What the panel ordered
Findings and Award dated November 4, 2020 affirmed; petition for reconsideration denied.
Petition for reconsideration filed by defendant City of Los Angeles after arbitration decision; reconsideration granted and decision after reconsideration issued affirming prior findings and award.
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.
The Board found the City's belated evidence irrelevant and upheld the medical evaluators' unanimous opinion that all disability was due to the 2015 industrial injury, not prior injuries or non-industrial causes.
From the decision · page 1OPINION AND DECISION AFTER RECONSIDERATION The Appeals Board granted reconsideration to study the factual and legal issues. This is our Decision After Reconsideration. In the Findings and Award dated November 4, 2020, the Workers' Compensation Arbitrator ("Arbitrator") found that applicant is "100% permanently totally disabled pursuant to Labor Code section 4662(a)(4)1 total mental incapacity; and/or LeBoeuf v. Workers' Comp. Appeals Bd. (1983) 34 Cal.3d 234," and that "all of applicant's current disability is apportioned to his March 6, 2015 industrial traumatic brain injury per the AMEs and QME in neurology, neuropsychology, urology, orthopedic and ophthalmology." Applicant's employer, the City of Los Angeles ("City"), filed a timely petition for reconsideration of the Arbitrator's decision.
The Board tolled the statutory period for reconsideration due to late notice and found no merit in the City's contentions, affirming the prior award.
From the decision · page 2At the outset, we note that the Appeals Board has 60 days within which to act on a petition for reconsideration. (Lab. Code, § 5909.) Here, through no fault of the City, its petition for reconsideration did not come to the attention of the Appeals Board until after the expiration of the statutory time period. Consistent with fundamental principles of due process and common sensibilities, we conclude that the running of the 60-day statutory period for reviewing and acting upon the City's petition for reconsideration was tolled for a reasonable period of time after the Board received actual notice of it. (Shipley v. Workers' Comp. Appeals Bd. (1992) 7 Cal.App.4th 1104, 1107-1108 [57 Cal. Comp. Cases 493]; State Farm Fire and Casualty v. Workers' Comp. Appeals Bd. (Felts) (1981) 119 Cal.App.3d 193 [46 Cal.Comp.Cases 622, 624].)
The Board credited the agreed medical examiners and vocational expert who found the applicant totally mentally incapacitated and unable to participate in the open labor market, rejecting the defendant's vocational expert's opinion as non-credible.
From the decision · page 1OPINION AND DECISION AFTER RECONSIDERATION The Appeals Board granted reconsideration to study the factual and legal issues. This is our Decision After Reconsideration. In the Findings and Award dated November 4, 2020, the Workers' Compensation Arbitrator ("Arbitrator") found that applicant is "100% permanently totally disabled pursuant to Labor Code section 4662(a)(4)1 total mental incapacity; and/or LeBoeuf v. Workers' Comp. Appeals Bd. (1983) 34 Cal.3d 234," and that "all of applicant's current disability is apportioned to his March 6, 2015 industrial traumatic brain injury per the AMEs and QME in neurology, neuropsychology, urology, orthopedic and ophthalmology." Applicant's employer, the City of Los Angeles ("City"), filed a timely petition for reconsideration of the Arbitrator's decision.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Surveillance video showed limited physical activity, but medical evidence indicated greater physical limitations and cognitive impairment than the video suggested.
Favours Applicant prevailed
This supported the rejection of defendant's contention that applicant was substantially functional.
From the decision · page 7The video evidence which defendant touts as being significant and inconsistent with applicants' vocational experts' opinion and consistent with its' vocational experts' opinion of applicants increased functional ability is a misrepresentation of the evidence. The video lasts approximately two minutes and nineteen seconds on both days. On the first day it shows applicant walk from his garage to the front of his house twice. On the second trip he carried a newspaper. On the second day the video shows applicant walk from his driveway to a truck parked in the street in front of his house. Applicant spoke to a man standing at the rear of the truck for approximately three minutes before walking back into a side gate with no further activity observed.
Applicant sustained an industrial injury on March 16, 2015 to multiple body parts including head, brain, ears, eyes, excretory system, nervous system, knees, and sexual dysfunction.
Favours Applicant prevailed
This injury was stipulated by the defendant and formed the basis for the disability findings.
From the decision · page 2We further note the City stipulated at trial that on March 6, 2015, applicant sustained industrial injury to his head, brain, eyes, ears, nervous system, excretory system, knees, and sexual dysfunction. (Trial transcript, arbitration hearing of 8/4/20, p. 3.) The City's belated allegation that eyewitness testimony shows a different cause of injury is not good cause to disregard its trial stipulation that applicant sustained an industrial injury to multiple body parts and systems. (Robinson v. Workers' Comp. Appeals Bd. (1987) 194 Cal.App.3d 784 [52 Cal.Comp.Cases 419];
All medical evaluators agreed that applicant's current disability is entirely due to the 2015 industrial injury, with no contribution from prior injuries or non-industrial causes.
Favours Applicant prevailed
This unanimous medical opinion supported the finding of total permanent disability and causation.
From the decision · page 1OPINION AND DECISION AFTER RECONSIDERATION The Appeals Board granted reconsideration to study the factual and legal issues. This is our Decision After Reconsideration. In the Findings and Award dated November 4, 2020, the Workers' Compensation Arbitrator ("Arbitrator") found that applicant is "100% permanently totally disabled pursuant to Labor Code section 4662(a)(4)1 total mental incapacity; and/or LeBoeuf v. Workers' Comp. Appeals Bd. (1983) 34 Cal.3d 234," and that "all of applicant's current disability is apportioned to his March 6, 2015 industrial traumatic brain injury per the AMEs and QME in neurology, neuropsychology, urology, orthopedic and ophthalmology." Applicant's employer, the City of Los Angeles ("City"), filed a timely petition for reconsideration of the Arbitrator's decision.
Defendant's vocational expert did not perform objective testing and relied on applicant's subjective statements, which were contradicted by medical findings of severe cognitive impairment.
Favours Applicant prevailed
This undermined the credibility of defendant's vocational expert and supported the finding of total disability.
From the decision · page 7Defendants vocational experts' report is entirely non-credible and non-substantial as he conducted no vocational testing of applicants cognitive and physical ability to perform relevant tasks. He relied on applicants statements as to what the applicant thought he was capable of performing which ignored the AME in neuropsychology Dr. Conover's diagnosis of Anosognosia found on pg. 4 of the 1-11-2020 report regarding applicant's lack of endorsement of ongoing symptoms due to his severe cognitive issues (Exhibit MM13). Finally, he relied on his subjective training and experience to conclude that applicant could compete in the open labor market and was a feasible
What the panel did with the medical opinions
The role the physician served, and the weight the opinion carried. Physicians are named here as the decision names them; we do not score them.
Found applicant 100% permanently totally disabled due to total mental incapacity from the 2015 industrial brain injury.
Agreed medical examiner on total mental incapacity and causation of disability.
From the decision · page 1OPINION AND DECISION AFTER RECONSIDERATION The Appeals Board granted reconsideration to study the factual and legal issues. This is our Decision After Reconsideration. In the Findings and Award dated November 4, 2020, the Workers' Compensation Arbitrator ("Arbitrator") found that applicant is "100% permanently totally disabled pursuant to Labor Code section 4662(a)(4)1 total mental incapacity; and/or LeBoeuf v. Workers' Comp. Appeals Bd. (1983) 34 Cal.3d 234," and that "all of applicant's current disability is apportioned to his March 6, 2015 industrial traumatic brain injury per the AMEs and QME in neurology, neuropsychology, urology, orthopedic and ophthalmology." Applicant's employer, the City of Los Angeles ("City"), filed a timely petition for reconsideration of the Arbitrator's decision.
Agreed medical examiner who concurred with total mental incapacity and causation of disability due to the 2015 injury.
Agreed medical examiner on total mental incapacity and causation of disability.
From the decision · page 1OPINION AND DECISION AFTER RECONSIDERATION The Appeals Board granted reconsideration to study the factual and legal issues. This is our Decision After Reconsideration. In the Findings and Award dated November 4, 2020, the Workers' Compensation Arbitrator ("Arbitrator") found that applicant is "100% permanently totally disabled pursuant to Labor Code section 4662(a)(4)1 total mental incapacity; and/or LeBoeuf v. Workers' Comp. Appeals Bd. (1983) 34 Cal.3d 234," and that "all of applicant's current disability is apportioned to his March 6, 2015 industrial traumatic brain injury per the AMEs and QME in neurology, neuropsychology, urology, orthopedic and ophthalmology." Applicant's employer, the City of Los Angeles ("City"), filed a timely petition for reconsideration of the Arbitrator's decision.
Qualified medical examiner who found applicant 100% totally disabled due to the 2015 industrial brain injury.
Qualified medical examiner on total mental incapacity and causation of disability.
From the decision · page 1OPINION AND DECISION AFTER RECONSIDERATION The Appeals Board granted reconsideration to study the factual and legal issues. This is our Decision After Reconsideration. In the Findings and Award dated November 4, 2020, the Workers' Compensation Arbitrator ("Arbitrator") found that applicant is "100% permanently totally disabled pursuant to Labor Code section 4662(a)(4)1 total mental incapacity; and/or LeBoeuf v. Workers' Comp. Appeals Bd. (1983) 34 Cal.3d 234," and that "all of applicant's current disability is apportioned to his March 6, 2015 industrial traumatic brain injury per the AMEs and QME in neurology, neuropsychology, urology, orthopedic and ophthalmology." Applicant's employer, the City of Los Angeles ("City"), filed a timely petition for reconsideration of the Arbitrator's decision.
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
California Labor Code
Labor Code section 4662(a)(4)
Presumption of total permanent disability due to brain injury.
From the decision · page 1OPINION AND DECISION AFTER RECONSIDERATION The Appeals Board granted reconsideration to study the factual and legal issues. This is our Decision After Reconsideration. In the Findings and Award dated November 4, 2020, the Workers' Compensation Arbitrator ("Arbitrator") found that applicant is "100% permanently totally disabled pursuant to Labor Code section 4662(a)(4)1 total mental incapacity; and/or LeBoeuf v. Workers' Comp. Appeals Bd. (1983) 34 Cal.3d 234," and that "all of applicant's current disability is apportioned to his March 6, 2015 industrial traumatic brain injury per the AMEs and QME in neurology, neuropsychology, urology, orthopedic and ophthalmology." Applicant's employer, the City of Los Angeles ("City"), filed a timely petition for reconsideration of the Arbitrator's decision.
California Labor Code
Labor Code section 5909
Time limit for Appeals Board to act on petition for reconsideration.
From the decision · page 2At the outset, we note that the Appeals Board has 60 days within which to act on a petition for reconsideration. (Lab. Code, § 5909.) Here, through no fault of the City, its petition for reconsideration did not come to the attention of the Appeals Board until after the expiration of the statutory time period. Consistent with fundamental principles of due process and common sensibilities, we conclude that the running of the 60-day statutory period for reviewing and acting upon the City's petition for reconsideration was tolled for a reasonable period of time after the Board received actual notice of it. (Shipley v. Workers' Comp. Appeals Bd. (1992) 7 Cal.App.4th 1104, 1107-1108 [57 Cal. Comp. Cases 493]; State Farm Fire and Casualty v. Workers' Comp. Appeals Bd. (Felts) (1981) 119 Cal.App.3d 193 [46 Cal.Comp.Cases 622, 624].)
What proof carried it
The evidence the panel weighed, by kind.
Surveillance video showing applicant walking short distances and performing limited activities.
From the decision · page 7The video evidence which defendant touts as being significant and inconsistent with applicants' vocational experts' opinion and consistent with its' vocational experts' opinion of applicants increased functional ability is a misrepresentation of the evidence. The video lasts approximately two minutes and nineteen seconds on both days. On the first day it shows applicant walk from his garage to the front of his house twice. On the second trip he carried a newspaper. On the second day the video shows applicant walk from his driveway to a truck parked in the street in front of his house. Applicant spoke to a man standing at the rear of the truck for approximately three minutes before walking back into a side gate with no further activity observed.
Medical reports showing greater physical activity and cognitive limitations than surveillance video suggested.
From the decision · page 7This video evidence was deemed entirely insignificant and would add nothing to the evidentiary record. If one looks at the report of the AME in neurology Dr. Short (Exhibit LL12) dated 1-8- 2020 on pg. 4 under activities of daily living there is greater physical activity stated that applicant can perform including walking without difficulty longer distances than what is depicted in this surveillance video. These same observations in the AME neuropsychological report of Dr. Conover dated 1-11-2020 (Exhibit MM13) on pg. 5 under number two, behavioral concerns second paragraph, that applicant likes to go on walks and sometimes his wife joins him. Also on pg. 9 of that same report under the heading of a typical day states that he performs additional chores such as sweeping and yardwork like mowing and weed whacking. Under mobility he only reported difficulty in walking long distances. Clearly this activity attributes greater physical functionality to applicant than that depicted in the surveillance video.
Defendant's vocational expert report lacked credibility and did not perform objective testing.
From the decision · page 7Defendants vocational experts' report is entirely non-credible and non-substantial as he conducted no vocational testing of applicants cognitive and physical ability to perform relevant tasks. He relied on applicants statements as to what the applicant thought he was capable of performing which ignored the AME in neuropsychology Dr. Conover's diagnosis of Anosognosia found on pg. 4 of the 1-11-2020 report regarding applicant's lack of endorsement of ongoing symptoms due to his severe cognitive issues (Exhibit MM13). Finally, he relied on his subjective training and experience to conclude that applicant could compete in the open labor market and was a feasible
The same issues, filtered across the whole corpus — or paste your own facts and let the search rank by factor match.
About this page
- A published decision of the California Workers' Compensation Appeals Board, taken apart by what it turned on. The Board publishes the decision itself; this page adds the extraction and quotes the passage behind every claim.
- The injured worker is not named here, and the case caption is not printed. Physicians appear as the decision names them, because a medical opinion is an act in a public proceeding.
- Issues, outcomes and weights were extracted by AI and released only where the source passage checked. Read the official decision before relying on anything here. Not legal advice.
- If you are named in this decision and want this page removed, write to privacy@similarcase.com.