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Grinberg: Some Body Parts Do Not Preclude Other Body Parts

By Gregory Grinberg

Tuesday, April 18, 2017 | 650 | 0 | min read

Today I bring you an unpublished decision from the California Court of Appeal, Iniguez v WCAB/Blue Rose Concrete Contractors.

Remember, dear readers, that citing an unpublished case in California results in a public flogging, and then the justices dance around you in a circle chanting in Latin as your body is lowered into boiling tar only to be feathered. Either that or you might just get sanctioned. I don’t really know anymore.

Anyhow, applicant sustained an injury in 2010, alleging injury to his head, neck, back, both shoulders and lower extremities. Among the many treatment reports produced during the case was an electro-diagnostic report indicating radiculopathy to the neck and low back. A qualified medical evaluator saw applicant in 2011 and opined that applicant had sustained injury to his left knee and right shoulder only. As it turns out, this electro-diagnostic report was not provided to the QME for review.

The matter proceeded to a hearing before a workers' compensation judge, with defendant raising several defenses, including statute of limitations and post-termination defense.  However, the WCJ concluded, in an opinion issued in 2012, that applicant sustained a compensable injury to his knee and shoulder.

Fast forward to 2013, and applicant is re-evaluated by the QME who now reviews the electro-diagnostic report from 2010 and changes his mind: Applicant DID sustain an injury to his low back and neck after all!

Well, defendant naturally takes the position that the issue of which body parts were injured was already adjudicated back in 2012, and applicant failed to seek reconsideration. In fact, Labor Code Section 5815 specifically provides that “[e]very order, decision or award … shall contain a determination of all issues presented for determination by the appeals board … [a]ny issue not so determined shall be deemed decided adversely as to the party in whose interest such issue was raised.”

Well, the WCJ ruled in favor of defendant on the issue of collateral estoppel and res judicata, and the split majority of the Workers' Compensation Appeals Board agreed.  However, upon seeking a writ of review, the WCAB changed its mind and asked to have the matter returned.

The Court of Appeal agreed with the WCAB and further ruled that the WCJ, in ruling that applicant sustained injury to the knee and shoulder, did not effectively find that applicant ONLY sustained injury to the knee and shoulder: “We have no doubt that the 2012 determinations of the WCJ was not a final award under the usual meaning of finality.”

But here’s the interesting thing: The WCJ — you know, the person who actually made the rulings — sided with defendant on the trial level. So it seems that the WCJ at least interpreted the original finding in such a way.

In any case, the Court of Appeal remanded this down to the WCAB with the conclusion that “the finding of industrial injury to certain body parts does not preclude applicant from later presenting evidence of industrial injury to other body parts in a subsequent proceeding."

Here’s the frustrating thing for your humble blogger: Applicant had already alleged injury to these additional body parts in his application and knew about the electro-diagnostic report from 2011 (presumably he was there when the exam was performed). Why wasn’t applicant diligent in getting everything in front of the QME for review? Why didn’t applicant reconsider the WCJ’s decision when out of a laundry list of body parts claimed, only two were found compensable?

Having to advise clients or just my fellow citizens about the process can be difficult because of the perception that the bar is lower and much more forgiving for applicants than for defendants. Let’s say defendants raised six affirmative defenses, and a WCJ ruled adversely to just one of them. Could defendants take several years to gather evidence and re-litigate the remaining five?

If the applicant was unhappy with the initial determinations by the panel qualified medical evaluator, why not provide additional information?

Your humble blogger regularly sees the threat of needlessly delaying cases used to leverage more for settlement on the part of applicant attorneys. Unfortunately, penalizing applicants or applicants’ attorneys for a lack of diligence is a far rarer sight.

Gregory Grinberg is workers' compensation defense attorney at the Law Office of Gregory Grinberg, based in the San Francisco Bay Area. This post is reprinted with permission from Grinberg's WCDefenseCA blog.

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