Cases pending on appellate grants

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Cases pending on appellate grants

Stevens, F. A152027 ADJ1526353 Writ issued 10/25/2017

-- Following the Court of Appeal’s published opinion in 2015 upholding the legality of Independent Medical Review (IMR), whether the Board, upon remittitur from the Court, erred in returning the case to the WCJ for further proceedings, based upon the Board’s conclusion that although Lab. Code § 4610.6(i) precluded the Board from determining medical necessity, the record included extensive expert opinion on medical necessity of home health care, and under § 4610.5(b)(2) such evidence may be considered instead of the invalid 2009 MTUS Chronic Pain Medical Treatment Guideline applied in the disputed IMR determination.  The Board also authorized the WCJ to determine whether further development of the record may be necessary, and if the WCJ reversed the Administrative Director’s adoption of the disputed IMR determination, to determine what evidence, if any, should be provided to the new IMR reviewer when submitted for review pursuant to § 4610.6(i).

Pike, K. D072648 ADJ7811907 Writ issued 9/28/2017

-- Whether the Board erred in determining that for a date of injury on or after January 1, 2008, Labor Code section 4656(c)(2) permits an award of total temporary disability for periods beyond five years from the date of injury, where applicant timely reopened his case and temporary total disability commenced prior to five years from the date of injury.

Tripplett, L. G054825 ADJ6943108 Writ issued 9/28/2017

-- Whether the Board erred in denying WCAB jurisdiction over applicant pro footballer’s cumulative trauma claim (2002-2008) against the Indianapolis Colts, Seattle Seahawks and Buffalo Bills, and in denying applicant’s contentions that the Indianapolis Colts waived due process objections by actively litigating his case without timely objection; that applicant was hired in California; and that defendants’ contacts with California are more than de minimus.

Guzman, J. H044300 ADJ6839277 Writ issued 6/16/2017

-- Whether the Board erred in affirming the WCJ’s finding that applicant, a laborer employed for less than six months, sustained a compensable injury to his psyche, not barred by Labor Code section 3208.3(d), because injury resulted from the “sudden and extraordinary employment condition” of a soil compactor falling on him while operating it on a steep slope.

Alberdin, E. C084029 ADJ2452007 Writ issued 4/27/2017

-- Whether the Board erred in rescinding the WCJ’s summary dismissal of hundreds of consolidated lien claims, for nonpayment of the lien activation fee, and in returning the lien claims to the trial level to provide the claimants an opportunity to pay the lien activation fee.

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?

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.

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.

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.

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.

November 2017