Workers' Compensation

California Workers’ Compensation Case Roundup (2/11/2016)

CALIFORNIA COMPENSATION CASES

Vol. 81 No. 1 January 2016

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 Cases Not Originating With Appeals Board

California Department of Justice v. Board of Administration of California Public Employees’ Retirement System, lexis.com, Lexis Advance

CalPERS—Industrial Disability Retirement—Reinstatement—Court of Appeal, affirming trial court judgment, held that CalPERS properly made its reinstatement determination based on condition for which employee peace officer received disability retirement, that employer California Department of Justice had mandatory duty to reinstate employee after CalPERS concluded that she was no longer incapacitated, and that employer may not require employee to comply with conditions prior to reinstatement, when Court of Appeal found that…

King (Kirk) v. CompPartners, Inc., lexis.com, Lexis Advance

Utilization Review—Exclusivity Rule—Physician’s Duty—Court of Appeal, affirming trial court’s order sustaining defendant’s demurrer to complaint, but reversing trial court’s denial of leave to amend complaint, held that additional facts could cure problems presented by complaint and plaintiffs have additional facts to plead, when Court of Appeal found that…

Medina v. State of California, lexis.com, Lexis Advance

Third Party Actions—Exclusive Remedy—Court of Appeal held that, even if plaintiff’s civil action against defendants State of California and its Department of Veteran Affairs was not barred because she did not timely file claim, same action was barred because her claim for personal injury arose from exposure to second-hand smoke while working as nurse at veteran’s home and workers’ compensation was her exclusive remedy for her injury, when Court of Appeal found that...

Moore (Stephen) v. William Jessup University, lexis.com, Lexis Advance

Primary Assumption of Risk—Duty of Care—Court of Appeal, affirming trial court’s grant of defendant’s motion for summary judgment on plaintiff’s sole cause of action for negligence, held that, under particular circumstance of case, policy considerations based on nature of plaintiff’s job duties and relationship between parties do not support conclusion that defendant had duty of care to protect plaintiff against his injuries, when Court of Appeal found that…

People, The ex rel. Alzayat (Mahmoud) v. Hebb, lexis.com, Lexis Advance

Civil Actions Against Employers—Insurance Fraud—Self-Insurance Pools—Court of Appeal reversed trial court’s holding that defendant employer, as member of self-insurance pool, was not subject to Insurance Fraud Prevention Act, Insurance Code § 1871 et seq., when Court of Appeal found that…

Appeals Board En Banc Decision

Cornejo (Rogelio) v. Younique Café, Inc., lexis.com, Lexis Advance

Lien Claims—Copy Services—Registration and Bonding Requirements—WCAB en banc, rescinding WCJ’s findings and award and returning case to trial level for further proceedings, held that, because Business & Professions Code § 22451(b) exempts member of California state bar and his or her employees, agents, and independent contractors from registration and bonding requirements for professional photocopiers in Business & Professions Code §§ 22450 and 22455, those requirements do not apply to lien claimant seeking 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.

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

WCAB Jurisdiction—Professional Athletes—WCAB, in split panel decision, affirmed its prior decision, Byars v. New York Jets, 2015 Cal. Wrk. Comp. P.D. LEXIS 125 (Appeals Board noteworthy panel decision), in which it held that California had no jurisdiction over New York Jets or applicant professional football player’s claim for industrial cumulative injury, when applicant was temporarily in California for football games but connection between applicant’s claimed cumulative trauma and California was de minimis, as described in Federal Insurance Co. v. Workers’ Comp. Appeals Bd. (Johnson) (2013) 221 Cal. App. 4th 1116, 165 Cal. Rptr. 3d 288, 78 Cal. Comp. Cases 1257, because applicant played only eight or nine games in California out of approximately 250 games played over his 12-year career, representing less than...

Oxnard School District, v. W.C.A.B. (Garcia, Ruth), lexis.com, Lexis Advance

Stipulations—WCAB, affirming WCJ’s stipulated award, held that defendant was bound by stipulation that applicant was entitled to permanent disability in total sum of $36,570 based on presumption that applicant was entitled to maximum permanent disability rate of $230 per week, notwithstanding that parties had actually stipulated to permanent disability rate of $188.40 per week with 15 percent decrease pursuant to Labor Code § 4658(d), when WCAB found that…

Pippen (Scottie) v. W.C.A.B., lexis.com, Lexis Advance

WCAB Jurisdiction—Professional Athletes—WCAB, reversing WCJ in split panel decision, held that California did not have jurisdiction over applicant’s claim for cumulative trauma while playing professional basketball for various teams, when WCAB panel majority concluded that California did not have legitimate and substantial interest in applicant’s injury to support jurisdiction over applicant’s injury claim under Federal Insurance Co. v. Workers’ Comp. Appeals Bd. (Johnson) (2013) 221 Cal. App. 4th 1116, 165 Cal. Rptr. 3d 288, 78 Cal. Comp. Cases 1257, because applicant, who never lived in or made contract for hire in California, played fewer than nine percent of his…

Pomona Unified School District v. W.C.A.B. (Bryant, Jerry), lexis.com, Lexis Advance

Medical Provider Networks—Liability for Outside Treatment—WCAB affirmed WCJ’s finding that applicant teacher who suffered industrial injury to his lumbar spine, right knee, psyche, and in form of sleep disorder, and cumulative trauma injury to his right knee, was entitled to treat outside defendant’s medical provider network, when WCAB found that...

Reyes-Garcia (Abel) v. W.C.A.B., lexis.com, Lexis Advance

Employment Relationships—Residential Employees—WCAB, affirming WCJ in split panel decision, held that defendant Lee Lai hired applicant in his capacity as homeowner and not in course of his “trade, business, profession, or occupation” within meaning of Labor Code § 3355, and that applicant was excluded from workers’ compensation coverage under Labor Code § 3352(h), when WCAB panel majority found that, although applicant had previously performed maintenance work on Mr. Lai’s three rental properties, applicant was...

Southland Spine and Rehabilitation Medical Center, Inc. v. W.C.A.B. (Salas, Justa), lexis.com, Lexis Advance

Medical Provider Networks—Liability for Outside Treatment—Notice Requirements—WCAB, affirming WCJ, held that defendant was not liable for lien arising from medical treatment self-procured by applicant laborer outside defendant’s Medical Provider Network, when defendant established that it had valid Medical Provider Network and that it complied with Medical Provider Network notice requirements by sending applicant notice of Medical Provider Network, by providing applicant with...

WCAB Procedure—Bifurcation of Issues—WCAB held that it was not error for WCJ to bifurcate defendant’s Medical Provider Network defense from other issues in lien trial because…

Stolp (Dennis) v. W.C.A.B., lexis.com, Lexis Advance

Psychiatric Injury—Good Faith Personnel Actions—Physical Injury—WCAB affirmed WCJ’s finding that applicant peace officer’s claims for cumulative psychiatric and cardiovascular injury were barred by lawful, good-faith, nondiscriminatory personnel action defense under Labor Code § 3208.3(h) and Rolda v. Pitney Bowes, Inc. (2001) 66 Cal. Comp. Cases 241 (Appeals Board en banc opinion), when WCAB found that...

United States Fidelity and Guaranty Co. v. W.C.A.B. (Stabler, Ken), lexis.com, Lexis Advance

WCAB Jurisdiction—Professional Athletes—Personal Jurisdiction—WCAB, affirming WCJ, held that WCAB had personal jurisdiction over applicant/professional football player’s employer New Orleans Saints, when evidence demonstrated that Saints engaged in minimum contacts with California during applicant’s employment, because Saints clearly participated in...

WCAB Jurisdiction—Professional Athletes—Subject Matter Jurisdiction—WCAB, affirming WCJ, held that California WCAB had jurisdiction under Labor Code §§ 5300 and 5301 over applicant/professional football player’s claim for cumulative trauma from 1/1/70 through 9/17/84, when evidence established that major portion of applicant’s approximately 14-year-long continuous trauma occurred...

Statute of Limitations—Cumulative Injuries—WCAB, affirming WCJ, held that applicant/professional football player’s claim for cumulative injury from 1/1/70 through 9/17/84 was not barred by Labor Code § 5405(a) statute of limitations, since applicant’s claim was filed within one year from date of injury under Labor Code § 5412, based on applicant’s unrebutted testimony that he first became aware of his potential rights to receive workers’ compensation benefits in 2011 and there was no evidence that...

Cumulative Injury—Labor Code § 5500.5 Liability—WCAB held that WCJ did not err in imposing liability for applicant/professional football player’s cumulative injury under Labor Code § 5500.5(a) on Travelers Insurance, which was only confirmed...

Other WCAB Decisions Denied Judicial Review

Chanchavac (Estela) v. W.C.A.B., lexis.com, Lexis Advance

Petitions for Writ of Review—Final WCAB Decisions—Court of Appeal dismissed petition for writ of review because petitioner was appealing non-final WCAB order/decision, contrary to requirements of Labor Code §§ 5900, 5901, holding that…

City of Fresno v. W.C.A.B. (Grayson, Audrey), lexis.com, Lexis Advance

Petitions for Writ of Mandate—Removal to WCAB—Orders Related to Medical-Legal Evaluations—WCAB denied defendant’s petition to remove case to itself, finding that defendant did not make showing required by 8 Cal. Code Reg. § 10843(a) that defendant would suffer substantial prejudice or irreparable harm if removal was not granted or that reconsideration would not be…

City of Half Moon Bay v. W.C.A.B. (Loubal, Dennis), lexis.com, Lexis Advance

Presumption of Industrial Causation—Cancer—Peace Officers—WCAB affirmed WCJ’s finding that applicant police officer suffered injury AOE/COE in form of lymphoma based on cancer presumption in Labor Code § 3212.1, when WCAB concluded, pursuant to applicant’s testimony and reporting of panel qualified medical evaluator, that...

Hall v. W.C.A.B. (Rosso, Sharifah), lexis.com, Lexis Advance

Lien Claims—Dismissal—WCAB dismissed lien claim of lien claimant who provided medical treatment for applicant’s 7/3/84 industrial injury, when WCAB found that it set hearing on lien claim for 4/30/2015 and that lien claimant and...

Montenegro v. W.C.A.B. (Ledesma, Juan), lexis.com, Lexis Advance

Petitions for Writ of Review—Time to File—Dismissal—Court of Appeal dismissed petition for writ of review not filed within time limits of Labor Code § 5950, when petitioner was appealing WCAB decision...

Reiner v. W.C.A.B. (Jacobs, Louella), lexis.com, Lexis Advance

Attorney’s Fees—Stipulations With Request for Award—WCAB held that attorney who may have provided some legal services related to applicant’s claim for workers’ compensation benefits for 2013 specific and cumulative trauma injuries was not entitled to attorney’s fee from Stipulations With Request for Award approved by WCAB because...

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

Injury to Psyche AOE/COE—Good-Faith Personnel Action Defense—WCAB held that applicant city police officer did not sustain injury AOE/COE to his psyche in period ending 9/20/2006 because his injury was caused by employer’s lawful non-discriminatory good-faith personnel actions, and that, therefore, defense of Labor Code § 3208.3(h) applied to bar claim, when WCAB found that...

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