California: Top Noteworthy Panel Decisions (January through June 2020) (Part Two)

LexisNexis has selected some of the top “noteworthy” panel decisions issued by the California Workers’ Compensation Appeals Board during the period January through June 2020. The list highlights two split panel opinions addressing whether Labor Code § 4663 apportionment is permitted in claims involving presumptively compensable permanent disability. The list also includes a rare case in which the UEBTF was permitted to join the employer’s alleged shareholders as party defendants after establishing an unrebutted negative inference of “substantial shareholder” status pursuant to 8 Cal. Code Reg. § 15721.

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, as these decisions are subject to appeal. 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 However, WCAB panel decisions are not binding precedent, as are en banc decisions on all other Appeals Board panels and workers’ compensation judges.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.

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Lexis Advance online subscribers can link to the panel decisions cited below.

PENALTIES

■ Donna Knight (Deceased), Applicant v. Marisan Group, Sentinel Insurance Company, The Hartford, Defendants, 2020 Cal. Wrk. Comp. P.D. LEXIS 48

Penalties—Self-Imposed Penalty—Timeframe for Payment of Benefits—WCAB, in split panel opinion, affirmed WCJ’s finding that defendant was entitled to credit against its liability for death benefits, and was not liable for Labor Code § 4650(d) self-imposed penalty on award of death benefits, when WCAB panel majority concluded that defendant timely paid death benefits within 14 days of date award became final as described in Leinon v. Fishermen’s Grotto (2004) 69 Cal. Comp. Cases 995 (Appeals Board en banc decision), which holds that order, decision or award becomes final for purposes of Labor Code § 4650(d) when defendant has exhausted all of its appellate rights or has not pursued them, that defendant did not “exhaust its appellate rights” as contemplated in Leinon until time for seeking appellate review expired 45 days after denial of defendant’s petition for reconsideration of death benefits award, and defendant had 14 days after expiration of 45-day timeframe to pay death benefits, that defendant paid death benefits before time to seek appellate review expired, so never became liable for Labor Code § 4650(d) penalty, that language in Leinon indicating that there is no “grace period” for delay in payment if defendant does not file petition for writ of review from adverse decision after reconsideration was non-binding dicta in context of Labor Code § 4650(d) liability, and that because defendant in this case owed no self-imposed penalty, WCJ did not err in re-characterizing defendant’s erroneous payment of self-imposed penalty as payment of interest on death benefits award, which defendant had not previously paid, and awarding credit for difference between self-imposed penalty paid in error and unpaid interest; Commissioner Sweeney, dissenting, disagreed with panel majority’s interpretation of Leinon, and found that WCAB in that case did not intend to provide 45-day “grace period” after reconsideration was denied for defendant to delay payment of benefits, that when defendant does not seek reconsideration of WCJ’s decision or appellate review of WCAB’s decision after reconsideration, it must pay benefits within 14 days of that decision, that because defendant here did not seek appellate review of WCAB’s 10/13/2017 order denying reconsideration, defendant was required to pay benefits within 14 days of that order, plus 10 days for mailing, which expired on 11/6/2017, that since defendant did not pay until 11/8/2017, defendant was liable for self-imposed penalty under Labor Code § 4650(d) and correctly paid such penalty, that WCJ erred in allowing defendant credit for its payment of Labor Code § 4650(d) penalty against its obligation to pay interest, and that based on defendant’s failure to pay interest on death benefits, defendant was liable for Labor Code § 5814 penalty in addition to attorney’s fees under Labor Code § 5814.5. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 10.40[1], 32.04[2]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 6, § 6.06[2], Ch. 7, § 7.50[1], Ch. 11, § 11.11[1].]

PERMANENT DISABILITY

■ Maria Fraire, Applicant v. California Department of Corrections and Rehabilitation, Legally Uninsured, State Compensation Insurance Fund (Claims Administrator), Defendants, 2020 Cal. Wrk. Comp. P.D. LEXIS 60

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 that Labor Code § 4662(a)’s conclusive presumption that certain specified disabilities, including loss of sight in both eyes, are “total in character” does not establish that such disabilities entirely resulted from industrial causation, that because language in Labor Code § 4662(a) is silent regarding whether conclusively presumed permanent total disability is subject to apportionment, provision must be interpreted in context of entire statutory scheme and with legislative intent in mind, that Labor Code §§ 4663 and 4664(a) require that apportionment of permanent disability be based on causation and, by their plain language, do not exempt permanent disability that is conclusively presumed to be total pursuant to Labor Code § 4662(a), that there is no indication that Legislature intended to exclude conclusively presumed permanent total disability from these apportionment provisions, and no reasonable rationale for distinguishing between permanent disabilities that are conclusively presumed to be “total in character” and those that are factually determined to have caused 100 percent permanent disability pursuant to Labor Code §§ 4660 and 4662(b), and that fact that certain specified permanent disabilities are conclusively presumed to be “total in character” does not, in itself, preclude apportionment of these disabilities; Chair Zalewski, dissenting, concluded that permanent disabilities conclusively presumed to be “total in character” as delineated in Labor Code § 4662(a) are not subject to apportionment under Labor Code §§ 4663 and 4664(a), when Chair Zalewski, citing multiple panel decisions, opined that Labor Code § 4662(a)’s declaration that enumerated permanent disabilities “shall be conclusively presumed to be total in character” reflects substantive policy decision by Legislature that these disabilities cannot be apportioned. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 8.02[3], 8.05[1]-[3]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 7, § 7.40[1]; The Lawyer’s Guide to the AMA Guides and California Workers’ Compensation, Chs. 6, 8.]

■ Stephen Hom, Applicant v. City and County of San Francisco, Defendant, 2020 Cal. Wrk. Comp. P.D. LEXIS 124

Permanent Disability—Apportionment—Prior Awards—WCAB, granting reconsideration on its own motion, rescinded its prior decision [see Hom v. City and County of San Francisco, 2018 Cal. Wrk. Comp. P.D. LEXIS 431 (Appeals Board noteworthy panel decision)] affirming WCJ’s award of 30 percent permanent disability, and issued new decision awarding applicant police officer 10 percent permanent disability for 11/16/2013 lumbar spine injury, after apportionment of 20 percent pursuant to Labor Code § 4664 for prior Stipulated Award of permanent disability in connection with 2012 lumbar spine injury, when WCAB reasoned that under AMA Guides, impairments to same body part utilizing same edition of AMA Guides may overlap, that “conversion” is only necessary if different editions of AMA Guides were used to find impairment, that in this case impairments for both of applicant’s injuries were calculated using Fifth Edition of AMA Guides, that defendant proved overlap between applicant’s prior and current disabilities since AMA Guides did not preclude finding of overlap even though different rating methodologies were used (i.e., DRE method for prior injury and ROM method for subsequent injury), and that finding of overlap was especially merited in this case, where AMA Guides direct different rating method for subsequent injury by virtue of it being recurrent injury. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 8.05[1]-[3], 8.06[5][d], 8.07[2][a]-[c]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 7, § 7.42[1]-[3]; The Lawyer’s Guide to the AMA Guides and California Workers’ Compensation, Chs. 6, 8.]

■ Antonio Hernandez, Applicant v. TS Staffing Services, California Insurance Guarantee Association for Lumbermen’s Underwriting Alliance in Liquidation, and Sedgwick Claims Management Services (Claims Administrator), Defendants, 2020 Cal. Wrk. Comp. P.D. LEXIS 11

Permanent Disability—Apportionment—Prior Awards—Preexisting Nonindustrial Conditions—WCAB affirmed WCJ’s finding that applicant loader/unloader’s 6/21/2013 industrial injuries to his cervical spine, lumbar spine and right shoulder resulted in 24 percent compensable permanent disability after apportionment of 60 percent of cervical spine disability and 80 percent of lumbar spine disability pursuant to Labor Code § 4663, and WCAB concurred with WCJ’s determination that apportionment of permanent disability pursuant to Labor Code § 4664(b) based on prior award of 33 percent permanent disability for 7/1/2008 industrial injury to applicant’s cervical spine, lumbar spine and right knee was not justified under Kopping v. W.C.A.B. (2006) 142 Cal. App. 4th 1099, 48 Cal. Rptr. 3d 618, 71 Cal. Comp. Cases 1229, when WCAB reasoned that apportionment of permanent disability to prior award is mandated only to extent there is overlap between employee’s current permanent disability and previously awarded disability, that overlap is not established merely by showing that subsequent injury involved same body parts as prior injury, but instead requires consideration of factors of disability resulting from two injuries, that as with any apportionment determination, apportionment under Labor Code § 4664(b) must be predicated on substantial evidence, and that in this case orthopedic agreed medical examiner’s Labor Code § 4664(b) apportionment determination was speculative, not factually supported, and did not constitute substantial evidence to support Labor Code § 4664(b) apportionment, but was sufficient to support apportionment of applicant’s spine disability to pre-existing factors and to prior injury under Labor Code § 4663 based on causation. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 8.05[1]-[3], 8.06[4], [5][d], 8.07[1], [2]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 7, §§ 7.40-7.42; The Lawyer’s Guide to the AMA Guides and California Workers’ Compensation, Chs. 6, 8.]

■ Will Fuentes, Applicant v. City and County of San Francisco, PSI, Intercare Holdings Insurance Services (Claims Administrator), Defendants, 2020 Cal. Wrk. Comp. P.D. LEXIS 72

Permanent Disability—Apportionment—Conclusive Presumption of Total Disability—WCAB, in split panel opinion, affirmed WCJ’s finding that applicant who sustained cumulative injury to his low back and right knee while employed as railway transit operator through 1/31/2014, suffered 34 percent permanent disability, after apportioning 26 percent permanent disability award applicant received for 2005 low back injury pursuant to Labor Code § 4664(b), and WCAB panel majority found that defendant did not meet burden of proving apportionment of right knee disability to 2005 injury pursuant to Labor Code § 4663, where qualified medical evaluator’s opinion that 70 percent of applicant’s right knee disability was caused by 2005 industrial injury did not constitute substantial evidence, as it erroneously equated causation of injury with causation of disability, and improperly conflated these two separate and distinct concepts, and because WCAB panel majority concluded that defendant did not meet its burden of proving apportionment, panel majority did not address whether or not both Labor Code §§ 4663 and 4664(b) apportionment can be applied to same case; Commissioner Razo, dissenting in part from panel majority’s opinion, affirmatively concluded that Labor Code § 4663 apportionment can be applied to prior industrial injury for which permanent disability was awarded even if prior permanent disability is conclusively presumed to still exist under Labor Code § 4664(b), and, additionally, Commissioner Razo concluded that panel qualified medical evaluator’s opinions in this case constituted substantial evidence that 70 percent of applicant’s right knee disability was caused by his 2005 low back injury, and noted that causation of injury and causation of disability can be same. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 8.02[3], 8.05[1]-[3]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 7, § 7.40[1]; The Lawyer’s Guide to the AMA Guides and California Workers’ Compensation, Chs. 6, 8.]

■ Suguey Moreno, Applicant v. Kern County Superintendent of Schools, PSI, administered by Self-Insured Schools of California, Defendants, 2020 Cal. Wrk. Comp. P.D. LEXIS 98

Permanent Disability—Apportionment—Preexisting Nonindustrial Conditions—WCAB affirmed WCJ’s findings that applicant school site supervisor’s 3/13/2012 industrial injuries to her psyche, trunk, lower extremities, urinary/excretory system, gait, neck, and nervous system (spinal and peripheral), resulted in 100 percent permanent disability, and that defendant did not meet burden of proving apportionment of permanent total disability to nonindustrial condition pursuant to Labor Code § 4663, when WCAB found that WCJ properly rejected apportionment opinion of qualified medical evaluator in neurology, which defendant relied upon in seeking apportionment, indicating that 40 percent of applicant’s disability was due to congenital Chiari Malformation and 60 percent was industrially-related, where opinion did not constitute substantial evidence as described in Escobedo v. Marshalls (2005) 70 Cal. Comp. Cases 604 (Appeals Board en banc opinion), because qualified medical evaluator failed to explain how he determined apportionment percentages between industrial and nonindustrial disability, changed his opinion regarding apportionment with little explanation, and while qualified medical evaluator’s initial report provided understanding as to why applicant’s permanent disability may have increased as result of preexisting congenital condition, there was nothing in any of his reporting that supported his actual apportionment determination. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 8.05[1]-[3], 8.06[4], 8.07[1]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 7, §§ 7.40, 7.41; The Lawyer’s Guide to the AMA Guides and California Workers’ Compensation, Chs. 6, 8.]

Permanent Disability—Rating—Rebuttal of Scheduled Rating—Permanent Total Disability—WCAB affirmed WCJ’s finding that applicant school site supervisor’s 3/13/2012 industrial injuries to her psyche, trunk, lower extremities, urinary/excretory system, gait, neck, and nervous system (spinal and peripheral), resulted in 100 percent permanent disability without basis for apportionment, when WCAB found that applicant established through her vocational expert evidence that she was unable to return to labor market, as medical evidence showed she lacked residual functional capacity to perform any work, and that she was not amenable to vocational rehabilitation pursuant to Ogilvie v. W.C.A.B. (2011) 197 Cal. App. 4th 1262, 129 Cal. Rptr. 3d 704, 76 Cal. Comp. Cases 624, LeBoeuf v. W.C.A.B. (1983) 34 Cal. 3d 234, 193 Cal. Rptr. 547, 666 P.2d 989, 48 Cal. Comp. Cases 587, and Contra Costa County v. W.C.A.B. (Dahl) (2015) 240 Cal. App. 4th 746, 193 Cal Rptr. 3d 7, 80 Cal. Comp. Cases 1119. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 8.02[3], [4], 32.01[3][a][ii], 32.03A; Rassp & Herlick, California Workers’ Compensation Law, Ch. 7, §§ 7.05[3][d], 7.12[2][a], [d][iii], 7.42[2]; The Lawyer’s Guide to the AMA Guides and California Workers’ Compensation, Ch. 7.]

■ James P. Martinez, Applicant v. State of California, Department of Corrections, Legally Uninsured, State Compensation Insurance Fund, Defendants, 2020 Cal. Wrk. Comp. P.D. LEXIS 51

Permanent Disability—Rating—Combining Multiple Disabilities—WCAB, amending WCJ’s decision, held that applicant suffered 72 percent permanent disability as result of admitted cumulative trauma to his neck, low back, knees, shoulders, and in form of hypertension while employed as correctional officer, and found that there was no substantial medical evidence to support calculation of permanent disability by adding applicant’s multiple disabilities, as WCJ did, rather than using Combined Values Chart (CVC) to rate permanent disability, when WCAB reasoned that although medical evaluators are not required to use word “synergistic” to advocate for use of additive rating method over CVC, there must be substantial evidence to support physician’s opinion that adding impairments will result in more accurate rating of applicant’s level of disability than rating resulting from use of CVC, that qualified medical evaluator in this case did not offer adequate rationale for adding applicant’s hypertension and orthopedic disabilities beyond fact that these disabilities did not overlap, and that, without more, this did not constitute substantial medical evidence to establish primacy of additive method over use of CVC, otherwise CVC would become irrelevant in any case involving injury to multiple body parts. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 8.02[1]-[4], 32.03A[1]-[4]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 7, §§ 7.11, 7.12; The Lawyer’s Guide to the AMA Guides and California Workers’ Compensation, Chs. 2, 3, 4, 7.]

■ Horace Williams, Applicant v. County of Alameda, adjusted by York Risk Services, Defendants, 2020 Cal. Wrk. Comp. P.D. LEXIS 114 [Petition for writ of review filed 4/16/2020, sub nom. County of Alameda v. W.C.A.B. (Williams), 1^st Appellate Dist., Div.3, Civ. No. A160004]

Permanent Disability—Rating—Rebuttal of Scheduled Rating—WCAB affirmed WCJ’s finding that applicant suffered 100 percent permanent disability as result of 8/4/2015 industrial injury to his head and brain while employed as painter, pursuant to LeBoeuf v. W.C.A.B. (1983) 34 Cal. 3d 234, 193 Cal. Rptr. 547, 666 P.2d 989, 48 Cal. Comp. Cases 587, when WCAB found that, contrary to defendant’s assertion, Labor Code § 4660.1 does not preclude consideration of vocational evidence for purpose of rebutting scheduled permanent disability rating to establish permanent total disability based on inability to benefit from vocational rehabilitation, and WCAB concluded that reports of applicant’s vocational expert indicating that applicant could not return to work and was not amenable to vocational rehabilitation constituted substantial evidence to rebut scheduled rating. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 8.02[3], [4], 32.02[2], 32.03A; Rassp & Herlick, California Workers’ Compensation Law, Ch. 7, §§ 7.11, 7.12; The Lawyer’s Guide to the AMA Guides and California Workers’ Compensation, Ch. 7.]

■ Richard Gonzales, Applicant v. Cal Fire, legally uninsured by and through State Compensation Insurance Fund, State Employees Adjusting Agency, Defendants, 2020 Cal. Wrk. Comp. P.D. LEXIS 15 [In May 2020 CCC, see Gonzales v. Cal Fire (2020) 85 Cal. Comp. Cases 412 (Appeals Board noteworthy panel decision)]

Permanent Disability—Rating—Combining Multiple Disabilities—WCAB rescinded WCJ’s findings that applicant’s industrial injuries to his ears (hearing), right wrist, left elbow, hips, knees, psyche, lower back, and in form of headaches during period 6/1/83 to 8/21/2015 resulted in 77 percent permanent disability and that medical evidence justified combining rather than adding impairments, when WCAB reasoned that WCJ’s determination of permanent disability was based upon need for “synergistic effect” between impairments as absolute precondition to adding rather than combining impairments, but, as discussed in De La Cerda v. Martin Selko & Co. (2017) 83 Cal. Comp. Cases 567 (Appeals Board noteworthy panel decision), impairments may be added if substantial medical evidence supports physician’s opinion that adding them will result in more accurate rating of injured employee’s overall permanent disability, that AMA Guides themselves explain that in appropriate cases, whole person impairments may be added or multiplier may be used, as opposed to combining impairments, that although psychiatric qualified medical evaluator’s deposition testimony in this case established that there was no overlap between physical and mental impairments, his agreement under questioning by applicant’s attorney that “this case reach[es] a more fair result with adding those disabilities,” was not equivalent of medically-supported opinion that adding disabilities will result in more accurate rating, as required by case law, and that since qualified medical evaluator opined that there was no overlap between physical and mental impairment, and this suggested that adding impairments may result in more accurate rating, medical record must be developed with supplemental report or additional testimony from qualified medical evaluator. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 8.02, 32.03A; Rassp & Herlick, California Workers’ Compensation Law, Ch. 7, §§ 7.11, 7.12; The Lawyer’s Guide to the AMA Guides and California Workers’ Compensation, Chs. 2, 3, 4, 5, 7.]

PETITIONS FOR RECONSIDERATION

■ Hank Cunnington, Applicant v. Viacom Business Network, Inc., A California Corporation, Quazi Nasima, Mahmuda Begum and Plabon I. Hossain, Individuals and Substantial Shareholders of Viacom Business Network, Inc., Defendants, 2020 Cal. Wrk. Comp. P.D. LEXIS 151

Petitions for Reconsideration—Newly Discovered Evidence—WCAB denied defendants’ petition to augment evidentiary record to include 5/9/2016 rebuttal letter sent by defendants’ attorney to Uninsured Employers Benefits Trust Fund (UEBTF) Special Investigator, Surender Tapia, in response to Mr. Tapia’s 5/4/2016 “negative inference” letters regarding defendants’ “substantial shareholder” status, when defendants’ attorney declared that he inadvertently failed to introduce letter into evidence at trial because he forgot he had sent letter, did not review his “paper file” prior to trial, and only found letter in “paper file” while preparing Petition for Reconsideration, and, viewing defendants’ petition as request for reconsideration based on newly discovered evidence, WCAB concluded that (1) defendants’ did not provide valid explanation regarding why letter could not “reasonably have been discovered or produced before submission of case” and, therefore, did not meet requirements of 8 Cal. Code Reg. § 10856 and failed to state grounds to grant Petition for Reconsideration pursuant to Labor Code § 5903(d) as to “substantial shareholder” status of defendant Quazi Nasima, (2) defendants were not entitled to relief pursuant to Code of Civil Procedure § 473 based on attorney’s mistake and/or inadvertence, where WCAB reasoned that while attorney’s failure to disclose and produce letter sent to UEBTF was due to mistake and neglect, attorney’s explanation for his failure did not support finding of “excusable neglect,” and (3) no good cause existed under circumstances presented in this case for WCAB to ignore discovery cut-off and use its discretionary authority to further develop record and allow defendants “do over” after their attorney neglected to introduce material evidence in defense of his client. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 28.22[2]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 19, § 19.05[3].]

PRESUMPTION OF COMPENSABILITY

■ Robert Blais, Jr., Applicant v. State of California, PSI, Defendant, 2020 Cal. Wrk. Comp. P.D. LEXIS 119

Presumption of Compensability—Cancer—Firefighters—Rebuttal—WCAB affirmed WCJ’s finding that applicant did not sustain industrial injury in form of breast cancer while employed by defendant as fire captain during period ending on 9/30/2016, when WCAB found that although applicant met his initial burden to raise Labor Code § 3212.1 cancer presumption, reporting and deposition testimony of panel qualified medical evaluator was sufficient to rebut cancer presumption, when qualified medical evaluator opined that it was reasonably medically probable that applicant’s current cancer, diagnosed in 2016, was recurrence of applicant’s prior breast cancer, and that there was no reasonable link between applicant’s cancer and his exposure to carcinogens during his employment with defendant, which began in 2009, based on (1) latency period of approximately 10 to 20 years between exposure to carcinogens and manifestation of breast cancer, (2) required period between applicant’s initial tumor and metastasis, (3) fact that lymph nodes removed during 2008 mastectomy were positive for breast cancer, making it probable that applicant’s current cancer was recurrence of prior cancer that had metastasized rather than new cancer, (4) fact that no new tumor in other breast was ever discovered after first breast was removed, and (5) applicant’s presentation was consistent with usual clinical presentation of recurrent metastatic breast cancer. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 4.138[4][b]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 10, § 10.07[5][c].]

SERIOUS AND WILLFUL MISCONDUCT

■ Patrick Sauceda, Applicant v. Fresno Unified School District, PSI, Defendant, 2020 Cal. Wrk. Comp. P.D. LEXIS 137

Serious and Willful Misconduct of Employer—WCAB, affirming WCJ’s decision in split panel opinion, held that applicant, while employed by school district as special education teacher on 9/30/2008, sustained industrial injury to his head, left eye, and left knee when student assaulted him, and that, in failing to warn applicant of student’s violent tendencies, employer engaged in serious and willful misconduct under Labor Code § 4553, and WCAB, in finding serious and willful misconduct by employer, reasoned that California school districts have affirmative duty under Education Code to inform teachers of student’s prior violent acts, and knowing failure to do so constitutes misdemeanor offense, and that employer in this case knew student who assaulted applicant created dangerous condition given student’s prior history of physically attacking certain teachers, knew applicant was personally in danger of being attacked because student had fixated on him, and knew that probable consequences of failure to inform applicant of dangerous condition would involve serious injury, yet failed to take corrective action even after applicant presented employer with evidence from student’s file showing that student was dangerous; Commissioner Razo, dissenting, would not find serious and willful misconduct given balance between employer’s duty to warn and student’s right to privacy. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 10.01; Rassp & Herlick, California Workers’ Compensation Law, Ch. 11, § 11.14.]

UNINSURED EMPLOYERS BENEFITS TRUST FUND

■ Hank Cunnington, Applicant v. Viacom Business Network, Inc., A California Corporation, Quazi Nasima, Mahmuda Begum and Plabon I. Hossain, Individuals and Substantial Shareholders of Viacom Business Network, Inc., Defendants, 2020 Cal. Wrk. Comp. P.D. LEXIS 151

Uninsured Employers Benefits Trust Fund—Relief Against Substantial Shareholders—Inference of Substantial Shareholder Status—WCAB, affirming WCJ’s decision, held that defendants were “substantial shareholders” of uninsured employer Viacom Business Network, Inc. (Viacom) under Labor Code § 3717, where negative inference of “substantial shareholder” status was established pursuant to 8 Cal. Code Reg. § 15721, and defendants failed to meet their burden of proof to rebut inference as well as to establish that their joinder in applicant’s workers’ compensation case against Viacom was barred by statute of limitations or by laches, when WCAB concluded that (1) WCJ correctly inferred from defendants’ lack of response to request by Uninsured Employers Benefits Trust Fund (UEBTF) for shareholder documentation that documents requested established that defendants were “substantial shareholders,” and defendants failed to introduce any evidence at trial to prove that they did not own at least 15 percent of beneficial interest of Viacom, (2) UEBTF had statutory right of relief against “substantial shareholders” and their joinder was necessary for full adjudication of case, (3) because purpose of joining defendants was method of collections by UEBTF derivative of uninsured corporation and not independent cause of action, statute of limitations did not apply, and (4) equitable doctrine of laches did not apply because defendants did not establish that they suffered prejudice as result of being joined as parties. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 10.24[7]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 3, § 3.19[14].]

WORKERS’ COMPENSATION APPEALS BOARD PROCEDURE

■ Jack Hablian, Linda Esterly, Gene Baxter, Joseph Case, Omar Camacho, Applicants v. Zurich U.S., State Compensation Insurance Fund, Liberty Mutual Insurance Company, Kaiser Foundation Hospital, Defendants, 2020 Cal. Wrk. Comp. P.D. LEXIS 38 [Petition for writ of certiorari (deemed petition for writ of review) filed 3/3/2020, sub nom. Hablian v. W.C.A.B., 2^nd Appellate Dist., Div. 8, Civ. No. B304670]

WCAB Procedure—Class Actions—WCAB affirmed WCJ’s order denying applicants’ petition for class certification, when WCAB, citing Supreme Court’s opinion in Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal. 4th 1004, 273 P.3d 513, 139 Cal. Rptr. 3d 315, reasoned that class certification is appropriate if maintenance of class action would be advantageous to judicial process and to litigants, and found that in this case if class certification were granted, injured workers would risk duplicative and unnecessary proceedings, as those who had chosen not to litigate their cases at WCAB would suddenly be under its jurisdiction, and those who had already chosen to proceed before WCAB, even if represented by counsel, would be forced to participate in separate action, that applicants did not show that adjudication of their claims separately by use of class action mechanism would be advantageous to litigants, in keeping with legislative goal of allowing swift and unimpeded provision of defined benefits to injured workers, and that even if injured workers who were potentially owed extra payment could be identified on class-wide basis, burden on WCAB as judicial system of limited resources would be severe, as parties would have to individually litigate issue of actual monies owed. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 25.02; Rassp & Herlick, California Workers’ Compensation Law, Ch. 15, § 15.05[2], [3].]

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