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Workers' Compensation

California Workers’ Comp Case Roundup (4/6/2015)

CALIFORNIA COMPENSATION CASES

Vol. 80 No. 3 March 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

© Copyright 2015 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

State of California ex rel. Department of California Highway Patrol v. The Superior Court of Orange County, lexis.com, Lexis Advance

Employment Relationships—Special Employers—California Highway Patrol—Tow Truck Crivers—California Supreme Court, reversing Court of Appeal’s judgment, held that, while language of Freeway Service Patrol Act, Streets & Highways Code § 2560 et seq., does not support finding that California Highway Patrol is special employer of Freeway Service Patrol tow truck drivers, California Highway Patrol might act as special employer if it takes on responsibilities beyond those outlined in Freeway Service Patrol statutes, when California Supreme Court found that…

Appellate Court Cases Not Originating With Appeals Board

Cooper (Yamonte) v. County of Los Angeles, lexis.com, Lexis Advance

Civil Actions Against Employers—Fair Employment and Housing Act—Court of Appeal affirmed trial court’s dismissal of plaintiff’s causes of action under Fair Employment and Housing Act (Government Code § 12940 et seq.), when Court of Appeal found that…

Civil Actions Against Employers—Civil Rights Violations—Court of Appeal affirmed trial court’s dismissal of plaintiff’s cause of action against his employer and county employees for…

Headley (John) v. Board of Los Angeles City Employees Retirement System Commissioners, lexis.com, Lexis Advance

Civil Actions—Public Employees—Disability Retirement—Court of Appeal affirmed trial court’s denial of plaintiff’s petition for writ of mandate to set aside decision of retirement board denying plaintiff’s application for disability retirement, when plaintiff/applicant worked for city as planning assistant and was later diagnosed with neurovascular necritis of left hip, plaintiff’s restrictions included being unable to sit for long periods of time and required moving between sitting and standing positions, occasionally using elevated seats/stools, and using ergonomic work station, plaintiff requested accommodations from…

Lopez (Guillermo Mendoza) v. Waks, lexis.com, Lexis Advance

Third Party Actions—Legal Malpractice—Subrogation—Court of Appeal affirmed trial court’s dismissal of plaintiff’s civil action against defendant, his personal injury attorney, related to defendant’s handling of subrogation issues in plaintiff’s personal injury action against at-fault third party tortfeasor, when Court of Appeal found that…

Sardell v. Bresler, lexis.com, Lexis Advance

Civil Actions—Appeals Board Decisions—Collateral Estoppel—Court of Appeal, affirming trial court’s denial of appellant’s motion to vacate judgment of WCAB, held that Appeals Board decision had collateral estoppel effect, when Court of Appeal found that…

Digests of WCAB Decisions Denied Judicial Review

Editorial Board members Francis V. Clifford, Hon. Jacqueline C. Duncan, Susan Hamilton, and James Pettibone recommended the following writ denied cases for summarization in this issue.

Delao (Randal) v. W.C.A.B., lexis.com, Lexis Advance

Injury AOE/COE—Specific Injuries—WCAB, reversing WCJ, held that applicant custodian suffered two separate and distinct injuries to his spine, internal systems, and psyche, one on 6/13/96 and another on 7/31/96, and that second injury was not compensable consequence or aggravation of original injury as found by WCJ, when WCJ had based his finding on…

Permanent Disability—Rating—Apportionment—WCAB, reversing WCJ, held that applicant custodian who suffered two industrial injuries to his spine, internal systems, and psyche, one on 6/13/96 and another on 7/31/96, incurred permanent total disability and that disability was apportionable as between applicant’s two injuries under Labor Code § 4663, but majority of WCAB panel remanded matter to...

Marriott Hotel v. W.C.A.B. (De Leon, Yolanda), lexis.com, Lexis Advance

Injury AOE/COE—Burden of Proof—WCAB panel, in split decision, rescinding WCJ’s finding that applicant hotel housekeeper’s fractured femur diagnosed on 8/28/2012 was not related to applicant’s 5/12/2012 industrial left leg and hip injury, held that applicant met burden of proving that 5/12/2012 industrial injury included femur fracture, when evidence indicated that...

Meza (Deborah) v. W.C.A.B., lexis.com, Lexis Advance

Removal to WCAB—WCAB denied applicant’s petition to remove case to itself due to WCAB’s 6/10/2014 findings and order, when WCAB found applicant was evaluated by orthopedic panel qualified medical evaluator for…

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

Temporary Disability—Post-Retirement Period of Disability—WCAB, reversing WCJ, held that applicant physical education professor who sustained admitted cumulative injury to her cervical spine, lumbar spine, left wrist, left hand, left shoulder, and knees was not temporarily totally disabled during period following her voluntary retirement, when WCAB, relying on principles in Gonzales v. W.C.A.B. (1998) 68 Cal. App. 4th 843, 81 Cal. Rptr. 2d 54, 63 Cal. Comp. Cases 1477, found that…

Tokier (Abraham) v. W.C.A.B., lexis.com, Lexis Advance

Presumption of Industrial Causation—Peace Officers—Duty Belt Presumption—WCAB, in split panel decision, affirmed WCJ’s order that applicant police lieutenant take nothing by way of his claim for industrial low back injury, when panel majority found that...

Warner Bros. Studios, Inc. v. W.C.A.B. (Crocker, Roy), lexis.com, Lexis Advance

Credit—Overpayment of Temporary Disability Indemnity—Penalties—WCAB, reversing WCJ in split panel decision, held that defendant underpaid applicant’s permanent total disability award by prematurely taking credit against permanent disability for its alleged overpayment of temporary disability and was thereby subject to 25 percent penalty under Labor Code § 5814, when panel majority concluded that…

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

Petitions to Reopen—Extrinsic Fraud—WCAB, affirming WCJ, held that applicant engineer/department head formerly employed by defendant from 2/67 through 4/77, did not engage in “extrinsic fraud” in obtaining award for industrial injury to his internal system and psyche, including awards of permanent total disability and continuing medical treatment, or in succeeding in obtaining order of estoppel against defendant precluding defendant from requiring applicant to meet burden of proving industrial injury, when applicant alleged that...

Other WCAB Decisions Denied Judicial Review

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

Injury AOE/COE—WCAB held that applicant security officer did not sustain cumulative trauma injury AOE/COE from 6/1/2008 through 9/18/2009 to his brain, cervical spine, lumbar spine, internal system, psyche, or right ankle (contrary to WCJ’s finding of industrial injury to right ankle), based on...

Goodwill Industries of Orange County v. W.C.A.B. (Bembinster Rieger, Penelope), lexis.com, Lexis Advance

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

Petitions for Writ of Review—WCAB Final Orders—Court of Appeal dismissed petition for writ of review filed 2/3/2015 in Civil No. B261719 because there was no WCAB order or decision to appeal, contrary to requirements of Labor Code § 5950, when petitioner/pro per applicant was appealing…

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

Petitions for Writ of Review—WCAB Final Orders—Court of Appeal dismissed petition for writ of review filed 2/11/2015 in Civil No. B261906 because there was no WCAB order or decision to appeal, contrary to requirements of Labor Code § 5950, when petitioner/pro per applicant was appealing...

Montes de Oca (Maria) v. W.C.A.B., lexis.com, Lexis Advance

Injury AOE/COE—WCAB held that applicant did not meet her burden of proving injury AOE/COE on 8/13/2012, when WCAB found that...

Ortiz-Suarez (Ramiro) v. W.C.A.B., lexis.com, Lexis Advance

Injury AOE/COE—WCAB held that applicant laborer did not sustain cumulative trauma injury AOE/COE in period ending 12/1/2012 to his psyche (under Labor Code § 3208.3) or nervous system, when applicant claimed injury from frequent criticism, abuse, and harassment from his supervisor, four credible defense witnesses testified that supervisor infrequently counseled applicant about need to maintain good product standards and did not harass or abuse applicant or treat him differently from other employees, and WCAB found that...

Smith (Timothy) v. W.C.A.B., lexis.com, Lexis Advance

Permanent Disability—Rating—Apportionment—WCAB awarded applicant heavy equipment operator/loader 78 percent permanent partial disability, after apportionment, for applicant’s 6/4/2002 injury AOE/COE to lumbar spine, internal system, right clavicle, and right elbow, with WCAB’s permanent disability rating based on opinions from...

Valentis (Vicky Lynn) v. W.C.A.B., lexis.com, Lexis Advance

Compromise and Releases—Setting Aside—WCAB held that applicant did not show grounds to set aside Order Approving Compromise and Release, when WCAB approved compromise and release submitted by parties at 7/16/2014 mandatory settlement conference resolving applicant taxi driver’s claim of industrial injury to multiple body parts on 2/8/2012, applicant was represented by counsel at time she signed compromise and release and parties submitted compromise and release, applicant, now unrepresented, sought to set aside...

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