California Workers' Compensation Cases Roundup 1/14/2010

CALIFORNIA COMPENSATION CASES

Vol. 74, No. 12

December 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

Duncan v. W.C.A.B. (X.S.) (6th--H034040) 74 Cal. Comp. Cases 1427

PTD--COLA--Cost of living adjustments pursuant to Lab C Sec 4659(c), for life pensions and PTD indemnity, are added to those payments starting 1/1/2004, and every Jan. 1 thereafter, no matter when first such payment is received, when nothing in statutory language required that cost of living adjustments for life pensions and PTD indemnity start from Jan. 1 following date of injury, no matter when first such payment is received

Sanchez v. W.C.A.B. (5th--F058246) 74 Cal. Comp. Cases 1441

S&W Misconduct by Employer--Substantial evidence supported WCAB's finding that employer's conduct, while constituting negligence, did not amount to knowingly or deliberately either failing to take corrective action to prevent serious injury likely to occur or acting with positive, active, wanton, reckless, and absolute disregard of possibly damaging consequences, when applicant was injured AOE/COE when struck by 8-ton earth compactor operated by co-employee, co-employee had very little experience using heavy equipment and was given 5 to 10 minutes instruction in operating compactor by employer's supervisor, another co-employee observed employee operating compactor efficiently entire morning before accident, and testimony of employee operating compactor that he warned employer's supervisor that he felt uncomfortable operating compactor in proximity to applicant was not testimony of good or credible witness

Appellate Court Cases Not Originating With Appeals Board

People v. Garcia (2nd--B211062) 74 Cal. Comp. Cases 1446

Insurance Fraud--Material Misrepresentations--Court of Appeal, reversing judgment of Superior Court that found plaintiff/applicant guilty of two counts of workers' comp fraud (Ins C § 1871.4), two counts of insurance fraud (Pen C Sec 550), one count of grand theft (Pen C Sec 487), and one count of attempted perjury (Pen C Secs 118, 664), held that there was no substantial evidence that plaintiff's statements during deposition were material statements for purpose of obtaining VR workers' comp benefits, when Court of Appeal found that plaintiff insulation installer sought workers' comp benefits in 9/2003 for industrial spine injury, that plaintiff's treating physician indicated that this injury precluded plaintiff from performing some duties of insulation installer and that plaintiff was medically eligible for VR, that RU awarded VR benefits, that it was undisputed that plaintiff gave four false statements during his deposition regarding his residence address, work since 11/2004, income-producing activities from 9/2004 to date of deposition, and whether he could do construction work post-injury, that, in order to be found guilty under statutes at issue, false statements must have been material statements, in this case material to eligibility for VR benefits, that eligibility for VR under Lab C Sec 4635(a)(1) required permanent preclusion or likely preclusion from performing usual occupation or duties performed at time of industrial injury, that plaintiff was precluded from performing some duties of his former position, and that plaintiff's targeted statements during his deposition were not material to his eligibility for VR benefits

Tabaie v. Stockton Unified School District (3rd--C056222) 74 Cal. Comp. Cases 1454

Civil Actions Against Employers--FEHA--Jury Instructions--Court of Appeal held that Superior Court committed prejudicial error in giving special instruction to jury that required jury to make decision about issue of law, when Court of Appeal found that plaintiff/applicant worked for defendant school district as psychologist and sustained industrial back injury on 9/5/2001 from moving heavy file cabinet, that plaintiff was released to return to work with restrictions, that plaintiff continued working at his usual duties although defendant labeled this work as modified work, that defendant had policy of providing modified work after industrial injury for 60 days, then giving employee choice of obtaining unrestricted medical release or requesting reasonable accommodation, that defendant did not implement this policy with plaintiff, that defendant would not allow plaintiff to work after end of 60-day period, that plaintiff brought disability discrimination civil action under FEHA (Gov C Sec 12940 et seq.) for several causes of action, contending that defendant refused to allow him to continue working even though he was able to work his usual duties and that this was adverse employment action under FEHA, that at trial of FEHA action Superior Court judge gave jury special instruction that, if it found that defendant had legitimate, non-discriminatory business purpose for not allowing plaintiff to return to work, defendant had rebutted presumption of discrimination under FEHA, that effect of this special instruction was to wrongly require jury to decide issue of law and also to use burden-shifting analysis and to mislead jury into believing that mere showing of non-discriminatory business purpose was sufficient to find for defendant, that jury should have determined whether plaintiff's disability was substantial factor in defendant's refusal to allow plaintiff to continue working, and that there was reasonable probability that, if jury had been instructed correctly, it would have found for plaintiff

Civil Actions Against Employers--FEHA--Jury Questions--Court of Appeal held that Superior Court committed prejudicial error in giving jury question on whether it found that defendant had legitimate, non-discriminatory business reason for not allowing plaintiff to return to work, and, if so, that it should end deliberations and find in favor of defendant; Court of Appeal found that this question erroneously treated evidence of non-discriminatory business purpose as dispositive

Civil Actions Against Employers--FEHA--Directed Verdicts--Court of Appeal reversed Superior Court's denial of plaintiff's motion for directed verdict, when Court of Appeal found that defendant's modified duty policy as applied to plaintiff was policy requiring employee to return to work only if 100-percent healed and that this type of policy was per se discriminatory under FEHA; Court of Appeal remanded with instructions for Superior Court to grant motion for directed verdict

Digests of WCAB Decisions Denied Judicial Review

Editorial Board members Hon. Frederick W. Bray, Hon. Colleen S. Casey, William A. Herreras, John W. Miller, and Hon. Ronald W. Smitter recommended the following writ denied cases for summarization in this issue.

CIGA v. W.C.A.B. (Lord) (2nd--B215965) 74 Cal. Comp. Cases 1469

PD--Apportionment--Wilkinson Rule--WCAB upheld WCJ's finding that applicant/radiology technician's specific injuries to neck, back, right shoulder, and upper extremity on 1/27/97 combined with cumulative injuries to applicant's left shoulder and upper extremity during periods 1/11/99 through 6/22/99 and 8/10/99 through 11/30/99 to cause 52-percent PD and found that, pursuant to Wilkinson v. W.C.A.B. and Benson v. Permanente Medical Group, WCJ correctly issued single, unapportioned PD award based on unrebutted opinion of applicant's QME indicating that applicant's cumulative injuries were compensable consequence of original specific injuries, and that PD from all injuries was inextricably combined and could not be reasonably medically separated or apportioned under Lab C Sec 4663

County of Los Angeles v. W.C.A.B. (Anson) (2nd--B213577) 74 Cal. Comp. Cases 1474

CIGA--General and Special Employers--Other Insurance--WCAB rescinded WCJ's award against CIGA and held that CIGA, on behalf of general employer's insolvent carrier, was not liable for providing benefits to applicant with 6/9/2000 back injury and alleged back injury during period 2/2000 through 6/8/2000, because applicant's claim was not "covered claim," when WCAB found that, although there was evidence establishing that general employer and self-insured special employer agreed that general employer would provide workers' comp coverage, self-insured special employer's Certificate to Self Insure constituted "other insurance" available to applicant under Ins C Sec 1063.1(c)(9) because there was no evidence regarding whether special employer intended to exclude general employer's employees from its Certificate to Self Insure or whether it was possible for special employer to exclude such special employees if general employer's carrier became insolvent and its covered claims were assumed by CIGA

Davita, Inc. v. W.C.A.B. (Casarez) (4th--E049224) 74 Cal. Comp. Cases 1479

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 Lab C Sec 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 meeting/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

Filip v. W.C.A.B. (2nd--B215567) 74 Cal. Comp. Cases 1483

Discrimination--Lab C Sec 132a--WCAB, reversing WCJ's finding, held that employer's suspension of applicant/maintenance electrician on 10/14/2004 did not violate Lab C Sec 132a, when applicant failed to prove that suspension was based on his industrial injuries to neck, back, and psyche on 10/13/2004 and during period 9/1/99 to 10/13/2004, and when reports and letters related to applicant's grievance claim, which WCAB found to be persuasive evidence because they were contemporaneous with events in question and did not depend on parties' recollection or interpretation of those events, indicated that applicant was suspended for failing to follow orders of his supervisor to wash truck

S&W Misconduct of Employer--WCAB, reversing WCJ's finding, held that employer's actions on 10/13/2004 in assigning applicant/maintenance electrician to work in trench shoveling lead-laden mud did not constitute S&W misconduct under Lab C Sec 4553, when applicant failed to prove that injuries to his back, neck, and psyche on 10/13/2004 and during period 9/1/99 to 10/13/2004 resulted from obvious danger known, but disregarded, by employer, and when WCAB found that, although trench work involved heavy lifting, there was no showing that employer knew or should have known that applicant risked injury to his back, which would make it dangerous to "quasi-criminal" degree to assign applicant to trench work

Fireman's Fund Insurance Co. v. W.C.A.B. (Colamaria) (2nd--B215486) 74 Cal. Comp. Cases 1489

CIGA--Other Insurance--General and Special Employers--WCAB held that CIGA, 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' comp 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 Ins C Sec 1063.1(c)(9)

Gonzales v. W.C.A.B. (Cortez) (3rd--C062641) 74 Cal. Comp. Cases 1493

Employment Relationships--Residential Employees--WCAB upheld WCJ's finding that applicant hired to do framing on defendants/owner-builders' new home construction was not residential employee under Lab C Sec 3351 for purposes of workers' comp coverage under defendants' homeowner' insurance policy, because defendants' home was still under construction and not fit for habitation at time of applicant's injury to his spine, upper extremities, lower extremities, head, psyche, and internal system on 8/18/2006, applicant kept separate time card for his framing work, and applicant's framing work was not incidental to ownership, maintenance, or use of residence since applicant was actually involved in construction of residence; WCAB held that homeowner's insurance carrier was not estopped to deny coverage when there was no evidence that carrier's agents represented to defendants that it would provide coverage for applicant's injury and no evidence that defendants requested such coverage, and WCAB found that defendants' estoppel claim failed as matter of law

Schwartz v. W.C.A.B. (2nd--B216379) 74 Cal. Comp. Cases 1496

S&W Misconduct of Employer--Liability of Corporate Shareholders--WCAB held that corporate shareholders were not personally liable for S&W misconduct award that issued on behalf of applicant/carpenter who suffered injuries to his left hand and psyche on 4/16/92 and against corporation that had dissolved before award was issued, when WCAB found that applicant did not meet burden of proving that shareholders acted as "alter ego" of corporation pursuant to Associated Vendors, Inc. v. Oakland Meat Co., that, even had applicant prevailed on "alter ego" theory, enforcement of award against shareholders would have been denial of due process because shareholders had no notice of S&W hearing and did not participate in litigation of issue, and that elements of equitable estoppel were not met so as to justify enforcement of award against shareholders because there was no substantial evidence that shareholders attempted to mislead applicant or made any misrepresentations regarding status of corporation or applicant's claim against it

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Comments

California Compensation Cases Staff
  • 02-02-2010

Hi Robin, I'd like to review Duncan, Sanchez, Anson & Colamaria please. Thanks,

Nigel

California Compensation Cases Staff
  • 02-02-2010

Hi Again Robin, Also Lord looks interesting to review please. Thanks, Nigel