California Workers’ Compensation Case Roundup 4/12/2011

Vol. 76 No. 3 March 2010

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

IMPORTANT NOTE: Lexis.com subscribers can link to the cases to read the complete headnotes and summaries.

CONTENTS OF THIS ISSUE

Appellate Court Case Not Originating With Appeals Board

Tverberg v. Fillner Construction, Inc., 76 Cal. Comp. Cases 211

Third Party Actions—Hirer’s Liability—Retained Control—Court of Appeal held that plaintiff presented sufficient evidence of triable issue of fact on whether defendant general contractor had direct liability for plaintiff’s injury, on theory that general contractor negligently exercised retained control over workplace safety and thereby affirmatively contributed to plaintiff’s injury, and Court of Appeal also held that it was error for trial court to grant summary judgment in defendant’s favor on this issue, when…

Third Party Actions—Hirer’s Liability—Breach of Duty under Cal-OSHA Provisions—Court of Appeal held that plaintiff presented sufficient evidence of triable issue of fact on whether defendant general contractor had direct liability for plaintiff’s injury, on theory that defendant breached non-delegable regulatory duty and that breach affirmatively contributed to plaintiff’s injury, when Court of Appeal found that …

Federal Circuit Court Opinion of Related Interest

Lopez v. Pacific Maritime Association, 76 Cal. Comp. Cases 220

Americans With Disabilities Act—Fair Employment and Housing Act— U.S. Court of Appeals, Ninth Circuit, affirming summary judgment in favor of defendant entered by U.S. District Court, Central District of California, held that defendant’s policy that permanently eliminated from employment consideration any applicant who tested positive for drug or alcohol use during pre-employment screening process did not constitute prohibited disparate treatment of or disparate impact on plaintiff, who was recovered drug addict, under federal Americans with Disability Act, 42 U.S.C.S. §§ 12112(a), 12114(b)(1), or California Fair Employment and Housing Act, Government Code § 12926(l), when Court of Appeals found that…

Appeals Board En Banc Decision

Guitron (Jose) v. Santa Fe Extruders, 76 Cal. Comp. Cases 228

Medical Treatment—Interpreter Services—WCAB en banc, affirming WCJ’s Findings, Award, and Order re Lien of Interpreter Service except as amended, held that, pursuant to employer’s obligation under Labor Code § 4600 to provide medical treatment reasonably required to cure or relieve injured worker from effects of his or her injury, employer is required to...

Medical Treatment—Interpreter Services—Burden of Proof—WCAB en banc, affirming WCJ’s Findings, Award, and Order re Lien of Interpreter Service except as amended, held that, to recover its charges for interpreter services, interpreter lien claimant has burden of proving, among other things, that…

Digests of WCAB Decisions Denied Judicial Review

Editorial Board members Francis V. Clifford, Susan Hamilton, James R. Libien, and Neil R. Robinson recommended the following writ denied cases for summarization in the issue.

Bresler v. W.C.A.B. (Martinez, Richard), 276 Cal. Comp. Cases 251

Liens—Medical Treatment—Burden of Proving Reasonableness of Fees—WCAB affirmed WCJ’s finding that lien claimants were not entitled to fees in excess of amounts set forth in Official Medical Fee Schedule for treatment services provided to applicant/plasterer helper/construction worker with industrial injuries, when...

City and County of San Francisco v. W.C.A.B. (Smith, Yolanda), 76 Cal. Comp. Cases. 256

Presumption of Industrial Causation—Heart Trouble—Peace Officer— WCAB held that decedent’s heart trouble was presumed to be injury AOE/COE under Labor Code § 3212.5, that presumption was not rebutted, and that heart trouble was proximate cause of decedent’s death, when WCAB found that...

Costa (Francisco) v. W.C.A.B., 76 Cal. Comp. Cases 261

Permanent Disability—Apportionment—Preexisting Conditions—WCAB affirmed WCJ’s finding that, based on opinions of treating physician and defense qualified medical evaluator, applicant/warehouseman order selector’s industrial injuries to his low back, urologic system, and gastrointestinal tract, caused 80-percent disability after 20-percent apportionment to applicant’s pre-existing congenital spinal stenosis, when treating physician …

Hamilton (LaJoyce) v. W.C.A.B., 76 Cal. Comp. Cases 265

Evidence—Admissibility of Medical Reports—WCAB affirmed WCJ’s finding that medical reports of defense qualified medical evaluator were not rendered inadmissible based on qualified medical evaluator’s failure to conduct physical examination of applicant prior to issuing reports in connection with applicant’s claim for injuries to multiple body parts and in forms of fibromyalgia and multiple sclerosis as result of toxic exposure during her employment as material analyst, when WCAB found …

Injury AOE/COE—Adverse Inferences—WCAB held that WCJ was not bound, based on defendant’s alleged failure to provide relevant Material Safety Data Sheets, to draw adverse inference that applicant’s exposure to toxins during her employment as material analyst contributed to her development of multiple sclerosis, when defendant...

Reynolds (Julia) v. W.C.A.B., 76 Cal. Comp. Cases 269

Presumption of Industrial Causation—Heart Trouble and Pneumonia—Peace Officers—WCAB held that applicants failed to meet burden under Labor Code § 3202.5 of proving that decedent, while employed as senior safety officer, suffered industrial injury to his heart, lungs, and pulmonary system (in form of pneumonia) resulting in his death or that he suffered industrial neck injury and that, although presumption of compensability set forth in Labor Code §§ 3212.5 and 3213.2 was applicable, defendant rebutted presumption, when AME …

Sedam (Kelley Smith) v. W.C.A.B., 76 Cal. Comp. Cases 272

Death Benefits—Statute of Limitations—WCAB held that statute of limitations of Labor Code § 5406 barred widow’s claim for death benefits, when WCAB found that …

Southern California Gas Co. v. W.C.A.B. (Vazquez, Mario ), 76 Cal. Comp. Cases 276

Permanent Disability—Apportionment—WCAB awarded applicant 100- percent permanent disability, without apportionment, and further medical treatment, for two industrial injuries, from continuing harassment by supervisor and specific head butting incident, when WCAB, basing its decision on opinions of psychiatric agreed medical examiner, found that …

Zurich North American Insurance Co. v. W.C.A.B. (Baldrige, Clark), 76 Cal. Comp. Cases 280

Permanent Disability—2005 Permanent Disability Rating Schedule— Diminished Future Earning Capacity—WCAB affirmed WCJ’s finding that applicant/construction laborer’s industrial back injury and consequential psychiatric condition resulted in 100-percent permanent disability even though scheduled rating was less than 100 percent, when …

Other WCAB Decision(s) Denied Judicial Review

Fred Calhoun, Petitioner v. Workers’ Compensation Appeals Board, Ralphs Grocery Company, PSI, Respondents, 76 Cal. Comp. Cases 287

Dismissal of Claim—Failure to Prosecute—WCAB affirmed dismissal of applicant warehouseman’s claim for workers’ compensation benefits for 5/28/96 admitted injury AOE/COE to groin for failure to prosecute, when WCAB found …

Pompeyo Castilla, Petitioner v. Workers’ Compensation Appeals Board, Sugar Bowl Bakery, Oak River Insurance Company, Respondents, 76 Cal. Comp. Cases 289

Petitions for Reconsideration—Time to File—WCAB dismissed petition for reconsideration not timely filed within limits of Lab. Code, § 5903, C. of Civ. Proc. § 1103, and 8 Cal. Code Reg. § 10507), when applicant…

Compromise and Release Agreements—Setting Aside—Alternatively, WCAB denied pro per applicant’s petition for reconsideration of order approving C&R on merits, when WCAB issued order approving C&R for settlement of applicant’s claim of injury AOE/COE to his back and nervous system for $75,000 minus credit for PD advances and attorney’s fee liens, applicant contended settlement was too low and defendant …

Electric Insurance Company (Insurer for Union Fidelity Life), administered by Sedgwick Claims Management Services, Petitioner v. Workers’ Compensation Appeals Board, Martha Quevedo, Respondents, 76 Cal. Comp. Cases 291

Permanent Disability—Rating—Apportionment—WCAB awarded applicant customer service representative 100-percent PD, without apportionment, for applicant’s injury AOE/COE to her neck, both shoulders, elbows, and hands, and gastrointestinal, cardiovascular, and psychological systems, basing rating on opinions from AMEs in orthopedics, psychiatric, pain management, and internal medicine and on recommended rating from DEU, without objection to rating or timely request to cross-examine rater, when WCAB found …

WCAB Duty to Develop Record—WCAB held that it had no duty to develop record on issues of rating PD and apportionment of PD, because...

Marin Garrison, Petitioner v. Workers’ Compensation Appeals Board, County of San Deigo, PSI, Respondents, 76 Cal. Comp. Cases 293

Compromise and Release Agreements—Setting Aside—WCAB found no good cause to set aside C&R related to applicant’s claimed specific injury to psyche AOE/COE and held that C&R was adequate, when WCAB found...

Juan Guzman, Petitioner v. Workers’ Compensation Appeals Board, Peak Harvesting, State Compensation Insurance Fund, Respondents, 76 Cal. Comp. Cases 295

Injury AOE/COE—WCAB held that applicant laborer/picker/planter did not present sufficient evidence to support finding of cumulative trauma injury AOE/COE sustained in 2002 in form of coccidiomycosis (Valley Fever), when WCAB found …

Jesus Mendoza, Petitioner v. Workers’ Compensation Appeals Board, PALP, Inc., adjusted by Cambridge Integrated Services Group, Inc., Respondents, 76 Cal. Comp. Cases 297

Injury AOE/COE—WCAB held that applicant laborer did not sustain injury AOE/COE to his cervical spine, back, or right arm, shoulder, wrist, or hand, and that, alternatively, even if he did sustain injury AOE/COE, it was brief exacerbation of pre-existing conditions and did not result in TD, PD, or need for medical treatment, when WCAB...

Lawrence Kevin Reichelt, Petitioner v. Workers’ Compensation Appeals Board, City of Los Angeles (Los Angeles Police Department), PSI, Respondents, 76 Cal. Comp. Cases 298

Petitions for Reconsideration—Final Orders—WCAB dismissed applicant’s petition for reconsideration because there was no final order subject to reconsideration within meaning of Lab. C. § 5900, when...

Removal to WCAB—WCAB denied applicant’s petition to remove case to itself, finding that applicant did not show irreparable harm or substantial prejudice under Lab. C. § 5310 if removal was not granted, when …

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