California Workers' Compensation Cases Roundup (3/23/2012)

CALIFORNIA COMPENSATION CASES

Vol. 77 No. 2 February 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

C.C. Myers, Inc. v. W.C.A.B. (Lockwood, Bruce), 77 Cal. Comp. Cases 129

Serious and Willful Misconduct By Employer—Court of Appeal, affirming WCAB’s award of enhanced benefits under Labor Code § 4553, held that substantial evidence supported WCAB’s conclusion that defendant’s failure to provide spotter to help direct movement of excavator, under surrounding circumstances, amounted to serious and willful misconduct, when Court of Appeal found that …

California Insurance Guarantee Associateion v. W.C.A.B. (Jenkins, Anastasia), 77 Cal. Comp. Cases 143

California Insurance Guarantee Association—Covered Claims—“Assigned” Claims—Court of Appeal, affirming ruling of WCAB, held that collection agency representing lien claimants/medical providers was not excluded by Insurance Code § 1063.1(c)(9)(B) from pursuing claims against California Insurance Guarantee Association, when Court of Appeal found that …

Appellate Court Cases Not Originating With Appeals Board

Allied Interstate Inc. v. Sessions Payroll Management, Inc., 77 Cal. Comp. Cases 156

Workers' Compensation Insurance—Premiums—Court of Appeal, affirming judgment of trial court, held that defendant, rather than its successor, was obliged to pay workers’ compensation insurance premium, and that premium was properly increased by application of 121 percent experience modifier, when Court of Appeal found that …

Tverberg v. Fillner Construction, Inc., 77 Cal. Comp. Cases 166

Third Party Actions—Hirer's Liability—Retained Control—Court of Appeal, reversing trial court’s summary judgment in favor of defendant, held that plaintiff, independent subcontractor, presented sufficient evidence of triable issue of fact on whether defendant general contractor had direct liability for plaintiff’s injury, on theory that defendant negligently exercised retained control over workplace safety and thereby affirmatively contributed to plaintiff’s injury, when Court of Appeal found that …

Digests of WCAB Decisions Denied Judicial Review

Editorial Board members Hon. David Hettick, Robert G. Heywood, Kenneth B. Peterson, and Robert G. Rassp recommended the following writ denied cases for summarization in this issue.

Aparicio (Margarita) v. W.C.A.B., 77 Cal. Comp. Cases 174

Employment Relationships—Independent Contractors—WCAB held that applicant hair stylist was independent contractor under Labor Code § 3353, not employee of defendant’s on date of alleged cumulative trauma industrial injury, when WCAB relied on testimony from defense witnesses, including owner of defendant barbershop, and found that …

County of Mendocino v. W.C.A.B. (Branscomb, Aaron), 77 Cal. Comp. Cases 177

Medical-Legal Procedure—Medical Reports as Evidence—Rights of Lien Claimant—WCAB, affirming WCJ's finding that applicant/deputy sheriff sustained 7/17/2008 industrial left knee injury during his employment with County of Mendocino (County) causing need for medical treatment, held that WCJ did not err in admitting and relying on panel qualified medical evaluator reports legally obtained under Labor Code §§ 4060, 4062.1, and 4064(d) by City of Willits (City), applicant’s former employer and lien claimant in applicant’s workers’ compensation case against County, in connection with prior claim by applicant involving 2002 industrial injury while working for City, when WCAB found that …

Mendoze (Amelia) v. W.C.A.B., 77 Cal. Comp. Cases 183

Injury AOE/COE—Burden of Proof—WCAB, denying applicant’s petition for reconsideration, affirmed its prior decision [see Mendoza v. Huntington Hospital, PSI, 2011 Cal. Wrk. Comp. P.D. LEXIS 330] in which it reversed WCJ’s finding that decedent sustained industrial injuries on 4/12/2009 and 4/14/2009 resulting in her death, and held that …

Northrop Grumman Corp. v. W.C.A.B. (Elachkar, Linda), 77 Cal. Comp. Cases 187

Cumulative Injury—Date of Injury—Statute of Limitations—WCAB affirmed WCJ's finding that applicant/microelectronic assembler suffered cumulative trauma to her back and neck during period ending 6/21/2007, and that applicant's application filed on 7/30/2008 was not barred by one-year statute of limitations in Labor Code § 5405, when …

Ragland (Arnie) v. W.C.A.B., 77 Cal. Comp. Cases 190

Vocational Rehabilitation—Repeal of Labor Code § 139.5—WCAB affirmed WCJ’s finding that applicant/accounting/payroll manager with 5/6/2000 back injury had vested right to vocational rehabilitation maintenance allowance from 7/7/2008, date of Rehabilitation Unit determination, but that applicant lost all further vocational rehabilitation rights…

Timmons (Dennis) v. W.C.A.B., 77 Cal. Comp. Cases 193

Subsequent Injuries Benefits Trust Fund—WCAB held that applicant/correctional officer who suffered 85 percent permanent disability as result of 4/13/2000 industrial injuries to his back, hips, legs, shoulder, and psyche, and had previously undergone cervical fusion for 1991 neck injury, did not establish entitlement to SIBTF benefits pursuant to requirements in Labor Code § 4751, when applicant did not present …

Torrance Co., The v. W.C.A.B. (Constanza, Jesus), 77 Cal. Comp. Cases 197

Injury AOE/COE—Post-Termination Claims—WCAB affirmed WCJ’s finding that applicant/waiter’s claim for industrial injuries to his spine in 2006 and during cumulative period 9/23/88 to 2/2008 was not barred by Labor Code § 3600(a)(10), when WCAB found that …

Zenith Insurance Co. v. W.C.A.B. (Mota, Ricardo), 77 Cal. Comp. Cases 200

Discovery—Depositions—Spousal Privilege—WCAB denied defendant's petition for removal from WCJ's order that applicant's wife could not be compelled to testify at deposition regarding applicant's drug use and incarceration, based on marital privilege in Evidence Code §§ 970 and 971, when applicant…

Other WCAB Decisions Denied Judicial Review

City of Port Hueneme v. W.C.A.B. (Burns, Rollen), 77 Cal. Comp. Cases 203

Permanent Disability—Apportionment—WCAB awarded applicant city police officer 40 percent permanent partial disability, without apportionment, for cumulative trauma injury AOE/COE to his left hip from 3/9/78 through 8/13/2010, based on applicant’s testimony, opinions from applicant’s primary treating physician on extent of permanent disability and apportionment, range of medical evidence, and recommended rating from Disability Evaluation Unit, and WCAB found that …

WCAB Duty to Further Develop Medical Record—WCAB held that it did not have duty to further develop medical record on issue of apportionment of permanent disability when it found that only medical reports in record were from applicant’s primary treating physician, that opinions from this physician were …

Robichaud (John) v. W.C.A.B., 77 Cal. Comp. Cases 205

Injury/Death AOE/COE—WCAB held that applicant’s death on 11/17/2007 from accidental overdose of fentanyl and hydrocodone was not related to his admitted industrial right index finger injury on 6/21/2005 or disputed left hand and hernia injury on same date, based on opinions from panel qualified medical evaluator, which WCAB found …

Solorio (Elena) v. W.C.A.B., 77 Cal. Comp. Cases 207

Injury AOE/COE—WCAB held that applicant sustained admitted injury AOE/COE to her knees on 5/31/2006, from fall at work, but not to her back or neurologic system, when WCAB relied on opinion of orthopedic agreed medical evaluator that …

Evidence—Reopening Record—WCAB held that there was no good cause to grant applicant’s post-trial request to reopen record for additional medical report on issue of injury AOE/COE to applicant’s neurological system, when WCAB found that …

Villegas (Lucino) v. W.C.A.B., 77 Cal. Comp. Cases 209

Employment Relationships—WCAB held that applicant carpet installer was not employee of defendant in period of claimed cumulative trauma industrial injury to multiple body parts (4/2/2006 through 4/2/2007), based on WCAB’s findings that …

Yellow Transportation, Inc. v. W.C.A.B. (Lozano, Pete), 77 Cal. Comp. Cases 211

Medical Treatment—WCAB ordered defendant to pay for medical treatment for applicant’s industrial injury, under Labor Code § 4600, with treatment to include weight loss program, then orthopedic surgery for left shoulder, based on …

Temporary Total Disability—WCAB awarded applicant temporary total disability from 4/10/2009 through 8/25/2011, when WCAB found that ..