covers the type of home health care services sought; and otherwise, section 5307.8 applies.

Jose Dubon
v.
World Restoration, Inc; and State Compensation Insurance Fund

May 22, 2014 2014-EB-5
Case No: ADJ4274323 (ANA 0387677) - ADJ1601669 (ANA 0388466)
79 Cal. Comp. Cases 566

The Appeals Board granted State Compensation Insurance Fund’s petition for reconsideration of the February 27, 2014 Opinion and Decision After Reconsideration (En Banc) wherein the Appeals Board previously held that the Workers’ Compensation Appeals Board may determine if a utilization review decision suffered from material defects that undermine the integrity of the decision, and if so, it may then determine the medical necessity issue based on substantial medical evidence. (See Dubon v. World Restoration, Inc. (2014) 79 Cal.Comp.Cases 313 (Appeals Board en banc) (Dubon).) Reconsideration was granted in order to allow sufficient opportunity to further study the factual and legal issues, noting that the prior decision remains in effect and binding pending a decision after reconsideration in the present matter.


Warren Brower
v.
David Jones Construction; State Compensation Insurance Fund

May 21, 2014 2014-EB-4
Case No: ADJ802221  (SJO 0258870)
79 Cal. Comp. Cases 550

Where the applicant had exhausted the 104 weeks of allowable temporary disability indemnity payments but was not yet permanent and stationary, and where the applicant was subsequently declared to be permanently totally disabled, the Appeals Board held:

  1. When a defendant stops paying temporary disability indemnity pursuant to section 4656(c) before an injured worker is determined to be permanent and stationary, the defendant shall commence paying permanent disability indemnity based on a reasonable estimate of the injured worker’s ultimate level of permanent disability.
  2. When an injured worker who is receiving permanent partial disability payments pursuant to section
    4650(b)(1) becomes permanent and stationary and is determined to be permanently totally disabled, the defendant shall pay permanent total disability indemnity retroactive to the date its statutory obligation to pay temporary disability indemnity terminated.
  3. COLAs begin on the first day in January after an  injured worker becomes entitled to receive permanent disability indemnity pursuant to sections 4650(b)(1) or (b)(2).

Ismael Navarro
v.
City of Montebello, administered by Corvel Corporation

April 2, 2014 2014-EB-3
Case No: ADJ6779197 - ADJ7472140 - ADJ7964720
79 Cal. Comp. Cases 418

The Appeals Board determined that for his two new claims of injury the applicant did not have to be evaluated by the panel qualified medical evaluator (panel QME) who previously evaluated him for his original claim of injury, holding that:

  1. The Labor Code does not require an employee to return to the same panel QME for an evaluation of a subsequent claim of injury; and
  2. The requirement in Rule 35.5(e) that an employee return to the same evaluator when a new injury or illness is claimed involving the same parties and the same type of body parts is inconsistent with the Labor Code, and therefore, this requirement is invalid.

Jose Dubon
v.
World Restoration, Inc.; and State Compensation Insurance Fund

Feb. 27, 2014 2014-EB-2
Case No: ADJ4274323 (ANA 0387677) - ADJ1601669 (ANA 0388466)
79 Cal. Comp. Cases 313

In reaching its decision in this case that the Utilization Review (UR) decision was invalid, that the UR decision therefore was not subject to Independent Medical Review (IMR), and that the WCJ must then determine the medical necessity of the requested treatment based on substantial medical evidence, the Appeals Board specifically held as follows:

  1. IMR solely resolves disputes over the medical necessity of treatment requests.  Issues of timeliness and compliance with statutes and regulations governing UR are legal disputes within the jurisdiction of the WCAB.
  2.  A UR decision is invalid if it is untimely or suffers from material procedural defects that undermine the integrity of the UR decision.  Minor technical or immaterial defects are insufficient to invalidate a defendant’s UR determination.
  3. If a defendant’s UR is found invalid, the issue of medical necessity is not subject to IMR but is to be determined by the WCAB based upon substantial medical evidence, with the employee having the burden of proving the treatment is reasonably required.
  4. If there is a timely and valid UR, the issue of medical necessity shall be resolved through the IMR process if requested by the employee.

Ismael Navarro
v.
City of Montebello, administered by Corvel Corporation

Feb. 27, 2014 2014-EB-1
Case No:ADJ6779197 - ADJ7472140 - ADJ7964720
79 Cal. Comp. Cases 328

In order to give the Division of Workers’ Compensation and the parties an opportunity to address the issues raised by its proposed holdings as to the Labor Code and Rule 35.5(e) (Cal. Code Regs., tit. 8, sec. 35.5(e).), the Appeals Board granted removal and issued a twenty-day notice of intention to hold as follows:

  1. The Labor Code does not require an employee to return to the same panel QME for an evaluation of a subsequent claim of injury.
  2. The requirement in Rule 35.5(e) that an employee return to the same evaluator when a new injury or illness is claimed involving the same parties and the same type of  body parts is inconsistent with the Labor Code, and this requirement is therefore invalid.

2013 en banc decisions

Carroll Wesley
v.

Cincinnati Bengals, Permissibly Self-Insured; New Orleans Saints, Louisiana Workers' Compensation Corporation; Travelers Insurance.

June 18, 2013 2013-EB-6
Case No: ADJ2295331 (ANA 0397551)
78 Cal. Comp. Cases 655
The Appeals Board held that an employee and his or her employer are exempted by Labor Code section 3600.5(b) from the provisions of the California workers’ compensation law when the employee was hired outside of California and all of the following apply: (1) the employee is temporarily within California doing work for the employer, (2) the employer furnished coverage under the workers’ compensation or similar laws of another state that covers the employee’s employment while in California, (3) the other state recognizes California’s extraterritorial provisions, and (4) the other state likewise exempts California employers and employees covered by California’s workers’ compensation laws from the application of its workers’ compensation or similar laws.

Luis Martinez
v.
Ana Terrazas; Allstate Insurance Co., Administered by Specialty Risk Services

May 7, 2013 2013-EB-5
Case No: ADJ7613459
78 Cal. Comp. Cases 444

Where a medical-legal lien claim for copy costs was filed before January 1, 2013, and after January 1, 2013 it was withdrawn and re-filed as a petition for costs under Labor Code section 5811, the Appeals Board held: (1) a claim for medical-legal expenses may not be filed as a petition for costs under section 5811; and (2) medical-legal lien claimants who withdrew their liens and filed petitions for costs prior to this decision may pursue recovery through the lien process if they comply with the lien activation fee requirements of section 4903.06 and if their liens have not otherwise been dismissed.


Eliezer Figueroa
v.
B.C Doering Co.; Employers Compensation Insurance Fund

April 25, 2013 2013-EB-4
Case No:
ADJ3274228 (AHM 0120365)
78 Cal. Comp. Cases 439

The Appeals Board held that, where a lien claim falls within the lien activation fee requirements of Labor Code section 4903.06: (1) the lien activation fee must be paid prior to the commencement of a lien conference, which is the time that the conference is scheduled to begin, not the time when the case is actually called; (2) if the lien claimant fails to pay the lien activation fee prior to the commencement of a lien conference and/or fails to provide proof of payment at the conference, its lien must be dismissed with prejudice; (3) a breach of the defendant’s duty to serve required documents or to engage in settlement negotiations does not excuse a lien claimant’s obligation to pay the lien activation fee; and (4) a notice of intention is not required prior to dismissing a lien with prejudice for failure to pay the lien activation fee or failure to present proof of payment of the lien activation fee at a lien conference.


Luis Enriquez
v.
Couto Dairy and Zenith Insurance Co

March 28, 2013 2013-EB-3
Misc. No. 254
78 Cal. Comp. Cases 323

The Appeals Board held that: (1) neither Article III, section 3.5 of the California Constitution nor Labor Code section 5307.1 prevents the Appeals Board from finding preemption of AD Rule 9789.70, which contains the Official Medical Fee Schedule (“OMFS”) for air ambulance services; (2) the ADA preempts AD Rule 9789.70 if the lien claimant for air ambulance services is an “an air carrier that may provide air transportation” within the meaning of the preemption provision of the ADA; and (3) the air ambulance provider has the burden of showing it is an “an air carrier that may provide air transportation” within the meaning of the preemption provision of the ADA, including showing that it is authorized to provide interstate air transportation


Daniel Escamilla
Feb. 14, 2013 2013-EB-2
Misc. No. 254
78 Cal. Comp. Cases 134

After issuing a Notice of Hearing (NOH) (In Re Escamilla (2011) 76 Cal.Comp.Cases 944 [Appeals Board en banc]) initiating proceedings to consider suspending or removing Daniel Escamilla's privilege to appear before the Workers' Compensation Appeals Board (WCAB) as a nonattorney hearing representative pursuant to Labor Code section 4907, and after conducting evidentiary hearings on the issue, the Appeals Board determined that there was a pattern of sanctionable conduct in 11 cases, which constitutes good cause to suspend Mr. Escamilla's privilege to appear as a hearing representative in any WCAB proceedings for a period of 90 days. The suspension will commence 45 days from the filing of this decision.


Dennis McKinley
v
Arizona Cardinals; The Travelers Indemnity Company
Jan. 15, 2013 2013-EB-1
2013-EB-1 word image
Case No. ADJ7460656
78 Cal. Comp. Cases 23

In the case of a professional athlete who entered his employment contract in Arizona, played for the Arizona Cardinals for four years, and filed a cumulative industrial injury claim in California, the Appeals Board held that it will decline to exercise jurisdiction over a claim of cumulative industrial injury when there is a reasonable mandatory forum selection clause in the employment contract specifying that claims for workers’ compensation shall be filed in a forum other than California, and there is limited connection to California with regard to the employment and the claimed cumulative injury. It was also held that party challenging the validity of a mandatory forum selection clause shall bear the burden of showing that the clause is unreasonable.

2012 en banc decisions

Tito Torres
v
AJC Sandblasting; and Zurich North America
Nov 15, 2012 2012-EB-4
2012-EB-4 word image
Case No. ADJ909554 LAO (0824849) and ADJ1856854 (LAO 0837910)
77 Cal. Comp. Cases 1113

In the context of a lien claimant proceeding to trial as a party after the injured employee’s case has been resolved, the appeals board held: (1) Labor Code sections 3202.5 and 5705 mandate that a lien claimant must prove by a preponderance of the evidence all elements necessary to establish the validity of their lien before the burden of proof shifts to the defendant. (2) To the extent the Keifer and Garcia decisions held that a lien claimant can establish a prima facie right to recovery simply by introducing a billing statement showing that services were provided to a worker in connection with a claimed injury, those decisions have been nullified by sections 3202.5 and 5705 and subsequent case law. (3) Proceeding to trial without any evidence or with evidence that is utterly incapable of meeting its burden of proof is frivolous and constitutes bad faith within the meaning of section 5813, justifying an award of sanctions, attorney’s fees and costs against the party or lien claimant, its attorney(s) or hearing representative(s), individually or jointly and severally.


In Re Daniel Escamilla April 20, 2012 2012-EB-3
2012-EB-3 word image
Misc. No. 254
77 Cal. Comp. Cases 430

The Appeals Board denied Daniel Escamilla’s “Petition for Order Requiring Board to Produce All Case Documents Relating to Sanction Proceedings in Eleven Cases Being Used Against Respondent” and denied Mr. Escamilla’s “Objection to Order Requiring Submission of Offer of Proof and Petition for Removal to Obtain Ruling on Petition to Produce and to Obtain Clarification of Specific Issues to be Determined by Board in Connection with its Determination under Labor Code Section 4907.”


In Re Daniel Escamilla January 20, 2012 2012-EB-2
2012-EB-2 word image
Misc. No. 254
77 Cal. Comp. Cases 75

With regard to the Notice of Hearing to take evidence on whether or not it will suspend or remove hearing representative Daniel Escamilla’s privilege to appear, and in response to Mr. Escamilla’s petition, the Appeals Board dismissed the Petition for Change of Venue, denied the Request for Immediate Stay of Proceedings, affirmed the order relieving Mr. Escamilla’s counsel, continued the January 27, 2012 hearing, and directed the hearing officer to reschedule the pre-hearing conference for no sooner than 45 days from the date of this decision, to be followed by a hearing approximately 45 days after the conference.


In Re Daniel Escamilla January 4, 2012 2012-EB-1
2012-EB-1 word image
Misc. No. 254
77 Cal. Comp. Cases 71
The petition for reconsideration filed by Daniel Escamilla against the September 21, 2011 Notice of Hearing Regarding Suspension or Removal of Privilege of Daniel Escamilla to Appear was dismissed by the Appeals Board as both untimely and not from a final order, decision, or award.
2011 en banc decisions

Tsegay Messele
v.
PITCO FOODS, INC.; Califonia Insurance Company
Nov. 22, 2011 2011-EB-8
2011-EB-8 word image
Case No. ADJ7232076
76 Cal. Comp. Cases 1318
After granting reconsideration of its prior en banc decision and issuing a notice of intention to modify the decision to apply prospectively, the Appeals Board issued its decision after reconsideration, holding that the principles set forth in the prior decision, as to the timeliness of seeking a panel of Qualified Medical Examiners (QME), apply prospectively to panel QME requests made after the date of the prior decision, September 26, 2011.

Tsegay Messele
v.
PITCO FOODS, INC.; Califonia Insurance Company
Nov. 4, 2011

2011-EB-7 word image
2011-EB-7

Case No. ADJ7232076
76 Cal. Comp. Cases 1187
On its own motion under Labor Code section 5911, the Appeals Board granted reconsideration of its prior en banc decision in this matter, and issued a notice of intention to modify its prior decision to hold that the principles set forth in the prior decision, as to the timeliness of seeking a panel of Qualified Medical Examiners (QME), apply prospectively to panel QME requests made after the date of the prior decision, September 26, 2011. The Appeals Board allowed ten days (plus an additional five days for mailing) to allow any interested individual or organization to respond to the notice, after which time the Appeals Board will issue its final decision.

Elayne Valdez
v.
Warehouse Demo Services; Zurich North America, Adjusted By ESIS
Sept. 27, 2011 2011-EB-6
2011-EB-6 word image
Case No. ADJ7048296
76 Cal. Comp. Cases 970

After granting reconsideration of its prior en banc decision in order to allow the opportunity to further study the factual and legal issues presented in the case, the Appeals Board issued its decision after reconsideration affirming its prior holding that, where unauthorized treatment is obtained for an industrial injury outside a validly established and properly noticed Medical Provider Network (MPN), the resulting non-MPN treatment reports are inadmissible.


Tsegay Messele
v.
Pitco Foods, Inc.; California Insurance Company
Sept. 26, 2011 2011-EB-5
2011-EB-5 word image
Case No. ADJ7232076
76 Cal. Comp. Cases 956

The Appeals Board held (1) when the first written agreed medical examiner (AME) proposal is made by mail or by any method other than personal service, the period for seeking agreement on an AME under Labor Code section 4062.2(b) is extended five calendar days if the physical address of the party being served with the first written proposal is within California; (2) during this 15 day period the parties may not request a panel of Qualified Medical Examiners; and (3) the time period set forth in Labor Code section 4062.2(b) for seeking agreement on an AME starts with the day after the date of the first written proposal and includes the last day.


In Re Daniel Escamilla Sept. 21, 2011 2011-EB-4
2011-EB-4 word image
Misc. No. 254
76 Cal. Comp. Cases 944

The Appeals Board issued a notice that a hearing is set to take evidence on whether or not it will suspend or remove hearing representative Daniel Escamilla’s privilege to appear in any proceeding as a representative of any party before the Appeals Board or any workers’ compensation administrative law judge pursuant to Labor Code section 4907.


Elayne Valdez
v.
Warehouse Demo Services; Zurich North America, Adjusted by ESIS

July 14, 2011 2011-EB-3
2011-EB-3 word image
Case No. ADJ7048296
76 Cal. Comp. Cases 665

The Appeals Board granted reconsideration of its prior en banc decision in order to allow the opportunity to further study the factual and legal issues presented in the case. The Appeals Board previously held that, where unauthorized medical treatment is obtained outside a validly established and properly noticed Medical Provider Network (MPN), reports from the non-MPN doctors are inadmissible. After completing its study the Appeals Board will issue a Decision After Reconsideration modifying, amending, or affirming the prior decision.


Elayne Valdez
v.
Warehouse Demo Services; Zurich North America, Adjusted by ESIS

April 20, 2011 2011-EB-2
2011-EB-2 word image
Case No. ADJ7048296
76 Cal. Comp. Cases 330

The Appeals Board held that, where unauthorized medical treatment is obtained outside a validly established and properly noticed Medical Provider Network (MPN), reports from the non-MPN doctors are inadmissible, they may not be relied upon, and defendant is not liable for their cost.


Jose Guitron
v.
Santa Fe Extruders; and State Compensation Insurance fund

March 17, 2011 2011-EB-1
2011-EB-1 word image
Case No. ADJ163338 (LAO 0873468)
76 Cal. Comp. Cases 228

The Appeals Board held that: 1) pursuant to the employer’s obligation under Labor Code section 4600 to provide medical treatment reasonably required to cure or relieve the injured worker from the effects of his or her injury, the employer is required to provide reasonably required interpreter services during medical treatment appointments for an injured worker who is unable to speak, understand, or communicate in English; and 2) to recover its charges for interpreter services, the interpreter lien claimant has the burden of proving, among other things, that the services it provided were reasonably required, that the services were actually provided, that the interpreter was qualified to provide the services, and that the fees charged were reasonable.

2010 en banc decisions

Amelia Mendoza
v.
Huntington Hospital, Permissibly Self-Insured; and
Sedwick Claims Management Services, Inc. (Adjusting Agent)

June 3, 2010 2010-EB-2
2010-EB-2 word image
Case No.
ADJ6820138
ADJ6820197
75 Cal.Comp.Cases 634

The Appeals Board held that: (1) California Code of Regulations, title 8, section 30(d)(3) (Administrative Director Rule 30(d)(3)), which states that when a claim has been entirely denied by the defendant only the employee may request a panel of Qualified Medical Evaluators, is invalid because it conflicts with Labor Code sections 4060(c) and 4062.2 and exceeds the scope of section 5402(b); (2) the time limits of section 4062(a) for objecting to a treating physician’s medical determination do not apply when the injury has been entirely denied by the defendant; and (3) section 4062.2 does not establish timelines for initiating or completing the process for obtaining a medical-legal report on compensability.


Cynthia Blackledge
v.
Bank Of America; and
Ace American Insurance Company

June 3, 2010 2010-EB-1
2010-EB-1 word image
Case No. ADJ1735018 (LBO 0375311)
75 Cal.Comp.Cases 613

The Appeals Board held that, in the context of determining whole person impairments (WPI) and issuing formal permanent disability rating instructions, the respective roles of the physician, WCJ, and rater are as follows: (1) the physician assesses the injured employee’s whole person impairment percentage(s) by a report that sets forth facts and reasoning to support its conclusions and that comports with the AMA Guides and case law; (2) the WCJ frames rating instructions, based on substantial medical evidence, that specifically and fully describe the whole person impairment(s) to be rated; in addition, the instructions may ask the rater to offer an expert opinion on what whole person impairment(s) should or should not be rated; (3) the rater issues a recommended permanent disability rating based solely on the WCJ’s formal rating instructions; unless specifically instructed to do so, the rater has no authority to issue a rating based on the rater’s own assessment of whether the whole person impairment rating(s) referred to in the instructions are based on substantial evidence or are consistent with the AMA Guides; (4) the WCJ is not bound by the rater’s recommended permanent disability rating and may elect to independently rate an employee’s permanent disability; however, the WCJ’s rating still must be based on substantial evidence; (5) potential AMA Guides rating problems may be minimized by the early and proper use of non-formal ratings; and (6) there must be no ex parte communication between the WCJ and the assigned rater.

2009 en banc decisions

Jesus Cervantes
v.
El Aguila Food Products, Inc.;
Safeco Insurance Co. of Illinois;
Superior National Insurance Co., In
Liquidation; California Insurance
Guarantee Association; and
Broadspire (Servicing Facility),

November 19, 2009 2009-EB-10
2009-EB-10 word image
Case No.
ADJ3675309 (SAL 0081669)
ADJ2967795 (SAL 0101259)
ADJ3517685 (SAL 0077391)
ADJ1962561 (SAL 0077392)
74 Cal.Comp.Cases 1336

The Appeals Board held that the procedures and timelines governing objections to a treating physician’s recommendation for spinal surgery are contained in Labor Code sections 4610 and 4062 and in Administrative Director (AD) Rules 9788.1, 9788.11, and 9792.6(o) and are as follows: (1) when a treating physician recommends spinal surgery, a defendant must undertake utilization review (UR); (2) if UR approves the requested spinal surgery, or if the defendant fails to timely complete UR, the defendant must authorize the surgery; (3) if UR denies the spinal surgery request, the defendant may object under section 4062(b), but any objection must comply with AD Rule 9788.1 and use the form required by AD Rule 9788.11; (4) the defendant must complete its UR process within 10 days of its receipt of the treating physician’s report, which must comply with AD Rule 9792.6(o), and, if UR denies the requested surgery, any section 4062(b) objection must be made within that same 10-day period; and (5) if the defendant fails to meet the 10-day timelines or comply with AD Rules 9788.1 and 9788.11, the defendant loses its right to a second opinion report and it must authorize the spinal surgery.

The Appeals Board also disapproved of Brasher v. Nationwide Studio Fund (2006) 71 Cal.Comp.Cases 1282 (Appeals Board significant panel decision) (Brasher) to the extent it holds: (1) a defendant may opt out of UR and instead dispute the requested spinal surgery using only the procedure specified in section 4062(b); and (2) if a defendant’s UR denies spinal surgery, it is the employee that must object under section 4062(a).


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

September 3, 2009 2009-EB-9
2009-EB-9 word image
Case No. ADJ1177048 (SFO 0487779)
74 Cal. Comp. Cases 1127

After granting reconsideration of its prior decision in this matter the Appeals Board clarified the decision and held: (1) the language of section 4660(c), which provides that “the schedule … shall be prima facie evidence of the percentage of permanent disability to be attributed to each injury covered by the schedule,” unambiguously means that a permanent disability rating established by the Schedule is rebuttable; (2) the burden of rebutting a scheduled permanent disability rating rests with the party disputing that rating; and (3) one method of rebutting a scheduled permanent disability rating is to successfully challenge one of the component elements of that rating, such as the injured employee’s DFEC adjustment factor, which may be accomplished by establishing that an individualized adjustment factor most accurately reflects the injured employee’s DFEC.

The Appeals Board stated further that the individualized DFEC adjustment factor must be consistent with section 4660(b)(2), the RAND data to which section 4660(b)(2) refers, and the numeric formula adopted by the Administrative Director (AD) in the 2005 Schedule, and it also must constitute substantial evidence that the Workers’ Compensation Appeals Board (WCAB) determines is sufficient to overcome the DFEC adjustment factor component of the scheduled permanent disability rating. Otherwise, the prior decision was affirmed.


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

September 3, 2009 2009-EB-8
2009-EB-8 word image
Case No.
ADJ1078163 (BAK 0145426) - Mario Almaraz
ADJ3341185 (SJO 0254688) - Joyce Guzman
74 Cal. Comp. Cases 1084

After granting reconsideration of its prior decision in this matter the Appeals Board clarified and modified the decision to hold: (1) the language of Labor Code section 4660(c), which provides that “the schedule … shall be prima facie evidence of the percentage of permanent disability to be attributed to each injury covered by the schedule,” unambiguously means that a permanent disability rating established by the Schedule is rebuttable; (2) the burden of rebutting a scheduled permanent disability rating rests with the party disputing that rating; (3) one method of rebutting a scheduled permanent disability rating is to successfully challenge one of the component elements of that rating, such as the injured employee’s whole person impairment (WPI) under the AMA Guides; and (4) when determining an injured employee’s WPI, it is not permissible to go outside the four corners of the AMA Guides; however, a physician may utilize any chapter, table, or method in the AMA Guides that most accurately reflects the injured employee’s impairment.

The Appeals Board stated further that in light of these holdings, it now specifically rejects the “inequitable, disproportionate, and not a fair and accurate measure of the employee’s permanent disability” standard set forth in its February 3, 2009 opinion.


Lawrence Weiner
v.
Ralphs Company, Permissibly Self-Insured; and Sedgwick Claims Management Services, Inc. (Adjusting Agent)
August 17, 2009 2009-EB-7
2009-EB-7 word image
Case No. ADJ347040 (MON 0305426)
74 Cal. Comp. Cases 958

The Appeals Board denied applicant’s petition for reconsideration of its en banc opinion of June 11, 2009.


Lawrence Weiner
v.
Ralphs Company, Permissibly Self-Insured; and Sedgwick Claims Management Services, Inc. (Adjusting Agent)
June 11, 2009 2009-EB-6
2009-EB-6 word image
Case No. ADJ347040 (MON 0305426)
74 Cal. Comp. Cases 736

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.


Lawrence Weiner
v.
Ralphs Company, Permissibly Self-Insured; and Sedgwick Claims Management Services, Inc. (Adjusting Agent)
April 14, 2009 2009-EB-5
2009-EB-5 word image
Case No. ADJ347040 (MON 0305426)
74 Cal. Comp. Cases 484

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

April 6, 2009 2009-EB-4
2009-EB-4 word image
Case No. ADJ1177048 (SFO 0487779)
74 Cal. Comp. Cases 478
The Appeals Board granted reconsideration of its prior en banc decision in order to allow further briefing by the parties and to allow amicus curiae briefing from other interested persons or entities with regard to how the 2005 Permanent Disability Rating Schedule may be rebutted. Following the briefing time allowed in the decision the Appeals Board will issue a Decision After Reconsideration modifying, amending, or affirming the prior decision.

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

April 6, 2009 2009-EB-3
2009-EB-3 word image
Case No.
ADJ1078163 (BAK 0145426) - Mario Almaraz
ADJ3341185 (SJO 0254688) - Joyce Guzman
74 Cal. Comp. Cases 470
The Appeals Board granted reconsideration of its prior en banc decision in order to allow further briefing by the parties and to allow amicus curiae briefing from other interested persons or entities with regard to how the 2005 Permanent Disability Rating Schedule may be rebutted. Following the briefing time allowed in the decisions the Appeals Board will issue a Decision After Reconsideration modifying, amending, or affirming the prior decision.

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

February 3, 2009 2009-EB-2
2009-EB-2 word image
Case No. ADJ1177048 (SFO 0487779)
74 Cal. Comp. Cases 248

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

February 3, 2009 2009-EB-1
2009-EB-1 word image
Case No.
ADJ1078163 (BAK 0145426) - Mario Almaraz
ADJ3341185 (SJO 0254688) - Joyce Guzman
74 Cal. Comp. Cases 201

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.

2008 en banc decisions

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


September 17, 2008 2008-EB-4
2008-EB-4 word image
Case No. ADJ 4564224 (LBO 0322121)
73 Cal. Comp. Cases 1338

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.


September 9, 2008 2008-EB-3
2008-EB-3 word image
(WCAB No. ADJ4579659 (AHM 0089109))
73 Cal. Comp. Cases 1324

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.


In Re the Matter of
Ramon B. Pellicer

July 8, 2008 2008-EB-2
2008-EB-2 word image
Case No. (WCAB No. MISC. 251)
73 Cal. Comp. Cases 1065

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.


Scott Boughner
v.
CompUSA, Inc.: and
Zurich North America

June 2, 2008 2008-EB-1
2008-EB-1 word image
Case No. (WCAB No. SFO 0491230)
73 Cal. Comp. Cases 854

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.

2007 en banc decisions
Dianne Benson,
v.
The Permanente Medical Group,
Permissibly Self-Insured; Athens Administrators (Adjusting Agent),
December 13, 2007 2007-EB-9
2007-EB-9 word image
Case No. (WCAB No. OAK 0297895 & OAK 0326228)
72 Cal. Comp. Cases 1620

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.


Joey M. Costa,
v.
Hardy Diagnostic and State Compensation Insurance Fund,
November 13, 2007 2007-EB-8
2007-EB-8 word image
Case No. (WCAB No. GRO 0031810)
72 Cal. Comp. Cases 1492

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.


Paul Cruz,
v.
Mercedes-Benz of San Francisco, and Auto Dealers Compensation of California, administered by Intercare Insurance Company,
September 5, 2007 2007-EB-7
2007-EB-7 word image
Case No. (WCAB No. SFO 0501425)
72 Cal. Comp. Cases 1281

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).


Valeri Hawkins,
v.
Amberwood Products; and State Compensation Insurance fund
June 13, 2007 2007-EB-6
2007-EB-6 word image
Case No. (WCAB No. SAL 0107814)
72 Cal. Comp. Cases 807

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.


Josh Pendergrass
v.
Duggan Plumbing and State Compensation Insurance Fund
April 6, 2007 2007-EB-5
2007-EB-5 word image
Case No. (WCAB No. SAL 0110868)
72 Cal. Comp. Cases 456

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.


Joseph Baglione
v.
Hertz Car Sales and AIG, Adjusting by Cambridge Intergrated Services
April 6 , 2007 2007-EB-4
2007-EB-4 word image
Case No. (WCAB No. SJO 0251644 )
72 Cal. Comp. Cases 444

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.


Sharon Babbitt
v.
Ow Jing dba National Market; and Golden Eagle Insurance Company
January 24, 2007 2007-EB-3
2007-EB-3 word image
Case No. (WCAB No. STK 0174793 )
72 Cal. Comp. Cases 70

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.


Joseph Baglione
v.
Hertz Car Sales and AIG, Adjusting by Cambridge Intergrated Services
January 24, 2007 2007-EB-2
2007-EB-2 word image
Case No. (WCAB No. SJO 0251644 )
72 Cal. Comp. Cases 86

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.


Josh Pendergrass
v.
Duggan Plumbing and State Compensation Insurance Fund


January 24, 2007 2007-EB-1
2007-EB-1 word image
Case No. (WCAB No. SAL 0110868 )
72 Cal. Comp. Cases 95

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.

2006 en banc decisions
Joey M. Costa,
v.
Hardy Diagnostic and State Compensation Insurance Fund

December 7, 2006 2006-EB-6
2006-EB-6 word image
Case No. (WCAB No. GRO 0031810 )
71 Cal. Comp. Cases 1797

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.


Bruce Knight,
v.
United Parcel Service; and Liberty Mutual Insurance Company
October 10, 2006 2006-EB-5
2006-EB-5 word image
Case No. (WCAB No. AHM 127807 AHM 129147 )
71 Cal. Comp. Cases 1423
The Board held that an employer or insurer's failure to provide required notice to an employee of rights under the MPN (medical provider network) that results in a neglect or refusal to provide reasonable medical treatment renders the employer or insurer liable for reasonable medical treatment self-procured by the employee.

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.


Elizabeth Aldi
v.
Carr, McClellan, Ingersoll, Thompson & Horn;
Repulic Indemnity Company of America
June 21, 2006 2006-EB-4
2006-EB-4 word image
Case No. (WCAB No. SFO 0485703)
71 Cal. Comp. Cases 783

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


Mark Miceli
v.
Jacuzzi, Inc.; Remedytemp, Inc.; American Home Assurance Co.; California Insurance Guarantee Association for Reliance National Indemnity Co., In Liquidation
May 12, 2006 2006-EB-2
2006-EB-2 word image
Judicial notice attachments and briefs
Case No. (WCAB No. POM 248928)
71 Cal. Comp. Cases 599

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."


Myrtle Vargas
v.
Atascadero State Hospital, Legally Uninsured; and
State Compensation Insurance Fund (Adjusting Agent)
April 11, 2006 2006-EB-3
2006-EB-3 word image
Case No. (WCAB No. GRO 0016640)
71 Cal. Comp. Cases 500

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.


Eric Pasquotto
v.
Hayward Lumber; Connecticut Indemnity Insurance Company; and Athens Administrators (Adjusting Agent),
February 27, 2006 2006-EB-1
2006-EB-1 word image
Case No. (WCAB No. GRO 0028123 GRO 0028394)
71 Cal. Comp. Cases 223

(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.

2005 en banc decision
Virginia Sanchez
v.
County of Los Angeles Permissibly Self-insured; and Tristar Risk Management (Adjusting Agent),
October 26, 2005 2005-EB-8
2005-EB-8 word image
Case No. (WCAB No. MON 307506)
70 Cal. Comp. Cases 1440
The Board held that:

(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.


Jack C. Strong
v.
City and County of San Francisco, Permissibly Self-insured,
October 26, 2005 2005-EB-7
2005-EB-7 word image
Case No. (WCAB No. SFO 0479038)
70 Cal. Comp. Cases 1460
The Board held that:

(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.



Lisa Simmons
vs.
State of California, Dept of Mental Health (Metropolitan State Hospital), Legally Uninsured; and State Compensation Insurance Fund (Adjusting Agent),
June 17, 2005 2005-EB-6
2005-EB-6 word image
Case No. (WCAB No. LBO 0340807)
70 Cal. Comp. Cases 866
With regard to Utilization Review, the Appeals Board held:

(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).


Danny Nabors
vs.
Piedmont Lumber & Mill Co.,
June 9, 2005 2005-EB-5
2005-EB-5 word image
Case No. (WCAB No. SRO 122159 SRO 0113249)
70 Cal. Comp. Cases 856
The Board held that when the Workers' Compensation Appeals Board awards permanent disability after apportionment, the amount of indemnity due applicant is calculated by determining the overall percentage of permanent disability and then subtracting the percentage of permanent disability caused by other factors under section 4663(c) or previously awarded under section 4664(b); the remainder is applicant's final percentage of permanent disability for which indemnity is calculated pursuant to section 4453 and 4658.

Marlene Escobedo,
vs.
Marshalls; and CNA Insurance Co.,
April 19, 2005 2005-EB-4
2005-EB-4 word image
Case No. (WCAB No. GRO 0029816 GRO 0029817)
70 Cal. Comp. Cases 604

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.


Terry Martinez
vs.
California Building Systems
February 22, 2005 2005-EB-3
2005-EB-3 word image
Case No. (WCAB No. FRE 0194847)
70 Cal. Comp. Cases 202
The Board held that the repeal of the treating physician presumption under Labor Code 4062.9 applies to all cases, regardless of the date of injury, unless a decision has become final on or before April 19, 2004.

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


Brice Sandhagen
vs.
Cox & Cox Construction, Inc.
February 7, 2005 2005-EB-1
2005-EB-1 word image
Case No. (WCAB No. RDG 0115958)
70 Cal. Comp. Cases 208
The Board dismissed the applicant's Petition for Reconsideration as not being filed from a "final order" (see Board's en banc decision of November 16, 2004). The Board also observed that while the establishment of a utilization review process was mandatory under Labor Code section 4610, the use of that process in every case was not mandatory and not, in effect, a condition precedent to the use of Labor Code section 4062.

Marilyn Simi
vs.
Sav-Max Foods, Inc
February 1, 2005 2005-EB-2
2005-EB-2 word image
Case No. (WCAB No. SAC 323226)
70 Cal. Comp. Cases 217
The Board held that for injuries occurring prior to January 1, 2005, section 4062, as it existed before its amendment by SB 899, continues to provide the procedure by which Agreed Medical Evaluation (AME) and QME medical-legal reports are obtained in cases involving represented employees.
2004 en banc decisions
Michael A. Willette
vs.
Au Electric Corporation
December 16, 2004 2004-EB-9
2004-EB-9 word image
(WCAB No. SJO 245781)
69 Cal. Comp. Cases 1563
The Board dismissed the applicant's Petition for Reconsideration as not being filed from a "final" order. (See Board's en banc decision of October 5, 2004).

Myron Abney
vs.
Aera Energy
December 8, 2004 2004-EB-8
2004-EB-8 word image
Case No. (WCAB No. GRO 024430)
69 Cal. Comp. Cases 1552
The Board held that section 5814, as enacted by SB 899 and operative June 1, 2004, applies to unreasonable delays or refusals to pay compensation that occur prior to the operative date where the finding of unreasonable delay is made on or after June 1, 2004. The Board also concluded that section 5814(c), involving the conclusive presumption of the resolution of accrued penalty claims, applies as of the June 1, 2004 operative date of section 5814, and that the statute of limitations set forth in section 5814(g) applies to actions to recover penalties brought on or after the June 1, 2004 operative date.

Brice Sandhagen
vs.
Cox & Cox Construction, Inc.
November 16, 2004 2004-EB-7
2004-EB-7 word image
Case No. (WCAB No. RDG 115958)
69 Cal. Comp. Cases 1452
1) The utilization review time deadlines of section 4610(g)(1) are mandatory and, if a defendant fails to meet these mandatory deadline, it is precluded from using the utilization review procedure fro the particular medical treatment dispute in question;

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.


Michael A. Willette
vs.
AU Electric Corporation; and State Compensation Insurance Fund
October 5, 2004 2004-EB-6
2004-EB-6 word image
Case No. (WCAB No. SJO 0245781)
69 Cal. Comp. Cases 1298
(1) If an employer's utilization review physician does not approve an employee's treating physician's treatment authorization request in full, then an unrepresented employee (if he or she desires to dispute the utilization review physician's determination) must timely object, and then a panel qualified medical examiner ("QME") must be obtained to resolve the disputed treatment issue(s);

(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.


Jenelle Scheftner
vs
Rio Linda School District
October 4, 2004 2004-EB-5
2004-EB-5 word image
Case No. (WCAB No. SAC 326274)
69 Cal. Comp. Cases 1281
The majority opinion of the Board held that submission orders and orders closing discovery, that issued prior to the enactment of SB 899 on April 19, 2004, are "existing" orders that cannot be reopened due to the prohibition set forth in Section 47. The majority opinion also held that absent existing orders as so defined the amendments, additions, or repeals of SB 899 apply prospectively on or after April 19, 2004, to all cases, regardless of the date of injury, unless otherwise specified in SB 899.

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


James L. Leinon
vs.
Fishermen's Grotto
August 25, 2004 2004-EB-4
2004-EB-4 word image
Case No. (WCAB No. WCK 45264)
69 Cal. Comp. Cases 995
NOTE: The Board held that where injury, disability or indemnity rate is disputed, no section 4650(d) penalty arises if the disputed disability indemnity payments are made within 14 days of a final order, decision or award imposing liability for those benefits or within 14 days of a defendant's acceptance of liability for the injury and disability benefits. The Board also held that an order, decision or award becomes final for purposes of section 4650(d) when a defendant has exhausted all of its appellate rights or has not pursued them.

Jose L. Martinez
vs.
Jack Neal & Sons, Inc.
July 27, 2004 2004-EB-3
2004-EB-3 word image
Case No. (WCAB No. SRO 107686)
69 Cal.Comp.Cases 775
NOTE: The board concluded that with respect to any award issued after 2003, CIGA may not be held liable for any section 5814 (or 5814.5) penalties based on an insolvent insurer's pre-liquidation unreasonable delay or refusal in paying benefits because such penalties are now excluded under Insurance Code section 1063.1(c)(8) as amended effective 1/1/04.

Jeannie Karaiskos
vs.
Metagenics, Inc.
July 27, 2004 2004-EB-2
2004-EB-2 word image
Case No. (WCAB No. AHM 70712)
69 Cal.Comp.Cases 772
NOTE: The Board concluded, consistent with the Court of Appeal's decision, that CIGA is not required to pay the lien of EDD.

Daniel Milbauer
vs.
Erez Boostan
March 10, 2004 2004-EB-1
2004-EB-1 word image
Case No. (WCAB No. LAO 722567)
69 Cal.Comp.Cases 246
NOTE: The board dismissed the UEF's second petition for reconsideration on the basis (1) that UEF was not aggrieved or newly aggrieved; (2) that the portion of the decision (i.e., procedures) from which UEF sought reconsideration was not "final" for reconsideration purposes; and (3) that the petition is successive on the issue of the employer's correct legal identity.
2003 en banc decisions
Daniel Milbauer
vs.
Erez Boostan
December 18, 2003 2003-EB-5
2003-EB-5 word image
Case No. (WCAB No. LAO 722567)
68 Cal.Comp.Cases 1834
NOTE: The Board concluded that UEF's petition for reconsideration regarding the correct legal identity of the employer was without merit because the correct legal identity of the employer as found by the WCJ in her decision served May 8, 2003, was supported by substantial evidence and because UEF had offered no contrary evidence (either at trial or on reconsideration).

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.


Walter Faust
vs.
City of San Diego
December 11, 2003 2003-EB-4
2003-EB-4 word image
Case No. (WCAB No. SDO 244774)
68 Cal.Comp.Cases 1822
NOTE: The board held that under section 3212.1, as amended in 1999, when an applicant establishes both exposure to a known carcinogen and the manifestation or development of cancer as the section specifies, the cancer is presumed to be an industrial injury. The burden then shifts to the defendant to rebut the presumption (1) by evidence establishing the primary site of the cancer and (2) by evidence establishing that there is no reasonable link between the carcinogen and the cancer. The defendant must prove that no reasonable link exists; it does not rebut the presumption by merely proving that there is no evidence demonstrating a reasonable link.

Clarence A. Pebworth
vs.
Allan Hancock College,
Permissibly Self-Insured; and Workers' Compensation Administrators
(Third PartyAdministrators)
August 8, 2003 2003-EB-3
2003-EB-3 word image
Case No. (WCAB No. GRO 023699)
68 Cal.Comp.Cases 1168
NOTE: The Board held that the amendments to section 4646, which permit a defendant and a represented employee to settle prospective vocational rehabilitation services under specified circumstances, cannot be applied to injuries sustained before the January 1, 2003 effective date of the amendments because the amendments are substantive, not procedural, and because there is no clear indication that the Legislature as a whole intended that the amendments operate retrospectively.

Victoria Gomez
vs.
Casa Sandoval; Golden Eagle Insurance Company; California Compensation (in liquidation); California Insurance Guarantee Association; Risk Enterprise Management

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

May 27, 2003 2003-EB-2
2003-EB-2 word image
Case No. (WCAB No. OAK 234515; OAK 239085; AK 240882)
68 Cal.Comp.Cases 753
NOTE: The Board in substance (1) described circumstances where CIGA will be relieved of liability as well as remain liable in a single cumulative injury or occupational disease case; (2) concluded that CIGA will be, or may become, liable in successive injury cases when apportionment of liability is determined; and (3) determined that CIGA will generally be relieved of responsibility of administering an award.

Mark Miceli , et al.,
vs.
Jacuzzi, Inc., Remedy Temp, Inc, American Home Assurance Co., Reliance National Indemnity Co. (In Liquidation), California Insurance Guarantee Association.
March 28, 2003 2003-EB-1
2003-EB-1 word image
Case No. (WCAB No. POM 248928)
68 Cal.Comp.Cases 434
NOTE: The Board concluded that where the workers' compensation carrier for the general employer has become insolvent, and where there are no specific exclusions from the workers' compensation policy of the special employer, the policy provided by the insurer of the special employer constitutes "other insurance ... available to the claimant or insured" within the meaning of Insurance Code section 1063.1(c)(9). Because there is "other insurance," workers' compensation claims filed by temporary employees of the special employer are not "covered claims" for which CIGA has liability, but those claims become the liability of the special employer's insurer.
2002 en banc decision
Scott Kunz
vs.
Patterson Floor Covering, Inc.; and Golden Eagle Insurance Co.
December 5, 2002 2002-EB-10
2002-EB-10 word image
Case No. (WCAB No. SJO 0224503)
67 Cal.Comp.Cases 1588
NOTE: This case concludes, in substance, that: (1) under Labor Code section 4603.2, a defendant's failure to specifically object to a medical treatment lien claim on the basis of reasonable medical necessity (or on any other basis) does not effect a waiver of that objection; (2) the provisions of Labor Code section 4603.2 do not apply unless the prerequisites to the section's application have been met, i.e., the medical treatment in question must have been "provided or authorized by the treating physician selected by the employee or designated by the employer [pursuant to section 4600]" and the medical provider's billing to the defendant must have been "properly documented" with an "itemized billing, together with any required reports and any written authorization for services that may have been received;" (3) the Official Medical Fee Schedule applies to medical services provided, referred or prescribed by "physicians" at an outpatient surgical facility; (4) the Official Medical Fee Schedule generally does not apply to outpatient surgery facility fees, however, such fees nevertheless must be "reasonable;" and (5) in determining the reasonableness of an outpatient surgery facility fee, the Board may take into consideration a number of factors, including but not limited to the following: the medical provider's usual fee and the usual fee of other medical providers in the same geographical area, which means the fee usually accepted, not the fee usually charged; the fee the outpatient surgery center usually accepts for the same or similar services (both in a workers' compensation context and in a non-workers' compensation context, including contractually negotiated fees); and the fee usually accepted by other providers in the same geographical area (including in-patient providers).
Cheryl Coldiron
vs.
Compuware Corporation; California Insurance Guarantee Association,
on behalf of Reliance National Insurance Company, in liquidation, administered by Intercare Insurance Services; formerly administered by Gallagher Bassett Services,Inc.,
November 11, 2002 2002-EB-9
2002-EB-9 word image
Case No. (WCAB No. SRO 0088351)
67 Cal.Comp.Cases 1466
NOTE: The Board re-affirmed and declared its prior holding that a third-party administrator must promptly disclose the identity of its client and, if the client is an insurance carrier, the administrator must disclose whether the policy includes a "high self-insured retention," a large deductible, or any other provision that affects the identity of the entity actually liable for compensation. T he Board also declined to impose sanctions on the third-party administrator in this case and substituted the insolvent carrier in place of the employer.

Juan A. Rivera
vs.
Tower Staffing Solutions; State Compensation Insurance Fund
-and -
Calvin Crump vs. Los Angeles Unified School District, Permissibly Self-Insured, Adjusted by Helmsman Management Service

November 8, 2002 2002-EB-8
2002-EB-8 word image
Case No.
(WCAB No. POM 240908 - Rivera)
(WCAB No LAO 712097 - Crump)
67 Cal.Comp.Cases 1473
NOTE: The opinion concludes that section 4650(d) applies only to periodic indemnity payments, and not to the proceeds of commutations or C&R agreements, both of which reduce the underlying benefits to a lump sum, taking them outside the scope of the periodic indemnity payments set forth in section 4650.

Jeannie Karaiskos v. Metagenics, Inc.
and
Efrain Viveros
v.
North Ranch Country Club,

July 15, 2002 2002-EB-7
2002-EB-7 word image
Case No.
(WCAB No. AHM 70712, Karaiskos)
(WCAB No. VEN 102712 -Viveros)
67 Cal.Comp.Cases 900
The case concludes that EDD's liens for UCD benefits are not obligations to the state and therefore are "covered claims" under Insurance Code section 1063.1(c)(1)(vi) for which CIGA may be liable.

Lester Hershman
v.
James Eisenberg Medical Group; California Compensation Insurance Company, In Liquidation; California Insurance Guarantee Association; and Kemper Employers Claims Service (servicing Facility)

June 11, 2002 2002-EB-6
2002-EB-6 word image
Case No. (WCAB No. PAS 0023953)
67 Cal.Comp.Cases 808
The case concludes that LC section 5814 penalties imposed based on an insolvent insurer's pre-liquidation unreasonable delays in paying benefits are "covered claims" within the meaning of Insurance Code section 1063.1 et seq., and that CIGA's public policy arguments do not absolve it from liability for such penalties.

Alonso Navarro
v.
A&A Farming and Western Growers Insurance Co.

March 28, 2002 2002-EB-5
Case No. (WCAB No. GOL 0087934, GOL 0087935, GOL 0087936)
67 Cal.Comp.Cases 296
This opinion dismissed applicant's second, successive petition for reconsideration, also noting that if considered on the merits, the petition would have been denied.

Cheryl Coldiron
v.
Compuware; Permissibly Self-Insurred, by and through Gallagher Bassett Services, Inc Adjusting Agent

March 20, 2002 2002-EB-4
Case No. (WCAB No. SRO 0088351)
67 Cal.Comp.Cases 289
The case concludes "that where an employer's liability for workers' compensation benefits is adjusted by a third-party administrator, the administrator must disclose to the Workers' Compensation Appeals Board, to the other parties in any proceedings in which it is a party, and to its own counsel the identity of its client, whether a self-insured employer or insurance carrier. If the client is an insurance carrier, the administrator must disclose whether the policy includes a "high self-insured retention," a large deductible, or any other provision that affects the identity of the entity actually liable for the payment of compensation. Failure of the administrator to disclose the identity of its client may subject it to sanctions pursuant to Labor Code section 5813."

James McDuffie
v.
Los Angeles County Metropolitan Transit Authority

February 25, 2002 2002-EB-3
Case No. (WCAB No. MON 254928)
67 Cal.Comp.Cases 138
The case concludes that where the medical record requires further development either after trial or submission of the case for decision, the preferred procedure is first to seek supplemental opinions from the physicians who have already reported in the case.If the supplemental reports or depositions of the previously reporting physicians cannot or do not sufficiently develop the record, an agreed medical evaluator (AME) may be considered.Finally, if none of these options succeeds or is possible, the WCJ or the Board may then appoint a medical examiner.

Alonso Navarro
v.
A&A Farming ; and Western Growers Insurance Co.

February 13, 2002 2002-EB-2
Case No. (WCAB No. GOL 0087934, GOL 0087935, GOL 0087936)
67 Cal.Comp.Cases 145
The case concludes that where an injured employee's section 132a claim is premised upon the employer's termination of (or refusal to provide) group health plan benefits to the employee pursuant to the terms of an ERISA plan, the employee's section 132a claim "relates to" the ERISA plan and, therefore, is preempted by ERISA.

Maria Yolanda Jimenez
v
San Joaquin Valley Labor; and Superior National Insurance Company

January 24, 2002 2002-EB-1
Case No. (WCAB No. FRE 0147567)
67 Cal.Comp.Cases 74
The case concludes that a seasonal employee may be awarded TDI at two rates, an "in season" and an "off season" rate, and VRMA will be paid at the same rates.
2001 en banc decisions

Wahby Kamel
v.
West Cliff Medical; Superior National Insurance Company

December 24, 2001 *2001-EB-7
Case No. (WCAB No. LBO 301852)
66 Cal.Comp.Cases 1521
The case concludes that in the Labor Code Section 5814 penalty situation, the applicant must first establish delay or refusal in the payment of compensation and then the defendant "has the burden of proof as to the reasonableness of the delay ...."

Fred T. Hines
v.
New United Motors Manufacturing Inc., and Great American Risk Management

April 30, 2001 *2001-EB-6
Case No. (WCAB No. LAO 763476)
66 Cal.Comp.Cases 478

Maxine Hamilton
v.

Lockheed Corporation; Wausau Insurance Company.,

April 30, 2001 *2001-EB-5
Case No. (WCAB No. MON 0223961)
66 Cal.Comp.Cases 473

Julie Garcia
v.
The Vons Company, Inc., Permissibly Self-Insured.,

April 30, 2001 *2001-EB-4
Case No. (WCAB No. AHM 0057674)
66 Cal.Comp.Cases 469

William Wagner
v.
Allied Signal Aerospace; Zurich American Insurance Co.,

April 20, 2001 *2001-EB-3
Case No. (WCAB No. LAO 763476)
66 Cal.Comp.Cases 483

Julie Garcia
v.
The Vons Company, Inc., Permissibly Self-Insured

March 14, 2001 *2001-EB-2
Case No. (WCAB No. AHM 0057674)
66 Cal.Comp.Cases 362

Rick Rolda
v.
Pitney Bowes, Inc.,
Permissibly Self-Insured

February 21, 2001 *2001-EB-1
Case No. (WCAB No. VNO 359401)
66 Cal.Comp.Cases 241
2000 en banc decisions

Mary Davis
v.
Interim Healthcare, ITT Specialty Risk Services, Inc.;Wausau Insurance Companies
September 15, 2000 *2000-EB-2
Case No. (WCAB Nos. LAO 748301, LAO 768192)
65 Cal.Comp.Cases 1039

Farris
v.
Industrial Wire Products and
Liberty Mutual Insurance Company
July 17, 2000 *2000-EB-1
Case No. (WCAB No. SBR 0284141)
65 Cal.Comp.Cases 824
1998 en banc decisions

Phillips
v.
Sacramento Municipal

Utilities District
April 8, 1998 *1998-EB-1
Case No. (WCAB No. RDG 57899)
63 Cal.Comp.Cases 585,
Amended 6/2/98 -- 63 CCC 595
Writ of review denied 7/30/98 -- 63 CCC 1091,
Supreme Court.denied review 9/23/98
Note: Petition for writ of review was denied by Court of Appeal, Third Appellate District, on July 30, 1998, and petition for review was denied by Supreme Court on September 23, 1998.

1997 en banc decisions

Ford
v.
Lawrence Berkeley Laboratory
January 27, 1997 *1997-EB-1
Case No. (WCAB No. WCK 13904)
62 Cal.Comp.Cases 153
1 Civ. No. A078679
Writ denied March 24, 1998
Petition for Supreme Court review granted 5/20/98 and transferred to Court of Appeal, First Appellate District, with direction to vacate its summary denial and to issue a writ of review. Following issuance of a writ of review and oral argument, the Court of Appeal filed an unpublished opinion on 9/2/98 which affirmed the Board's en banc decision.
Ford
v.
Lawrence Berkeley Laboratory
April 22, 1997 *1997-EB-2
Case No. (WCAB No. WCK 13904)
62 Cal.Comp.Cases 479
1 Civ. No. A078679
Writ denied March 24, 1998
Petition for Supreme Court Review filed

Jones
v.
Ukiah Timber Products
September 15, 1997 *1997-EB-3
Case No. (WCAB No. SRO 76675)
62 Cal.Comp.Cases 1257

Note: The principal issue in this case is penalty under Labor Code Section 5814 for unreasonable delay in providing travel expenses for medical treatment. This issue was before the California Supreme Court in the case of Avalon Bay Foods v. WCAB (Moore), S 065546 (WCAB No. RDG 68691). The Supreme Court opinion is at 18 Cal4th 1165 [63 CCC 902]. Although the Court found that there was no unreasonable delay, it cited with approval the Board's holding in Jones that the penalty for unreasonable delay in reimbursing transportation expense for medical treatment applied to the full amount of the award for medical treatment expenses.