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 email me or post a comment to this blog with your request. 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.

Kimberly Smith v. Axium Entertainment

California Insurance Guarantee Association—General and Special Employers—Other Insurance—WCAB, rescinding arbitrator's finding that California Insurance Guarantee Association (CIGA), on behalf of general employer's insolvent carrier, was liable for benefits owing to applicant/production coordinator who sustained industrial injuries on 5/2/98, held that special employer's insurance policy constituted "other insurance" within meaning of Insurance Code § 1063.1(c)(9) for purposes of precluding CIGA's liability for benefits,  when special employer's insurance policy contained no explicit exclusion of coverage for special employees and, despite parties' original intent that general employer's carrier be liable for special employee's workers' compensation benefits, such intent did not apply to determine liability  after general employer's carrier became insolvent and CIGA assumed its covered claims, and did not preclude applicant from seeking compensation from jointly and severally liable special employer; WCAB found that CIGA's liability, which is entirely statutory, is dictated exclusively by  Insurance Code § 1063.1, that Insurance Code § 11663 (assigning liability to general employer's carrier in cases of general-special employment relationships) does not determine CIGA's liability as CIGA is not an insurance carrier, that Labor Code § 3602(d) does not resolve questions of liability between general and special employers when general employer's carrier becomes insolvent and covered claims are assumed by CIGA, and that a special employer's carrier's failure to collect a premium for special employees does not extinguish carrier's liability for benefits, absent an explicit exclusion of coverage for special employees.

Dien Le v. Lumberman's Mutual Casualty Co.

Psychiatric Injuries—Six-Month Employment Rule—WCAB upheld WCJ's finding that applicant's claim for psychiatric injury suffered as a consequence of 3/20/2001 back injury was not barred by six-month employment requirement in Labor Code § 3208.3(d), when applicant began employment on 10/30/2000 and, except for three days off within six-month period,  worked until period of temporary disability began on 5/1/2001, and WCAB found that, despite three day absence from work, applicant substantially complied with statutory requirement of performing six months of  "actual service."

Theresa Gomez v. Elk Grove Unified School District

Medical-Legal Procedure—Panel Qualified Medical Evaluators—Information Provided to Medical Evaluators—WCAB denied applicant's petition for removal from WCJ's order terminating panel qualified medical evaluator's (QME) participation in case pursuant to defendant's request and order that parties select a QME from a new panel, when applicant did not serve proposed information QME letter (which discussed body parts/effects not previously at issue) 20 days prior to scheduled QME evaluation in violation of Labor Code § 4062.3(b), applicant sent proposed information QME letter to panel QME without serving letter on defendant, and WCAB found that applicant did not show substantial prejudice or irreparable harm would result from selecting from a new QME panel so as to justify removal.

Tito Vargas v. Hensel Phelps Construction

Petitions for Reconsideration—Service of Petition—WCAB dismissed defendant's petition for reconsideration of WCJ's finding that applicant/janitor/laborer suffered compensable injuries to his right arm, chest and shoulder on 7/21/204, for failure to file proof of service of petition on lien claimants as required by 8 Cal. Code Reg. § 10850.

Carmencita Fortuno  v. Getz Corp.

Removal—WCAB denied defendant's request for removal from WCJ's order vacating submission of case for further development of record in connection with applicant's industrial injuries to bilateral upper extremities, bilateral carpal tunnel and psyche through cumulative period 5/13/98, when WCJ ordered further development of record on ground that he could not determine applicant's entitlement to a functional restoration program based on existing record, and WCAB found that defendant failed to show WCJ's order to develop medical record would result in significant prejudice or irreparable harm  as required under 8 Cal. Code Reg. § 10843 to justify removal, and made no showing that reconsideration would not be an adequate remedy after a final award is issued.

Medical Treatment—Utilization Review—Time to Deny Treatment Request—WCAB disagreed with WCJ's finding that  utilization review report denying authorization for functional restoration program in connection with applicant's industrial injuries to bilateral upper extremities, bilateral carpal tunnel and psyche through cumulative period 5/13/98 was untimely under Labor Code § 4610(g), when request for authorization did not specify name of claims adjuster or insurer or the address that it was transmitted to,  there was insufficient evidence to indicate that defendant received report directly from requesting physician, applicant's primary treating physician sent a copy of requesting physician's report to defendant on 7/5/2007 seeking authorization for functional restoration program, and WCAB found that 7/11/2007 utilization review denial was timely as to primary treating physician's 7/5/2007 request; WCAB returned matter to trial level, instructing WCJ to consider utilization review report in reaching a final decision.

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