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

City of San Diego, PSI, Petitioner v. Workers' Compensation Appeals Board, Sandra Smullen, Respondents, 74 Cal. Comp. Cases ***, 2009 Cal. Wrk. Comp. LEXIS 278

Permanent Disability--Rating Schedules--WCAB held that exception to use of 2005 Permanent Disability Rating Schedule applied (exception in Labor Code § 4660(d) when pre-2005 reports from primary treating physician indicate existence of permanent disability), and that 1997 Schedule for Rating Permanent Disabilities should be used to rate applicant police officer's permanent disability from 11/25/2003 back injury, when majority of WCAB panel found that, for this exception to apply, pre-2005 treating physician's reports need only "indicate" existence of permanent disability, not "state" existence of permanent disability, and found that pre-2005 treating physician's reports here indicated permanent disability from physician's diagnoses, physician's statements that applicant should consider multiple level laminectomies and that further surgery was contemplated if 11/2004 surgery was not successful, and physician's work restrictions that were same both before and after 11/2004 surgery.

Jose Gonzalez, Petitioner v. Workers' Compensation Appeals Board, Burr Roofing, Inc., State Compensation Insurance Fund, Respondents, 74 Cal. Comp. Cases ***, 2009 Cal. Wrk. Comp. LEXIS 279

Permanent Disability--Rating--WCAB upheld WCJ's finding that applicant/roofer with 8/6/97 injuries to lumbar spine, psyche, and urological system suffered 88-percent disability as rated under 1997 Schedule for Rating Permanent Disabilities, based on orthopedic agreed medical evaluator's restriction to sedentary work with use of cane, eight protocols of psychiatric disability as set forth by psychiatric agreed medical evaluator, and additional five-percent standard disability rating added by WCJ for applicant's urological condition as described by applicant's urologist, which required applicant to use bathroom every two hours; WCAB found that vocational expert's testimony that applicant was vocationally non-feasible did not constitute substantial evidence to support finding of 100-percent permanent disability, when expert did not adequately review records/reports in forming her opinion and her opinion was disputed by medical evidence in record.

Kevin Martinez, Petitioner v. Workers' Compensation Appeals Board, John Jackson Masonry, State Compensation Insurance Fund, Zenith Insurance Company, Respondents, 74 Cal. Comp. Cases ***, 2009 Cal. Wrk. Comp. LEXIS 280

Discrimination--Labor Code § 132a--Business Necessity--WCAB, in split panel decision reversing WCJ's decision, held that applicant failed to establish that defendant violated Labor Code § 132a by terminating him from his modified duty clerical job during period of temporary disability from his regular job as bricklayer following 4/25/2005 and 8/28/2006, when WCAB found that applicant did not show that defendant singled him out for disadvantageous treatment because of his injury, as required by Department of Rehabilitation v. W.C.A.B. (Lauher) (2003) 30 Cal. 4th 1281, 70 P.3d 1076, 135 Cal. Rptr. 2d 665, 68 Cal. Comp. Cases 831, to prove prima facie case of discrimination, and that testimony of defendant's general manager indicating that applicant was terminated from clerical job because defendant could not afford to pay him for clerical work any longer and because there was no sign that applicant's condition was improving was sufficient to show that applicant's termination was motivated by business necessity.

Oakland Unified School District, PSI, administered by JT2 Integrated Services, Petitioner v. Workers' Compensation Appeals Board, Loretta Little, Respondents, 74 Cal. Comp. Cases ***, 2009 Cal. Wrk. Comp. LEXIS 281

Jurisdiction--Five-Year Statute of Limitations--WCAB held that WCJ had jurisdiction to make initial award of temporary total disability to applicant/custodian with admitted industrial injuries to upper extremities on 5/14/2000 and 8/18/2000, for period of temporary total disability originating more than five years after applicant's date of injury, when no prior awards of temporary disability indemnity had been issued to applicant, and WCAB found that decisions in Nickelsberg v. W.C.A.B. (1991) 51 Cal. 3d 288, 794 P.2d 925, 272 Cal. Rptr. 167, 56 Cal. Comp. Cases 476 and Hartsuiker v. W.C.A.B. (1993) 12 Cal. App. 4th 209, 15 Cal. Rptr. 2d 719, 58 Cal. Comp. Cases 19, precluding awards for periods of temporary disability arising more than five years from date of injury under Labor Code §§ 5410 and 5803 after final award of temporary disability is made, did not bar WCAB from awarding temporary total disability in this case because applicant did not seek to reopen based on additional temporary disability but rather made initial claim for temporary disability, that, although agreed medical evaluator found applicant to be temporarily partially disabled, defendant's failure to offer modified work within applicant's restrictions made defendant liable for temporary total disability, and that five-year time limitation in Labor Code § 4656(b) did not bar applicant's initial claim for temporary disability benefits since this limitation expressly applies only to temporary partial disability awards and does not preclude award of temporary total disability.

James Dean v. W.C.A.B., Restaurant Depot, Liberty Mutual Insurance Company, 74 Cal. Comp. Cases ***, 2009 Cal. Wrk. Comp. LEXIS 282

Injury AOE/COE--WCAB held that applicant seafood manager did not sustain back injury AOE/COE on 11/13/2007, when WCAB found that applicant claimed injury from unwitnessed incident in which he lifted ice and fell, that there were discrepancies between applicant's testimony and evidence from medical records and four defense witnesses about how injury occurred, what part of applicant's back was injured, applicant's prior medical history, and applicant's ability to move and perform various activities, that applicant was not credible and four defense witnesses were credible, and that timing of claim was suspicious, i.e., applicant had medical treatment for back problems two weeks before 11/13/2007, employer disciplined applicant in 7/2007, 9/2007, and on 11/12/2007 for excessive absenteeism, and next disciplinary step was termination.