California Workers' Compensation Cases Roundup (3/8/2012)

California Workers' Compensation Cases Roundup (3/8/2012)

CALIFORNIA COMPENSATION CASES

Vol. 77 No. 1 January 2012

A Report of En Banc and Significant Panel Decisions of the WCAB and Selected Court Opinions of Related Interest, With a Digest of WCAB Decisions Denied Judicial Review

CONTENTS OF THIS ISSUE

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Appellate Court Compensation Cases

Contreras (Salvador) v. W.C.A.B., 77 Cal. Comp. Cases 1

Petitions to Reopen—New and Further Disability—Retroactivity of Venue Provisions—Court of Appeal, annulling WCAB order denying applicant’s petition for reconsideration, held that WCAB erred by failing to apply current venue regulation to applicant’s petition or to grant relief based on mistake, inadvertence, or excusable neglect pursuant to former 8 Cal. Code Reg. § 10390, when Court of Appeal found that …

Warner (Richard) v. W.C.A.B., 77 Cal. Comp. Cases 9

Injury AOE/COE—Dual Purpose Doctrine—Court of Appeal, in split decision annulling WCAB decision and remanding case, held that, pursuant to dual purpose doctrine, applicant’s injury occurred in course of employment, arose out of employment, and was proximately caused by employment, when Court of Appeal found that…

Appellate Court Cases Not Originating With Appeals Board

Arnold v. Mutual of Omaha Insurance Co., 77 Cal. Comp. Cases 17

Employment Relationships—Independent Contractor—Court of Appeal, affirming trial court’s summary judgment in favor of defendant, held that plaintiff, former insurance agent for defendant, had been independent contractor, not employee of defendant and was, thus, not entitled to claimed unpaid employment entitlements, including business-related expenses and wages earned but unpaid, when Court of Appeal found that…

California School Employees Association v. Vista Unified School Dist. (Gil, Debra), 77 Cal. Comp. Cases 26

Civil Actions Against Employers—Industrial Accident Leave—Court of Appeal affirmed trial court’s grant of petition for writ of mandate ordering defendant/applicant’s employer/school district to pay applicant statutory industrial accident leave benefits as required by Education Code § 45192, when Court of Appeal found that…

Johnston v. Kelly, 77 Cal. Comp. Cases 36

Civil Actions—Anti-SLAPP Actions—Malicious Prosecution—Court of Appeal affirmed trial court's denial of defendants' special motion to strike plaintiff Dairy’s cause of action against defendants for malicious prosecution, i.e., anti-Strategic Lawsuit Against Public Participation (anti-SLAPP motion under Code of Civil Procedure § 425.16), when Court of Appeal found that…

Civil Actions—Anti-SLAPP Actions—Malicious Prosecution—Court of Appeal reversed trial court's denial of defendants' special motion to strike plaintiff Johnston’s cause of action against defendants for malicious prosecution and remanded for trial court to grant motion, when Court of Appeal found that…

Civil Actions—Anti-SLAPP Actions—Unfair Competition—Court of Appeal reversed trial court’s denial of defendants’ special motion to strike plaintiff Dairy’s cause of action against defendants for unfair competition and remanded for trial court to grant motion, when Court of Appeal found that …

Civil Actions—Anti-SLAPP Actions—Unfair Competition—Court of Appeal reversed trial court’s denial of defendants’ special motion to strike plaintiff Johnston’s cause of action against defendants for unfair competition and remanded for trial court to grant motion, when Court of Appeal found that …

Civil Actions—Anti-SLAPP Actions—Failure to Exhaust Administrative Remedies—Court of Appeal held that defendants’ contention that plaintiff Dairy’s malicious prosecution action was barred because Dairy did not exhaust administrative remedies before WCAB under Labor Code § 5813 was without merit, when Court of Appeal found that…

People v. Javed (Nusrat), 77 Cal. Comp. Cases 52

Insurance—Anti-Fraud Provisions—Restitution—Court of Appeal held under Insurance Code § 1871.5 that applicant/defendant should pay restitution related only to expenses that were direct result of her actions that led to jury conviction for violation of Penal Code § 550(a)(1) (one count for submitting false claim for workers’ compensation benefits) and Insurance Code § 1871.4(a)(1) (three counts related to misrepresentations about her ability to drive and work) and Court of Appeal remanded matter to trial court to recalculate amount of restitution, when…

Insurance—Anti-Fraud Provisions—Jury Instructions—Court of Appeal held that trial court made error in failure to give unanimity instruction to jury but that error was harmless, when Court of Appeal found that…

Smith (Jerome) v. Dynatectric Co., 77 Cal. Comp. Cases 59

Employment Relationships—Special Employers—Exclusive Remedy—Court of Appeal held that plaintiff/applicant raised triable issue of fact as to whether Caltech was his special employer, reversed trial court’s grant of summary judgment, and held that Caltech could not invoke employer’s defense that workers’ compensation was plaintiff’s exclusive remedy for injury he sustained at Jet Propulsion Lab while working there as clean room technician, when Court of Appeal found that…

Appeals Board En Banc Decisions

In re: Escamilla [Op. filed 1-4-2012], 77 Cal. Comp. Cases 71

WCAB Powers—Hearing Representatives—WCAB en banc, dismissing hearing representative’s petition for reconsideration, held that petition did not seek reconsideration of final order and, alternatively, was not timely filed, when WCAB en banc found that…

In re: Escamilla [Op. filed 1-20-2012], 77 Cal. Comp. Cases 75

WCAB Powers—Hearing Representatives—WCAB en banc, dismissing hearing representative’s petition for change of venue and denying his request for immediate stay of proceedings, granted his petition for removal and held that, to protect hearing representative’s “utmost due process,” it would afford him one final additional opportunity to retain counsel prior to any further conference or hearing, and directed WCAB’s hearing officer to …

Digests of WCAB Decisions Denied Judicial Review

Editorial Board members Melissa C. Brown, Hon. Joel K. Harter, James T.  Ponzio, and Hon. Ralph Zamudio recommended the following writ denied cases for summarization in this issue.

California Indemnity v. W.C.A.B. (Marquez, Vance), 77 Cal. Comp. Cases 82

Permanent Disability—Rating—Permanent Total Disability—WCAB held that applicant/auto mechanic incurred 100 percent permanent total disability as result of industrial injuries to his neck, chest, back, bilateral upper extremities, knees, and psyche, and during cumulative period, based on opinions of psychiatric and orthopaedic agreed medical evaluators indicating that…

Permanent Disability—Apportionment—Successive Injuries—WCAB held that defendant did not meet burden of proving Labor Code § 4663 or 4664 apportionment of applicant/auto mechanic’s permanent total disability as between his specific industrial injuries to his neck, chest, back, bilateral upper extremities, knees, and psyche, and his cumulative injuries to same body parts, and that WCJ properly issued…

Permanent Disability—Apportionment—Non-Industrial Factors—WCAB affirmed WCJ’s finding that opinion of psychiatric agreed medical evaluator, apportioning five percent of applicant’s psychiatric condition to applicant’s claimed childhood abuse, did not constitute substantial evidence to …

Community Hospital of Monterey Peninsula v. W.C.A.B. (Bunch, William), 77 Cal. Comp. Cases 91

Evidence—Weight of Evidence—WCAB affirmed WCJ’s finding that applicant suffered permanent total disability as result of industrial injury, based on totality of evidence, including vocational expert’s opinion, and that…

Harris Ranch Inn & Restaurant v. W.C.A.B. (Orrala, Pablo), 77 Cal. Comp. Cases 94

Injury AOE/COE—Causation—Idiopathic Seizures—WCAB, affirming WCJ's finding that applicant/baker sustained injury AOE/COE to his head when he suffered idiopathic seizure and fell and hit his head on cement floor, held that…

Kemp v. W.C.A.B. (McDonald, Edward), 77 Cal. Comp. Cases 99

Insurance Coverage—WCAB affirmed arbitrator's finding that Arizona workers' compensation insurance policy did not cover claims by two different employees of interstate trucking company that partially relocated its business from California to Arizona, and that there was no basis to…

Lewis (Monty) v. W.C.A.B., 77 Cal. Comp. Cases 108

Psychiatric Injuries—Predominant Cause Requirement—Apportionment Between Multiple Employers—WCAB held that applicant/construction foreman’s claim for psychiatric injury stemming from low back injuries incurred while employed by defendant on 3/14/2002, 5/7/2004, and 7/22/2004, and during cumulative period from 1978 through 7/28/2004, was barred under Labor Code § 3208.3(b)(1) because applicant did not…

Other WCAB Decisions Denied Judicial Review

Adams (Cortez) v. W.C.A.B., 77 Cal. Comp. Cases 112

Injury AOE/COE—WCAB held that applicant did not sustain injury AOE/COE to new body parts as compensable consequence of stipulated injury to other body parts, when WCAB found that applicant cement mason sustained initial injury from electrocution at work, that stipulations with request for award were approved on 5/24/2001, which indicated that…

Permanent Disability—WCAB held that applicant did not sustain any new and further permanent disability from…

WCAB Duty to Develop Record—WCAB held that it did not have duty to further develop…

Liberal Construction—WCAB found that Labor Code § 3202 mandating liberal construction applied to…

Berrios (Jose) v. W.C.A.B., 77 Cal. Comp. Cases 114

Temporary Disability—WCAB granted defendant’s petition to terminate applicant’s temporary disability benefits for two industrial injuries as of 3/9/2006, which was date applicant became permanent and stationary according to opinion of independent medical evaluator appointed by WCAB, when WCAB found that …

Temporary Disability—Permanent and Stationary Date—WCAB held that applicant was permanent and stationary on 3/9/2006 for two industrial injuries, based on opinions of independent medical evaluator appointed by WCAB who gave opinion that, unless…

County of Kern v. W.C.A.B. (Dollar, Gregory), 77 Cal. Comp. Cases 116

Injury AOE/COE—WCAB held that applicant county probation department group counselor sustained injury AOE/COE to his low back on 6/2/2009, based on opinions from initial treating physician, panel qualified medical evaluator, applicant’s credible and unrebutted testimony about mechanism of injury, and absence of medical opinion that applicant did not sustain industrial injury on 6/2/2009, when WCAB found that…

Temporary Total Disability—WCAB awarded applicant temporary total disability from 6/3/2009 to 6/11/2009 and again from 2/16/2010 until 9/21/2010 (date of applicant’s retirement from county), based on opinions from …

Escamilla v. W.C.A.B., 77 Cal. Comp. Cases 118

Petitions for Writ for Review—Court of Appeal denied without prejudice petitioner’s petition for writ of review of WCAB’s notice setting hearing and petition to stay hearing, when …

Goins (Perseveranda) v. W.C.A.B., 77 Cal. Comp. Cases 119

Psychiatric Injury AOE/COE—WCAB held that applicant did not sustain injury to psyche AOE/COE from 10/22/2008 to 10/22/2009 and that applicant did not meet burden of proving that actual events of employment were predominant as to all causes of alleged psychiatric injury, as required by Labor Code § 3208.3(b)(1), when WCAB found that …

Kaabinejadian (Massoud) v. W.C.A.B., 77 Cal. Comp. Cases 121

Psychiatric Injury AOE/COE—WCAB held that applicant did not sustain injury AOE/COE to psyche in cumulative trauma period from 4/3/2006 through 7/5/2006, when applicant claimed injury from working for employer as senior vice president for credit, recommending approval or non-approval of business loans, and claimed he was subjected to emotional stress resulting in mental anguish and major depression from interactions with other staff members related to approval of loans, and WCAB found …

Discrimination—Labor Code § 132a—WCAB held that applicant did not show that employer discriminated against him in violation of Labor Code § 132a by terminating him 7/5/2006, when WCAB found that …

LaPlante (Sandra) v. W.C.A.B., 77 Cal. Comp. Cases 123

Permanent Disability—Apportionment—WCAB, rescinding WCJ’s findings and award and remanding for WCJ to hold further proceedings on whether applicant’s gastric bypass surgery was related to applicant’s industrial injuries, held that opinion of psychiatric agreed medical evaluator supported apportionment of 10 to 15 percent of applicant’s psychiatric disability from two industrial injuries to non-industrial factors, when WCAB found that…

Ortiz (Roxanna) v. W.C.A.B., 77 Cal. Comp. Cases 125

Injury AOE/COE—WCAB held that applicant janitor sustained injury AOE/COE on 8/2/2004 to her cervical spine, but not to her right arm, right wrist, right elbow, right shoulder, or back, based on medical record, especially opinions from …

Permanent and Stationary Date—WCAB held that applicant became permanent and stationary…

Medical Treatment—WCAB held that applicant was not entitled to…

Evidence—Admissibility—WCAB admitted all of defendant’s medical reports, over applicant’s objection, and found that applicant should have raised and litigated this issue at time of trial and that…

Smith (Fred) v. W.C.A.B., 77 Cal. Comp. Cases 127

Injury AOE/COE—WCAB held that applicant stock clerk sustained injury AOE/COE on 10/30/94 to his back, neck, and shoulders, but not to his psyche, and that …

Disability Benefits—WCAB awarded applicant temporary total disability benefits from 7/5/95 to…

Medical Treatment—WCAB awarded applicant further medical treatment for…

Penalties—Delay in Payment of Award—WCAB held that defendant unreasonably delayed paying final judgment and…