Cal. Comp. Cases December Advanced Postings 12/11/2009

The second batch of advanced postings for the December 2009 issue of California Compensation Cases is now available on lexis.com. Lexis.com subscribers can click on the links below to access the full summaries.

Davita, Inc., New Hampshire Insurance Company, administered by Broadspire, Petitioner v. Workers' Compensation Appeals Board, Yvette Casarez, Respondents, 74 Cal. Comp. Cases ***, 2009 Cal. Wrk. Comp. LEXIS 291

Injury AOE/COE--Course of Employment--WCAB held that applicant's injury on 12/18/2007 from motor vehicle accident occurred in course of her employment under Labor Code § 3600(a)(2) and was compensable injury, when WCAB found that applicant was scheduler for defendant employer that scheduled dialysis nurses for local county medical providers, that on 12/18/2007 applicant had completed her shift but was on call and with defendant's cell phone in her possession, that staff had weekly meetings and that recent weekly meetings became potlucks, that defendant, through two supervisors, had goal of team building and encouraged but did not require employees to attend potlucks to meet that goal, that meeting and potluck was scheduled on 12/19/2007 because it was last day on which all employees would be in office together, that defendant knew of 12/19/2007 meeting/potluck (based on WCJ's credibility determinations after hearing witness testimony), that defendant had condoned and supported similar events in past as part of team-building goal, that employees were also going to exchange holiday gifts at 12/19/2007 meeting/potluck, that meeting/potluck was scheduled to take place on employer's premises and that witnesses expected it to last from 11:00 a.m. through 2:00 p.m. and expected to clock out for one-half hour, that after her shift on 12/18/2007 applicant rode as passenger in vehicle driven by her husband to go to shopping mall to shop for food and gifts for 12/19/2007 meeting/potluck and was talking to another employee about meting/potluck on defendant's cell phone while in vehicle, that husband lost control on wet freeway pavement, struck center divider, and rolled vehicle, and that applicant sustained injuries, that applicant was engaged in activities reasonably incidental to her employment, and that defendant did not meet burden of proving that applicant's travel was not for defendant's benefit.

Fireman's Fund Insurance Company, Rocket Science Laboratories, Petitioners v. Workers' Compensation Appeals Board, Payday, Inc., California Insurance Guarantee Association, administered by Intercare Insurance Services, on behalf of Reliance Insurance Company, in liquidation, (Thomas Colamaria), Respondents, 74 Cal. Comp. Cases ***, 2009 Cal. Wrk. Comp. LEXIS 292

California Insurance Guarantee Association--Other Insurance--General and Special Employers--WCAB held that California Insurance Guarantee Association, on behalf of general employer's insolvent carrier, was not liable for providing benefits to applicant/supervising producer who sustained industrial injury to spine and alleged injuries to shoulders, psyche, and urological system on 9/17/2000 and 10/2/2000, when jointly and severally liable special employer's workers' compensation insurance policy did not expressly exclude special employees from coverage or incorporate any "agreement" between general and special employers expressly excluding special employees from coverage, and, since policy was clear and unambiguous in its terms and scope, WCAB found no need to look outside policy in determining that policy constituted "other insurance" available to applicant under Insurance Code § 1063.1(c)(9).

Jose Angel Aispuro v. W.C.A.B., Genlyte Group, L.L.C., St. Paul Travelers, 74 Cal. Comp. Cases ***, 2009 Cal. Wrk. Comp. LEXIS 293

Petitions for Reconsideration/Removal--Service--Dismissal--WCAB dismissed applicant's petition for reconsideration or removal because applicant did not serve petition on all adverse parties as required by Lab. C. § 5905 and 8 Cal. Code Reg. §§ 10843(c) and 10850, when WCAB found that applicant claimed injuries AOE/COE on 5/1/2003 and cumulatively ending 5/1/2003, that WCJ issued rulings on motions, that applicant served his petition for reconsideration or removal of WCJ's rulings on defendant by serving defendant's prior attorney, that applicant did not provide proof of service on defendant at correct address, and that dismissal was authorized under 8 Cal. Code Reg. § 10850 and case law.

Lucila Martinez v. W.C.A.B., Manpower of San Diego, Transcontinental Insurance Company, administered by Gallagher Bassett Services, 74 Cal. Comp. Cases ***, 2009 Cal. Wrk. Comp. LEXIS 294

Psychiatric Injury AOE/COE--Six Months Employment--WCAB held that applicant's claim of injury to psyche (either as new injury or as compensable consequence of admitted 8/27/2004 industrial neck and back injury from trip and fall) was barred by Lab. C. § 3208.3(b) because applicant had not worked for employer for required six months (applicant worked for defendant from 7/29/2004 through 9/21/2004) and exception when injury was caused by sudden and extraordinary employment condition did not apply.

Medical Treatment--WCAB held that applicant did not need psychiatric medical treatment for her 8/27/2004 neck and back injuries, based on AME's opinions.

Evidence--Admissibility--WCAB admitted report of defense QME but did not rely on this report in determining any issues.

Optimal Health Institute/Dr. Henry Kan v. W.C.A.B., Anderson Desk/Steelcase, Liberty Mutual Insurance Company, (Dimas Toruno), 74 Cal. Comp. Cases ***, 2009 Cal. Wrk. Comp. LEXIS 295

Medical Treatment--Lien Claims--WCAB held that defendant was liable for medical provider's lien for treating applicant's industrial injury but that defendant's liability was limited to two chiropractic visits (because lien claimant documented only two such visits) and 24 physical therapy visits (because lien claimant did not obtain prior written authorization from employer/insurer to provide applicant with such treatment and was thus subject to statutory maximums for number of visits under Lab. C. § 4604.5(d)(1), when lien claimant treated applicant laborer for 4/13/2005 right wrist and left sciatic nerve industrial injury; WCAB also held that Lab. C. § 4604.5(d)(3) did not apply and that statutory limits on number of visits under Lab. C. § 4604.5(d)(1) applied, notwithstanding utilization review requirements of ACOEM Guidelines.

S & B Surgery Center, Inc. v. W.C.A.B., Walt Disney Company, Liberty Mutual Insurance Company, Helmsman Management, (Cindy Tulka), 74 Cal. Comp. Cases ***, 2009 Cal. Wrk. Comp. LEXIS 296

Petitions for Writ of Review--Time to File--Court of Appeal dismissed petition for writ of review not filed within time limits of Lab. C. § 5950, citing Camper v. W.C.A.B. (1992) 3 Cal. 4th 679, 12 Cal. Rptr. 2d 101, 836 P.2d 888, 57 Cal. Comp. Cases 644.

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