California Workers' Comp Case Roundup (7/10/2014)

CALIFORNIA COMPENSATION CASES

Vol. 79 No. 6 June 2014

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

Garcia (Mirian) v. W.C.A.B., lexis.com, Lexis Advance

Medical Provider Networks—Treatment Outside Networks—Admissibility of Medical Reports—Court of Appeal, annulling WCAB decision denying applicant’s petition for reconsideration and remanding case to WCAB with directions to rule on admissibility of medical reports excluded from trial, held that admissibility of medical reports is to be guided by…

Appellate Court Cases Not Originating With Appeals Board

Global Hawk Insurance Co. v. Le, lexis.com, Lexis Advance

Employment Relationships—Summary Judgments—Triable Issues of Fact—Court of Appeal, reversing trial court’s summary judgment in favor of trucking company’s liability insurer, held that triable issues of fact existed as to whether injured truck driver was employee or independent contractor and, thus, as to whether trucking company’s liability insurer could be found liable for injuries suffered by truck driver, when Court of Appeal found that…

Salgado v. Modern Meat, Inc., lexis.com, Lexis Advance

Civil Actions Against Employers—Exclusive Remedy Rule—Power Press Exception—Court of Appeal, affirming trial court’s grant of summary judgment in defendant employer’s favor, held that VA-430 meat packaging machine that caused plaintiff’s injury was not power press within meaning of Labor Code § 4558 and that plaintiff’s injury, therefore, did not fall within power press exception to rule that workers’ compensation was plaintiff’s exclusive remedy against defendant for this injury under Labor Code § 3600(a), when Court of Appeal found that…

Sanders v. Central Freight Lines, Inc., lexis.com, Lexis Advance

Civil Actions Against Employers—Wrongful Termination—Court of Appeal affirmed trial court’s holding and held that substantial evidence supported trial court’s holding that employer wrongfully terminated plaintiff in violation of fundamental public policy (for plaintiff’s expressing workplace safety concerns) and Court of Appeal affirmed trial court’s award to plaintiff of damages for emotional distress, when Court of Appeal found that…

Sullivan’s Stone Factory, Inc. v. Downey, Cavadias & Deane, Inc., lexis.com, Lexis Advance

Civil Actions—Workers’ Compensation Insurance—Fraud—Court of Appeal affirmed trial court’s grant of summary judgment in favor of defendant/insurance broker who applied for workers’ compensation insurance on behalf of plaintiff, when Court of Appeal found that…

Sullivan’s Stone Factory, Inc. v. State Compensation Insurance

Fund, lexis.com, Lexis Advance

Civil Actions—Workers' Compensation Insurance Premiums—Misrepresentations—Court of Appeal affirmed trial court’s grant of summary judgment in favor of insurer/defendant State Compensation Insurance Fund (SCIF), based on findings of plaintiff/employer’s misrepresentations, when Court of Appeal found that…

Federal Circuit Court Opinion of Related Interest

ReadyLink Healthcare, Inc. v. State Compensation Insurance Fund, lexis.com, Lexis Advance

Federal Court Jurisdiction—Workers’ Compensation Insurance—Premiums—U.S. Court of Appeals, Ninth Circuit, affirming judgment of U.S. District Court, Central District of California, held that, although trial court erred in dismissing insured’s federal preemption claim pursuant to rules regarding federal abstention set forth in Younger and Colorado River Water Conservation District v. United States, 424 U.S. 800, 96 S. Ct. 1236, 47 L. Ed. 2d 483 (1976), nevertheless, because California Court of Appeal in ReadyLink HealthCare Inc. v. Jones (2012) 210 Cal. App. 4th 1166, 148 Cal. Rptr. 3d 881, held, while present appeal was pending in federal court, that…

Appeals Board En Banc Decisions

Neri Hernandez (Roque) v. Geneva Staffing, Inc., dba Workforce Outsourcing, Inc., lexis.com, Lexis Advance

Medical Treatment—Home Health Care Services—WCAB en banc, rescinding WCJ’s findings and award and returning matter to WCJ for further development of record, held that (1) Labor Code §§ 4600(h), 4603.2(b)(1), and 5307.8 apply to requests for home health care services in all cases that are not final, regardless of date of injury or dates of service, (2) prescription for home health care services required by Labor Code § 4600(h) is either…

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.

Aguilar (Emanuel) v. W.C.A.B., lexis.com, Lexis Advance

Injury AOE/COE—Going and Coming Rule—Uncompensated Lunch Breaks—WCAB, reversing WCJ in split panel decision, held that injuries suffered by applicant in motor vehicle accident while traveling back to work from unpaid lunch break as passenger in employer-provided rental car driven by co-worker were not compensable, when WCAB found that…

Ambrose (Dick) v. W.C.A.B., lexis.com, Lexis Advance

WCAB Jurisdiction—Exemptions—Professional Athletes—WCAB, affirming WCJ in split panel decision, held that defendant was exempted from California jurisdiction with regard to applicant’s claim for cumulative industrial injury while playing professional football for defendant from 6/15/75 through 9/1/85, when WCAB found that…

Castle Point National Insurance v. W.C.A.B. (Valderrama, Pedro, Sr.), lexis.com, Lexis Advance

Insurance Coverage—Identity of Insurer—Policy Cancellation—WCAB affirmed WCJ’s award of death benefits in favor of decedent’s wife and son and against defendants ACEO Payroll Co. (ACEO) and Castle Point National Insurance Company (Castle Point), and held that WCJ reasonably concluded that Castle Point was employer’s workers’ compensation carrier on date of decedent’s injury resulting in death, and that there was insufficient evidence to support defendants’ contention that employer switched workers’ compensation carriers to ACE American Insurance Co.  (ACE American) prior to decedent’s injury, when WCAB found that…

Coleman Burke v. W.C.A.B. (Burton, Michael), lexis.com, Lexis Advance

Permanent Disability—Rating—Vocational Evidence—WCAB affirmed WCJ’s finding that applicant/musician suffered 85 percent permanent disability as result of cumulative industrial injury to his hearing and compensable consequence psychiatric injury during his employment as musician, based on range of evidence, including applicant’s credible testimony regarding his symptoms and limitations and on testimony of vocational expert, which WCAB found…

County of San Mateo v. W.C.A.B. (Belmont, Robert), lexis.com, Lexis Advance

Permanent Disability—Rating—Permanent Total Disability—WCAB, affirming WCJ, held that applicant/deputy sheriff was entitled to 100 percent permanent total disability as result of industrial cumulative trauma in form of stomach cancer, notwithstanding that agreed medical evaluator’s report rated at 97 percent permanent disability under AMA Guides, when WCAB found that…

Edge (Teresa) v. W.C.A.B., lexis.com, Lexis Advance

Permanent Disability—Rating—Vocational Evidence—WCAB, reversing WCJ, held that applicant/deli manager failed to establish that her neck, shoulder, hand, and wrist injuries resulted in permanent total disability, when WCAB found that…

Average Weekly Wage Determinations—WCAB held that record did not support WCJ’s finding of $828 as applicant/deli clerk’s average weekly earnings, when applicant earned that level of pay for only one pay period while working for defendant and earned significantly less in all other pay periods, and WCAB found that…

Monsanto Co. v. W.C.A.B. (McMillin, Cheryl), lexis.com, Lexis Advance

Permanent Disability—Rating—Permanent Total Disability—WCAB, affirming WCJ, held that applicant/administrative assistant who sustained cumulative trauma to her psyche, bilateral upper extremities, lower extremities, and in the forms of cognitive disorder, gastrointestinal disorder, sleep disorder, and complex regional pain syndrome (CRPS), suffered…

Evidence—Admissibility—Due Diligence—WCAB affirmed WCJ’s order excluding surveillance films from evidence at trial, when defendant disclosed surveillance tapes for first time at mandatory settlement conference notwithstanding that applicant had made multiple demands for surveillance tapes prior to time films were obtained by defendant, and, to extent defendant alleged that it obtained new surveillance films after trial showing applicant performing activities she told panel qualified medical evaluator she could not perform, WCAB found that…

Mount San Jacinto Community College District v. W.C.A.B. (Lemerande, Susan), lexis.com, Lexis Advance

Discrimination—Labor Code § 132a—Statute of Limitations—WCAB affirmed WCJ’s finding that Labor Code § 132a discrimination claim filed by applicant, who was terminated after exhausting industrially-related administrative leave and placed on 39-month rehire list pursuant to Education Code § 88192, was not barred by statute of limitations, when WCAB found that…

Stevens (Frances) v. W.C.A.B., lexis.com, Lexis Advance

Medical Treatment—Independent Medical Review—Court of Appeal denied applicant’s petition for writ of mandate and writ of review challenging constitutionality of independent medical review process in Labor Code §§ 4610.5 and 4610.6, and denied respondents’ motions to dismiss petition as premature, when applicant’s appeal from independent medical review determination (filed after defendant denied treatment recommendations and independent medical reviewer determined treatment was not medically necessary) was pending before WCAB and, prior to…

Other WCAB Decisions Denied Judicial Review

City of Scotts Valley v. W.C.A.B. (Collins, Guy), lexis.com, Lexis Advance

Presumption of Industrial Causation—Cancer—Peace Officers—WCAB held that (1) applicant sustained cumulative trauma injury AOE/COE to his thoracic spine and in form of cancer (plasmacytoma) while working for first of two employers, petitioner City of Scotts Valley, from 11/4/1984 through 10/8/2001, (2) last injurious exposure under Labor Code § 5500.5 occurred during applicant’s employment with city, (3) claim against city was not barred by statute of limitations, (4) Labor Code § 3212.1 presumption that peace officer’s cancer was caused by his employment applied to subsequent employer County of Santa Cruz and presumption was rebutted, and (5) city was liable for applicant’s benefits, whether or not Labor Code § 3212.1 presumption applied to city, when WCAB found that…

Habtezghi (Tekelebrahane) v. W.C.A.B., lexis.com, Lexis Advance

Injury AOE/COE—Intentionally Self-Inflicted Injury—WCAB affirmed WCJ’s finding that applicant/material handler did not sustain compensable injury to his neck, back, and left foot on 6/30/2010 as alleged, when preponderance of evidence, including surveillance video and co-worker testimony, which…

Kakudo (Samuel) v. W.C.A.B., lexis.com, Lexis Advance

Permanent and Stationary Status—WCAB held that applicant senior manager became permanent and stationary on 6/30/2011 for 10/13/1995 industrial injury to neck, teeth, gums, psyche, and hemorrhoids, based on opinions from orthopedic agreed medical evaluator, and WCAB awarded applicant additional temporary disability from 6/30/2011 and continuing and further medical treatment, also based on agreed medical evaluator’s opinions, when WCAB found that…

Watkins (Alonzo) v. W.C.A.B., lexis.com, Lexis Advance

Petitions for Reconsideration—Time to File—WCAB dismissed petition for reconsideration of findings and award because petition was not filed within time requirements of Labor Code § 5903, Code of Civil Procedure § 1013, and 8 Cal. Code Reg. § 10507, when WCAB found that…

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