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Category: Publications

HOW SMOKE INHALATION BECAME A CATASTROPHIC INJURY: Wilson Opens the Floodgates for Compensable Consequence Psych Impairment Claims

May 13, 2019 In what appears to be the continuation of an ongoing trend to expand situations in which an applicant can once again receive compensable consequence psychological impairment, the WCAB issued an en banc opinion in the matter of Kris Wilson v. State of CA Cal Fire, ADJ10116932. This is a significant decision and binding on all WCJs. Prior opinions by the WCAB have addressed the “violent act” exception of Labor Code 4660.1(c)(2)(A). The WCAB has determined a violent […]

LINDH UPENDS STATUS QUO: Legitimizes Apportionment to Underlying Asymptomatic Conditions

December 11, 2018 The First District Court of Appeal has given employers and carriers an unexpected but deeply appreciated Christmas present a few days early with its published opinion in City of Petaluma v. WCAB (Lindh), No. A153811, which issued on December 10, 2018. The case reinforces and reinvigorates the notion that legally valid apportionment can come from underlying pathology or an asymptomatic pre-existing condition or disease. Though SB 899 was supposed to create a sea change in how the […]

Court of Appeal Awards a Solid Win to Defendants on Total Disability Cases! Dept. of Corrections and Rehabilitation & SCIF v. WCAB (Fitzpatrick)

September 27, 2018 On September 25, 2018, in a case certified for publication, the Third District Court of Appeal in Dept. of Corrections and Rehabilitation & SCIF v. WCAB (Fitzpatrick) found no basis for concluding that Labor Code §4662(b) provides a second independent path to permanent total disability “in accordance with the fact.” This is a solid statutory win for defendants. In this new case, the Court took on the WCAB’s liberal interpretation of §4662(b) and the phrase “in accordance […]

Dynamex Operations West Inc. v. Superior Court of Los Angeles County

May 7, 2018 On April 30, 2018, the California Supreme Court issued its decision in Dynamex Operations West Inc. v. Superior Court of Los Angeles County, making it harder for employers to classify workers as independent contractors in California’s growing gig economy. The Court seemed to scrap a more flexible classification test that had been used for decades in California (a multifactor test known as the Borello test) and adopted the so-called ABC test. The ABC test requires an employer […]

County of San Diego v. WCAB (Pike): Court of Appeal Recaps the 104 Week TD Statute the Board Temporarily Uncapped

March 7, 2018 The Fourth District Court of Appeal has reestablished a semblance of rationality over how long an applicant can receive temporary disability in its published County of San Diego v. WCAB (Pike) decision issued on March 6, 2018. The Board had previously turned the 104 week temporary disability cap (Labor Code §4656 (c)(2)) on its head by ruling that a deputy sheriff who injured his right shoulder in July 2010 had the right to receive §4850 salary continuation […]

STAND UP AND CHEER: Plenary Power Rules!!

January 18, 2018 Ok, maybe not cheer but at least understand the latest dagger in the constitutional challenges of the state’s Independent Medical Review (IMR) process.  California’s constitutional “plenary power” is a power that has been granted to a body, or person, in absolute terms, with no review of, or limitations upon the exercise of that power. The workers’ compensation reforms for 2013 included a method of allowing the injured worker, not the defendant, to challenge a determination of medical […]

GENETIC DISPOSITION: Heredity and the Law of Apportionment The Case of City of Jackson v. Rice

April 27, 2017 When Senate Bill 899 (SB 899) was enacted in 2004, it sent shockwaves through the workers’ compensation system. As vocational rehabilitation went the way of the dinosaur, so too did a long-standing legal theory regarding causation and apportionment to pre­existing conditions. Prior to SB 899, apportionment could not be based on causation. However, SB 899 changed that forever, opening the door for such decisions as Escobedo, the tenets of which are an integral part of the fabric […]

WCAB – Maxham v. Calif. Dept. of Corrections en banc decision of 1/23/17

January 25, 2017 On January 23, 2017, the WCAB issued the en banc decision of Maxham v. Calif. Dept. of Corrections, clarifying the definition of “information” and “communication” in Labor Code §4062.3. The issue of communicating with agreed medical evaluators and panel qualified medical evaluators is governed by the timelines and rules in §4062.3. In the case of Maxham, defendants objected to applicant’s advocacy letters to three AMEs. Applicant sent the letters to the AMEs over defendants’ objections. Defendants filed […]