ADJ10480060 — California WCAB decision

What the panel ordered

Petitions for Reconsideration denied.

Petitions for Reconsideration filed by both applicant and defendant following WCJ's December 21, 2021 Findings of Fact, Award and Order and Opinion Decision.

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What was disputed, and how it came out

Each issue the panel decided, with the reasoning it gave. An outcome is what this panel did on this record — not a rule, and not a prediction.

Other disputed issueDefendant prevailed

Exhibit 8 was properly excluded as it contained inadmissible settlement demand evidence under Evidence Code section 1154.

From the decision · page 7At the time of trial, defendant sought to introduce into evidence a copy of its Declaration of Readiness to proceed with attachments. At the time of the trial, defendant argued that the settlement demand supported their claim for reimbursement from the applicant. (Minutes of Hearing from October 25, 2021 trial, page 6.) I sustained applicant's objection to the proposed Exhibit 8 as one of the attachments to the DOR was a prior written settlement demand from applicant attorney that was being submitted into evidence to support a claim against the applicant. Evidence Code section 1154 states:

Other disputed issue

The rules the panel named

Authorities as the decision cited them, with how this panel applied each one.

Labor Code section 4660.1

Permanent disability is determined by consideration of whole person impairment within the AMA Guides, Fifth Edition, per Labor Code section 4660.1.

Applied to evaluate permanent disability rating and rebuttal.

From the decision · page 41. Applicant did not rebut the permanent disability rating schedule with the report of his vocational expert.

Labor Code sections 5710(j) and 5811

Vocational expert costs are recoverable if reasonable and necessary under Labor Code sections 5710(j) and 5811.

Applied to determine liability for vocational expert costs.

From the decision · page 6If vocational expert evidence is otherwise admissible, the evidence shall be produced in the form of written reports. (Labor Code section 5710(j).) The costs of vocational evidence obtained to rebut a permanent disability rating are properly allowable under Labor Code section 5811. (Costa v. Hardy Diagnostic, (2007) 72 Cal. Comp. Cases 1492., Barr v. Worker's Comp. Appeals Board (2008) 164 Cal. App. Fourth 173) The cost must be "reasonable and necessary at the time they were incurred...and may be reimbursable even if the applicant is unsuccessful in his or her claim." (Id at 1498.) If the vocational rehabilitation costs have the potential to affect the permanent disability rating than the costs are recoverable. (Hennessy v Compass Group, 184 Cal. Comp. Cases 756, 763.) This is true even if the report is not substantial evidence. (Id.)

Evidence Code section 1154

Evidence Code section 1154 excludes settlement offers or demands from evidence to prove invalidity of a claim.

Applied to exclude defendant's Exhibit 8 containing settlement demand.

From the decision · page 7At the time of trial, defendant sought to introduce into evidence a copy of its Declaration of Readiness to proceed with attachments. At the time of the trial, defendant argued that the settlement demand supported their claim for reimbursement from the applicant. (Minutes of Hearing from October 25, 2021 trial, page 6.) I sustained applicant's objection to the proposed Exhibit 8 as one of the attachments to the DOR was a prior written settlement demand from applicant attorney that was being submitted into evidence to support a claim against the applicant. Evidence Code section 1154 states:

ADJ10480060 · March 14, 2022

What the panel ordered

What was disputed, and how it came out

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The facts that decided it

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The rules the panel named

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