California Workers' Comp Case Roundup (3/8/2013)

CALIFORNIA COMPENSATION CASES

Vol. 78 No. 2 February 2013

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

County of Alameda v. W.C.A.B. (Knittel, Bryan), 78 Cal. Comp. Cases 81 (lexis.com), 78 Cal. Comp. Cases 81 (Lexis Advance)

Temporary Disability—104-Week Limit—Salary in Lieu of Benefits—Court of Appeal, annulling WCAB decision that Labor Code § 4850 salary continuation benefits did not count toward 104-week limit on payments for injury causing temporary disability under Labor Code § 4656(c)(2), held that salary continuation benefits paid to injured public safety officer counted toward 104-week limit on temporary disability payments, when Court of Appeal found that…

Espinoza (Stewart) v. W.C.A.B., 78 Cal. Comp. Cases 89 (lexis.com), 78 Cal. Comp. Cases 89 (Lexis Advance)

Employment Relationships—Prisoners—Court of Appeal, affirming Appeals Board’s decision, held that applicant, Los Angeles County jail inmate, injured while working as cook in jail, was not employee of county and, therefore, not eligible for workers’ compensation benefits, when Court of Appeal found that …

Appellate Court Cases Not Originating With Appeals Board

Homeport Insurance Services, Inc. v. Lundy, 78 Cal. Comp. Cases 95 (lexis.com), 78 Cal. Comp. Cases 95 (Lexis Advance)

Third Party Settlement Agreements—Attorney’s Fees—Court of Appeal affirmed trial court’s award of attorney’s fees under Civil Code § 1717 to plaintiff’s employer as third party beneficiary of global settlement agreement between plaintiff and third party defendant, when Court of Appeal found that …

Munish (Diane) v. Hauman Fellowship, 78 Cal. Comp. Cases 107 (lexis.com), 78 Cal. Comp. Cases 107 (Lexis Advance)

Third Party Actions—Exclusive Remedy—Judicial Estoppel—Volunteers—Court of Appeal held that trial court erred in granting summary judgment in employer’s favor, either on affirmative defense of workers’ compensation as exclusive remedy or on judicial estoppel theory, when Court of Appeal found that …

Appeals Board En Banc Decision

In re: Escamilla, 78 Cal. Comp. Cases 134 (lexis.com), 78 Cal. Comp. Cases 134 (Lexis Advance)

Suspension or Removal of Privilege to Appear Before WCAB—WCAB en banc determined that nonattorney hearing representative’s pattern of sanctionable conduct in 11 cases constituted good cause, pursuant to Labor Code § 4907, to suspend hearing representative’s privilege to appear in any WCAB proceeding for 90 days, when WCAB en banc 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.

Adams (Steve) v. W.C.A.B., 78 Cal. Comp. Cases 152 (lexis.com), 78 Cal. Comp. Cases 152 (Lexis Advance)

Petitions to Reopen—Change of Law—Mistake of Fact—WCAB, affirming WCJ’s finding, held that applicant/correctional youth counselor with cumulative injuries to his circulatory system, respiratory system, and psyche did not show good cause to reopen prior stipulated award pursuant to Labor Code § 5803 to set aside stipulation of five percent apportionment of permanent disability to non-industrial causes based on change of law due to enactment of Labor Code § 4663(e), when WCAB found that…

City of Irvine v. W.C.A.B. (Giannini, Stephen), 78 Cal. Comp. Cases 157 (lexis.com), 78 Cal. Comp. Cases 157 (Lexis Advance)

Permanent Disability—Apportionment—Anti-Attribution Clauses—WCAB awarded applicant/police officer officer 74 percent permanent disability as result of cumulative industrial injuries to his cervical spine, low back, and heart, and held that, despite agreed medical evaluator’s opinion that applicant’s low back disability was apportionable to other industrial injuries, apportionment was precluded under Labor Code § 4663(e), when WCAB found that…

M & E Construction Co. v. W.C.A.B. (Sturgeon, Jennifer), 78 Cal. Comp. Cases 161 (lexis.com), 78 Cal. Comp. Cases 161 (Lexis Advance)

Death Benefits—Dependents—WCAB held that applicant/daughter of deceased employee qualified as total dependent of decedent under Labor Code §§ 3501 and 4702, when WCAB found that dependency is to be determined as of…

Moreno (Angela) v. W.C.A.B., 78 Cal. Comp. Cases 165 (lexis.com), 78 Cal. Comp. Cases 165 (Lexis Advance)

Discrimination—Labor Code § 132a—WCAB, affirming WCJ, held that applicant/senior redevelopment project manager, who suffered industrial psychiatric injury and was subsequently terminated from her employment, failed to make prima facie showing that her termination was discriminatory under Labor Code § 132a, when substantial evidence, including testimony of applicant’s supervisor and defendant’s human resources director as well as multiple reprimands and job evaluations contained in applicant’s personnel file, indicated that…

Robles (Miguel) v. W.C.A.B., 78 Cal. Comp. Cases 168 (lexis.com), 78 Cal. Comp. Cases 168 (Lexis Advance)

Medical Provider Networks—Access Standards—WCAB affirmed WCJ's finding that, although defendant's medical provider network did not provide minimum of three physicians within 15 miles or 30 minutes of applicant/truck driver’s residence, defendant’s medical provider network was in compliance with access standards in 8 Cal. Code Reg. §§ 9767.5(a) and (b) because it had at least three orthopedic surgeons to treat applicant's industrial back injury located within 15 miles of applicant’s workplace and, while WCAB acknowledged conflict between…

Tabo (Edgar) v. W.C.A.B., 78 Cal. Comp. Cases 174 (lexis.com), 78 Cal. Comp. Cases 174 (Lexis Advance)

Injury AOE/COE—Off-Duty Recreational/Athletic Activities—WCAB, reversing WCJ, held that applicant/police officer did not sustain injury AOE/COE to his back, left shoulder, left upper extremity, knees, ribs, and head pursuant to Labor Code § 3600(a)(9), when applicant’s injuries were sustained while he was riding his bicycle near his home, and WCAB found that…

TIG Insurance Co. v. W.C.A.B. (White, Jean), 78 Cal. Comp. Cases 178 (lexis.com), 78 Cal. Comp. Cases 178 (Lexis Advance)

Medical Treatment—Utilization Review—WCAB affirmed WCJ's order awarding medical treatment in form of assisted living to applicant who incurred permanent total disability as result of industrial injuries, plus Labor Code § 5814 penalty and Labor Code § 5813 attorney’s fees and costs, when (1) applicant’s treating physician recommended that applicant be placed in assisted living facility indefinitely, (2) defendant did not submit request to…

Trapero (Martin) v. W.C.A.B., 78 Cal. Comp. Cases 183 (lexis.com), 78 Cal. Comp. Cases 183 (Lexis Advance)

Medical-Legal Procedure—Prohibited Communications With Agreed Medical Evaluator—WCAB, granting removal on its own motion and rescinding WCJ’s finding, held that applicant’s attorney violated Labor Code § 4062.3 when attorney handed recently-procured vocational evaluation report to defense counsel a few minutes prior to agreed medical evaluator’s deposition and presented report to agreed medical evaluator during deposition, when WCAB found that…

United Airlines, Inc. v. W.C.A.B. (Rodriguez, Sonia), 78 Cal. Comp. Cases 187 (lexis.com), 78 Cal. Comp. Cases 187 (Lexis Advance)

Stipulations—Setting Aside—Mutual Mistake of Fact—WCAB denied defendant’s request to set aside Stipulated Award under which parties settled unrepresented applicant/administrative assistant’s claim for 10/21/2005 specific injury to her wrists that was based on reports of applicant’s treating physician diagnosing flexor tendinitis of right distal forearm, when defendant sought to set aside Stipulations on ground that parties, due to mutual mistake, erroneously stipulated to specific injury rather than cumulative trauma injury, but WCAB found that…

Zinke (Jeanette) v. W.C.A.B., 78 Cal. Comp. Cases 190 (lexis.com), 78 Cal. Comp. Cases 190 (Lexis Advance)

Temporary Disability—Two-Year Limitation on Temporary Disability Indemnity—WCAB upheld WCJ’s finding that applicant was not entitled to additional temporary disability indemnity in connection with industrial injuries to her left knee, ankle, foot, and head, when defendant paid 104 weeks of temporary disability indemnity pursuant to Labor Code § 4656(c)(1), and WCAB found that…

Other WCAB Decisions Denied Judicial Review

Chevron Products Co. v. W.C.A.B. (Cooke, Michael), 78 Cal. Comp. Cases 193 (lexis.com), 78 Cal. Comp. Cases 193 (Lexis Advance)

Permanent Disability—Apportionment—WCAB awarded applicant boiler maker 100 percent permanent disability, without apportionment, temporary disability, and future medical treatment for applicant's 4/16/1997 low back industrial injury, based on opinions on apportionment from applicant’s qualified medical evaluator that applicant had multiple specific injuries but had recovered from all previous injuries, returned to work, and did not have low back issues immediately before 4/16/1997 injury, that 4/16/1997 injury was most significant injury, that applicant’s permanent disability resulted only from 4/16/1997 injury, and that applicant was permanently totally disabled from medical perspective, when WCAB found that…

Evidence—Exclusion—WCAB held that WCJ did not commit error by denying defendant’s request to introduce several exhibits at second trial as rebuttal to opinions on apportionment of permanent disability from applicant’s qualified medical evaluator in supplemental reports, when WCAB found that…

Derboghossian (Chris) v. W.C.A.B., 78 Cal. Comp. Cases 195 (lexis.com), 78 Cal. Comp. Cases 195 (Lexis Advance)

Petitions for Writ of Review—Final WCAB Orders—Court of Appeal dismissed petition for writ of review, finding that petitioner was appealing WCAB decision that was not final order or decision required by Labor Code § 5901, since WCAB's decision…

Faruki (Mekal K.) v. W.C.A.B., 78 Cal. Comp. Cases 196 (lexis.com), 78 Cal. Comp. Cases 196 (Lexis Advance)

Petitions for Writ of Review—Court of Appeal denied petition for writ of review of WCJ's 10/18/2012 findings of fact denying petitioner's request to reopen average weekly wage issue for 9/15/2009 industrial injury, since WCJ found…

Garcia (David) v. W.C.A.B., 78 Cal. Comp. Cases 197 (lexis.com), 78 Cal. Comp. Cases 197 (Lexis Advance)

Injury AOE/COE—WCAB held that applicant tile setter did not meet burden of proving he sustained injury AOE/COE in cumulative trauma period from 11/1/95 to 12/8/1998 to lungs, respiratory system, disseminated coccidioidomycosis/valley fever, or meningitis from exposure to fumes, dust, and dirt while working for employer, when WCAB found that…

Hamilton (Larry) v. W.C.A.B., 78 Cal. Comp. Cases 199 (lexis.com), 78 Cal. Comp. Cases 199 (Lexis Advance)

WCAB Orders—Good Cause to Set Aside—WCAB held that applicant did not show good cause to set aside (1) 11/22/88 trial stipulation, (2) 12/27/88 findings, award, and order, or (3) 9/20/2001 order approving compromise and release, all related to applicant’s 5/16/84 industrial injury, and WCAB also held that…

San Mateo County Transit District v. W.C.A.B. (Love, Lowel), 78 Cal. Comp. Cases 201 (lexis.com), 78 Cal. Comp. Cases 201 (Lexis Advance)

Permanent Disability—Apportionment—WCAB held that (1) Labor Code § 4662 presumption that applicant’s permanent disability was total applied because medical evidence in record and medical opinions from applicant’s qualified medical evaluator supported finding that applicant lost use of both hands (as specified in statute), and that loss of use came from…

Southwest Trails, Inc. v. W.C.A.B. (Portillo, Jose), 78 Cal. Comp. Cases 203 (lexis.com), 78 Cal. Comp. Cases 203 (Lexis Advance)

Injury AOE/COE—WCAB held that applicant sustained admitted injuries AOE/COE on 10/30/2008 to his cervical spine, lumbar spine, and left wrist, and WCAB found…

Permanent Disability—Rating—WCAB awarded applicant 36 percent permanent partial disability, after adjustment for age and occupation and without apportionment, based on…

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