California Workers' Comp Case Roundup (2/5/2017)

CALIFORNIA COMPENSATION CASES

Vol. 82 No. 1 Jan 2017

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.com or Lexis Advance to read the complete headnotes and court decisions, en banc decisions, and writ denied summaries.

Appellate Court Cases Not Originating With Appeals Board

Cady v. Cooper, Lexis Advance

Confidential Information—Disclosure—Litigation Privilege—Court of Appeal, affirming trial court’s grant of summary judgment in favor of defendant, held that disclosure of confidential information was absolutely protected by litigation privilege of Civil Code § 47(b), when Court of Appeal found that during dissolution proceedings of plaintiff mother’s second marriage, family law court appointed evaluator to render assessment about custody and visitation of couple’s minor children, that plaintiff mother signed authorization allowing for defendant, from whom she had received counseling or therapy during first marriage, to disclose…

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Hancock (Patricia) v. Time Warner Cable Services, LLC, Lexis Advance

Disability Discrimination—Failure to Accommodate—Failure to Engage in Interactive Process—Court of Appeal, reversing trial court’s judgment in favor of plaintiff, held that evidence showed that defendant did not know that plaintiff was disabled or that plaintiff had ever asked for any accommodation, as required by law, when Court of Appeal found that plaintiff…

Healthsmart Pacific, Inc. v. Kabateck, Lexis Advance

Anti-SLAPP Suit—Protected Activity—Fair Report Privilege—Court of Appeal, affirming trial court order in defendants’ favor, held that statements made by attorney defendants to news media constituted protected activity under anti-SLAPP statute, Code of Civil Procedure § 425.16(e)(4), and were covered by fair report privilege, Civil Code § 47(d), and that plaintiffs had not established probability of success on merits of their claims, when Court of Appeal found that...

Public Service Mutual Insurance Co. v. Svetli, Lexis Advance

Workers’ Compensation Insurer—Third Party Tortfeasor—Reimbursement—Court of Appeal, affirming trial court’s dismissal of insurer’s complaint in intervention, held that settlement between applicant and third party tortfeasor, pursuant to which applicant dismissed complaint against third party tortfeasor in exchange for mutual waiver of costs, resulted in no monetary recovery by applicant from which insurer could obtain reimbursement for benefits paid to applicant, when Court of Appeal found that…

Federal District Court Opinions of Related Interest

California Insurance Guarantee Association v. Burwell, Lexis Advance

California Insurance Guarantee Association—Medicare—Reimbursement—U.S. District Court, Central District of California, denying defendant Center for Medicare & Medicaid Services’ motion to dismiss and motion for summary judgment, and granting plaintiff California Insurance Guarantee Association’s motion for partial summary judgment, held that defendant’s interpretations of Medicare Secondary Payer statute, 42 U.S.C.S. § 1395y, and relevant regulations were contrary to law and not entitled to deference, when court found that...

Latham (Robert) v. Cambria Company LLC, Lexis Advance

Fair Employment and Housing Act—Discrimination—Failure to Accommodate—Retaliation—Wrongful Termination—U.S. District Court, Central District of California, Southern Division, granting in part defendant’s motion for summary judgment and striking plaintiff’s cross-motion for summary judgment, granted defendant’s motion for summary judgment on plaintiff’s actual and perceived discrimination claims as they related to plaintiff’s employment by defendant as regional account representative, denied defendant’s motion…

Digests of WCAB Decisions Denied Judicial Review

Editorial Board members Melissa C. Brown, Hon. Joel K. Harter, James T. Ponzio, and Hon. Ralph Zamudio recommended the following writ denied cases for summarization in this issue.

Enstar (US) Inc. v. W.C.A.B. (Rodriguez, Alex), Lexis Advance

Medical-Legal Procedure—Medical Evaluator Reporting Timeframes— WCAB rescinded WCJ’s finding that defendant was not obligated to pay bills of panel qualified medical evaluator in pain management, Anuj Gupta, M.D., for two medical-legal reports, based on Dr. Gupta’s failure to timely issue reports pursuant to Labor Code § 4062.5, when WCAB concluded that…

Tri-County Medical Group, Inc. v. W.C.A.B. (Paz, Gladys), Lexis Advance

Liens—Procedural Rights and Duties—Statute of Limitations—WCAB affirmed WCJ’s finding that 18-month statute of limitations in Labor Code § 4903.5(a), not three-year limitations period, applied to lien claim filed by lien claimant Tri-County Medical Group on 10/19/2015 for services lien claimant continuously provided to applicant from 1/21/2013 to 12/23/2013, and that lien claimant’s lien was barred for failure to timely file lien within requisite 18-month period, when WCAB found that…

Von Ritzhoff (Kristian) v. W.C.A.B., Lexis Advance

Discovery—Appointment of Special Master— WCAB, denying removal, held that it was necessary to appoint special master to facilitate completion of discovery in this case, and referred matter to Associate Chief Judge for South, Ellen Flynn, to select special master to oversee all discovery, including deposition of applicant’s ex-wife, by utilizing selection procedure for arbitrators in Labor Code § 5270.5 and 8 Cal. Code Reg. § 10995(d), when WCAB found that...

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Other WCAB Decisions Denied Judicial Review

Burbank Unified School District v. W.C.A.B. (Kline, Robert), Lexis Advance

Permanent Disability—Apportionment—Substantial Evidence— WCAB, in panel split decision, affirmed WCJ’s finding that applicant food service driver suffered 57 percent permanent disability as result of industrial injury to his right knee, right shoulder, right elbow, and low back incurred on 8/4/2011, and found that reporting of orthopedic qualified medical evaluator, Antoine Roberts, M.D., did not constitute substantial evidence to support apportionment of permanent disability because Dr. Roberts did not adequately explain his opinions regarding apportionment; Commissioner Razo, dissenting, found that…

Freeman (Anja) v. W.C.A.B., Lexis Advance

Writ of Review—Court of Appeal denied pro per applicant’s petition for writ of review, when Court of Appeal found applicant’s petition defective in that it did not include copy of decision to be reviewed or copies of minutes of hearing or summary of evidence, as required by California Rules of Court, rule 8.495(a)(1), nor did petition include proof of service on Secretary of Board, as required by rule 8.495(a)(3), and, additionally, Court of Appeal found that...

State Compensation Insurance Fund v. W.C.A.B. (Devereux, Christopher), Lexis Advance

Evidence—Medical Evidence—Substantial Evidence—WCAB affirmed WCJ’s finding that applicant suffered industrial injury in form of hypertension and diabetes during period 3/25/2012 through 3/25/2014 and that he was entitled to temporary disability from 3/26/2014 to date and continuing, based on reporting of panel qualified medical evaluator Raye L. Bellinger, M.D., when WCAB concluded…

Tulare Regional Medical Center v. W.C.A.B. (Rios, Sofia), Lexis Advance

Petitions for Reconsideration—Time for WCAB to Act on Petition—Court of Appeal denied defendant’s Petition for Writ of Review in which defendant claimed denial of due process by WCAB’s failure to act on defendant’s timely Petition for Reconsideration within 60 days of its filing, as required under Labor Code § 5909, when WCAB…

Wagner (Joshua, Dec’d), Wagner (Laura, Dependent) v. W.C.A.B., Lexis Advance

Injury AOE/COE—Evidence—Medical Reports—WCAB affirmed WCJ’s finding that decedent driver/warehouseman did not suffer injury AOE/COE to his neck and mid-back during period ending 2/22/2001 and that decedent’s widow, applicant, was, therefore, not entitled to death benefits following decedent’s death, when WCAB concluded…

Appeals Board Panel Decisions

Parker (Rick) v. DSC Logistics, Lexis Advance

Medical—Legal Procedure—Qualified Medical Evaluators—New Injuries—WCAB rescinding WCJ's finding, held that applicant forklift driver who filed separate claims for 10/30/2009 injury to his back, 3/31/2014 injury to his back and neck, and cumulative injury to his back and neck during period ending on 5/14/2014, and underwent Labor Code § 4060 medical evaluation on 1/9/2015 by panel qualified medical evaluator John Steinmann, M.D., regarding 3/31/2014 claimed injury, was not entitled to new qualified medical evaluator panels to address 10/30/2009 specific injury or cumulative injury, but rather was required to return to Dr. Steinmann for evaluation of disputed medical issues in those cases pursuant to Labor Code §§ 4060, 4062.2 and 4062.3, 8 Cal. Code Reg. § 35.5 and WCAB's decision in Navarro v. City of Montebello (2014) 79 Cal. Comp. Cases 418 (Appeals Board en banc opinion), when all three of applicant's claimed injuries were reported by way of claim form prior to date of applicant's initial evaluation by Dr. Steinmann, and WCAB found that…

Sandoval (Etelvina) v. La Quinta Inn & Suites, Lexis Advance

Supplemental Job Displacement Benefits—Penalties—WCAB rescinded WCJ's award of 25 percent penalty under Labor Code § 5814 on total value of applicant's supplemental job displacement voucher for defendant's failure to timely provide voucher, and held that defendant was liable for 25 percent penalty only on amount of voucher actually used by applicant, when WCAB, relying on reasoning in Stonebraker v. Master Cooling Corp., 2007 Cal. Wrk. Comp. P.D. LEXIS 90 (Appeals Board noteworthy panel decision), and Portugal v. Mikasa, Inc., 2009 Cal. Wrk. Comp. P.D. LEXIS 143 (Appeals Board noteworthy panel decision), found that…