California Compensation Cases October 2021

CALIFORNIA COMPENSATION CASES

Vol. 86, No. 10 October 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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LexisNexis Online Subscribers: You can link to your account on Lexis Advance to read the complete headnotes and court decisions, en banc decisions, writ denied summaries, panel decisions and IMR decisions.

Appellate Court Cases Not Originating With Appeals Board

Banerjee v. Superior Court of Riverside County, Lexis Advance

Illegal Patient Referrals—Physician’s Office Exception—Insurance Fraud—Court of Appeal granted physician’s petition for writ of prohibition as to perjury charges against him but denied petition with respect to insurance fraud charges, when petitioner was charged with both perjury and insurance fraud based on his alleged violations of Labor Code § 139.3(a) (precluding doctors from referring workers’ compensation patients to other providers or entities in which doctor has financial interest) by billing workers’ compensation insurer for services he rendered to patients through two other legal entities he owned and controlled, and while Court of Appeal...

Becerra v. The McClatchy Company, Lexis Advance

Worker Classification—Newspaper Carriers—Application of Borello—Court of Appeal reversed trial court’s judgment for defendant newspaper in class action filed by newspaper’s home delivery carriers alleging newspaper’s failure to pay carriers’ mileage expenses pursuant to Labor Code § 2802 violated unfair competition law (Bus. & Prof. Code § 17200 et seq.), when Court of Appeal found that trial court erroneously relied on inapplicable regulation...

Medina v. Equilon Enterprises, LLC, Lexis Advance

Employment Relationships—Joint Employers—Right of Control—Court of Appeal, reversing trial court’s grant of summary judgment, held that defendant Equilon Enterprises, LLC (Shell), which owned and operated gas stations through contracts with separate companies/MSO operators, was not entitled to summary judgment regarding its status as joint employer under 8 Cal. Code Reg. § 11070(2)(F) of plaintiff, who worked as cashier/manager at one of its gas stations and alleged wage and hour violations, when Court of Appeal reasoned that...

Moreci (Vince) v. Scaffold Solutions, Inc., Lexis Advance

Subrogation—Attorneys’ Conflict of Interest—Standing to Seek Disqualification—Court of Appeal affirmed trial court’s order denying Starstone National Insurance Company’s (Starstone) motion for disqualification of attorneys representing third-party defendant Scaffold Solutions, Inc. (Scaffold) on ground they created conflict of interest by representing plaintiff in underlying personal injury action against Scaffold, obtaining settlement of that action, and then, pursuant to indemnification provision, assuming…

Federal Circuit Court Opinion of Related Interest

Lawson v. Grubhub, Inc., Lexis Advance

App-Based Drivers—Application of “ABC” Test—Proposition 22—U.S. Court of Appeals, Ninth Circuit, affirming district court’s denial of class certification, vacated judgment in favor of defendant Grubhub, Inc., in suit filed by plaintiff food delivery driver alleging he was misclassified as independent contractor and claiming violations of California Labor Code’s minimum wage, overtime, and expense reimbursement laws, when Court of Appeals found that “ABC” test...

Federal District Court Opinion of Related Interest

Guynn-Neupane v. Magna Legal Services, LLC, Lexis Advance

Worker Classification—Mock Jurors—Data Aggregator Exemption to “ABC” Test—Application of Borello—District Court for Northern District of California granted summary judgment in favor of defendants Magna Legal Services, LLC (Magna) and Wilkins Research Services, LLC (Wilkins) in action brought by plaintiff (who was recruited by Wilkins to participate as mock juror in one-day research focus group conducted by Magna) alleging violation of California’s wage-and-hour laws, and held that plaintiff was…

Digests of WCAB Decisions Denied Judicial Review

Berkshire Hathaway Homestate Companies v. W.C.A.B. (Mota Perez, Roman), Lexis Advance

Temporary Disability—Modified Duties—Unavailability of Work Due to COVID-19—WCAB, denying reconsideration, affirmed WCJ’s finding that defendant was liable for period of temporary total disability incurred by applicant after defendant’s business shut down due to COVID-19 and modified duties applicant had been working following 10/18/2018 back injury became unavailable, when WCAB reasoned that…

Chavez (Gina) v. W.C.A.B., Lexis Advance

Statute of Limitations—Tolling—Employer-Furnished Medical Treatment —WCAB affirmed WCJ’s order dismissing applicant’s claim for 12/19/ 2017 hand injury for failure to timely file claim under Labor Code § 5405, when applicant filed claim more than one year from date of injury, and although applicant asserted her claim was timely filed…

Coalinga-Huron School District v. W.C.A.B. (McGinnis, Barbara), Lexis Advance

Permanent Disability—Rating and Apportionment—Combining Multiple Disabilities—WCAB affirmed WCJ’s determination that applicant who suffered industrial injury to multiple body parts while employed as teacher on 3/29/2011 and over period ending on 12/12/2011 was entitled to joint award of 100 percent permanent disability for her injuries, when WCAB found that (1) AMA Guides rating...

Platinum Copy Services v. W.C.A.B. (Weisman, Steven), Lexis Advance

Petitions for Reconsideration—Dismissal of Defective Petition—WCAB dismissed lien claimant’s Petition for Reconsideration based on procedural deficiencies, despite its finding that WCJ’s 1/12/2021 Order Dismissing Lien, from which lien claimant sought relief, was defective because WCJ improperly designated defendant to serve all parties with Order, in violation of 8 Cal. Code Reg. § 10628.

Russell (Jeffrey) v. W.C.A.B., Lexis Advance

Permanent Disability—Successive Injury to Same Body Region—Lifetime Cap on Award—WCAB affirmed WCJ’s award of 66 percent permanent disability for applicant battalion chief’s cumulative injury in form of colon cancer over period 6/16/80 through 2/19/2019, after 34 percent apportionment to prior award per Labor Code § 4664(c)(1), when WCAB found that defendant...

Other WCAB Decisions Denied Judicial Review

City of Pasadena v. W.C.A.B. (Tucker, Percy), Lexis Advance

Statute of Limitations—Cumulative Injuries—WCAB, amending WCJ’s decision, held that applicant’s 2019 claim for industrial injury to his hips, back, neck, knees, and ankles during his employment as police officer from 9/20/82 to 4/15/2012 was not barred by statute of limitations in Labor Code § 5405, when defendant did not show…

Connolly (Patrick) v. W.C.A.B., Lexis Advance

Petitions for Removal—Discovery Closure—WCAB denied applicant’s Petition for Removal challenging WCJ’s order continuing 1/27/2021 mandatory settlement conference to 3/17/2021 and allowing further discovery, when WCAB found that closing discovery would lead to incomplete discovery and ultimately to lack of substantial evidence, and applicant...