California Workers' Comp Case Roundup (11/1/2013)

California Workers' Comp Case Roundup (11/1/2013)

CALIFORNIA COMPENSATION CASES

Vol. 78 No. 10 October 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 Case

CLP Resources, Inc. v. W.C.A.B. (Mora, Jorge), 78 Cal. Comp. Cases 1025 (lexis.com), 78 Cal. Comp. Cases 1025 (Lexis Advance)

Serious and Willful Misconduct by Employer—Substantial Evidence—Dual Employment—Court of Appeal, annulling WCAB award of additional compensation under Labor Code § 4553 for serious and willful misconduct by employer, held that no substantial evidence supported proposition that employer knew probable consequences of his failure to provide more adequate safety devices or safer place to work, i.e., that employer turned his mind to existence of danger to employee and failed to take precautions to avert that danger, when Court of Appeal found…

Appellate Court Cases Not Originating With Appeals Board

Albert v. Satellite Management Co., 78 Cal. Comp. Cases 1034 (lexis.com), 78 Cal. Comp. Cases 1034 (Lexis Advance)

Civil Actions—Respondeat Superior—Court of Appeal affirmed trial court’s holding that defendant was not liable to plaintiff under respondeat superior theory, when Court of Appeal found…

Halliburton Energy Services, Inc. v. Dept. of Transportation; Baker v. Halliburton Energy Services, Inc.; Buxbaum v. Halliburton Energy Services, Inc., 78 Cal. Comp. Cases 1049 (lexis.com), 78 Cal. Comp. Cases 1049 (Lexis Advance)

Civil Actions—Respondeat Superior—Going and Coming Rule—Incidental Benefit Exception—Court of Appeal, affirming trial court’s summary judgment in favor of defendant, held that plaintiffs failed to present evidence raising triable issue of material fact in support of allegation that employee was acting within scope of his employment for purposes of respondeat superior liability at time of employee’s allegedly tortious acts, and that employee was engaged in purely personal business at that time, when Court of Appeal found…

Leeds v. Reino & Iida, 78 Cal. Comp. Cases 1065 (lexis.com), 78 Cal. Comp. Cases 1065 (Lexis Advance)

Civil Actions—Attorney Fee Awards—Fee Splitting—WCAB Jurisdiction—Court of Appeal reversed trial court’s grant of defendants’ demurrer and held that WCAB did not have exclusive jurisdiction over plaintiffs’ complaint for declaratory relief related to WCAB’s award of attorney’s fees based on fee-splitting contract between plaintiffs and defendants, when Court of Appeal found…

Civil Actions—Attorney Fee Awards—Fee Splitting—Court of Appeal reversed trial court’s grant of defendants’ demurrer under Code of Civil Procedure § 430.10(c) and held that civil action could remain pending even though another action was pending before WCAB involving same parties and same cause of action, when Court of Appeal found…

Civil Actions—Attorney Fee Awards—Fee Splitting—Court of Appeal held that trial court properly held that plaintiffs’ complaint for declaratory relief related to fee-splitting contracts with defendants did not…

Pena v. Central Freight Lines, Inc., 78 Cal. Comp. Cases 1074 (lexis.com), 78 Cal. Comp. Cases 1074 (Lexis Advance)

Civil Actions Against Employers—Fair Employment and Housing Act—Exclusive Remedy Rule—Court of Appeal, affirming trial court’s judgment in plaintiff’s favor on five causes of action under Fair Employment and Housing Act (Government Code § 12900 et seq.) and affirming trial court’s award of damages to plaintiff for emotional distress and loss of earnings and medical benefits, plus costs, interest, and attorney’s fees, held that plaintiff’s claim for emotional distress was not barred under rule that workers’ compensation was plaintiff’s exclusive remedy against her employer, when Court of Appeal found…

Rodriguez v. RWA Trucking Co., Inc., 78 Cal. Comp. Cases 1088 (lexis.com), 78 Cal. Comp. Cases 1088 (Lexis Advance)

Workers’ Compensation Insurance—Independent Contractors Contribution—Federal Preemption—Court of Appeal, affirming in part and reversing in part trial court’s judgment, and remanding to trial court, held that federal law preempted plaintiffs’ claim that defendant, in violation of Insurance Code § 1631, unlawfully transacted insurance without license, that federal law did not preempt plaintiffs’ claim that defendant, in violation of Business and Professions Code § 17200 and Labor Code § 3751, charged plaintiffs for workers’ compensation insurance, that trial court erred in awarding plaintiffs prejudgment interest under Civil Code § 3287, and that defendant did not violate law by charging plaintiffs for costs of liability insurance, when Court of Appeal found…

State of California ex rel. Dept. of California Highway Patrol v. Superior Court of Orange County, 78 Cal. Comp. Cases 1119 (lexis.com), 78 Cal. Comp. Cases 1119 (Lexis Advance)

Civil Actions—Employment Relationships—Special Employers—Court of Appeal held that there was no legislative intent that California Highway Patrol be held to be special employer of tow truck drivers in freeway service patrol program for purpose of imposing liability for negligence of tow truck drivers on California Highway Patrol, when Court of Appeal found…

Swanson v. Simpson Timber Co., 78 Cal. Comp. Cases 1125 (lexis.com), 78 Cal. Comp. Cases 1125 (Lexis Advance)

Civil Actions—Premises Liability—Exclusive Remedy Rule—Court of Appeal, affirming trial court’s grant of non-suit in defendant premises owner’s favor in plaintiffs’ civil action, held that defendant was not liable to family members of deceased worker on claim that deceased worker had injurious secondary exposure to asbestos from his work clothes and clothes of his son who also worked at defendant’s plant, when Court of Appeal found…

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.

Barnes (Sharon) v. W.C.A.B., 78 Cal. Comp. Cases 1137 (lexis.com), 78 Cal. Comp. Cases 1137 (Lexis Advance)

Temporary Disability—Permanent and Stationary Status—Substantial Evidence—WCAB, granting reconsideration and modifying WCJ's findings, held that report of defense qualified medical evaluator constituted substantial evidence to support finding that…

City and County of San Francisco v. W.C.A.B. (Xelowski, Jamie), 78 Cal. Comp. Cases 1141 (lexis.com), 78 Cal. Comp. Cases 1141 (Lexis Advance)

Death Benefits—Continuation Benefits for Totally Dependent Minor Children—WCAB, rescinding WCJ’s finding, held that Notice of Award from Social Security Administration issued to decedent’s adult daughter, in which Social Security Administration found that decedent’s daughter became “disabled” pursuant to 42 U.S.C.S. § 423(d)(2)(A) five years before her mother’s death, was sufficient to meet…

County Sanitation Disrict No. 2 of Los Angeles County v. W.C.A.B. (Butler, Johnnie Lee), 78 Cal. Comp. Cases 1146 (lexis.com), 78 Cal. Comp. Cases 1146 (Lexis Advance)

Injury AOE/COE—Death—WCAB held that decedent/refuse operator sustained industrial cumulative trauma to his heart, resulting in two heart attacks suffered at home, with second one causing his death, based on employer’s investigative report and opinion of panel qualified medical evaluator, when panel qualified medical evaluator, after reviewing investigative report describing decedent’s job duties, concluded that…

Goings (Hattie) v. W.C.A.B., 78 Cal. Comp. Cases 1150 (lexis.com), 78 Cal. Comp. Cases 1150 (Lexis Advance)

Medical Provider Networks—Independent Contractors—WCAB affirmed WCJ’s finding that applicant, who incurred industrial injury to her cervical spine while self-employed as truck driver and subsequently filed Petition to Reopen her award on grounds of increased disability and need for further medical treatment, was required to transfer her medical care into defendant’s medical provider network, when parties stipulated that…

Houston Comets v. W.C.A.B. (Kenlaw, Jessie), 78 Cal. Comp. Cases 1153 (lexis.com), 78 Cal. Comp. Cases 1153 (Lexis Advance)

WCAB Jurisdiction—Professional Athletes—WCAB affirmed WCJ’s finding that applicant/assistant basketball coach incurred 70 percent permanent disability as result of industrial cumulative trauma to multiple body parts , and that WCAB had jurisdiction over applicant’s injury claim, when WCAB found…

Lopez (Rosa) v. W.C.A.B., 78 Cal. Comp. Cases 1158 (lexis.com), 78 Cal. Comp. Cases 1158 (Lexis Advance)

Temporary Disability—Two-Year Limitation on Temporary Disability Indemnity—WCAB, in split panel opinion, rescinded WCJ’s finding that, because defendant did not present proof at trial as to date on which temporary disability payments commenced, limitations provided in Labor Code § 4656(c)(1) did not apply to temporary disability payments made to applicant/laundry attendant with industrial injuries to her neck, back, psyche, and in forms of sleep disorder and chronic pain, and held that…

Los Angeles Unified School District v. W.C.A.B. (Smith, Levell), 78 Cal. Comp. Cases 1162 (lexis.com), 78 Cal. Comp. Cases 1162 (Lexis Advance)

Permanent Disability—Apportionment—WCAB affirmed WCJ’s determination that applicant/teacher incurred 100 percent permanent disability as result of cumulative trauma industrial injuries to her wrists, neck, shoulders, psyche, and in form of deep vein thrombosis, hypertensive cardiovascular disease, and sleep disorder, after apportionment of 50 percent permanent disability under Labor Code § 4664 for prior stipulated award for neck injury, when WCAB found…

Lumb (Donald) v. W.C.A.B., 78 Cal. Comp. Cases 1165 (lexis.com), 78 Cal. Comp. Cases 1165 (Lexis Advance)

Overpayment of Permanent Disability—Credit—WCAB, in split panel decision, held that defendant was entitled to credit under Labor Code § 4909 against applicant/police officer’s permanent disability indemnity in cumulative injury case for overpayment of permanent disability in specific injury case, when WCAB found…

Mejia (Antonio) v. W.C.A.B., 78 Cal. Comp. Cases 1169 (lexis.com), 78 Cal. Comp. Cases 1169 (Lexis Advance)

Injury AOE/COE—Burden of Proof—WCAB held that applicant landscaper did not sustain cumulative trauma injury AOE/COE to his heart and cardiovascular system, based on substantial evidence opinions from panel qualified medical examiner, and contrary to opinions from applicant’s treating physician, which WCAB found…

Milwaukee Bucks v. W.C.A.B. (Mason, Anthony), 78 Cal. Comp. Cases 1173 (lexis.com), 78 Cal. Comp. Cases 1173 (Lexis Advance)

WCAB Jurisdiction—Professional Athletes—WCAB, amending WCJ’s findings, held that WCAB had jurisdiction over applicant/professional basketball player’s claim for industrial injuries to multiple body parts, and that it did not matter whether applicant was “regularly employed” in California, as described in Labor Code § 3600.5(a), because…

New York Knickerbockers v. W.C.A.B. (Williams, Jerome), 78 Cal. Comp. Cases 1178 (lexis.com), 78 Cal. Comp. Cases 1178 (Lexis Advance)

WCAB Jurisdiction—Professional Athletes—WCAB affirmed WCJ’s finding of California jurisdiction over applicant/professional basketball player’s claim for cumulative trauma industrial injuries to his back, neck, shoulders, knees, right elbow, and right foot while playing for defendant, when, although applicant was not resident of California, he played 24 games in California and sustained “microtraumas” during those games that contributed to his cumulative trauma injury, and WCAB found…

Ruiz (Lizabeth) v. W.C.A.B., 78 Cal. Comp. Cases 1182 (lexis.com), 78 Cal. Comp. Cases 1182 (Lexis Advance)

Subsequent Injuries Benefits Trust Fund—Threshold Requirements for Liability—WCAB, reversing WCJ, held that applicant/eligibility worker who suffered two cumulative trauma injuries to her neck and upper extremities failed to establish threshold requirements for entitlement to Subsequent Injuries Benefits Trust Fund benefits under Labor Code § 4751, when WCAB found…

Toronto Raptors v. W.C.A.B. (Foster, Gregory), 78 Cal. Comp. Cases 1188 (lexis.com), 78 Cal. Comp. Cases 1188 (Lexis Advance)

WCAB Jurisdiction—Professional Athletes—WCAB, amending WCJ’s findings, held that WCAB had jurisdiction over applicant/professional basketball player’s claim against various defendants for cumulative trauma industrial injuries to multiple body parts, and that it did not matter whether applicant was “regularly employed” in California as described in Labor Code § 3600.5(a), because jurisdiction was based on…

Truitt (Adam) v. W.C.A.B., 78 Cal. Comp. Cases 1193 (lexis.com), 78 Cal. Comp. Cases 1193 (Lexis Advance)

Permanent Disability—Rating—AMA Guides—Development of Medical Record—WCAB, affirming WCJ in split panel decision, held that applicant who sustained industrial injury in form of Lyme disease while working as deputy sheriff, incurred zero percent permanent disability, when panel qualified medical evaluator and treating physician opined that applicant was able to perform his work duties without restriction, panel qualified medical evaluator rated applicant’s whole person impairment as zero percent under AMA Guides, and WCAB determined that…

Warner Bros. Studios, Inc. v. W.C.A.B. (Crocker, Roy), 78 Cal. Comp. Cases 1198 (lexis.com), 78 Cal. Comp. Cases 1198 (Lexis Advance)

Permanent Disability—Rating—WCAB held that applicant motion picture laborer sustained cumulative trauma injury AOE/COE to his back, right shoulder, left wrist, lumbar spine, psyche, urologic dysfunction, cervical spine, bladder and bowel incontinence, impotence, sleep disorder, neurogenic bladder, and peripheral neuropathy, from repetitive work moving sets and furniture for more than 17 years, and WCAB awarded applicant…

Permanent Disability—Apportionment—WCAB held that defendant did not show apportionment of applicant’s 100 percent permanent disability award for cumulative trauma industrial injury to previous specific industrial injuries or otherwise, under Labor Code § 4664(b), when applicant claimed three specific injuries, WCAB found that…

Other WCAB Decisions Denied Judicial Review

Alejandre (Rosaicela) v. W.C.A.B., 78 Cal. Comp. Cases 1202 (lexis.com), 78 Cal. Comp. Cases 1202 (Lexis Advance)

Petitions for Reconsideration—Time to File—WCAB dismissed petition for reconsideration not timely filed under Labor Code § 5903 and Code of Civil Procedure § 1013, when WCAB found…

Cecena (Diane) v. W.C.A.B., 78 Cal. Comp. Cases 1204 (lexis.com), 78 Cal. Comp. Cases 1204 (Lexis Advance)

Permanent Disability—Rating—Apportionment—WCAB rated applicant as having 90 percent permanent partial disability, after apportionment, for 2/17/2000 industrial injury to multiple body parts (neck, upper back, right shoulder, bruxism, low back, arms, and headaches) incurred while working for…

Cintas Corp. v. W.C.A.B. (Phillips, Brenda), 78 Cal. Comp. Cases 1205 (lexis.com), 78 Cal. Comp. Cases 1205 (Lexis Advance)

Petitions for Writ of Review—Final Orders—Court of Appeal dismissed petition for writ of review because petitioner/applicant was appealing non-final order of WCAB, contrary to requirements of Labor Code §§ 5900 and 5901 and Maranian v. W.C.A.B. (2000) 81 Cal. App. 4th 1068, 97 Cal. Rptr. 2d 418, 65 Cal. Comp. Cases 650, when WCAB order found that…

Stevens (Craig) v. W.C.A.B., 78 Cal. Comp. Cases 1206 (lexis.com), 78 Cal. Comp. Cases 1206 (Lexis Advance)

Injury AOE/COE—WCAB held that applicant line installer/splicing tech did not sustain cumulative trauma injury AOE/COE to his back or shoulders from 8/4/95 through 10/17/2002, when WCAB found…

Compromise and Release—WCAB held that applicant’s claim of industrial cumulative trauma injury to his shoulders in period ending 10/17/2002 was included in compromise and release approved by WCAB on 11/9/2011, when WCAB found…

Statute of Limitations—WCAB held that applicant’s claim of industrial cumulative trauma injury to his neck in period from 8/4/95 through 10/17/2002 was barred by statute of limitations of Labor Code § 5405, when WCAB found…

Wilshire Union Chiro Medical Group v. W.C.A.B. (Cortez, Alba), 78 Cal. Comp. Cases 1208 (lexis.com), 78 Cal. Comp. Cases 1208 (Lexis Advance)

Petitions for Writ of Review—Court of Appeal dismissed petition for writ of review because (1) petition did not assert grounds for issuance of writ of review under Labor Code § 5952, and (2) petition did not include documents from record required by Rule 8.495(a) of California Rules of Court, when petitioner/lien claimant was…

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