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Insidious, Progressive Diseases: California Workers' Comp Cases Roundup (10/30/2011)

October 30, 2011 (9 min read)
CALIFORNIA COMPENSATION CASES
Vol. 76 No. 10 October 2011
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
© Copyright 2011 LexisNexis. All rights reserved.
FEATURED CASE OF THE MONTH – Insidious, Progressive Diseases:
Jayna Popovich, Petitioner, v. Workers' Compensation Appeals Board and Department of Corrections and Rehabilitation, Respondents, 76 Cal. Comp. Cases 1050
WCAB Jurisdiction—Insidious, Progressive Diseases—Statutes of Limitations—Court of Appeal, annulling order of WCAB, held that applicant’s petition to reopen for new and further disability was timely because applicant did not suffer disability from her insidious, progressive disease until 2010, at which point limitations period began to run, when Court of Appeal found that applicant sustained cumulative injury AOE/COE to her liver, diagnosed in 1999 as Hepatitis C, that in 8/2000 she filed application for adjudication of claim, that on 9/5/2002 parties entered into stipulation that applicant had not yet suffered either temporary or permanent disability as result of injury and that Hepatitis C is insidious disease process that extends WCAB jurisdiction beyond five years from date of injury provided for in Labor Code §§ 5410 and 5804, that on 7/3/2009 applicant filed petition to reopen for new and further disability, seeking award of temporary total disability, that both parties to present litigation stated in briefs to Court of Appeal that applicant did not suffer disability until 2010, and that Labor Code § 5412, statute of limitations defining date of injury in cases of occupational diseases or cumulative injuries, made applicant’s petition to reopen for new and further injury timely.
CONTENTS OF THIS ISSUE: Lexis.com subscribers can link to the cases to read the complete headnotes, etc.
Appellate Court Compensation Cases
County of Kern, Petitioner, v. Workers' Compensation Appeals Board, Eric Petersen, et al., Respondents, 76 Cal. Comp. Cases 1037
Employment—Statutory Employees—Volunteer Firefighters—Court of Appeal, affirming WCAB order denying reconsideration, held that applicant, volunteer firefighter with volunteer fire department who suffered injuries AOE/COE, was statutory employee of defendant Kern County on date of injuries pursuant to Labor Code § 3361, notwithstanding defendant's contentions that volunteer fire department did not have “full or partial support” or “official recognition” as required under Labor Code § 3361, when WCAB found that…
Jayna Popovich, Petitioner, v. Workers' Compensation Appeals Board and Department of Corrections and Rehabilitation, Respondents, 76 Cal. Comp. Cases 1050
WCAB Jurisdiction—Insidious, Progressive Diseases—Statutes of Limitations—Court of Appeal, annulling order of WCAB, held that applicant’s petition to reopen for new and further disability was timely because applicant did not suffer disability from her insidious, progressive disease until 2010, at which point limitations period began to run, when Court of Appeal found that...
Appellate Court Cases Not Originating With Appeals Board
Arkius, Inc., Plaintiff and Appellant, v. Hyundae Health Center, Inc., et al., Defendants and Respondents, 76 Cal. Comp. Cases 1055
Civil Actions—Workers' Compensation Insurance Coverage—Suspension of Contractor's License—Court of Appeal held that plaintiff's contractor's license was not suspended within meaning of Business and Professions Code § 7125.2 during period of time covered by plaintiff's agreements with defendants, that plaintiff was covered by workers' compensation insurance during same period of time, and that, since plaintiff had valid contractor's license, Business and Professions Code § 7031(a) did not prevent plaintiff from bringing suit against defendants for unpaid work, when Court of Appeal found that…
Civil Actions—Workers' Compensation Insurance Coverage—Suspension of Contractor's License—Court of Appeal held that trial court erred in granting nonsuit/judgment on issue of status of plaintiff's contractor's license when one defendant, principal owner of defendant company, made admissions (in request for admissions pleading) that…
Garrett Zimmon, Plaintiff and Appellant, v. City of San Bernardino, Defendant and Respondent, 76 Cal. Comp. Cases 1065
Civil Actions Against Employers—Public Employees—Disability Retirement—Court of Appeal, reversing trial court's judgment affirming defendant's denial of applicant's petition for disability retirement, held that plaintiff/applicant was eligible for disability retirement from employer/defendant City under Government Code § 21151(a), because...
Digests of WCAB Decisions Denied Judicial Review
Editorial Board members Hon. David Hettick, Robert G. Heywood, Kenneth B. Peterson, and Robert G. Rassp recommended the following writ denied cases for summarization in this issue.
Bell Community Medical Group, Petitioner v. Workers' Compensation Appeals Board, Civil Demand Associates, State Farm Fire & Casualty Company, Gloria Herrera, Respondents, 76 Cal. Comp. Cases 1079
Lien Claims—Medical Treatment—WCAB ordered defendant to pay lien claimant $1,200 in full and final satisfaction of its lien, when WCAB found that applicant claimed cumulative trauma injury AOE/COE to head, brain, neck, stress, and psyche while working for employer as restitution coordinator, that lien claimant provided medical treatment to applicant in connection with injury, that lien claimant contended that...
Lien Claims—Calculation—WCAB calculated lien award by first noting that, according to defendant’s billing ledger, applicant had comprehensive medical-legal evaluation as defined under 8 Cal. Code Reg. § 9793(c) with cost of $912.73, and WCAB added...
Charter Oak Unified School District, PSI, York Insurance Services Group, Adjusting Agent, Petitioners v. Workers' Compensation Appeals Board, Salvador Cerda, Respondents, 76 Cal. Comp. Cases 1083
Medical Provider Networks—Physicians Within Network—Notice and Posting Requirements—WCAB held that applicant/custodian who suffered admitted industrial injury to his low back and groin and received medical treatment from treating physician listed in defendant's medical provider network contract, but was treated at different address, through different entity and under different Tax ID from those...
City and County of San Francisco, PSI, Petitioner v. Workers' Compensation Appeals Board, Maria Miller, Respondents, 76 Cal. Comp. Cases 1088
Temporary Disability—104-Week Limitation—WCAB held that defendant’s two-year period of liability under Labor Code § 4656(c)(1) for temporary disability indemnity, owed to applicant who suffered cumulative injury through 6/1/2007, commenced with first payment of temporary disability indemnity on 12/18/2009, and that earlier payment for one day of wage loss under Labor Code § 4600(e)(1) in amount of $125.95, which was less than stipulated weekly temporary total disability rate, for applicant’s attendance at panel QME examination did not constitute payment of temporary disability indemnity so as to start running of two-year limitation period, when WCAB found that...
Edward Daniels, Petitioner v. Workers' Compensation Appeals Board, UCLA Medical Center, PSI, administered by Sedgewick CMS, Providence St. Joseph Medical Center, Respondents, 76 Cal. Comp. Cases 1092
Permanent Disability Rating—Psychiatric Injury—WCAB rescinded WCJ's finding that applicant suffered 70-percent permanent disability as combined result of spinal injury (65-percent permanent disability) and psychiatric injury (10-percent permanent disability), and held that WCJ erred in relying on “range of evidence,” including report of applicant's qualified medical evaluator, which did not constitute substantial evidence, to find that applicant suffered psychiatric disability, and instead should have incorporated opinion of...
Ralphs Grocery Company, PSI, adjusted by Sedgwick Claims Management Services, Inc., Petitioners v. Workers' Compensation Appeals Board, Matthew Boyd, Respondents, 76 Cal. Comp. Cases 1096
Injury AOE/COE—Substantial Evidence—WCAB held that there was substantial evidence to support WCJ's finding that applicant/front-end manager at grocery store sustained cumulative injury AOE/COE to his cervical spine, based on...
Temporary Disability—Existence of Disability—WCAB held that there was substantial evidence to support WCJ's finding that applicant/front-end manager at grocery store suffered period of compensable temporary disability, based on...
Award of Credit—Overpayment of Temporary Disability Indemnity—WCAB held that defendant was not entitled to credit for applicant/front-end manager's receipt of approximately $32,000 in real-estate referral commissions to his former colleagues, when defendant did not raise issue of credit at mandatory settlement conference or at trial, defendant presented no evidence….
Riverfront Apartments, Illinois Midwest Insurance Agency, on behalf of Pennsylvania Manufacturers' Association Insurance Company, Petitioners v. Workers' Compensation Appeals Board, Jose Oliveira, Respondents, 76 Cal. Comp. Cases 1099
Permanent Disability—Rating—AMA Guides—WCAB affirmed WCJ’s finding that applicant/maintenance worker suffered 39-percent permanent disability as result of industrial injury to his left shoulder, based on opinion of panel qualified medical evaluator, when WCAB found that…
Sylvia Santos, Petitioner v. Workers' Compensation Appeals Board, Guard Management, Inc. (aka GMI Security Services), Insurance Company of the West, Respondents, 76 Cal. Comp. Cases 1105
WCAB Procedure—Vexatious Litigants—Court of Appeal upheld WCAB's finding that unrepresented applicant who filed four claims against defendant alleging industrial injury to various body parts during her employment as security guard was “vexatious litigant” pursuant to 8 Cal. Code Reg. § 10782, requiring applicant to conditionally file documents for review by presiding WCJ prior to actual filing of documents, when applicant repeatedly filed...
TIG Insurance Company, insurer for Stumbaugh & Associates, Inc., Petitioner v. Workers' Compensation Appeals Board, State Compensation Insurance Fund, (Jody La Touf, aka Jody Latouf), Respondents, 76 Cal. Comp. Cases 1109
WCAB Jurisdiction—Alternative Dispute Resolution—WCAB upheld Arbitrator's finding that WCAB had jurisdiction over applicant/union carpenter's claim for industrial injury that allegedly occurred while applicant was working for defendant/subcontractor on Los Angeles Unified School District construction site, when WCAB found that...
Antonie Tur, Petitioner v. Workers' Compensation Appeals Board, El Pollo Loco, Gallagher Bassett Services, Respondents, 76 Cal. Comp. Cases 1114
Penalties—Delay in Payment of Post-Award Interest—WCAB declined to impose Labor Code § 5814 penalty on defendant for failure to pay interest on amount due to applicant/general manager with injuries to abdomen/hernia, back, and psyche pursuant to Stipulated Award, when, despite WCAB’s finding that payment of post-award interest under Labor Code § 5800 is mandatory, WCAB held that...
Michael Yubeta, Petitioner v. Workers' Compensation Appeals Board, California Department of Corrections and Rehabilitation/California Correctional Institute—Tehachapi, legally uninsured, adjusted by State Compensation Insurance Fund, Respondents, 76 Cal. Comp. Cases 1119
Presumption of Compensability—Heart Trouble—Correctional Officers—WCAB held that applicant/correctional officer incurred 76-percent permanent disability as result of cumulative injuries to his heart, cardiovascular system, and psyche during period 1/6/96 to 12/11/2007, and that disability caused by applicant's hypertensive cardiovascular disease, but not disability related to his coronary heart disease, was apportionable to non-industrial, pre-existing hypertensive condition, when...
Other WCAB Decisions Denied Judicial Review
Denise Hernandez, Petitioner v. Workers' Compensation Appeals Board, Big Buy Food, Inc., Employers Compensation Insurance Company, Respondents, 76 Cal. Comp. Cases 1124
Injury AOE/COE—WCAB rescinded WCJ's findings and award and substituted its findings that applicant butcher/deli meat clerk did not sustain injury AOE/COE on 4/14/2009 or during cumulative period from 4/14/2009 through 8/21/2009, when WCAB addressed specific injury and found that…
Eduardo Jimenez, Petitioner v. Workers' Compensation Appeals Board, DLS Transportation Services, Argonaut Insurance Company, Respondents, 76 Cal. Comp. Cases 1126
WCAB Duty to Develop Record—WCAB held that it had no duty to further develop medical record, when first WCJ issued findings and award on 7/30/2007 ordering further development of medical record related to applicant's claimed industrial injuries, WCAB denied reconsideration of 7/30/2007 findings and award, further evaluation ordered by first WCJ occurred when applicant was evaluated by two physicians, WCAB relied on...
Injury AOE/COE—WCAB held that applicant sustained two industrial injuries, on 8/15/2000 and from 8/15/2000 to 9/29/2000, and that ...
Permanent Disability—Rating—WCAB rated applicant as having 49-percent permanent partial disability for 8/15/2000 injury and 17-percent permanent partial disability for injury ending 9/29/2000, based on…
Miguel Mazariego, Jr., Petitioner v. Workers' Compensation Appeals Board, General Rehabilitation Services, Inc., CNA Insurance Company, Respondents, 76 Cal. Comp. Cases 1128
Petitions for Reconsideration—Time to File—WCAB dismissed petition for reconsideration not filed within...
Temporary Disability—Medical Treatment—Alternatively, if petition for reconsideration was timely filed, WCAB would deny petition for reconsideration on merits and would affirm WCJ's findings that applicant had already been adequately compensated for...
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