Amino v. WCAB
Filed 7/13/06 Amino v. WCAB CA5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
| WILMA BENYAMINO, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD, DEPARTMENT OF SOCIAL SERVICES-IHSS et al., Respondents. | F048773
(WCAB Nos. STK 0189445 & STK 0189446)
OPINION |
THE COURT*
ORIGINAL PROCEEDINGS; petition for writ of review from a decision of the Workers' Compensation Appeals Board. Merle C. Rabine, Ronnie G. Caplane, and James C. Cuneo, Commissioners. Robert McEvilly, Workers' Compensation Administrative Law Judge.
William S. Morris, for Petitioner.
No appearance by Respondent Workers' Compensation Appeals Board.
Robert W. Daneri, Chief Counsel, Suzanne Ah-Tye, Assistant Chief Counsel, and David M. Goi, Senior Appellate Counsel, for Respondents Department of Social Services-IHSS and State Compensation Insurance Fund.
-ooOoo-
Wilma Benyamino (Benyamino) petitions this court for a writ of review to determine the lawfulness of the decision of the Workers' Compensation Appeals Board (WCAB) denying her claim for benefits due to insufficient evidence of an industrial injury. (Lab. Code,[1] § 5950; Cal. Rules of Court, rule 57.) We will deny the petition.
BACKGROUND
Benyamino was employed by the state Department of Social Services (DSS) as an In-Home Supportive Services caregiver to her parents. She worked approximately 30 hours per week cleaning, washing, moving objects, shopping, and providing general care. In March 2004, Benyamino filed two claims for workers' compensation benefits for injury to her hands and wrists. She alleged she sustained a specific injury on August 26, 2003, and a cumulative trauma injury over time through March 3, 2004. She later claimed the injuries were to her wrists and back.
The parties submitted the issue as to whether Benyamino's injuries arose out of and occurred in the course of employment on the parties qualified medical examinations. Benyamino relied primarily on the medical reporting of Leonard Gordon, M.D., while DSS relied on the opinion of Roland H. Winter, M.D. Benyamino also asked the workers' compensation administrative law judge (WCJ) to consider whether Dr. Winter's evaluation applied the wrong legal standard.
On May 10, 2005, the WCJ found Benyamino did not sustain an industrial injury to her wrists and back. The WCJ expressly found Dr. Winter's reports persuasive in concluding Benyamino did not sustain either a specific injury or cumulative trauma and also noted that neither physician reported she performed anything other than â€
