Workers' Compensation

California Workers' Comp Case Roundup (2/12/2015)

CALIFORNIA COMPENSATION CASES

Vol. 80 No. 1 January 2015

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 Cases

Ogden Entertainment Services v. W.C.A.B. (Von Ritzhoff, Kristian), lexis.com, Lexis Advance

Due Process—Cross-Examination—Court of Appeal, annulling WCAB decision and remanding case, held that WCAB’s denial of defendant’s right to cross-examine applicant constituted denial of due process and was both beyond WCAB’s powers and rendered WCAB’s decision unreasonable, when Court of Appeal found that...

Schultz (Craig) v. W.C.A.B., lexis.com, Lexis Advance

Going and Coming Rule—Premises Line Rule—Court of Appeal, annulling WCAB decision, held that premises line rule, which provides that employee’s commute ends when employee enters employer’s premises, rendering going and coming rule inapplicable and making injuries that occur anywhere on premises compensable injuries AOE/COE, applies to employee injured in single-car traffic accident on U.S. Air Force base, when Court of Appeal found that...

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.

Booth (Keith) v. W.C.A.B., lexis.com, Lexis Advance

WCAB Jurisdiction—Minimum Contacts—Professional Athletes—WCAB, reversing WCJ, held that there was no California jurisdiction over applicant professional basketball player’s claim against employer Chicago Bulls, when WCAB found that under Federal Insurance Company v. W.C.A.B. (Johnson) (2013) 221 Cal. App. 4th 1116, 165 Cal. Rptr. 3d 288, 78 Cal. Comp. Cases 1257, California must have sufficient interest in applicant’s claim to apply its workers’ compensation law, since, otherwise, employer/carrier would be deprived of due process, that, although Johnson does not suggest rigid application of mathematical formula to determine jurisdiction based solely on number of games played in California, it does require that nature of applicant’s contact with California be sufficient to support state’s jurisdiction over his or her injury claim, that, contrary to WCJ’s determination in this case, effects of applicant’s participation in practices on three occasions when...

Contra Costa County v. W.C.A.B. (Brown, David), lexis.com, Lexis Advance

Evidence—Medical Evidence—WCAB’s Duty to Develop Record—WCAB ordered further development of medical record through appointment of regular physician pursuant to Labor Code § 5701 after WCJ issued findings and order in which she found that applicant did not meet burden of proving that he suffered compensable psychiatric injury because medical reports submitted by applicant were insufficient to prove that actual events of applicant’s employment predominantly caused his injury, and, additionally, that allegedly injurious actions taken by applicant’s supervisors were not...

Espinoza (Feliciano) v. W.C.A.B., lexis.com, Lexis Advance

Medical Treatment—Utilization Review—Independent Medical Review—WCAB rescinded WCJ’s finding that WCAB had jurisdiction to determine whether applicant was entitled to back surgery and that back surgery was not necessary, and held that WCAB did not have jurisdiction to review defendant’s 11/1/2013 utilization review denial of back surgery because, pursuant to Labor Code § 4610.5 (effective 7/1/2013), all utilization review disputes must be resolved through independent medical review unless it is established that utilization review is untimely or, as described in Dubon v. World Restoration, Inc.(2014) 79 Cal. Comp. Cases 313 (Appeals Board en banc opinion) (Dubon I), suffered from “material procedural defects,” and WCAB found that...

Horizon Personnel Services, Inc. v. W.C.A.B. (Robles, Jose), lexis.com, Lexis Advance

Injury AOE/COE—Burden of Proof—WCAB, in split panel decision, rescinded WCJ’s take-nothing order and held that applicant laborer/janitor suffered industrial injury to his right hand and wrist while working at Ventura Bakery, through defendant Horizon Personnel Services, when WCAB found that (1) applicant provided detailed testimony as to mechanism of injury, which was corroborated by medical evidence, and only witness, Mr. Zapin, presented by defendant, who testified regarding...

Petroleum Casualty Co. v. W.C.A.B. (Barrios, Raymond), lexis.com, Lexis Advance

Employment Relationships—General and Special Employers—WCAB rescinded holding of arbitrator and held that Mobil Corp. was applicant’s special employer on date of applicant’s industrial injury, when WCAB found that applicant injured his lungs, nervous system, and psyche while working as material coordinator for undisputed general employer Irwin Industries at Mobil’s refinery, that Irwin and Mobil had contract for Irwin to provide workers at...

Pound (Howard) v. W.C.A.B., lexis.com, Lexis Advance

Psychiatric Injuries—Six-Month Employment Rule—Sudden and Extraordinary Employment Conditions—WCAB, affirming WCJ in split panel decision, held that applicant car sales manager’s claim for psychiatric injury, allegedly incurred as compensable consequence of industrial injury to applicant’s cervical and lumbar spine and in form of irritable bowel syndrome, was barred by six-month employment requirement in Labor Code § 3208.3(d), when...

Permanent Disability—Apportionment—WCAB affirmed WCJ’s finding that applicant car sales manager’s industrial injury to his cervical spine, lumbar spine, and in form of irritable bowel syndrome caused 60 percent permanent disability, after apportionment to nonindustrial factors based on...

United States Fire Insurance Co. v. W.C.A.B. (Montejo, Jose), lexis.com, Lexis Advance

Medical-Legal Reports—Admissibility of Report Obtained by Employer—WCAB denied defendant’s petition for removal challenging WCJ’s order precluding defendant from providing treating physician, qualified medical evaluator, and agreed medical evaluator with report of internist Arnold Roth, M.D., obtained by defendant pursuant to Labor Code § 4064(d), when WCAB found that...

White (Jeffrey) v. W.C.A.B., lexis.com, Lexis Advance

Third Party Actions—Credit—Employer Negligence—WCAB, affirming WCJ, held that defendant was five percent negligent in causing applicant plumber’s skin and abdomen injuries and alleged injury to his psyche, nerves, eyes, and other body parts suffered while applicant was removing ansul valve (device that operates to cut off flow of gas through gas pipes in event of fire) from premises of automobile dealership mall owned by third party who was found to be 95 percent at fault for applicant’s injuries, and that defendant was entitled to credit for applicant’s $5,174,000 net third-party settlement recovery after expenditure of its total workers’ compensation contribution of $600,000, when WCAB relied on...

Other WCAB Decisions Denied Judicial Review

Bracken (Kevin) v. W.C.A.B., lexis.com, Lexis Advance

Psychiatric Injury AOE/COE—Six Months Employment—WCAB held that applicant’s claim of industrial psychiatric injury was barred under Labor Code § 3208.3(d)because applicant was not “employed” by defendant for six months before 9/23/96 admitted injury to right shoulder and elbow, as required by that statute, when WCAB found that...

Controlled Health Management, Inc. v. W.C.A.B. (Morales, Cleto), lexis.com, Lexis Advance

Lien Claims—Filing Frivoulous Letters of Representation—Sanctions—WCAB imposed $1,000 sanctions on petitioner Controlled Health Management for filing frivolous letters of representation of lien claimants in cases of two different applicants, when WCAB found that hearing representative for petitioner, Jerome Welch, filed letters of representation on behalf of petitioner Controlled Health Management, indicating that...

Harris (Elen) v. W.C.A.B., lexis.com, Lexis Advance

Permanent Disability—Apportionment—WCAB awarded applicant 22 percent permanent partial disability, after apportionment, for 1/21/99 admitted industrial low back injury that occurred when applicant certified nursing assistant was lifting combative patient, based on opinions from defense medical-legal evaluator on extent of permanent disability and apportionment of permanent disability and formal rating from Disability Evaluation Unit, when WCAB found that...

Jackson (Nathan) v. W.C.A.B., lexis.com, Lexis Advance

Petitions for Writ of Review—Time to File—Court of Appeal dismissed applicant’s petition for writ of review not filed within time requirements of Labor Code § 5950, when applicant was appealing WCAB decision in which WCAB held that...

Macias v. W.C.A.B. (Vargas, Constantino), lexis.com, Lexis Advance

Stipulations with Request for Award—Setting Aside—WCAB denied defendant’s petition to set aside stipulations with request for award, which WCAB had approved on 3/19/2012, and denied defendant’s petition to dismiss defendant as party, when WCAB found that applicant laborer injured his back and right knee while working for defendant on 10/10/2001, that on 10/10/2001 defendant was illegally uninsured under...

Simon (Joyce) v. W.C.A.B., lexis.com, Lexis Advance

Petitions for Reconsideration—Successive Petitions—WCAB dismissed applicant’s petition for reconsideration that it found was successive petition raising same issues as already resolved by...

Strohman (Mark) v. W.C.A.B., lexis.com, Lexis Advance

Permanent Disability—Apportionment—WCAB awarded applicant underground construction worker further medical treatment and 17 percent permanent disability for each of two admitted industrial back injuries, one on 9/20/99 with first employer and second on cumulative basis ending 2/8/2000 with second employer, based on opinions from...

Wausau Insurance Co. v. W.C.A.B. (Billik, Bernard), lexis.com, Lexis Advance

Petition for Writ of Review—WCAB Final Orders—Court of Appeal dismissed petition for writ of review appealing WCAB decision that was not final order or decision as required by Labor Code §§ 5900 and 5901, when insurer was appealing WCAB decision denying three petitions for removal related to...