California Compensation Cases September 2021

CALIFORNIA COMPENSATION CASES

Vol. 86, No. 9 September 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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LexisNexis Online Subscribers: You can link to your account on Lexis Advance to read the complete headnotes and court decisions, en banc decisions, writ denied summaries, panel decisions and IMR decisions.

Supreme Court Cases Not Originating With Appeals Board

Gonzalez v. Mathis, Lexis Advance

Peculiar Risk Doctrine/Premises Liability—Exceptions to Privette Rule—Known Hazards on Premises—Supreme Court, reversing Court of Appeal’s judgment in favor of plaintiff, held that property owner who hired plaintiff professional window washer to clean skylight was not liable for injuries plaintiff incurred when he slipped and fell from roof while walking on narrow, slippery path between exposed edge of roof and parapet wall, when plaintiff was aware of various hazardous conditions on roof, and Supreme Court found...

Sandoval v. Qualcomm Incorporated, Lexis Advance

Peculiar Risk Doctrine/Premises Liability—Application of Exceptions to Privette Rule—Supreme Court, reversing Court of Appeal’s judgment in favor of plaintiff, held that company that hired contractor to inspect amperage of switchgear equipment on its premises had no liability to contractor’s worker (plaintiff) for severe burn injuries he incurred after contractor negligently removed protective cover on live electrical circuit while work was underway, notwithstanding hirer’s performance of partial “power-down” process that preceded contractor’s work and resulted in presence of live electrical circuit, when Supreme Court held...

Peculiar Risk Doctrine/Premises Liability—Application of Exceptions to Privette Rule—Jury Instructions—Supreme Court, reversing Court of Appeal’s judgment in favor of plaintiff, held that CACI No. 1009B pattern jury instruction did not adequately instruct jury on necessary elements of “retained control” exception to Privette’s bar to hirer liability, as jury instruction improperly mixed elements of “concealed hazards” and “retained control” exceptions to Privette rule and used language that did not adequately capture elements necessary to establish “retained control” exception.

Appellate Court Case Not Originating With Appeals Board

People, The v. Czirban, Lexis Advance

Employment Relationships—Application of Borello—Criminal Proceedings—Court of Appeal, affirming trial court’s judgment, upheld defendant’s convictions for tax evasion, failure to report and withhold payroll taxes, and failure to secure payment of workers’ compensation insurance following fatal accident involving his bulldozer, which had been assigned to assist California Department of Forestry and Fire at wildfire, and court rejected…

Superior Court Opinion of Related Interest

Castellanos v. State of California, Lexis Advance

App-Based Gig Workers—Proposition 22—Constitutionality and Enforceability—Alameda County Superior Court, granting petition filed by several rideshare drivers and union, issued writ of mandate compelling State of California and Director of California Department of Industrial Relations to cease enforcement of Proposition 22’s provisions (Bus. & Prof. Code § 7448 et seq.) as unconstitutional, when Superior Court found that Proposition 22’s…

Digests of WCAB Decisions Denied Judicial Review

Allied Waste Systems, Inc. v. W.C.A.B. (Mondragon, Javier), Lexis Advance

Permanent Disability—Rating—Functional Capacity Evaluation—WCAB rescinded WCJ’s award of 49 percent permanent disability for applicant’s admitted industrial injury to his right hip and lumbar spine while employed as truck driver on 4/11/2016, and returned matter to trial level for parties to obtain new Functional Capacity Evaluation (FCE) to provide to agreed medical examiner, when agreed medical examiner found…

Castaneda (Maria) v. W.C.A.B., Lexis Advance

Penalties—Employer’s Delay in Providing Medical Treatment—WCAB, affirming WCJ’s decision, held that defendant did not unreasonably deny medical treatment for applicant’s 3/29/2012 left shoulder injury, and was therefore not liable for penalty under Labor Code § 5814, when defendant had provided treatment for applicant’s shoulder and authorized shoulder surgery until receiving report from replacement qualified medical evaluator concluding that shoulder injury was not due to applicant’s work, after which defendant denied liability for shoulder injury, and WCAB found…

County of Sacramento Sheriff’s Department v. W.C.A.B (Keillor, Tracie), Lexis Advance

WCAB Jurisdiction—Collateral Estoppel—Binding Effect of Civil Court Decisions—WCAB, affirming WCJ’s decision, held that employer was collaterally estopped from asserting in workers’ compensation case that applicant deputy sheriff’s 2/13/2013 stroke was not industrially-related, when applicant, in civil suit against employer for retaliation, successfully asserted that cumulative stress she suffered as result of retaliation caused her to suffer stroke, and WCAB found that identical issue…

Other WCAB Decisions Denied Judicial Review

Fiducia (Wayne) v. W.C.A.B., Lexis Advance

Petitions for Reconsideration—Dismissal of Successive Petitions—WCAB dismissed applicant’s Petition for Reconsideration based on its finding that Petition was successive because applicant, in pro per, raised same issues and arguments raised in earlier Petitions for Reconsideration in which he did not prevail, and no new evidence was accepted or considered at time of WCAB’s decision on original petitions.

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.

Fernandez (Gene) v. County of Tulare, Lexis Advance

Medical-Legal Procedure—Selection and Assignment of Panel Qualified Medical Evaluators—WCAB, denying removal, held that defendant was not denied due process when, over defendant’s objection, Medical Unit issued new qualified medical evaluator panel in chiropractic specialty after applicant became represented by counsel and requested replacement of podiatry panel Medical Unit had previously issued per defendant’s request pursuant to Labor Code § 4062.1 before applicant obtained representation, when WCAB found that applicant’s…

Wiest (Scott) v. California Department of Corrections and Rehabilitation, Lexis Advance

Permanent Disability—Rating—Combining Multiple Disabilities—WCAB affirmed WCJ’s finding that applicant plumber was permanently totally disabled, without apportionment, by 5/19/2015 industrial injuries to his right foot and ankle, both legs resulting in bilateral below-knee amputations, lumbar spine, vascular system, sleep, and psyche, and held that to find permanent disability, WCJ properly added…

Permanent Disability—Apportionment—Preexisting Non-Industrial Conditions—WCAB affirmed WCJ’s finding that applicant suffered 100 percent permanent disability as result of 5/19/2015 industrial injuries, and that based on qualified medical evaluator’s opinion there was no justification for apportionment of applicant’s disability to preexisting, nonindustrial diabetes, when WCAB found that although…