July 19, 2017
Permanent Disability entirely caused by CRPS which developed as a result of the authorized failed carpal tunnel surgery cannot be apportioned. This case also demonstrate the differences resulting from the changes in Labor Code section 4663(a) and section 4664(a).
December 8, 2015
The CA Court of Appeal reversed the WCAB finding that Ms. Doreen Dahl sustained a PD rating of 79%. The Court found that Applicant didn't meet her evidentiary burden to prove that her neck/shoulder injury rendered her incapable of vocational rehabilitation.
November 16, 2015
The First Appellate District of the Court of Appeal of the State of California recently issued its Decision and finds that the constitutional challenge of Ms. Stevens to the Independent Medical Review Process fail because the Legislature has plenary powers over the workers' compensation system under Article XIV, section 4 of the State Constitution and that the Workers' Compensation Appeals Board can review the IMR Decisions under any of the specified grounds. Finally, it held that although the appellate courts are now explicitly precluded from making "a determination of medical necessity contrary to the determination of the IMR", this change has little practical effect since they never had the authority to make factual determinations in the first place.
September 1, 2014
This is a California Supreme Court case which held that, "California Senate Bill No. 1818 expressly makes the worker protection provisions of state employment and labor laws available to all workers "regardless of immigration status." The protection does extend even to those unauthorized aliens who, in violation of federal immigration law, have used false documents to secure employment." Many of our worker friends in our area can identify with the fact pattern of this case because it is very common in the Salinas Valley.
June 17, 2012
When the decision of the Appeals Court issued on this matter, I hesitated to write about it because it looks like another bad news for the injured worker. It turned out better than I initially interpreted. Please see the case review by clicking this link.
February 24, 2010
This is another case where the WCAB reversed itself by issuing a second en banc decision based on the same facts. Fortunately, the changes made from the original decision were minimal as it relates to the ability of the injured worker to be accurately compensated for permanent disability resulting from the industrial injury. But this case is very significant because it allows us to rebut the 2005 Permanent Disability Schedule. Our association has come up with a simply formula to make use of this decision: ([1.81/a]x0.10) +1, where a is the ratio of WPI rating divided by the proportional 3-year post injury earnings loss
December 16, 2009
The Board reversed itself once more. Please recall that in my prior posting, an en banc decision was made by the WCAB in Almaraz/Guzman I wherein it held that, (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;. . " It went on to allow the doctors may or may not base their opinions on the AMA Guides. With this "new" decision, it reversed itself and now holds that, " . . . when determining an injured employee's WPI, it is not permssible 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." It then continued to reject the previous standard of "inequitable, disproportionate, and not a fair and accurate measure of the employee's permanent disability." Unfortunately, there is really no difference between what permanent disability "accurately reflects the injured employee's impairment to one that is equitable, proportionate, fair and accurate measure of the employee's permanent disability." I submit to you, my readers that it is the same. The big difference is the holding that examining physicians must stay "within the four corners of the AMA Guides." The problem with this is, not many examining physicians know the "four corners of the AMA Guides." An orthopedic surgeon will usually only master the chapters of the Guides that pertains to orthopedic injuries, a psychiatrist will be most familiar with the chapters in the Guides that pertains to depression, and so on. We really do not expect an orthopedic surgeon to be familiar with disabilities resulting from a hernia but that is a pertinent chapter to look at. He can use that chapter by analogy. As a result of this decision, attorneys representing injured workers must guide the examining physicians and maybe lead them to the other chapters within the "four corners of the AMA Guides". We then need to either request a supplemental report or take the doctors' depositions so that he can "set forth the facts and reasoning which justify" their use of the other relevant chapters. In addition, most of the time, we will require the assistance of a vocational expert to establish the applicability of these other chapters. His services may or may not be paid by the defendant insurance company. Bottom line is, can an injured worker represent himself/herself in any type of injury? Unfortunately, the answer is - probably not.
June 22, 2009
The Watsonville Law Center (WLC) provides free legal services to low-income individuals. I volunteered to help their Workers Compensation Clinic earlier this year and have signed up to help in the future.
April 2, 2009
The WCAB in an En Banc decision held that the DFEC portion of the 2005 Schedule is rebuttable. The Court provided a rebuttal approach that is consonant with section 4660 and the RAND data to which it refers consists.
March 3, 2009
This has a companion case: Joyce Guzman v. Keenan & Associates. These two en banc cases, together with the case, Wanda Ogilvie v. City & County of San Francisco (which will be summarized by my associate, Atty. Jason K. Redula), are the first few rays of hope for the oppressed injured workers of this great State of California. The WCAB finally acknowledged to the whole world that the new law, SB899, can be very oppressive to the injured workers if followed literally. It also enpowered the medical professionals to exercise their discretion and judgment where the resulting impairment rating using the AMA Guides "would be inequitable and not commensurate with the disability the employee has suffered."
January 4, 2009
One of the most onerous provisions of SB899 was to allow the insurance company to get an approved Medical Provider Network (MPN). Once said MPN is approved, the injured worker can only receive medical care from the doctors and facilities within the network. This is true even if the insurance company doctors continue to return injured workers prematurely back to work. This sometimes causes further injury which are usually denied by the insurance companies. Some injured workers had opted to treat through their own family doctors and were being required to return to insurance company doctors by the court. In this case, the WCAB reversed a trial judge and allowed the injured worker to continue treating with his own chosen doctor who was not a member of the insurance company's MPN. The decision was based on Labor Code section 4605.
June 25, 2008
SB899 radically reduced the value of injured workers' residual disability resulting from an industrial injury, in some cases up to 70% less. In compliance with this new law, the 2005 Permanent Disability Schedule (PDRS) was made to apply for all dates of injuries even those before the enactment of the law with very few exceptions. The exceptions are found in Labor Code section 4660(d). One of them, is where there has been a treating physician's report or a comprehensive medical-legal report issued prior to 01/01/05 indicating the existence of permanent disability. As a result of this reduction, lawyers representing the injured workers try to get as many cases as possible to fall within one of these exceptions. In the following case, the Court of Appeal held that, the injured worker's condition does not have to reach permanent and stationary status. This is very important because sometimes, it takes more than 6 months after the injury or surgery for the condition to be permanent and stationary.
March 4, 2008
This en banc case held on December 13, 2007 that the long-standing legal principles of apportionment established by the California Supreme Court in Wilkinson v. WCAB (1977) is not consistent with "the new regime of apportionment based on causation" under new sections 4663 and 4664. We disagree with this holding and are hopeful that the higher courts will reverse this. The sad effect of this decision is further lower the already meager benefits payable to an injured worker.
September 26, 2007
The new workers compensation law only allows injured workers to receive 2 years of temporary disability benefits. However, if an injured worker has an amputation performed on his body or if an amputation occurred by trauma, then that injured worker may receive benefits beyond 2 years. The Court in this case defined the word "amputation".
May 15, 2007
INTRODUCTION: The Award of Permanent Disability to an Injured Worker is based on the description of the disability resulting from the work injury and modified by the 2005 Permanent Disability Rating Schedule. This new schedule was created after SB 899 became law on April 19, 2004. Instead of using work preclusions, it uses whole person impairment (WPI) based on the AME Guides. The result is totally unfair to injured workers and very profitable to the insurance industry. It is so abhorrent that the injured workers' attorney's and some judges tried numerous ways to find the New Schedule applicable to very few cases. LATEST DEVELOPMENT: In a case before the San Francisco Office of the Workers' Compensation Appeals Board, a Workers' Compensation Administrative Law Judge held that: 1. The Administrative Director failed to base the adjusted rating schedule on emprirical data and findings from the Evaluation of California's Permanent Disability Rating Schedule, Interim Report (December 2003), prepared by the RAND Institute for Civil Justice, as required by Labor Code section 4660(b)(2); 2. The Administrative Director failed to base the adjusted rating schedule on data from additional empirical studies, as required by labor Code section 4660(b)(2); 3. The DFEC Adjustment Factors set forth under the new Permanent Disability Rating Schedule adopted January 1, 2005 at page 1-7, Table A, are inconsistent with the authorizing statute, Labor Code sectin 4660(b)(2) and therefore invalid. CONCLUSION: This is a long awaited relief that the tired, the poor and the downtrodden are waiting for. The very unfair workers' compensation law passed in April, 2004 has resulted in untold suffering of these people through no fault of their own. Their misfortune of getting injured on the job was not by their design. Let us hope that this enlightened Court Decision holds up to further scrutiny.
November 8, 2006
One of the current burning issues for injuries occurring after the effectivity of SB 899, is the maximum number of temporary disability indemnities (TDI) available to the injured workers. It is 104 weeks of TDI only at this time.
November 1, 2006
The WCAB held that the new Permanent Disability Rating Schedule applies to all cases where the injury occurred on or after January 1, 2005. The Court further held that the new schedule also applied to injuries that occurred before that date if any of the 4660(d) exceptions applied.
October 2, 2005
This case was an en banc decision regarding the issue of overlap where there has been a prior industrial injury resulting in an award of permanent disability relating to the same region of the body. The Court discusses at length the issue of apportionment under Labor Code 4664 as enacted by SB 899.