Applicant is entitled to a new Qualified Medical Examiner ( QME ) pursuant to Navarro v. City of Montebello (2014) 79 ccc 418 when applicant filed a new injury claim after being examined by the original QME for the prior claims. Defendant claimed that applicant intentionally delayed filing new claim to obtain new QME. No evidence to support allegation.
Date of Injury- Injured employee is generally not charged with knowledge that disability is job related absent medical advice to that effect unless nature of disability and employee’s training, intelligence and qualifications are such that employee should have recognized relationship between known adverse factors involved.
Insurance Code Section 1871.5 states:
“Any person convicted of worker’s compensation fraud pursuant to Section 1871.4 or Section 550 of the Penal Code shall be ineligible to receive or retain may compensation where that compensation was owed or received as a result of a violation of Section 1871.4 or Section 550 of the Penal Code for which the recipient of the compensation was convicted.”
Tensfeldt v WCAB (1998) 66 Cal. App. 4th 116, 77 Cal. Rptr. 2d 691, 63 CCC 973 sets forth a three pronged test for determining whether a worker is entitled to receive or retain worker’s compensation benefits after a worker’s compensation insurance fraud conviction. An individual may retain or receive compensation benefits after a fraud conviction if there is (1) an actual, otherwise compensable, industrial injury ; (2) substantial medical evidence supporting an award of compensation not stemming from the fraudulent misrepresentation for which the claimant was convicted; (3) that claimant’s credibility is not so destroyed as to make claimant unbelievable concerning any disputed issue in the underlying compensation case. P.125-126.
The court held that an individual is barred from retaining or receiving any compensation which stems directly from the fraudulent misrepresentation.
Where the applicant has placed the correctness of the DFEC adjustment in issue and hired a vocational expert who has interviewed him, we believe that evaluation of applicant by defendant’s vocational expert is best calculated to ascertain the substantial rights of the parties and carry out justly the spirit and provisions of the worker’s compensation laws, as required by Labor Code section 5708.
Department of Rehabilitation/State of California v WCAB (Lauher) (2003) 30 Cal 4th 1281, 70 P.3d 1076, 135 Cal Rptr2d 665, 68 CCC 831. The Supreme Court in Lauher held that the applicant did not demonstrate discrimination Under Labor Code Section 132a when a defendant used applicant’s sick leave and vacation time when the applicant, who had become permanent and stationary, returned to work following the industrial injury, took off work to attend medical appointments for that injury.
Chronic Regional Pain Syndrome-look for non restorative sleep, chronic fatigue, depression, anxiety, headaches, temporomadibular joint syndrome, cognitive dysfunction, irritable bowel syndrome, decreased libido, vertiginous symptoms and hypersensitivity to environmental stimuli.
Chapter 18- chronic fatigue chapter 13 daytime alertness problems and emotional complaints chapter 14
In Blackledge v Bank of America (2010) 75 CCC 613, the court addressed what constitutes substantial medical evidence of whole person impairment under the AMA Guides and Almarez/Guzman II
Under the AMA Guides, a physician performs an evaluation to determine the WPI for the injured employee’s medical condition(s) expressed as a percentage. (AMA Guides, Section 2.1, at p. 18). The impairment evaluation includes a discussion of the employee’s history and symptoms, the results of the physician’s examination, the results of various tests and diagnostic procedures, the diagnosis, the anticipated clinical course, the need for further treatment, and the residual functional capacity and ability to perform activities of daily living. After considering all of these factors, the physician compares the medical findings for each condition with the impairment criteria listed within the Guides and then calculates the appropriate impairment ratings for the conditions. The physicians report should include a summary list of the impairments and impairment ratings by percentage, together with a calculation of the final WPI, and a statement of the rationale underlying the WPI opinion.
The opinion of a single physician may establish an injured employee’s WPI, provided that the opinion constitutes substantial evidence. Place v. WCAB (1970), 35 CCC 525, 529-530. Among other things, to constitute substantial evidence regarding WPI a physicians opinion must comport with the AMA Guides, including as applied and interpreted in published appellate opinions and en banc decisions of the Appeals Board. Hegglin v WCAB (1971) 36 CCC 93. Medical report and opinions are not substantial evidence … if they are based on incorrect legal theories. Zemke v WCAB (1968) 33 CCC 358, 360. An expert’s opinion which …assumes an incorrect legal theory cannot constitute substantial evidence.
Also, a physician’s opinion regarding WPI must set forth the physician’s reasoning, not merely his or her conclusions. Granado v. WCAB (1970) 33 CCC 647, 653
A physician’s mere conclusion not sufficient. Zemke p, 363. People v Bassett (1968) 70 Cal Rptr 193. The 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.
To rebut a PDRS rating by showing a higher DFEC the employee must establish that his diminished future earnings are directly attributable to the employee’s work related injury, and not due to nonindustrial factors such as general economic conditions, illiteracy, proficiency in speaking English, or an employee’s lack of education. Ogilvie III 197 Cal. App. 4th p. 1275.