Here are some recent panel decisions issued by the Calif. Workers' Comp. Appeals Board that we're considering for the LexisNexis panel decisions database. If you would like a copy of any of these decisions, please email me or post a comment to this blog with your request.

Berthiaume v. City of Chula Vista, PSI – Defendant cites Almaraz/Guzman to object to WCJ's findings on permanent disability and gets another day in court

The WCJ had found that applicant sustained 39% permanent disability as a result of cumulative trauma injury to his skin in the form of skin cancer while employed as a fire captain, that the applicant's skin cancer was an insidious and progressive disease, that apportionment was inapplicable, and that no overlap of disability existed between applicant's prior award of 51% permanent disability for industrial injury to the heart and cardiovascular system and his current permanent disability. Defendant City of Chula Vista contested the WCJ's findings and also raised the point that the matter was tried before the Almaraz/Guzman en banc decision was issued. The WCAB panel held that, pursuant to Almaraz/Guzman, the defendant should be allowed an opportunity to address whether the impairment rating under the AMA Guides provided a fair and accurate measure of applicant's disability.

Elliot v. Newsgroup of Sacramento – Sandhagen did not overrule the process outlined in Brasher for denying and seeking review of a utilization review decision

The WCJ ordered the defendant to authorize applicant's request for spinal surgery based on her findings that defendant did not seek a spinal surgery second opinion after the utilization review denial and that defendant did not notify applicant of any requirement to file a written objection to the utilization review denial of spinal surgery within 10 days of the utilization review denial of spinal surgery. Defendant contended that it properly denied applicant's request for spinal surgery in accordance with Sandhagen and Brasher. The WCAB panel agreed with defendant, stating that the process described in Brasher remains viable notwithstanding the Supreme Court's decision in Sandhagen. The WCAB panel disagreed with the WCJ that the process in Brasher was effectively overruled by the Supreme Court's holding in Sandhagen. According to the WCAB panel, nothing in Sandhagen requires an employer to seek further review of its own utilization review decision. If a request for surgery is denied pursuant to the utilization review process, then the employee is obligated to object under Labor Code Sec. 4062(a) if he or she still desires the surgery.

Fleming v. Santa Ana Unified School District –Applicant's injury on stairs of her home was barred from compensability by going and coming rule when her home was not found to be an alternative work site

The WCJ found that applicant, a teacher, sustained industrial injury when she fell down the stairs at home while on the way to work because applicant was unable to perform her duties at work because of a break-in at her school and she had to finish her work at home, making her home a second worksite. The WCJ found an exception applied to the going and coming rule. Defendant argued that applicant had enough time to finish her work at school, that the school didn't limit the time applicant could remain at work after the break-in at the school, and that the laptop provided by her employer was for her convenience. Defendant argued against the creation of a "white-collar exception" to the going and coming rule. The WCAB panel reversed the WCJ, citing the test in Bramwell, and found that applicant was performing work at home for her own personal convenience and not because the conditions of work dictated that she had to perform work at home as an alternative work site.