Here’s the first batch of advanced postings for the November 2009 issue of California Compensation Cases. Lexis.com subscribers can link to the cases below.

Louwana Knoll Petitioner v. Workers' Compensation Appeals Board, State of California/Employment Development Department, legally uninsured, State Compensation Insurance Fund, adjusting agency, Respondents

74 Cal. Comp. Cases ***, 2009 Cal. Wrk. Comp. LEXIS 252

Permanent Disability--Apportionment--WCAB awarded applicant employment program representative 40.5-percent permanent partial disability for cumulative trauma injury AOE/COE ending 8/18/96 to bilateral upper extremities, based on (1) 81-percent permanent partial disability rating from opinions of AME, consultative rating from Disability Evaluation Unit, and 1997 Permanent Disability Rating Schedule, and (2) opinions of AME that 50 percent of applicant's disability should be apportioned to non-industrial pre-existing arthritis and 50 percent to this industrial injury; WCAB disagreed with WCJ on whether applicant's permanent partial disability should be apportioned and found that AME's opinions on apportionment complied with requirements of Labor Code § 4663 and Escobedo v. Marshalls (2005) 70 Cal. Comp. Cases 604 (Appeals Board en banc opinion) and that AME's opinions were, therefore, substantial medical evidence on this issue.

Monica Rodriguez, Petitioner v. Workers' Compensation Appeals Board, Overland, Pacific & Cutler, Inc., State Compensation Insurance Fund, Respondents

74 Cal. Comp. Cases ***, 2009 Cal. Wrk. Comp. LEXIS 253

Credit--Third-Party Settlements--Employer Negligence--WCAB held that applicant who suffered injuries to both feet and to her nervous system on 1/5/2004, when loose ceramic tiles attached to side of her desk fell, did not present sufficient evidence to prove that defendant acted negligently in failing to inspect tiles after they were installed so as to preclude or reduce defendant's entitlement to credit under Labor Code §§ 3858 and 3861 for settlement monies recovered by applicant in third-party civil suit against contractors who installed tiles as part of remodel of her  work space, when there was no clear evidence that  tiles were installed incorrectly, no evidence that any sort of inspection by defendant should have been undertaken after tiles were installed, since ceramic tiles on furniture do not generally pose risk significant enough to warrant special inspection, and no evidence regarding what sort of reasonable inspection defendant should have or could have undertaken that would have revealed defect in installation of tiles.

Burnham & Brown, Republic Indemnity Company of v. W.C.A.B., Leslie A. Fernandes

74 Cal. Comp. Cases ***, 2009 Cal. Wrk. Comp. LEXIS 254

Permanent Disability--Rating--WCAB awarded applicant 100-percent PD, without apportionment, for cumulative trauma injury AOE/COE to applicant's upper and lower extremities (complex regional pain syndrome) in period ending 1/28/99, based on opinions from applicant's QME, applicant's VR expert (that applicant is unable to compete in open labor market), and applicant's credible testimony, despite medical and vocational evidence to contrary and despite sub-rosa videos of applicant's activities; WCAB found that sub-rosa videos did not establish that applicant could work at gainful employment or that she engaged in activities on video that she denied being able to perform and also that videos did not cause applicant's QME to change his opinions on extent of applicant's PD.

County of Mendocino, PSI, administered by G.B. Bragg & Associates, Inc. v. W.C.A.B., Robert Sizemore

74 Cal. Comp. Cases ***, 2009 Cal. Wrk. Comp. LEXIS 255

Permanent Disability--Rating--WCAB awarded applicant 81-1/2 percent PPD, after apportionment, plus life pension, for applicant's 9/14/2000 industrial back injury with compensable consequence psychiatric injury, based on (1) 71-percent rating of applicant's orthopedic PPD, after apportionment (from opinions of orthopedic AME and consultative rating from DEU), (2) 19-percent rating of applicant's psychiatric PPD, after Lab. C. § 4664 apportionment (from WCAB's finding that applicant's psychiatric disability from current injury rated 45 percent, minus 26-percent rating for applicant's prior award for psychiatric sequella of Lyme's Disease), and (3) application of multiple disabilities table.

First Union National Bank, ACE USA/ESIS v. W.C.A.B., Erin McGeorge

74 Cal. Comp. Cases ***, 2009 Cal. Wrk. Comp. LEXIS 256

Petitions for Reconsideration--Final Order--WCAB dismissed petition for reconsideration, finding that defendant sought reconsideration of WCJ order that was not final order as required by Lab. C. §§ 5900 and 5903, when defendant sought reconsideration of WCJ's order that vacated prior order submitting case and took matter off calendar to obtain work evaluations, related to applicant's claim of cumulative trauma injury AOE/COE to neck, right shoulder, and right arm in period ending 11/10/2000.

Removal to WCAB--WCAB granted defendant's petition to remove case to itself, affirmed WCJ's order vacating prior order submitting case, rescinded WCJ's order taking matter off calendar, and remanded for further proceedings on issue of which PD rating schedule, 1997 or 2005, applied.

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