Workers' Compensation

California Workers' Comp Case Roundup (10/3/2014)

CALIFORNIA COMPENSATION CASES

Vol. 79 No. 9 September 2014

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

© Copyright 2014 LexisNexis. All rights reserved.

LexisNexis Online Subscribers: You can link to your account on Lexis.com or Lexis Advance to read the complete headnotes and court decisions, en banc decisions, and writ denied summaries.

Supreme Court Case Not Originating With Appeals Board

Patterson v. Domino’s Pizza, LLC, lexis.com, Lexis Advance

Franchisors—Vicarious Liability—Sexual Harassment—California Supreme Court, reversing Court of Appeal judgment that had overturned trial court’s grant of summary judgment in franchisor’s favor, held that no reasonable inference could be drawn that franchisor retained or assumed traditional right of general control that “employer” or “principal” has over factors such as hiring, direction, supervision, discipline, discharge, and relevant day-to-day aspects of workplace behavior of franchisee’s employees, and that, therefore, there was no basis on which to find triable issue of fact that employment or agency relationship existed between franchisor and franchisee and its employees in order to support plaintiff’s claims against franchisor on vicarious liability grounds, when California Supreme Court found that…

Appellate Court Cases Not Originating With Appeals Board

Sinclair (Jeff) v. Praxair, Inc., lexis.com, Lexis Advance

Civil Actions Against Employers—Exclusive Remedy Rule—Fraudulent Concealment Exception—Court of Appeal affirmed trial court’s grant of summary judgment in employer’s favor and trial court’s holdings that there was no triable issue of material fact and that tort claim of plaintiff/applicant and his wife did not fall within fraudulent concealment exception to rule that workers’ compensation was plaintiff’s exclusive remedy against his employer for results of plaintiff’s industrial injury, when Court of Appeal found that…

Yau v. Santa Margarita Ford, Inc., lexis.com, Lexis Advance

Employment Relationships—Wrongful Termination—Court of Appeal, reversing trial court’s dismissal of plaintiff’s cause of action against former employer, held that plaintiff adequately pleaded his cause of action for wrongful termination in violation of public policy, when Court of Appeal found that…

Exclusive Remedy Doctrine—Intentional Infliction of Emotional Distress—Court of Appeal, affirming trial court’s dismissal of plaintiff’s cause of action against coworkers and supervisors for intentional infliction of emotional distress, held that cause of action was barred by exclusive remedy rule of workers’ compensation law, when Court of Appeal, following Mikosy v. Regents of University of California (2008) 44 Cal. 4th 876, 188 P.3d 629, 80 Cal. Rptr. 3d 690, in which California Supreme Court, emphasizing that…

Federal Circuit Court Opinion of Related Interest

Alexander v. FedEx Ground Package System, Inc., lexis.com, Lexis Advance

Employment Relationships—Employees—Independent Contractors—Panel of U.S. Court of Appeals, Ninth Circuit, reversing trial court’s summary judgment in defendant’s favor, held that plaintiff FedEx drivers were employees, not independent contractors, as matter of law under California’s right-to-control test, as set forth in S.G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal. 3d 341, 769 P.2d 399, 256 Cal. Rptr. 543, 54 Cal. Comp. Cases 80, and remanded to…

Appeals Board Significant Panel Decision

Torres (Christopher) v. Contra Costa Schools Insurance Group, lexis.com, Lexis Advance

Pleadings—Verification—WCAB, in significant panel decision rescinding WCJ’s order dismissing applicant’s independent medical review appeal for lack of verification, held, although WCJ correctly concluded that applicant’s appeal was subject to dismissal for failure to comply with verification requirements of Labor Code § 4610.6(h) and 8 Cal. Code Reg. § 10450(e), and although applicant did not seek to…

Digests of WCAB Decisions Denied Judicial Review

Editorial Board members Melissa C. Brown, Hon. Joel K. Harter, James T.  Ponzio, and Hon. Ralph Zamudio recommended the following writ denied cases for summarization in this issue.

Aresco (John) v. W.C.A.B., lexis.com, Lexis Advance

Psychiatric Injuries—Six-Month Employment Requirement—Sudden and Extraordinary Employment Conditions—WCAB, reversing WCJ, held that applicant maintenance worker’s claim for psychiatric injury, allegedly incurred as compensable consequence of industrial bacterial infection of unclear origin that manifested as Guillain-Barre Syndrome, was barred by six-month employment requirement in Labor Code § 3208.3(d), when WCAB found that…

California Dept. of Consumer Affairs v. W.C.A.B. (Devroom, J. Michael), lexis.com, Lexis Advance

Death Benefits—Public Employees—Safety-Classified Employees—WCAB, affirming WCJ, held that totally dependent widow of decedent who suffered industrially-related fatal heart attack while working as investigator for State of California, Department of Consumer Affairs, Bureau of Automotive Repair, was entitled to death benefits in amount of $250,000 pursuant to Labor Code § 4702, when WCAB found that…

County of San Bernardino v. W.C.A.B. (Foroughi, Farzaneh), lexis.com, Lexis Advance

Discovery—Depositions—Protective Orders—WCAB, granting applicant/graphic designer’s petition for removal, rescinded WCJ’s order compelling applicant to appear for deposition and denying applicant’s petition for protective order filed pursuant to Code of Civil Procedure § 2025.420(b) , in which applicant sought to bar appearance of her supervisor as employer representative at her deposition, when WCAB found…

Fetner (James) v. W.C.A.B., lexis.com, Lexis Advance

Discovery—Depositions—Vocational Expert Interviews—WAB, affirming WCJ, held that defendant was entitled to have its vocational expert interview applicant regarding his claim for cumulative industrial injury to his circulatory system, respiratory system, eye, ankles, and in form of hernia from 1/1/82 to 10/31/2007, without using procedure in Labor Code § 5710, when WCAB found that…

Hanover Insurance Group v. W.C.A.B. (Mattas, Byron), lexis.com, Lexis Advance

Injury AOE/COE—Initial Physical Aggressor Defense—WCAB, affirming WCJ in split panel decision, held that applicant’s claim for injuries to his head, neck, low back, and left shoulder, which occurred during physical altercation with customer, was not barred by “initial physical aggressor” defense in Labor Code § 3600(a)(7), when WCAB accorded great weight to WCJ’s factual findings and credibility determinations, and WCJ determined that…

Sealy, Inc., v. W.C.A.B. (Chan, Yuet-Ho), lexis.com, Lexis Advance

Attorney’s Fees—Declarations of Readiness Filed by Employer—WCAB, affirming WCJ, held that defendant was liable for applicant’s attorney’s fees under Labor Code § 4064(c), when WCAB found that…

Tower Select Insurance Co. v. W.C.A.B. (Chavarria, Javier), lexis.com, Lexis Advance

Petition for Writ of Mandate/Prohibition—Stay of WCAB Proceedings—Rescission of Insurance Policy—Court of Appeal denied Tower Insurance Company’s petition for writ of mandate/prohibition and request for stay of WCAB proceedings, including trial on issues of injury AOE/COE and applicant's entitlement to benefits as well as issues of insurance coverage subject to…

Other WCAB Decisions Denied Judicial Review

Brown (Terry D.) v. W.C.A.B., lexis.com, Lexis Advance

Petition for Reconsideration—Dismissal—WCAB dismissed pro per applicant’s petition for reconsideration of WCAB’s 7/30/2009 order because petition was not filed within time requirements of Labor Code § 5900(a), Labor Code § 5903, Code of Civil Procedure § 1013, and 8 Cal. Code Reg. § 10507), and because petitioner made arguments that…

McGready (Edward) v. W.C.A.B., lexis.com, Lexis Advance

Permanent Disability—Apportionment—WCAB rescinded findings and award for applicant firefighter’s six industrial injury claims to back and heart, when WCJ awarded permanent disability for back and heart conditions for two of injury claims, based on opinions from orthopedic agreed medical evaluator and cardiac agreed medical evaluator, that orthopedic agreed medical evaluator gave opinions on rating permanent disability and apportionment for back but did not…

Moore (Clennon) v. W.C.A.B., lexis.com, Lexis Advance

Mileage to Medical Treatment—Penalties and Interest—WCAB held that defendant did not owe applicant medical mileage or penalties and interest for failure to pay medical mileage, when WCAB found that…

Ouyang (Lin) v. W.C.A.B., lexis.com, Lexis Advance

Injury AOE/COE—WCAB held that applicant did not sustain cumulative trauma injury to psyche AOE/COE from 2/1/2010 through 11/13/2010, when WCAB found that applicant claimed injury from events of employment, including fear because of employer’s alleged fraudulent conduct related to immigration issues and stress from employer’s alleged accounting misrepresentations, that applicant did not…

Perry (Michael) v. W.C.A.B., lexis.com, Lexis Advance

Petition for Writ of Review—Dismissal as Untimely Filed—Court of Appeal dismissed petition for writ of review not filed within time requirements of Labor Code § 5950 (applicant/petitioner was…

Rupert (William) v. W.C.A.B., lexis.com, Lexis Advance

Petitions for Reconsideration—Final Orders—Successive Petitions—WCAB dismissed petition for reconsideration of WCAB’s earlier order denying petition for removal because (1) order denying petition for removal was not final order subject to reconsideration under Labor Code §§ 5900(a) and 5901-5903, and (2) current petition for reconsideration was improper successive petition and…

Get the edge on recent case law developments

Designed especially for Lexis.com and Lexis Advance subscribers, this monthly reporter saves you research time so that you can quickly find recent panel decisions on key topics.

Purchase here (Format: PDF)

_______________________________________________

ATTENTION: RISK MANAGERS, INSURANCE & HR PROFESSIONALS, ATTORNEYS, POLICY MAKERS

Special Discount Rate of $79.50 + tax & shipping for a limited time only

New! Workers' Compensation Emerging Issues Analysis, 2014 Edition (400 pp). Read flyer & Order today. Books expected to ship 10/24/2014.

State by State Workers' Comp Legislation for 2014. Expert analysis and commentary. Larson Spotlight on Interesting Cases.

This year's top issue: The Temporary Workforce and Impact on Workers' Compensation