California Workers' Comp Case Roundup (6/9/2012)

California Workers' Comp Case Roundup (6/9/2012)

CALIFORNIA COMPENSATION CASES

Vol. 77 No. 5 May 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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Lexis.com subscribers can link to the cases, complete headnotes and summaries below.

Appellate Court Compensation Case

American Medical Response v. W.C.A.B. (Western, Ronald), 77 Cal. Comp. Cases 413

Injury AOE/COE—Substantial Medical Evidence—Court of Appeal held that WCAB’s decision that applicant’s stroke was industrial was supported by substantial evidence, when Court of Appeal found that …

Appellate Court Case Not Originating With Appeals Board

Valero (Joe) v. Board of Retirement of Tulare County Employees Retirement Association, 77 Cal. Comp. Cases 422

Injury AOC/COE—Burden of Proof—Court of Appeal, affirming trial court’s order denying plaintiff/employee’s petition for writ of mandate, held that medical evidence was not of such character and weight as to leave no room for judicial determination that it was insufficient to support finding in favor of plaintiff who bore burden of proving connection between his employment and his injury, when Court of Appeal found that …

Appeals Board En Banc Decision

In re: Escamilla, 77 Cal. Comp. Cases 430

WCAB Powers—Hearing Representatives—WCAB en banc denied hearing representative’s (1) petition for order requiring WCAB to produce all case documents relating to sanction proceedings against hearing representative and (2) objection to order requiring submission of offer of proof and petition for removal to obtain ruling on petition to produce and to obtain clarification of specific issues to be determined by WCAB, when WCAB en banc found that …

Digests of WCAB Decisions Denied Judicial Review

Editorial Board members Francis V. Clifford, Hon. Jacqueline C. Duncan, Susan Hamilton, and James Pettibone recommended the following writ denied cases for summarization in this issue.

Chabot-Las Positas Community College v. W.C.A.B. (Sultan, Svetlana), 77 Cal. Comp. Cases 435

Petitions to Reopen—New and Further Permanent Disability—WCAB held that applicant/lab technician who suffered admitted low back injury and received stipulated award for 12 percent permanent disability, based on treating physician’s reports, established good cause under Labor Code §§ 5803 and 5410 to reopen stipulated award for increased permanent disability pursuant to agreed medical examiner’s opinion, when agreed medical examiner …

City of Chico v. W.C.A.B. (Scholar, Gary), 77 Cal. Comp. Cases 440

Statute of Limitations—Occupational Cancer in Firefighters—WCAB, affirming WCJ in split panel decision, held that applicant/fire chief’s claim for industrial injury in form of squamous cell carcinoma was not barred by Labor Code § 5405 statute of limitations, notwithstanding that applicant first sought medical evaluation for a lump on his neck in 2004 and four medical reports issued in 2004 stated that applicant had squamous cell carcinoma, when …

Coca-Cola Enterprises, Inc. v. W.C.A.B. (Jaramillo, Mack), 77 Cal. Comp. Cases 445

Permanent Disability—Rating—Permanent Total Disability—WCAB affirmed WCJ’s finding that applicant/warehouseman incurred 100 percent permanent disability, without apportionment, as result of specific injuries to his cervical spine, lumbar spine, psyche and in forms of seizure disorder, headaches, neurologic disorder, cognitive disorder, language disorder, behavioral disorder, and sleep disorder and injuries during cumulative period, when WCAB found …

Gonzalez (Joaquin) v. W.C.A.B., 77 Cal. Comp. Cases 449

Medical Treatment—Medical Provider Networks—WCAB held that defendants were not liable for medical treatment applicant received outside employer’s medical provider network and that reports from physicians applicant treated with outside employer’s medical provider network were not admissible, when WCAB found that …

Gonzalez (Pedro) v. W.C.A.B., 77 Cal. Comp. Cases 452

Credit—Third-Party Recovery—WCAB held that agreement between applicant/pipefitter’s employer, acting as subcontractor on construction site, and general contractor under which employer waived its subrogation rights did not …

Keitt (Angella) v. W.C.A.B., 77 Cal. Comp. Cases 455

Jurisdiction—Indian Tribes—WCAB affirmed WCJ’s finding that defendant Indian tribe did not waive its sovereign immunity for purposes of conferring California jurisdiction by allegedly breaching Tribal Gaming Compact between itself and State of California, when WCAB found …

Oakland Raiders, The v. W.C.A.B. (Gilbert, Sean), 77 Cal. Comp. Cases 457

Permanent Disability—Apportionment—WCAB, in panel majority opinion, affirmed WCJ's findings that applicant/professional football player incurred 100 percent permanent disability as result of cumulative trauma to multiple body parts during period 1992 through 12/22/2003 while playing for various football teams, that, based on last year of injurious exposure, Oakland Raiders had sole liability for …

Permanent Disability—Rating—Permanent Total Disability—WCAB, in panel majority opinion, affirmed WCJ’s findings that applicant/professional football player incurred 100 percent permanent disability as result of cumulative trauma to multiple body parts during period 1992 through 12/22/2003, when formal Disability Evaluation Unit rating was for 99 percent permanent disability, when WCAB found …

Sanders (Kandi) v. W.C.A.B., 77 Cal. Comp. Cases 464

Permanent Disability—Rating—AMA Guides—WCAB held that applicant incurred nine percent permanent disability, after apportionment of 60 percent to non-industrial factors, as result of 10/8/2007 industrial psychiatric injury stemming from sexual assault, based on parties’ stipulation, as supported by evidence, and agreed medical evaluator’s assignment of GAF of 58, equal to 18 percent WPI under AMA Guides, when WCAB found …

Slagle (William) v. W.C.A.B., 77 Cal. Comp. Cases 467

Permanent Disability—Apportionment—WCAB affirmed WCJ’s finding that applicant/dental lab technician incurred 10 percent permanent disability as result of industrial injury to his right knee, and that WCJ's 20 percent apportionment of permanent disability to other factors did not constitute unlawful age discrimination, when WCAB found …

State Compensation Insurance Fund v. W.C.A.B. (Luis, Estela), 77 Cal. Comp. Cases 470

Permanent Disability—Apportionment—Successive Injuries—WCAB affirmed WCJ's finding that applicant incurred 100 percent permanent disability as result of combined effects of specific injury to her left knee and psyche and cumulative trauma injury to her left knee, and that agreed medical evaluator's opinion did not …

Permanent Disability—Cost of Living Adjustments—WCAB, granting reconsideration, deferred life pension awarded to applicant who sustained 100 percent permanent disability as result of combination of specific injury to her left knee and psyche and cumulative trauma injury to her left knee, for determination of …

Tapia (Rafael, Jr.) v. W.C.A.B., 77 Cal. Comp. Cases 475

Attorney's Fees—Lien Claimant as Beneficiary—WCAB affirmed WCJ’s finding that Department of Health Services/Medi-Cal was not passive beneficiary in applicant's workers’ compensation case and, on that basis, upheld WCJ's order denying applicant attorney's request for a fee award against $ 1,100,000 lien recovery of Department of Health Services, when WCAB found …

Other WCAB Decisions Denied Judicial Review

Atria Senior Living v. W.C.A.B. (Cohen, Carolyn), 77 Cal. Comp. Cases 484

Statute of Limitations—WCAB held that applicant’s claim for cumulative trauma injury AOE/COE in period ending 12/26/2002 was not barred by statute of limitations of Labor Code § 5405, when WCAB found that …

Laches—WCAB held that doctrine of laches did not apply, when defendants (second employer and its insurer) contended that this doctrine applied because of alleged unreasonable delay in filing application for adjudication of claim and prejudice to defendants, and WCAB found that…

County of Fresno v. W.C.A.B. (Burgess, Mary), 77 Cal. Comp. Cases 486

Injury AOE/COE—WCAB held that applicant sustained injuries AOE/COE on 5/9/2003 and cumulatively ending 5/9/2003 in form of heart trouble, based on applicant’s testimony about daily stress from her work as county correctional officer at county jail for 15 years and opinions from applicant’s qualified medical evaluator that stress from applicant’s work caused or aggravated her heart trouble (and contrary to opinions from defense qualified medical evaluator that applicant had no heart trouble), when WCAB found that …

Permanent Disability—Rating—WCAB rated applicant’s permanent disability based on range of medical evidence, when WCAB found that …

Permanent Disability—Apportionment—WCAB held that applicant’s 64 percent permanent partial disability award was not subject to apportionment, relying on opinion from applicant’s qualified medical evaluator that applicant’s employment was …

Law Offices of Kenneth Z. Lautman, Inc. v. W.C.A.B. (Rangel, David), 77 Cal. Comp. Cases 488

Lien Claims—Applicant's Attorney's Fees—WCAB ordered defendant employer to pay attorney’s fees to applicant’s attorney and under Labor Code § 4555 ordered defendant to pay attorney’s fees in addition to benefits to be paid to applicant, when WCAB found that …

Lien Claims—Costs—Pursuant to Labor Code § 5811, WCAB ordered defendant to reimburse applicant’s attorney for costs attorney paid to vocational rehabilitation expert for report and testimony about applicant’s claim, and under Labor Code § 4555 ordered defendant to reimburse these costs in addition to benefits to be paid to applicant, when WCAB found that…

Lien Claims—Reimbursement for Living Expenses—Pursuant to Labor Code § 4903(c), WCAB awarded applicant’s attorney $1,000 as reimbursement for living expenses advanced to applicant, when WCAB found that …

Pacific Employers Insurance v. W.C.A.B. (Johnson, Damon), 77 Cal. Comp. Cases 490

Petition for Writ of Review—Exhibits—Court of Appeal denied petition for writ of review, finding that petition for writ of review was inadequate because petitioner did not submit exhibits that complied with requirements of California Rules of Court, Rule 8.495(a), when petitioner disputed…

Piechota (John) v. W.C.A.B., 77 Cal. Comp. Cases 492

Discrimination—Labor Code § 132a—WCAB, affirming WCJ's finding of no discrimination, held that applicant/consultant with 10/17/2000 left knee injury did not his meet his burden under Department of Rehabilitation v. W.C.A.B. (Lauher) (2003) 30 Cal. 4th 1281, 135 Cal. Rptr. 2d 665, 70 P. 3d 1076, 68 Cal. Comp. Cases 831, of showing that …

Trammel (Tanna) v. W.C.A.B., 77 Cal. Comp. Cases 493

Injury AOE/COE—WCAB held that applicant did not sustain injury AOE/COE to her back and neck on 7/17/2010, when WCAB found that …

Tunstall (Patrick) v. W.C.A.B., 77 Cal. Comp. Cases 494

Petitions for Writ for Review—Exhibits—Court of Appeal denied petition for writ of review because it did not include …

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