Feb 09.pdf

Vol. XV No. II

February 2009

COMPENSATION

NEWS

MONTHLY REPORT

Appellate Court finds an award for
permanent disability within the range of
evidence is still good law

This is a non
published Appellate
Court decision that
has major
implications.

treating physician who indicated
that the subjective complaints
were "out of proportion" to the
objective findings. The applicant
was also seen by a qualified
medical examiner who also did
not detect any objective findings.

The case went to trial and the
workers' compensation judge
(WCJ) made an award of 28%
permanent disability. The case
then involved multiple petitions
for reconsideration and finally
ended with a new trial resulting in
a 38% disability. This last time on
reconsideration the Workers'
Compensation Appeals Board
(WCAB) reduced the award to
28% based on the range of
evidence.

The appellate court then
reviewed U.S. Auto stores v.

WCAB (1971) 4 Cal. 3d 469 in

which the Supreme Court
indicated that the WCAB could

make a finding with " the range
of evidience".

The court then reiterated that
the WCAB may rely on one
physician for substantial evidence
relying on LaVesque V WCAB.

(1970) 1 Cal 3d 627. They

indicated that even if this opinion
is inconsistent with other
opinions it may be substantial

evidence Place v. WCAB (1970)

3 Cal 3d 372.

Thus, the old line of cases in
regards to substantial evidence
still appears viable.

his is a very significant
case for workers'
compensation

purposes. Even though this case
is not published it cites published
cases for principles that can be
effectively utilized.

The applicant had an
admitted specific injury. The
applicant was seen by a primary



Vol. XV No. II			February 2009

COMPENSATION NEWS MONTHLY REPORT

Appellate Court finds an award for permanent disability within the range of evidence is still good law

This is a non published Appellate Court decision that has major implications.		treating physician who indicated that the subjective complaints were "out of proportion" to the objective findings. The applicant was also seen by a qualified medical examiner who also did not detect any objective findings. The case went to trial and the workers' compensation judge (WCJ) made an award of 28% permanent disability. The case then involved multiple petitions for reconsideration and finally ended with a new trial resulting in a 38% disability. This last time on reconsideration the Workers' Compensation Appeals Board (WCAB) reduced the award to 28% based on the range of evidence. The appellate court then reviewed U.S. Auto stores v. WCAB (1971) 4 Cal. 3d 469 in which the Supreme Court indicated that the WCAB could	make a finding with " the range of evidience". The court then reiterated that the WCAB may rely on one physician for substantial evidence relying on LaVesque V WCAB. (1970) 1 Cal 3d 627. They indicated that even if this opinion is inconsistent with other opinions it may be substantial evidence Place v. WCAB (1970) 3 Cal 3d 372. Thus, the old line of cases in regards to substantial evidence still appears viable.
	his is a very significant case for workers' compensation
purposes. Even though this case is not published it cites published cases for principles that can be effectively utilized. The applicant had an admitted specific injury. The applicant was seen by a primary