CALIFORNIA TOP CASES, powered by California Compensation Cases (updated 7/31/2010)

CALIFORNIA TOP CASES, powered by California Compensation Cases (updated 7/31/2010)

  California Compensation Cases Staff

If you're a subscriber, click on the links to access cases within your subscription plan. Note that expert commentary articles can be accessed for an additional fee on If you're not a subscriber, please contact Customer Support for information about subscription plans.

© Copyright 2010 LexisNexis. All rights reserved.

Insurance; Medical Provider Networks; Notice. Court of Appeal, denying applicant's petition for writ of review, held that WCAB did not err by adding defendant employer's workers' compensation insurer as party defendant to prior award or by failing to treat notification errors regarding medical provider network as basis for employee to treat outside network, when Court of Appeal found that applicant sustained injury AOE/COE nearly 10 years ago, that applicant received disability award and award for future medical treatment, that on 9/12/2008 defendant's claims adjuster sent applicant notice that she was being required to move her medical treatment inside defendant's medical treatment network, that WCAB concluded that applicant did not establish that she was entitled to continued treatment outside defendant's medical treatment network, that defendant's workers' compensation insurer was identified as insurer in this matter on date when it first entered its appearance through counsel, and that applicant presented no legal authority for proposition that since-corrected notice defective primarily in that it was not sent in Spanish, with no indication in record that Spanish would have aided applicant's understanding, forever exempted defendant employer from mandating treatment within its medical provider network. See Krause v. W.C.A.B.

Employment Relationships; Choice of Law. U.S. Court of Appeals, Ninth Circuit, reversing district court's summary judgment for defendant, held that contracts between plaintiff drivers and defendant freight and package delivery company, specifying that plaintiffs were independent contractors, not employees of defendant, and specifying that contracts were to be "interpreted under laws of State of Texas," did not mean that present dispute was to be resolved pursuant to Texas law rather than California law, when Court of Appeals found that plaintiffs sought to apply various wages and hours provisions of California Labor Code, that Texas law applied choice-of-law contractual clauses such as those in present case only to interpretation and enforcement of contracts themselves, not to all disputes between parties to contracts, that plaintiffs' claims arose under California Labor Code, and that, consequently, California law should apply to define boundaries of liability under contracts. See Narayan v. EGL, Inc. 

Employment Relationships; Summary Judgment. U.S. Court of Appeals, Ninth Circuit, held that district court's summary judgment for defendant was improper since, under California law, there existed at very least sufficient indicia of employment relationship between plaintiffs and defendant that reasonable jury could find existence of such relationship, when Court of Appeals found that California law employed multi-faceted test, as set forth, inter alia, in S.G. Borello & Sons, Inc. v. Department of Industrial Relations, to distinguish between employees and independent contractors, that California law provides that, when plaintiff comes forward with evidence of having provided services for employer, plaintiff has established prima facie case that relationship was one of employment, that plaintiffs in present case have established such prima facie case, that defendant then bore burden of establishing by preponderance of evidence that plaintiffs were independent contractors, and that facts pleaded in present case would not compel jury to find that defendant had carried this burden. See Narayan v. EGL, Inc.

Temporary Disability--Permanent and Stationary--Substantial Evidence--Court of Appeal held that, because WCJ made conflicting findings, each supported by substantial evidence, WCAB's order denying reconsideration must be annulled and matter remanded, when Court of Appeal found that applicant suffered work-related injury to her knees, head, tailbone, right shoulder, and neck, that defendant, relying on opinion of its qualified medical evaluator in orthopedics, alleged that applicant was permanent and stationary and that, therefore, temporary disability indemnity should be terminated, that applicant's treating physician opined that applicant was in need of discography but it was not safe to proceed with discography until applicant had undergone neurological workup to ensure there were no neurological issues needing more urgent treatment and that applicant was not permanent and stationary and continued to be totally temporarily disabled, that WCJ concluded that treating physician's request for neurological consultation and treatment was reasonable but that this need for neurological consultation and treatment did not render applicant temporarily disabled and that applicant was permanent and stationary, that WCJ granted defendant's petition to terminate temporary disability indemnity, that duty to pay temporary disability indemnity continues during period in which injured worker is undergoing medical diagnostic procedure, that treating physician's opinion that it was not safe to proceed with discography until he was assured that there were no neurological issues needing to be treated prior to treatment of applicant's lumbar spine provided substantial evidence that authorization of neurological consultation was for diagnostic purpose, implying that applicant was not permanent and stationary and was, thus, entitled to continued temporary disability indemnity, but that WCJ's decision also impliedly concluded that, regardless of what discogram and neurological consultation reveal, applicant's condition was permanent and stationary, and that on remand WCJ should resolve this contradiction by determining whether authorization for neurological consultation was for diagnostic purpose, that, if WCJ finds that purpose of neurological consultation was diagnostic, he must conclude that applicant's condition is not permanent and stationary, but that, if WCJ finds that purpose of neurological consultation was not diagnostic and he provides evidentiary support for that finding, his prior conclusion that applicant's condition is permanent and stationary is proper and his decision is affirmed. See Livengood v. W.C.A.B.

Civil Actions--Peculiar Risk Doctrine--California Supreme Court, reversing judgment of Court of Appeal, held that doctrine of peculiar risk did not apply when plaintiff, on-the-job-injured independent contractor hired by subcontractor, sought to hold defendant general contractor vicariously liable for injuries arising from risks inherent in nature or location of hired work over which independent contractor had, through chain of delegation, been granted control, when Supreme Court, agreeing with Court of Appeal in Michael v. Denbeste Transportation, Inc. (2006) 137 Cal. App. 4th 1082, 40 Cal. Rptr. 3d 777, 71 Cal. Comp. Cases 378, found that plaintiff, hired to construct metal canopy, fell in hole dug by other subcontractor next to area where plaintiff was working and which plaintiff knew was there, that it would be anomalous to allow independent contractor to whom responsibility over hired work had been delegated to recover against hirer on peculiar risk theory while denying such recovery to independent contractors' employees, who lack any authority over hired work, that, unlike mere employee, independent contractor, by virtue of contract, had authority to determine manner in which inherently dangerous construction work was to be performed and, thus, assumed legal responsibility for carrying out contracted work, including taking workplace safety precautions, and that, having assumed responsibility for workplace safety, independent contractor could not hold hiring party vicariously liable for injuries resulting from contractor's own failure to effectively guard against risks inherent in contracted work; Supreme Court remanded case so that Court of Appeal could consider, inter alia, whether defendant could be held directly liable to plaintiff on theory that it retained control over safety conditions at jobsite. See Tverberg v. Fillner Construction

Civil Actions—Standing--Attorney's Fees Awards—Interest--Court of Appeal held that plaintiffs, workers' compensation applicants' attorneys, had standing to seek accrued interest on their WCAB attorney fee awards under Labor Code § 5800, when Court of Appeal found that each attorney fee award that was subject of present litigation had included order for payment of fee directly to attorney but did not expressly provide for payment of any interest on that fee, that pursuant to Labor Code § 5800 compensation awards issued by WCAB carried interest until paid, that attorney fee awards issued by WCAB are “compensation” within meaning of Labor Code § 3207, and that, when WCAB award specifically provides that attorney fee is to be paid directly to attorney, any post-award interest that accrues on that fee must also be paid directly to that attorney. See Koszdin v. SCIF

Civil Actions--Subject Matter Jurisdiction--Attorney's Fees Awards—Interest--Court of Appeal, affirming trial court's judgment dismissing actions with prejudice, held that trial court lacked subject matter jurisdiction to entertain claims for unpaid interest when WCAB did not expressly order payment of interest in its attorney's fees awards, when Court of Appeal found that, while plaintiffs were entitled, pursuant to Labor Code § 5800, to seek unpaid interest on their WCAB fee awards, trial court's jurisdiction over workers' compensation matters was limited, pursuant to Labor Code § 5806, enforcement of WCAB's orders, that each WCAB attorney fee award that was subject of present litigation was silent with respect to payment of interest, that to grant plaintiffs relief sought in present litigation trial court would have had to modify terms of their WCAB awards to add provision for interest, and that plaintiffs' remedies in this matter were limited to pursuing claim for unpaid interest on their fee awards before WCAB or, if appropriate, filing petition for writ of review before proper appellate court. See Koszdin v. SCIF 


Psychiatric Injury--Six-Month Employment Rule--Sudden and Extraordinary Employment Condition--Court of Appeal, reversing WCAB decision that had found that applicant's psychiatric injury, while caused by sudden employment condition, was not caused by extraordinary employment condition, held that applicant's psychiatric injury was caused by employment condition that was both sudden and extraordinary, when Court of Appeal found that applicant/treetrimmer, who had been employed by defendant for less than six months, sustained injury when suspended halfway up 80-foot tree that he was cutting and trunk of tree fell, hitting him in chest and causing serious physical and psychiatric injuries, that applicant presented substantial evidence that injury was cause by extraordinary employment condition in form of unrebutted testimony that he had been cutting trees for long time, had never seen incident like this happen, and did not expect it to happen to him, that WCAB's decision was not supported by substantial evidence, and that applicant's claim of psychiatric injury was not barred by six-month employment rule of Labor Code § 3208.3(d). See Campos v. W.C.A.B.Alvarez v. W.C.A.B.

Civil Actions Against Employers--Claims Handling Practices--Racketeering Influenced and Corrupt Organizations Act--Court of Appeal held that applicant did not prove at least one essential element of cause of action for violation of Racketeering Influenced and Corrupt Organizations Act, 18 U.S.C.S. § 1961 et seq., and that, therefore, trial court properly granted defendants' motion for nonsuit on this cause of action, when Court of Appeal found that applicant sustained industrial injury, that her employer was self-insured and represented by third party claims administrator, that employer/hospital was wholly owned subsidiary of third party claims administrator, which was also corporation that controlled health facilities, including employer's, that applicant brought civil action against employer and claims administrator for claims handling related to disputed medical treatment for applicant's industrial injury, that applicant contended that defendants' claims handling was mail and wire fraud in violation of Racketeering Influenced and Corrupt Organizations Act, that applicant did not show that defendants' conduct satisfied elements of fraud and, therefore,  violated Racketeering Influenced and Corrupt Organizations Act or that conduct was otherwise unlawful, and that, as part of Racketeering Influenced and Corrupt Organizations Act action, trial court properly excluded defense counsel's letters to medical providers and testimony of physician related to statements about defendants made by another injured worker to this physician. See Clark v. San Joaquin Community Hospital.

Civil Actions Against Employers--Intentional Infliction of Emotional Distress--Exclusive Remedy--Court of Appeal held that workers' compensation was exclusive remedy, under Labor Code § 3601, for applicant's claims against her employer and self-insured employer's third party claims administrator related to handling of applicant's industrial injury claim, when Court of Appeal found that applicant's contentions about claims handling did not state facts that would bring claim outside exclusive remedy rule, that applicant's remedy was through WCAB proceedings, including under Labor Code § 4603.2, Labor Code § 4622, and Labor Code § 5814, and that trial court properly granted defendants' demurrer without leave to amend on applicant's cause of action for intentional infliction of emotional distress. See Clark v. San Joaquin Community Hospital.

Qualified Medical Evaluators--Ex Parte Communications--Court of Appeal, annulling WCAB decision and remanding matter, held that Labor Code § 4062.3(f) expressly prohibits ex parte communications with panel qualified medical evaluator, with only exception, as set forth in Labor Code § 4062.3(h), being for communication by employee or deceased employee's dependent in connection with examination, and that, in event of unauthorized ex parte communication, Labor Code § 4062.3(f) permits aggrieved party to obtain new evaluation from another qualified medical evaluator, when Court of Appeal found that panel qualified medical evaluator telephoned defense counsel to request additional copy of medical records that qualified medical evaluator could not locate, that statute, contrary to WCAB's conclusion, is not limited to situation in which party initiates ex parte communication, that statute does not state that ex parte communications are permissible if subject matter is administrative or procedural rather than substantive or on merits, and that prejudice, or lack thereof, is not to be considered in determining whether statute has been violated. See

Medical Treatment--Civil Actions--Chiropractors' Licenses--Unprofessional Conduct--Billing--Court of Appeal affirmed trial court's denial of plaintiff chiropractor's petition for writ of administrative mandamus to overturn revocation of his chiropractor's license by Board of Medical Examiners of State of California for unprofessional conduct (negligence from failure to supervise staff who billed workers' compensation insurers); Court of Appeal found chiropractor treated patient (workers' compensation applicant) for two industrial injuries with two different employers and two different workers' compensation insurers (11/99 injury to back and 3/2000 injury to ankle which also aggravated back injury), treatment for both injuries overlapped, chiropractor's staff billed two insurers and made mistakes in billing (because of complexity of billing two insurers for treatment of two injuries for one patient), chiropractor's failure to supervise his staff on billing procedures was negligence and unprofessional conduct under 16 Cal. Code Reg. § 318(d) and justified revocation of license, and second provision of 16 Cal. Code Reg. § 318(d) did not negate negligence provision of same statute and did not provide "safe haven" for 30 days against findings of negligence, as contended by plaintiff (second provision defined unprofessional conduct as including chiropractor's failure to correct billing errors within 30 days of notice of errors), even if plaintiff timely corrected errors after an internal audit, he was still negligent and engaged in unprofessional conduct (failure to supervise billing) under 16 Cal. Code Reg. § 318(d), and there was sufficient evidence to support Board of Medical Examiner's negligence finding. See Davis v. Board of Chiropractic Examiners

Medical Treatment--Civil Actions--Chiropractors' Licenses--Unprofessional Conduct--Excessive Treatments--Court of Appeal affirmed trial court's denial of plaintiff's petition for writ of administrative mandamus to overturn revocation of his chiropractor's license by Board of Medical Examiners for unprofessional conduct (negligence from excessive treatments to same workers' compensation patient), when Court of Appeal found that in prohibition of excessive treatment stated in 16 Cal. Code Reg. § 317(d)  and Business and Professions Code § 725, term "excessive treatment" was not unconstitutionally vague and therefore void because both defined "excessive treatment" by referring to standards of care in local community of chiropractors, and term "excessive treatment" was sufficiently definite and certain to local community of chiropractors; Court of Appeal also found (1) Board of Medical Examiners and trial court considered evidence that plaintiff (or members of his staff) gave patient over 160 treatments for back and over 100 treatments for ankle and relied on medical opinion from Board's expert  that such treatments were excessive under local community standards of care and were not documented as being medically necessary, and (2) there was substantial evidence to support Board's and trial court's reliance on Board's expert. See Davis v. Board of Chiropractic Examiners

Insurance--Anti-Fraud Provisions--Court of Appeal affirmed judgment of trial court after jury convicted applicant of one count of insurance fraud in violation of Insurance Code § 1871.4(a)(1) and one count of attempted perjury in violation of Penal Code §§ 118(a) and 664 and trial court sentenced applicant, when Court of Appeal found applicant claimed industrial back injury on 8/2/2005, from lifting a rack of silverware while working as food service worker and dishwasher, applicant testified during his deposition that continuing and severe pain from his back injury prevented him from preforming even the simplest  physical activities, videotape of applicant showed him working on his truck and pushing truck, trial court's sentence included probation, 60 days in county jail, 60 days of electronic monitoring, fine, restitution, fees, 360 hours community service, and other sentences which were suspended or stayed, Court of Appeal appointed counsel to represent applicant in his appeal, counsel did not raise any issues in opening appellate brief, Count of Appeal notified applicant that he had 30 days to raise contentions or issues on his own, applicant did not respond, and Court of Appeal held it was satisfied applicant's counsel fulfilled all responsibilities and there were no arguable issues. See People v. Preza

Insurance--Fraud--Summary Adjudication--Court of Appeal, granting plaintiff/insurer's petition for writ of mandate commanding respondent superior court to vacate its order granting defendant/real party in interest/insured's motion for summary adjudication on grounds that three-year statute of limitations period in Code of Civil Procedure § 338(d) barred plaintiff's claim of fraud and to enter order denying that motion, held that relevant facts in case were not susceptible of only one legitimate inference, when Court of Appeal found that plaintiff had alleged that defendant, professional employer organization that provided employee leasing and temporary staffing services, had engaged in conspiracy with another temporary staffing agency to fraudulently misstate information provided to insurer for purpose of calculating premiums payable to insurer, that this conspiracy was ongoing, even during present litigation, and that these allegations, if proved, would deprive defendant of statute of limitations defense. See SCIF v. Superior Court

Temporary Disability--Permanent Disability--Substantial Evidence--Court of Appeal, denying defendant's petition for writ of review and granting applicant's request for attorney's fees pursuant to Labor Code § 5801, held that substantial evidence supported WCAB's award of temporary disability and its deferring of permanent disability determination pending further development of medical record, when Court of Appeal found that, in previous proceeding, applicant had been awarded, based on parties' stipulated agreement, 12-percent permanent disability and future medical benefits for specific injuries on 10/23/2001 and 2/11/2002 and cumulative trauma injury through 4/29/2003 to her neck, right shoulder, and lower back, that applicant returned to work for defendant with various restrictions, that defendant terminated applicant on 10/17/2006 either for not working overtime or for misleading defendant about medical appointment, that on 2/6/2007 applicant petitioned WCAB to reopen for new and further disability based on medical reporting from treating physician and second physician, both of whom recommended right shoulder surgery, that petition sought to reopen only latter two of applicant's cases, because more than five years had passed since date of first injury, that applicant underwent right shoulder surgery on 11/9/2007, that defendant voluntarily provided her with temporary disability benefits from that date until she became permanent and stationary on 2/28/2008, that WCJ in present matter awarded applicant additional temporary disability of $265.38 per week (less any earnings and unemployment benefits applicant received) from date she saw treating physician, 11/9/2006, who on that date also confirmed that he issued applicant medical excuse for date on which defendant terminated applicant, through date she underwent surgery, that WCJ explained that qualified medical evaluator's report appeared to indicate increase in applicant's level of permanent disability but had not addressed increase attributable to reopened cases versus unreopened case, requiring that determination of permanent disability be deferred pending further development of record, that substantial evidence in form of applicant's testimony and medical record supported WCAB award of temporary disability during year prior to applicant's surgery, that defendant presented no evidence that applicant had been terminated "for cause" or for any reason other than its own refusal to accommodate her already-admitted industrial injuries, and that WCAB, having found record inadequate, appropriately exercised its power to defer making permanent disability award and to seek additional medical evidence. See E & J Gallo Winery v. W.C.A.B. (Garcia) 

VR--VRMA--Sunsetting--Court of Appeal, affirming in part, and reversing in part, WCAB decision, held that applicant was entitled to that part of WCJ's award of VRMA that was not included in defendant's petition for reconsideration and, therefore, became final before repeal of former Lab C § 139.5, when Court of Appeal found that applicant sustained injury AOE/COE and was awarded VRMA at TD indemnity delay rate from 9/8/2005 to 8/28/2007 under former Lab C § 139.5 and former Lab C § 4642, that on 12/30/2008 defendant filed petition for reconsideration, contending that applicant was not entitled to any VRMA from 9/8/2005 to 9/26/2006 and, in any case, was not entitled to receive such allowance at delay rate for entire period awarded, that former Lab C § 139.5 was repealed on 1/1/2009, at which point applicant lost all VR rights that were subject of defendant's petition for reconsideration, since rights pending in litigation were extinguished by statutory repeal, and that VRMA awarded at "non-delay" rate of $246 per week from 9/27/2006 to 8/28/2007 was not challenged in defendant's petition for reconsideration and, therefore, became final before repeal of former Lab C § 139.5. See Los Angeles County Fire Department v. W.C.A.B. (Norton)

Employment Relationships--Minimum Wage Law--Calif. Supreme Court, affirming judgment of Court of Appeal, held that, in actions under Lab C § 1194 to recover unpaid minimum wages, Industrial Welfare Commission's wage orders generally define employment relationship, and thus who may be liable, and that examination of wage orders' language, history, and place in context of Calif. wage law makes clear that those orders do not incorporate federal definition of employment, when Supreme Court found that plaintiffs, strawberry pickers and packers, were not employees of defendants, entities to whom strawberry grower, who was plaintiffs' employer, sold strawberries, that examination of Lab C § 1194 in its statutory and historical context shows unmistakably that legislature intended IWC's wage orders to define employment relationship in actions under that statute, that all 16 of presently existing wage orders define "employer" as person who "employs or exercises control over the wages, hours, or working conditions of any person," that, obeying formal expressions of legislative and voter intent, Calif. courts have shown IWC's wage orders extraordinary deference, both in upholding their validity and in enforcing their terms, specifically, in repeatedly enforcing definitional provisions that IWC has deemed necessary, in exercise of its statutory and constitutional authority, to make its wage orders effective, to ensure that wages are actually received, and to prevent evasion and subterfuge, that undisputed facts show that strawberry grower alone controlled plaintiffs' wages, hours, and working conditions, that S.G. Borello & Sons, Inc. v. Department of Industrial Relations, which applied common-law test of employment in light of remedial purposes of workers' comp law, is inapplicable to present case, and that communications in strawberry fields between representatives of buyers of strawberries, on one hand, and strawberry grower and sometimes plaintiffs, on other hand, was required by nature of business and did not make those representatives "employers" of plaintiffs. See Martinez v. Combs

Exclusive Remedy—Exceptions—Civil Actions Against Employers—Court of Appeal affirmed trial court's grant of summary judgment in favor of employer, after trial court found there was no triable issue of material fact about whether exclusive remedy of workers' compensation applied, when plaintiff/applicant and co-worker both worked for defendant employer as truck drivers, on 8/4/2002 co-worker was driving and rolled tractor in which plaintiff was passenger, causing serious injuries to plaintiff, plaintiff sought workers' compensation benefits and also brought civil action against co-worker and employer of both plaintiff and co-worker, Court of Appeal found Labor Code § 3602(a) applied and workers' compensation was plaintiff's exclusive remedy against her employer, employer had workers' compensation insurance on date of injury, and exception to exclusive remedy for employer's failure to obtain workers' compensation insurance therefore did not apply; Court of Appeal also found self-funded retention provision was not self-insurance for purpose of determining if employer had workers' compensation insurance on 8/4/2002 (employer had $2 million self funded retention/deductible endorsement on its policy with its insurer and Court of Appeal found endorsement obligated insurer to pay all claims even if employer did not do so); Court of Appeal further found plaintiff did not present any evidence or argument proving that co-worker was personally liable for her injuries (which could have been exception to exclusive remedy rule under Labor Code § 3601(a)). See Koscki v. Herbert.

Civil Actions—Anti-SLAPP Actions—Court of Appeal affirmed trial court's grant of defendant's special motion to strike (anti-SLAPP motion/anti-Strategic Lawsuit Against Public Participation motion) under Code of Civil Procedure § 425.16, when plaintiffs were physician/orthopedic surgeon and his medical practice company who provided medical treatment to applicants for workers' compensation benefits, defendant was attorney for State Compensation Insurance Fund which paid workers' compensation benefits on behalf of its insureds (employers), defendant investigated liens filed by plaintiffs for reimbursement for medications provided to workers' compensation applicants, trial court found defendant's purpose was to investigate possible insurance fraud by plaintiffs in order to report any fraud to Department of Insurance/State of California and for use in WCAB proceedings, plaintiffs brought civil action against defendant and causes of action included cause of action for abuse of process in conducting investigation of potential insurance fraud, Court of Appeal found that anti-SLAPP statute applied because defendant showed (1) plaintiffs' complaint related to activity that was protected activity under Code of Civil Procedure § 425.16 (e)(2) and (e)(4), and (2) plaintiffs did not have probability of prevailing on their complaint because litigation privilege applied (because defendant was preparing mandatory report on insurance fraud for Department of Insurance and defendant's statements were connected to WCAB proceedings) and litigation privilege would defeat claim for abuse of process under Civil Code § 47(b). See Uwaydah v. Roth.


Civil Actions--Insurance--Duties of Insurers--Court of Appeal held defendant, workers' compensation insurer for plaintiff/applicant's employer, did not have duty to contact bank and inform bank that check it sent applicant for temporary disability benefits was genuine, when applicant went to bank to deposit and cash temporary disability check from insurer on 5/3/2006, bank refused to cash check, accused applicant of stealing check, and had applicant arrested, applicant's girlfriend and police officer called insurer's representative, representative did not attempt to contact bank , applicant was released after several days in jail, after insurer provided information on genuineness of check, applicant brought civil action against insurer for negligence and negligent infliction of emotional distress on theory that insurer owed duty to notify bank that check was genuine and breached duty, Court of Appeal found no such duty, under statute (Labor Code § 4651(a)), contract (contract between employer and insurer), or because of special relationship between insurer and applicant, and found insurer's failure to take affirmative action was allegedly nonfeasance, not malfeasance, nonfeasance meant insurer had duty to take affirmative action (contacting bank) only if it was in special relationship with applicant, and there was no special relationship between insurer and applicant under common law or under factors from Rowland .v. Christian (1968) 69 Cal. 2d 108, 70 Cal. Rptr. 97, 443 P.2d 561, and Court of Appeal affirmed trial court's sustaining of insurer's demurrer to applicant's complaint and trial court's dismissal of complaint. See Polanco v. Truck Insurance Exchange.

Injury AOE/COE—Qualified Medical Evaluators—8 Cal. Code Reg. § 30(d)(3)—WCAB en banc, granting applicant's petition for removal and affirming WCJ's denial of applicant's request for trial setting and WCJ's decision to allow defendant to obtain panel qualified medical evaluator on issue of compensability, held that 8 Cal. Code Reg. § 30(d)(3), which provides that, when applicant's injury or illness claim has been denied entirely, “only the employee may request a panel of Qualified Medical Evaluators as provided in . . . sections 4060(c) and 4062.2,” is invalid because it conflicts with Labor Code § 4060(c) and Labor Code § 4062.2 and exceeds scope of Labor Code § 5402(b), when WCAB en banc found that applicant allegedly suffered industrial injury to her head, face, and arms when infectious disease patient in defendant hospital (where applicant worked as patient case associate) bit her and slashed her with sharp fingernails, that, eight days later, applicant collapsed into comatose state, from which she had not subsequently emerged, that applicant has been diagnosed as having had intracerebral hemorrhage with severe neurological damage, that she has minimal brain stem function and has consistently been unresponsive to any stimuli, that applicant's claims for injuries were timely denied by defendant's claims administrator, which alleged that its investigation did not support claim of injury and that there were no medical reports supporting claim, that applicant's treating physician authored two reports finding that injury was industrial, that applicant's attorneys served treating physician's report on defendant's claims administrator at incorrect address, that, approximately six weeks after date of that treating physician report, applicant's attorney personally served it on defendant's attorney, who immediately objected to treating physician's opinion on industrial causation and began medical-legal process under Labor Code § 4060 and Labor Code § 4062.2 by proposing agreed medical evaluator, that at priority conference applicant argued that matter should be set for trial on threshold issues of industrial injury and employment, contending that, under 8 Cal. Code Reg. § 30(d)(3), defendant was not entitled to panel qualified medical evaluator report because it did not obtain one within 90-day period for denying liability under Labor Code § 5402(b), that defendant replied that it had not yet requested qualified medical evaluator panel because it had proposed agreed medical evaluator and 10-day waiting period of Labor Code § 4062.2(b) had not yet lapsed, that neither Labor Code § 4060 nor Labor Code § 4062.2 provides that “only the employee may request” qualified medical evaluator panel after defendant has denied compensability of claimed injury, but, to the contrary, those sections when read together specifically provide that “either party” may make qualified medical evaluator panel request “at any time” after filing of claim form, and that nothing in Labor Code § 5402(b) provides that defendant must request qualified medical evaluator panel before it denies liability for injury, even if that denial is based on medical causation grounds. See Mendoza v. Huntington Hospital (en banc)

Qualified Medical Evaluators—Medical-Legal Reports—Time Limits—WCAB en banc, granting applicant's petition for removal and affirming WCJ's denial of applicant's request for trial setting and WCJ's decision to allow defendant to obtain panel qualified medical evaluator on issue of compensability, held that time limits of Labor Code § 4062(a) for objecting to treating physician's medical determination do not apply when injury has been entirely denied by defendant, that Labor Code § 4062.2 does not establish timelines for initiating or completing process for obtaining medical-legal report on compensability, and that other statutory and regulatory provisions encourage defendants to promptly obtain compensability report. See Mendoza v. Huntington Hospital (en banc)

Permanent Disability—Rating—Whole Person Impairment—WCAB en banc, granting defendant's petition for reconsideration, amending WCJ's decision to defer issues of permanent disability and attorney's fees, and remanding these issues to trial level, set out respective rules and responsibilities of physician, WCJ, and rater in assessing injured employee's whole person impairment under AMA Guides and held that (1) physician's role is to assess injured employee's whole person impairment percentage(s) by report that sets forth facts and reasoning to support its conclusions and that comports with AMA Guides and case law, (2) in context of formal rating, WCJ's role is to frame instructions, based on substantial medical evidence, that specifically and fully describe whole person impairment(s) to be rated, and WCJ's instructions may ask rater to offer expert opinion on what whole person impairment(s) should or should not be rated, (3) in context of formal rating, rater's role is to issue recommended permanent disability rating based solely on WCJ's formal rating instructions, and, unless specifically instructed to do so, rater has no authority to issue rating based on rater's own assessment of whether whole person impairment rating(s) referred to in WCJ's instructions are based on substantial evidence or are consistent with AMA Guides, (4) WCJ is not bound by rater's recommended permanent disability rating and may elect to independently rate employee's permanent disability, although WCJ's rating still must be based on substantial evidence, (5) potential AMA Guides rating problems may be minimized by early and proper use of non-formal ratings, and (6) in context of formal rating, there must be no ex parte communication between WCJ and assigned rater, when WCAB en banc found that applicant sustained admitted industrial injury to her low back and her right wrist, hip, and knee, that agreed medical evaluator reported that applicant's whole person impairment was 10 percent, that Disability Evaluation Unit rater issued formal recommended rating stating that agreed medical evaluator's report rated zero percent final permanent disability, that WCJ found that applicant's low back and right wrist, hip, and knee injury caused 10-percent permanent disability, that WCJ's rating instructions did not fully and specifically describe whole person impairments to be rated, but, to extent that WCJ intended to instruct rater to utilize whole person impairments in agreed medical evaluator's report, it was error for rater to reject those whole person impairments, that WCJ on remand should resolve apparent ambiguities in agreed medical evaluator's report and reassess whether 10-percent whole person impairment is supported by substantial evidence, that whether applicant's knee injury resulted from “direct trauma,” which is term used, but not defined, by AMA Guides, should be resolved by WCJ on remand, that rater exceeded his role in testifying that he did not see “direct trauma” in reviewing agreed medical evaluator's report, since, to extent that definition of “direct trauma” is medical question, rater impermissibly substituted his lay opinion for that of agreed medical evaluator, and, to extent that definition of “direct trauma” is legal question, rater impermissibly took on role of WCJ, that agreed medical evaluator did not inappropriately rely on “computerized impairment rating,” and that neither WCJ nor agreed medical evaluator applied principles of Almaraz v. Environmental Recovery Services; Guzman v. Milpitas Unified School District (2009) 74 Cal. Comp. Cases 1084 (Appeals Board en banc opinion). See Blackledge v. Bank of America (WCAB en banc)

Permanent Disability—Rating--Unauthorized Medical Treatment--Court of Appeal, denying defendant's petition for writ of error, affirmed WCAB's decision as based on substantial evidence and held that nothing in Labor Code provisions regarding medical treatment dispute resolution evidenced legislative intent to restrict level of permanent disability awards to that resulting from only treatment obtained under workers' compensation system, when Court of Appeal found that applicant sustained industrial injury to his low back, that treating physician recommended discectomy and fusion spinal surgery, that defendant denied such surgery, that utilization review physician and agreed medical evaluator recommended that such surgery not be performed, that agreed medical evaluator rated applicant with eight-percent whole person impairment under AMA Guides, that applicant, utilizing private health insurance, nevertheless underwent surgery with treating physician, that as result of surgery applicant's pain was greatly reduced and he was enabled to return to work, that agreed medical evaluator reported that surgery had been “successfully performed” and was both reasonable and necessary, that as result of successful fusion surgery agreed medical evaluator rated applicant at 23-percent whole person impairment, based on his loss of motion, level of pain, need for medication, and impairment of activities of daily living, and that WCJ awarded applicant 34-percent permanent disability rating. See Leprino Foods v. WCAB (Barela)  

© Copyright 2010 LexisNexis. All rights reserved.