The following 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 logon and 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. If you have any problems with registration or posting a comment, please email me at Robin.E.Kobayashi@lexisnexis.com.

Allen v. Doyle Ellis. Permanent Disability—Vocational Expert Testimony—Diminished Future Earning Capacity—Rebuttal of 2005 Permanent Disability Rating Schedule—WCAB held that testimony of vocational rehabilitation expert did not constitute sufficient evidence to support finding that applicant with industrial back injury on 5/19/2003 and during cumulative period ending 5/19/2003 was totally permanently disabled and did not rebut presumed validity of permanent disability rating under 2005 Permanent Disability Rating Schedule (2005 Schedule) because expert did not consider labor market beyond applicant's job as a bookkeeper and was, therefore, not reliable evidence; WCAB held that rule in LeBoeuf v. W.C.A.B. (1983) 34 Cal. 3d 234, 193 Cal. Rptr. 547, 666 P.2d 989, 48 Cal. Comp. Cases 587 was not applicable in this case because there was no showing, given vocational expert's failure to consider entire labor market, that applicant was precluded from vocational re-training. Permanent Disability—Apportionment—Age Discrimination—WCAB held that Labor Code § 4663 apportionment of permanent disability based upon agreed medical evaluator's opinion that 20 percent of applicant's permanent disability following industrial back injury on 5/19/2003 and during cumulative period ending 5/19/2003 was attributable to prior fracture and pre-existing arthritis, in part due to applicant's age, did not violate Government Code § 11135, when agreed medical evaluator apportioned permanent disability to applicant's specific medical conditions, not simply to her age, and WCAB found that apportionment to specific pathological conditions, including age-related arthritis, did not violate prohibition against age discrimination.

Dykes v. E & J Gallo Winery. Petitions to Reopen—Good Cause—Change in Law—WCAB, granting defendant's petition for reconsideration and rescinding WCJ's findings and order, held that there was good cause to reopen decision pursuant to defendant's petition to reopen, when WCAB found that applicant sustained prior industrial injury to his back on 9/12/96, resulting in award of 20-1/2-percent permanent disability, that applicant sustained present industrial injury to his back on 10/28/2002, resulting in overall permanent disability of 73 percent, that on 12/3/2004 WCJ calculated permanent disability indemnity after apportionment to prior award by using "Formula C" from Fuentes v. W.C.A.B. (1976) 16 Cal. 3d 1, 128 Cal. Rptr. 673, 574 P.2d 449, 41 Cal. Comp. Cases 42, that this decision was affirmed by Court of Appeal on 12/20/2005 in E & J Gallo Winery v. W.C.A.B. (Dykes) (2005) 134 Cal. App. 4th 1536, 37 Cal. Rptr. 3d 208, 70 Cal. Comp. Cases 1644, that on 10/17/2006, which was within five years of date of applicant's injury, defendant filed petition to reopen, citing Court of Appeal decision in Welcher v. W.C.A.B. (2006) 142 Cal. App. 4th 818, 47 Cal. Rptr. 3d 888, 71 Cal. Comp. Cases 1644, that on 5/3/2007 Supreme Court issued decision in Brodie v. W.C.A.B. (2007) 40 Cal. 4th 1313, 57 Cal. Rptr. 3d 644, 156 P.3d 1110, 72 Cal. Comp. Cases 565, holding that "Formula A" from Fuentes was still, post-SB 899, correct formula for calculating apportionment of permanent disability, affirming Court of Appeal decision in Welcher, and expressly disapproving Court of Appeal decision in present case, that neither doctrine of res judicata nor law of case doctrine was bar to WCAB's power to reopen for good cause under Labor Code §§ 5803 and 5804 when, subsequent to Court of Appeal's decision, Supreme Court announced contrary rule in different case, and that change of law enunciated in Supreme Court's decision in Brodie constituted good cause to reopen WCJ's 12/3/2004 decision in present case.

Felix v. Verizon Wireless. Evidence—Medical Reports—Qualified Medical Evaluator's Opinion as Evidence—WCAB rescinded WCJ's finding that applicant with cumulative low back injury through 8/11/2006 sustained no permanent or temporary disability based upon opinion of panel qualified medical evaluator, which WCJ found was "entitled to  a legal presumption of accuracy", and held that opinion of panel qualified medical evaluator is not entitled to a presumption of accuracy and carries no more weight than treating physician's opinion, that WCJ applied an incorrect legal theory by ascribing a non-existent presumption to opinion of panel qualified medical evaluator and, based on such, relying on this opinion over that of treating physician, and that WCJ was required to consider entire record and make findings based upon substantial evidence.

Galvao v. Kinko's. Vocational Rehabilitation—Vocational Rehabilitation Maintenance Allowance—Credit—WCAB reversed WCJ's finding that, pursuant to Gamble v. W.C.A.B. (2006) 143 Cal. App. 4th 71, 71 Cal. Comp. Cases 1015, defendant was not entitled to a credit for wages earned by applicant with 10/24/2002 neck injury in her subsequent employment and, instead, distinguished facts in Gamble to find that defendant was entitled to credit against vocational rehabilitation maintenance allowance (VRMA) for wages paid by subsequent employer on a wage loss basis, when applicant was not eligible for vocational rehabilitation temporary disability (VRTD) by virtue of being temporarily disabled but was awarded VRMA at temporary disability rate because of defendant's failure to notify applicant of her eligibility to participate in vocational rehabilitation and, as opposed to concurrent employment situation in Gamble, applicant's subsequent employment replaced her job with defendant so that award of credit would provide no windfall to defendant and cause applicant to suffer no wage loss.

Garbarino v. Con Agra Foods. Permanent Disability—Apportionment—WCAB held that agreed medical evaluator's opinion constituted substantial evidence, as described in E.L Yeager Construction v. W.C.A.B. (Gatten) (2006) 145 Cal. App. 4th 922, 52 Cal. Rptr. 3d 133, 71 Cal. Comp. Cases 1687, to support finding that  40 percent of permanent disability following applicant's left knee injuries on 7/11/2002 and during period 7/11/2002 through 1/16/2004 was apportionable to pre-existing, non-industrial arthritic condition under Labor Code § 4663, when agreed medical evaluator expressed his opinion based upon his medical expertise, fully considered applicant's history and medical evaluation in forming his opinions, and did not base opinions upon mere speculation; WCAB held that apportionment of applicant's permanent disability to pre-existing, non-industrial arthritic condition was not precluded by fact that applicant had a total knee replacement, because applicant had ratable permanent disability even after knee replacement, agreed medical evaluator opined that applicant would have needed a knee replacement even absent industrial injury, and WCAB found that finding of apportionment was consistent with requirement in Labor Code § 4663 that apportionment of permanent disability be based upon causation.

Gutierrez v. Santa Barbara School District . Permanent Disability—Apportionment—Wilkinson Rule—WCAB rescinded WCJ's separate permanent disability findings in three cases filed by applicant with 11/30/93 injuries to psyche, neck, back, head, face, eye, index finger and chronic pain syndrome, cumulative injury to same body parts between 1/13/95 and 6/11/97, and 5/8/97 psyche and chronic pain syndrome injuries, and deferred decision of whether applicant is entitled to a combined, single permanent disability with regard to all three cases under Wilkinson v. W.C.A.B., pending Court of Appeal's decision in Benson v. The Permanente Medical Group (2007) 72 Cal. Comp. Cases 1620 (Appeals Board en banc decision) (writ granted June 26, 2008).

Halpern v. The Hertz Corporation. Petitions for Reconsideration—Filing of Petition—WCAB held that defendant's petition for reconsideration of WCAB's 3/10/2008 decision was untimely, when, pursuant to 8 Cal. Code Reg. § 10840, defendant's petition needed to be filed with the WCAB itself by 4/4/2008 but defendant incorrectly filed petition with the San Francisco district office by that date, and WCAB did not actually receive petition until 4/10/2008. 

Minvielle v. County of Contra Costa/Contra Costa Fire. Permanent Disability—Apportionment—Overlap—WCAB rescinded WCJ's finding of Labor Code § 4664 apportionment and held that defendant did not prove overlap of prior disability under Kopping v. W.C.A.B. in order to establish Labor Code § 4664 apportionment of permanent disability stemming from applicant's 11/22/2004 back injury based on prior award of 27.5 percent permanent disability resulting from 10/8/92 back injury, when permanent disability caused by 1992 injury was calculated under 1950 Schedule for Rating Permanent Disability (1950 Schedule) and permanent disability caused by 2004 injury was rated under AMA Guides/2005 Permanent Disability Rating Schedule (2005 Schedule), and WCJ's calculation of apportionment by subtracting percentage of permanent disability awarded in earlier case from percentage of permanent disability caused by later injury was inappropriate given that permanent disability caused by the two injuries was calculated using different standards; WCAB upheld WCJ's finding that there was insufficient evidence to establish apportionment of applicant's permanent disability under Labor Code § 4663, because agreed medical evaluator found that applicant was rehabilitated from earlier injury and there was no evidence contradicting agreed medical evaluator's opinion. 

Patterson v. Santa Monica/Malibu Unified School District . Liens—Medical Treatment—Outpatient Surgery Centers—Burden of Proof—WCAB held that lien claimant/outpatient surgery center was not entitled to full amount of lien totaling $7,547.56 for 8/30/2003 and 9/27/2003 services rendered to applicant with cumulative low back injury during period 5/23/2003 to 2/12/2004 but was entitled only to $1,660.00, when lien claimant carried burden of proving reasonableness of its lien pursuant to Kunz v. Patterson Floor Covering (2002) 67 Cal. Comp. Cases 1588 (Appeals Board en banc opinion), and WCAB found that, in determining reasonableness of lien under Kunz, WCJ must evaluate all evidence in record including, but not limited to, amount charged in other geographical locations and in-patient hospitals, amount allowed under Official Medical Fee Schedule (OMFS) applicable to later injuries, and amount paid by Medicare or private insurers, that WCJ need not accept billing statement which is unreasonable on its face, and that lien claimant in this case failed to meet burden of proving reasonableness because evidence offered by lien claimant was unsupported, lacked foundation, and was rebutted by defendant's evidence, which included PPO contracts, inpatient rates, 2004 OMFS, witness testimony, and exhibits.

Schwall v. Lawrence Backhoe. Costs—Vocational Expert Witness Fees—WCAB held that, pursuant to Labor Code § 5811 and Costa v. Hardy Diagnostic (2007) 72 Cal. Comp. Cases 1492 (Appeals Board en banc opinion), applicant with 6/13/2005 right knee injury was entitled to reimbursement for costs associated with testimony and reporting of vocational expert witness with regard to applicant's diminished future earning capacity offered in rebuttal to rating under 2005 Permanent Disability Rating Schedule, even though expert's opinion was not sufficient to rebut rating, when WCAB found that standards for awarding such costs are similar to standards for allowing medical-legal costs under Labor Code § 4621(a) and that, in this case, costs of vocational expert were reasonable and necessary at time they were incurred.

Sherry v. Connelley's Fine Furniture. Permanent Disability—Total Disability—Brain Injury—WCAB reversed WCJ's finding and held that applicant who suffered headaches following 5/26/93 industrial injuries to  knees, neck, low back and psyche, did not sustain a "brain injury" for purpose of finding total permanent disability pursuant to presumption in Labor Code § 4662(d), applicable to brain injuries "resulting in incurable imbecility or insanity," when medical evidence indicated that headaches were not caused by an organic brain syndrome, but rather the consequence of myofascial and neuropathic conditions, cervical problems and/or applicant's severe depression; although WCAB found that Labor Code § 4662(d) presumption did not apply, WCAB determined that substantial evidence supported finding of 100 percent permanent disability, without apportionment, based on orthopedic work limitations, psychological impairments of the 8 work functions, a constant and high level of headache pain, and an inability to compete in open labor market. Permanent Disability—Apportionment—Overlap—WCAB held that substantial evidence supported finding that applicant's 1/20/92 industrial knee injuries and 5/26/93 industrial injuries to  knees, neck, low back and psyche, caused 100 percent permanent disability due to orthopedic work limitations, psychological impairments of the 8 work functions, a constant and high level of headache pain, and an inability to compete in open labor market, and that there was no basis to apportion permanent disability under Labor Code § 4664 based on prior award for 1989 back injury, because defendant failed to prove overlap of disabilities.