Cases pending on appellate grants

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Cases pending on appellate grants

Hikida, M. B279412 ADJ7721810   Writ issued 2/10/2017

-- Whether the WCAB correctly found that applicant’s industrial injury  resulted in 98% permanent partial disability after apportionment and not 100% permanent total disability, where applicant contends that the WCAB improperly apportioned the disability caused by applicant’s Complex Regional Pain Syndrome based on causation of injury and not causation of disability.

Zhu, Y. B278696 ADJ10324875                    Writ issued 1/27/2017

-- Whether the WCAB correctly reversed the WCJ’s findings that applicant sustained injury AOE/COE and that she was an employee when she travelled from one work location to the second work location using her bicycle, pursuant to the “going and coming” rule and whether the WCAB exceed its powers when it considered the issue of AOE/COE sua sponte, with applicant claiming the sole issue at trial was employment and not AOE/COE and that the sole issue raised by defendant on reconsideration was employment?

Berrios, D B278412 ADJ6865421 Writ issued 1/10/2017

-- Whether the WCAB has jurisdiction to adjudicate rescission of an insurance contract as a coverage issue under Labor Code 5275, and whether the WCAB correctly affirmed the arbitrator’s finding that applicant’s claimed injury of April 6, 2009 was covered by a workers’ compensation insurance policy that had not been “retroactively rescinded” but “prospectively cancelled” as of June 15, 2009.

Zapata-Jimenez, R. B276784 ADJ587312 Writ issued 11/29/2016

-- Whether the WCAB correctly determined that on May 19, 2003, applicant, while employed by one Luis Aragon, illegally uninsured, sustained industrial injury to his head, brain, urinary incontinence, right knee and internal system, causing permanent disability of 100% and that because Aragon was a licensed contractor who was illegally uninsured at the time of injury, Bolanos, as the property owner of the site where applicant was injured, was applicant’s “ultimate employer.” Whether Bolanos’s joinder by UEBTF in 2009 was subject to any statute of limitations defense.

Iniguez, E. B276997 ADJ7672487 Writ issued 11/3/2016

-- Whether applicant’s claims of injury to the cervical spine and lumbar spine were barred pursuant to Labor Code 5815 where the WCJ had previously issued a Findings of Fact on February 24, 2012, which found injury to applicant’s right shoulder and left knee and that his claim was not barred by the statute of limitations, but the Findings of Fact and the Opinion were silent as to any other body parts and no issues were deferred and applicant did not seek reconsideration of the Findings of Fact.

Hernandez, L. D070915 ADJ4081602 Writ issued 10/27/2016

-- Whether an order of further restitution was properly denied where applicant pled guilty to workers’ compensation fraud in Superior Court, which included an order of $9,000.00 of restitution and where the WCJ found that the holding in Tensfeldt v. Workers’ Comp. Appeals Bd. (1998) 66 Cal App 4th 116 [63 Cal.Comp.Cases 973] was controlling, and that applicant sustained an actual, otherwise compensable, industrial injury, that applicant’s award of disability did not stem from the fraudulent activity, and that applicant was a credible witness and that his credibility was not so destroyed as to make him unbelievable in regards to the existence of impairment.

McCartney, J C082282 ADJ9510323 Writ issued 8/11/2016

-- Whether applicant sustained an injury arising out of and in the course of employment to his skin via actinic keratosis, where applicant established a significant history of sun exposure while working as a deputy sheriff and where the qualified medical evaluator opined that sun exposure is a contributing factor to the development of actinic keratosis, but could not opine on the precise numerical percentage of the contributing effect.

Guerrero, J. H043291 ADJ1377005 Writ issued 7/25/2016

-- Whether Subsequent Injuries Benefits Trust Fund (SIBTF) benefits should have begun following the conclusion of applicant’s last payment of temporary disability on June 15, 2006 pursuant to Brower v. David Jones Construction (2014) 79 Cal.Comp.Cases 550 (Appeals Board en banc), instead of the date upon which applicant became permanent and stationary, which occurred on January 26, 2011.

Romo, P. A147582 ADJ8778127 Writ issued 7/8/2016

-- Whether the Board correctly found that a firefighter who last worked for a fire protection district in 1991 was an active volunteer within the meaning of Labor Code sections 3212.1 and 3361, and that the firefighter was entitled to the industrial cancer presumption of section 3212.1 where he was not diagnosed until 2011 and where he “last worked in specified capacity” for other fire departments from 2002 to the present.

Sylves, P. E065688 ADJ9538021 Writ issued 4/27/2016

-- Whether the Board correctly concluded that a former peace officer’s claim of cumulative injury to various body parts was not barred by the Statute of Limitations and was subject to the Labor Code § 3213.2 presumption of low back injury, notwithstanding the peace officer’s post-retirement employment as a police officer for a federally-recognized Native American tribe.

Baker, J. C080895 ADJ8111772 Writ issued 4/8/2016

-- Whether the Board correctly concluded that the time periods in Labor Code § 4610.6(d) are directory and not mandatory, and if they are mandatory, whether an untimely IMR determination removes the dispute from the Labor Code § 4610.5 IMR appeals process and allows it to be determined by the WCAB under Labor Code § 4604.

Zuniga, S. A143290 ADJ2563341 Writ issued 2/3/2016

-- Whether the Board correctly concluded that Labor Code 4610.6(f), which provides in part that “the independent medical review organization shall keep the names of the reviewers confidential in all communications with entities or individuals outside the independent medical review organization,” does not deny due process to an injured employee who seeks to obtain medical treatment under Labor Code 4600.

Southard, S. C079912 ADJ218782 Writ issued 10/2/2015

-- Whether the Board correctly concluded that the time periods in Labor Code section 4610.6(d) are mandatory, and that if an IMR determination is not timely issued, the treatment dispute is not covered by Labor Code section 4610.5 and may be determined by the WCAB under Labor Code section 4604.

Ramirez, D. C078440 ADJ6821103 Writ issued 5/13/2015

-- Whether the Utilization Review (UR) and Independent Medical Review (IMR) process that resulted in denial of acupuncture treatments for a lower extremity injury under existing award violates the workers' compensation provisions of the California Constitution (Art. XIV, § 4) and applicant's right to due process under the California and U.S. Constitutions.

Rice, C. C078706 ADJ8701916 Writ issued 4/30/2015

-- Whether the Board erred in rejecting the apportionment opinion of the panel Qualified Medical Evaluator, who found that 49% of the injured police officer’s neck disability was caused by genetic predisposition to degenerative disc disease, as demonstrated by his father’s medical history.

April 2017