California Compensation Cases July 2023

CALIFORNIA COMPENSATION CASES

Vol. 88, No. 7 July 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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Supreme Court Case Not Originating with Appeals Board

Kuciemba v. Victory Woodworks, Inc.,  Lexis

Scope of Employer’s Tort Liability—Suits by Dependents—Workplace COVID-19 Transmission—Supreme Court of California, ruling on two questions certified by U.S. Court of Appeals, Ninth Circuit, for determination, held that derivative injury doctrine did not bar spouse’s tort claims against her husband’s employer, defendant Victory Woodworks, Inc., for injuries she incurred after contracting COVID-19 from her husband, who was exposed to virus in his workplace, because spouse’s negligence claims were not legally or logically dependent on any workplace injury sustained by her husband, and “but for” causal link between spouse’s injury and her husband’s exposure to COVID-19 at work was insufficient, on its own, to render claims derivative; Supreme Court, citing...

Appellate Court Cases Not Originating with Appeals Board

Cauwels (Timothy) v. Johnson,  Lexis

Third-Party Actions—Safety Personnel—Firefighter’s Rule—Court of Appeal, affirming trial court’s grant of summary judgment in favor of defendant rental car company, held that personal injury action filed by plaintiff police officer injured when his police cruiser was rammed by fleeing felon driving rental car stolen from defendant’s lot under fraudulent pretenses, was barred by firefighter’s rule precluding emergency responders from suing third parties for negligence when negligent conduct in question caused emergency that summoned responders, when Court of Appeal concluded that although plaintiff was not actually involved in pursuit of suspect...

Jones (Daquan) v. City of Firebaugh,  Lexis

Third-Party Actions—Damages—Collateral Source Rule—Court of Appeal, reversing trial court’s order and remanding matter, held that trial court abused its discretion by denying City’s motion for reduction of judgment pursuant to Government Code § 985 based on workers’ compensation benefits paid to plaintiff prior to trial totaling $1,253,884.43, which City asserted was sole collateral source and should be deducted from amount awarded against City in plaintiff’s civil lawsuit, when court of appeal reasoned that language of Government Code...

Slagel v. Liberty Mutual Insurance Company,  Lexis

Wrongful Termination—Age/Disability Discrimination and Retaliation—Court of Appeal, partially reversing trial court’s grant of summary judgment in favor of defendants Liberty Mutual Insurance Company (Liberty Mutual) and two supervisors in wrongful termination action, held that triable issues of material fact existed as to whether defendants harbored discriminatory motive for discharging plaintiff, when plaintiff, who had worked for Liberty Mutual for 30 years primarily as senior case manager and was assigned to Liberty Mutual’s Disney account, alleged that she was terminated due to her age, disability, and complaints about age-based discrimination, and while defendants did not dispute plaintiff’s membership in protected categories, nor that she made complaints about age-based discrimination and was thereafter terminated, they asserted that plaintiff was terminated for misconduct, specifically for failing to obtain social media report requested by Disney on one of its workers’ compensation claimants, telling Disney that report had been ordered when it had not, and attempting to conceal her error by making false entry into Liberty Mutual’s claims tracking program, and Court of Appeal found that...

Sanctions—Pleading of Claims—Age/Disability Discrimination and Retaliation—Court of Appeal, vacating trial court’s costs and sanctions award, held that sanctions imposed on plaintiff under Code of Civil Procedure § 128.7(b)(3) for allegedly pursuing unsupported age discrimination claims against her supervisor were inappropriate, when Court of Appeal reasoned that to obtain sanctions, moving party must establish...

Appeals Board En Banc Decision

Nunes (Grace) v. State of California, Dept. of Motor Vehicles,  Lexis

Permanent Disability—Apportionment—WCAB, granting reconsideration en banc, rescinded decision in which WCJ found that applicant, who suffered specific industrial injury to her neck, upper extremities and left shoulder on 9/13/2011 and injury to her upper extremities cumulatively from 9/13/2010 to 9/13/2011 while employed as motor vehicle field representative, was entitled to unapportioned award of 100 percent permanent disability for her injuries, and WCAB returned matter to trial level for further proceedings, when WCJ’s decision failed to adequately address issues submitted for decision by parties, including permanent disability and apportionment for each injury claimed by applicant, and, in returning matter to WCJ, WCAB concluded...

Digests of WCAB Decisions Denied Judicial Review

Illinois Midwest Insurance Agency v. W.C.A.B. (Richmond, Michelle),  Lexis

Permanent Disability—Rating—Rebuttal of Scheduled Rating—WCAB, denying reconsideration, affirmed WCJ’s finding that applicant suffered 77 percent permanent disability as result of industrial injury to her elbows, arms, thumbs, wrists, and right shoulder while working as stocker/cashier during cumulative period ending on 5/19/2014, when panel qualified medical evaluator (PQME) departed from strict AMA Guides...

Permanent Disability—Apportionment—Prior Awards—WCAB, denying reconsideration, affirmed WCJ’s determination that there was no basis for apportionment of applicant’s 77 percent permanent disability to prior permanent disability award pursuant to Labor Code § 4664 and Kopping v. W.C.A.B. (2006) 142 Cal. App. 4th 1099, 48 Cal. Rptr. 3d 618, 71 Cal. Comp. Cases 1229, when WCAB found that defendant failed to prove overlap of prior and current permanent disabilities, where disabilities were rated...

State Compensation Insurance Fund v. W.C.A.B. (Mills, Rebecca),  Lexis

Injury AOE/COE—Stress-Related Injuries—WCAB, denying reconsideration, affirmed WCJ’s finding that applicant sustained industrial injury in form of stroke and compensable consequence psychiatric injury from work stress while employed as claims adjuster during period 2/4/2002 through 12/30/2016, when applicant met burden of showing that her employment was contributing cause of stroke based on testimony that applicant’s work involved extreme stress on daily basis over cumulative period of 14 years and medical evidence establishing that applicant had increased level of stress and blood pressure greater than 200 contemporaneous with her stroke, that stressful work environment contributed to and ultimately resulted in cardiac vascular injury, and that applicant suffered compensable consequence adjustment disorder as result of stroke.

Other WCAB Decisions Denied Judicial Review

Casillas (Manuel) v. W.C.A.B.,  Lexis

Permanent Disability—Apportionment—WCAB, denying reconsideration, affirmed WCJ’s findings that applicant mechanic’s 8/19/2014 industrial injuries to his head, neck, right shoulder, and psyche caused 76 percent permanent disability, after apportionment, and that applicant failed to prove injuries resulted in 100 percent permanent disability, when WCAB determined that no medical expert concluded applicant was unemployable, that medical experts apportioned 50 percent of applicant’s cervical spine disability and 10 percent of his psychiatric disability to preexisting factors, and that although applicant’s vocational expert found applicant unemployable based on factors described by doctors, vocational expert failed to acknowledge medical apportionment of applicant’s disability and fact that industrial injury was not sole cause of disability.

State of California In-Home Supportive Services v. W.C.A.B. (Nito, Claudia),  Lexis

WCAB Procedure—Amendment of Pleadings—WCAB, denying reconsideration, held that applicant’s 12/20/2018 Amended Application for Adjudication of Claim naming In-Home Supportive Services (IHSS) as party defendant and amending date of injury was valid Application for Adjudication of Claim against IHSS, and that applicant was not required to file new Application, when WCAB reasoned that 8 Cal. Code Reg. § 10617 provides for considerable latitude in accepting nonstandard pleadings so long as pleadings contain sufficient information to establish...

Statute of Limitations—Cumulative Injury—Date of Injury—WCAB, denying reconsideration, held that applicant’s claim against In-Home Supportive Services (IHSS) for cumulative trauma to multiple body parts during period 3/1/2016 to 6/14/2017 was not barred by one-year statute of limitations in Labor Code § 5405, when WCAB found that applicant’s Labor Code § 5412 date of injury based on concurrence of disability and knowledge that disability was work-related was...