Here are some recent noteworthy panel decisions issued by the California Workers' Compensation Appeals Board. If you would like a copy of any of these decisions, please logon to your web center account and post a comment to this blog with your request, or email me directly. If you haven't registered at this site yet, you must do so before you can logon to post a comment. Registration at our web center is free.

Kevin Camwell v. Compass Group

Jurisdiction—Limitation on WCAB's Powers—WCAB, finding defendant's petition for removal untimely, granted removal on its own motion and rescinded WCJ's 3/24/2009 Order continuing matter to a conference on 4/28/2009 and ordering defendant to file an application "forthwith," when WCAB found that WCJ had no jurisdiction to conduct hearings or issue orders since neither party had filed an Application for Adjudication of Claim.

Yolanda Gil v. Ceres Unified School District

Permanent Disability—Ratings—Vocational Expert Testimony—Diminished Future Earning Capacity—WCAB denied defendant's request for removal from WCJ's orders issued at mandatory settlement conference (MSC) taking matter off calendar and allowing further discovery in connection with applicant/family health liaison's claims for left arm and shoulder injuries in 2003 and through 2/18/2004, in order to address issues raised in Ogilvie v. City and County of San Francisco (2009) 74 Cal. Comp. Cases 248 (Appeals Board en banc opinion) and Almaraz v. Environmental Recovery Services/Guzman v. Milpitas Unified School District (2009) 74 Cal. Comp. Cases  201 (Appeals Board en banc opinion), when, although defendant asserted that discovery should have been closed at MSC pursuant to Labor Code § 5502 because there were no objections to declarations of readiness to proceed (DOR) filed by applicant and defendant, WCAB found that (1) WCJ did not err in taking case off calendar and leaving discovery open since both DORs were filed before decisions in Ogilvie and Almaraz/Guzman were issued, and both decisions raised new factual issues and points of law not previously established (decision in Ogilvie provided for first time correct procedure/formula to rebut Diminished Future Earning Capacity (DFEC) portion of 2005 Permanent Disability Rating Schedule and decision in Almaraz/Guzman  indicated for first time that AMA Guides may be rebutted), and (2) defendant made no showing that orders issued by WCJ caused substantial prejudice or irreparable harm so as to justify removal.

Guiseppe Pollifrone v. Markovitz & Fox

California Insurance Guarantee Association—Contribution and Reimbursement—Laches—WCAB held that California Insurance Guarantee Association (CIGA), on behalf of insolvent carrier with coverage for applicant/laborer's low back injuries on 11/23/86 and during cumulative period ending 10/85, was barred by doctrine of laches from claiming reimbursement for medical treatment benefits paid to applicant by insolvent carrier prior to its insolvency, notwithstanding that applicant had received awards against multiple solvent carriers for low back injuries on 2/19/68, 3/20/69 and 9/30/85 and had undergone extensive medical treatment (including several surgeries) for prior back injuries, when insolvent carrier knew or should have known of applicant's prior awards as early as 5/19/86 but never sought reimbursement for medical benefits on its own behalf, CIGA assumed insolvent carrier's covered claims in 2001 but did not seek contribution or reimbursement for medical treatment expenses from solvent carriers until 3/26/2008, more than 20 years after insolvent carrier became or should have become aware of applicant's prior awards, and WCAB found that, although delay in seeking reimbursement did not make it impossible for solvent carriers to defend against reimbursement claim, increased difficulty in defending claim created sufficient prejudice to support application of laches.

Daniel Cooper v. Recording Industry Association of America

Attorney's Fees—Defendant's Failure to Withhold Funds for Attorney's Fees—Payment of Attorney's Fees Out of Lien Recovery—WCAB held that attorney for applicant/supervisor of investigations with admitted industrial injury to psyche on 8/28/2007 and during cumulative period ending 8/28/2007, was entitled to attorney's fees for temporary disability indemnity paid directly to applicant since defendant was on notice of need to withhold attorney's fees and failed to properly withhold such fees from payment of temporary disability indemnity, but was not entitled to a fee for  defendant's payment of EDD lien, when EDD's lien was resolved informally without adjudication or a hearing, and WCAB found that Labor Code § 4903.2 (governing award of attorney's fees out of a lien claimant's recovery) does not extend to situations involving informal resolution before an award has been made in favor of injured worker and that, because  requirements of Labor Code § 4903.2 were not met here,  applicant's attorney was not entitled to a fee for EDD's lien recovery; WCAB deferred issue of whether defendant was entitled to a credit against permanent disability for attorney's fees awarded.

Fernando Martinez v.  D.H. Smith Company, Inc.

Injury AOE/COE—Injury From Unauthorized Activities—WCAB rescinded WCJ's order that applicant take nothing by way of his claim for 6/26/2007 injuries and held, instead, that applicant sustained injury AOE/COE for purposes of pursuing workers' compensation benefits, when WCJ's take nothing order was based on his finding that applicant's injuries, which occurred while applicant was driving his employer's truck to work, occurred outside "scope" of employment because applicant was driving without a driver's license and contrary to employer's direction that applicant travel to work as a passenger in company truck with his son driving, but WCAB found that whether applicant was outside "scope" of his employment at time of injury was irrelevant to workers' compensation case under Labor Code § 3600 as "scope" of employment issue relates to an employer's liability in tort cases under doctrine of respondeat superior, that applicant was authorized to travel to work in company truck, albeit as a passenger rather than a driver,  that allowing applicant to travel to work in company truck benefitted employer, and that, even if applicant's injury occurred while authorized travel was conducted in an unauthorized manner, injury arose out of and occurred in course of employment.

Injury AOE/COE—Going and Coming Rule—Employer-Furnished Transportation--WCAB upheld WCJ's finding that "going and coming" rule did not apply to bar applicant's claim for 6/26/2007 injuries sustained in a motor vehicle collision while applicant was driving employer's truck to work even though applicant was not authorized to drive company truck because he had no driver's license, when applicant was expressly authorized to travel to work in truck as a passenger with his son driving, WCAB found no evidence that vehicle was being used for anything other than work-related travel at time of accident, and WCAB did not find that applicant's driving of truck, rather than riding as a passenger, constituted a material deviation from his employment so as to take him out of course of employment.

Alex Silva v. Costco Wholesale

Permanent Disability—Ratings—AMA Guides—WCAB upheld WCJ's finding that applicant/maintenance assistant  with 4/21/2005 injuries to left shoulder and cervical spine suffered 43 percent permanent partial disability, after adjustment, based upon panel qualified medical evaluator's (QME) opinion and application of range of motion (ROM) method rather than diagnostic related estimates (DRE) method of calculating impairment under AMA Guides,  when QME found that ROM was proper method of calculating impairment because applicant's injury caused multilevel spinal involvement in same region as verified by MRI  and, contrary to defendant's assertion, AMA Guides state that ROM method is proper method of calculation when there is multilevel spinal involvement with or without  residual symptoms at multiple levels.

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