ADJ111292949 — California WCAB decision

ADJ111292949 · September 16, 2024

Petition for Reconsideration granted; Findings and Award amended to reflect preexisting disabilities as per Dr. Hirsch's opinions; attorney's fees issue deferred; permanent disability awarded at 100% less credit and subject to COLA.

Issues decided

Medical opinions weighed

Authorities named

District office

Oxnard

What the panel ordered

Petition for Reconsideration granted by the WCAB panel, amending the Findings and Award of July 3, 2024.

Read the official decision →

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.

Sanctions under Labor Code §5813Deferred

The WCAB deferred the issue of attorney's fees due to lack of evidence substantiating the 25% fee awarded by the WCJ, noting fees are governed by statute and rule, not case complexity.

From the decision · page 9Finally, we note that the WCJ awarded 25% in attorney's fees. The WCJ explained that "this case was substantially complex enough to warrant a fee of equal to 25% of each future payout from SIBTF awarded." (Opinion on Decision dated July 3, 2024.) We recognize the care that applicant's attorneys exercised in representing applicant and the positive result achieved for applicant. However, there has not been any evidence taken to substantiate an award of 25%. Furthermore, attorney's fees are governed by Labor Code, section 4903 and WCAB Rule 10844, not necessarily the "complexity" of a case. For that reason, we amend the Findings and Award to defer the issue of attorney's fees.

The rules the panel named

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

Hulbert v. Workmen's Comp. Appeals Bd., 47 Cal.App.3d 634, 640

To prove a preexisting disability, there needs to be evidence prior to the subsequent injury of a medically demonstrable impairment.

The WCAB applied this standard to reject retroactive prophylactic work restrictions and to require substantial medical evidence of labor disabling conditions prior to the subsequent injury.

From the decision · page 5To prove a preexisting disability, there needs to be evidence prior to the subsequent injury of a medically demonstrable impairment.

Hulbert v. Workmen's Comp. Appeals Bd., 47 Cal.App.3d 634, 640

Retroactive prophylactic work restrictions cannot establish a preexisting disability absent evidence the worker was actually restricted prior to the industrial injury.

The WCAB applied this principle to distinguish between retroactive restrictions and actual preexisting disabilities.

From the decision · page 5A preexisting disability cannot be established by a "retroactive prophylactic work restriction" on the preexisting condition placed on the injured after the subsequent industrial injury in absence of evidence to show that the worker was actually restricted in his work activity prior to the industrial injury. (Hulbert v. Workmen's Comp. Appeals Bd., supra,

Labor Code sections 5708, 5709

Workers' compensation proceedings allow for certain informalities and relaxation of rules of evidence.

The WCAB applied this to admit Dr. Hirsch's report despite the medical records not being formally admitted.

From the decision · page 9Moreover, we do not deem fatal the fact that none of the medical records relied by Dr. Hirsch were admitted into evidence. Workers' compensation proceedings allow for certain informalities and relaxation of rules of evidence. (See Lab. Code, § 5708, 5709.) We conclude Dr. Hirsch's February 8, 2022 report to be substantial evidence for purposes of establishing applicant's preexisting disabilities.

ADJ111292949 · September 16, 2024

What the panel ordered

What was disputed, and how it came out

Your case already resembles someone else’s. Find whose.

The facts that decided it

What the panel did with the medical opinions

The rules the panel named

What proof carried it

About this page