California Workers' Compensation Cases Roundup 12/8/2009

CALIFORNIA COMPENSATION CASES

Vol. 74, No. 11

November 2009

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

Appellate Court Compensation Cases

City of Los Angeles v. W.C.A.B. (Foster) (2nd--B211331), 74 Cal. Comp. Cases 1299

Death Benefits--Decedent's Estate--Court of Appeal annulled WCAB's order requiring employer to pay full $125,000 death benefit to Death Without Dependents Unit, when employer had paid deceased employee's mother/heir death benefits of $104,208 pursuant to Lab C § 4702(a)(6)(B) until Six Flags, Inc. v. W.C.A.B. (Rackchamroon) declared that statute unconstitutional on grounds that decedent's estate was not “dependent,” which is only category of persons to whom Cal. Const. authorizes workers' comp death benefits to be paid, and that, because death benefits were paid to decedent's heir pursuant to Lab C § 4702(a)(6)(B) before it was declared unconstitutional, Death Without Dependents Unit was not entitled to be paid any death benefit

Gelson's Markets, Inc. v. W.C.A.B. (Fowler) (2nd--B209336), 74 Cal. Comp. Cases 1313

Discrimination--Lab C § 132a--Court of Appeal held that applicant did not make prima facie showing of discrimination in violation of Lab C § 132a, when applicant sustained industrial injury and was taken off work by his treating physician on 8/3/2004, reports and releases to return to work from applicant's treating physician and AME received by defendant were unclear and ambiguous regarding applicant's ability to return to usual and customary duties, defendant returned applicant to work on 1/8/2007 after AME resolved question in his 12/1/2006 deposition by testifying that he thought applicant could probably perform his usual and customary job, and applicant presented no evidence that defendant treated him disadvantageously because of industrial nature of his injury, as compared to how defendant treated any nonindustrially injured employee

Appellate Court Cases Not Originating With Appeals Board

Cortez v. Abich (2nd--B210628), 74 Cal. Comp. Cases 1321

Employment Relationships--Independent Contractors--Court of Appeal, affirming trial court judgment and following Supreme Court's decision in Fernandez v. Lawson, held that trial court correctly ruled that homeowners were not required to comply with OSHA as matter of law and properly found that homeowners had no duty to warn plaintiff of condition of roof on their home that plaintiff was repairing, when Court of Appeal found that homeowners hired third party to perform work of remodeling their home, that third party, who hired plaintiff, did not have required contractor's license, that homeowners were unaware that third party did not have such license, that homeowners moved out of house and did not supervise work of remodeling, that plaintiff fell through roof of home and suffered fractured spine, that, even though homeowners were deemed plaintiff's employer pursuant to Lab C § 2750.5, OSHA regulations did not apply to their home remodeling project, that plaintiff admitted that, when he climbed onto roof prior to his injury, he saw that half of roof was gone, and that it strained reason to suggest that partial roof in midst of demolition was not open and obvious dangerous condition

People v. Orloff (2nd--B211573), 74 Cal. Comp. Cases 1330

Criminal Actions--Convictions--Threats Against Workers' Comp Judges--Jail Sentences--Constitutional Challenges--Court of Appeal affirmed Superior Court's imposition of 180-day county jail sentence as one of conditions of defendant's probation, after defendant pled guilty to one felony count of making criminal threats and one misdemeanor count of making annoying telephone calls (Pen C §§ 422, 653m(a)), when defendant/applicant had serious industrial injury, was in wheelchair, received 100-percent PD award from WCAB, disputed deduction of 15 percent of award for attorney's fees and made annoying and threatening telephone calls to two WCJs and secretary to one WCJ, Superior Court suspended imposition of sentence and imposed probation conditions, including county jail sentence, defendant contended jail term would be cruel and unusual punishment under state and federal constitutions, and Court of Appeal found that (1) defendant waived issue because he did not raise this issue at sentencing hearing, and (2) alternatively, even if issue was not waived, there was no cruel and unusual punishment under California constitution because conditions of probation were based on defendant's current crimes, recidivist behavior, and lack of regard for rehabilitation, and conditions were within statutory sentencing provisions; Court of Appeal also held that defendant's sentence was not cruel and unusual punishment under federal constitution

Appeals Board En Banc Decision#Cervantes v. El Aguila Food Products, Inc. (ADJ3675309 [SAL 0081669], ADJ2967795 [SAL 0101259], ADJ3517685 [SAL 0077391], ADJ1962561 [SAL 0077392]), 74 Cal. Comp. Cases 1336

Medical Treatment--Spinal Surgery--WCAB en banc, rescinding WCJ's F&O of 5/13/2009 that determined that applicant was entitled to lumbar spinal fusion surgery held that procedures and timelines governing objections to treating physician's recommendation for spinal surgery are contained in Lab C §§ 4610 and 4062 and in AD Rules 9788.1, 9788.11, and 9792.6(o), and they are (1) when treating physician recommends spinal surgery, defendant must undertake UR, (2) if UR approves requested spinal surgery, or if defendant fails to timely complete UR, defendant must authorize surgery, (3) if UR denies spinal surgery request, defendant may object under Lab C § 4062(b), but any objection must comply with AD Rule 9788.1 and use form required by AD Rule 9788.11, (4) defendant must complete its UR review process within 10 days of its receipt of treating physician's report, which must comply with AD Rule 9792.6(o), and, if utilization denies requested surgery, any Lab C § 4062(b) objection must be made within that same 10-day period, and (5) if defendant fails to meet 10-day timelines or comply with AD Rules 9788.1 and 9788.11, defendant loses its right to second opinion report and must authorize spinal surgery

Medical Treatment--Spinal Surgery--WCAB en banc disapproved of Brasher v. Nationwide Studio Fund (Brasher) to extent it holds that (1) defendant may opt out of UR and instead dispute requested spinal surgery using only procedure specified in Lab C § 4062(b), and (2) if defendant's UR denies spinal surgery, it is employee who must object under Lab C § 4062(a), when WCAB en banc found that applicant sustained industrial injuries to his low back in 1996, 1997, and 1998, that applicant's treating physician sent defendant report clearly requesting surgery authorization on 2/25/2009, that defendant's UR denying spinal surgery issued on 3/4/2009, within mandated 10-day timeline, that defendant did not then initiate spinal surgery second opinion process within 10-day period as required by Lab C § 4062(b) because defendant was relying on Brasher, and that on remand defendant would have 10 days from date of receipt of WCAB's en banc opinion within which to object to treating physician's spinal surgery recommendation and commence spinal surgery second opinion process

Digests of WCAB Decisions Denied Judicial Review

Editorial Board members Francis V. Clifford, Hon. Susan Hamilton, James R. Libien, and Neil R. Robinson recommended the following writ denied cases for summarization in this issue.

City of San Diego v. W.C.A.B. (Smullen) (4th--D055678), 74 Cal. Comp. Cases 1357

PD--Rating Schedules--WCAB held that exception to use of 2005 Permanent Disability Rating Schedule applied (exception in Lab C § 4660(d) when pre-2005 reports from primary treating physician indicate existence of PD), and that 1997 Schedule for Rating Permanent Disabilities should be used to rate applicant police officer's PD from 11/25/2003 back injury, when majority of WCAB panel found that, for this exception to apply, pre-2005 treating physician's reports need only “indicate” existence of PD, not “state” existence of PD, and found that pre-2005 treating physician's reports here indicated PD from physician's diagnoses, physician's statements that applicant should consider multiple level laminectomies and that further surgery was contemplated if 11/2004 surgery was not successful, and physician's work restrictions that were same both before and after 11/2004 surgery

Clevidence v. W.C.A.B. (3rd--C062814), 74 Cal. Comp. Cases 1362

Injury AOE/COE--Horseplay--WCAB held that applicant's injury on 5/12/2008 was not injury AOE/COE because it was caused by applicant's horseplay and was, therefore, barred, when WCAB found that applicant worked stocking shelves in employer's pet store, that on 5/12/2008 he borrowed co-worker's bicycle, rode bicycle down stocked row of goods in employer's store shortly before end of his shift, and fell from bicycle and injured his left hip and back, that he testified that he knew safety was important to employer, knew riding bicycle in employer's store was not safe, and did not believe that employer knew he was riding bicycle in store, that applicant did not have employer's permission to ride bicycle in store, that there was no benefit to employer from applicant's riding co-worker's bicycle, and that there was no connection between injury and applicant's job duties

Cooper v. W.C.A.B. (2nd--B215398), 74 Cal. Comp. Cases 1365

Employment Relationships--Independent Contractors--WCAB held that applicant, who had worked as police officer for defendant City of Los Angeles from 4/17/74 until he retired on 9/3/94 after having suffered cumulative industrial cardiovascular injury throughout period of employment, had no standing to maintain claim for benefits under Lab C § 132a based on alleged discriminatory acts by defendant during post-retirement period between 2002 and 2004 when applicant  performed workers' comp investigative assignments for defendant, when, applying factors set forth in S.G. Borello & Sons, Inc. v. Department of Industrial Relations, WCAB found that applicant was independent contractor, rather than employee, at time he was performing investigative work for defendant because (1) applicant conducted his investigations of defendant's workers' comp claims in his capacity as licensed professional investigator through his own corporation, (2) there was no evidence that defendant directed or controlled actual manner and means by which applicant accomplished his investigative assignments, since defendant did not dictate contents of applicant's investigative reports or control way its investigators conducted investigation, used sub rosa surveillance, gathered documents, or conducted investigative interviews, (3) applicant performed similar work for other clients, (4) although defendant allowed applicant to access its offices and files, gave applicant time frames and due dates, provided letters of introduction by defendant authorizing applicant to gain access to defendant's files and speak to defendant's employees and supervisors in conducting investigations, it did not provide applicant with  instrumentalities or tools of his work as private investigator, (5) applicant supplied his own equipment, including video camera and tape, and was reimbursed by defendant for his costs and expenses, (6) evidence indicated that applicant was engaged in distinct skilled occupation or business as private investigator, and was licensed as such by  State of California, (7) during period he performed investigative work for defendant, applicant had his own employees, maintained workers' comp insurance for his company, and had federal tax ID number and city business license, (8) applicant received 1099 form from defendant, rather than W-2, and (9) applicant could set his own hourly rate, and submitted invoices indicating his ability to set his own terms

Discrimination--Lab C § 132a--WCAB held that applicant had no standing to maintain claim for benefits under Lab C § 132a based on alleged discriminatory acts by defendant during post-retirement period between 2002 and 2004 when applicant  performed workers' comp investigative assignments for defendant as independent contractor, notwithstanding applicant's contention that pursuant to Morehouse v. W.C.A.B. he was entitled to protections of Lab C § 132a after his retirement due to economic relationship he maintained with defendant while performing investigative work, when WCAB found that (1) under Anaheim v. W.C.A.B. (Brazz) employer-employee relationship must exist at  time of discriminatory act in order to invoke protections of Lab C § 132a, and (2) applicant's case was distinguishable from Morehouse, because applicant voluntarily retired from his employment with defendant and, although he maintained subsequent business relationship with defendant contracting independently as licensed private investigator, applicant was not on lay-off status subject to recall, nor was he paid supplemental unemployment benefits, and there was no constructive or actual employment relationship between applicant and defendant

Gonzalez v. W.C.A.B. (4th--G042015), 74 Cal. Comp. Cases 1373

PD--Rating--WCAB upheld WCJ's finding that applicant/roofer with 8/6/97 injuries to lumbar spine, psyche, and urological system suffered 88-percent PD as rated under 1997 Schedule for Rating Permanent Disabilities, based on orthopedic AME's restriction to sedentary work with use of cane, eight protocols of psychiatric disability as set forth by psychiatric AME, and additional five-percent standard disability rating added by WCJ for applicant's urological condition as described by applicant's urologist, which required applicant to use bathroom every two hours; WCAB found that vocational expert's testimony that applicant was vocationally non-feasible did not constitute substantial evidence to support finding of 100-percent PD, when expert did not adequately review records/reports in forming her opinion and her opinion was disputed by medical evidence in record

Knoll v. W.C.A.B. (4th--D055570), 74 Cal. Comp. Cases 1379

PD--Apportionment--WCAB awarded applicant employment program representative 40.5-percent PPD for cumulative trauma injury AOE/COE ending 8/18/96 to bilateral upper extremities, based on (1) 81-percent PPD rating from opinions of AME, consultative rating from DEU, and 1997 Permanent Disability Rating Schedule, and (2) opinions of AME that 50 percent of applicant's disability should be apportioned to non-industrial pre-existing arthritis and 50 percent to this industrial injury; WCAB disagreed with WCJ on whether applicant's PPD should be apportioned and found that AME's opinions on apportionment complied with requirements of Lab C § 4663 and Escobedo v. Marshalls and that AME's opinions were, therefore, substantial medical evidence on this issue

Lockheed Martin Aircraft Services v. W.C.A.B. (Garcia) (2nd--B215058), 74 Cal. Comp. Cases 1385

PD--Apportionment--WCAB held that applicant/aircraft assembler/mechanic was PTD as result of Reflex Sympathetic Dystrophy and Complex Regional Pain Syndrome consequential to industrial right shoulder injuries on 7/19/95 and 4/21/98 and, applying Multiple Disabilities Table, found that applicant was entitled to single, combined PD award, without Lab C § 4663 apportionment between applicant's two dates of injury pursuant to Benson v. The Permanente Medical Group, when WCAB concluded that opinion of applicant's QME that apportionment of PD between injuries, which WCAB found became P&S at same time, could not be made with reasonable medical probability was more plausible, in context of entire medical record, than opinion of defense QME that disability should be apportioned 50/50 between two injuries

Martinez v. W.C.A.B. (3rd--C062801), 74 Cal. Comp. Cases 1389

Discrimination--Lab C § 132a--Business Necessity--WCAB, in split panel decision reversing WCJ's decision, held that applicant failed to establish that defendant violated Lab C § 132a by terminating him from his modified duty clerical job during period of TD from his regular job as bricklayer following 4/25/2005 and 8/28/2006, when WCAB found that applicant did not show that defendant singled him out for disadvantageous treatment because of his injury, as required by Department of Rehabilitation v. W.C.A.B. (Lauher) to prove prima facie case of discrimination, and that testimony of defendant's general manager indicating that applicant was terminated from clerical job because defendant could not afford to pay him for clerical work any longer and because there was no sign that applicant's condition was improving was sufficient to show that applicant's termination was motivated by business necessity

Novela v. W.C.A.B. (4th--G042227), 74 Cal. Comp. Cases 1394

PD--Rating--WCAB Procedure--WCAB granted defendant's petition for reconsideration and effectively rescinded WCJ's 5/19/2006 decision in which WCJ found that applicant/administrative assistant's cumulative injuries to cervical spine, bilateral elbows, bilateral wrists, and bilateral shoulders through 7/1/2003 resulted in 62-percent PD and need for future medical treatment, when (1) defendant sought reconsideration of WCJ's PD rating, based on applicant's activities as depicted in a sub rosa surveillance video, (2) WCAB, after independently reviewing surveillance video, appointed “regular physician” to examine applicant pursuant to Lab C § 5701, and (3) based on opinion of regular physician, which WCAB found to constitute substantial evidence, and on recommended rating calculated using 1997 Schedule for Rating Permanent Disabilities and Multiple Disabilities Table, WCAB concluded that applicant suffered 39-percent PD and was not entitled to future medical treatment, as awarded by WCJ

Oakland Unified School District v. W.C.A.B. (Little) (1st--A125888), 74 Cal. Comp. Cases 1399

Jurisdiction--Five-Year Statute of Limitations--WCAB held that WCJ had jurisdiction to make initial award of TTD to applicant/custodian with admitted industrial injuries to upper extremities on 5/14/2000 and 8/18/2000, for period of TTD originating more than five years after applicant's date of injury, when no prior awards of TD indemnity had been issued to applicant, and WCAB found that decisions in Nickelsberg v. W.C.A.B. and Hartsuiker v. W.C.A.B., precluding awards for periods of TD arising more than five years from date of injury under Lab C §§ 5410 and 5803 after final award of TD is made, did not bar WCAB from awarding TTD in this case because applicant did not seek to reopen based on additional TD but rather made initial claim for TD, that, although AME on 11/17/2009 found applicant to be TPD, defendant's failure to offer modified work within applicant's restrictions made defendant liable for TTD, and that five-year time limitation in Lab C § 4656(b) did not bar applicant's initial claim for TD benefits since this limitation expressly applies only to temporary partial disability awards and does not preclude award of TTD

Rodriguez v. W.C.A.B. (2nd--B215445), 74 Cal. Comp. Cases 1404

Credit--Third-Party Settlements--Employer Negligence--WCAB held that applicant who suffered injuries to both feet and to her nervous system on 1/5/2004, when loose ceramic tiles attached to side of her desk fell, did not present sufficient evidence to prove that defendant acted negligently in failing to inspect tiles after they were installed so as to preclude or reduce defendant's entitlement to credit under Lab C §§ 3858 and 3861 for settlement monies recovered by applicant in third-party civil suit against contractors who installed tiles as part of remodel of her  work space, when there was no clear evidence that  tiles were installed incorrectly, no evidence that any sort of inspection by defendant should have been undertaken after tiles were installed, since ceramic tiles on furniture do not generally pose risk significant enough to warrant special inspection, and no evidence regarding what sort of reasonable inspection defendant should have or could have undertaken that would have revealed defect in installation of tiles

© Copyright 2009 LexisNexis. All rights reserved.