California Compensation Cases August 2023

CALIFORNIA COMPENSATION CASES

Vol. 88, No. 8 August 2023

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 Case

Earley (Michele) v. W.C.A.B.,  Lexis

Petitions for Reconsideration—WCAB’s Action on Petition—Grant-for-Study Practice—Court of Appeal issued writ of mandate requiring WCAB to cease grant-for-study procedure, whereby WCAB grants reconsideration to further study issues raised in party’s petition for reconsideration without detailing reasons for grant, and Court of Appeal held that WCAB must comply with mandates of Labor Code § 5908.5, requiring WCAB to explain in detail reasons for decision granting or denying reconsideration based on grounds in Labor Code § 5903 and on evidence presented, and that WCAB can then later decide to affirm, modify, or vacate order at issue after further consideration and more thorough review of record, and Court of Appeal rejected WCAB’s assertions that grant-for-study practice should be upheld because it is longstanding practice by WCAB and compliance is impossible, when Court of Appeal reasoned that...

Writ of Mandate—Attorney’s Fees—Court of Appeal awarded petitioners $110,777.25 in attorney’s fees under Code of Civil Procedure § 1021.5, when petitioners’ claim was partially successful in that petitioners successfully challenged lawfulness of WCAB’s grant-for-study practice, resulting in order that will require WCAB to comply with Labor Code § 5908.5 when it grants reconsideration, but did not achieve aim of requiring WCAB to issue final rulings on petitions for reconsideration within 60 days, and Court of Appeal reduced requested $221,554.50 in fees by one half based on petitioners’ partial success, and determined that 50 percent reduction in requested fees reasonably reflected split in effort petitioner devoted to successful and unsuccessful arguments.

Appellate Court Case Not Originating with Appeals Board

People, The v. Slater,  Lexis

Workers’ Compensation Insurance Fraud—Illegal Referrals—Court of Appeal, affirming trial court’s judgment, upheld defendant’s criminal convictions for conspiracy and insurance fraud under Penal Code §§ 182(a)(1), 549 and 550(b)(3) based on his violation of Labor Code § 3215 prohibiting referral of clients for compensation, when defendant, while practicing workers’ compensation attorney, entered into agreement with owner of photocopying service USA Photocopy (USA), under which USA paid third party to perform intake interviews with defendant’s clients, which saved defendant significant time and money, and in exchange, defendant used USA’s photocopying and subpoena services during all workers’ compensation proceedings involving those clients’ cases, and although defendant contended that convictions should be overturned because evidence was insufficient to prove he had requisite intent to refer clients for compensation in violation of Labor Code, Court of Appeal found that defendant’s...

Federal Circuit Court Opinion of Related Interest

Kuciemba v. Victory Woodworks, Inc.,  Lexis

Scope of Employer’s Tort Liability—Suits by Dependents—Workplace COVID-19 Transmission—Court of Appeal, Ninth Circuit, affirming district court’s judgment, held that district court properly dismissed action brought by employee Robert Kuciemba and his wife, Corby Kuciemba, in which plaintiffs alleged that Mrs. Kuciemba contracted severe case of COVID-19 from her husband due to employer Victory Woodworks, Inc.’s (Victory) negligent failure to protect its employees from virus, when Ninth Circuit, relying on ruling by California Supreme Court on two questions previously certified by Ninth Circuit in this matter, held that...

Digests of WCAB Decisions Denied Judicial Review

County of Ventura Behavioral Health v. W.C.A.B. (Morefield, Perry),  Lexis

Permanent Disability—Rating—AMA Guides—WCAB, granting reconsideration and amending WCJ’s decision, held that applicant’s industrial injury in form of carpal tunnel syndrome over period 9/22/2014 through 7/25/2018, resulted in 47 percent permanent disability pursuant to reporting of panel qualified medical evaluator (PQME), who rated applicant’s impairment under AMA Guides...

Permanent Disability—Apportionment—WCAB, after granting reconsideration, affirmed WCJ’s finding that panel qualified medical evaluator’s (PQME) reporting was not substantial evidence to support apportionment of applicant’s permanent disability award, when WCAB found that PQME did not analyze apportionment based on factors in Escobedo v. Marshalls (2005) 70 Cal. Comp. Cases 604 (Appeals Board en banc opinion), and specifically, that he did not explain...

Earnings—Calculation—WCAB, after granting reconsideration, affirmed WCJ’s finding that applicant who suffered industrial carpal tunnel syndrome while employed by defendant during period 9/22/2014 through 7/25/2018 was entitled to payment of temporary and permanent disability benefits based on weekly earnings of $1,237.86, when WCAB reasoned that although parties...

San Mateo County Transit District v. W.C.A.B (Brazil, Sherry),  Lexis

Permanent Disability—Commencement of Benefits—WCAB, after granting reconsideration, affirmed WCJ’s finding that applicant who suffered industrial injury to her back and, as compensable consequence, to her right knee and psyche while employed as bus operator on 9/11/2008, was entitled to permanent total disability benefits commencing on 6/13/2009, day following last payment of temporary total disability, when WCAB concluded...

Penalties and Interest—WCAB, after granting reconsideration, affirmed WCJ’s finding that defendant was liable for penalties under Labor Code §§ 4650 and 5814, Labor Code § 5814.5 attorney’s fees, and interest under Labor Code § 5800 on accrued but unpaid sums, when WCAB found that defendant should have commenced permanent total disability payments...

Commutation—Attorney’s Fees—WCAB, granting reconsideration, held that WCJ had authority to commute attorney’s fees pursuant to 8 Cal. Code Reg. §§ 10169 and 10169.1, and noted that commutation of attorney’s fees is routine in workers’ compensation cases, but WCAB found that commutation from far end of applicant’s permanent total disability award was not possible given lifetime award, and amended WCJ’s decision...

State of CA - IHSS v. W.C.A.B. (Sevillano, Sofia),  Lexis

Injury AOE/COE—Burden of Proof—COVID-19—Rebuttal of COVID-19 Presumption—WCAB rescinded decision in which WCJ found that defendant successfully rebutted Labor Code § 3212.86 presumption of industrial causation applicable to applicant’s injury in form of COVID-19, which applicant alleged she incurred while providing home health care services to elderly couple, and WCAB held instead that defendant did not present sufficient evidence to rebut presumption, and, therefore, applicant’s COVID-19 injury was compensable, when WCAB reasoned while “other evidence” rebuttal standard set forth…

Other WCAB Decisions Denied Judicial Review

Automotive Club of Southern California v. W.C.A.B. (Sample, Nelson),  Lexis

Injury AOE/COE—Stress-Related Heart Attack—WCAB, denying reconsideration, affirmed WCJ’s finding that heart attack suffered by decedent on 7/9/2018 while performing computer work at his desk, resulting in his death, was incurred AOE/COE, when applicant (decedent’s dependent) testified that decedent suffered significant stress from his commute to work, his job duties and his need to learn new skills, and although decedent had preexisting heart problems, panel qualified medical evaluator (PQME) opined...

Reichelt (Lawrence) v. W.C.A.B.,  Lexis

Petitions for Writ of Mandate—Moot Petitions—Court of Appeal dismissed applicant’s 3/10/2023 Petition for Writ of Mandate seeking to compel WCAB, after granting reconsideration on 10/23/2020, to issue decision regarding calculation of applicant’s disability retirement benefits, when WCAB issued its decision on 5/31/2023 and Court of Appeal found that WCAB’s action rendered applicant’s Petition for Writ of Mandate moot.

Smith (Debra) v. W.C.A.B.,  Lexis

Petitions for Writ of Mandate—Moot Petitions—Court of Appeal dismissed applicant’s 6/13/2023 Petition for Writ of Mandate seeking to compel WCAB, after granting reconsideration on 8/4/2021, to issue decision regarding applicant’s entitlement to permanent disability benefits, when WCAB issued its decision on 6/20/2023 and Court of Appeal found that WCAB’s action rendered applicant’s Petition for Writ of Mandate moot.

Starr Indemnity & Liability Company v. W.C.A.B. (Ramos, Erick),  Lexis

Injury AOE/COE—Position of Danger as Causal Connection—West Nile Virus—WCAB, denying reconsideration, affirmed WCJ’s decision that applicant, while employed as traffic control flagger by defendant, suffered injury AOE/COE in form of West Nile Virus after being bitten by mosquito at work, when parties stipulated that applicant’s injury was caused by mosquito bite, and WCAB found that applicant’s credible and unrebutted...

Laches—WCAB, denying reconsideration, held that defendant did not prove defense of laches to bar applicant’s claim for industrial injury in form of West Nile Virus contracted from work-related mosquito bite, when defendant’s contention of prejudice caused by any delay in filing of applicant’s claim was unsupported by evidence.

Appeals Board Panel Decisions

CAUTION: These WCAB panel decisions have not been designated a “significant panel decision” by the Workers’ Compensation Appeals Board. Practitioners should proceed with caution when citing to these board panel decisions and should also verify the subsequent history of the decisions. WCAB panel decisions are citeable authority, particularly on issues of contemporaneous administrative construction of statutory language. However, WCAB panel decisions are not binding precedent, as are en banc decisions, on all other Appeals Board panels and workers’ compensation judges. While WCAB panel decisions are not binding, the WCAB will consider these decisions to the extent that it finds their reasoning persuasive.

Byrd (Minnie) v. City of Los Angeles,  Lexis

Medical Treatment—Home Healthcare Services—Replacement of Previously-Approved Providers—WCAB, granting reconsideration, rescinded WCJ’s decision and held that defendant failed to meet its burden of proving change in applicant’s circumstances or condition showing that previously-approved home healthcare services provided by applicant’s daughter were no longer reasonably required to cure or relieve applicant from effects of her industrial injury, and that defendant must pay applicant’s daughter for her services, when WCAB found that applicant was permitted…

Hirsch (Christina) v. Physicians for Healthy Hospitals,  Lexis

Permanent Disability—Apportionment—Disability Caused by Medical Treatment—WCAB, denying reconsideration, affirmed WCJ’s finding that applicant suffered 100 percent permanent disability arising out of industrial medical treatment she received following admitted injury consisting of laceration to her right thumb while working as registered nurse on 2/26/2019, and agreed with WCJ’s determination that...