California Compensation Cases June 2021

CALIFORNIA COMPENSATION CASES

Vol. 86, No. 6 June 2021

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

Town of Los Gatos v. W.C.A.B. (Hart, Charles), Lexis Advance

Permanent Disability—Commencement of Payments—Cost-of-Living Adjustments—Court of Appeal, annulling WCAB’s order and remanding matter to WCAB for further proceedings, held that WCJ’s finding of 1/1/2012 start date for Labor Code § 4659(c) cost-of-living adjustments (COLA) on applicant’s permanent total disability award for 2003 low back injury was clearly erroneous, when WCJ’s finding was based on orthopedic qualified medical evaluator’s opinion that…

Appellate Court Case Not Originating With Appeals Board

Painter (John) v. Amin, Lexis Advance

Peculiar Risk Doctrine/Premises Liability—Exceptions to Privette Rule—Imputed Knowledge of Concealed Hazards—Court of Appeal, reversing trial court’s grant of summary judgment in favor of defendant, held that plaintiff employed by company defendant hired to perform maintenance on building he owned could pursue premises liability cause of action against defendant for injuries he sustained when roof access ladder he was descending on side of defendant’s building pulled loose, causing him to fall to ground and suffer injuries, when Court of Appeal concluded that...

Digests of WCAB Decisions Denied Judicial Review

De Inga (Maria) v. W.C.A.B., Lexis Advance

Psychiatric Injury—Medical Evidence—Rolda Analysis—WCAB affirmed WCJ’s finding that applicant’s claim for psychiatric injury allegedly resulting from harassment by her supervisor, various dissatisfactory performance reviews and disciplinary actions taken against her was barred because injury was substantially caused by lawful, nondiscriminatory, good faith personnel actions, and WCAB determined that in barring applicant’s claim, WCJ correctly rejected...

Travelers Property Casualty Company of America v. W.C.A.B. (Torres, Kevin), Lexis Advance

Permanent Disability—Rating—Increased Permanent Disability—Sleep Impairment—WCAB affirmed WCJ’s finding that applicant who suffered industrial injury to his head, cervical spine and sleep on 5/28/2015 while working as HVAC technician, was not barred by Labor Code § 4660.1(c)(1) from receiving separate impairment rating for his sleep dysfunction, when there was...

Other WCAB Decisions Denied Judicial Review

Family Healthcare Network v. W.C.A.B. (Xiong, Susan), Lexis Advance

Third-Party Settlements—Credit—Waiver—WCAB affirmed WCJ’s finding that defendant waived its right to credit under Labor Code § 3861 against its workers’ compensation liability, for third-party settlement recovery placed into special needs trust fund on behalf of applicant who suffered traumatic brain injury in motor vehicle accident on 1/17/2013, when defendant’s original attorney orally agreed that...

Shoemaker (Mandana) v. W.C.A.B., Lexis Advance

Compromise and Release Agreements—Setting Aside—WCAB affirmed WCJ’s Order Approving Compromise and Release (OACR) settling applicant assistant manager’s claim for 11/30/2013 injury to her head, eye, neck, shoulders, upper extremities, knee, wrists, and other body parts, when applicant’s former attorney, without objection by applicant, testified that...

State Farm Insurance v. W.C.A.B. (Parsons, Paul), Lexis Advance

Psychiatric Injury—Burden of Proof—WCAB, affirming WCJ’s decision, concluded that there was substantial evidence to support WCJ’s finding that applicant, while working as claims adjuster through 11/18/2017, suffered compensable psychiatric injury, when panel qualified medical evaluator took history consistent with applicant’s credible and unrebutted testimony and determined that....

Hearings—Due Process—Telephonic Testimony—WCAB, affirming WCJ’s decision, found that WCJ did not violate defendant’s due process rights by allowing witness to provide trial testimony telephonically, when witness was listed on pre-trial conference statement, and defendant received...

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.

Harris (Napoleon) v. Oakland Raiders, Lexis Advance

Medical-Legal Procedure—In-Person Examinations—COVID-19 Pandemic—WCAB, denying removal, affirmed WCJ’s order instructing parties to arrange appointments for applicant who lived outside of California to be evaluated by qualified medical evaluators in California, despite defendant’s objection that order was contrary to California’s public policy and CDC health guidelines related to COVID-19, and that all discovery involving travel to California for medical evaluations be postponed until it is safe to travel, when applicant was...

Matani (Akbar) v. IHSS, Lexis Advance

Statute of Limitations—Tolling—Defendant’s Duty to Provide Notice—WCAB affirmed WCJ’s finding that applicant’s claim for injury sustained in motor vehicle accident on 9/12/2014 was barred by statute of limitations in Labor Code § 5405(a), when applicant’s claim was untimely filed more than three years after his date of injury, and WCAB found that applicant failed to...

Sablan (Yolanda) v. County of Los Angeles, Lexis Advance

Liens—Procedural Rights and Duties—Suspended Providers and Special Lien Proceedings—Due Process—WCAB granted lien claimants’ Petitions for Removal and rescinded WCJ’s order requiring multiple lien claimants to proceed to special lien proceedings under Labor Code § 139.21(e) et seq., regarding liens filed by or on behalf of suspended provider Marisa Schermbeck Nelson, and also rescinded WCJ’s order denying lien claimants’ petition to…

Urias (Adalberto) v. PT Gaming, Lexis Advance

Supplemental Job Displacement Benefits—Settlement of Benefit—WCAB, in split panel opinion, affirmed WCJ’s finding that applicant who suffered industrial injury while working as gaming table associate from 9/4/2014 to 9/4/2015, was not precluded from receiving supplemental job displacement benefits (SJDB) voucher based on parties’ Compromise and Release agreement, when WCAB panel majority found that…

Supplemental Job Displacement Benefits—Employee’s Resignation—WCAB, affirming WCJ’s decision, held that consistent with holding in Dennis v. State of California (2020) 85 Cal. Comp. Cases 389 (Appeals Board en banc opinion), applicant’s resignation from his employment as gaming table associate following industrial injury during period 9/4/2014 to 9/4/2015, did not defeat his entitlement to supplemental job displacement benefits (SJDB) voucher pursuant to...