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Workers' Compensation

California Compensation Cases January 2022

CALIFORNIA COMPENSATION CASES

Vol. 87, No. 1 January 2022

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

California Correctional Peace Officers Association Benefit Trust Fund v. W.C.A.B. (Martin, Jr., David), Lexis

Telephonic Hearings—Due Process—Lien Claimant’s Failure to Appear—Court of Appeal, affirming WCAB’s order denying petition for reconsideration, held that lien claimant received adequate notice of 6/22/2020 telephonic hearing consistent with due process and was required to appear at hearing, when lien claimant knew hearing had been set for 6/22/2020 on issue of its liability for costs and sanctions, and Court of Appeal found that while there was no actual notice that hearing would be held telephonically rather than suspended,...

Liens—Lien Claimant’s Procedural Rights and Duties—WCAB’s Jurisdiction After Withdrawal of Lien—Court of Appeal, affirming WCAB’s order denying petition for reconsideration, held that lien claimant’s withdrawal of its lien did not deprive WCAB of jurisdiction to determine petition for costs and sanctions related to lien claimant’s misconduct while litigating lien, and was no excuse for lien claimant’s failure to appear at multiple hearings on issue of costs and sanctions.

Appellate Court Cases Not Originating With Appeals Board

Carradine v. IDrip Vape, LLC, Lexis

Employer’s Vicarious Liability—Going and Coming Rule—Incidental Benefit/Required Vehicle Exception—Court of Appeal, affirming trial court’s grant of summary judgment in favor of defendant, held that defendant was not vicariously liable for fatal injuries suffered by third-party involved in vehicle collision with defendant’s co-owner/employee who was driving home from work in his personal vehicle at time of accident, when court of appeal found that under “going and coming” rule,…

See’s Candies, Inc. v. Superior Court of California for the County of Los Angeles, Lexis

Workers’ Compensation Exclusivity—Derivative Injury Doctrine—COVID-19—Court of Appeal, affirming trial court’s order overruling employers’ demurrer, rejected employers’ assertion that derivative injury doctrine precluded wrongful death action filed by plaintiffs alleging that employee’s spouse died of COVID-19 after employee contracted virus at work due to employers’ failure to implement adequate safety measures, when Court of Appeal found that regardless of whether employee suffered workplace injury...

Federal District Court Opinion of Related Interest

San Francisco Bay Area Rapid Transit District v. National Union Fire Insurance Company (Gonsolin, Michael), Lexis

Excess Insurance Policies—No Voluntary Settlement Clauses—District Court for Northern District of California granted summary judgment for defendants in action brought by self-insured employer to determine defendants’ liability under various excess insurance policies for employer’s voluntary settlement of employee’s workers’ compensation claim, with stipulation to date of injury, when district court found, initially, that excess carriers were not bound by employer’s stipulation to date of injury and were entitled to relitigate issue, and subsequently found...

Appeals Board En Banc Decision

In re: COVID-19 State of Emergency, En Banc—No. 8, Lexis

COVID-19 State of Emergency No. 8—Electronic Service by WCAB—WCAB en banc clarified that suspension of W.C.A.B. Rule 10628, requiring WCAB to serve documents by mail, applies to period 3/18/2020 to 1/1/2022, date amended W.C.A.B. Rule 10628 allowing electronic service became effective.

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.

Chavira (Joseph) v. Southland Gunite, Inc., Lexis

Psychiatric Injury—Catastrophic Injuries—Increased Permanent Disability—WCAB, granting reconsideration and rescinding WCJ’s decision, held that applicant who suffered psychiatric injury as compensable consequence of physical injury to multiple body parts while employed as pool bottom finisher on 1/10/2017, met burden of proving his industrial injury was “catastrophic” under Labor Code § 4660.1(c)(2)(B) and Wilson v. State of CA Cal Fire (2019) 84 Cal. Comp. Cases 393 (Appeals Board en banc opinion), thereby entitling him to increased impairment rating for psychiatric injury, when WCAB reasoned that treatment...

Harrison (Abiel) v. Canyon Springs Pools and Spas, Inc., Lexis

Compromise and Release Agreements—Rescission—Mutual Mistake—WCAB, denying reconsideration, affirmed WCJ’s finding of good cause to set aside 1/8/2020 Order Approving Compromise and Release agreement settling applicant’s claim for cumulative orthopedic injury, based on mutual mistake, when Compromise and Release agreement contained zero-dollar Medicare Set-Aside, resulting in Center for Medicare Services (CMS) charging applicant for medical treatment, which applicant paid, and WCAB found there was mutual mistaken belief by parties that zero-dollar Medicare Set-Aside…

Scagliotti (Oscar) v. Elmore Toyota, Lexis

Discrimination—Labor Code § 132a—Mitigation of Damages—Reinstatement—WCAB, granting reconsideration and affirming WCJ’s findings, held that (1) applicant reasonably attempted to mitigate his damages during period defendant refused to reinstate him to his position in violation of Labor Code § 132a, and was entitled to recover lost wages for that period, when WCAB found that applicant credibly testified...