California Compensation Cases August 2020

CALIFORNIA COMPENSATION CASES

Vol. 85, No. 8 August 2020

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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Digests of WCAB Decisions Denied Judicial Review

Barrett Business Services, Inc. v. W.C.A.B. (Manser, Noureddine), Lexis Advance.

Injury AOE/COE—Unauthorized Activities and Deviation From Employment—Assault by Third Party—WCAB affirmed WCJ’s finding that applicant, while employed as taxicab driver on 3/19/2017, suffered injury AOE/COE to his head and neck when he was assaulted with baseball bat by another driver in road rage incident, and found that...

City of Hope National Medical Center v. W.C.A.B. (Kong, Xiaohui), Lexis Advance.

Injury AOE/COE—Going and Coming Rule—Applicability of Special Mission Exception—WCAB, affirming WCJ’s decision, found that applicant, while employed as post-doctoral researcher, sustained injury AOE/COE to his lower extremities, left shoulder, and low back when he was struck by vehicle in hit-and-run accident while walking home from his workplace on Saturday, 9/10/2016, and that applicant’s injury claim was not barred by “going and coming” rule because...

Cohen v. W.C.A.B. (Barragan, Augustine), Lexis Advance.

Attorney’s Fees—Calculation of Reasonable Fee—WCAB, affirming WCJ’s decision, held that applicant’s former attorney was entitled to $5,000 as reasonable attorney’s fee based on WCAB Policy and Procedure Manual, 2013 Revision, § 1.40, which provides for fee in range of nine to 12 percent of permanent disability indemnity, death benefit, or compromise and release awarded, when applicant, who suffered industrial injuries on 8/17/2005 while working as roofing salesperson and estimator, dismissed former attorney in 2014 prior to settling his claim in 2019, while unrepresented, for over $400,000, and, although WCAB…

Contra Costa County v. W.C.A.B. (Lemay, Mitchell), Lexis Advance.

Presumption of Industrial Causation—Cancer—Peace Officers—WCAB affirmed WCJ’s finding that applicant sustained cumulative injury from 6/20/85 to 3/25/2011 in form of prostate cancer while employed as deputy sheriff by Contra Costa County (County), but did not sustain injury in form of prostate cancer while employed as chief of police by Marin Community College District (District) from 4/11/2011 through 2/28/2016, when WCAB found that…

Presumption of Industrial Causation—Heart Trouble—Peace Officers—WCAB affirmed WCJ’s finding that applicant sustained cumulative injury from 6/20/85 to 3/25/2011 in form of heart trouble/hypertension while employed as deputy sheriff by Contra Costa County (County), but did not sustain injury in form of heart trouble/hypertension while employed as chief of police by Marin Community College District (District) from 4/11/2011 through 2/28/2016, when WCAB found that...

Employers’ Insurance Group v. W.C.A.B. (Juarez Sergio); Hafezi v. W.C.A.B. (Juarez, Sergio), Lexis Advance.

Liens—Lien Claimant’s Procedural Rights and Duties—Provider’s Criminal Conduct—WCAB affirmed WCJ’s finding that lien claimant was not entitled to payment on any liens for workers’ compensation medical services he provided after 8/1/2009, but could pursue payment on liens for services rendered before that date, when lien claimant was convicted of seven felonies involving unlawful sexual conduct with minor between 8/1/2009 and 5/7/2010 and was subsequently suspended from participation in workers’ compensation system pursuant to Labor Code § 139.21(a)(1), and WCAB found that…

Haney (Ronald) v. W.C.A.B., Lexis Advance.

Permanent Disability Rating—Interpretation of AMA Guides—WCAB upheld WCJ’s award of 66 percent permanent disability for circulatory and knee injuries incurred by applicant during his employment as correctional officer from 3/11/2002 through 4/11/2017, and concluded that, in assigning 30 percent impairment for applicant’s circulatory injury/hypertension under Table 4-2, Class 3 of AMA Guides for left ventricular hypertrophy based on electrocardiogram, WCJ properly relied on…

Regents of the University of California v. W.C.A.B. (Klimkiewicz, John), Lexis Advance.

Third Party Actions—Claim for Credit—University of California—WCAB, amending WCJ’s decision, held that University of California, Irvine, where applicant worked as sailing and crew rigger, was not entitled to third-party credit under Labor Code §§ 3856 and 3861 for applicant’s settlement recovery in civil suit against Regents of University of California (Regents) for injuries incurred by applicant on 10/31/2015 when he was bitten by dog owned by employee of University of California, Los Angeles, when WCAB found that…

Salazar (Jose), Estate of v. W.C.A.B., Lexis Advance.

Stipulations—Setting Aside—Extrinsic Fraud or Mistake—WCAB, amending WCJ’s decision, found that applicant mold operator did not establish good cause to set aside 10/4/2004 Stipulated Award settling his claim for 9/9/2003 industrial shoulder injury based on extrinsic fraud or mistake, when applicant filed petition to set aside Stipulated Award over six years after time to file such petition expired under Labor Code §§ 5803 and 5804, alleging that he was unaware that his claim had been settled, as he did not speak or write English and did not know papers he signed were settlement documents, and WCAB reasoned that…

United Airlines, Inc. v. W.C.A.B. (Van Dyne-Parmet, Jitka), Lexis Advance.

Permanent Disability—Rating—Combining Multiple Disabilities—WCAB affirmed WCJ’s finding that applicant who, while employed as flight attendant on 8/3/2001, sustained industrial injuries to her neck, shoulders, muscle and connective tissue (fibromyalgia), psychological system, central nervous system (aneurism), cardiovascular system (hypertension), cognitive system, temporomandibular joint, teeth, and gums, resulting from striking her head against wall during in-flight turbulence, suffered 100 percent permanent disability from her injuries, when agreed medical evaluator...

Injury AOE/COE—Substantial Medical Evidence—WCAB affirmed WCJ’s finding that reports of neuropsychologist constituted substantial evidence to support WCJ’s finding that applicant sustained cognitive injury as result of striking her head on wall during in-flight turbulence while working as flight attendant on 8/3/2001, when neuropsychologist concluded, after administering neuropsychological testing, that applicant had severe neuropsychological impairment in her frontal lobe or executive functions related to her injuries and that cognitive impairment was entirely industrial, and WCAB found that doctor...

Other WCAB Decisions Denied Judicial Review

Aerotek v. W.C.A.B. (Wilson, Ronald), Lexis Advance.

New and Further Permanent Disability—Discovery—No Good Cause to Re-Open—WCAB, granting removal, rescinded WCJ’s finding that issue of applicant’s new and further disability stemming from 5/1/2010 back injury was not ripe for determination following 10/18/2018 trial and that there was good cause to allow applicant to complete medical treatment before reassessing new and further disability, and WCAB returned matter to WCJ…

Carranza (Oracio) v. W.C.A.B., Lexis Advance.

Presumption of Industrial Causation—Heart Trouble—Correctional Officers—WCAB affirmed WCJ’s finding that applicant did not sustain compensable industrial injury to his heart and circulatory system while employed as deputy probation officer during cumulative period ending 10/1/2016, when WCAB found that…

County of Alameda v. W.C.A.B. (Carter, Triseena), Lexis Advance.

Permanent Disability—Rating—Combining Multiple Disabilities—WCAB affirmed WCJ’s finding that applicant suffered permanent total disability as result of admitted industrial injury to her psyche, cervical spine, lumbar spine, thoracic spine, shoulders, wrists, urological system, and sleep on 9/12/2011 while attempting to break up fight between two inmates during her employment as juvenile institutional officer, when agreed medical examiners concluded that applicant was unable to participate in open labor market due to extent of her multiple injuries, and WCAB determined that WCJ’s rating…

Permanent Disability—Apportionment—WCAB, affirming WCJ’s finding that applicant suffered permanent total disability as result of her 9/12/ 2011 industrial injuries, determined that WCJ properly applied Labor Code §§ 4663 and 4664…

Kern County Hospital Authority v. W.C.A.B. (Carrillo, Rosa), Lexis Advance.

Statute of Limitations—Time to File Specific Injury Claims—WCAB, affirming WCJ’s decision, held that applicant who suffered industrial injuries to her back, neck, shoulders, psyche, digestive system, internal organs, and in form of headaches on 8/3/2010 while working for defendant as hospital business specialist, timely filed Application for Adjudication of Claim for those injuries on 9/22/2011, when WCAB found…

Appeals Board Panel Decisions

CAUTION: These WCAB panel decisions have not been designated a “significant panel decision” by the Workers’ Compensation Appeals Board. Practitioners should proceed with caution when citing to these board panel decisions and should also verify the subsequent history of the decisions. WCAB panel decisions are citeable authority, particularly on issues of contemporaneous administrative construction of statutory language. However, WCAB panel decisions are not binding precedent, as are en banc decisions, on all other Appeals Board panels and workers’ compensation judges. While WCAB panel decisions are not binding, the WCAB will consider these decisions to the extent that it finds their reasoning persuasive.

Fraire (Maria) v. California Department of Corrections and Rehabilitation, Lexis Advance.

Permanent Disability—Apportionment—Conclusive Presumption of Total Disability—WCAB, in split panel opinion, rescinded decisions in which WCJ found that applicant suffered 100 percent permanent disability as result of 9/11/2006 and 6/28/2012 industrial injuries causing, among other things, loss of sight in both eyes, and that although medical evidence established that only half of applicant’s permanent total disability was industrially-related, conclusive presumption in Labor Code § 4662(a)(1) precluded apportionment of applicant’s disability, and WCAB returned matter to WCJ to apply apportionment to causation principles under Labor Code §§ 4663 and 4664(a), when WCAB panel majority reasoned…

McGowne Willoughby (Pamela) v. Hoge, Fenton, Jones & Appel, Lexis Advance.

Settlements—Compromise and Release Agreements—Structured Settlements—Medicare Set-Asides—WCAB rescinded WCJ’s order disapproving parties’ Compromise and Release agreement on ground that agreement included assignment of defendant carrier’s liability to third party annuity company, which WCJ determined was prohibited under Labor Code § 4900, and WCAB issued new order approving Compromise and Release agreement, when WCAB found that terms of Compromise and Release whereby…

Sanchez Jimenez (Marta) and Perez (Mercedes) v. Samuel Hale, LLC, Lexis Advance.

Alternative Dispute Resolution—WCAB Jurisdiction—WCAB affirmed WCJ’s finding that WCAB lacked jurisdiction over applicants’ claims against defendant Samuel Hale, LLC (Hale) for cumulative injuries incurred from 7/2013 to 7/2018, during which period applicants were employed by Hale and by Doc Johnson Enterprises (Doc Johnson), when defendant established that claims against Hale were subject to valid alternative dispute resolution carve-out (ADR) Agreement between Hale and UFCW-8 Golden State Union (UFCW), and although applicants asserted that they were not subject to ADR Agreement because they were not members of UFCW, were never notified or made aware of union’s existence and never benefitted from union representation, and that because UFCW was not bona fide labor organization under 8 Cal. Code Reg. § 10200(e), ADR Agreement was invalid, WCAB concluded...