California Workers' Comp Case Roundup (5/3/2013)

CALIFORNIA COMPENSATION CASES
Vol. 78 No. 4 April 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 Cases Not Originating With Appeals Board
Rivera-Sanchez v. Perez, 78 Cal. Comp. Cases 273 (lexis.com), 78 Cal. Comp. Cases 273 (Lexis Advance)
Civil Actions Against Employers—Employment Relationships—Court of Appeal affirmed trial court’s holding that decedent was not employee of defendant/residential homeowner on date of decedent’s fatal fall from defendant’s roof, in civil action brought by plaintiffs/decedent’s survivors against defendant, when Court of Appeal found that…
Civil Actions Against Employers—Negligence—Court of Appeal affirmed trial court’s holding that decedent’s survivors did not prove three necessary elements of…
Steward v. Board of Trustees of the California State University, 78 Cal. Comp. Cases 282 (lexis.com), 78 Cal. Comp. Cases 282 (Lexis Advance)
Civil Actions—Respondeat Superior—Going and Coming Rule—Exceptions—Court of Appeal affirmed trial court’s holding that defendant was not vicariously liable under respondeat superior theory for its employee’s conduct, because going and coming rule barred such liability and exceptions to going and coming rule did not apply, when Court of Appeal found that…
Vaynberg v. Chevron Products Co., 78 Cal. Comp. Cases 302 (lexis.com), 78 Cal. Comp. Cases 302 (Lexis Advance)
Civil Actions Against Employers—Employment Relationships—Dual Employment—Court of Appeal affirmed jury verdict in defendant’s favor on issue of whether plaintiff was employee of defendant Chevron Products Company and held that trial court made error in jury instruction about control in dual employment cases such as instant case but that error was not prejudicial, when Court of Appeal found that…
Civil Actions Against Employers—Exclusion of Evidence—Court of Appeal held that trial court did not abuse discretion in excluding evidence of defendant Chevron’s human resources policy about services of former employees, when Court of Appeal found that…
Appeals Board En Banc Decisions
Enriquez (Luis) v. Couto Dairy, 78 Cal. Comp. Cases 323 (lexis.com), 78 Cal. Comp. Cases 323 (Lexis Advance)
Air Ambulance—Official Medical Fee Schedule—WCAB en banc, rescinding WCJ’s decision, held that (1) neither California Constitution Art. III, § 3.5, nor Labor Code § 5307.1 prevents WCAB from finding preemption of 8 Cal. Code Reg. § 9789.70, which contains official medical fee schedule for air ambulance services, (2) federal airline deregulation act preempts that regulation if lien claimant for air ambulance services is “an air carrier that may provide air transportation” within meaning of airline deregulation act, and (3) air ambulance provider has burden of showing that it is “an air carrier that may provide air transportation” within meaning of preemption provision, including showing that it is authorized to provide interstate air transportation, when WCAB en banc found that…
Figueroa (Eliezer) v. B.C. Doering Co., 78 Cal. Comp. Cases 336 (lexis.com), 78 Cal. Comp. Cases 336 (Lexis Advance)
Liens—Activation Fee—WCAB en banc, affirming WCAB significant panel decision in Figueroa v. B.C. Doering Co. (2013) 78 Cal. Comp. Cases 336, that dismissed lien claim with prejudice, held that, when lien claim falls within newly enacted lien activation fee requirements of Labor Code § 4903.06(a), (1) lien activation fee must be paid prior to commencement of lien conference, which is time that…
Digests of WCAB Decisions Denied Judicial Review
Editorial Board members Frederick W. Bray, William A. Herreras, Hon. Colleen S. Casey, John W. Miller, and Ronald W. Smitter recommended the following writ denied cases for summarization in this issue.
Beverly Hills Center for Arthroscopic and Outpatient Surgery, LLC v. W.C.A.B. (Cardozo, Luis), 78 Cal. Comp. Cases 340 (lexis.com), 78 Cal. Comp. Cases 340 (Lexis Advance)
Settlements—Setting Aside—WCAB, affirming WCJ's decision, held that there was no good cause to set aside global settlement agreement between defendant and lien claimant under which parties agreed to settle 257 consolidated liens for medical treatment totaling $3,706,023.60, for sum of $325,000, when WCAB found that…
Kendrick-McGee (Angelina) v. W.C.A.B., 78 Cal. Comp. Cases 344 (lexis.com), 78 Cal. Comp. Cases 344 (Lexis Advance)
Permanent Disability—Rating—AMA Guides—WCAB rescinded WCJ’s finding that applicant/office assistant supervisor sustained 56 percent permanent disability as result of industrial injury to her cervical spine, left hand and wrist, and bilateral shoulders and knees and awarded 51 percent permanent disability, when WCAB found that…
Lantz (Shannon) v. W.C.A.B., 78 Cal. Comp. Cases 348 (lexis.com), 78 Cal. Comp. Cases 348 (Lexis Advance)
Injury AOE/COE—Going and Coming Rule—Special Mission—WCAB, rescinding WCJ’s finding, held that applicant’s claim for death benefits stemming from death of decedent/correctional officer was barred by “going and coming” rule, when WCAB found that…
Seymour-Jackson (Janie) v. W.C.A.B., 78 Cal. Comp. Cases 352 (lexis.com), 78 Cal. Comp. Cases 352 (Lexis Advance)
Permanent Disability—Rating—WCAB upheld WCJ’s finding that applicant/intermediate clerk incurred 44.75 percent permanent disability as result of left knee injury and 40 percent permanent disability as result of back and psyche injuries, based on opinions of orthopedic and psychiatric agreed medical evaluators and rating issued by Disability Evaluation Unit rating specialist, and held that opinion of…
Temporary Disability—Permanent and Stationary Date—WCAB upheld WCJ’s finding that applicant’s industrial injuries became permanent and stationary on 12/22/2004, based on…
Credit—Overpayment of Temporary Disability—WCAB affirmed WCJ’s order deferring issue of defendant’s entitlement to credit for overpayment of temporary disability benefits, when…
Singh (Harjinder) v. W.C.A.B., 78 Cal. Comp. Cases 357 (lexis.com), 78 Cal. Comp. Cases 357 (Lexis Advance)
Employment Relationships—Independent Contractors vs. Employees—WCAB affirmed WCJ’s finding that decedent/trucker was independent contractor, rather than defendant’s employee, when he was fatally injured in truck accident, based on analysis of factors in S.G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal. 3d 341, 769 P.2d 399, 256 Cal. Rptr. 543, 54 Cal. Comp. Cases 80, weighing in favor of finding independent contractor status, when evidence established that…
Testequity LLC v. W.C.A.B. (Piccirillo, Russell), 78 Cal. Comp. Cases 363 (lexis.com), 78 Cal. Comp. Cases 363 (Lexis Advance)
Evidence—Medical Evidence—WCAB’s Duty to Develop Record—WCAB denied defendant’s petition for removal from WCJ’s order directing parties to further develop medical record by obtaining supplemental reports and, if necessary, deposition testimony from reporting physician on issue of causation with regard to applicant/electronics repair technician’s claim for cumulative trauma psychiatric and internal injuries, when WCAB found that…
Warner Bros. v. W.C.A.B. (Felix, Edward), 78 Cal. Comp. Cases 367 (lexis.com), 78 Cal. Comp. Cases 367 (Lexis Advance)
Medical Treatment—Spinal Surgery Second Opinion Process—WCAB affirmed WCJ’s finding that defendant was liable for spinal fusion surgery self-procured by applicant/special effects person with lumbar spine injury and for subsequent temporary disability indemnity, when WCAB found that…
Other WCAB Decisions Denied Judicial Review
City of Fresno v. W.C.A.B. (Williams, Andre), 78 Cal. Comp. Cases 371 (lexis.com), 78 Cal. Comp. Cases 371 (Lexis Advance)
Injury AOE/COE—WCAB held that applicant city bus driver sustained cumulative trauma injury AOE/COE to psyche in period ending 11/3/2008, when WCAB found that…
Injuries to Psyche—Good Faith Personnel Actions—WCAB held that applicant’s injury to psyche was not barred by Labor Code § 3208.3(h) defense that claim was caused by employer’s good faith personnel actions, when…
Temporary Disability—WCAB awarded applicant temporary disability benefits from 9/30/2008 until he applied for unemployment benefits in 11/2008, based on…
Draper (Sherman) v. W.C.A.B., 78 Cal. Comp. Cases 373 (lexis.com), 78 Cal. Comp. Cases 373 (Lexis Advance)
WCAB Jurisdiction—Alternative Dispute Resolution—WCAB held that it did not have jurisdiction to determine application for adjudication of claim raising issue of earnings/compensation rate for temporary total disability for applicant electrician’s 8/12/2008 industrial injury because res judicata applied and this issue was already determined through use of properly established alternative dispute resolution process and final order pursuant to Labor Code § 3201.5, when WCAB found that…
Gallo Glass Co. v. W.C.A.B. (Mawyer, Tracee), 78 Cal. Comp. Cases 375 (lexis.com), 78 Cal. Comp. Cases 375 (Lexis Advance)
Injury AOE/COE—WCAB held that applicant warehouse equipment operator sustained cumulative trauma injury AOE/COE in period ending 2/17/2001 to her…
Temporary Disability—WCAB awarded applicant temporary total disability for second period of time (11/14/2003 through 3/24/2004), based on…
Tassell (Jason) v. W.C.A.B., 78 Cal. Comp. Cases 377 (lexis.com), 78 Cal. Comp. Cases 377 (Lexis Advance)
Statute of Limitations—Tolling—WCAB held that application for adjudication of claim for 8/1/1995 industrial injury was barred by statute of limitations of Labor Code § 5405(b) because applicant did not… 

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