The following are 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.

Cathy Burak, Applicant v. Long Beach Unified School District, Tristar Los Angeles, Defendants

Vocational Rehabilitation—Repeal of Labor Code § 139.5—WCAB held that applicant with 10/29/93 industrial injury was not entitled to vocational rehabilitation benefits because, pursuant to  Weiner v. Ralph's Company (2009) 74 Cal. Comp. Cases 736 (Appeals Board en banc opinion), WCAB had no jurisdiction to award applicant such benefits following 1/1/2009 repeal of Labor Code § 139.5, notwithstanding that Rehabilitation Unit (RU) issued determination that applicant was entitled to vocational rehabilitation benefits prior to statute's repeal, when defendant's appeal of RU's determination was still pending, RU's determination was not final, applicant's right to benefits remained inchoate and did not vest prior to 1/1/2009 effective date of repeal, and repeal of statute extinguished applicant's right to vocational rehabilitation benefits.

Louwana Knoll, Applicant v. State of California/EDD, State Compensation Insurance Fund, Defendants

Permanent Disability—Apportionment—WCAB rescinded WCJ's finding that applicant was entitled to unapportioned award of 81 percent permanent disability for cumulative injury to bilateral upper extremities over period ending 8/18/96, when WCJ based his decision on finding that agreed medical evaluator (AME) did not provide adequate explanation to support apportionment of applicant's permanent disability to non-industrial rheumatoid arthritis, but WCAB held that opinion of AME constituted substantial medical evidence to justify apportionment of 50 percent of applicant's permanent disability to effects of non-industrial arthritis pursuant to Labor Code § 4663 and Escobedo v. Marshalls (2005) 70 Cal. Comp. Cases 604 (Appeals Board en banc opinion), since AME fully considered significance of applicant's rheumatoid arthritis, obtained a comprehensive medical history and current x-rays, based his analysis on his best medical judgment, did not speculate, and comprehensively explained basis for his determination.

Joanna Lee Frady, Applicant v. Magic Ford Auto Nations, Zurich, Adjusted By Universal Underwriters Group, Defendants

Evidence—Medical Evidence—Fibromyalgia—WCAB rescinded WCJ's finding that applicant/dispatcher with 9/28/2000 admitted industrial injuries to back, neck and right hand was entitled to medical treatment for consequential fibromylagia as recommended by treating physician, including brain MRI,  muscle and skin biopsies and  neurological evaluation, pursuant to earlier award for future medical treatment, when WCAB found that treating physician's reports did not constitute substantial evidence to support WCJ's treatment award because reports were incomplete and conclusory, treating physician did not adequately explain why he opined that "it is more likely than not" that applicant's fibromyalgia was a manifestation of an ongoing autoimmune disease, and did not adequately discuss how requested diagnostic testing was reasonably related to applicant's fibromyalgia; WCAB held that applicant was entitled to medical treatment as recommended by panel qualified medical evaluator (QME) in rheumatology, who recommended neurological evaluation but no invasive procedures such as muscle biopsy or MRI, when WCAB found that panel QME's opinion constituted substantial evidence because  he (1) based his opinion on thorough examination and history, correct legal theory and relevant facts, (2) reviewed nerve conduction studies and conducted immunological workup and serologies for autoimmune inflammatory disease, and considered all of this in concluding that brain MRI was unnecessary, (3)  considered conflicting EMG and nerve conduction study results, (4) thoroughly discussed reasons for recommending an independent neurological evaluation, and (5) noted that if the neurologist felt brain MRI was necessary it could be performed.

Ricardo Clemente, Applicant v. NexCoil, Inc., Defendant

Serious and Willful Misconduct of Employer—WCAB upheld WCJ's finding that 6/10/2005 injuries to applicant/assembler/operator's feet, which occurred when two unracked large metal coils (weighing approximately 1700 pounds each) were inadvertently tipped, did not result from defendant's serious and willful misconduct, notwithstanding that defendant was cited for several Cal OSHA violations following applicant's accident, when applicant failed to meet burden of proving elements of serious and willful misconduct under either Labor Code § 4553 (duty to provide a safe workplace) or Labor Code § 4553.1 (violation of safety order) because there was no showing (1) that defendant actually knew of dangerous condition, which is required to show violation of Labor Code § 4553, (2) that defendant's violation of any safety order proximately caused applicant's injuries, (3) that any of defendant's employees (vice president of operations, plant supervisor, or plant manager) whose misconduct would make defendant liable for serious and willful misconduct, had any actual knowledge of safety orders violated, (4) that any of defendant's employees  whose misconduct would make defendant liable for serious and willful misconduct, acted with malice or indifference toward their employees, including applicant, with regard to workplace safety,  and (5) that failure to identify tipping hazard in packaging department was anything other than ordinary negligence.

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