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.

Cynthia Rich v. State of California. Earnings—Determining Average Weekly Earnings—WCAB held that future salary increases stemming from yet unawarded salary promotions were not properly included in determining earning capacity and temporary disability rate of applicant/full time employee with injuries on 9/98 and through cumulative period ending in 9/98 under Labor Code § 4453(d), when such salary increases could not be reasonably anticipated; WCAB held, however, that reasonably anticipated cost of living adjustments based upon collective bargaining agreement could be included in calculation.

Clifford Anger v. R.M. King. California Insurance Guarantee Association—Covered Claims—Claims by Other Insurers—WCAB held that California Insurance Guarantee Association (CIGA) was not obligated to pay Blue Cross lien for medical expenses provided on behalf of applicant with injuries to multiple body parts on 1/20/97 and 6/4/2001, because Blue Cross is a group health insurer and, under Insurance Code § 1063.1(c)(5), its lien is not a "covered claim."

Roman Beltran v. Piedmont Lumbar & Mill Company. Permanent Disability—Offer of Regular Work—Increase in Compensation—WCAB upheld WCJ's award of 15 percent increase under Labor Code § 4658(d) of permanent disability awarded to applicant with low back injuries on 5/29/2002, 10/29/2002, and 5/10/2004, when defendant did not offer applicant a return to work for a period of at least one year and WCAB agreed with WCJ's interpretation that Labor Code § 4658(d) applies to injuries on and after 5/1/2004 since those injuries are not specifically excluded under Labor Code § 4658(d)(4). 

Carol Charon v. Ralphs Grocery Company. Permanent Disability—Apportionment—WCAB held that, under Vargas v. Atascadero Hospital (2006) 71 Cal. Comp. Cases 500 (Appeals Board en banc opinion), WCJ improperly apportioned 15 percent of applicant's total permanent disability following 8/15/97 psyche injury to non-industrial factors based upon agreed medical evaluator's report, when agreed medical evaluator did not indicate what portion of the 15 percent non-industrial permanent disability was due to factors in existence prior to stipulated 48 percent permanent disability award that was issued before effective date of SB 899 apportionment statutes, and what portion was due to factors existing after applicant suffered new and further permanent disability.

Margarita Chavez v. Western National Properties. Liens—Medical Treatment—Outpatient Surgery Centers—Licensing and Accreditation Requirements—WCAB rescinded WCJ's finding that lien claimant failed to meet its burden of proving that it was an outpatient surgery center when it rendered services to  applicant in connection with her 11/7/2001 right upper extremity, right shoulder and wrist injuries, and held that WCJ should not have disallowed lien for failure to make proper showing of licensure because lien claimant's valid Department of Health Services (DHS) "surgical clinic" license authorized provision of  "outpatient setting" services pursuant to Health and Safety Code § 1248.1(d) and evidenced that a fictitious name permit from Medical Board was not required.  Liens—Medical Treatment—Outpatient Surgery Centers—Burden of Proving Reasonableness—WCAB explained that Kunz v. Patterson Floor Coverings, Inc. (2002) 67 Cal. Comp. Cases 1588 (Appeals Board en banc opinion) did not hold that an outpatient surgery center's billing for facility fees constitutes prima facie evidence of reasonableness of its charges or its entitlement to payment, that WCAB is not required to accept billings which are unreasonable on their face as evidence of a reasonable fee, even in absence of rebuttal evidence, that lien claimant has burden of proving reasonableness of its fee, and that defendant may not simply rely on official medical fee schedule to rebut reasonableness of fee but  must provide evidence that fee claimed is unreasonable.

Wayne Delmonte v. Southern California Edison. Temporary Disability—Two-Year Limitation on Temporary Disability Indemnity—High Velocity Eye Injury Exception—WCAB held that Labor Code § 4656(c)(3)(F) "high velocity eye injury" exception  did not apply to extend 104-week limitation on applicant's entitlement to temporary disability indemnity for 11/1/2005 cranial nerve injury with eye impairment resulting from 20-foot fall from a telephone pole, when WCAB found that, based upon ordinary meaning of language in Labor Code § 4656(c)(3)(F), exception applies only in cases where an object moving at high velocity strikes an applicant's eye.

Jason Echelard v. California Quality Interiors. Permanent Disability—Application of 1997 Schedule for Rating Permanent Disabilities—WCAB relied upon decisions in Genlyte Group, LLC v. W.C.A.B. (Zavala) (2008) 158 Cal. App. 4th 705, 69 Cal. Rptr. 3d 903, 73 Cal. Comp. Cases 6 and Zenith Insurance Co. v. W.C.A.B. (Cugini) (2008) 159 Cal. App. 4th 483, 71 Cal. Rtpr. 3d 724, 73 Cal. Comp. Cases 83, rather than contrary decision in Vera v.  W.C.A.B. (2007) 154 Cal. App. 4th 996, 65 Cal. Rtpr. 3d 151, 72 Cal. Comp. Cases 1115, to find that treating physician’s reports issued prior to 1/1/2005 constituted substantial evidence indicating existence of permanent disability under Labor Code § 4660(d)  for the purposes of applying 1997 Schedule for Rating Permanent Disabilities (1997 Schedule) to rate permanent disability resulting from applicant’s 10/29/2004 injuries to spine, right wrist and right elbow, when, after taking a complete history, examining applicant, and performing diagnostic tests, treating physician opined that applicant would ultimately have some permanent disability by stating that applicant’s prognosis was "relatively guarded," that life-long activity modification was encouraged, that there was a potential decrease or loss of motion and function and ongoing pain, and that he did not believe applicant could heal completely even following surgery.

Pierre Galvez v. Fontana Unified School District. Permanent Disability—Apportionment—Overlap—WCAB held that applicant/police officer's industrial cardiovascular injury during cumulative period 5/17/2005 through 5/17/2006 caused 63 percent permanent disability and, although apportionment is permitted for prior permanent disability awards involving different body regions pursuant to Strong v. City and County of San Francisco (2005) 70 Cal. Comp. Cases 1460 (Appeals Board en banc opinion) if it is adequately established by the record, defendant in this case failed to meet burden of proving overlap of 29-1/2 permanent disability awarded for applicant's prior spinal injury under Kopping v. W.C.A.B. (2006) 142 Cal. App. 4th 1099, 48 Cal. Rptr. 3d 618, 71 Cal. Comp. Cases 1229 in order to establish Labor Code § 4664 apportionment.

Jose Garrido v. San Francisco Marriott. Medical-Legal Procedure—Panel Qualified Medical Evaluations—Medical Provider Networks—WCAB denied defendant's request for removal from WCJ's Order allowing applicant with 3/16/2007 injuries to left shoulder, neck, back and left leg to undergo a panel qualified medical evaluation with a chiropractor outside defendant's medical provider network (MPN) after objecting to findings of treating physician within MPN, and held that applicant was not required to exhaust all remedies set forth in MPN statutes (Labor Code § 4616 et seq.) before requesting a panel qualified medical evaluation pursuant to Labor Code § 4062.2, and that applicant was entitled to choose a chiropractor as a qualified medical evaluator, rather than a medical doctor.

Sondra Kramer v. Credence Systems Corporation. Permanent Disability—Application of 2005 Permanent Disability Rating Schedule—WCAB rescinded WCJ's finding that 1997 Schedule for Rating Permanent Disabilities (1997 Schedule) applied, pursuant to Labor Code § 4660(d), to rate permanent disability resulting from applicant's 3/9/2004 admitted industrial injury, and held instead that 2005 Permanent Disability Rating Schedule (2005 Schedule) was applicable, when WCJ's finding was based solely on MRI scans indicating that applicant's injury resulted in a whole person impairment under AMA Guides and WCAB found that MRI findings alone, without a medical opinion, was not a sufficient basis to find an indication of permanent disability under Labor Code § 4660(d).