Inability to Tolerate Sound Did Not Equate to Total Inability to Work Again: Cal. Comp. Cases June Advanced Postings (5/29/2014)

Here’s the first batch of advanced postings for the June 2014 issue of Cal. Comp. Cases.

Lexis.com and Lexis Advance subscribers can link to the case to read the complete headnotes and summaries.

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Coleman Burke, dba Pride and Joy, Petitioner v. Workers' Compensation Appeals Board, Michael Burton, Uninsured Employers Benefits Trust Fund, Respondents, lexis.com, Lexis Advance

Permanent Disability—Rating—Vocational Evidence—WCAB affirmed WCJ’s finding that applicant/musician suffered 85 percent permanent disability as result of cumulative industrial injury to his hearing and compensable consequence psychiatric injury during his employment as musician, based on range of evidence, including applicant’s credible testimony regarding his symptoms and limitations and on testimony of vocational expert, which WCAB found was more accurate reflection of applicant’s actual disability than…

Monsanto Company, Ace American Insurance Company, administered by Sedgwick Claims Management Services, Petitioners v. Workers' Compensation Appeals Board, Cheryl McMillin, Respondents, lexis.com, Lexis Advance

Permanent Disability—Rating—Permanent Total Disability—WCAB, affirming WCJ, held that applicant/administrative assistant who sustained cumulative trauma to her psyche, bilateral upper extremities, lower extremities, and in the forms of cognitive disorder, gastrointestinal disorder, sleep disorder, and complex regional pain syndrome (CRPS), suffered permanent total disability “in accordance with the fact” pursuant to Labor Code § 4662 from combined effects of all of her impairments, based on…

Evidence—Admissibility—Due Diligence—WCAB affirmed WCJ’s order excluding surveillance films from evidence at trial, when defendant disclosed surveillance tapes for first time at mandatory settlement conference notwithstanding that applicant had made multiple demands for surveillance tapes prior to time films were obtained by defendant, and, to extent defendant alleged that…

Teresa Edge, Petitioner v. Workers' Compensation Appeals Board, Ralph's Grocery Store, PSI, administered by Sedgwick Claims Management Services, Inc., Respondents, lexis.com, Lexis Advance

Permanent Disability—Rating—Vocational Evidence—WCAB, reversing WCJ, held that applicant/deli manager failed to establish that her neck, shoulder, hand, and wrist injuries resulted in permanent total disability, when WCAB found that (1) opinion of applicant’s vocational expert was insufficient to rebut diminished future earning capacity (DFEC) adjustment in 2005 Permanent Disability Rating Schedule pursuant to Ogilvie v. W.C.A.B. (2011) 197 Cal. App. 4th 1262, 129 Cal. Rptr. 3d 704, 76 Cal. Comp. Cases 624 (Ogilvie III), because...

Average Weekly Wage Determinations—WCAB held that record did not support WCJ’s finding of $828 as applicant/deli clerk’s average weekly earnings, when applicant earned that level of pay for only one pay period while working for defendant and earned significantly less in all other pay periods, and WCAB found that...

Emanuel Aguilar, Petitioner v. Workers' Compensation Appeals Board, BHS Corrugated North America, Inc., The Hartford, Respondents, lexis.com, Lexis Advance

Injury AOE/COE—Going and Coming Rule—Uncompensated Lunch Breaks—WCAB, reversing WCJ in split panel decision, held that injuries suffered by applicant in motor vehicle accident while traveling back to work from unpaid lunch break as passenger in employer-provided rental car driven by co-worker were not compensable, when WCAB found that…

Dick Ambrose, Petitioner v. Workers' Compensation Appeals Board, Baltimore Ravens, formerly known as Cleveland Browns, Respondents, lexis.com, Lexis Advance

WCAB Jurisdiction—Exemptions—Professional Athletes—WCAB, affirming WCJ in split panel decision, held that defendant was exempted from California jurisdiction with regard to applicant’s claim for cumulative industrial injury while playing professional football for defendant from 6/15/75 through 9/1/85, when WCAB found that...

Samuel Kakudo, Petitioner v. Workers' Compensation Appeals Board, Denny's Restaurant, PSI, administered by Gallagher Bassett Services, Inc., Respondents, lexis.com, Lexis Advance

Permanent and Stationary Status—WCAB held that applicant senior manager became permanent and stationary on 6/30/2011 for 10/13/1995 industrial injury to neck, teeth, gums, psyche, and hemorrhoids, based on opinions from orthopedic agreed medical evaluator, and WCAB awarded applicant additional temporary disability from 6/30/2011 and continuing and further medical treatment, also based on agreed medical evaluator’s opinions, when WCAB found that…

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