En banc decisions

The Appeals Board previously ordered consolidation of these matters and requested supplemental pleadings. Thereafter, the parties indicated that a resolution was possible and the Appeals Board set these matters for status conference, which occurred on November 4, 2024. At the status conference, the parties entered signed stipulations, including a stipulation to withdraw all petitions pending at the Appeals Board. Accordingly, on November 14, 2024, the Appeals Board issued its Opinion and Decision After Removal, which approved the stipulation to withdraw the petitions pending at the Appeals Board, and rescinded the order of consolidation.

1. HODDINOTT, Steve - ADJ16491268
2. SCATES, Robert - ADJ15884384
3. BENNETT, Pamela - ADJ16161110, ADJ16161057, ADJ16161093
4. DEMERCURIO JR, Cal - ADJ15760386, ADJ18891808
5. SNURE, Dawn - ADJ19153721, ADJ16116250

On September 4, 2024, the Appeals Board issued en banc orders which consolidated multiple cases pending on removal and ordered the parties to produce supplemental petitions in those cases.  Supplemental petitions were timely received and considered. On October 21, 2024, and to assist the parties further, the Appeals Board issued an en banc notice of status conference. Deputy Commissioner Lisa A. Sussman is appointed as the hearing officer for the conference.

1. HODDINOTT, Steve - ADJ16491268 - (Redding - WCJ Cynthia Hermann)
2. SCATES, Robert - ADJ15884384 – (Redding, WCJ Curt Swanson)
3. BENNETT, Pamela - ADJ16161110, ADJ16161057, ADJ16161093 – (Redding, WCJ Mary Sulprizio)
4. DEMERCURIO JR, Cal - ADJ15760386, ADJ18891808 – (Redding, WCJ Mary Sulprizio)
5. SNURE, Dawn - ADJ19153721, ADJ16116250 – (Redding, WCJ Mary Sulprizio)

On September 4, 2024, the Appeals Board issued en banc orders which consolidated multiple cases pending on removal and ordered the parties to produce supplemental pleadings in those cases. In each of the underlying cases, applicant’s attorney, Patrick C. Gorman, seeks either removal or disqualification of the entire Redding and Eureka district offices as relates to a dispute over the division of attorney’s fees between Mr. Gorman, and applicant’s former attorney, Steven D. Riley. Their dispute appears centered upon a contract for the sale of a law practice from Mr. Riley to Mr. Gorman. In each of these cases, the Appeals Board seeks additional information, particularly on the issue of jurisdiction as relates to the contractual claims alleged.

1. HODDINOTT, Steve - ADJ16491268
2. SCATES, Robert - ADJ15884384
3. BENNETT, Pamela - ADJ16161110, ADJ16161057, ADJ16161093
4. DEMERCURIO JR, Cal - ADJ15760386, ADJ18891808
5. SNURE, Dawn - ADJ19153721, ADJ16116250

On August 7, 2024, the Appeals Board issued an en banc decision after removal, which imposed costs and sanctions of $7,500.00 collectively against attorney Susan Garrett (CA BAR #195580) in three (3) instances where she filed petitions for reconsideration with willful intent to disrupt or delay the proceedings of the Workers’ Compensation Appeals Board or with an improper motive, or where such actions were indisputably without merit. The notice of intent issued on June 17, 2024 and Susan Garrett did not respond.

The Appeals Board issued a second order imposing costs and sanctions of $7,500.00 against hearing representative Lance Garrett in three (3) instances where he filed petitions for reconsideration with willful intent to disrupt or delay the proceedings of the Workers’ Compensation Appeals Board or with an improper motive, or where such actions were indisputably without merit. The notice of intent issued on June 17, 2024 and Lance Garrett did not respond.

The Appeals Board found that Susan Garrett and Lance Garrett engaged in sanctionable conduct by filing petitions for reconsideration on or near the day of trial where the petition for reconsideration was from a non-final order setting the matter for trial. The amount of costs was deferred to the parties to adjust with jurisdiction reserved at the trial level in the event of a dispute.

1. Hidalgo, Abel - ADJ13332737
2. Ayala, Maria - ADJ15218980
3. Meza, Marta - ADJ12640295

On August 7, 2024, the Appeals Board issued an en banc decision after removal, which imposed costs and sanctions of $5,000.00 collectively against attorney Susan Garrett (CA BAR #195580) in two (2) instances where she filed petitions for reconsideration with willful intent to disrupt or delay the proceedings of the Workers’ Compensation Appeals Board or with an improper motive, or where such actions were indisputably without merit. The notice of intent issued on June 17, 2024 and Susan Garrett did not respond.

The Appeals Board issued a second order imposing costs and sanctions of $5,000.00 against hearing representative Garrett in two (2) instances where he filed petitions for reconsideration with willful intent to disrupt or delay the proceedings of the Workers’ Compensation Appeals Board or with an improper motive, or where such actions were indisputably without merit. The notice of intent issued on June 17, 2024 and Lance Garrett did not respond.

The Appeals Board found that Susan Garrett and Lance Garrett engaged in sanctionable conduct by filing petitions for reconsideration on the day of trial where every issue raised on reconsideration was an issue to be decided at trial. The amount of costs was deferred to the parties to adjust with jurisdiction reserved at the trial level in the event of a dispute.

1. Guillermo Gonzalez - ADJ12226694
2. Jessica Ordenana - ADJ12414651, ADJ12414992, ADJ12414993

On June 17, 2024, the Appeals Board issued an en banc order consolidating three cases and issued a notice of intention to impose costs and sanctions collectively up to $7,500.00 against attorney Susan Garrett (CA BAR #195580) in three (3) instances where it appeared that she filed petitions for reconsideration with willful intent to disrupt or delay the proceedings of the Workers’ Compensation Appeals Board or with an improper motive, or where it appeared that such actions were indisputably without merit.

The Appeals Board issued a second notice of intention to impose costs and sanctions collectively up to $7,500.00 against hearing representative Lance Garrett in three (3) instances where it appeared that he filed petitions for reconsideration with willful intent to disrupt or delay the proceedings of the Workers’ Compensation Appeals Board or with an improper motive, or where it appeared that such actions were indisputably without merit. Garrett has 20 plus 5 days to file a response to the notice.

In the en banc notice of intent, the Appeals Board makes clear that an order setting a matter for trial is not a final order as it does not resolve any threshold issue. Where a party files a petition for reconsideration without good cause, a notice of intent to impose sanctions may issue.

On June 17, 2024, the Appeals Board issued an en banc order consolidating two cases and issued a notice of intention to impose costs and sanctions collectively up to $5,000.00 against attorney Susan Garrett (CA BAR #195580) in two (2) instances where it appeared that she filed petitions for reconsideration with willful intent to disrupt or delay the proceedings of the Workers’ Compensation Appeals Board or with an improper motive, or where it appeared that such actions were indisputably without merit.

The Appeals Board issued a second notice of intention to impose costs and sanctions collectively up to $5,000.00 against hearing representative Lance Garrett in two (2) instances where it appeared that he filed petitions for reconsideration with willful intent to disrupt or delay the proceedings of the Workers’ Compensation Appeals Board or with an improper motive, or where it appeared that such actions were indisputably without merit. Garrett has 20 plus 5 days to file a response to the notice.

The Appeals Board issued the en banc notice of intent where it appeared that Susan Garrett and Lance Garrett filed petitions for reconsideration solely intended to delay a trial from proceeding.  It appeared that they filed petitions for reconsideration on the day of trial and that every issue raised on reconsideration was an issue to be decided at trial.  Accordingly, a notice of intent to impose sanctions issued.

On June 10, 2024, the Appeals Board issued a combined en banc decision and panel decision. The decision is en banc as to Sections I, II, and IV, clarifying the known methods of rebutting the Combined Values Chart (CVC), holding that:

The Appeals Board emphasized that rebuttal of the CVC requires a critical analysis of the impacts upon applicant’s ADLs and is not automatically triggered by use of the word ‘synergy’.  After reviewing the record and noting that the qualified medical evaluator failed to discuss the impact of applicant’s impairments upon the ADLs, the Appeals Board reversed the finding of the workers’ compensation judge and returned the matter for further development of the record. 

* * * Section III of this decision is not en banc and is not citeable as an en banc opinion.

After issuing a notice of intent on April 10, 2024, and having received and reviewed the responses of Susan Garrett and Lance Garrett, on May 16, 2024, the Appeals Board issued an en banc order imposing sanctions and costs in eight cases collectively of $20,000.00 against attorney Susan Garrett (CA BAR #195580) in eight (8) instances where she filed petitions for reconsideration with willful intent to disrupt or delay the proceedings of the Workers’ Compensation Appeals Board or with an improper motive, or where it appeared that such actions were indisputably without merit.

The Appeals Board issued a second order imposing costs and sanctions collectively of $20,000.00 against hearing representative Lance Garrett in eight (8) instances where he filed petitions for reconsideration with willful intent to disrupt or delay the proceedings of the Workers’ Compensation Appeals Board or with an improper motive, or where it appeared that such actions were indisputably without merit.

In the en banc order imposing sanctions and costs, the Appeals Board found that filing a petition for reconsideration to halt trial level proceedings in order to obtain a de facto continuance is bad faith and/or frivolous conduct, which is sanctionable. The Appeals Board found that the responses of Susan Garrett and Lance Garrett did not warrant a reduction in sanctions as they failed to take responsibility for their conduct, acknowledge the seriousness of their conduct, and demonstrate genuine remorse. The Appeals Board deferred the amount of reasonable expenses, including attorneys’ fees and costs, and returned the matter to Presiding Judge Robert Rassp to conduct a hearing on that issue.

1. LEDEZMA, Alfredo - ADJ15382349; ADJ15382351
2. BELTRAN, Roberto - ADJ8965291
3. REYES, Pedro - ADJ10451326 ADJ10750348
4. MEZA, Ever (aka Heber Valladares) – ADJ16951068; ADJ16951573
5. DE RIVAS, Sandra – ADJ16953628; ADJ16953629
6. FLORES, Josefa Perdomo - ADJ16124753; ADJ16124750
7. DOSS, Lennoris - ADJ17290772
8. HERNANDEZ, Jovanni - ADJ16953860

On April 10, 2024, the Appeals Board issued an en banc order consolidating eight cases and issued a notice of intention to impose costs and sanctions collectively up to $20,000.00 against attorney Susan Garrett (CA BAR #195580) in eight (8) instances where it appeared that she filed petitions for reconsideration with willful intent to disrupt or delay the proceedings of the Workers’ Compensation Appeals Board or with an improper motive, or where it appeared that such actions were indisputably without merit. Garrett has 20 plus 5 days to file a response to the notice.

The Appeals Board issued a second notice of intention to impose costs and sanctions collectively up to $20,000.00 against hearing representative Lance Garrett in eight (8) instances where it appeared that he filed petitions for reconsideration with willful intent to disrupt or delay the proceedings of the Workers’ Compensation Appeals Board or with an improper motive, or where it appeared that such actions were indisputably without merit. Garrett has 20 plus 5 days to file a response to the notice. 

In the en banc notice of intent, the Appeals Board makes clear that a request for a continuance is not a final order as it does not resolve any threshold issue. Where a party files a petition for reconsideration without good cause, a notice of intent to impose sanctions may issue.

1. LEDEZMA, Alfredo - ADJ15382349; ADJ15382351
   
2. BELTRAN, Roberto - ADJ8965291
3. REYES, Pedro - ADJ10451326 ADJ10750348
4. MEZA, Ever (aka Heber Valladares) – ADJ16951068; ADJ16951573
5. DE RIVAS, Sandra – ADJ16953628; ADJ16953629
6. FLORES, Josefa Perdomo - ADJ16124753; ADJ16124750
7. DOSS, Lennoris - ADJ17290772
8. HERNANDEZ, Jovanni - ADJ16953860

On August 29, 2023, the Appeals Board issued an en banc decision denying applicant’s Petition for Reconsideration of its Opinion and Decision After Reconsideration (En Banc) issued in this matter on June 22, 2023. The Appeals Board first noted that applicant’s petition did not challenge the determination that the WCJ failed to comply with section 5313. The Appeals Board then rejected applicant’s contention that a vocational expert may substitute a competing theory of apportionment in place of otherwise valid legal apportionment, as inconsistent with statutory and case law authority. The Appeals Board also rejected applicant’s contention that evaluating physicians are unwilling or unqualified to evaluate vocational evidence. Finally, the Appeals Board declined to characterize the consideration of valid medical apportionment in vocational reporting as “pass-through” apportionment, because the vocational evaluator is not statutorily authorized to render an apportionment opinion.

On June 22, 2023, the Appeals Board issued an en banc decision regarding vocational evidence, holding that:

1. Labor Code section 4663 requires a reporting physician to make an apportionment determination and prescribes the standard for apportionment. The Labor Code makes no statutory provision for “vocational apportionment.”
2. Vocational evidence may be used to address issues relevant to the determination of permanent disability.
3. Vocational evidence must address apportionment, and may not substitute impermissible “vocational apportionment” in place of otherwise valid medical apportionment. 

Due to the state of emergency in response to the novel coronavirus (COVID-19), the Appeals Board temporarily suspended WCAB Rule 10500(b)(6) regarding witness signatures In Misc. No. 260, WCAB Rule 10940(b) regarding electronic filing of documents with the Appeals Board in Misc. 261, and WCAB Rule 10789(c) regarding walk-through assignment hours in Misc. No. 266. (Cal. Code Regs., tit. 8, §§ 10205.7(c), 10500(b), 10789(c), 10940(b).) The state of emergency was terminated as of February 28, 2023. Appeals Board hereby rescinds all remaining provisions of en banc orders nos. 260, 261, and 266, including its suspension of WCAB Rules 10500(b)(6), 10940(b), and 10789(c) 10961(a), as of March 22, 2023.

Due to the state of emergency in response to the novel coronavirus (COVID-19), the Appeals Board temporarily suspended WCAB Rule 10628’s requirement of service by mail by the WCAB in its March 18, 2020 en banc decision In Re: COVID-19 State of Emergency En Banc – No. 1 (Misc. No. 260). Amended rule 10628 is effective as of January 1, 2022, and allows electronic service by the WCAB. Accordingly, the suspension of rule 10628 in Misc. No. 260 applies to the period from March 18, 2020 to January 1, 2022.

Due to the state of emergency in response to the novel coronavirus (COVID-19), the Appeals Board is temporarily suspending WCAB Rule 10789(c) (walk-through assignment hours). The presiding WCJs have the authority to prioritize which documents may be submitted as a walk-through from amongst the documents listed in WCAB Rule 10789(a) to expedite resolution of claims and to account for limited capacity in their respective district offices.

The Appeals Board’s office in San Francisco is operating on a limited in-office schedule. The Appeals Board’s commissioners and staff continue working remotely. All practitioners are encouraged to regularly check the WCAB and DWC websites for updates about the district offices’ and the Appeals Board’s operations during this period.

Due to the state of emergency in response to the novel coronavirus (COVID-19), the Appeals Board temporarily suspended WCAB Rules 10620 and 10670(b)(3) in its April 28, 2020 en banc decision In Re: COVID-19 State of Emergency En Banc – No. 3 (Misc. No. 262). The Appeals Board hereby rescinds its suspension of WCAB Rules 10620 and 10670(b)(3) effective as of December 1, 2020. WCAB Rules 10620 and 10670(b)(3) will apply to all trials on or after December 1, 2020.

The Appeals Board’s office in San Francisco is operating with limited in-office staff. The Appeals Board’s commissioners and staff continue working remotely. All practitioners are encouraged to regularly check the WCAB and DWC websites for updates about the district offices’ and the Appeals Board’s operations during this period.

Due to the state of emergency in response to the novel coronavirus (COVID-19), the Appeals Board temporarily suspended WCAB Rules 10755, 10756 and 10888 in its March 18, 2020 en banc decision In Re: COVID-19 State of Emergency En Banc (Misc. No. 260). The Appeals Board hereby rescinds its suspension of WCAB Rules 10755, 10756 and 10888 effective as of the date of this decision.

The Appeals Board’s office in San Francisco is operating with limited in-office staff. The Appeals Board’s commissioners and staff continue working remotely. All practitioners are encouraged to regularly check the WCAB and DWC websites for updates about the district offices’ and the Appeals Board’s operations during this period.

Due to the state of emergency in response to the novel coronavirus (COVID-19), the Appeals Board temporarily suspended WCAB Rules 10961(a), 10962(c), 10990(f)(3)(E), and 10995(c)(3) in its March 18, 2020 en banc decision In Re: COVID-19 State of Emergency En Banc (Misc. No. 260). The Appeals Board hereby rescinds its suspension of WCAB Rules 10961(a), 10962(c), 10990(f)(3)(E), and 10995(c)(3) as of September 1, 2020. These Rules will become effective again with respect to petitions filed on or after September 1, 2020.

The Appeals Board’s office in San Francisco is operating with limited in-office staff. The Appeals Board’s commissioners and staff continue working remotely. All practitioners are encouraged to regularly check the WCAB and DWC websites for updates about the district offices’ and the Appeals Board’s operations during this period.

On June 23, 2020, the Appeals Board issued an en banc decision interpreting Labor Code section 4751, holding as follows:

(1) Prior and subsequent permanent disabilities shall be added to the extent they do not overlap in order to determine the “combined permanent disability” specified in section 4751; and
(2) SIBTF is liable, under section 4751, for the total amount of the “combined permanent disability,” less the amount due to applicant from the subsequent injury and less credits allowable under section 4753.

In light of the continued state of emergency in response to the novel coronavirus (COVID-19) and to facilitate adjudication of claims in line with DWC’s 2020-37 Newsline issued on April 28, 2020, the Appeals Board orders suspension of the 20 day requirements for filing documentary trial exhibits in WCAB Rules 10620 and 10670(b)(3).

The Appeals Board’s office in San Francisco remains closed. The Appeals Board’s commissioners and staff continue working remotely during the closure. All practitioners are encouraged to regularly check the WCAB and DWC websites for updates about office closures and filing deadlines and procedures.

In light of the continued state of emergency in response to the novel coronavirus (COVID-19) and to facilitate other methods of filing in line with DWC’s 2020-29 Newsline issued on April 3, 2020, the Appeals Board orders that certain documents may be emailed directly to the district offices or the Appeals Board. Specifically, the Appeals Board orders as outlined in the en banc decision: 1) documents may be sent by email directly to the Appeals Board pursuant to WCAB Rule 10940(b); and 2) documents subject to a statutory time limit may be sent by email directly to the district offices pursuant to AD Rule 10205.7(c) where the filing party could not otherwise e-file, JET file or file the document by mail.

The Appeals Board’s office in San Francisco remains closed. The Appeals Board’s commissioners and staff continue working remotely during the closure. All practitioners are encouraged to regularly check the WCAB and DWC websites for updates about office closures and filing deadlines.

Pursuant to Governor Gavin Newsom's March 4, 2020 state of emergency in response to the novel coronavirus (COVID-19) and WCAB Rule 10370, the Appeals Board is temporarily suspending specific WCAB Rules of Practice and Procedure contained in Title 8 of the California Code of Regulations. This includes Rules regarding dismissals for failure to appear, the timeframe for reports from WCJs and arbitrators, required signatures and witnesses for Compromise and Release agreements, and service by the WCAB by mail and consent for electronic service. All filing deadlines are extended per the DWC's March 16, 2020 Newsline that all district offices are closed for filing from March 17 through April 3.

As of March 19, 2020, the WCAB’s office in San Francisco will be closed. WCAB members and staff will be working remotely during the closure. All practitioners are encouraged to regularly check the WCAB and DWC websites for updates about office closures and filing deadlines.

On January 13, 2020, the Appeals Board issued an en banc notice of intention to submit a decision holding that: (1) Administrative Director Rule 10133.54 is invalid because it exceeds the statutory authority granted to the Administrative Director under Labor Code sections 4658.5, subdivision (c), and 4658.7, subdivision (h), and restricts the exclusive adjudicatory power of the WCAB to adjudicate compensation claims, including disputes over supplemental job displacement benefits; and (2) an employer must show that it made a bona fide offer of regular, modified, or alternative work in order to avoid liability for a supplemental job displacement benefit voucher.

This notice of intention allows the Administrative Director thirty (30) days to provide briefing on the issue of whether Administrative Rule 10133.54 is invalid as set forth in holding (1) above.

At the expiration of the thirty (30) days, we will issue an en banc decision in this matter. The above holdings are not binding at this time.

On November 14, 2019, the Appeals Board issued an en banc decision clarifying a medical-legal provider’s initial burden of proof that: 1) A contested claim existed at the time the expenses were incurred, and that the expenses were incurred for the purpose of proving or disproving a contested claim pursuant to section 4620; and 2) Its medical-legal services were reasonably, actually, and necessarily incurred pursuant to section 4621(a). The Appeals Board also held that a defendant does not waive an objection based on section 4620 or 4621 by failing to raise those objections in an explanation of review pursuant to section 4622.

On July 15, 2019, the Appeals Board issued an en banc decision denying defendant’s Petition for Reconsideration of its Opinion and Decision After Reconsideration (En Banc) issued in this matter on May 10, 2019. The Appeals Board rejected defendant’s contentions that the phrase “catastrophic injury” in section 4660.1(c)(2)(B) refers to the mechanism of injury and the condition immediately after the injury occurs. The Appeals Board also rejected defendant’s contention that the five factors outlined in the May 10, 2019 Opinion to determine whether an injury is catastrophic are not authorized by section 4660.1(c)(2)(B) or legislative history. The Appeals Board further opined that providing an analytical framework to the trier of fact to determine whether an injury is catastrophic is within its authority and was not an improper adoption of a rule or regulation as alleged by defendant.

On May 10, 2019, the Appeals Board issued an en banc decision interpreting Labor Code section 4660.1(c)(2)(B), holding as follows: Determination of whether an injury is catastrophic under section 4660.1(c)(2)(B) focuses on the nature of the injury and is a fact-driven inquiry.

On October 23, 2018, the Appeals Board issued an en banc decision interpreting Labor Code section 4062.3, holding as follows: (1) Disputes over what information to provide to the QME are to be presented to the WCAB if the parties cannot informally resolve the dispute. (2) Although section 4062.3(b) does not give a specific timeline for the opposing party to object to the QME’s consideration of medical records, the opposing party must object to the provision of medical records to the QME within a reasonable time in order to preserve the objection. (3) If the aggrieved party elects to terminate the evaluation and seek a new evaluation due to an ex parte communication, the aggrieved party must do so within a reasonable time following discovery of the prohibited communication. (4) The trier of fact has wide discretion to determine the appropriate remedy for a violation of section 4062.3(b). (5) Removal is the appropriate procedural avenue to challenge a decision regarding disputes over what information to provide to the QME and ex parte communication with the QME.

On March 22, 2018, the Appeals Board issued an en banc decision determining that Labor Code section 4903.05(c) declarations filed after the close of business at 5:00 p.m. on Friday, June 30, 2017 through the close of business at 5:00 p.m. on Monday July 3, 2017 are timely filed. Labor Code section 4903.05(c)(2) states that lien claimants “shall have until July 1, 2017” to file the declaration identified in Labor Code section 4903.05(c)(1), thereby establishing the last date for performance of an act required by statute as July 1, 2017, a Saturday. When the last date for performance of an act required by any workers’ compensation statute falls on a weekend or holiday, “the act or response may be performed or exercised upon the next business day.” (Cal. Code Regs., tit. 8, § 10508; see Code Civ. Proc., § 12a(a) and Gov. Code, § 6707.) The Appeals Board clarified that pursuant to the plain language in Labor Code section 4903.05(c)(2) and WCAB Rule 10770.7, declarations filed at or before 5:00 p.m. on the next business day, Monday, July 3, 2017, are timely filed.

On September 14, 2017, numerous lien claimants by and through their sole representative Maximum Medical filed over 1,200 nearly identical Petitions for Reconsideration, challenging an administrative action in EAMS by DWC which prevented them from filing in their cases because they had allegedly failed to timely file declarations required by Labor Code section 4903.05(c). Thereafter, DWC removed the notation as to dismissal. Accordingly, lien claimants are not aggrieved (Lab. Code, §§ 5900, 5903) and their Petitions for Reconsideration are moot and must be dismissed. In order to efficiently manage the pending Petitions, the Appeals Board consolidated the cases for the limited purpose of dismissing the Petitions for Reconsideration and designating Maximum Medical to serve the decision. This en banc decision shall apply to any case in which a Labor Code section 4903.05(c) Declaration was filed by a lien claimant after the close of business at 5:00 p.m. on Friday, June 30, 2017 through the close of business at 5:00 p.m. on Monday, July 3, 2017, whether or not the case number is identified in the decision.

We acknowledge that the issue of whether a lien claimant timely filed its declarations may be raised by a party and proceed to a hearing, but we emphasize that in the absence of an adjudication that a declaration was untimely, a lien claimant is not barred from proceeding on its lien. Additionally, as is noted above, whether declarations filed after the close of business at 5:00 p.m. on Friday, June 30, 2017 through the close of business at 5:00 p.m. on Monday July 3, 2017 were timely filed is not presently at issue, and we make no determination as to the timeliness of filing of such declarations. Once such a determination has been made, any aggrieved person may seek review of such determination. (Lab. Code, §§ 5900, 5903.)

The appeals board clarified the distinction between “communication” to an agreed medical examiner (AME), and “information” provided to an AME, as those terms are used in Labor Code section 4062.3, holding that “information” constitutes (1) records prepared or maintained by the employee’s treating physician or physicians, and/or (2) medical and nonmedical records relevant to determination of the medical issues, and that a “communication” can constitute “information” if it contains, references, or encloses (1) records prepared or maintained by the employee’s treating physician or physicians, and/or (2) medical and nonmedical records relevant to determination of the medical issues.

The Appeals Board rejected defendant’s contention that section 22451(b) of the Business and Professions Code should not be construed to apply to agents and independent contractors of a member of the state bar other than photocopiers that are part of an attorney’s staff, and the Board affirmed and incorporated its prior decision that the registration and bonding requirements under sections 22450 and 22455 of the Business and Professions Code do not apply to a lien claimant seeking to recover copy service fees as medical-legal expenses under Labor Code section 4620(a), when the lien claimant makes an unrebutted prima facie showing that it is an agent and/or independent contractor of a state bar member at the time the documents are photocopied.

Following its issuance of a notice of intention to which there was no response by Javier Jimenez, the appeals board issued an order suspending for 180 days the privilege of Mr. Jimenez of appearing as a representative in any proceeding, due to his repeated misconduct and failure to comply with several orders of sanctions, costs and attorney fees, with such suspension continuing if Mr. Jimenez fails to comply with the orders within the 180 day period.

Following its issuance of a notice of intention to which there was no response by Mike Traw, the appeals board issued an order suspending for 90 days the privilege of Mr. Traw of appearing as a representative in any proceeding for his failure to comply with a sanction order, with such suspension continuing if Mr. Traw fails to comply with the sanction order within the 90 day period.

Whereas Section 22451(b) of the Business and Professions Code exempts a state bar member and his or her employees, agents or independent contractors from the registration and bonding requirements for professional photocopiers contained in sections 22450 and 22455 of this code, the Appeals Board held that these registration and bonding requirements do not apply to a lien claimant seeking to recover copy service fees as medical-legal expenses under Labor Code section 4620(a), when the lien claimant makes an unrebutted prima facie showing that it is an agent and/or independent contractor of a state bar member at the time the documents are photocopied.

The Appeals Board issued a notice of intention to suspend for 180 days the privilege of Javier Jimenez to appear in any proceeding as a representative of any party before the Workers’ Compensation Appeals Board pursuant to Labor Code section 4907 due to his repeated misconduct and failure to comply with several orders to pay sanctions, costs and attorney fees, with the suspension to continue beyond 180 days and until there is full compliance with the sanction orders.

Where Labor Code section 4610.6(h) provides that a verified appeal from an independent medical review (IMR) determination must be "filed with the appeals board within 30 days of the date of mailing of the determination to the aggrieved employee or the aggrieved employer," the Appeals Board held: (1) the term "mailing" is equivalent to and means "service by mail," and (2) the 30-day period to file a timely appeal from an IMR determination is extended by five (5) days pursuant to the provisions of Labor Code section 5316 and Code of Civil Procedure section 1013(a).

The Appeals Board removed the case to itself and issued a notice of intention to suspend the privilege of Professional Lien Services, Inc. and Mike Traw to appear in any proceeding as a representative of any party before the Workers’ Compensation Appeals Board pursuant to Labor Code section 4907 for failure to comply with the order to pay sanctions, costs and attorney fees.

1. A UR decision is invalid and not subject to independent medical review (IMR) only if it is untimely;
   
2. Legal issues regarding the timeliness of a UR decision must be resolved by the Workers’ Compensation Appeals Board (WCAB), not IMR;
   
3. All other disputes regarding a UR decision must be resolved by IMR;
   
4. If a UR decision is untimely, the determination of medical necessity may be made by the WCAB based on substantial medical evidence consistent with Labor Code section 4604.5.

With regard to the SB 863 additions and amendments to the Labor Code regarding home health care services, which became effective January 1, 2013, the Appeals Board held:

1. Sections 4600(h), 4603.2(b)(1), and 5307.8 apply to requests for home health care services in all cases which are not final regardless of date of injury or dates of service.
   
2. The prescription required by section 4600(h) is either an oral referral, recommendation or order for home health care services for an injured worker communicated directly by a physician to an employer and/or its agent; or, a signed and dated written referral, recommendation or order by a physician for home health care services for an injured worker.
3. Under section 4600(h) home health care services are subject to either section 5307.1 or section 5307.8; section 5307.1 applies where an official medical fee schedule or Medicare schedule covers the type of home health care services sought; and otherwise, section 5307.8 applies.

The Appeals Board granted State Compensation Insurance Fund?s petition for reconsideration of the February 27, 2014 Opinion and Decision After Reconsideration (En Banc) wherein the Appeals Board previously held that the Workers? Compensation Appeals Board may determine if a utilization review decision suffered from material defects that undermine the integrity of the decision, and if so, it may then determine the medical necessity issue based on substantial medical evidence. (See Dubon vs. World Restoration, Inc. (2014) 79 Cal.Comp.Case 313 (Appeals Board en banc) (Dubon).) Reconsideration was granted in order to allow sufficient opportunity to further study the factual and legal issues, noting that the prior decision remains in effect and binding pending a decision after reconsideration in the present matter.

Where the applicant had exhausted the 104 weeks of allowable temporary disability indemnity payments but was not yet permanent and stationary, and where the applicant was subsequently declared to be permanently totally disabled, the Appeals Board held:

1. When a defendant stops paying temporary disability indemnity pursuant to section 4656(c) before an injured worker is determined to be permanent and stationary, the defendant shall commence paying permanent disability indemnity based on a reasonable estimate of the injured worker's ultimate level of permanent disability.
2. When an injured worker who is receiving permanent partial disability payments pursuant to section
   4650(b)(1) becomes permanent and stationary and is determined to be permanently totally disabled, the defendant shall pay permanent total disability indemnity retroactive to the date its statutory obligation to pay temporary disability indemnity terminated.
3. COLAs begin on the first day in January after an injured worker becomes entitled to receive permanent disability indemnity pursuant to sections 4650(b)(1) or (b)(2).

The Appeals Board determined that for his two new claims of injury the applicant did not have to be evaluated by the panel qualified medical evaluator (panel QME) who previously evaluated him for his original claim of injury, holding that:

1. The Labor Code does not require an employee to return to the same panel QME for an evaluation of a subsequent claim of injury; and
2. The requirement in Rule 35.5(e) that an employee return to the same evaluator when a new injury or illness is claimed involving the same parties and the same type of body parts is inconsistent with the Labor Code, and therefore, this requirement is invalid.

In reaching its decision in this case that the Utilization Review (UR) decision was invalid, that the UR decision therefore was not subject to Independent Medical Review (IMR), and that the WCJ must then determine the medical necessity of the requested treatment based on substantial medical evidence, the Appeals Board specifically held as follows:

1. IMR solely resolves disputes over the medical necessity of treatment requests. Issues of timeliness and compliance with statutes and regulations governing UR are legal disputes within the jurisdiction of the WCAB.
2. A UR decision is invalid if it is untimely or suffers from material procedural defects that undermine the integrity of the UR decision. Minor technical or immaterial defects are insufficient to invalidate a defendant's UR determination.
3. If a defendant's UR is found invalid, the issue of medical necessity is not subject to IMR but is to be determined by the WCAB based upon substantial medical evidence, with the employee having the burden of proving the treatment is reasonably required.
4. If there is a timely and valid UR, the issue of medical necessity shall be resolved through the IMR process if requested by the employee.

In order to give the Division of Workers' Compensation and the parties an opportunity to address the issues raised by its proposed holdings as to the Labor Code and Rule 35.5(e) (Cal. Code Regs., tit. 8, sec. 35.5(e).), the Appeals Board granted removal and issued a twenty-day notice of intention to hold as follows:

1. The Labor Code does not require an employee to return to the same panel QME for an evaluation of a subsequent claim of injury.
2. The requirement in Rule 35.5(e) that an employee return to the same evaluator when a new injury or illness is claimed involving the same parties and the same type of body parts is inconsistent with the Labor Code, and this requirement is therefore invalid.

Where a medical-legal lien claim for copy costs was filed before January 1, 2013, and after January 1, 2013 it was withdrawn and re-filed as a petition for costs under Labor Code section 5811, the Appeals Board held: (1) a claim for medical-legal expenses may not be filed as a petition for costs under section 5811; and (2) medical-legal lien claimants who withdrew their liens and filed petitions for costs prior to this decision may pursue recovery through the lien process if they comply with the lien activation fee requirements of section 4903.06 and if their liens have not otherwise been dismissed.

The Appeals Board held that, where a lien claim falls within the lien activation fee requirements of Labor Code section 4903.06: (1) the lien activation fee must be paid prior to the commencement of a lien conference, which is the time that the conference is scheduled to begin, not the time when the case is actually called; (2) if the lien claimant fails to pay the lien activation fee prior to the commencement of a lien conference and/or fails to provide proof of payment at the conference, its lien must be dismissed with prejudice; (3) a breach of the defendant's duty to serve required documents or to engage in settlement negotiations does not excuse a lien claimant's obligation to pay the lien activation fee; and (4) a notice of intention is not required prior to dismissing a lien with prejudice for failure to pay the lien activation fee or failure to present proof of payment of the lien activation fee at a lien conference.

The Appeals Board held that: (1) neither Article III, section 3.5 of the California Constitution nor Labor Code section 5307.1 prevents the Appeals Board from finding preemption of AD Rule 9789.70, which contains the Official Medical Fee Schedule ("OMFS") for air ambulance services; (2) the ADA preempts AD Rule 9789.70 if the lien claimant for air ambulance services is an "an air carrier that may provide air transportation" within the meaning of the preemption provision of the ADA; and (3) the air ambulance provider has the burden of showing it is an "an air carrier that may provide air transportation" within the meaning of the preemption provision of the ADA, including showing that it is authorized to provide interstate air transportation

After issuing a Notice of Hearing (NOH) (In Re Escamilla (2011) 76 Cal.Comp.Case 944 [Appeals Board en banc]) initiating proceedings to consider suspending or removing Daniel Escamilla's privilege to appear before the Workers' Compensation Appeals Board (WCAB) as a nonattorney hearing representative pursuant to Labor Code section 4907, and after conducting evidentiary hearings on the issue, the Appeals Board determined that there was a pattern of sanctionable conduct in 11 cases, which constitutes good cause to suspend Mr. Escamilla's privilege to appear as a hearing representative in any WCAB proceedings for a period of 90 days. The suspension will commence 45 days from the filing of this decision.

In the case of a professional athlete who entered his employment contract in Arizona, played for the Arizona Cardinals for four years, and filed a cumulative industrial injury claim in California, the Appeals Board held that it will decline to exercise jurisdiction over a claim of cumulative industrial injury when there is a reasonable mandatory forum selection clause in the employment contract specifying that claims for workers' compensation shall be filed in a forum other than California, and there is limited connection to California with regard to the employment and the claimed cumulative injury. It was also held that party challenging the validity of a mandatory forum selection clause shall bear the burden of showing that the clause is unreasonable.

In the context of a lien claimant proceeding to trial as a party after the injured employee?s case has been resolved, the appeals board held: (1) Labor Code sections 3202.5 and 5705 mandate that a lien claimant must prove by a preponderance of the evidence all elements necessary to establish the validity of their lien before the burden of proof shifts to the defendant. (2) To the extent the Keifer and Garcia decisions held that a lien claimant can establish a prima facie right to recovery simply by introducing a billing statement showing that services were provided to a worker in connection with a claimed injury, those decisions have been nullified by sections 3202.5 and 5705 and subsequent case law. (3) Proceeding to trial without any evidence or with evidence that is utterly incapable of meeting its burden of proof is frivolous and constitutes bad faith within the meaning of section 5813, justifying an award of sanctions, attorney?s fees and costs against the party or lien claimant, its attorney(s) or hearing representative(s), individually or jointly and severally.

The Appeals Board denied Daniel Escamilla's "Petition for Order Requiring Board to Produce All Case Documents Relating to Sanction Proceedings in Eleven Cases Being Used Against Respondent" and denied Mr. Escamilla's "Objection to Order Requiring Submission of Offer of Proof and Petition for Removal to Obtain Ruling on Petition to Produce and to Obtain Clarification of Specific Issues to be Determined by Board in Connection with its Determination under Labor Code Section 4907."

With regard to the Notice of Hearing to take evidence on whether or not it will suspend or remove hearing representative Daniel Escamilla?s privilege to appear, and in response to Mr. Escamilla?s petition, the Appeals Board dismissed the Petition for Change of Venue, denied the Request for Immediate Stay of Proceedings, affirmed the order relieving Mr. Escamilla?s counsel, continued the January 27, 2012 hearing, and directed the hearing officer to reschedule the pre-hearing conference for no sooner than 45 days from the date of this decision, to be followed by a hearing approximately 45 days after the conference.

After granting reconsideration of its prior en banc decision in order to allow the opportunity to further study the factual and legal issues presented in the case, the Appeals Board issued its decision after reconsideration affirming its prior holding that, where unauthorized treatment is obtained for an industrial injury outside a validly established and properly noticed Medical Provider Network (MPN), the resulting non-MPN treatment reports are inadmissible.

The Appeals Board held (1) when the first written agreed medical examiner (AME) proposal is made by mail or by any method other than personal service, the period for seeking agreement on an AME under Labor Code section 4062.2(b) is extended five calendar days if the physical address of the party being served with the first written proposal is within California; (2) during this 15 day period the parties may not request a panel of Qualified Medical Examiners; and (3) the time period set forth in Labor Code section 4062.2(b) for seeking agreement on an AME starts with the day after the date of the first written proposal and includes the last day.

The Appeals Board issued a notice that a hearing is set to take evidence on whether or not it will suspend or remove hearing representative Daniel Escamilla?s privilege to appear in any proceeding as a representative of any party before the Appeals Board or any workers? compensation administrative law judge pursuant to Labor Code section 4907.

The Appeals Board granted reconsideration of its prior en banc decision in order to allow the opportunity to further study the factual and legal issues presented in the case. The Appeals Board previously held that, where unauthorized medical treatment is obtained outside a validly established and properly noticed Medical Provider Network (MPN), reports from the non-MPN doctors are inadmissible. After completing its study the Appeals Board will issue a Decision After Reconsideration modifying, amending, or affirming the prior decision.

The Appeals Board held that, where unauthorized medical treatment is obtained outside a validly established and properly noticed Medical Provider Network (MPN), reports from the non-MPN doctors are inadmissible, they may not be relied upon, and defendant is not liable for their cost.

The Appeals Board held that: 1) pursuant to the employer's obligation under Labor Code section 4600 to provide medical treatment reasonably required to cure or relieve the injured worker from the effects of his or her injury, the employer is required to provide reasonably required interpreter services during medical treatment appointments for an injured worker who is unable to speak, understand, or communicate in English; and 2) to recover its charges for interpreter services, the interpreter lien claimant has the burden of proving, among other things, that the services it provided were reasonably required, that the services were actually provided, that the interpreter was qualified to provide the services, and that the fees charged were reasonable.

The Appeals Board held that, in the context of determining whole person impairments (WPI) and issuing formal permanent disability rating instructions, the respective roles of the physician, WCJ, and rater are as follows: (1) the physician assesses the injured employee?s whole person impairment percentage(s) by a report that sets forth facts and reasoning to support its conclusions and that comports with the AMA Guides and case law; (2) the WCJ frames rating instructions, based on substantial medical evidence, that specifically and fully describe the whole person impairment(s) to be rated; in addition, the instructions may ask the rater to offer an expert opinion on what whole person impairment(s) should or should not be rated; (3) the rater issues a recommended permanent disability rating based solely on the WCJ?s formal rating instructions; unless specifically instructed to do so, the rater has no authority to issue a rating based on the rater?s own assessment of whether the whole person impairment rating(s) referred to in the instructions are based on substantial evidence or are consistent with the AMA Guides; (4) the WCJ is not bound by the rater?s recommended permanent disability rating and may elect to independently rate an employee?s permanent disability; however, the WCJ?s rating still must be based on substantial evidence; (5) potential AMA Guides rating problems may be minimized by the early and proper use of non-formal ratings; and (6) there must be no ex parte communication between the WCJ and the assigned rater.

The Appeals Board held that: (1) California Code of Regulations, title 8, section 30(d)(3) (Administrative Director Rule 30(d)(3)), which states that when a claim has been entirely denied by the defendant only the employee may request a panel of Qualified Medical Evaluators, is invalid because it conflicts with Labor Code sections 4060(c) and 4062.2 and exceeds the scope of section 5402(b); (2) the time limits of section 4062(a) for objecting to a treating physician?s medical determination do not apply when the injury has been entirely denied by the defendant; and (3) section 4062.2 does not establish timelines for initiating or completing the process for obtaining a medical-legal report on compensability.

The Appeals Board held that the procedures and timelines governing objections to a treating physician's recommendation for spinal surgery are contained in Labor Code sections 4610 and 4062 and in Administrative Director (AD) Rules 9788.1, 9788.11, and 9792.6(o) and are as follows: (1) when a treating physician recommends spinal surgery, a defendant must undertake utilization review (UR); (2) if UR approves the requested spinal surgery, or if the defendant fails to timely complete UR, the defendant must authorize the surgery; (3) if UR denies the spinal surgery request, the defendant may object under section 4062(b), but any objection must comply with AD Rule 9788.1 and use the form required by AD Rule 9788.11; (4) the defendant must complete its UR process within 10 days of its receipt of the treating physician's report, which must comply with AD Rule 9792.6(o), and, if UR denies the requested surgery, any section 4062(b) objection must be made within that same 10-day period; and (5) if the defendant fails to meet the 10-day timelines or comply with AD Rules 9788.1 and 9788.11, the defendant loses its right to a second opinion report and it must authorize the spinal surgery.

The Appeals Board also disapproved of Brasher vs. Nationwide Studio Fund (2006) 71 Cal.Comp.Case 1282 (Appeals Board significant panel decision) (Brasher) to the extent it holds: (1) a defendant may opt out of UR and instead dispute the requested spinal surgery using only the procedure specified in section 4062(b); and (2) if a defendant's UR denies spinal surgery, it is the employee that must object under section 4062(a).

After granting reconsideration of its prior decision in this matter the Appeals Board clarified the decision and held: (1) the language of section 4660(c), which provides that "the schedule shall be prima facie evidence of the percentage of permanent disability to be attributed to each injury covered by the schedule," unambiguously means that a permanent disability rating established by the Schedule is rebuttable; (2) the burden of rebutting a scheduled permanent disability rating rests with the party disputing that rating; and (3) one method of rebutting a scheduled permanent disability rating is to successfully challenge one of the component elements of that rating, such as the injured employee's DFEC adjustment factor, which may be accomplished by establishing that an individualized adjustment factor most accurately reflects the injured employee's DFEC.

The Appeals Board stated further that the individualized DFEC adjustment factor must be consistent with section 4660(b)(2), the RAND data to which section 4660(b)(2) refers, and the numeric formula adopted by the Administrative Director (AD) in the 2005 Schedule, and it also must constitute substantial evidence that the Workers' Compensation Appeals Board (WCAB) determines is sufficient to overcome the DFEC adjustment factor component of the scheduled permanent disability rating. Otherwise, the prior decision was affirmed.

After granting reconsideration of its prior decision in this matter the Appeals Board clarified and modified the decision to hold: (1) the language of Labor Code section 4660(c), which provides that "the schedule shall be prima facie evidence of the percentage of permanent disability to be attributed to each injury covered by the schedule," unambiguously means that a permanent disability rating established by the Schedule is rebuttable; (2) the burden of rebutting a scheduled permanent disability rating rests with the party disputing that rating; (3) one method of rebutting a scheduled permanent disability rating is to successfully challenge one of the component elements of that rating, such as the injured employee's whole person impairment (WPI) under the AMA Guides; and (4) when determining an injured employee's WPI, it is not permissible to go outside the four corners of the AMA Guides; however, a physician may utilize any chapter, table, or method in the AMA Guides that most accurately reflects the injured employee's impairment.

The Appeals Board stated further that in light of these holdings, it now specifically rejects the "inequitable, disproportionate, and not a fair and accurate measure of the employee's permanent disability" standard set forth in its February 3, 2009 opinion.

The Appeals Board denied applicant's petition for reconsideration of its en banc opinion of June 11, 2009.

The Appeals Board held that: (1) the repeal of section 139.5 terminated any rights to vocational rehabilitation benefits or services pursuant to orders or awards that were not final before January 1, 2009; (2) a saving clause was not adopted to protect vocational rehabilitation rights in cases still pending on or after January 1, 2009; (3) the vocational rehabilitation statutes that were repealed in 2003 do not continue to function as ?ghost statutes? on or after January 1, 2009; (4) effective January 1, 2009, the WCAB lost jurisdiction over non-vested and inchoate vocational rehabilitation claims, but the WCAB continues to have jurisdiction under sections 5502(b)(3) and 5803 to enforce or terminate vested rights; and (5) subject matter jurisdiction over non-vested and inchoate vocational rehabilitation claims cannot be conferred by waiver, estoppel, stipulation, or consent.

The Appeals Board designated this case, which had already been granted for study as a panel decision, as an en banc case, and issued a decision allowing amicus curiae briefing from interested persons or entities on the issue of whether the WCAB has jurisdiction to award vocational rehabilitation benefits after the January 1, 2009 repeal of Labor Code section 139.5. Following the briefing time allowed in the decision the Appeals Board will issue a Decision After Reconsideration on the issue.

The Appeals Board held in substance that: (1) the Diminished Future Earnings Capacity (DFEC) portion of the 2005 Schedule is rebuttable; (2) the DFEC portion of the 2005 Schedule ordinarily is not rebutted by establishing the percentage to which an injured employee's future earning capacity has been diminished; (3) the DFEC portion of the 2005 Schedule is not rebutted by taking two-thirds of the injured employee's estimated diminished future earnings and then comparing the resulting sum to the permanent disability money chart to approximate a corresponding permanent disability rating; and (4) in the usual case, the DFEC portion of the 2005 Schedule may be rebutted only in a manner consistent with Labor Code section 4660 - including section 4660(b)(2) and the RAND data to which section 4660(b)(2) refers.

This holding involves the application or interpretation of Labor Code section 4660(c), which continues to state: "This schedule shall be prima facie evidence of the percentage of permanent disability." The Appeals Board has previously held in prior en banc decisions in Costa I (71 Cal.Comp.Case 1797) and Costa II (72 Cal.Comp.Case 1492) that, pursuant to this section and case law, the percentage of disability resulting from the 2005 Permanent Disability Rating Schedule is rebuttable. This decision discusses how the DFEC portion of the schedule can be rebutted.

The Appeals Board held in substance that: (1) the American Medical Association (AMA) Guides portion of the 2005 Schedule is rebuttable; (2) the AMA Guides portion of the 2005 Schedule is rebutted by showing that an impairment rating based on the AMA Guides would result in a permanent disability award that would be inequitable, disproportionate, and not a fair and accurate measure of the employee's permanent disability; and (3) when an impairment rating based on the AMA Guides has been rebutted, the WCAB may make an impairment determination that considers medical opinions that are not based or are only partially based on the AMA Guides.

This holding involves the application or interpretation of Labor Code section 4660(c), which continues to state: "This schedule shall be prima facie evidence of the percentage of permanent disability." The Appeals Board has previously held in prior en banc decisions in Costa I (71 Cal.Comp.Case 1797) and Costa II (72 Cal.Comp.Case 1492) that, pursuant to this section and case law, the percentage of disability resulting from the 2005 Permanent Disability Rating Schedule is rebuttable. This decision discusses how the AMA Guides portion of the schedule can be rebutted.

The Appeals Board held that consistent with its en banc decision in Kunz vs. Patterson Floor Coverings, Inc. (2002) 67 Cal.Comp.Case 1588: (1) an outpatient surgery center lien claimant (or any medical lien claimant) has the burden of proving that its charges are reasonable; (2) the outpatient surgery center lien claimant?s billing, by itself, does not establish that the claimed fee is ?reasonable?; therefore, even in the absence of rebuttal evidence, the lien need not be allowed in full if it is unreasonable on its face; and (3) any evidence relevant to reasonableness may be offered to support or rebut the lien; therefore, evidence is not limited to the fees accepted by other outpatient surgery centers in the same geographic area for the services provided.

The Appeals Board held: (1) that the amount of the penalty under Labor Code section 5814(a) is discretionary and should be determined upon consideration of the factors enumerated in this opinion; (2) that although, under new section 5814(a), a successive penalty may still be awarded for an unreasonable delay in making a prior penalty payment, it should not be awarded where the defendant had genuine doubt as to its liability or where there is no legally significant intervening event; (3) that, if an unreasonable delay in payment of an award of compensation occurred after January 1, 2003, section 5814.5 entitles an applicant?s attorney to receive fees for enforcing the award, even against a private employer and even when the injury occurred prior to January 1, 2003, the effective date of the amendment to section 5814.5; and (4) that such fees are to be awarded ?in addition to? applicant?s section 5814(a) penalty - not as a percentage of the penalty - and are to be based on the reasonable number of hours expended and a reasonable hourly rate.

The Board denied Mr. Pellicer's request for permission to appear in Workers' Compensation Appeals Board proceedings under WCAB Rule 10799 (Cal. Code Regs., tit. 8, sec. 10799) because he was suspended and placed on involuntary inactive enrollment from the practice of law by the State Bar, and because such persons, as well as those who have been disbarred or suspended, or who have resigned with disciplinary proceedings pending, may not be allowed to appear on behalf of another in judicial or quasi-judicial hearings and proceedings before administrative boards and commissions, pursuant to Benninghoff vs. Superior Court (2006) 136 Cal.App.4th 61 [38 Cal.Rptr.3rd 759] and In the Matter of John H. Hoffman, Jr. (2006) 71 Cal.Comp.Case 609, Appeals Bd. Sig. Panel Decision.

The Board held that the applicant did not carry his burden of demonstrating that the adoption of the 2005 Permanent Disability Rating Schedule (PDRS) by the Administrative Director of the Division of Workers' Compensation was arbitrary or capricious, or inconsistent with Labor Code section 4660(b)(2), and therefore that he failed to rebut the presumptive validity of the 2005 PDRS.

The Board held that the rule in Wilkinson, (i.e., basically allowing a combined award of permanent disability in successive injury cases,) is not consistent with the new requirement that apportionment be based on causation and that, therefore, Wilkinson is no longer generally applicable. The Board must determine and apportion to the cause of disability for each industrial injury. The Board noted that consideration must be given to all potential causes of disability, whether from a current industrial injury, a prior or subsequent industrial injury, or a prior or subsequent non-industrial injury or condition. It was observed, however, that there may be limited circumstances, not present in these cases, where the evaluating physicians cannot parcel out, with reasonable medical probability, the approximate percentages to which each successive injury causally contributed to the employee's overall permanent disability. Under those limited circumstances, a combined award of permanent disability may still be justified.

The holding as applied in these cases resulted in separate awards of permanent disability. This opinion involved an interpretation of Labor Code 4663 and 4664(a) as enacted under SB 899 and the impact on prior legal principles.

The Board reaffirmed its prior holding that Labor Code 4660 continues to allow the parties to present evidence on and/or in rebuttal to a permanent disability rating under the new PDRS, and that the costs of such evidence may be allowable. Additionally, the Board noted that the standards for allowing such cases will be by analogy to medical-legal costs - whether such costs are reasonable and necessary at the time they are incurred.

The Board held that the word "amputations," as used in section 4656(c)(2)(C), means the severance or removal of a limb, part of a limb, or other body appendage, including both traumatic loss in an industrial injury and surgical removal during treatment of an industrial injury. This definition conforms to our understanding of the common meaning of the term "amputation," which encompasses external projecting body parts, not internal parts, even if they include bone.

This holding involved one of the exceptions under Labor Code ?4656(c)(2), that, if triggered, would entitle an injured worker to temporary disability indemnity beyond the 104-week/two year cap set forth in Labor Code ?4656(c)(1).

The Board held that "the date of commencement of temporary disability payment" as used in section 4656(c)(1) means the date on which temporary disability indemnity is first paid, and not the date for which temporary disability indemnity is first owed.

In this case, applicant was injured on July 16, 2004. Defendant's first payment of temporary disability indemnity was made on May 3, 2005, which covered the period of TD from July 17, 2004 through May 3, 2005 and defendant then made periodic temporary disability indemnity payments through July 14, 2006. The WCJ's decision concluded that the "period of two years from the date of commencement of temporary disability payment" as provided in section 4656(c)(1) began on May 3, 2005, the date on which temporary disability indemnity was first paid, and not from July 17, 2004, the date for which temporary disability indemnity was first owed. The WCJ's decision was accordingly, affirmed.

This holding involved an interpretation of an addition to Labor Code ?4656 under SB 899.

The Board, reversing its prior en banc decision of January 24, 2007, held that if the last payment of temporary disability indemnity was made for any period of temporary disability ending before January 1, 2005, then the 1997 Permanent Disability Rating Schedule applies to determine the extent of permanent disability, pursuant to section 4660(d), because section 4061 requires the employer to provide the injured worker with a notice regarding permanent disability "[t]together with the last payment of temporary disability indemnity."

This holding involved one of the exceptions under Labor Code section 4660(d) that, if triggered, would result in determining permanent disability in a case under the former PDRS rather than under the new PDRS effective January 1, 2005.

The Board, reversing its prior en banc decision of January 24, 2007, held that in order for the 1997 Permanent Disability Rating Schedule to apply to a pre-1/1/05 injury claim under Labor Code Section 4660(d), the existence of permanent disability must be indicated in either a pre-2005 comprehensive medical-legal report or a pre-2005 report from a treating physician.

This holding involved one of the exceptions under Labor Code section 4660(d) that, if triggered, would result in determining permanent disability in a case under the former PDRS, rather than under the new PDRS effective January 1, 2005.

The Board held that a defendant may satisfy its obligation under Labor Code section 4600 to provide reasonable medical treatment by transferring an injured worker into an authorized Medical Provider Network in conformity with applicable statutes and regulations regardless of the date of injury or the date of an award of future medical treatment.

The Board held that because a comprehensive medical-legal report issued in this case prior to January 1, 2005, the former Permanent Disability Rating Schedule (PDRS) applies under section 4660(d), whether or not the comprehensive medical-legal report indicates the existence of permanent disability.

This holding involved one of the exceptions under Labor Code section 4660(d) that, if triggered, would result in determining permanent disability in a case under the former PDRS, rather than under the new PDRS effective January 1, 2005.

The Board held that because an employer's duty to provide notice under Labor Code section 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 (PDRS) applies to determine the extent of permanent disability in that case.

This holding involved one of the exceptions under Labor Code section 4660(d) that, if triggered, would result in determining permanent disability in a case under the former PDRS rather than under the new PDRS effective January 1, 2005.

The Board held 1) that the applicant had not met his burden of proving that the new Permanent Disability Rating Schedule (PDRS) under Labor Code section 4660 was invalid, and 2) that, as under former Labor Code section 4660, current Labor Code section 4660 allows the parties to present rebuttal evidence to a proposed rating and that the costs of such rebuttal evidence may be allowable.

In this particular case, it was determined that defendant's failure to provide applicant with notice of his rights under the MPN had resulted in a neglect or refusal to provide medical treatment rendering defendant liable for applicant's self-procured medical treatment.

The Board held that the revised permanent disability rating schedule, adopted by the Administrative Director of the Division of Workers' Compensation, effective January 1, 2005, applies to injuries occurring on or after that date, and that in cases of injury occurring prior to January 1, 2005, the revised permanent disability rating schedule applies, unless one of the exceptions delineated in the third sentence of section 4660(d) is present.

The matter was returned to the trial level to consider whether any exception to the application of the revised permanent disability schedule was present based upon the facts of this case

Consistent with the opinion of the Court of Appeal, the Board found that the special employer's insurance in this case is not "other insurance" available to applicant within the meaning of Insurance Code section 1063.1(c)(9). Accordingly, the California Insurance Guarantee Association's (CIGA) dismissal as a party was set aside and CIGA remained a party with potential liability for covered claims.

The Board also concluded:
1. Our en banc decision in this case was reversed by the Court of Appeal and for that reason it is not legal precedent. In addition, the unpublished Court of Appeal decision in this case may not be generally cited or relied upon in any other action, except when relevant under the doctrines of law of the case, res judicata or collateral estoppel;
2. The May 14, 2002 consolidation and stay order was only intended to apply during the pendency of the appellate proceedings in this case and it is now rescinded so that each case covered by that order may be individually resolved on its own particular facts;
3. The request by RemedyTemp to be dismissed from each of the consolidated cases is denied because the consolidation order no longer applies and there is no authority to support dismissal because the Court of Appeal decision was decertified for publication by the Supreme Court.
4. The joint request by RemedyTemp and CIGA for a new consolidation and/or stay order is denied because each case must be evaluated on its own facts, including consideration of the intent of the parties and the effect of the various insurance policies involved;
5. The petition filed by Assurance for reimbursement of costs it claims to have incurred in the Court of Appeal proceeding is dismissed."

In denying the applicant's Petition for Removal which sought, in essence, to preclude the application of the new apportionment statutes under SB 899, the Board held:

(1) The new apportionment provisions of SB 899 apply to the issue of increased permanent disability alleged in any petition to reopen (see sections 5803, 5804, 5410) that was pending at the time of the legislative enactment on April 19, 2004, regardless of date of injury;
(2) Consistent with Section 47 of SB 899, the new apportionment statutes cannot be used to revisit or recalculate the level of permanent disability, or the presence or absence of apportionment, determined under a final order, decision, or award issued before April 19, 2004; and
(3) In applying the new apportionment provisions to the issue of increased permanent disability, the issue must be determined without reference to how, or if, apportionment was determined in the original award.

(1) An order approving a compromise and release agreement, without more, is not a "prior award of permanent disability" within the meaning of section 4664(b);

(2) Where there is no "prior award of permanent disability" within the meaning of section 4664(b), the medical reports and other evidence relating to a prior industrial injury that was settled by a compromise and release still may be relevant in determining whether any of the permanent disability found after a subsequent industrial injury was caused by "other factors" under section 4663; and

(3) The concept of medical rehabilitation from a prior industrial disability remains viable under section 4663; however, even if an injured employee has medically rehabilitated from a prior industrial disability, this does not necessarily preclude a prior industrial injury from being an "other factor" causing the employee's present disability.

(1) Where an employee suffers an industrial injury causing permanent disability, and where there is a prior award of permanent disability relating to the same region of the body, section 4664 requires the apportionment of overlapping permanent disabilities;

(2) The defendant has the burden of proving the existence of any prior permanent disability award(s) relating to the same region of the body;

(3) When the defendant has established the existence of any prior permanent disability award(s) relating to the same body region, the permanent disability underlying any such award(s) is conclusively presumed to still exist, i.e., the applicant is not permitted to show medical rehabilitation from the disabling effects of the earlier industrial injury or injuries;

(4) When the defendant has established the existence of any prior permanent disability award(s) relating to the same region of the body, the percentage of permanent disability from the prior award(s) will be subtracted from the current overall percentage of permanent disability, unless the applicant disproves overlap, i.e., the applicant demonstrates that the prior permanent disability and the current permanent disability affect different abilities to compete and earn, either in whole or in part;

(5) The issue of whether the prior permanent disability for the same region of the body overlaps the current disability is determined using substantially the same principles that were applied prior to the enactment of section 4664; and

(6) The sum of the permanent disability awards for any one body region cannot exceed 100%, even where the permanent disability caused by the applicant's new injury does not overlap the permanent disability underlying the prior award(s), unless the employee's new industrial injury causes disability that is conclusively presumed to be total under section 4662.

(1) Where an employee suffers an industrial injury causing permanent disability to one region of the body, and where there is a prior award of permanent disability involving and/or including any other region(s) of the body, section 4664 requires the apportionment of overlapping permanent disabilities;

(2) The defendant has the burden of proving the existence of any prior permanent disability award(s) involving and/or including any other region(s) of the body;

(3) When the defendant has established the existence of any prior permanent disability award(s) involving and/or including any other region(s) of the body, the permanent disability underlying any such award(s) is conclusively presumed to still exist, i.e., the applicant is not permitted to show medical rehabilitation from the disabling effects of the earlier industrial injury or injuries;

(4) When the defendant has established the existence of any prior permanent disability award(s) involving and/or including any other region(s) of the body, the percentage of permanent disability from the prior award(s) will be subtracted from the percentage of permanent disability for the body region of the most recent injury, unless the applicant disproves overlap, i.e., the applicant demonstrates that the prior permanent disability and the current permanent disability affect different abilities to compete and earn, either in whole or in part; and

(5) The issue of whether the prior permanent disability for a different region of the body overlaps the current disability is determined using substantially the same principles that were applied prior to the enactment of section 4664.

(1) If a defendant undertakes utilization review to determine whether a proposed treatment is medically necessary, and if the utilization review physician finds that the treatment is medically necessary but raises questions as to whether the treatment is industrially-related, the utilization review report is admissible in evidence for the limited purposes of establishing: (a) utilization review was undertaken and the date(s) of the utilization review physician's report(s); (b) the utilization review physician found the proposed treatment to be medically necessary; and (c) the utilization review process has resulted in a dispute as to whether the industrial injury caused or contributed to the need for the treatment;

(2) A utilization review physician finds that a treatment is medically necessary but questions whether the need for that treatment is causally related to the industrial injury, the defendant must either: (a) authorize the treatment; or (b) timely deny authorization based on causation within the deadlines set forth in section 4610(g)(1); timely communicate the denial based on causation to both the treating physician and the applicant within the deadlines set forth in section 4610(g)(3)(A); and timely initiate the AME/QME process within 20 days of the receipt of the utilization of physician's report, if the employee is represented by an attorney, or 30 days, if the employee is unrepresented, in accordance with section 4062(a)*; and

(4) Although the ACOEM guidelines are "presumptively correct on the issue of extent and scope of medical treatment" (Lab.Code 4604.5(c), they are not presumptively correct on the issue of whether a need for medical treatment is causally related to the industrial injury.

* In reaching this holding, we are not addressing any issues relating to proposed spinal surgery under sections 4610(g)(3)(A) & (B) and 4062(b).

1) Section 4663(a)'s statement that the apportionment of permanent disability shall be based on "causation" refers to the causation of the permanent disability, not causation of the injury, and the analysis of the causal factors of permanent disability for purposes of apportionment may be different from the analysis of the causal factors of the injury itself.

2) Section 4663(c) not only prescribes what determinations a reporting physician must make with respect to apportionment, it also prescribes what standards the WCAB must use in deciding apportionment; that is, both a reporting physician and the WCAB must make determinations of what percentage of the permanent disability was directly caused by the industrial injury and what percentage was caused by other factors.

3) Under section 4663, the applicant has the burden of establishing the percentage of permanent disability directly caused by the industrial injury, and the defendant has the burden of establishing the percentage of disability caused by other factors. 4) Apportionment of permanent disability caused by "other factors both before and subsequent to the industrial injury, including prior industrial injuries," may include not only disability that could have been apportioned prior to SB 899, but it also may include disability that formerly could not have been apportioned (e.g., pathology, asymptomatic prior conditions, and retroactive prophylactic work preclusions), provided there is substantial medical evidence establishing that these other factors have caused permanent disability.

5) Even where a medical report "addresses" the issue of causation of the permanent disability and makes an "apportionment determination" by finding the approximate relative percentages of industrial and non-industrial causation under section 4663(a), the report may not be relied upon unless it also constitutes substantial evidence.

The Board defined "final" as a decision where appellate rights have been exhausted prior to April 19, 2004.

2) If a defendant undertakes an untimely utilization review procedure, any utilization review report obtained as to the particular treatment in dispute is not admissible in evidence, and any utilization review report obtained cannot be forwarded to an AME or QME if section 4062(a) procedures are timely pursued; and;

3) When a defendant does not meet the section 4610(g)(1) deadlines, it may use the procedure established by section 4062(a) to dispute the treating physician's treatment recommendation; however, the defendant (not the applicant) is then the "objecting party" and the defendant must meet the section 4062(a) deadlines, unless those deadlines are extended for good cause or by mutual agreement.

(2) Once the panel QME's evaluation has been obtained, neither the treating physician nor the utilization review physician may issue any further reports addressing the post-utilization review treatment dispute;

(3) The panel QME should ordinarily be provided with and consider both the reports of the treating physician and the utilization review physician regarding the disputed issues;

(4) If a post-utilization review medical treatment dispute goes to trial after the panel QME issues his or her report, both the treating physician's and the utilization review physician's reports are admissible in evidence;

(5) When a WCJ or the Appeals Board issues a decision on a post-utilization review medical treatment dispute, the reports of the panel QME, the treating physician, and the utilization review physician will all be considered, but none of them is necessarily determinative.

There were also a concurring and dissenting opinion and a dissenting opinion.

The Board also concluded that following the filing of an Application of Adjudication of Claim ("application"), and as soon as an applicant determines that the employer is or may be uninsured and has made a good faith effort to determine the correct legal identity of the employer, UEF may be ordered to appear provisionally at proceedings and ordered to assist in determining the correct legal identity of the employer pursuant to section 3716(d)(4). The Board announced several procedures intended to obtain the early and active participation of UEF when either the employee has difficulty in establishing the correct legal identity of the employer after good faith efforts, or when UEF objects to the correct legal identity of the employer as asserted by the employee.