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.

Judd Glover v. ACCU Construction

Temporary Disability—Two-Year Limitation on Temporary Disability Indemnity—High Velocity Eye Injury Exception—WCAB affirmed WCJ's finding that applicant/laborer/heavy equipment operator's 6/8/2006  injury constituted a "high-velocity eye injury" within meaning of Labor Code § 4656(c)(3)(F), notwithstanding defendant's contention that applicant's injury was not to the "eye" because it did not involve applicant's eyeball, when WCAB found that (1) definition of "eye" is not limited merely to "eyeball," but rather has a broader meaning, (2) medical records in this case indicated that applicant suffered a laceration to right "eye," even though laceration was not on eyeball, (3) applicant's eyes required on-going medical treatment in form of  corrective lenses and prescription medication to correct impaired vision in form of  "mid-line shift syndrome" caused by applicant's industrial injury, and (4) applicant's injury caused a subdural hematoma at point of tear duct, requiring surgical removal of tear duct, which is part of eye

Temporary Disability—Two-Year Limitation on Temporary Disability Indemnity—High Velocity Eye Injury Exception—WCAB, rescinding WCJ's finding that  applicant/laborer/heavy equipment operator with 6/8/2006 "high-velocity eye  injury," as well as  injuries to head, brain, and psyche, was entitled to temporary disability indemnity above 104-week cap set forth in Labor Code § 4656(c)(1)  for ongoing period of temporary disability, returned matter to trial level for further development of record on issue of  whether applicant's continued temporary disability was caused, to any extent, by "high velocity eye injury," thereby entitling applicant to additional temporary disability indemnity under Labor Code § 4656(c)(3)(F), when WCAB, relying on decision in Foster v. W.C.A.B. (2008) 161 Cal. App. 4th 1505, 75 Cal. Rtpr. 3d 272, 73 Cal. Comp. Cases 466 and analyzing legislature's intent in authorizing temporary disability indemnity beyond 104-week limit for specified injuries,  found that (1) in order to support award of additional temporary disability, there must be a showing that applicant's "high velocity eye injury" caused or contributed to his ongoing temporary disability, and (2) although evidence in this case indicated that applicant suffered continued temporary disability on a psychiatric basis,  there was insufficient evidence in existing medical record to determine whether applicant's eye injury contributed, either directly or via compensable consequence psychiatric injury, to applicant's ongoing temporary disability.

Robert Miller v. Carol-Carter Design & Construction

Sanctions—Language in Pleadings—WCAB, on its own motion, removed matter to itself to impose a $500.00 sanction against applicant's attorney under Labor Code § 5813 and 8 Cal. Code Reg. § 10561(b)(9) (effective 11/17/2008), payable to General Fund, for language used by applicant's attorney in 12/17/2008 petition for reconsideration of  WCJ's  11/26/2008 decision (later rescinded by WCJ pursuant to 8 Cal. Code Reg. § 10849), in which he accused WCAB and/or its WCJs of "blatantly misstating" facts, of contriving to deliberately ensure that notice of intention to impose sanctions issued by WCAB was delayed so he could not timely object to it, of being "fundamentally dishonest and outrageous," of employing "legal fiction upon legal fiction," of using "false facts," of acting in an "underhanded" manner, and of having a history of "bias, hatred and contempt" for him, and WCAB found that such language (1) was directed to WCAB and/or its officials or staff,  (2) was patently insulting, offensive, insolent, intemperate, and disrespectful, and (3) impugned integrity of WCAB and/or its WCJs, and that (1) objections raised by applicant's attorney in response to WCAB's notice of intention to impose sanctions did not compel a conclusion that he should not be sanctioned for language used in his petition for reconsideration, (2) fact that WCJ rescinded his decision pursuant to 8 Cal. Code Reg. § 10849 after applicant filed petition for reconsideration did not deprive applicant's attorney of due process on issue of sanctions and was, in fact, irrelevant to issue,  (3) WCAB did not exceed its statutory authority by adopting 8 Cal. Code Reg. § 10561(b)(9), (4) contempt cases cited by WCAB regarding language used in pleadings were relevant to issue  of sanctions, and (5) sanctioning applicant's attorney for language used in his petition did not violate his free speech rights.

Rogelio Martinez v. Urban Brothers Painting

Penalties—Delay in Payment of Compensation—Payment of Self-Imposed Penalty—WCAB upheld WCJ's imposition of multiple 25 percent penalties under Labor Code § 5814(a) for defendant's unreasonable delay in payment of temporary disability benefits during period 12/1/2006 through 1/10/2007, and unreasonable delay of permanent disability benefits awarded to applicant/painter/helper with 10/7/2004 industrial injuries to left shoulder, left ankle, and right leg, on top of 10 percent self-imposed penalty paid by defendant for delayed payments pursuant to Labor Code § 4650, when defendant paid self-imposed penalty on delayed temporary disability benefits after applicant had already claimed a Labor Code § 5814(a) penalty and, although defendant paid self-imposed penalty on delayed permanent disability before applicant filed petition for penalties, defendant presented no evidence as to when delay in payment of benefits was "discovered" so as to support application of Labor Code § 5814(b) (providing that self-imposed 10-percent shall be in lieu of Labor Code § 5814(a) penalty if delayed payment of benefits is discovered  by employer prior to employee claiming penalty and if employer pays self-imposed penalty within 90 days from date late payment is discovered) and justify avoidance of liability for penalties under Labor Code § 5814(a).

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