California Compensation Cases March 2021 Issue

CALIFORNIA COMPENSATION CASES

Vol. 86, No. 3 March 2021

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 Cases Not Originating With Appeals Board

Fernandez v. Escutia, Lexis Advance

Workers’ Compensation Insurance Coverage—Contractor Licensing Requirements—Court of Appeal, affirming trial court’s judgment, held that contractor hired by plaintiffs to construct home for them, obtained and maintained adequate workers’ compensation insurance coverage in substantial compliance with Business and Professions Code §§ 7031 and 7125.2, and was properly licensed during relevant construction period, when Court of Appeal rejected plaintiffs’ assertion that contractor’s underreporting of his payroll, misclassification of employees and use of unlicensed contractors on their construction project was analogous to…

Attorney’s Fees—Breach of Contract—Court of Appeal, reversing trial court’s order, held that trial court erroneously awarded defendant attorney’s fees pursuant to Civil Code § 1717 (permitting recovery of attorney fees “on a contract”) and Code of Civil Procedure § 1021 (permitting parties to contractually agree to award of attorney’s fees for tort and other statutory causes of action) for defending against plaintiffs’ claim that defendant lacked adequate workers’ compensation insurance coverage during construction of their home, when Court of Appeal found that plaintiffs’ workers’ compensation cause of action alleging that defendant did not maintain complete workers’ compensation insurance coverage did not seek to enforce parties’ contractual rights...

Gonzalez (Francisco) v. Soares, Lexis Advance

Employee’s Civil Action Against Employer—Pleading Exclusive Remedy Rule as Affirmative Defense—Court of Appeal, affirming trial court’s decision, held that defendants’ focus on Labor Code § 3601 rather than more applicable Labor Code § 3602 in their answer to plaintiff employee’s civil complaint did not render answer inadequate in pleading workers’ compensation exclusive remedy rule as affirmative defense, nor did it compel trial court to find that defendants waived right to raise this defense to civil suit, when Court of Appeal concluded that defendants were not required to allege specific code section on which they based their exclusive remedy rule defense…

Insurance Coverage—Policy Interpretation—Workers’ Compensation Exclusive Remedy Rule—Court of Appeal affirmed trial court’s finding that liability of defendant Teresa Soares for workers’ compensation benefits was within coverage of insurance policy issued by insurer and, consequently, workers’ compensation was plaintiff employee’s exclusive remedy against Teresa Soares for injuries sustained in mobile home fire on defendants’ premises, when Teresa Soares and her husband, defendant Jose Soares, employed plaintiff to work at dairy they operated as sole proprietorship, and Court of Appeal found that although workers’ compensation insurance policy named only Jose Soares dba Jose Soares Dairy and not Teresa Soares, thereby creating ambiguity as to identity of insured, policy must be construed to protect reasonable expectations of insured...

Employee’s Civil Action Against Employer—Application of Exclusive Remedy Rule to Trustees—Court of Appeal, affirming trial court’s decision, held that defendants Teresa Soares and Jose Soares, as trustees of J&T Soares 2006 Trust, were not subject to civil liability as sole trustees of revocable trust for injuries sustained by plaintiff employee in fire at mobile home owned by defendants in trust, when Court of Appeal found that there is no legal distinction between property owned by revocable trust and property owned by settlor of trust during settlor’s lifetime, that all trust property at issue in this case was property owned by defendants Jose and Teresa Soares, that J&T Soares 2006 Trust could not be held liable, separately from defendants individually, for condition of mobile home and premises held in trust at time of plaintiff’s injury, and that workers’ compensation was plaintiff’s exclusive remedy for his injuries.

People v. Paredes, Lexis Advance

Workers’ Compensation Insurance Fraud—Illegal Patient Referrals—Substantial Evidence—Court of Appeal, affirming trial court’s judgment, rejected defendant’s allegation of prosecutorial misconduct and his assertion that trial court improperly excluded evidence, and found substantial evidence to support trial court’s judgment that defendant was guilty of 35 counts of workers’ compensation fraud in violation of Labor Code § 3215, and 16 counts of insurance fraud in violation of Penal Code § 550(b)(3) for participation in illegal patient referral scheme whereby several chiropractic clinics received payment for workers’ compensation patient referrals to Advanced Radiology for MRIs, when Court of Appeal found that…

Digests of WCAB Decisions Denied Judicial Review

California Highway Patrol v. W.C.A.B. (Hazelbaker, Kenneth), Lexis Advance

Presumption of Industrial Causation—Cancer—Highway Patrol Officers—WCAB, affirming WCJ’s decision, held that applicant suffered cumulative injury in form of prostate cancer over period 10/15/81 to 11/2/2006 while employed as CHP officer, and that applicant was entitled to application of presumption of industrial causation in Labor Code § 3212.1, when WCAB found that applicant’s cancer first manifested in 2017, and qualified medical evaluator found that latency period for prostate cancer can extend back as far as 20 years, which placed development of applicant’s cancer within period of his employment with defendant…

Average Weekly Wages—Presumption of Maximum Earnings for Retired Public Safety Members—WCAB, affirming WCJ’s decision, held that applicant who suffered industrial injury in form of prostate cancer while working as CHP officer was maximum earner for purposes of calculating permanent disability benefits pursuant to Labor Code § 4458.5 and City of Pinole v. W.C.A.B. (Field) (2018) 84 Cal. Comp. Cases 22 (writ denied), even though Labor Code § 3212.1 presumption applicable to applicant’s cancer is not specifically listed in Labor Code § 4458.5, as are other presumption statutes, when WCAB reasoned that exclusion of Labor Code § 3212.1 from list was presumably because Labor Code § 3212.1 was enacted after Labor Code § 4458…

Williams (Eric) v. W.C.A.B., Lexis Advance

Injury AOE/COE—Off-Duty Athletic/Recreational Activities—WCAB, rescinding WCJ’s decision in split panel opinion, held that applicant firefighter’s claim for injury to his head, brain and other body parts incurred on 1/6/2015 during his participation in off-duty CrossFit class was barred under Labor Code § 3600(a)(9) and Ezzy v. W.C.A.B. (1983) 146 Cal. App. 3d 252, 194 Cal. Rptr. 90, 48 Cal. Comp. Cases 611, when WCAB panel majority found that evidence did not establish subjective belief by applicant that participation in CrossFit class was required or expected by defendant, or that such belief would be objectively reasonable, where defendant had its own fitness program that provided firefighters with paid exercise time and use of exercise equipment on its premises, and WCAB determined that applicant’s testimony regarding defendant’s expectations that firefighters stay in good physical condition and general assertions of benefit to defendant were insufficient, in themselves, to establish compensability of injury sustained in off-duty CrossFit class…

Other WCAB Decisions Denied Judicial Review

Dave & Buster’s, Inc. v. W.C.A.B. (Sehorn, Scott), Lexis Advance

Injury AOE/COE—Substantial Medical Evidence—WCAB affirmed WCJ’s finding that totality of agreed medical examiner’s opinions were substantial evidence to support WCJ’s finding that applicant, while working as waiter on 7/15/2016, suffered injury AOE/COE to his right foot and right ankle when he took normal flat step, and that he developed complex regional pain syndrome as result of his injury, when agreed medical examiner thoroughly examined applicant, reviewed all medical records, and provided well-reasoned explanation for his opinions, and WCAB found that parties presumably chose agreed medical examiner because of his expertise and neutrality, that it is well-established that relevant and considered opinion of one physician may constitute substantial evidence...

EmpRes Healthcare, Inc. v. W.C.A.B. (Guerrero, Martha), Lexis Advance

Petitions for Writ for Review—Untimely Petitions—Court of Appeal denied defendant’s Petition for Writ of Review as untimely under Labor Code § 5950 and California Rules of Court, rule 8.720(a), when Petition was not filed within requisite 45 days after WCAB issued order dismissing defendant’s Petition for Disqualification.

Pforr (Nguyet) v. W.C.A.B., Lexis Advance

Injury AOE/COE—Substantial Medical Evidence—WCAB, affirming WCJ’s decision, held that reporting of panel qualified medical evaluator constituted substantial medical evidence to support finding that applicant did not sustain new cumulative injury to her psyche, arms, neck, right shoulder, and right elbow while employed as bank teller from 1/1/97 to 12/1/2012, when panel qualified medical evaluator conducted thorough examination of applicant, performed diagnostic testing, reviewed relevant medical records, and offered well-reasoned and persuasive opinion that applicant only suffered new industrial injury to her right wrist, and that alleged injuries to other body parts were simply flare-ups and/or natural progression of prior specific industrial injury incurred by applicant in 1995 when she was assaulted by bank robber, and WCAB found panel qualified medical evaluator’s opinion more persuasive than other medical evidence in record, and noted that relevant and considered opinion of one physician may constitute substantial evidence, even if inconsistent with other medical opinions in record.

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.

Mackie (Kenneth) v. Planada Elementary School District, Lexis Advance

Medical Treatment—Independent Medical Review—Appeals—WCAB, amending WCJ’s decision, granted applicant’s appeal of 5/19/2020 independent medical review (IMR) determination pursuant to Labor Code § 4610.6(h)(1) and (5), and remanded parties’ utilization review (UR)/ IMR dispute to Administrative Director for new IMR, with recommendation that IMR reviewing physician be in specialty of audiology, which was same specialty as applicant’s treating physician, when medical treatment denied by defendant’s UR consisted of treatments for tinnitus that resulted from cumulative trauma during applicant’s employment as music teacher from 3/24/2003 to 2/27/2004, and WCAB, citing Sanchez v. Central Contra Costa Transit, 2020 Cal. Wrk. Comp. P.D. LEXIS 189(Appeals Board noteworthy panel decision), found that IMR reviewing physician’s failure to review three research studies submitted by applicant despite physician’s obligation to look at all submitted reports and consider entire record rather than picking and choosing portions of record to review, was plainly erroneous and in excess of Administrative Director’s authority, and WCAB also noted that while UR/IMR statutes do not require IMR reviewing physician to be in same specialty as treating physician, and there was not clear evidence that IMR reviewing physician here, with specialties in anesthesiology and palliative/pain medicine, was unqualified to conduct review of disputed treatment, because disputed treatment was within expertise of hearing/ear specialist, second IMR review conducted by physician with such expertise would be preferable.

Sturm (Charlene) v. Coronado Unified School District, Lexis Advance

Psychiatric Injury—Increased Permanent Disability—Violent Acts—WCAB, in split panel opinion, affirmed WCJ’s finding that applicant who required amputation of her left index finger after sustaining industrial crush injury on 12/11/2017 was entitled to increased impairment rating for psychiatric injury, when WCAB panel majority concluded that mechanism of applicant’s injury constituted “violent act” pursuant to Labor Code § 4660.1(c)(2)(A) as it resulted from strong physical force when applicant closed heavy gate on her finger, thereby falling within exception to bar against separate impairment rating for psychiatric injury arising out of compensable physical injury, and WCAB found no meaningful distinction between mechanism of applicant’s injury and finger amputations…