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WCAB: No Need To Discuss PD or Apportionment After Finding Non-Industrial Causation

Happy Friday, o beloved readers of the humblest of blogs!

Whenever possible, your humble blogger likes to send his readers into the weekend with good news.  News that with lift spirits and calm nerves.  News that will allow his readers to relax and say “everything is going to be ok, I can leave my files at the office.”

Well, today is just one of those days!

I bring you the panel decision in the case of Austin v. Fresno Unified School District.  Applicant sought appeal of a take-nothing Order on two grounds: he argued that the 90-day presumption of Labor Code section 5402 required his claim to be found compensable and that the QME’s opinions were not substantial evidence because the QME failed to address apportionment and permanent disability.

Applicant claimed various injuries as a CT, and defendant accepted the claim.  However, after the PM&R QME found applicant’s injuries to be non-industrial in nature given the greater context of applicant’s other, non-industrial medical conditions, the defendant denied the claim.

At trial, the WCJ found that after a claim has been accepted, if new information comes to light, the defendant can subsequently deny the claim.

In affirming the WCJ’s take nothing, the WCAB cited Honeywell v. WCAB in finding that the 90 days of Labor Code section 5402 do not start to run until “a DWC-1 claim form [is] filed with the defendant.”  (Honeywell: “the 90-day period for the employer to deny liability runs only from the date the worker files a claim form with the employer.”)

As to the substance of the QME report, the WCAB held that because the QME already found that the injury was non-industrial, “the issues of permanent disability and apportionment are clearly irrelevant.”

Compare this result, of course, with the case of Ramirez v. Osteria Coppa LLC in which the WCJ and WCAB found that defendant’s failure to timely deny a claim invalidated a PQME’s finding of non-industrial causation later.

So, there you have it, dear readers – a PM&R QME found a claim non-industrial and the WCJ and WCAB adopted that opinion to issue a take-nothing.  Is this not cause for a weekend of celebration?

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