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Recent Happenings of Interest in Workers' Comp


As many of you are aware, most of my email messages focus on published appellate or W.C.A.B. decisions.  These cases provide citable authority and help define issues in workers' compensation at the highest appellate levels.  On occasion however, there are interesting cases that are do not carry such lofty legal standing but which are nevertheless interesting and useful to our understanding of ongoing issue in workers' compensation.


Such interesting cases include the two following decisions in the 5th circuit.  The 5th circuit does something on a regular basis that other district do only occasionally. The courts in that district will often provide an opinion in a case where the decision involves a denied petition for writ of review.  These cases show up on the Appellate Website in the Unpublished case reports.  However, unlike unpublished decisions of the courts of appeal, these cases are citable as authority since they are actually writ denied cases and are reported as such.  The following two cases therefore are unpublished court of appeal opinions but in writ denied cases (the petitioner's request for a Writ to review a W.C.A.B. decision was denied without oral argument).  The level of authority is fairly low but each of these cases is the first reported decision on their issues and therefore the writ denied authority is the best we have at this time.  Furthermore, the CCC citation for these cases is likely to include the appellate court language and the courts rational for its decision to deny the writ may be very persuasive give where the decision arose.


Additionally I am providing comment and copies of two recent W.C.A.B. decision that are being published as "Noteworthy Panel Decisions in the CCCs.  While these cases have little legal authority, they do provide some guidance on potential arguments that should be raised on the issued addressed and may prove to be the first in a series of cases that define the areas  of law that are covered.




In this case the applicant argued that the provision of Labor Code § 4656 that limit TTD to 104 weeks from commencement of that benefit represents an unconstitutional implementation by the legislature of its obligation to provide for a full system of workers' compensation benefits.  The W.C.A.B. at both trial level and on Reconsideration is not empowered to consider constitutional arguments and those issues can only be considered at the Court of Appeals which is the first level of judicial review with the legal authority to consider constitutional arguments.  In this case the 5th district denied applicant's petition for writ of review, effectively refusing to consider the issue.  The court however did provide some reasoning behind its decision including the following language:


Unlike Gunzenhauser, however, we do not find a constitutional requirement to provide temporary disability payments for any specific period of time.  Indeed, Gunzenhauser does not point to any constitutional provision mandating that the Legislature enact a workers' compensation system utilizing temporary disability indemnity payments at all.  To the contrary, the Constitution provides that, "The Legislature is hereby expressly vested with plenary power, unlimited by any provision of this Constitution, to create, and enforce a complete system of workers' compensation .."  (Cal. Const., art. XIV, § 4.)  This plenary grant of authority permits the Legislature enact, amend, and delete statutory workers' compensations benefit provisions as it deems appropriate


Given the language of other appellate decisions on issues involving prospective application of newly enacted laws and the ability of the legislature to define workers' compensation as it see fit; constitutional challenges to provisions of SB 899, without some other language in the State constitution to support the arguments, appears doomed to failure.




This is the first case that this author has seen interpreting the burden of proof for specified public safety officers to qualify for the presumption under Labor Code § 3212.8 involving blood borne diseases.  The deceased injured worker in this case died from flu like symptoms.  His blood work never demonstrated any viral or bacterial infection and the cause of death was "undetermined natural disease".


Applicant presented evidence from Dr. Robert Blau, arguing that the decedent must have died from some blood borne pathenogen but did not identify any actual disease process to support the conclusion.  Defendant's expert and the pathologists who examined the tissue noted that there was no evidence of any viral or bacterial cause of death.  The trial WCJ accepted defendant's argument that the decedent's widow had not met her burden to show that there actually was any blood borne pathenogen.  The W.C.A.B. also denied applicant's appeal as did the Appellate District. 


If applicant had prevailed in this case, the burden on defendants would have required them to prove that there was not a blood borne pathenogen in any case where a employee covered under the presumption became ill without any evidence of the disease responsible.  Applicant argued that all her burden required was to show the employee's death was probably caused by some pathenogen that likely traveled through the blood stream and thereafter defendant was required to provide affirmative evidence as to the actual cause of death.   Instead this case places the burden on the applicant to show the existence of the blood borne pathenogen as part of the prima facia case of industrial causation.  The court agreed with defendant S.C.I.F.'s argument that the legislature very likely intended that this presumption would apply to diseases transmitted through blood contact and not just infectious conditions that might show up in an injured employee's bloodstream.  The court however declined to be specific on this issue, finding instead that the applicant had not met her burden to show any disease process at all.


In the present matter, Petitioner never established the underlying basic facts necessary to invoke the application of the section 3212.8 presumption -- that a blood-borne infectious disease developed or manifested itself while DuFour was employed as a Modesto police officer.  As the party requesting application of the presumption, Petitioner carried the burden of proving by a preponderance of evidence the underlying presumption conditions.  (§§ 3202.5, 5705.)  Although Petitioner relies on Dr. Blaus's medical opinion, his opinion itself must rest on relevant facts.  (Zemke v. Workmen's Comp. Appeals Bd. (1968) 68 Cal.2d 794, 798.)  "[T]he chief value of an expert's testimony rests upon the material from which his or her opinion is fashioned and the reasoning by which he or she progresses from the material to the conclusion, and it does not lie in the mere expression of the conclusion; thus, the opinion of an expert is no better than the reasons upon which it is based."  (Escobedo v. Marshals (2005) 70 Cal.Comp.Cases 604, 621 [en banc], citing People v. Bassett (1968) 69 Cal.2d 122, 141, 144.)  Dr. Blau's opinion here is not based on a medical finding that DuFour died from a blood-borne infectious disease.  Instead, he formed his opinion on an absence of any other cause of death.  None of the reviewing physicians, including Dr. Blau himself, found any evidence of a disease carried in DuFour's blood that would give rise to the presumption of compensability.


MAGANA v. ESSEY INT'L (W.C.A.B. Panel Decision)


This case in being published as a "Noteworthy Panel Decision" in the California Compensation Cases.  As such it does not represent any significant legal authority.  However it certainly provides guidance on arguments the at least some of the commissioners are willing to accept on how to utilize vocational testimony in rebuttal to the 2005 PDRS.


Applicant in this action presented vocational testimony as part of the case in chief seeking to increase the value of PD.  The VRC testified to a 27% loss or earning capacity as a result of the disability described from the injury.  Defendants presented similar testimony that applicant had no loss of earning capacity.  The actual rating using the AMA guides ended up at 12% and the WCJ rejected both experts' opinions and issued a rating on the based on the AMA guides.


The W.C.A.B. granted Reconsideration to further study the issue and ultimately upheld the WCJ's opinion.  In its decision, the W.C.A.B. rejected applicant's argument that the adjusted AMA guideline rating should be replaced with the loss of earning capacity numbers (Diminished Future Earnings Capacity or DFEC). The decision notes that the FEC adjustment in the PDRS is only one portion of the Permanent Disability and the applicant's DFEC figures could not replace the total rating but only served to rebut the FEC adjustment.  Since the range of DFEC was between 0% and 27%, the FEC adjustment schedule between 10% to 40% increase in the rating was inherently reasonable:


"Reviewing the language of subdivision (a), it is clear that DFEC is not the sole determining factor of PD.  Rather, DFEC must be given consideration along with the nature of the physical injury or disfigurement, the occupation of the injured employee, and his or her age at the time of the injury.  Furthermore, ''the nature of the physical injury or disfigurement'' must incorporate the descriptions and measurements of physical impairments and the corresponding percentages of impairments published in the AMA Guides.


   Accordingly, it is clear that a rating based upon rebuttal testimony which arrives at a PD rating established solely on DFEC, without more, is not a valid rating.  To simply convert a DFEC percentage to the overall percentage of PD, as suggested in applicant's petition herein, is invalid under Labor Code section 4660(d)." 


The W.C.A.B. also noted that the testimony was presented before the rating instructions issued and therefore could not have been used to rebut the rating from the PDRS.  The Board also commented that neither expert provided an explanation as to why the rating schedule FEC number should not be considered valid:


"Specifically, neither Ms. Tincher (defendant's expert) nor Mr. Largo (applicant's expert) explained why the DFEC adjustment factor contained in the 2005 PDRS is somehow inadequate, or why a different DFEC should apply.  Therefore, we will affirm the WCJ's decision." (editor's addition in parentheses).


Certainly this language is a far cry from the arguments raised by many applicant attorneys that the DEFC numbers should simply replace the ratings under the 2005 PDRS.  If such evidence is only going to affect (potentially) the FEC adjustment, the use of such testimony is going to be significantly impacted.  This is, of course, only one W.C.A.B. panel decision and we can anticipate may further decisions on this issue that will expand on how the W.C.A.B. is to use DFEC testimony.  The Board's language, for instance, does not tell us what we do if the DFEC testimony in considered a valid rebuttal to the FEC; with number in excess of the FEC range (10 - 40%). A copy of this case is attached to this message.




This is another Noteworthy Panel Decision that provides some guidance from the W.C.A.B. on an issue that has puzzled many us since the passage of SB 899.  The issue is whether an employee who is continues to work at their usual and customary job but is left with residual disability but the employer fails to make a timely offer of regular/alternative/modified work under Labor Code § 4658(d)(3)(A).  In this decision the W.C.A.B. takes a pragmatic approach to the issue:


"Defendant's compliance with the purposes of this provision is evidenced by the fact that as of the date applicant became permanent and stationary March 31, 2006, she was employed by defendant performing her regular work.  There has been no indication that applicant has been terminated from her position, and thus her regular work has extended for the requisite twelve months from her permanent and stationary date.  The subsequent timing of defendant's offer is not dispositive for the purposes of this provision, where applicant has been employed full time in her regular work.  We do not agree with the WCJ's conclusion that defendant has elevated form over substance in seeking to obtain the 15% reduction in permanent disability benefits provided by Section 4658(d)(3)(A)."


One of the issues that has also confounded employers' ability to comply I with this section is the frequent problem of not having the information to make a job offer when the P & S report of the PTP comes in months after the date indicated in the report.  The W.C.A.B. was equally pragmatic about this also:


"We are also persuaded, on this record, that defendant substantially complied with the requirements of Section 4658(d)(3)(A), in that its offer was made prior to the issuance of the implementing regulations and issuance of the final DWC form for the requisite notice.  It complied with the notice requirement using a proposed DWC form soon after receipt of the comprehensive permanent and stationary report.  We believe it was not unreasonable for defendant to await Dr. Ballinger's issuance of his comprehensive permanent and stationary report before complying with the notice requirement, as defendant's receipt of the physician's final opinion on the extent of applicant's ability to engage in her usual and customary occupation was a necessary prerequisite to its determination that the job offer was appropriate, particularly where the applicant continued to work during the period.

The continuation of applicant's regular work throughout the period after her injury and her permanent and stationary date is sufficiently equivalent to the notice of regular work.  We see no reason to deprive an employer of the benefits of Section 4658(d)(3)(A) where the employee has not been temporarily disabled through the permanent and stationary date."


This case only involved a 3% disability and applicant did not appeal the decision.  Having provided dozens of training sessions to clients on this topic with one of the most frequent questions that I was asked was how to deal with the kind of situation in this case.  My response has always been that the statute is clear that the offer must be timely made or the increase goes into effect.  I have always qualified that comment with the observation that the courts have the ability to create a pragmatic approach to the employers obligation to provide employment.  This might be the beginning of such a trend.


My thanks again to William Anderson at S.C.I.F. for bringing these cases to my attention.

Richard M. Jacobsmeyer

Certified Specialist, Workers' Compensation Law

The State Bar of California Board of Legal Specialization



475 – 14th Street, Suite 850

Oakland, CA 94612

Tel: (510) 645-7172

Fax: (866) 563-0092

Certified Specialist, Workers' Compensation Law The State Bar of California Board of Legal Specialization

Shaw, Jacobsmeyer, Crain & Claffey, PC
1600 Riviera Avenue, Suite 305, Walnut Creek, CA 94596 Phone:(510) 645-7172 Fax (866) 563-0092

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