Workers' Compensation: Robin E. Kobayashi: Recent Noteworthy Panel Decisions Issued by California WCAB (Posted 8/10/2009)

Case Law Developments

8/10/2009 2:10:41 AM EST

Recent Noteworthy Panel Decisions Issued by California WCAB (Posted 8/10/2009)

The following are recent panel decisions that we're considering for the LexisNexis database of 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 directly or post a comment to this blog with your request. Registration at our web center is free.

Frank Viera v. Los Angeles County Probation Department

Temporary Total Disability—WCAB rejected defendant's attempt to expand the Nicklesberg doctrine (see Nicklesberg v. WCAB (1991) 54 Cal.3d 288, 56 Cal. Comp. Cases 476 to cases without a final award in place to cut off benefits; Nicklesberg held that when new period of temporary total disability begins after expiration of five-year statute of limitations, employer is not liable for that period of temporary total disability; Nicklesberg involved applicant who entered into Stipulation With Request for Award but failed to timely reopen case before pursuing further temporary total disability.

William Gilbert v. City of Los Angeles

Rebuttal of AMA Guides; Almaraz Stare Decisis Effect—WCAB held that, although its grant of reconsideration in Almaraz eviscerates it stare decisis effect in that case, the Almaraz decision continues to have stare decisis effect on WCJs and Appeals Board panels in other cases; in granting reconsideration in Almaraz, Board declined to stay the binding precedential effect of the decision.

Marty Contreras v. David Earthcraft, Inc.

Attorney's Fees; Termination of Medical Treatment Awards—WCAB, reversing WCJ's finding, held that attorney for applicant/assistant manager with 7/13/78 industrial lower back injury was not entitled to an award of attorney's fees under Labor Code § 4607, when defendant, through utilization review process, denied specific requests for medications recommended by applicant's treating physician, some of which applicant successfully challenged, but did not seek to terminate applicant's award of medical treatment, and WCAB found that, pursuant to Supreme Court's holding Smith v. W.C.A.B. (2009) 46 Cal. 4th 272, 206 P.3d 430, 92 Cal. Rptr. 3d 894, 74 Cal. Comp. Cases 575, Labor Code § 4607 allows for award of attorney's fees only to employees who successfully resist efforts to terminate their medical treatment awards.

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