California Compensation Cases June 2023

CALIFORNIA COMPENSATION CASES

Vol. 88, No. 6 June 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 Case Not Originating with Appeals Board

Quinn v. LPL Financial LLC, Lexis

Employment Classification—ABC Test and Exemptions—Constitutionality—Court of Appeal, affirming trial court’s judgment, held that Labor Code § 2783(d)(1) exemption from application of “ABC test” (first adopted in Dynamex Operations West, Inc. v. Superior Court (2018) 4 Cal. 5th 903, 416 P.3d 1, 232 Cal. Rptr. 3d 1, 83 Cal. Comp. Cases 817, and later codified in Labor Code § 2775(b)(1) through enactment of AB5) for securities broker-dealers and investment advisors to determine employee or independent contractor status, did not violate equal protection because there was rational basis for Legislature to believe financial professionals have...

Digests of WCAB Decisions Denied Judicial Review

County of Los Angeles Fire Department v. W.C.A.B (Castellanos, David), Lexis

Presumption of Industrial Causation—Cancer—Firefighter—Rebuttal of Presumption—WCAB, granting reconsideration, rescinded WCJ’s finding of no industrial injury and held that applicant, while employed as active firefighter, suffered injury AOE/COE in form of testicular cancer, when applicant established application of Labor Code § 3212.1 cancer presumption based on exposure to known carcinogens and manifestation of cancer during his employment, and WCAB concluded that...

MacKenzie Electric, Inc. v. W.C.A.B. (Williams, Thomas David), Lexis

Serious and Willful Misconduct of Employer—WCAB, after granting reconsideration, affirmed WCJ’s decision that applicant suffered industrial injury in backhoe accident, and that accident was caused by employer’s serious and willful misconduct under Labor Code § 4553 and Mercer-Fraser Co. v. I.A.C. (1953) 40 Cal. 2d 102, 251 P.2d 955, 18 Cal. Comp. Cases 3, when, prior to his accident, applicant had informed jobsite foreman that brakes on his backhoe were not operating correctly, but WCAB found no evidence that foreman had...

Pace Supply Corporation v. W.C.A.B. (Williams, Richard), Lexis

Serious and Willful Misconduct of Employer—WCAB, after granting reconsideration, affirmed WCJ’s decision that applicant suffered industrial injury while employed as project manager on 2/23/2017 and that injury, which occurred when applicant was struck by forklift in early morning hours, was caused by serious and willful misconduct of employer pursuant to Labor Code § 4553, when testimony indicated that accident occurred when forklift was traveling forward with load that obstructed operator’s view, that generally forklift operator would travel in reverse with this type of load, dragging load behind him, but because reverse light on forklift was not functioning and it was dark outside, forklift operator was required to drive in forward direction, and that employer was cited for serious Cal/OSHA violation for forklift’s inoperative reverse light, and WCAB found that applicant established...

Other WCAB Decisions Denied Judicial Review

DR Horton v. W.C.A.B. (McElley, Lisa), Lexis

Permanent Disability—Rating—Rebuttal of Scheduled Rating—WCAB, after granting reconsideration, affirmed WCJ’s finding that applicant human resources manager who suffered industrial injury to her neck, back, shoulders, right lower extremity, psyche, face, and in forms of headaches and cognitive disorder on 5/4/2007 when she was thrown from horse during work retreat was rendered permanently totally disabled by her injuries based on applicant’s vocational expert evidence, which WCAB found was sufficient to rebut...

Kolb (Jason) v. W.C.A.B., Lexis

Petitions for Writ of Review—Premature Petitions—Court of Appeal dismissed applicant’s Petition for Writ of Review without prejudice when applicant filed Petition before WCAB had issued final decision.

Orozco-Hernandez (Maria Guadalupe) v. W.C.A.B., Lexis

Petitions for Reconsideration—Time to File Petition—Court of Appeal denied applicant’s Petition for Writ of Review challenging WCAB’s findings, when applicant’s Petition for Reconsideration was dismissed by WCAB because applicant failed to timely file Petition under Labor Code §§ 5900(a) and 5903.

Thaker (Chetan) v. W.C.A.B., Lexis

Petitions for Writ of Review—Untimely Petitions—Court of Appeal dismissed applicant’s Petition for Writ of Review as untimely, when applicant failed to file Petition within 45-day limitation period set forth in Labor Code § 5950 and, therefore, Court of Appeal had no jurisdiction to act on Petition.

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.

Centeno (Ezra) v. Harbor Freight Tools, Lexis

Psychiatric Injury—Good Faith Personnel Actions—WCAB, granting reconsideration, rescinded WCJ’s finding that applicant’s claim for psychiatric injury was not barred by Labor Code § 3208.3(h) good faith personnel action defense, and returned matter to WCJ to revisit issue, when WCAB found that WCJ utilized overly restrictive standard in determining whether events causing applicant’s psychiatric injury were good faith personnel actions, that contrary to WCJ’s finding, it is not necessary that event involve termination, formal disciplinary action, or any adverse action against applicant in order to be considered personnel action for purposes of Labor Code § 3208.3(h), that in his analysis, WCJ failed to recognize that per Larch v. Contra Costa County (1998) 63 Cal. Comp. Cases 831 (Significant Panel Decision), “personnel actions” include broader conduct attributable to management in managing its business, including reviewing, criticizing, demoting, transferring, or disciplining employee, that on remand WCJ must apply broader standard...

Claytor (Sherrill) v. Alexander Latteri, M.D., Lexis

Medical Provider Networks—Transfer of Care—Employer’s Liability for Outside Treatment—WCAB, after granting reconsideration, affirmed WCJ’s finding that applicant who suffered orthopedic industrial injury while employed as doctor’s assistant on 6/12/2014 was permitted to treat with Curtis Spencer, M.D., outside defendant’s medical provider network (MPN), when Dr. Spencer had acted as applicant’s primary treating physician with defendant’s authorization from 7/2014 to 6/2019, and defendant failed to establish effective transfer of applicant’s care to MPN per 8 Cal. Code Reg. §§ 9767.9 and 9767.12 after applicant selected new physician, Scott Small, M.D., as primary treating physician, when evidence showed applicant...

Martinsen (Lon) v. H&H Enterprises, Inc., Lexis

Medical-Legal Procedure—Ex Parte Communications—WCAB, granting reconsideration in split panel opinion, rescinded WCJ’s finding that panel qualified medical evaluator (PQME) engaged in improper ex parte communication with applicant, thereby requiring replacement PQME in psychology, and WCAB panel majority, citing Alvarez v. W.C.A.B. (2010) 187 Cal. App. 4th 575, 114 Cal. Rptr. 3d 429, 75 Cal. Comp. Cases 817, found instead that 9/23/2016 communication between PQME’s office and applicant’s attorney’s office was simple request for clarification on when and whether PQME should review surveillance videos rather than nefarious attempt to conspire with applicant’s attorney, and that because communication was insignificant and inconsequential as described in Alvarez, replacement of PQME was not supported; Commissioner Razo, dissenting, agreed with WCJ that...

Ruhl (Nathan) v. Kansas City T-Bones, Lexis

WCAB Jurisdiction—Professional Athletes—WCAB, after granting reconsideration, affirmed WCJ’s finding that applicant’s claim for industrial injury to multiple body parts during period 1996 to 2005 while playing professional baseball for California and out-of-state teams was barred by Labor Code § 3600.5(d)(1)(B), when WCAB found that (1) applicant’s work for Los Angeles Dodgers (including Dodgers’ out-of-state affiliate minor-league teams) qualified as work for California-based team for purposes of Labor Code...