| | City Of Oakland V. Workers’ Compensation Appeals Board (Steven Baptista) | | | APPORTIONMENT - When an injured employee received a prior disability award, apportionment of the amount of permanent disability indemnity is calculated by determining the overall percentage of permanent disability and then subtracting the percentage of permanent disability caused by other factors, including the prior disability award. Brodie v. Workers' Compensation Appeals Board, Contra Costa County Fire Protection District 40 Cal.4th 1313,9 WCAB Rptr. 10,142 . | |
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| | Washington Mutual Bank V. Workers’ Compensation Appeals Board (Judy Helm) | | | PERMANENT DISABILITY–Application of new vs. old rating schedule–Under Labor Code §4660(d), a comprehensive medical-legal report, like the treating physician's report, must contain an indication of permanent disability to trigger the use of the pre-2005 rating schedule. (See Costco Wholesale Corp. v. Workers' Comp. Appeals Bd. (Chavez) (2007) 151 Cal.App.4th 148, 9 WCAB Rptr. 10,184.) | |
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| | Energetic Painting And Drywall V. WCAB (Ramirex) 9 Wcab Rptr. 10,251 | | | PERMANENT DISABILITY–Applicability of new permanent disability rating schedule–Labor Code §4660(d)–In interpreting Labor Code §4660(d), the employer's duty to provide the Labor Code §4061 notice attaches with the last payment of temporary disability. (See Costco Wholesale Corp. v. Workers' Comp. Appeals Bd. (Chavez) (2007) 151 Cal.App. 4th 148, 9 WCAb Rptr. 10,184.) | |
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| | University Of California San Francisco V. Wcab (Rand) 9 WCAB Rptr. 10,251 | | | PERMANENT DISABILITY–Applicability of new permanent disability rating schedule–Labor Code §4660(d)–In interpreting Labor Code §4660(d), the employer's duty to provide the Labor Code §4061 notice attaches with the last payment of temporary disability. (See Costco Wholesale Corp. v. Workers' Comp. Appeals Bd. (Chavez) (2007) 151 Cal.App. 4th 148, 9 WCAb Rptr. 10,184.) | |
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| | San Francisco Marriott V. WCAB (Yamat) 9 Wcab Rptr. 10,251 | | | PERMANENT DISABILITY–Applicability of new permanent disability rating schedule–Labor Code §4660(d)–In interpreting Labor Code §4660(d), the employer's duty to provide the Labor Code §4061 notice attaches with the last payment of temporary disability. (See Costco Wholesale Corp. v. Workers' Comp. Appeals Bd. (Chavez) (2007) 151 Cal.App. 4th 148, 9 WCAb Rptr. 10,184.) | |
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| | Health Net, Inc. V. Workers’ Compensation Appeals Board (Bente Hansen) 9 Wcab Rptr. 10,243 | | | PERMANENT DISABILITY–Applicability of new permanent disability rating schedule–Labor Code §4660(d)–In interpreting Labor Code §4660(d), the employer's duty to provide the Labor Code §4061 notice attaches with the last payment of temporary disability. (See Costco Wholesale Corp. v. Workers' Comp. Appeals Bd. (Chavez) (2007) 151 Cal.App. 4th 148, 9 WCAb Rptr. 10,184.) | |
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| | Daniel Vera V. Workers’ Compensation Appeals Board, Sapper Construction 9 WCAB Rptr. 10,242 | | | WCAB PROCEDURE−Application of old Permanent Disability Rating Schedule−Labor Code §4660(d)− For injuries occurring before January 1, 2005, a treating physician's report issued prior to January 1, 2005, must indicate that the applicant has a ratable disability that has reached permanent and stationary status.WCAB PROCEDURE−Application of old Permanent Disability Rating Schedule−Labor Code §4660(d)−The old rating schedule will apply only when the employer has made, or is required to make, the last payment of temporary disability indemnity before January 1, 2005. (See Costco Wholesale Corp. v. Workers' Comp. Appeals Bd.(Chavez) (2007) 151 Cal.App.4th 148, 9 WCAB Rptr. 10,184.) | |
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| | City Of Turlock V. Workers’ Compensation Appeals Board (Stk09 Yyzzz) 9 WCAB Rptr. 10,238 | | | INJURY–Burden of proof on issue of causation–The injured worker has the burden of proving industrial causation by a reasonable probability. This burden does not require the injured worker to prove causation with scientific certainty. (See Rosas v. Workers' Comp. Appeals Bd. (1993) 16 Cal.App.4th 1692.) [In this case the applicant's QME and the medical literature provided substantial evidence to support a finding that it was reasonable that applicant's contracting hepatitis C as a utility maintenance worker in a sewage system was industrially related.] | |
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| | City Of San Diego V. Workers’ Compensation Appeals Board (James Brooks) 9 WCAB Rptr. 10,240 | | | WCAB PROCEDURE−Application of old Permanent Disability Rating Schedule−Labor Code §4660(d)−For injuries occurring before January 1, 2005, a comprehensive medical-legal report issued prior to January 1, 2005, the report must show the existence of permanent disability to permit the use of the new rating schedule. (See Baglione v. Hertz Car Sales (2007) 9 WCAB Rptr. 10,119 (Baglione II).)WCAB PROCEDURE−Application of old Permanent Disability Rating Schedule−Labor Code §4660(d)−The term "permanent disability" has two separate and independent components: (1) the applicant has a ratable disability, and (2) the status of that disability is "permanent and stationary" as that term is used in the workers' compensation statutes. | |
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| | Daniel Green V. State Of California ____Cal.4Th ____, 9 WCAB Rptr. 10,259 | | | CIVIL LITIGATION–Disability Discrimination–Under the California Fair Employment and Housing Act (FEHA) the burden is on the plaintiff to show that he or she is a qualified individual under FEHA (i.e., that he or she can perform the essential functions of the job with or without reasonable accommodation). | |
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| | Rachael Dufour V. Workers’ Compensation Appeals Board, City Of Modesto 9 WCAB Rptr. 10,255 | | | INJURY–Presumption of injury blood borne infection–Labor Code §3212.8–A presumption is an assumption of fact that the law requires to me made from another facto or group of facts found or otherwise established in the case. A presumption becomes operative at trial when the basic facts giving rise to the presumption are established by the pleading, stipulation, judicial notice or evidence. (See Gee v. Workers' Comp. Appeals Bd. (2002) 96 Cal.4th 1418, 4 WCAB Rptr. 10,101.) [In this case the applicant failed to establish the underlying basic facts necessary to invoke the application the Labor Code §3212.8 presumption that the blood-borne infectious disease manifested itself while applicant was employed as a police officer.] | |
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| | Zenith Insurance Company V. Workers’ Compensation Appeals Board (Catherine Watts) 9 WCAB Rptr. 10,257 | | | PERMANENT DISABILITY–Application of old vs. new rating schedule–Labor Code §4660(d)–A comprehensive medical-legal report prepared prior to January 1, 2005 must indicate the existence of permanent disability in order to apply the old rating schedule. (See Costco Wholesale Corp. v. Workers' Comp. Appeals Bd. (2007) 151 Cal.App.4th 148.)PERMANENT DISABILITY–Application of old vs. new rating schedule–Labor Code §4660(d)–The duty to give notice under Labor Code §4061 arises with the last payment of temporary disability. (See Costco Wholesale Corp. v. Workers' Comp. Appeals Bd. (2007) 151 Cal.App.4th 148.) | |
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| | Eddy Korkiat Prachasaisoradej V. Ralphs Grocery Company, Inc. ____Cal.4Th _____. 9 WCAB Rptr. 10,261 | | | CIVIL LITIGATION– Incentive compensation plan–A profit-based supplementary incentive compensation plan, designed to reward employees beyond their normal pay for their collective contribution to store profits, did not violate wage protection policies of the Labor Code insofar as the plan included store expenses such as workers' compensation costs, cash and merchandise shortages, breakage, and third party tort claims in the profit calculation. | |
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| | Fred Vierra V. Workers’ Compensation Appeals Board, Collins Pine Company And Liberty Mutual Insurance Co. ____Cal.App.4Th _____, 9 Wcab Rptr. 10,275 | | | ATTORNEY FEES−Labor Code §4906−The Appeals Board has the exclusive jurisdiction over fees to be allowed or paid to applicants' attorneys. (See Wheeler & Beaton v. Workers' Comp. Appeals Bd. (1995) 40 Cal.App.4th 389.) [In this case, the Appeals Board properly refused to approve an attorney fee agreement that provided for attorney fees to be calculated on an hourly rate of $225.00 or 12% of the permanent disability award, whichever is less.]ATTORNEY FEES–Labor Code §4906–The law does not forbid contracts between applicants and attorneys, but merely gives the Appeals Board the final approval over their enforcement. Once services are rendered, the WCJ may approve, increase or reduce the fees provided for in such a contract, taking into consideration the factors listed in Labor Code §4906 (d) and the WCAB Policy and Procedures Manual. | |
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| | Paul Cruz V. Mercedes-Benz Of San Francisco, And Auto Dealers Compensation Of California Administered By Intercare Insurance Company - 9 Wcab Rptr. 10,285 | | | TEMPORARY DISABILITY–104 week/two year cap–Labor Code §4656(c)(2)(C)–The word "amputation" as used in Labor Code §4656(c)(2)(C), means the severance or removal of a limb, part of a limb, or other body appendage, including both traumatic loss in an industrial injury and surgical removal during treatment of an industrial injury. [In this case involves the anterior L5-S1 diskectomy, partial L5-S1 fusion with a graft from the iliac crest bone, bilateral L4-L5 laminotomy, and decompression of L5 nerve roots bilaterally which was determined by the Appeals Board not to constitute an "amputation" within the meaning of Labor Code §4656(c)(2)(C).] | |
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| | Elias Nunez V. Steel Forming, Inc. - 10 WCAB Rptr. 10,180 | | | CIVIL LITIGATION–Punch press exception to exclusive remedy–Labor Code §4558–An employee may file a civil action against the employer where the employee's injury or death is proximately caused by the employer's knowing removal of or knowing failure to install, a point of operation guard on a power press, and the removal or failure to install is specifically authorized by the employer under conditions known by the employer to create a probability of serious injury or death.CIVIL LITIGATION–Punch press exception to exclusive remedy–Labor Code §4558–A cause of action under the punch press exception includes the following elements: (1) the injury or death is proximately caused by the employer's knowing removal of or knowing failure to install, a point of operation guard on a power press and (2) the removal or failure to install is specifically authorized by the employer under conditions known by the employer to create a probability of serious injury or death. (See Flowmaster, Inc. v. Superior Court (1993) 16 Cal.App.4th 1019.) | |
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| | Deanna Priest v. Workers’ Compensation Appeals Board, Michael Housepian 10 WCAB Rptr. 10,327 | | | WCAB JURISDICTION–Continuing jurisdiction over awards–Labor Code §5804–The Appeals Board has continuing jurisdiction over all its orders, decisions and award, which it may rescind, alter, or amend upon a showing of good cause. The Appeals Board’s continuing jurisdiction over its awards is limited in that no award of compensation shall be rescinded, altered or amended after five years from the date of injury, except upon a petition of a party filed within such five years. | |
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| | Pratt v. Union Pacific Railroad - ____Cal.App.4th ____, 10 WCAB Rptr. 10,372 | | | Federal Employers Liability Act: The Railroad Labor Act does not preempt California’s Discovery Act during the pendency of a FELA action when the discovery provisions provide an adequate means of obtaining medical information and the employer’s use of extra-judicial discovery is merely a pretext to gain an unfair advantage in the underlying FELA case. | |
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| | Dianna Fain v. Workers' Compensation Appeals Board, City of Fresno Police Department - 10 WCAB Rptr. 10,350 | | | PRESUMPTION OF INJURY-Cancer presumption for firefighters and peace officers-Labor Code section 3212.1-The cancer presumption applies for certain firefighters and peace officers for up to 60 months after leaving employment and provides that the injury is presumed industrial if the cancer develops or manifests itself during a period in which the member demonstrates that (1) he or she was exposed to a known carcinogen as defined by the International Agency for Research on Cancer and (2) the carcinogen was reasonably linked to the disabling cancer. (See City of Long Beach v. Workers' Comp. Appeals Bd. (2005) 126 Cal.App.4th 298.) | |
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| | Full text of Wangen v. Garnder Denver - 11 WCAB Rptr. 11,077 | | | Doctrine of Forum Non Conveniens in multiple defendant asbestos case: In a case with many defendants it would be unreasonable to expect a moving defendant to establish that all defendants were subject to jurisdiction in the alternate forum. | |
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| | Full text Schmidt v. Burlington Northern | | | Under FELA, the test of whether a company is the employer of a particular worker turns on the degree of control the company exerts over the physical conduct of the worker in the performance of services | |
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