Potentially imposes virtually limitless liability on an employer who requires regular fitness tests as part of a job position. If regular exercise is a reasonable expectation of a job, then potential 24/7 coverage is possible.

Supported apportionment when a disability is caused by non-industrial factors even when those non-industrial factors are repaired or removed.

Upheld the 24 chiropractic visits as specified in LC §4604.5(d).

The Second Appellate Court found the differential treatment between deputies injured at work and those who are not violated LC § 4850, which provided that when a public safety officer was disabled, whether temporarily or permanently, by injury or illness arising out of and in the course of his duties, he was entitled to a leave of absence while so disabled without loss of salary.

The issue presented in this case is whether the rule in Wilkinson is still viable in view of the significant changes effected by SB 899. Wilkinson provided that an injured worker could receive a single combined award of permanent disability in circumstances of multiple injuries to the same part of the body that become permanent and stationary at the same time.

The Fifth District Court of Appeal determined that an injury sustained by an employee acting in response to emergency or other situation, whether classified as rescue, response to emergency, or exercise of common decency, is within course of employment.

Reaffirmed the decision of Fuentes v. WCAB, that permanent disability from subsequent injury is not to be rated in conjunction with any prior disability. Thus the prior percentage of disability is subtracted to arrive at the permanent disability after apportionment.

An employer’s failure to invoke the dispute-resolution mechanism of FMLA or CFRA, which allows a health care provider jointly chosen by the parties to determine the employee’s entitlement to medical leave, does not bar the employer from later claiming that the employee did not suffer from a serious health condition and was capable of performing her job.

The California Supreme Court determined that employee could not state a cause of action for wrongful termination in violation of public policy due to his termination for medical marijuana use. The Compassionate Use Act did not put the company on notice that employers would be required under the FEHA to accommodate the use of marijuana.

The Appellate court determined that benefits provided under Education Code Section 44043 do not constitute temporary disability benefits and are not part of the applicant's two-year window of temporary total disability benefits. These benefits are included applicant's TTD benefit and therefore are to be counted toward the two- year/104-week payment limitation under Labor Code § 4656(C)(1).

The Second District Court of Appeal found the differential treatment between deputies injured at work and those who are not violated Lab. Code, § 4850, which provided that when a public safety officer was disabled, whether temporarily or permanently, by injury or illness arising out of and in the course of his duties, he was entitled to a leave of absence while so disabled without loss of salary.

The Third District Court of Appeal determined that workers' compensation benefits are not available where an employee engages in harassing and demeaning behavior in the workplace, causing others to respond in a way the employee subjectively finds offensive and psychologically injurious.

As of January 1, 2005, Labor Code §4660 went into effect requiring that the determination of percentages of permanent disability be based upon the percentages described in the American Medical Association Guides to the Evaluation of Permanent Impairment (5th Edition).

Rn Torres, the applicant sought reconsideration of a May 5, 2006 Findings and Award issued by a WCJ wherein it was found that the applicant sustained injury to her hands and neck which caused 16% permanent disability and need for further medical treatment. The WCJ found the 16% permanent disability rating based upon the new rating guidelines.

Elizabeth Aldi v. Carr, McClellen et. al. 71 CCC *** (advance posting and subject to change) 2006 Cal.Wrk.Comp.LEXIS 189

As litigation continues over the meaning of changes under SB 899, one of the biggest issues at the Workers Compensation Board is what rating schedule applies to the parties particular case.

Recently confusion has arisen as to pre-designation of chiropractors as treating physicians. Final “Pre-Designation Regulations” became effective March 7, 2006 and affirm that the right to pre-designation of personal chiropractors or acupuncturists, as the right to pre-designation of treating physicians, is not an unfettered right

A compromise and release agreement is not valid unless the Appeals Board or a WCJ approves it. The purpose of this requirement is to afford protection to an injured worker, unfamiliar with the nature or extent of his or her rights under the compensation law, and unable to deal on equal terms with the employer or insurance carrier. Without this protection, settlement might be a means of disposing of a claim for less than the legal liability involved, and thus of defeating the purposes of the compensation law..

The California Court of Appeals has ruled that an employer who creates a temporary transitional work position for a disabled worker does not have to make that temporary transitional job permanent. In the case of Mark Raine v. City of Burbank, the Court of Appeals upheld the trial court’s granting a motion for summary judgment, finding that Raine, a police officer for Burbank Police Department, was unable to perform the essential job functions of a sworn patrol officer with or without reasonable accommodation and that it was unreasonable to require the City to permanently place Raine at the front desk, which was a permanent position reserved for civilian personnel.

On December 20, 2005, the State of California Court of Appeal, 5th Appellate District, issued an Opinion in the E&J Gallo Winery v. WCAB and David Dykes case. The Court of Appeal heard a Petition for Writ of Review filed by E&J Gallo Winery, which appealed the denial of the Petition for Reconsideration by the WCAB and the original Decision by the Worker’s Compensation Judge on the issue of apportionment under Labor Code Section 4664.

Permanent MPN Regulations are pending and the Requested effective date for permanent regulations is September 15, 2005. Thus, the emergency legislation relating to notice is still in effect. The following is applicable as of the date of this writing (August 24, 2005) relating to the MPN employee notification process.

For those of us involved on the defense side in the California workers compensation system, a substantial amount of time is spent working on cases with applicants that have multiple claims to various body parts with multiple employers and carriers. Often, due to the past state of the workers compensation system, the California Insurance Guarantee Association (CIGA) is involved for carriers who have gone into liquidation.

It appears that despite having a Medical Provider Network (MPN) established pursuant to Labor Code section 4616 et. seq., a pre-designated “personal physician” in some instances may be a doctor outside the MPN. This is assuming all the qualifications for pre-designation have been met.

Many have recently inquired as to the scope of utilization review pursuant to Labor Code section 4610 and specifically whether or not an employer must subject all treatment requests to the utilization review process. No recent case law construes the scope of utilization review. Thus, we are left with the plain language of the statutes.

The consequences for failing to obtain and serve a timely Utilization Review (UR) report pursuant to Labor Code section 4610 (g) (1) are currently quite severe. However, recent litigation offers the potential of softening the strict standards seemingly imposed and required by the California Workers’ Compensation Appeals Board.

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