California Compensation Cases September 2023

CALIFORNIA COMPENSATION CASES

Vol. 88, No. 9 September 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

LexisNexis Online Subscribers: You can link to your account on Lexis+ to read the complete headnotes and court decisions, en banc decisions, writ denied summaries, panel decisions and IMR decisions.

Appellate Court Compensation Case

Department of Corrections and Rehabilitation v. W.C.A.B. (Ayala, Michael),  Lexis

Employer’s Serious and Willful Misconduct—Industrial Disability Leave—Court of Appeal, annulling WCAB’s decision and remanding matter, held that applicant correctional officer who received industrial disability leave (IDL) benefits after being severely injured in preplanned attack by prison inmates, was not entitled to increased compensation for employer’s serious and willful misconduct under Labor Code § 4553, which provides for 50 percent increase of “compensation otherwise recoverable,” when Court of Appeal found that “compensation,” as defined in Labor Code...

Appellate Court Cases Not Originating with Appeals Board

Allstate Insurance Company, The People ex rel. v. Discovery Radiology Physicians, P.C.; Allstate Insurance Company, The People ex rel. v. OneSource Medical Diagnostics, LLC,  Lexis

Insurance Fraud—Unlicensed Practice of Medicine—Statute of Limitations—Court of Appeal, reversing trial court’s judgment, held that insurer’s qui tam complaints alleging insurance fraud against various medical corporations, physicians, and non-physician individual Sattar Mir (Mir), adequately pled causes of action under Insurance Frauds Prevention Act (IFPA) (Insurance Code § 1871 et seq.) and derivative Unfair Competition Law (UCL) (Business & Professions Code § 17000 et seq.), when operative complaints alleged that defendant corporations, owned and operated by non-physician Mir, engaged in unlicensed practice of medicine in violation of Medical Practice Act…

Jimenez v. Mrs. Gooch’s Natural Food Markets, Inc.,  Lexis

Exclusive Remedy Rule—Exceptions—Dual Capacity and Fraudulent Concealment—Court of Appeal, affirming trial court’s judgment sustaining demurrer without leave to amend, held that wrongful death action filed by decedent’s widow and children (plaintiffs) against decedent’s employer (defendant) after decedent was hit by truck and fatally injured at work, was barred by workers’ compensation exclusive remedy rule, and that neither dual capacity exception nor fraudulent concealment exception to workers’ compensation exclusivity applied in this case, when Court of Appeal found (1) with respect to dual capacity doctrine, that... [NOTE FROM PUBLISHER: THIS CASE WAS RECENTLY CERTIFIED FOR PUBLICATION]

Appeals Board En Banc Decision

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

Permanent Disability—Apportionment—WCAB, denying reconsideration en banc, affirmed its prior decision that vocational apportionment is not valid under Labor Code § 4663 and may not replace valid medical apportionment found by evaluating physicians based on substantial evidence, when applicant’s Petition for Reconsideration did not challenge WCAB’s determination that WCJ failed to comply with...

Digests of WCAB Decisions Denied Judicial Review

California Insurance Guarantee Association v. W.C.A.B. (Elaneh, Karim),  Lexis

Permanent Disability—Rating—Vocational Expert Evidence—WCAB, denying reconsideration, affirmed WCJ’s finding that applicant was entitled to unapportioned award of 100 percent permanent disability for 6/6/2011 industrial injury caused by incident of workplace violence, when applicant suffered permanent disability to 16 separate body parts/systems as result of incident, applicant’s vocational expert found that applicant was not amenable to vocational rehabilitation and not able to return to open labor market due to his industrial injuries, and WCAB determined that reporting of applicant’s vocational expert was more persuasive than...

Montelongo (Pedro) v. W.C.A.B.,  Lexis

Sanctions—Bad Faith Conduct—Liability of Insurer for Acts of Insured—WCAB, after granting reconsideration, affirmed WCJ’s finding that defendant State Compensation Insurance Fund (SCIF) was not liable for Labor Code § 5813 sanctions or costs incurred due to bad faith actions of its insured employer, when WCAB found that SCIF did not engage in any bad faith...

State Farm Insurance v. W.C.A.B. (Sabo, Tyler),  Lexis

Third-Party Actions—Employer’s Negligence—Credit Rights—WCAB, after granting reconsideration, affirmed WCJ’s finding that employer’s negligence contributed 20 percent to injuries incurred by applicant on 8/25/2017 while working as sign holder/spinner, and that employer was required to pay $2,000,000.00 in workers’ compensation benefits before asserting its credit for applicant’s net recovery in amount of $103,529.99 from third-party civil action, when WCAB found that testimony of applicant’s witnesses established by preponderance of evidence that employer’s...

Other WCAB Decisions Denied Judicial Review

Fenix Marine Services, Ltd v. W.C.A.B. (Duran, Rebecca),  Lexis

Psychiatric Injury—Burden of Proof—Substantial Medical Evidence—WCAB, after granting reconsideration, affirmed WCJ’s finding that applicant who suffered admitted orthopedic injury to multiple body parts on 4/10/2019 while employed as utility tractor rig driver, also sustained compensable psychiatric injury pursuant to Labor Code § 3208.3(b)(1), when agreed medical examiner (AME) opined that applicant’s industrial orthopedic injury aggravated her preexisting anxiety disorder and concluded that accident at work was predominant as to all causes of psychiatric injury, and WCAB determined that AME’s opinion was substantial evidence to support WCJ’s finding that industrial injury was predominant cause of psychiatric injury, and rejected defendant’s assertion that AME’s reporting was insufficient because it did not apportion causation of psychiatric injury based on specific percentages.

Godman (Samuel Agyei-Fosu) 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.

Hodges (Glen) v. W.C.A.B.,  Lexis

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

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.

Lelong (Christophe) v. Beverly Hills Police Department,  Lexis

Presumption of Industrial Causation—Blood-Borne Infectious Diseases—Peace Officers—WCAB, after granting reconsideration, affirmed decision in which WCJ found that applicant, while employed as police officer from 12/18/2019 through 1/9/2020, sustained industrial injury to his sinuses and respiratory system, and that his injury arose from blood-borne infectious disease, triggering Labor Code § 3212.8 presumption of industrial causation which defendant did not rebut, when WCAB reasoned that…

Saavedra (Virginia) v. Michael Sullivan Associates, LLP,  Lexis

WCAB Procedure—Substitution of Insurer for Employer—WCAB, after granting reconsideration, rescinded WCJ’s order dismissing defendant Michael Sullivan & Associates (Michael Sullivan) as party to workers’ compensation proceeding pursuant to Labor Code § 3755, and instead dismissed Michael Sullivan pursuant to Labor Code §§ 3757 and 3759, when record showed that Employers Assurance Group (Employers Assurance) joined proceeding as Michael Sullivan’s workers’ compensation carrier and assumed liability for any potential compensation owed to applicant and, therefore, WCAB was permitted to substitute...