WCAB PROCEDURE - Failure to give notice of expert witness–When a party fails to give notice of the intent to call an expert witness, the WCJ properly may exclude the testimony of the expert witness, because the opposing party did not have an opportunity to prepare for or present rebuttal witnesses. Larry Alicia v. Workers' Compensation Appeals Board, GSM Sheet Metal 10 WCAB Rptr. 10,147 [Writ Denied]

WCAB PROCEDURE - Ex parte communications with AME or panel QME–Labor Code §4062.3(f)–Ex parte communication with an agreed medical evaluator or a qualified medical evaluator selected from a panel is prohibited. If a party communicates with the agreed medical evaluator or the qualified medical evaluator, the aggrieved party may elect to terminate the medical evaluation and seek a new evaluation from another qualified medical evaluator. In this case, the qualified medical evaluator after submitting his report contacted the claims adjuster and discussed the case. The employer had no standing to object to the use of the QME. The only party aggrieved by the actions of the QME was the applicant. Gilroy Foods/Conagra Foods, Inc. v. Workers' Compensation Appeals Board (Susana Villanueva) 10 WCAB Rptr. 10,147 [Writ Denied]

WCAB PROCEURE - A WCJ's Report and Recommendation on Reconsideration cures any technical or alleged defect in satisfying the requirements of Labor Code §5313 that the WCJ requires to make and file findings upon all facts involved in the controversy and an award, order or decision stating the determination as to the rights of the parties. (See City of San Diego v. Workers' Comp. Appeals Bd. (Rutherford) (1989) 54 Cal.Comp.Cases [writ denied].) Vitas Healthcare Corporation v. Workers' Compensation Appeals Board (Linda Sawyer) 10 WCAB Rptr. 10,146 [Writ Denied]

WCAB PROCEDURE - Petition to reopen for new and further injury–Labor Code §5410–To reopen an award of permanent disability under Labor Code section 5410, applicant must have experienced both "new" and "further" disability than what the original award was based on. (See Pizza Hut of San Diego v. Workers' Comp. Appeals Bd. (Bailey) (1978) 76 Cal.App.3d 818.) But permanent disability that remains unchanged since the time of the original award does not constitute a new and further disability. (See Draper v. Workers' Comp. Appeals Bd. (1983) 147 Cal.App.3d 502.) Amphavahn Soyinthisane v. Workers' Compensation Appeals Board, Shurflo Pump Manufacturing 10 WCAB Rptr. 10,128 [Writ Denied]

WCAB PROCEDURE - Admissibility of medical reports–A treating physician is one who examines, recommends a course of treatment and then supervises that treatment. In this case, the physician was not a treating physician or a qualified medical evaluator because he did not supervise treatment and there was no pre-requisite objection to a treating physician's opinion. Michael Turner v. Workers' Compensation Appeals Board, Anon 10 WCAB Rptr. 10,117[Writ Denied]

WCAB PROCEDURE - Sanctions against attorney–Labor Code §5813–An attorney's written comments, found to be motivated by his willful intent to disrupt or delay the proceedings or by improper motive and indisputably without merit, are subject to sanctions. (See Runnion v. Workers' Comp. Appeals Bd. (Gore) (1997) 59 Cal.App.4th 277, Garcia v. The Vons Co., Inc. (2001) 3 WCAB Rptr. 10,112 [en banc], Hershewe v. Workers' Comp. Appeals Bd. (Clabaugh) (2002) 4 WCAB Rptr.10,257 [writ denied].) Habtnesh Ezra v. Workers' Compensation Appeals Board, State of California Department of Heath Services 10 WCAB Rptr. 10,095 [Writ Denied]

WCAB PROCEDURE - Sanctions–Labor Code §58813–Once the WCJ has issued an order for the witness to attend a scheduled deposition, the failure to produce the witness must be considered bad faith. Therefore, the actions taken thereafter by the applicant to secure the deposition and enforce the order are subject to an award of attorney's fees under Labor Code §5813. The attorney fees requested should be considered under the guidelines of Board Rule §10776 and include consideration of the hourly fee request. Acorn Housing Company v. Workers' Compensation Appeals Board (Elise King) 10 WCAB Rptr. 10,097 [Writ Denied]

WCAB PROCEDURE - Tolling of the statute of limitation–Is the statute of limitations tolled for failure to post the notice required by Labor Code §3550 giving notice of the name of the current workers' compensation insurance carrier? Dolores Pugh v. Workers' Compensation Appeals Board, County of Los Angeles 10 WCAB Rptr. 10,075 [Writ Granted]

WCAB PROCEDURE - Setting aside a stipulation concerning coverage–Insurance coverage is both a factual and legal one, and it is necessary for the WCJ to create a record rather than relying on statements by attorneys in pleadings. Therefore, a hearing should be held on whether there is good cause to set aside the prior stipulation to insurance coverage as to applicant's injury. (See County of Sacramento v. Workers' Comp. Appeals Bd. (Weatherall) (2000) 77 Cal.App.4th 1114, 2 WCABRptr. 10,054.) Republic Indemnity Company of America v. Workers' Compensation Appeals Board, Alea-North America (Shane Hunter) 10 WCAB Rptr. 10,079 [Writ Denied]

WCAB PROCEDURE - Apportionment of liability or right to contribution in cumulative trauma injury case–Labor Code §5500.5–For injuries on or after January 1, 1981, the employer or employers with the last year of injurious exposure of a cumulative trauma injury are liable. At any time within one year after the Appeals Board had made an award for compensation benefits in connection with an occupational disease or cumulative injury, any employer held liable under the award may institute proceedings for the purpose of apportionment of liability or right of contribution. Los Angeles County Metropolitan Transit Authority v. Workers' Compensation Appeals Board, Travelers Insurance Company (Derrick Wayne) 10 WCAB Rptr.10,080[Writ Denied]

WCAB PROCEDURE - Appeals Board en banc decisions–California Code of Regulations, Title 8 §10341–The en banc Appeals Board decisions are binding on all Appeals Board panels and WCJs. (See City of Long Beach v. Workers' Comp. Appeals Bd. (Garcia) (2005) 126 Cal.App.4th 298.) Diagnostic Products Corp. v. Workers' Compensation Appeals Board (Greta Amirdjanian) 10 WCAB Rptr. 10,080 [Writ Denied]

WCAB PROCEDURE - Close of discovery-Labor Code §55029e)(3)-When exhibits are not disclosed at the Mandatory Settlement Conference, the party seeking to offer such evidence must demonstrate that the exhibit was either not available or could not have been discovered by due diligence prior to the settlement conference. GTE/Verizon v. Workers' Compensation Appeals Board (Sandra Sheridan) 10 WCAB Rptr. 10,082[Writ Denied]

WCAB PROCEDURE - Admissibility of medical reports–In this case, the reports of specialists appointed by the claims adjuster at the request of the primary treating physicians were admissible as opinions of secondary treating physicians. Roberta Ledesma v. Workers' Compensation Appeals Board, University of California Berkeley 10 WCAB Rtpr. 10,065 [Writ Denied]

WCAB PROCEDURE - Request for advance payment of vocational rehabilitation and diminished future earning capacity expert witness–Expert testimony on the issue of diminished future earning capacity is not a medical-legal expense. There is no statutory basis for an order requiring the employer to pay for such expert witness prior to evaluation of the relevance and necessity of the testimony. Alberta Mendoza v. Workers' Compensation Appeals Board, Ace USA 10 WCAB Rptr. 10,059 [Writ Denied]

WCAB PROCEDURE - Imposition of sanctions–Due process does not require a formal-type hearing where the presentation of argument and evidence can be fairly accomplished by a paper record or other means. (See Mathews v. Eldridge (1976) 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18.) Due process does not guarantee an opportunity to present oral testimony; due process is satisfied where the party is entitled to submit written materials. (See Federal Deposit Ins. Corp. v. Maller (1988) 486 U.S. 230, 108 S.Ct. 1780, 100 L.Ed.2d 265.). [In this case, the Appeals Board issued an opinion and order expressing its intention to impose sanctions against a lien claimant's hearing representative unless a written objection setting forth good cause as to why he should not be sanctioned was served and filed within 15 days of the service of the order.] Daniel Escamilla v. Workers' Compensation Appeals Board, 21st Century Insurance (Terri Crumption) 10 WCAB Rptr. 10,060 [Writ Denied]

WCAB PROCEDURE - Death without dependents procedures–Labor Code §4706.5(f)–When an employee dies and the employer has no actual knowledge or notice of a surviving dependent, the employer or the employer's insurance carrier must notify the Administrative Director. [Writ Denied]

WCAB PROCEDURE - Issue of partial or total dependency involving a death claim–8 Cal.Code of Regulations, Title 8 §1051–In any case in which there is a bona fide issue regarding partial or total dependency, the filing party must serve on the Death Without Dependents Unit a copy of any document initiating a claim for death benefits before the Appeals Board. If dependency is questionable, the Death Without Dependents Unit may participate in the case. Securitas Security Services USA, Inc. v. Workers' Compensation Appeals Board, (Michael Johnson), Death Without Dependents Unit 10 WCAB Rptr. 10,061 [Writ Denied]

WCAB PROCEDURE - Credit for third-party recovery–Labor Code §3856–An employer who has paid workers' comp benefits to an injured employee has the right to be reimbursed for the sums paid and for certain other expenditures, except to the extent that fault attributable to the employer caused the worker's civil damages. (See Southern California Edison Company v. Workers' Comp. Appeals Bd. (Tate) (1997) 58 Cal.App.4th 766.) Downey Unified School District v. Workers' Compensation Appeals Board (William Scott) 10 WCAB Rptr. 10,049 [Writ Denied]

WCAB PROCEDURE - Recoverable costs-Did the Appeals Board properly allow costs of a vocational rehabilitation consultant's report under Labor Code §5811? Department of Industrial Relations, Subsequent Injuries Benefits Trust Fund v. Workers' Compensation Appeals Board (Bradley Dorigo) 10 WCAB Rptr. 10,047 [Writ Granted]

WCAB PROCEDURE - Reliance on a single physician's report–The opinion of a single physician can suffice to support the Appeals Board's determinations. (See Smith v. Workers' Comp. Appeals Bd. (1969) 71 Cal.2d 588.) [In this case, applicant failed to show that reliance on the single physician opinion was unreasonable.] ___Cal.App.4th___

WCAB PROCEDURE - Jurisdiction to enforce an award more than five years post-injury–The Appeals Board has continuing jurisdiction over all its orders, decisions and awards. While the Appeals Board's power to alter prior decisions is limited to five years from the date of injury under Labor Code §§5410 and 5804, it authority to enforce awards and to conduct ancillary proceedings is not time-barred. (See Barnes v. Workers' Comp. Appeals Bd. (2000) 23 Cal.4th 679, 2 WCAB Rptr. 10,267.) Target Stores v. Workers' Compensation Appeals Board (Carmen Sollars) 10 WCAB Rptr. 10,037 ___Cal.App.4th___

WCAB PROCEDURE - Tolling of the statute of limitation–An employer's duty to give notice of an employee's rights arises after the employer has notice of the employee's injury. [In this case, the employer had no notice of applicant's injury until she filed an Application for Adjudication more than four years after she left work due to stress.] [Writ Denied]

WCAB PROCEDURE - Tolling of the statute of limitation–The statute of limitations is not tolled for failure to post the notice required by Labor Code §3550 giving notice of the name of the current workers' compensation insurance carrier. Dolores Pugh v. Workers' Compensation Appeals Board, County of Los Angeles 10 WCAB Rptr. 10,031 [Writ Denied]

WCAB PROCEDURE - Effect of no contest plea to a charge of making a false or fraudulent statement in seeking workers' compensation benefits–Insurance Code §1871.4(a)(1)–A non contest plea to a misdemeanor misrepresentation offense can not be used in a workers' compensation proceeding under Penal Code §1016(3).

WCAB PROCEDURE - Effect of no contest plea to making a false or fraudulent statement in seeking workers' compensation benefits–Entitlement to receive further compensation benefits after a fraud conviction necessarily will require: (1) an actual otherwise compensable industrial injury; (2) substantial medical evidence supporting an award of compensation not stemming from the fraudulent misrepresentation; and (3) that claimant's credibility is not so destroyed as to make claimant unbelievable concerning any disputed issue in the underling compensation case. (See Tensfeldt v. Workers' Comp. Appeals Bd. (1998) 66 Cal.App.4th 116.) [In this case the applicant was entitled to recover workers' compensation benefits because (1) the employer admitted applicant had sustained two industrial injuries; (2) the medical reporting of the treating physician and QME unrelated to the misrepresentations substantiated the teen for temporary disability indemnity and medical treatment; and (3) the WCJ did not find the misdemeanor plea so destroyed applicant's credibility as to make her unbelievable.] Save Mart v. Workers' Compensation Appeals Board (Shaeann Young) 10 WCAB Rptr. 10,021 ___Cal.App.4th___

WCAB PROCEDURE - Order addressing all issues presented for determination—Labor Code §5815 requires that a WCJ's order must address all issues presented for determination and if an issue is not addressed in the order it must be deemed decided adversely as to the party in whose interest such issue was raised. The issue must be submitted to the WCJ for decision and not merely pending before Labor Code §5815 will be applied to find that the issue was decided adversely to a party. (See Liberty Mutual Fire Ins. Co. v. Workers' Comp. Appeals Bd. (Gaters) (1992) 57 Cal.Comp.Cases 634 [writ denied].) Hughes Aircraftv. Workers' Compensation Appeals Board (Donald Balding) 9 WCAB Rptr. 10,377 [Writ Denied]

WCAB PROCEDURE - Treating physician reports–California Code of Regulations Title 8 §10606 addresses the issue of physicians' reports as evidence and specifically states that failure of a physician to comply with one or more of the specifically enumerated items that the physician reports should include would not make the report inadmissible but would be considered in weighing the evidence. Barrett Business Services, Inc. v. Workers' Compensation Appeals Board (Rocio Moncada) 9 WCAB Rptr. 10,377 [Writ Granted]

WCAB PROCEDURE - A WCJ's findings of fact are not binding on the Appeals Board and it may reach different conclusions on an independent examination of the evidence produced at the hearing the WCJ conducts, even where the evidence is conflicting. In fact, the Board may reject the WCJ's findings on credibility matters if substantial evidence supports contrary findings. (See Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312.) City of Manteca v. Workers' Compensation Appeals Board (Ruth Morris) 9 WCAB Rptr. 10,366 [Writ Denied]

WCAB PROCEDURE - Sanctions–Labor Code §5313–Does the Appeals Board have the authority to issue sanctions against the Uninsured Employers' Fund for delay in the paying an award of attorney fees? John Duncan, Director of the Department of Industrial Relations as Administrator of the Uninsured Employers' Fund v. Workers' Compensation Appeals Board (Linda Silva) 9 WCAB Rptr. 10,358 [Writ Granted]

WCAB PROCEDURE - Appeals Board determinations relating to trial level decisions–An Appeals Board panel is empowered to resolve conflicts in the evidence, make its own credibility determination and upon reconsideration to reject the findings of the WCJ and enter its own findings on the basis of its review of the record so long as its decision is supported by substantial evidence in light of the entire record. (See Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312.) Irma Williams v. Workers' Compensation Appeals Board, U.C. Davis Medical Center 9 WCAB Rptr. 10,351 [Writ Denied]

WCAB PROCEDURE - Agreed medical examiner-A WCJ is not required to follow an Agreed Medical Examiner's opinion when the WCJ finds there is good reason to find it unpersuasive. (See Power v. Workers' Comp. Appeals Bd. (1986) 179 Cal.App.3d 775.) Interim Techonologies v. Workers' Compensation Appeals Board (Alan Lashbrook) 9 WCAB Rptr. 10,350 [Writ Denied]

WCAB PROCEDURE - Procedures for disputing a request for spinal surgery–In response to a treating physician's recommendation for spinal surgery, an employer has the following options: (1) authorize the surgery; (2) object to the surgery, pursuant to Labor Code §4062(b) by filing a DWC Form 233 within 10 days of receipt of the doctor's recommendation; (3) submit the recommendation to utilization review; or (4) pursue both options 2 and 3, either simultaneously or by filing an objection after a utilization review denial, meeting the timelines for each process. If the employer denied the surgery pursuant to its utilization review, the employee must object within 10 days of receipt by the employee of the employer's denial. The dispute will then be resolved under the second-opinion procedures of Labor Code §4062(b). (See Brasher v. Nationwide Studio Fund (2006) 8 WCAB Rptr. 10,295 [Significant Panel Decision].) Rich Giorgi v. Workers' Compensation Appeals Board, City of Monterey 9 WCAB Rptr. 10,349 [Writ Denied]

WCAB PROCEDURE - Summary of evidence–Labor Code §5313–A WCJ shall, within 30 days after the case is submitted, issue and serve a findings and order, along with a summary of the evidence received and relied upon and the reasons or grounds on which the determination is made. [In this case when a summary of the evidence was not prepared, the appellate court was unable to conduct a meaningful review of the Appeals Board's order, the appellate court properly annulled the order and remanded the case to the Appeals Board for preparation of a summary of the evidence and a new order based on that evidence.] Shahiram Sharareh v. Workers' Compensation Appeals Board, City of Lafayette 9 WCAB Rptr. 10,339 ___Cal.App.4th___

WCAB PROCEDURE - Statute of limitations–Under Labor Code §5405, an injured worker has one year from the date of injury to file a workers' compensation claim. The statute of limitations is the same for cumulative trauma cases except that the date of injury is the date on which the employee first suffered from the disease or injury and, either knew, or in the exercise of reasonable diligence should have known, that the disability was caused by employment. ___Cal.App.4th___

WCAB PROCEDURE - Power to rescind an order–Under Labor Code §5803, good cause exists to rescind an order when there is some circumstance unknown to the court at the time it made the original order, which renders such original order inequitable. (See Pullman Co. v. Industrial Acc. Com. (Mira) (1946) 28 Cal.2d 379.) Colton Joint Unified School District v. Workers' Compensation Appeals Board (Wilina Webster) 9 WCAB Rptr. 10,319 [Writ Denied]

WCAB PROCEDURE - Reimbursement for benefits paid by mistake–When applicant's attorney was aware that the award was not final when applicant received a check for $127,760.00 sent to him by State Fund and after being so apprised by his attorney, applicant negotiated the check, applicant's expenditure of the money was not in good faith and under these circumstances it would not be proper to allow applicant to retain the money erroneously sent to him. (See Christian v. Workers' Comp. Appeals Bd. (2002) 4 WCAB Rptr. 10,105 [writ denied].) George Kellner v. Workers' Compensation Appeals Board, California Department of Corrections and Rehabilitation and State Compensation Insurance Fund 9 WCAB Rptr. 10,298 [Writ Denied]

WCAB PROCEDURE - Should an en banc decision issued after the Appeals Board panel issued its decision but before the filing of a petition for writ of review be applied to the case? [Writ Granted]

WCAB PROCEDURE - Guardian ad litem fees–May a guardian ad litem appointed by a WCJ, and also appointed as a conservator by the Superior Court, be reimbursed for those medical services, which would be allowable under Labor Code §4600, as long as she does not simultaneously claim reimbursement for those services in her role as conservator?Ruth Ann Prokosch as Guardian ad Litem for John Perry Hodgman v. Workers' Compensation Appeals Board, Community Care Center 9 WCAB Rptr. 10,291 ___Cal.App.4th___

WORKERS' COMPENSATION FRAUD - Insurance Code §1871.4(a)(1)–Expert witness testimony on the issue of malingering–Physicians can appropriately testify in workers' compensation fraud cases as to the elements of malingering, as long as they do not express the direct and personal opinion that a particular defendant had the specific intent to defraud. (See People v. Adan (2000) 77 Cal.App.4th 290. 2 WCAB Rptr. 10,029.) ___Cal.App.4th___

WORKERS' COMPENSATION FRAUD - Insurance Code §1871.4(a)(4)–Restitution–Fraudulent workers' compensation claims involve not just the monies paid to the individual but also payment for services, hospital or doctor records, X-ray, test results, medical-legal expense and other evidence of loss, injury, or expense or payment. [At the time of imposition of sentence, the trial court ordered restitution in an amount to be determined at a later restitution hearing. After a hearing was conducted, the trial court found the appropriate amount of restitution to be $81,449.47. This amount was not the value of all benefits, which totaled $130,948.15. The trial court concluded that the amount of restitution included the benefits paid when the defendant was physically able to return to work, but he continued to falsely assert he was unable to work.] People v. Juan Alberto Pacini 9 WCAB Rptr. 10,277 ___Cal.App.4th___

WCAB PROCEDURE - The doctrine of res judicata precludes parties or their privies from relitigating a cause of action that has been finally determined by a court of competent jurisdiction. For the doctrine to apply, the issue decided in the prior adjudication must be identical with the one presented in the later action. (See Azadigian v. Workers' Comp. Appeals Bd. 7 Cal.App.4th 372) [In this case, the issue decided in the first proceeding was whether the applicant was entitled to self-procured expenses with regard to specific treatment, while the second proceeding involved the issue of the need for further medical treatment.] [Writ Denied]

WCAB PROCEDURE - Continuing jurisdiction to enforce an award of medical treatment-An order enforcing an award for medical treatment is neither a rescission, alteration or amendment of the award. The power of the appeals board to enforce such an award is not limited by the five-year period for rescinding, altering or amending an award. (See Kaufman v. Workers' Comp. Appeals Bd. (1969) 273 Cal.Ap.2d 829.) [Writ Denied]

WCAB PROCEDURE - Developing the medical record-When the medical record requires further development, the preferred procedure is first to seek supplemental opinions from physicians who have already reported in the case. If supplemental reports or depositions of the previously reporting physicians cannot or do not sufficiently develop the record, an agreed medical evaluator may be considered. Finally, if none of these options succeeds or is possible, the WCJ may then appoint a medical examiner. (See McDuffie v. Los Angeles County Metropolitan Transit Authority (2002) 4 WCAB Rptr. 10,081.) [In this case, the WCJ properly ordered the parties to select physicians with medical specialties relevant to the issue of future medical care involving scalp and podiatry issues.] Barbara Van Orden v. Workers' Compensation Appeals Board, Arnold Sank & Associates 9 WCAB Rptr. 10,280 [Writ Denied]

WCAB PROCEDURE - Recovery of expert witness fees–Labor Code –5811–Future earning capacity is relevant to determining the percentage of permanent disability under the 2005 rating schedule under Labor Code §4660(a). Since future earning capacity was at issue squarely presented as a result of applicant's contention that the 2005 schedule applied and therefore it was proper to award expert witness fees of a vocational rehabilitation expert who opined as to the issue of diminished future earning capacity. Lyngso Garden Materials v. Workers' Compensation Appeals Board (Vincente Ruiz) 9 WCAB Rptr. 10,259 ___Cal.App.4th___

WCAB PROCEDURE - Agreed medical evaluators–An agreed medical evaluator's opinion should ordinarily be followed unless there is a good reason to find that opinion unpersuasive. (See Power v. Workers' Comp. Appeals Bd. (1986) 197 Cal.App.3d 775.) [Writ Denied]

WCAB PROCEDURE - Failure of the District Office to properly file and assign a case number-The Appeals Board is a court of limited jurisdiction with only the powers granted to it by statute. But certain implied or inherent powers are incidental to the exercise of its statutory powers, including the power to correct clerical errors and inadvertent omissions. Pizza Hut v. Workers' Compensation Appeals Board (Yurity Babayants) 9 WCAB Rptr. 10,267 [Writ Denied]

WCAB PROCEDURE - Credibility of witnesses–A WCJ's findings regarding the credibility of a witness are entitled to great weight, but in this case the WCJ made no findings regarding the applicant's credibility, and did not comment upon the applicant's credibility in either the Opinion on Decision or the Report and Recommendation on Petition for Reconsideration. County of El Dorado v. Workers' Compensation Appeals Board (Teresa Farrer) 9 WCAB Rptr. 10,268 [Writ Denied]

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. ___Cal.App.4th___

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.) Daniel Vera v. Workers' Compensation Appeals Board, Sapper Construction 9 WCAB Rptr. 10,242 ___Cal.App.4th___

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).) ___Cal.App.4th___

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. City of San Diego v. Workers' Compensation Appeals Board (James Brooks) 9 WCAB Rptr. 10,240 ___Cal.App.4th___

WCAB PROCEDURE - Elements of fraud-For fraud to exist, the following elements must be established: (1) concealment or suppression of a material fact; (2) duty to disclose the material fact; (3) intentional concealment of the material fact with the intent to defraud; (4) the party relying must have been unaware of the true fact and would not have acted as they did if they knew of the concealed or suppressed fact; and (5) the result of the concealment or misrepresentation must have damaged the relying party. (See Roddenberry v. Roddenberry (1996) 44 Cal.App.4th 634.) Shane Edgington v. Workers' Compensation Appeals Board, Landmark Entertainment Group 9 WCAB Rptr. 10,247 . [Writ Denied]

WCAB PROCEDURE - Failure to object to untimely QME report-California Code of Regs. Title 8, §38-If a panel QME report is untimely served, a party has the right to object to the panel QME and request a new panel QME. [In this case, the panel QME did not request an extension when he was unable to issue his report within the statutory 30 days following the examination date, but the applicant did not object to the report until it was received and reviewed and the review revealed the report was unfavorable to the applicant.] Michele Fajardo v. Workers' Compensation Appeals Board, Chiron Corporation 9 WCAB Rptr. 10,249 [Writ Denied]

WCAB PROCEDURE - Close of Discovery–Labor Code §5502 requires that witnesses be disclosed at the Mandatory Settlement Conference. Even though the WCJ ordered the record to remain open so that the employer could depose applicant after the MSC but before trial, this did not entitle the employer to call witnesses who were not disclosed at the MSC. Seton Medical Center v. Workers' Compensation Appeals Board (Margarita Gomez) 9 WCAB Rptr. 10,229 [Writ Denied]

WCAB PROCEDURE - Voluntary payment of benefits is not an admission of liability-Labor Code §4909-Any payment, allowance, or benefit received by an injured worker during the period of his incapacity that was not then due and payable or when there is a dispute or question concerning the right to compensation, shall not, in the absence of any agreement, be an admission of liability for compensation on the part of the employer. Elliot Gabler v. Workers' Compensation Appeals Board, Department of Youth Authority El Paso De Robles School 9 WCAB Rptr. 10,207 [Writ Denied]

WCAB PROCEDURE - Vexatious litigant statute"Code of Civil Procedure §391"Litigation for purposes of the vexatious litigant statute includes workers' compensation proceedings. See Knisley v. Workers' Comp. Appeals Bd. (2000) 1 WCAB Rptr. 10,331 [writ denied].) [In this case the applicant acting in propria persona was repeatedly advised that her claim were barred, and she continued her attempts to litigate a 25-year-old workers' compensation claim.] Dorothy Thompson v. Workers' Compensation Appeals Board, General Motors, Inc. 9 WCAB Rptr. 10,208 [Writ Denied]

WCAB PROCEDURE - Trial of cumulative injury case-Labor Code §5500.5(c)-If there is more than one employer in a claim of occupational disease or cumulative injury, the employee may elect to proceed against one or more employers, and prove the claim against one of the employers named. Although the non-elected employer cannot participate in the proceeding, the non-elected employer has the right to full and complete examination or cross-examination of the witnesses called in supplemental proceedings. Loyola Marymount University v. Workers' Compensation Appeals Board (Patricia Oliver Ferguson) 9 WCAB Rptr. 10,207 [Writ Denied]

WCAB PROCEDURE - Retroactive award of home health care is not a rescinding, altering or amending of an award, but was merely a determination that a recommended form of medical treatment was reasonable and necessary and enforced the prior award of medical treatment. Francisco Valdez v. Workers' Compensation Appeals Board, Timec 9 WCAB Rptr. 10,204 [Writ Denied]

WCAB PROCEDURE - Credit for overpayment of temporary disability overpayments is properly allowed when the payments were made in good faith and the injured worker has benefits due in excess of the compensation payments. (See Cordes v. General Dynamics-Astronautics (1966) 31 Cal.Comp.Cases 429.) Ray Jimenez, Jr. v. Workers' Compensation Appeals Board, Preston Pipeline 9 WCAB Rptr. 10,205 [Writ Denied]

WCAB PROCEDURE - Expedited hearings-Labor Code §5502(b)-Expedited trial proceedings are permitted with reference to issues involving an applicant's entitlement to medical treatment, temporary disability indemnity, vocational rehabilitation services and an applicant's entitlement to compensation from one or more employers, in situations where the employers dispute liability between or among themselves. An expedited hearing may also be set where the injury has been accepted as compensable by the employer and the issues include medical treatment or temporary disability indemnity for a disputed body part or parts. United States Fire Insurance Company v. Workers' Compensation Appeals Board (Phillip Love) 9 WCAB Rptr. 10,206 [Writ Denied]

WCAB PROCEDURE - Trial exhibits-The Division of Workers' Compensation Workers' Compensation Appeals Board Policy and Procedural Manual relating to the filing and organization of trial exhibits allows reports from a single provider to be filed as a single exhibit as opposed to a single exhibit for all medical reports submitted by a party. Fernando's Foods v. Workers' Compensation Appeals Board (Salvador Ruiz) 9 WCAB Rptr. 10,206 [Writ Denied]

WCAB PROCEDURE - WCJ Disqualification–A WCJ's actual and/or appearance of bias solely against an attorney or law firm may be grounds for disqualification. (See Robbins v. Sharp Healthcare (2006) 8 WCAB Rptr. 10,310 (Significant Panel Decision).) [In this case it was found that the applicant's law firm bore no responsibility for placement of an election campaign sign supporting a WCJ for superior court in front of building in which applicant's attorney's law firm was one of ten tenants, and was therefore not grounds for disqualification of the WCJ.] Rialto Concrete Products, Inc. v. Workers' Compensation Appeals Board (Heath Oltman) 9 WCAB Rptr. 10,204 [Writ Denied]

WCAB PROCEDURE - Close of discovery-Labor Code §5502(e)(3)-Discovery closes on the date of the mandatory settlement conference. Evidence not disclosed or obtained thereafter is not admissible unless the proponent of the evidence can demonstrate that it was not available or could not have been discovered by the exercise of due diligence prior to the mandatory settlement conference. City of West Covina v. Workers' Compensation Appeals Board (Anthony Coppi) 9 WCAB Rptr. 10,194 [Writ Denied]

WCAB PROCEDURE - 90-day presumption of compensability–Labor Code §5402(b)–The presumption of compensability is mandatory and not dependent upon whether a party timely raises the provision as an issue. Whenever the presumption's underlying conditions are established by the pleadings, stipulations, judicial notice, or evidence, the trier of fact must adopt the initial assumption set forth by the presumption. See Gee v. Workers' Comp. Appeals Bd. (2002) 96 Cal.App.4th 1418, 4 WCAB Rptr. 10,101.) ___Cal.App.4th___

WCAB PROCEDURE - Concept of substantial medical evidence–Labor Code §5952(d)–To constitute substantial evidence, a medical opinion must be predicated on reasonable medical probability and must set forth the reasoning behind the physician's opinion, not just his conclusion (See Chu v. Workers' Comp. Appeals Bd. (1996) 49 Cal.App.4th 1176.). A medical opinion is not substantial evidence if it is based on facts no longer germane, on inadequate medical histories or examinations, or incorrect legal theories, or on surmise, speculation, conjecture or guess. (See Hegglin v. Workers' Comp. Appeals Bd. (1971) 4 Cal. 3d 152.) IMC Chemical, Inc. v. Workers' Compensation Appeals Board (Steven L. Smith) 9 WCAB Rptr. 10,168 ___Cal.App.4th___

WCAB PROCEDURE - By executing a compromise and release, an injured worker is barred from reopening his workers' compensation claim in the absence of fraud or bad faith. (See City of Anaheim v. Workers' Comp. Appeals Bd. (1982)Amcom Insurance Inc. v. Jeremy Atkinson 9 WCAB Rptr. 10,169 ___Cal.App.4th___

WCAB PROCEDURE - When findings and award are amended, does the time for filing a petition for reconsideration run from the time of service of the amended findings and award? Seabright Insurance Company v. Workers' Compensation Appeals Board (Diane Fitzpatrick) 9 WCAB Rptr. 10,176 [Writ Granted]

WCAB PROCEDURE - Guardian ad litem fees–May a guardian ad litem appointed by a WCJ, and also appointed as a conservator by the Superior Court, be reimbursed for those medical services that would be allowable under Labor Code §4600, as long as she does not simultaneously claim reimbursement for those services in her role as a conservator? Ruth Ann Prokosch as Guardian ad Litem for John Perry Hodgman v. Workers' Compensation Appeals Board, Community Care Center 9 WCAB Rptr. 10,157 [Writ Granted]

WCAB PROCEDURE - Recoverable costs–Did the Appeals Board properly disallow costs of vocational rehabilitation consultant's report under Labor Code §5811? Jim Barr v. Workers' Compensation Appeals Board, Maita Oldsmobile Body Shop, Subsequent Injuries Benefits Trust Fund 9 WCAB Rptr. 10,158 [Writ Granted]

WCAB PROCEDURE - Joint award–In a case where two separate injuries with two separate employers combine to cause applicant temporary disability and need for medical treatment, and both employers refused to pay any benefits until the issue of apportionment of liability was decided, it was proper for the WCJ to issue a joint and several award against both defendants and direct the employer with substantial interest in the outcome to pay ongoing disability and provide medical treatment subject to the right of contribution from the other employer to be decided in separate deferred proceedings. (See Fiberboard Paper Products Corp. v. Ind. Acc. Com. (Beezley) (1965) 63 Cal.3d 65.) California Insurance Guarantee Association v. Workers' Compensation Appeals Board, Flagstar Corporation dba Denny's Inc., (Valerie Gill) 9 WCAB Rptr. 10,162 [Writ Denied]

INJURY - Presumption of compensability–Labor Code §5402–If liability is not rejected within 90 days after the date the claim form is filed, the injury shall be presumed compensable. (See Honeywell v. Workers' Comp. Appeals Bd. (Wagner) (2005) 34 Cal.4th 24, 7 WCAB Rptr. 10,067.) That the employer promptly and in good faith accepted liability for the injury and provided benefits does not negate the employer's duty to investigate the claim. (See Williams v. Workers' Comp. Appeals Bd. (1999) 74 Cal.App.4th 1260.) Redgwick Construction v. Workers' Compensation Appeals Board (Douglas Thomas) 9 WCAB Rptr. 10,162 [Writ Denied]

WCAB PROCEDURE - Conflicting lines of authority–Where a conflict exists between two or more published opinions of different Courts of Appeal, the Appeals Board may choose between the conflicting lines of authority until either the Supreme Court resolves the conflict or the legislature clears up the uncertainty by legislation. (See Auto Equity Sales v. Superior Court (1962) 57 Cal.2d 450.) [In this case iion of permanent disability in a case involving nonindustrial preexisting conditions, the Appeals Board panel deferred the election of which line of authority to follow pending a decision by the Supreme Court.) Ismael Paredes v. Workers' Compensation Appeals Board, Foutonnet Farms 9 WCAB Rptr. 10,127 [Writ Denied]

WCAB PROCEDURE - Expedited hearings–Labor Code §5502(b)–Expedited hearings shall be held and a determination as to the rights of the parties shall be made and filed within 30 days after a declaration of readiness to proceed is filed if the issues in dispute include entitlement to: (1) temporary disability, (2) medical treatment, (3) vocational rehabilitation services or the termination of an employer's liability to provide vocational rehabilitation services, (4) compensation from one or more responsible employers when two or more employers dispute liability as among themselves, and (5) any other issues required an expedited hearing and determination as prescribed by the rules and regulations of the Administrative Director. [In this case, the WCJ properly limited the findings in an expedited hearing to entitlement to additional temporary disability due to further surgery for an industrial hand injury and entitlement to the additional hand surgery. The WCJ properly excluded in the expedited hearing concerning the existence of a compensable consequence psychological injury.] Maria Agredano v. Workers' Compensation Appeals Board, DeFrancesco & Sons,Inc. 9 WCAB Rptr. 10,123 ___Cal.App.4th___

WCAB PROCEDURE - Credit for third-party recovery–Labor Code §3861–In a workers' compensation proceeding, the employer is generally entitled to credit for the injured employee's net recovery in a third-party case. [In this case, the employee's third-party recovery involved one of two industrial injuries, the employer sought credit against temporary disability indemnity payments for both industrial injuries, and the parties stipulated that the credit would apply only to the last injury. The credit of the third-party recovery was properly denied.] A.C. Transit District v. Workers' Compensation Appeals Board (James Kyle) 9 WCAB Rptr. 10,132[Writ Denied]

WCAB PROCEDURE - Vocational rehabilitation expert fees–Labor Code §5811–The Appeals Board is authorized pursuant to Labor Code §5811 to award reasonable costs incurred by an injured worker in prosecuting a claim for workers' compensation benefits. See Johnson v. Workers' Comp. Appeals Bd. (1984) 37 Cal.3d 235.) [In these cases, the WCJ properly awarded vocational rehabilitation expert witness fee to be recovered from the Subsequent Injuries Benefits Trust Fund.] John Rea, as acting Director of the Department of Industrial Relations v. Workers' Compensation Appeals Board (Alberto Dias) 9 WCAB Rptr. 10,133 John Rea, as acting Director of the Department of Industrial Relations v. Workers' Compensation Appeals Board (Dimitrios Dabanian) 9 WCAB Rptr. 10,133[Writ Denied]

WCAB PROCEDURE - Discovery in administrative proceedings-There is no absolute right to pretrial depositions or other pretrial discovery in administrative proceedings. (See Cimarusti v. Superior Court (2000) 79 Cal.App.4th 799.) There is no basic constitutional right to pretrial discovery in administrative proceedings. (See Mohilef v. Janovici (1996) 51 Cal.App.4th 267.) [In this case, the employer sought applicant's deposition the day before an expedited hearing on the issue of authorization for a second shoulder surgery four years after the original injury. Given the statutorily mandated time constraints, depositions often are not allowed prior to an expedited hearing.] SGL Carbon v. Workers' Compensation Appeals Board (Eric Pace) 9 WCAB Rptr. 10,135 [Writ Denied]

WCAB PROCEDURE - Credibility of witnesses-The trial judge has the paramount responsibility to evaluate the credibility of witnesses. (See Garza v. Workers' Comp. Appeals Bd. (1970) 3 Cal.3d 312.) [In this case, the medical reports were consistent with the injured worker's description of the cause of the injury and the areas of impeachment raised by the employer to question his credibility were collateral facts only and did not undermine the overall credibility of the injured worker's testimony.] Raymond Shieh as substantial shareholder Sysom International Enterprises, Illegally Uninsured v. Workers' Compensation Appeals Board (Giovanni Israel Estrella) 9 WCAB Rptr. 10,135 [Writ Denied]

WCAB PROCEDURE - Selection of an employer or carrier to administer an award–The selection of an employer or carrier to administer an award is a matter of discretion on the part of the Appeals Board. (See General Ins. Co. v. Workers' Comp. Appeals Bd. (Sale) (1980) 104 Cal.App.3d 278.) The Appeals Board has authority to modify the appointment of an administrator and the exercise of such authority does not constitute a modification of the award; it is simply a modification of the administrator. [Writ Denied]

WCAB PROCEDURE - Reserving issues taken off calendar–It is not necessary when a WCJ orders the issue of temporary disability off calendar to reserve the issue as to whether or not an injured worker is entitled to increased temporary disability indemnity paid more than two years after the date of injury. The law is clear that any payment of temporary disability benefits or vocational rehabilitation temporary disability benefits paid more than two years from the date of injury are automatically subject to the increase provided by Labor Code §4661.5. Law Offices of Jeffrey L. Green v. Workers' Compensation Appeals Board, Norman Bell Enterprises, Inc. (Marcus Cazares) 9 WCAB Rptr. 10,134 [Writ Denied]

WCAB PROCEDURE - Credit for overpayment of permanent disability indemnity–Labor Code §4909–The Appeals Board may allow a credit for any payment, allowance or benefit paid by an employer to an injured worker when it was not then due and payment or when there was a dispute or question concerning the right to compensation. Equitable principles should be applied favoring allowance of a credit if the credit is small and does not cause a significant interruption of benefits. Allowance for credit or overpayment of one benefit against a second benefit can be disruptive and in some cases totally destructive of the purpose of the second benefit. (See Maples v. Workers' Comp. Appeals Bd. (1980) 111 Cal.App.3d 827.) [In this case, credit for overpayment of permanent disability indemnity was not allowed against an award of future medical treatment.] Act 1 Personnel Services v. Workers' Compensation Appeals Board (Rebecca Denny) 9 WCAB Rptr. 10,113 [Writ Denied]

WCAB PROCEDURE - Good-faith personnel action defense–A good-faith personnel action may elude precise definition or a precise set of rules, but it exists when a regular and routine employment event is carried out in a reasonable manner with no hint of improper motive. To be in good faith, the personnel action must be done in a manner that is lacking outrageous conduct; is honest and with a sincere purpose; is without an intent to mislead, deceive, or defraud; and is without collusion or unlawful design. (See City of Oakland v. Workers' Comp. Appeals Bd. (Gullet) (2002) 99 Cal.App.4th 261, 4 WCAB Rptr. 10,195.) Judith Edgar v. Workers' Compensation Appeals Board, Home Depot 9 WCAB Rptr. 10,118 [Writ Denied]

WCAB PROCEDURE - Rebuttal of recommended rating-A vocational rehabilitation expert's testimony is proper rebuttal to a recommended rating during the cross-examination of the rater. (See Butler v. Workers' Comp. Appeals Bd. (2005) 70 Cal.Comp.Cases 628 [writ denied].) [In this case, the rater's testimony was not rebutted when the rater relied on general custom, practice and procedure, and mirrored the 1997 Schedule for Rating Permanent Disability, which stated that restrictions involving atmospheric working conditions may be given consideration and the disability precluding exposure to dust and fumes generally takes a 10% standard.] Sylvia Fernandez v. Workers' Comp. Appeals Bd. Santa Ana Unified School District 9 WCAB Rptr. 10,115 [Writ Denied]

WCAB PROCEDURE - Setting aside compromise and release agreement–There is continuing jurisdiction to rescind, alter, or amend any order, decision or award if a petition to reopen is filed within five years of the date of injury and good cause to reopen is alleged and shown. (See Fidelity & Cas. Co. of New York v. Workers' Comp. Appeals Bd. (1980) 103 Cal.App.3d 1011.) Good cause to reopen may be alleged and shown by fraud or undue influence, or excusable mistake of fact or law or inadvertence, and depends largely upon the circumstances of each case. (See Nicky Blair's Restaurant v. Workers' Comp. Appeals Bd. (1980) 109 Cal.App.3d 941.) David Phillips v. Workers' Compensation Appeals Board, On Line Communications 9 WCAB Rptr. 10,108 ___Cal.App.4th___

WCAB PROCEDURE - Reopening for good cause–Labor Code 5803–The Appeals Board has the right to reopen a matter even five years after the date of injury it there is intrinsic fraud or mistake. A matter may be reopened when the stipulations were entered into through inadvertence, excusable neglect, fraud, mistake of law or fact. The Appeals Board may also act if special circumstances exist rendering it unjust to enforce the stipulation. (See Smith v. Workers' Comp. Appeals Bd. (1985) 168 Cal.App.3d 1160.) Edwin Rees v. Workers' Compensation Appeals Board, Chevron USA, Inc. 9 WCAB Rptr. 10,117 [Writ Denied]

WCAB FRAUD - Criminal conviction of workers' compensation fraud releases liability for further workers' compensation benefits–Insurance Code §1871.4–Absent objective evidence of an injury other than applicant's representation that he was injured, the employer is released from further liability for further workers' compensation benefits. (See Tensfeldt v. Workers' Comp. Appeals Bd. (1998) 66 Cal.App.4th 116.) Paul Christianson v. Workers' Compensation Appeals Board, County of Riverside 9 WCAB Rptr. 10,099 [Writ Denied]

WCAB PROCEDURE - Appeals Board not bound by stipulations of the parties–Labor Code §5702 allows parties to stipulate to facts in writing and file such stipulations with the Appeals Board. The WCJ may base an award on the stipulations or set the matter for hearing to take further testimony or investigate the matter further in making a final determination. The WCJ is not bound by stipulations prepared by the parties. (See Huston v. Workers' Comp. Appeals Bd. (1979) 95 Cal.App.3d 856.) Workrite Uniform/Golden Eagle Ins. Co. v. Workers' Compensation Appeals Board (Antonieta Bernardino) 9 WCAB Rptr. 10,098 [Writ Denied]

WCAB PROCEDURE - Old v. new Permanent Disability Rating Schedule–Labor Code §4660(d)–For injuries occurring before the adoption of the new rating schedule on January 1, 2005, the permanent disability entitlement shall be determined by application of the new Permanent Disability Rating Schedule, unless one of the exceptions enumerated in Labor Code §4660(d) is applicable. (See Aldi v. Carrm McClellan, Ingersoll, Thompson & Hern (2006) 8 WCAB Rptr. 10,199 [en banc].) Maria Alvarado-Salas v. Workers' Compensation Appeals Board, McDonald's 9 WCAB Rptr. 10,085 [Writ Denied]

WCAB PROCEDURE - Application of old vs. new rating schedule–Labor Code §4660(d) provides three separate circumstances in which permanent disability for an industrial injury before January 1, 2005 is determined under the old schedule, rather than under the new schedule. One circumstance is a report by a treating physician indicating the existence of permanent disability. [In this case, the treating physician's report stating the injured worker had permanent disability on a preliminary basis was determined not to be the same as "the existence of permanent disability" as required by Labor Code §4660(d).] Daniel Vera v. Workers' Compensation Appeals Board, Sapper Construction Company 9 WCAB Rptr. 10,082 [Writ Denied]

WCAB PROCEDURE - Spinal surgery second-opinion process-Labor Code §4062(b)-The employer is not liable for medical treatment costs for the disputed surgical procedure, whether through a lien filed with the Appeals Board or through a self-procured medical expense, or for period of temporary disability resulting from the surgery, if the disputed surgical procedure is performed prior to completion of the second-opinion process. Sacramento County Board of Education v. Workers' Compensation Appeals Board (Kim Burnett) 9 WCAB Rptr. 10,086 [Writ Denied]

WCAB PROCEDURE - Did the Appeals Board err when it concluded that the applicant's continuous trauma injury was not barred by the statute of limitations and that the injury was AOE/COE and properly supported by substantial medical evidence? County of San Bernardino v. Workers' Compensation Appeals Board (Robert Schroeder) 9 WCAB Rptr. 10,076 [Writ Granted]

WCAB PROCEDURE - Apportionment analysis by physician–Labor Code §4663–A medical opinion to meet the standards of Labor Code §4663 must explain what approximate percentage of the permanent disability was caused by the direct result of the injury arising out of and in the course of employment and what approximate percentage of the permanent disability was caused by other factors both before and subsequent to the industrial injury. Lawrence M. Markham v. Workers' Compensation Appeals Board, Warner Bros. Studios, Inc., Entertainment Partners, Inc. 9 WCAB Rptr. 10,064 [Writ Denied]

WCAB PROCEDURE - Application of old vs. New Permanent Disability Rating Schedule–Labor Code §4660(d)-A statement in a report of a treating physician that an applicant has permanent disability, but that her condition is not yet permanent and stationary, is sufficient to trigger the use of the old rating schedule. WCAB PROCEDURE - Application of old vs. New Permanent Disability Rating Schedule–Labor Code §4660(d)– Because the employer's duty to provide notice under Labor Code §4061 arises with the first payment of temporary disability indemnity, if the first date of compensable temporary disability occurred prior to January 1, 2005, the former Permanent Disability Rating Schedule applies to determine the extent of permanent disability. (See Josh Pendergrass v. Duggan Plumbing and State Compensation Insurance Fund (2006) 9 WCAB Rptr. 10,051 [en banc].) Washington Mutual Card Services v. Workers' Compensation Appeals Board (Stephanie Gaines-Hills) 9 WCAB Rptr. 10,066 [Writ Denied]

WCAB PROCEDURE - Application of old vs. New Permanent Disability Rating Schedule–Labor Code §4660(d)– Because the employer's duty to provide notice under Labor Code §4061 arises with the first payment of temporary disability indemnity, if the first date of compensable temporary disability occurred prior to January 1, 2005, the former Permanent Disability Rating Schedule applies to determine the extent of permanent disability. (See Josh Pendergrass v. Duggan Plumbing and State Compensation Insurance Fund 2006 9 WCAB Rptr. 10,051[en banc].) [The distinction is made between when the duty arises and when the duty is required to be executed. The duty arises when the first payment of temporary disability indemnity is made and the execution of that duty occurs when the last payment of temporary disability indemnity is made. If there is not temporary disability involved in a case, no section 4061 duty arises.] Fidelity and Guaranty Insurance Company v. Workers' Compensation Appeals Board (Dhanga Shayesteh) 9 WCAB Rptr. 10,067 [Writ Denied]

WCAB PROCEDURE - Utilization review– May an employer who does not timely act on an injured worker's medical treatment request under the utilization review process set forth in Labor Code section 4610 nevertheless obtain review of the treatment request under the more general dispute resolution procedures set forth in Labor Code section 4062? Brice Sandhagen v. Workers' Compensation Appeals Board 9 WCAB Rptr. 10,060 [Writ Granted]

WCAB PROCEDURE - Labor Code §5804 forbids altering, amending or rescinding an award more than five years after the date of injury. The administration of an award is only a ministerial function and changing administrators does not equate to altering, amending or rescinding an award. (See Sherman Loehr Custom Tile v. Workers' Comp. Appeals Bd. (Cooke) (2003) 5 WCAB Rptr. 10,327.) Krause Custom Crafted Furniture v. Workers' Compensation Appeals Board (Sima Khodavandi) 9 WCAB Rptr. 10,065 [Writ Denied]

WCAB PROCEDURE - Appellate review–The appellate court's sole obligation under Labor Code §5952 is to review the entire record to determine whether the Appeals Board's conclusion was supported by substantial evidence. (See LeVesque v. Workers' Comp. Appeals Bd. (1970) 1 Cal.3d 627.) The term 'substantial evidence' means evidence which if true has probative force on the issues and is more than a mere scintilla, and means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. (See Braewood Convalescent Hospital v. Workers' Comp. Appeals Bd. (Bolton) 34 Cal.3d 159.) Saticoy Lemon Association v. Workers' Compensation Appeals Board (Angie Gutierrez) 9 WCAB Rptr. 10,065 [Writ Denied]

WCAB PROCEDURE - Application of old Permanent Disability Rating Schedule-Labor Code §4660(d)-Must a comprehensive medical-legal report indicate the existence of permanent disability to entitle an injured worker to be rated under the old rating schedule? Alameda County Social Services v. Workers' Compensation Appeals Board (Ethel Jackson) 9 WCAB Rptr. 10,056 [Writ Granted]

WCAB PROCEDURE - Application of old Permanent Disability Rating Schedule-Labor Code §4660(d)-Did the Appeals Board err when it concluded that for the old rating schedule to apply, there must be a comprehensive medical-legal report issued prior to January 1, 2005 and that the report must show the existence of permanent disability? City of San Diego v. Workers' Compensation Appeals Board (James Brooks) 9 WCAB Rptr. 10,057 [Writ Granted]

WCAB PROCEDURE - Employer's response to treating physician's recommendation for spinal surgery–In response to a treating physician's recommendation for spinal surgery, an employer has the following options: (1) authorize the surgery, (2) object to the surgery, pursuant to Labor Code §4062(b) by filing a DWC Form 233 within 10 days of receipt of the doctor's recommendation, (3) submit the recommendation to utilization review, or (4) pursue both options 2 and 3, either simultaneously or by filing an objection after a utilization review denial, meeting the timelines for each process. [Writ Denied] WCAB PROCEDURE - Spinal surgery second-opinion process–If the employer has followed the statutory procedures and timelines, and the delay is due solely to the DWC's failure to comply with its obligation under Labor Code §4962(b), there is no reasonable basis for terminating the second-opinion process. The process should be completed and followed by a decision by a WCJ on the merits. Deanna Brasher v. Workers' Compensation Appeals Board, Nationwide Studios 9 WCAB Rptr. 10,047 [Writ Denied]

WCAB PROCEDURE - Applicability of old rating schedule–Labor Code §4660(d)–The requirement that a primary treating physician must issue a report indicating the existence of permanent disability prior to January 1, 2005 for the old rating schedule to be applied does not mean that there must be a finding of permanent and stationary status. To be considered substantial evidence, the report must provide some basis to justify its conclusions. A report that contains only a bare statement of fact or opinion, without a discussion of the underlying basis for reaching that conclusion, cannot constitute substantial evidence. Margarita Valencia Escutia v. Workers' Compensation Appeals Board, Unified Building Maintenance 9 WCAB Rptr. 10,048 [Writ Denied]

WCAB PROCEDURE - Liberal construction –Labor Code §3202–In making its rulings, the Appeals Board should resolve all reasonable doubts in favor of the injured worker in accordance with the liberal construction rule of Labor Code §3202, but this rule does not apply to the burden of proof required by Labor Code §3202.5. Arline Felix v. Workers' Compensation Appeals Board, Dean Culp Trucking 9 WCAB Rptr. 10,049 [Writ Denied]

WCAB PROCEDURE - Applicability of the new permanent disability schedule–To apply the old permanent disability rating schedule to injuries occurring prior to January 1, 2005, when there is either no comprehensive medical-legal report or no report of the treating physician indicating existence of permanent disability. [In this case, the treating physician did not relate the range of motion and pain symptoms to his prediction of permanent disability, and his report did not make any mention of prognosis but instead simply declared that the worker remained temporarily totally disabled.] State Compensation Insurance Fund v. Workers' Compensation Appeals Board (Jose C. Echeverria) 9 WCAB Rptr. 10,023__Cal.App.4th___

WCAB PROCEDURE-Closure of discovery-The statutory conflict between closing discovery at the time of the Mandatory Settlement Conference under Labor Code §5502 and the Appeals Board's continuing obligation to fully develop the record under Labor Code §§5701 and 5902 usually results in a finding that the discovery limitation prevails over the board duty to develop the record. (See Telles Transportation v. Workers' Comp. Appeals Bd. (Zuniga) (2001) 92 Cal.App.4th 1159, 3 WCAB Rptr. 10,315.) [In this case, there was an absence of a plausible explanation as to why a QME examination could not have been obtained or even scheduled at some point prior to the day of the MSC.] Christy Shank v. Workers' Compensation Appeals Board, Golden Valley Dairy Products/Land o' Lakes 9 WCAB Rptr. 10,033 [Writ Denied]

WCAB PROCEDURE - Admissibility of surveillance film-When a party requests the introduction of evidence not disclosed at the time of the Mandatory Settlement Conference, the party must explain either why the evidence was not earlier available or why it could not have been discovered in the exercise of due diligence. (See San Bernardino Community Hospital v. Workers' Comp. Appeals Bd. (1999) 74 Cal.App.4th 928, 1 WCAB Rptr. 10,027.) Savemart Stores, Inc. v. Workers' Compensation Appeals Board (Christine K. Oneto) 9 WCAB Rptr. 10,033 [Writ Denied]

WCAB PROCEDURE - Personal observations of WCJ-A WCJ as trier of fact may call upon his or her own personal experiences and observations in assessing the credibility of testimony and in making a determination. [In this case, the employer attempted to rebut the level of disability with evidence of post-injury recreational activities involving driving a four-wheel ATV. In his Report and Recommendation, the WCJ commented on his personal experience riding an ATV, which he said was easier to operate than a standard automobile.] George Reed, Inc. v. Workers' Compensation Appeals Board (Arthur Faulkner)} 9 WCAB Rptr. 10,033 [Writ Denied]

WCAB PROCEDURE - The Appeals Board is empowered to adopt reasonable rules of practice and procedure to regulate and prescribe the nature of proof and evidence in workers' compensation cases. (See Crawford v. Workers' Comp. Appeals Bd. (1989) 213 Cal.App.3d 156.) [In this case, the Appeals Board acted within its authority in prohibiting the use of a report generated by an untimely utilization review process in subsequent proceedings challenging the treatment decision.] ___Cal.App.4th___

WCAB PROCEDURE - Utilization review–An employer has discretion to undertake or not undertake utilization review with respect to any particular proposed medical treatment. If an employer does not undertake utilization review, the employer may still object to the proposed medical treatment and the dispute may then be resolved by using the Labor Code §4062 AME/QME procedures. State Compensation Insurance Fund v. Workers' Compensation Appeals Board (Brice Sandhagen) Brice Sandhagen v. Workers' Compensation Appeals Board, State Compensation Insurance Fund 8 WCAB Rptr. 10,347 ___Cal.App.4th___

WCAB PROCEDURE - Failure to raise an issue at the first hearing in which it may properly be raised results in waiver of that issue. (See Travelers Insurance Company v. Workers' Comp. Appeals Bd. (1980) 45 Cal.Comp.Cases 535 [writ denied].) Lodi Memorial Hospital v. Workers' Compensation Appeals Board (Linda Morgan) 8 WCAB Rptr. 10,372 [Writ Denied]

WCAB PROCEDURE - Second opinion for spinal surgery–Labor Code –4062(b) does not allow for further discovery on the issue of a second opinion for spinal surgery. The code section places time limits on the expediency of resolving the issue of spinal surgery. It permits the parties to seek an agreement to use a Board-certified orthopedic surgeon or neurosurgeon to prepare the second-opinion report resolving the disputed surgical recommendation. Examinations must be scheduled on an expedited basis. The second-opinion report must be served on the parties within 45 days. If the second-opinion report recommends surgery, the employer must authorize the surgery. Gateway Chevrolet v. Workers' Compensation Appeals Board (Jeffrey Welch) 8 WCAB Rptr. 10,372 [Writ Denied]

WCAB PROCEDURE - Setting aside compromise and release agreement for alleged fraud–Does substantial evidence support the Appeals Board's finding that an applicant appearing in propria persona had not shown any fraud and therefore the petition to set aside the agreement was properly denied? David Phillips v. Workers' Compensation Appeals Board, On Line Communications 8 WCAB Rptr. 10,368 [Writ Granted]

WCAB PROCEDURE - Credibility assessment by WCJ—The findings of a WCJ on the credibility of a witness are entitled to great weight because of the WCJ's opportunity to observe the demeanor of the witnesses and weigh their statements in connection with their manner on the witness stand. (See Garza v. Workers' Comp. Appeals Bd. (1970) 3 Cal.2d 312.) Dollar Tree Stores, Inc.. v. Workers' Compensation Appeals Board (Juana Holquin) 8 WCAB Rptr. 10,340 [Writ Denied]

WCAB PROCEDURE - Curing defect in Opinion on Decision—A WCJ may cure the failure to provide the grounds for a decision by subsequently specifying the grounds in the Report and Recommendation on Reconsideration required by 8 Cal.Code of Regs. §10860. (See Smales v. Workers' Comp. Appeals Bd. (1980) 45 Cal.Comp.Cases 1026 [writ denied].) Cedars-Sinai Medical Center v. Workers' Compensation Appeals Board (Brett Canavarro) 8 WCAB Rptr. 10,342 [Writ Denied]

WCAB PROCEDURE - Factual findings by WCJ—The Court of Appeal must uphold the Appeals Board when factual findings are substantial and when there is evidence which, when compared with the evidence in the entire record, is more probative. (See Insurance Company of North America v. Workers' Comp. Appeals Bd. (1981) 122 Cal.App.3d 905.) Robin Jackson v. Workers' Compensation Appeals Board, Garden State International Trucks dba Kurtt International Trucks 8 WCAB Rptr. 10,341 [Writ Denied]

WCAB PROCEDURE-Venue—Labor Code §5501.5(c)—When an employer timely objects to the venue based on the county where the employee's attorney maintains his principal place of business, the venue must be changed to the county in which the employee resides on the date of filing or in county where the injury allegedly occurred, or in cumulative trauma and industrial disease claims, where the last alleged injurious exposure occurred. Domino's Pizza and State Compensation Insurance Fund v. Workers' Compensation Appeals Board (Don Kerr) 8 WCAB Rptr. 10,315 ___Cal.App.4th___

WCAB PROCEDURE-Qualified Medical Examiners—The same Qualified Medical Examiner is to be used throughout the entire process of the case to the extent possible. The legislative intent relating to Labor Code sections 4061 through 4067 was to limit the number of examinations and examining doctors, and that an up to date evaluation from the same doctor who previously examined the applicant is required unless the original examining doctor is no longer available. [In this case the employer used one psychiatrist to examine the applicant on certain issues and later used a different psychiatrist as a QME to examine the applicant on other issues.] County of Santa Barbara v. Workers' Compensation Appeals Board (Cathy Rucker) 8 WCAB Rptr. 10,324

WCAB PROCEDURE-Credibility assessment by WCJ—The findings of a WCJ on the credibility of a witness are entitled to great weight because of the WCJ's opportunity to observe the demeanor of the witnesses and weigh their statements in connection with their manner on the witness stand. (See Garza v. Workers' Comp. Appeals Bd. (1970) 3 Cal.2d 312.) Dollar Tree Stores, Inc. v. Workers' Compensation Appeals Board (Juana Holquin) 8 WCAB Rptr. 10,324

WCAB PROCEDURE-Statute of limitations–If the employer fails to provide proper notice to the injured worker regarding his rights and benefits then the statute of limitations is tolled until the employee gains actual knowledge of his rights. The principle is that the statute of limitations is tolled until the employer provides actual notice is not ironclad. (See Kaiser Foundation Hospitals v. Workers' Comp. Appeals Bd. (Martin) (1985) 39 Cal.3d 57. The knowledge can be obtained through constructive notice such as when the injured worker has retained a knowledgeable attorney. (See Cooke v. Workers' Comp. Appeals Bd. (2003) 5 WCAB Rptr. 10,327 [writ denied].) Mark Wanta v. Workers' Compensation Appeals Board, City of Tracy 8 WCAB Rptr. 10,324 [Writ Denied]

WCAB PROCEDURE-Credit for overpayment—The allowance of credit for overpayment of one benefit against liability for another benefit is discretionary. (See 2 California Workers' Compensation Practice 4th (C,E,B,) 2000) §23.43.) [In this case, the employer overpaid permanent disability, and credit against medical treatment was denied because the employer was not entitled to transfer non-apportionable liability for medical treatment back to the injured worker.] County of Yuba v. Workers' Compensation Appeals Board (Sharon Sager) 8 WCAB Rptr. 10,325 [Writ Denied]

WCAB PROCEDURE - The Appeals Board did not err in finding the principle of res judicata did not preclude an allowance of credit for overpayment of attendant care. Robert Doody v. Workers' Compensation Appeals Board, Merli Concrete Pumping, California Insurance Guarantee Association for California Compensation Insurance Co. (in Liquidation) 8 WCAB Rptr. 10,299 ___Cal.App.4th___

WCAB PROCEDURE - Requirement to specify in detail reasons for decision–The Appeals Board's failure to set forth its reasoning in detail constitutes a sufficient basis to annul the decision. (See Le Vesque v. Workers' Comp. Appeals Bd. (1970) 1 Cal.3d 627.) [In this case, a lien for 103 separate interpreting services for various medical and physical therapy sessions was not adequately supported by narrative medical reports.] Paramount Farms v. Workers' Compensation Appeals Board (Martin Lopez) 8 WCAB Rptr. 10,301 ___Cal.App.4th___

WCAB PROCEDURE - Applicability of the new permanent disability schedule–What constitutes a report of the treating physician indicating existence of permanent disability sufficient to permit the application of the old permanent disability rating schedule? State Compensation Insurance Fund v. Workers' Compensation Appeals Board (Jose C. Echeverria) 8 WCAB Rptr. 10,304 [Writ Granted]

WCAB PROCEDURE-Employees of unlicensed subcontractor–If a subcontractor is unlicensed, workers' compensation liability for the subcontractor's employees will be imposed on the general contractor as a matter of law. (See Rinaldi v. Workers' Comp. Appeals Bd. (1987) 196 Cal.App.3d 571.) L & R Construction v. Workers' Compensation Appeals Board (Kerry Evans) 8 WCAB Rptr. 10,308 [Writ Denied]

WCAB PROCEDURE-Sanctions–Labor Code §5813–Monetary sanctions were properly assessed against an attorney for bad faith or frivolous litigation tactics when the attorney made willfully false material misrepresentations in a Petition for Removal. Ira D. Johns v. Workers' Compensation Appeals Board, Smart & Final (John Stephenson) 8 WCAB Rptr. 10,295 [Writ Denied]

WCAB PROCEDURE-Reopen for new and further disability-Labor Code §5410-Good cause to reopen may be shown by excusable mistake of fact. See Colonial Ins. Co. v. Ind. Acc. Com. (1941) 47 Cal.App.2d 487.) Good cause should be based on grounds not within the knowledge of the Appeals Board at the time of the original award, which rendered the award inequitable. (See Nicky Blair's Restaurant v. Workers' Comp. Appeals Bd. (1980) 109 Cal.App.3d 941.) A misdiagnosis that omits a part of the body may constitute good cause to reopen if there was good reason for the facts to be developed after the decision and time for reconsideration. (See Ryan v. Workmen's Comp. Appeals Bd. (1968) 265 Cal.App.2d 654f.) Michael Walker v. Workers' Compensation Appeals Board, Housing Authority, City of Los Angeles 8 WCAB Rptr. 10,272 ___Cal.App.4th___

WCAB PROCEDURE-Petition to reopen for new and further disability–Providing temporary disability indemnity within five years following the injury and the compliance with an award of future medical treatment are an insufficient basis to find constructive notice of a claim for new and further disability. (See generally, County of San Diego v. Workers' Comp. Appeals Bd. (Rojas-Melzer) (2005) 7 WCAB Rptr. 10,119.) Gina Young v. Workers' Compensation Appeals Board, Goleta Union School District 8 WCAB Rptr. 10,280 [Writ Denied]

WCAB PROCEDURE-Attorney fees–Labor Code §4607 permits attorney's fees against a party who has unsuccessfully instituted proceeding to terminate an award of continuing medical treatment. [In this case the Appeals Board rejected an argument that the employer's petition to terminate temporary disability combined with its refusal to authorize the medical treatment recommended by the primary treating physician should be construed a petition to terminate its liability for continuing medical treatment.] Donna Swell v. Workers' Compensation Appeals Board, Verizon 8 WCAB Rptr. 10,280 [Writ Denied]

WCAB PROCEDURE-Failure to raise issue in Petition for Reconsideration–Labor Code §5900–In this case the injured worker suffered both physical and psychiatric injuries and was awarded temporary disability benefits. The employer sought reconsideration on the basis that the worker had not worked for the employer for six months. The Appeals Board reversed the finding of industrial psychiatric injury and the worker thereafter sought an award of the additional period temporary disability. The Appeals Board decision barred collecting benefits for the psychiatric injury but did not affect the award of temporary disability that was based partially on his physical injuries. Having failed to challenge the award of temporary disability in its petition for reconsideration, the award of temporary disability could be enforced. Runaway Tours, Inc. v. Workers' Compensation Appeals Board (Darlene Conklin) 8 WCAB Rtpr. 10,280 [Writ Denied]

WCAB PROCEDURE-Reimbursement for benefits paid by mistake–The Uninsured Employers Fund (UEF), although statutorily precluded from being a source of contribution to insurance carriers, can be required to reimburse an insurance carrier for workers' compensation benefits paid under the mistaken belief that it was liable. John Rea, acting Director of the Department of Industrial Relations as Administrator of the Uninsured Employers Benefits Trust Fund v. Workers' Compensation Appeals Board, Zenith Insurance Company, Jay O. Babb individually and dba Montecito Chevron (Joseph Fischer) 8 WCAB Rptr. 10,261 [Writ Denied]

WCAB PROCEDURE-Medical evaluations-Labor Code §4062.2(e)-If an employee has received a comprehensive medical-legal evaluation under Labor Code §4062, and later ceased to be represented, the employee is not entitled to an additional evaluation. Chen Hale v. Workers' Compensation Appeals Board, Yin McDonalds 8 WCAB Rptr. 10,262 [Writ Denied]

WCAB PROCEDURE-Appeal of a rehabilitation unit decision–Neither the failure to serve a copy of a petition on the Rehabilitation Unit nor reference to a wrong WCAB case number divests the Appeals Board with jurisdiction over an otherwise timely filed appeal. Frank Enoch v. Workers' Compensation Appeals Board, Summit Logistics8 WCAB Rptr. 10,235 ___Cal.App.4th___

WCAB PROCEDURE-Expedited hearings-Labor Code §5502-An expedited hearing is warranted when a bona fide dispute exists as to the provision of medical treatment under Labor Code §5402(c). A determination on an issue raised in an expedited hearing must be made within 30 days after the filing of the declaration of readiness to proceed to expedited hearing. [In this case, the WCJ properly denied a request to defer submission pending a further medical evaluation.] City of Hayward v. Workers' Compensation Appeals Board (Renee Rushworth-McKee) 8 WCAB Rptr. 10,245 [Writ Denied]

WCAB PROCEDURE-Transfer of medical treatment-If an employer or insurer or injured employee objects to the medical determination by the treating physician, the dispute regarding the medical determination made by the treating physician concerning transfer of medical treatment shall be resolved pursuant to Labor Code §4062. Redlands Insurance Company v. Workers' Compensation Appeals Board (Kris Craig) 8 WCAB Rptr. 10,245 [Writ Denied]

WCAB PROCEDURE-Agreed Medical Examiner-It is not improper for an Agreed Medical Examiner to ask the treating physicians about the injured worker's medical treatment as long as these discussions are contained in the AME's report. Such consultations are distinguished from contact by the AME with the parties or their attorneys, which is prohibited.Robinson Montes v. Workers' Compensation Appeals Board, Kodak 8 WCAB Rptr. 10,246 [Writ Denied]

WCAB PROCEDURE-Doctrine of Laches-The doctrine of laches bars a cause of action when one party unreasonably delays in asserting or diligently pursuing a cause of action and the delay prejudiced the other party. (See Piscioneri v. City of Ontario (2002) 96 Cal.App.4th 1037.) Prejudice to the party seeking relief must be shown and prejudice is never presumed. It must be affirmatively demonstrated by the defendant to sustain the burden of proof on the issue. (See New Century Chamber of Commerce . Workers' Comp. Appeals Bd. (2003) 4 WCAB Rptr. 10,109.McDonald's Corporation v. Workers' Compensation Appeals Board (Margaret George<)/i> 8 WCAB Rptr. 10,247 [Writ Denied]

WCAB PROCEDURE-Setting aside an Award based on Stipulation for Request for Award-A unilateral misinterpretation of contractual terms without knowledge by the other party at the time of contracting does not constitute a mistake under Civil Code §1577 [mistake of fact] or Civil Code §1578 [mistake of law] to justify rescission under Civil Code §1689(b)(1). (See Hedging Concepts, Inc. v. First Alliance Mortgage Company (1996) 41 Cal.App.4th 410.) [In this case, applicant claimed that at the time he took the advice of his attorney to enter into the Stipulations with Request for Award he mistakenly believed the Disability Evaluation Unit informal rating had been issued. This was a unilateral mistake of fact that did not justify setting aside the Award based on the Stipulations.] Paul Ligammari v. Workers' Compensation Appeals Board, ACE/USA Insurance Company 8 WCAB Rptr. 10,247 [Writ Denied]

WCAB PROCEDURE-Use of 1997 vs. 2005 rating schedule–Labor Code §4660(d)–The question of whether the 1997 rating schedule or the 2005 rating schedule is applicable to rating permanent disability is governed by Labor Code §4660(d), which provides in pertinent part: "For compensable claims arising before January 1, 2005, the schedule as revised shall apply to the determination of permanent disabilities when there has been either no comprehensive medical-legal report or no report by a treating physician indicating the existence of permanent disability or when the employer is not required to provide the notice required by Labor Code §4061 to the injured worker." (See Aldi v. Carr, McClellan, Ingersoll, Thompson & Horn (2006) 8 WCAB Rptr. 10,199 [en banc].) [In this case, because applicant suffered no wage loss from his industrial injury, the employer did not provide temporary disability indemnity, and was not required to provide any notice pursuant to Labor Code §4061.] Harold Heim v. Workers' Compensation Appeals Board, American Building Maintenance 8 WCAB Rptr. 10,247 [Writ Denied]

WCAB PROCEDURE-Medical reports addressing the issue of apportionment–Labor Code §4663–The mere fact that a physician's report addresses the issue of causation of permanent disability and makes an apportionment determination by finding the approximate respective percentages of industrial and non-industrial causation does not necessarily render the report substantial evidence. (See Escobedo v. Marshalls (2005) 7 WCAB Rptr. 10,142 [en banc].) City of Concord v. Workers' Compensation Appeals Board (Fred Steinkamp) 8 WCAB Rptr. 10,226 [Writ Denied]

WCAB PROCEDURE-Disability rating–To avoid duplication and pyramiding when a single injury causes multiple factors of disability within a single body part, the proper procedure is to combine all of the greater disability with half of the lesser disability. (See Travelers Insurance Company v. Workers' Comp. Appeals Bd. (Graves) 6 WCAB Rptr. 10,080 [writ denied].) In this case, combining all of the 50 standard rating for light work limitation with half of the 8 standard rating for loss of movement of the neck was correct. Republic Indemnity Company v. Workers' Compensation Appeals Board (Carlos Bryand) 8 WCAB Rptr. 10,212 [Writ Denied]

WCAB PROCEDURE-Venue-Labor Code §5501.5(c)-When an employer timely objects to the venue based on the county where the employee's attorney maintains his principal place of business, must the venue be changed to the county in which the employee resides on the date of filing or in county where the injury allegedly occurred, or in cumulative trauma and industrial disease claims, where the last alleged injurious exposure occurred?Domino's Pizza and State Compensation Insurance Fund v. Workers' Compensation Appeals Board (Don Kerr) 8 WCAB Rptr. 10,206 [Writ Granted]

WCAB PROCEDURE-Proceedings after remand to develop the record–In this case, several aspects of the evidentiary record were found to be lacking; the specific gaps cited by the Appeals Board panel concerned permanent disability and apportionment. There was no insufficiency with regard to temporary disability and that issue properly proceeded to trial before the record was developed on the issue of permanent disability and apportionment. (See Grando v. Workers' Comp. Appeals Bd. (1968) 69 Cal.2d 399.) [Writ Denied]

WCAB PROCEDURE-Expedited hearings–Labor Code §5502(b)(1)–An applicant has a right to an expedited hearing to address the issues of temporary disability indemnity payments and the entitlement to medical treatment.Southwest Airlines v. Workers' Compensation Appeals Board (Karen Lock) 8 WCAB Rptr. 10,213 [Writ Denied]

WCAB PROCEDURE-Objection to treating physician's recommendation for spinal surgery–California Code of Regulations, Title 8, §9788.1–The employer's objection to the treating physician's recommendation for spinal surgery must comply with the following requirements: (1) objection on the written form prescribed by the Administrative Director within 10 days of the receipt of the report recommending surgery, (2) specification of the reasons for the objection to the recommended surgical procedure, (3) a declaration under penalty of perjury regarding the date the report containing the treating physician's recommendation was first received by the employer, employer's insurance carrier, or administrator. Power Dodge of Valencia v. Workers' Compensation Appeals Board (Gustavo Gonzalez) 8 WCAB Rptr. 10,213 [Writ Denied]

WCAB PROCEDURE-Joint and several liability for successive injuries–Where successive injuries combine together to cause permanent disability, there is not joint and several liability, but, rather, statutory apportionment applies to resulting permanent disability indemnity so that each injury is liable only for its own directly caused percentage of permanent disability. In contrast, the statutory scheme is different for non-permanent disability indemnity benefits. Where successive injuries combine together to entitle an injured worker to non permanent disability indemnity benefits, then the liability for those benefits is joint and several. (See California Ins. Guarantee Assn. v. Workers' Comp. Appeals Bd. (Weitzman) (2005) 128 Cal.App.4th 307, 7 WCAB Rptr. 10,131.) State Compensation Insurance Fund v. Workers' Compensation Appeals Board, California Insurance Guarantee Association (Conception Martinez 8 WCAB Rptr. 10,214 [Writ Denied]

WCAB PROCEDURE-Credibility of witnesses-The WCJ's findings with respect to the credibility of witnesses are entitled to great weight and should be rejected only on the basis of contrary evidence of considerable substantiality because the judge has the opportunity to observe the demeanor of the witnesses and weigh the statements in connection with their manner on the witness stand. See Bracken v. Workers' Comp. Appeals Bd. (1989) 214 Cal.App.3d 246.) County of Los Angeles v. Workers' Compensation Appeals Board (Janet Riley) 8 WCAB Rptr. 10,197 [Writ Denied]

WCAB PROCEDURE-Denial of continuance of trial–To demonstrate denial of due process when a trial continuance is based on the unavailability of an employer witness, the employer must make an offer of proof as to the testimony of the witness and how that testimony would materially affect the outcome of the case. Overnite Transportation Company v. Workers' Compensation Appeals Board (James Patterson) 8 WCAB Rptr. 10,196 [Writ Denied]

WCAB PROCEDURE-Denial of reconsideration-When the Appeals Board has denied or dismissed a petition for reconsideration on a record containing no new evidence, a party is not newly aggrieved. Therefore, the petitioning party cannot attack the Appeals Board's action by another petition for reconsideration, but must petition the Court of Appeal for a writ of review within 45 days after the petition for reconsideration is denied, or be bound by the Appeals Board's decision. (See Crowe Glass Co. v. Ind. Acc. Com. (Graham) (1927) 84 Cal.App. 287.) Angela Aguilar v. Workers' Compensation Appeals Board, Wausau Insurance Co. 8 WCAB Rptr. 10,197 [Writ Denied]

WCAB PROCEDURE-Doctrine of res judicata precludes parties or their privies from relitigating a cause of action that was finally determined. In this case, Pacific Employers was found liable to provide benefits and one of the necessary findings was that of insurance coverage. (See Solari v. Atlas-Universal Service, Inc. (1963) 215 Cal.App.2d 587.) Pacific Employers/Ace USA Insurance Co. v.Workers' Compensation Appeals Board (Dan Baxter) 8 WCAB Rptr. 10,162 [writ denied]

WCAB PROCEDURE-Credibility of witnesses–A WCJ has the responsibility under Labor Code §5312 of determining the weight of the evidence and the credibility of witnesses. The WCJ may consider: (1) the demeanor of the witness while testifying and the manner in which he testifies, (2) the character of his testimony, (3) the extent of his opportunity to perceive any matter about which he testifies, (4) a statement by the witness inconsistent with any part of his testimony, and (5) his attitude toward the action in which he testifies or toward the giving of testimony. (See Evidence Code §780.)Larry George Electric, Inc. v. Workers' Compensation Appeals Board (Randall Burney) 8 WCAB Rptr. 10,162 [writ denied]

WCAB PROCEDURE-Range of evidence rule–A WCJ may accept evidence of any one expert or choose a permanent disability figure between them based on all the evidence. (See Liberty Mutual Ins. Co. v. Ind. Acc. Comm. (Serafin) (1948) 33 Cal.2d 89.) Therefore, the WCJ is not compelled to endorse all factors of disability described by the evaluating physician to use some of the factors, as corroborated by testimony and the rest of the record. (See U.S. Auto Stores v. Workers' Comp. Appeals Bd. Brenner) (1971) 4 Cal.3d 469.) [Writ Denied]

WCAB PROCEDURE-Post-termination claim–Did the Appeals Board err in rejecting the cumulative injury exception to the post-termination rule under Labor Code §3600(a)(10)? Maria Arciga v. Workers' Compensation Appeals Board, Kendall Jackson Wine Estates, Ltd. 8 WCAB Rptr. 10,192 [Writ Granted]

WCAB PROCEDURE-Rating permanent disability–It is not necessary for the WCJ to refer the permanent disability rating to the Disability Evaluation Unit for a formal rating because a WCJ is an expert in rating permanent disability. (See U.S. Auto Stores v. Workers' Comp. Appeals Bd. Brenner) (1971) 4 Cal.3d 469.) Della Harvin v. Workers' Compensation Appeals Board, San Francisco Municipal Railway 8 WCAB Rptr. 10,196 [Writ Denied]

WCAB PROCEDURE-Successive injuries–Whenever a worker sustains successive industrial injuries to the same part of the body while working for the same employer, and the injuries become permanent and stationary at the same time, the WCJ should render a single award for the combined disability. (See Wilkinson v. Workers' Comp. Appeals Bd. (1977) 19 Cal.3d 491.) Charles R. Groncy, TIG Insurance Co. v. Workers' Compensation Appeals Board (Carol Bettinger) 8 WCAB Rptr. 10,197 [Writ Denied]

WCAB PROCEDURE-Statute of Limitations–For an injured employee to be charged with knowledge that the disability is work-related requires medical confirmation. Whether an employee should have known that a disability was a result of employment is a question of fact. The employer's burden of proof on the issue is not sustained by showing that the employee had symptoms. (See City of Fresno v. Workers' Comp. Appeals Bd. (1985) 163 Cal.App.3d 467.)Los Angeles Unified School District v. Workers' Compensation Appeals Board (Milton Griggs) 8 WCAB Rptr. 10,196 [Writ Denied]

WCAB PROCEDURE-The Appeals Board erred in granting reconsideration when it treated a letter as a petition for reconsideration when the letter did not specify the facts and issues the employer acting in pro per was disputing, the letter was not served on the opposing party, and the letter was not verified under penalty of perjury. Pamela McAuliffe v. Workers' Compensation Appeals Board, Century Graphics 8 WCAB Rptr. 10.173 ___Cal.App.4th___

WCAB PROCEDURE-Award of permanent disability in progressive occupational disease case–When an employee contracts an insidious, progressive occupational disease, the Appeals Board has the power to tentatively rate an employee's permanent disability and order advances based on the tentative ruling. (See California Ins. Guarantee Association v. Workers' Comp. Appeals Bd. (White) (2006) 136 Cal.App.4th 1528, 8 WCAB Rptr. 10,075.) For an employee with an insidious, progressive disease, "permanent and stationary" means that the employee's condition is not reasonably anticipated to change under usual medical standards. City of Calexico v. Workers' Compensation Appeals Board (Rodolfo Valdez) 8 WCAB Rptr. 10,181 [Writ Denied]

WCAB PROCEDURE-Credit for indemnity payments–An employer may not credit payments for permanent partial disability made pursuant to an award as against a later award of total and permanent disability life pension. [In this case, partial permanent disability was initially awarded for a cumulative trauma injury and was intended to compensate the injured worker for the degree to which the injury impaired the ability to compete in the open labor market. The total permanent disability indemnity award was issued later because the medical condition had progressed to the point that the injured worker was unable to compete in the open labor market.] City of San Buena Ventura v. Workers' Compensation Appeals Board (Mary Schulte) 8 WCAB Rptr. 10,181 [Writ Denied]

WCAB PROCEDURE- Attorney's fees–Labor Code §5710–Applicant's attorney reviewed defendants' surveillance video in preparation for trial, not in preparation for applicant's deposition and was therefore not entitled to attorney's fees pursuant to Labor Code §5710. Yong Xing Tan v. Workers' Compensation Appeals Board, New Cheung Hing Restaurant 8 WCAB Rptr. 10,150 [Writ Denied]

WCAB PROCEDURE- Discovery closure–Labor Code §5502(e)(3)–The purpose served by strict enforcement of discovery closure at the MSC is solely the efficiency of the process, not fairness to the parties or a just resolution on the merits. In this case, applicant failed to submit to certain medical tests necessary to determine the cause of his injury, and the Appeals Board determined that it would be unfair to allow applicant to prevail on a technical violation of discovery closure. (See Godinez v. Buffets, Inc. (2004) 6 WCAB Rptr. 10,302 [Significant Panel Decision].) Kenneth Lucas v. Workers' Compensation Appeals Board, Pacific Event Productions, Inc. 8 WCAB Rptr. 10,147 [Writ Denied]

WCAB PROCEDURE¬ Attorney's fees–Labor Code §5710–Applicant's attorney reviewed defendants' surveillance video in preparation for trial, not in preparation for applicant's deposition and was therefore not entitled to attorney's fees pursuant to Labor Code §5710. Yong Xing Tan v. Workers' Compensation Appeals Board, New Cheung Hing Restaurant 8 WCAB Rptr. 10,150 [Writ Denied]

WCAB PROCEDURE¬ Discovery closure–Labor Code §5502(e)(3)–The purpose served by strict enforcement of discovery closure at the MSC is solely the efficiency of the process, not fairness to the parties or a just resolution on the merits. In this case, applicant failed to submit to certain medical tests necessary to determine the cause of his injury, and the Appeals Board determined that it would be unfair to allow applicant to prevail on a technical violation of discovery closure. (See Godinez v. Buffets, Inc. (2004) 6 WCAB Rptr. 10,302 [Significant Panel Decision].) Kenneth Lucas v. Workers' Compensation Appeals Board, Pacific Event Productions, Inc. 8 WCAB Rptr. 10,147 [Writ Denied]

WCAB PROCEDURE- Statutory construction–A statutory amendment is substantive if it imposes new or additional liability or affects existing vested or statutory rights. A statute is procedural, and amendments and repeals will be applied retroactively, if the statute merely changes the means or method of obtaining a remedy. (See Pebworth v. Workers' Comp. Appeals Bd. (2004) 116 Cal.App. 4th 913, 6 WCAB Rpr. 10,083 .) [This case involved the repeal of Labor Code §5405.5 by AB227 which did not contain any express provision providing for retroactive application of the changes. Here the retroactive application of Labor Code §5405.5 would have extinguished applicant's right to seek vocational rehabilitation benefits without opportunity to avoid the extinction of that right.] MGM Construction v. Workers' Compensation Appeals Board (John Lyman) 8 WCAB Rptr. 10,135 [Writ Denied]

WCAB PROCEDURE- Effect of concessions of error by Appeals Board–In this case, in dismissing a petition for removal, the Appeals Board disputed the fact that statutory grounds for reconsideration were stated in the body of the Petition for Removal. The Appeals Board failed to act on the petition within the 60-day time period within which the Appeals Board may act on its own motion to grant reconsideration. The Court of Appeal reversed the dismissal of the removal petition, treated the petition as a petition for reconsideration and remanded the case to the Appeals Board for further proceedings. Steve D. Saiz v. Workers' Compensation Appeals Board, AKH Company, Inc. 8 WCAB Rptr. 10,078 ___Cal.App.4th___

WCAB PROCEDURE- Labor Code §3861—The Appeals Board has equitable power to reallocate the proceeds of a third-party settlement in two situations: (1) when an injured employee and his or her spouse have colluded in a civil case to make a bad-faith and/or fraudulent allocation of the settlement proceeds to defeat the employer's third-party credit rights, and (2) whenever the employee's spouse has received a disproportionate settlement. (See Reid v. Workers' Comp. Appeals Bd. (1995) 60 Cal.Comp.Cases 360.) Quest Micro Services and CNA Casualty of California v. Workers' Compensation Appeals Board (David Kirkeby) 8 WCAB Rptr. 10,077 ___Cal.App.4th___

WCAB PROCEDURE- Notice to compel attendance at a medical examination–8 Cal.Code of Regs. Title 8 §10890(a) states that each petition to compel attendance shall be accompanied by a proof of service showing that the petition was served upon the injured worker, applicant's attorney, and any other liable defendants. Notice to applicant and applicant's attorney of the date when the defendant is walking through the petition is not required, only notice that the defendant is requesting a petition to compel. Margarita Larios v. Workers' Compensation Appeals Board, Deutsh L.A., Inc. 8 WCAB Rptr. 10,086 [Writ Denied]

WCAB PROCEDURE- Treating physician reports–Labor Code §4061.5 and 8 Cal.Code of Regs. §9785–The primary treating physician shall render opinions on all medical issues necessary to determine employee's eligibility for compensation. This includes scope and extent of an employee's need for medical treatment, the decision whether to release employee from care, the point at which employee has reached permanent and stationary status, and the necessity for further or future medical treatment. The primary treating physician is responsible for obtaining all of the reports of secondary physicians and incorporating or commenting upon the findings and opinions of the other physicians in a single report. Georgia Pacific v. Workers' Compensation Appeals Board (Cynthia Samuelson) 8 WCAB Rptr. 10,086 [Writ Denied]

WCAB PROCEDURE- Work restriction imposed as a result of bowel obstruction as a compensable consequence of industrial hernia surgery–In this case, a work restriction of "ready access to bathroom facilities" was an appropriate work restriction recommended by the treating physician, was a standard DEU-recognized, unscheduled work restriction and constituted a reasonable exercise of discretion. (See U.S. Auto Stores v. Workers' Comp. Appeals Bd. (Brenner) (1971) 4 Cal. 3d 469.) Roadway Express v. Workers' Compensation Appeals Board (Carl Christenson) 8 WCAB Rptr. 10,086 [Writ Denied]

WCAB PROCEDURE- 30-day period to render a decision–Labor Code §5313–The Appeals Board or a WCJ must, within 30 days after the case is submitted, make findings upon all facts involved in the controversy and an award, order or decision stating the determination as to the rights of the parties. The 30-day period runs from the date the submission of the application for decision. The same 30-day period applies to matters submitted to arbitration pursuant to Labor Code §5275. (In this case, the arbitrator filed his finding six months after the matter was submitted, but the applicant waived the error by failing to raise it while waiting six months for the arbitrator to issue findings.) Roberta Faeth v. Workers' Compensation Appeals Board, Farmers Insurance Co. 8 WCAB Rptr. 10,093 ___Cal.App.4th___

WCAB PROCEDURE- Did the Appeals Board err in finding the principle of res judicata did not preclude an allowance of credit for overpayment of attendant care? Robert Doody v. Workers' Compensation Appeals Board, Merli Concrete Pumping, California Insurance Guarantee Association for California Compensation Insurance Co. (in Liquidation) 8 WCAB Rptr. 10,098 [Writ Granted]

WCAB PROCEDURE- Disputes over determinations made under the utilization review process–Labor Coce §4610–Utilization review is the statutorily mandated process for review of treatment recommendation by treating physicians. If disputes arise over determinations made under the utilization review process, Labor Code §4610 provides for resolution in accordance with Labor Code §4062. Edward Lafond v. Workers' Compensation Appeals Board, California Highway Patrol Richard Barr v. Workers' Compensation Appeals Board, California Highway Patrol David Jennings v. Workers' Compensation Appeals Board, California Highway Patrol Michael Simone v. Workers' Compensation Appeals Board, California Highway Patrol Alan Wolochuk v. Workers' Compensation Appeals Board, California Highway Patrol 8 WCAB Rptr. 10,100 [Writ Denied]

WCAB PROCEDURE- Order enforcing award of medical treatment is not an alteration, or amendment of the award and is not limited by the five-year period for rescinding, altering or amending the award, and such enforcement may occur more than five years after the date of injury. (See Kauffman v. Workmen's Comp. Appeals Bd. (1960) 273 Cal.App.2d 829.) Jack Fischer v. Workers' Comp. Appeals Bd., Campus Crusade for Christ 8 WCAB Rptr. 10,103 [Writ Denied]

WCAB PROCEDURE- Total permanent disability due to vocational rehabilitation is not feasible–Under LeBoeuf v. Workers' Comp. Appeals Bd. (1983) 34 Cal.3d 234, an applicant can be considered totally permanently disabled if vocational rehabilitation is unfeasible. In this case, the vocational rehabilitation counselor opined that a family farm plan in Mexico was the only viable vocational option because of applicant's age, lack of transferable skills, limited work history, limited education and that he spoke only Spanish and did not have a driver's license. These factors could not be considered under LeBoeuf because they existed before the injury and/or were not caused by the injury. (See Southern v. Workers' Comp. Appeals Bd. (1997) 62 Cal.Comp.Cases 719 [writ denied].) Filomeno Sahagun v. Workers Compensation Appeals Board, Anacapa Berry Farms 8 WCAB Rptr. 10,103 [Writ Denied]

WCAB PROCEDURE- Decision on petition for reconsideration by the Appeals Board–Labor Code §5908.5–Any decision of the Appeals Board granting or denying a petition for reconsideration shall be made by the Appeals Board and shall be in writing, signed by a majority of the Appeals Board members assigned to the case and shall state the evidence relied upon and specify in detail the reasons for the decision. (In this case, both the WCJ and the Appeals Board panel failed to specify the evidence that applicant failed to comply with the applicable statute of limitations.) Save Mart Supermarkets v. Workers' Compensation Appeals Board (Chad Hixson) 8 WCAB Rptr. 10,061___Cal.App.4th___

WCAB PROCEDURE- Exclusion of evidence obtained after the Mandatory Settlement Conference–In this case, the WCJ properly excluded surveillance films obtained after the Mandatory Settlement Conference because the films were not disclosed before trial. (See City of Los Angeles v. Workers' Comp. Appeals Bd. (Marez-Porras) (1994) 59 Cal.Comp.Cases 1062 [writ denied].) Regents of the University of California v. Workers' Compensation Appeals Board (Sharon Murray-Salvador) 8 WCAB Rptr. 10,070 [Writ Denied]

WCAB PROCEDURE- Medical evaluation procedures enacted by SB 899—Labor Code §4062.2—The Appeals Board did not err when it refused to grant reconsideration and/or removal when a WCJ failed to enforce the new medical evaluation procedures set forth in Labor Code §§4060 and 4062.2 but instead required the injured worker to submit to medical evaluation procedures specifically repealed by SB 899. Lourdes Nunez v. Workers' Compensation Appeals Board, Assoluto, Inc. 8 WCAB Rptr. 10,059 ___Cal.App.4th___

WCAB PROCEDURE- PERS retirement and entitlement to Labor Code §4850 benefits–When a member of PERS who is a public safety officer covered by Labor Code §4850 retires, the worker's right to full salary and temporary disability terminates. (See Labor Code §4853, State Comp. Ins. Fund v. Workers' Comp. Appeals Bd. (Freitas) (1972) 26 Cal.App.3d 200.) But under Government Code §21164, a local public safety member may not be retired without his or her consent before the end of the Labor Code §4850 benefit period unless the disability has become permanent and stationary. A police officer's disability is not permanent and stationary within the meaning of Government Code 21164 while he or she is entitled to vocational rehabilitation. (See City of Martinez v. Workers' Comp. Appeals Bd. (Bonito) (2000) 85 Cal.App.4th 601, 3 WCAB Rptr. 10,004.) City of Oceanside v.Workers' Compensation Appeals Board (Richard Woodall) 8 WCAB Rptr. 10,067 [Writ Denied]

WCAB PROCEDURE- Procedure for AME and QME evaluations–The medical evaluation and reporting procedure of former Labor Code §4062, repealed by SB 899, applies where the employee is represented and the date of the industrial injury is prior to January 1, 2005. Manuel Cortez v. Workers' Compensation Appeals Board, C.T. & F., Inc. 8 WCAB Rptr. 10,060 ___Cal.App.4th___

WCAB PROCEDURE- Appointment of independent medical examiner–A WCJ has the discretion in light of the entire record to appoint an independent medical examiner. (See McDuffie v. Los Angeles County Metropolitan Transit Authority (2002) 4 WCAB Rptr. 10,080 [En Banc].)Trojan Battery Company, Inc. v. Workers' Compensation Appeals Board (Juan Carlos Garcia)8 WCAB Rptr. 10,055 [Writ Denied]

WCAB PROCEDURE- Remand by Appeals Board–When an order of the Appeals Board returns a matter to the trial level for further hearing, it is not a final appealable order. (See Minto v. Workers' Comp. Appeals Bd. (1975) 40 Cal.Comp.Cases 313.) Khatchik Yeressian Workers' Compensation Appeals Board, Ralph's Grocery Company 8 WCAB Rptr. 10,054 [Writ Denied]

WCAB PROCEDURE- Substantial medical evidence–An expert opinion based on surmise, speculation, conjecture, or guess is insufficient to support an Appeasl Board determination. (See Place v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.2d 372.) Connie Gunderson v. Workers' Compensation Appeals Board, State of California Department of Corrections 8 WCAB Rptr. 10,055 [Writ Denied]

WCAB PROCEDURE- Supplemental petition for reconsideration–Labor Code §5900(a)-–A supplemental petition for reconsideration must be filed within 25 days of the WCAB order being challenged. Amalia Morales v. Workers' Compensation Appeals Board, St. Francis Medical Center 8 WCAB Rptr. 10,054 [Writ Denied

WCAB PROCEDURE- Surveillance films–In this case, the WCJ properly found that surveillance films clearly showed applicant did not have severe pain to the extent found by the treating physicians because the treating physicians relied on erroneous history and their reports did not constitute substantial evidence on which to justify a finding that applicant was totally disabled. Surveillance films showed multiple movements by the applicant that showed no evidence of any discomfort and/or in direct contradiction to applicant's statements of subjective complaints. Bertha Rangel v. Workers' Compensation Appeals Board, Embassy Suites Hotel 8 WCAB Rptr. 10,039 [Writ Denied

WCAB PROCEDURE- Statute of Limitations–Labor Code §5404–The period for commencing a proceeding for collection of workers' compensation benefits is one year from (1) the date of injury, or (2) expiration of any period covered by payment of benefits, or (3) the date of last furnishing any benefits. The date of injury, except in cases of occupational disease or cumulative injury, is the date the alleged incident or exposure occurred, for the consequences of which compensation is claimed. (In this case, applicant made an oral claim and the employer referred applicant for examination and treatment. After the initial examination and treatment, the employer denied the claim as nonindustrial. Applicant failed to file an application until six years after he had received the notice of denial of the claim.) David Anstrom v. Workers' Compensation Appeals Board, Pestex dba Flea Busters, Inc. 8 WCAB Rptr. 10,039 [Writ Denied

WCAB PROCEDURE- AME and QME medical-reports—Nothwithstanding the enactment of SB 899, for injuries prior to January 1, 2005, Labor Code §4962 continues to provide the procedure by which AME and QME medical-legal reports are obtained in cases involving represented employees. (See Simi v. Sav-Max Foods, Inc. (2005) 7 WCAB Rptr. 10,064 [en banc].) [Writ Denied]

WCAB PROCEDURE- Did the Appeals Board err in treating a letter as a petition for reconsideration when the letter did not specify the facts and issues the employer acting in pro per was disputing, the letter was not served on the opposing party, and the letter was not verified under penalty of perjury? Pamela McAuliffe v. Workers' Compensation Appeals Board, Century Graphics 8 WCAB Rptr. 10,016 [Writ Granted]

WCAB PROCEDURE- Discovery closure—Labor Code §5592(e)—Discovery closes on the date of the Mandatory Settlement Conference. Medical reports discovered or developed after the MSC are not admissible unless the proponent of the reports provides a showing of good cause why the reports could not have been obtained prior to the MSC in the exercise of due diligence. Joanne Spreitzer v. Workers' Compensation Appeals Board, The Boeing Company and McDonnell Douglas Corp. 8 WCAB Rptr. 10,023 [Writ Denied

WCAB PROCEDURE– Doctrine of collateral estoppel– Collateral estoppel or issue preclusion precludes relitigation of issues argued and decided in prior proceedings. The doctrine applies only if the decision in the initial proceeding was final and on the merits and the issue sought to be precluded from relitigation is identical to that decided in the first action and was actually and necessarily litigated in that action. In addition, the party against whom preclusion is sought must be the same as, or in privity with, the party to the first action. (See Lucido v. Superior Court (1990) 51 Cal.3d 335.) Spectra F/X, Inc. v. Workers' Compensation Appeals Board (George Avalon) 7 WCAB Rptr. 10,346 [Writ Denied]

WCAB PROCEDURE– Medical examination– Scheduling of a defense medical examination with a physician who practices a different medical specialty than that of the physician whose opinion is in question after service of a Declaration of Readiness to Proceed and before preparation of a Labor Code §§4061/4062 objection constitutes improper delay tactics. Consolidated Traffic Management Systems v. Workers' Compensation Appeals Board (Gary Trexler) 7 WCAB Rptr. 10,304 [Writ Denied]

WCAB PROCEDURE– New and further disability– The term "new and further disability" has been defined to mean disability that results from some demonstrable change in an employee's condition. Although "new and further disability" may be accompanied by both medical treatment and loss of time at work, neither is required. (See Nicky Blair's Restaurant v. Workers' Comp. Appeals Bd. (1980) 109 Cal.App.3d 941.) Permanente Medical Group v. Workers' Compensation Appeals Board (Maxima Rosales) 7 WCAB Rptr. 10,303 [Writ Denied]

WCAB PROCEDURE– Credibility of witnesses– A WCJ's finding supported by credible or substantial evidence is entitled to great weight because the WCJ has had the opportunity to observe the demeanor of the witnesses and weigh their statements in connection with the issues. (See Garza v. Workers' Comp. Appeals Bd. (1970) 3 Cal.3d 312.) (In this case, the WCJ found the injured worker was a credible witness to the events of the injury. The worker had given the same account of the incident to more than seven doctors, clinics, and hospitals, and the same account was given at trial as when the first complaint was made a year and a half before.) Alea North America Insurance v. Workers' Compensation Appeals Board (Hanaa Gouda) 7 WCAB Rptr. 10,303 [Writ Denied]

WCAB PROCEDURE– Presumption on mailing of pleadings– Evidence Code §641 provides that a letter correctly addressed and properly mailed is presumed to have been received in the ordinary course of mail. This presumption is rebuttable and affects the burden of producing evidence. (In this case, the document not being found in the Appeals Board's file, coupled with the defendant not having received the document, overcame the presumption of timely filing of the document.) David Silver, M.D. v. Workers' Compensation Appeals Board, VIFX/Video Image (Cheryl McQuady) 7 WCAB Rptr. 10,303 [Writ Denied]

WCAB PROCEDURE– Hearing representatives– Traditionally, non-attorneys have been permitted to participate in workers' compensation proceedings. (See 99 Cents Only Stores v. Workers' Comp. Appeals Bd. (Arriaga) (2000) 80 Cal.App.4th 644, 2 WCAB Rptr. 10,189.) There is no requirement that the representative of a party conducting negotiations be an attorney. All parties–defendant insurance companies, third-party administrators, lien claimants and applicant injured workers–are routinely represented and bound by actions of claims examiners, office managers, and paralegals in workers' compensation proceedings. Crestwood Convalescent Hospital v. Workers' Compensation Appeals Board (Stephanie McCulley) 7 WCAB Rptr. 10,302 [Writ Denied]

WCAB PROCEDURE– Employer credit for civil suit settlement– The initial burden of proof in a claim of credit is on the employer. Once the employer establishes the fact and the amount of a civil settlement or judgment in favor of the injured worker, the worker may then seek to prove that employer negligence played a role. (See Martinez v. Associated Engineering & Construction Co. (1979) 44 Cal.Comp.Cases 1012 [en banc].) (In this case, there was insufficient evidence to establish that the injured worker received any civil proceeds because a single lump sum payment settled both the civil action and the serious and willful misconduct claim.) Spectrum Temporary Employees v. Workers' Compensation Appeals Board (Charles Cobley) 7 WCAB Rptr. 10,301 [Writ Denied]

WCAB PROCEDURE– Ex parte communication with AME– Labor Code §4062.3(f) prohibits ex parte communication with an agreed medical evaluator or a qualified medical evaluator selected from a panel. If a party communicates with the AME or QME in violation of this provision, the aggrieved party may elect to terminate the medical evaluation and seek a new evaluation by another QME. (In this case, by prior agreement of the parties, each side was to present an "advocacy" letter to the AME, and this prior agreement obviates any contention that the joint advocacy letter provided by defendants could be regarded as an ex parte communication.) Magdalena Pineda v.