Cases pending on appellate grants

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Cases pending on appellate grants

Iniguez, E. B276997 ADJ7672487 Writ issued 11/3/2016

-- Whether applicant’s claims of injury to the cervical spine and lumbar spine were barred pursuant to Labor Code 5815 where the WCJ had previously issued a Findings of Fact on February 24, 2012, which found injury to applicant’s right shoulder and left knee and that his claim was not barred by the statute of limitations, but the Findings of Fact and the Opinion were silent as to any other body parts and no issues were deferred and applicant did not seek reconsideration of the Findings of Fact.

Hernandez, L. D070915 ADJ4081602 Writ issued 10/27/2016

-- Whether an order of further restitution was properly denied where applicant pled guilty to workers’ compensation fraud in Superior Court, which included an order of $9,000.00 of restitution and where the WCJ found that the holding in Tensfeldt v. Workers’ Comp. Appeals Bd. (1998) 66 Cal App 4th 116 [63 Cal.Comp.Cases 973] was controlling, and that applicant sustained an actual, otherwise compensable, industrial injury, that applicant’s award of disability did not stem from the fraudulent activity, and that applicant was a credible witness and that his credibility was not so destroyed as to make him unbelievable in regards to the existence of impairment.

McCartney, J C082282 ADJ9510323 Writ issued 8/11/2016

-- Whether applicant sustained an injury arising out of and in the course of employment to his skin via actinic keratosis, where applicant established a significant history of sun exposure while working as a deputy sheriff and where the qualified medical evaluator opined that sun exposure is a contributing factor to the development of actinic keratosis, but could not opine on the precise numerical percentage of the contributing effect.

Guerrero, J. H043291 ADJ1377005 Writ issued 7/25/2016

-- Whether Subsequent Injuries Benefits Trust Fund (SIBTF) benefits should have begun following the conclusion of applicant’s last payment of temporary disability on June 15, 2006 pursuant to Brower v. David Jones Construction (2014) 79 Cal.Comp.Cases 550 (Appeals Board en banc), instead of the date upon which applicant became permanent and stationary, which occurred on January 26, 2011. 

Gonzalez Leon, V. C081895 ADJ3655308 Writ issued 7/22/2016

-- Whether a lien for living expenses pursuant to Labor Code section 4901.1(a)(3)(A), consisting of benefits paid to applicant by the California Correctional Peace Officers Association Benefit Trust Fund, may only attach to her temporary disability benefits and not permanent disability benefits, where the subject lien was filed after all temporary disability benefits had been paid.

Gaona, R B271987 ADJ7170139 Writ issued 7/18/2016

-- Whether the Board correctly (1) dismissed reconsideration and denied removal of defendant’s motion to strike a psychiatric AME’s report based on an ex parte communication by applicant’s attorney, when applicant caused to be served on the psyche AME, without prior notice to defendant, a pain management specialist’s report that previously had been requested by the AME but ignored by defendant; and (2) found that defendant waived its objection to the communication by its subsequent agreement to serve the orthopedic AME with the pain specialist’s report and the psyche AME report.

Romo, P. A147582 ADJ8778127 Writ issued 7/8/2016

-- Whether the Board correctly found that a firefighter who last worked for a fire protection district in 1991 was an active volunteer within the meaning of Labor Code sections 3212.1 and 3361, and that the firefighter was entitled to the industrial cancer presumption of section 3212.1 where he was not diagnosed until 2011 and where he “last worked in specified capacity” for other fire departments from 2002 to the present.

Gage, R. C081618 ADJ8010054 Writ issued 5/19/2016

-- Whether the Board correctly concluded that disability retirement advances to peace officers under Labor Code § 4850.4 do not constitute “compensation” within the meaning of Labor Code § 3207 and thus, are not subject to penalty for delay in payment under Labor Code § 5814.

Sylves, P. E065688 ADJ9538021 Writ issued 4/27/2016

-- Whether the Board correctly concluded that a former peace officer’s claim of cumulative injury to various body parts was not barred by the Statute of Limitations and was subject to the Labor Code § 3213.2 presumption of low back injury, notwithstanding the peace officer’s post-retirement employment as a police officer for a federally-recognized Native American tribe.

Baker, J. C080895 ADJ8111772 Writ issued 4/8/2016

-- Whether the Board correctly concluded that the time periods in Labor Code § 4610.6(d) are directory and not mandatory, and if they are mandatory, whether an untimely IMR determination  removes the dispute from the Labor Code § 4610.5 IMR appeals process and allows it to be determined by the WCAB under Labor Code § 4604.

Margaris, D. B269038 ADJ9397913 Writ issued 3/11/2016

-- Whether the Board correctly concluded that the Lab. Code § 4610.6(d) requirement that the Independent Medical Review (IMR) organization “make its determination in writin ... within 30 days of the receipt of the request for review and supporting documentation” is mandatory, and whether the Board correctly concluded that it had authority to determine the reasonableness and necessity of the medical treatment at issue because the IMR organization’s determination was not made within the 30-day deadline.

Hernandez, A. B268700 ADJ1646469 Writ issued 2/26/2016

-- Whether the Board correctly concluded that a California Highway Patrol officer who in 2013 obtained an award of temporary disability indemnity at $881.56 per week for five months in 2011 was paid in conformity with Labor Code section 4800.5, in that he was provided a leave of absence without loss of salary for that period, and whether the Board correctly denied the officer’s claims that he had not been paid in full and that the Highway Patrol violated Labor Code sections 3751 and 3752 by using the officer’s annual leave to satisfy workers’ compensation benefits.

Kwok, N. B268231 ADJ8464986 Writ issued 2/5/2016

-- Whether the Board correctly concluded that the claim of an injured employee, who is in a vegetative state due to a restaurant accident that occurred in 2005, is not barred by the Statute of Limitations or by laches where the claim was not served upon the employer’s insurer until 2012, and whether the case should be remanded to an arbitrator (through the WCAB) to determine under Labor Code section 5275(a) whether there is coverage by the employer’s insurer and whether laches relieves the insurer of liability.

Zuniga, S. A143290 ADJ2563341 Writ issued 2/3/2016

-- Whether the Board correctly concluded that Labor Code 4610.6(f), which provides in part that “the independent medical review organization shall keep the names of the reviewers confidential in all communications with entities or individuals outside the independent medical review organization,” does not deny due process to an injured employee who seeks to obtain medical treatment under Labor Code 4600.

Southard, S. C079912 ADJ218782 Writ issued 10/2/2015

-- Whether the Board correctly concluded that the time periods in Labor Code section 4610.6(d) are mandatory, and that if an IMR determination is not timely issued, the treatment dispute is not covered by Labor Code section 4610.5 and may be determined by the WCAB under Labor Code section 4604.

Ramirez, D. C078440 ADJ6821103 Writ issued 5/13/2015

-- Whether the Utilization Review (UR) and Independent Medical Review (IMR) process that resulted in denial of acupuncture treatments for a lower extremity injury under existing award violates the workers' compensation provisions of the California Constitution (Art. XIV, § 4) and applicant's right to due process under the California and U.S. Constitutions.

Rice, C. C078706 ADJ8701916 Writ issued 4/30/2015

-- Whether the Board erred in rejecting the apportionment opinion of the panel Qualified Medical Evaluator, who found that 49% of the injured police officer’s neck disability was caused by genetic predisposition to degenerative disc disease, as demonstrated by his father’s medical history.

Stevens, F. A143043 ADJ1526353 Writ issued 12/3/2014

-- Whether Independent Medical Review under Lab. Code §§ 4610.5 & 4610.6, as instituted by the Legislature through Senate Bill 863, violates the injured employee's right to due process and the workers' compensation and separation of powers clauses of the California Constitution.

November 2016