California Workers' Comp Case Roundup (4/5/2014)

CALIFORNIA COMPENSATION CASES

Vol. 79 No. 3 March 2014

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

Elsheref v. Applied Materials, Inc., lexis.com, Lexis Advance

Preconception Liability—Products Liability—Court of Appeal, reversing judgment of trial court and directing trial court to set aside its order granting defendant’s motion for summary adjudication and to enter new order granting defendant’s motion as to all causes of action except for that grounded on strict products liability and denying defendant’s motion as to cause of action for strict products liability, held that, while defendant did not owe preconception duty to plaintiff child, lack of such duty was not fatal to child’s strict products liability claim, when Court of Appeal found that…

Flores (David) v. City of San Diego, lexis.com, Lexis Advance

Fair Employment and Housing Act—Court of Appeal affirmed trial court’s judgment after jury verdict in plaintiff/applicant’s favor for defendant employer’s violation of Fair Employment and Housing Act (Government Code § 12900 et seq.) by disability discrimination against plaintiff and by failing to accommodate plaintiff’s disability, including failure to properly engage in interactive process, when Court of Appeal found that…

Fussell (Gary) v. Timec Co., Inc., lexis.com, Lexis Advance

Fair Employment and Housing Act—Court of Appeal reversed trial court’s grant of defendant’s summary judgment motion in plaintiff/applicant’s civil action against defendant/employer for defendant’s violation of Fair Employment and Housing Act (Government Code § 12900 et seq.) in form of disability discrimination against plaintiff and failure to accommodate plaintiff’s disability, when Court of Appeal found that…

Maiorano v. Howell, lexis.com, Lexis Advance

Civil Actions—Attorney’s Fees—Fee Splitting—Court of Appeal affirmed trial court’s attorneys’ fee award to second attorney (respondent), when Court of Appeal found that…

Mark Tanner Construction, Inc. v. Hub International Insurance Services, Inc., lexis.com, Lexis Advance

Workers’ Compensation Insurance—Brokers—Duties to Insureds—Court of Appeal, in opinion certified for partial publication, affirming judgment of trial court, held in portion of opinion certified for publication that trial court did not err in granting summary judgment in favor of defendant broker against plaintiffs/insureds’ claims of professional negligence and constructive fraud by defendant, when Court of Appeal found that…

Meyers (William) v. Board of Administration for the Federated City Employees Retirement Fund, lexis.com, Lexis Advance

Service-Connected Disability Retirement—Substantial Evidence—Court of Appeal, reversing trial court’s judgment and remanding to trial court with directions to issue writ of mandate reversing retirement board’s denial of service-connected disability retirement benefits and remanding matter to retirement board for new hearing on employee’s application for service-connected disability retirement benefits, held that employer’s “bald assertion” that, in retrospect, it could have accommodated employee at time of his 5/2005 separation from employer’s service did not constitute substantial evidence that employee was physically able to perform duties of any employer’s position, when Court of Appeal found that…

Pearson Food Co., Inc. v. State Compensation Insurance Fund, lexis.com, Lexis Advance

Civil Actions—Insurance—Claims Handling Practices—Court of Appeal held that trial court properly affirmed holdings of referee and properly denied plaintiff’s motion for new trial, when Court of Appeal found that…

Appeals Board En Banc Decisions

Dubon (Jose) v. World Restoration, Inc., lexis.com, Lexis Advance

Utilization Review—Independent Medical Review—WCAB en banc, rescinding WCJ’s decision, held that (1) independent medical review resolves solely disputes over medical necessity of treatment requests, leaving disputes of timeliness and compliance with statutes and regulations governing utilization review within jurisdiction of WCAB,…

Navarro (Ismael) v. City of Montebello, lexis.com, Lexis Advance

Qualified Medical Evaluators—Subsequent Injuries—WCAB en banc, granting defendant’s petition for removal, gave notice that it intended to hold that (1) Labor Code does not require employee to return to same panel qualified medical evaluator for evaluation of subsequent claim of injury,…

Digests of WCAB Decisions Denied Judicial Review

Editorial Board members Francis V. Clifford, Hon. Jacqueline C. Duncan, Susan Hamilton, and James Pettibone recommended the following writ denied cases for summarization in this issue.

Carrabello (Albert) v. W.C.A.B., lexis.com, Lexis Advance

WCAB Jurisdiction—Disbursement of Third Party Settlement Funds— WCAB, reversing WCJ, held that WCAB had jurisdiction to adjudicate apportionment of applicant/labor foreman’s third-party settlement proceeds received in connection with industrial hip and lumbar spine injury, including any issues of employer fault and attorney’s fees and expenses, when WCAB found that…

Miracle Mile Medical Center LLC v. W.C.A.B. (Ichmelyan, Roman), lexis.com, Lexis Advance

Liens—Procedural Rights and Duties—Dismissal for Failure to Appear—WCAB upheld WCJ’s order, issued pursuant to 8 Cal. Code Reg. § 10562, dismissing lien claimant’s $166,399.28 lien for failure to appear at scheduled lien conference, when lien claimant admitted that it received proper notice of lien conference and sent notice,…

Nguyen (Man) v. W.C.A.B., lexis.com, Lexis Advance

Permanent Disability—Rating—WCAB held that applicant/registered nurse with industrial heart injury established good cause to reopen stipulated award of 54 percent permanent disability, and awarded 64…

Other WCAB Decisions Denied Judicial Review

Chico’s v. W.C.A.B. (Cheli, Debra), lexis.com, Lexis Advance

Permanent Disability—Apportionment—WCAB awarded applicant stock clerk 100 percent permanent disability, without apportionment, for 10/30/2002 industrial low back injury, based on opinions from applicant’s qualified medical evaluator that WCAB…

City and County of San Francisco v. W.C.A.B. (Forrester, Jennifer), lexis.com, Lexis Advance

Permanent Disability—Rating—WCAB awarded applicant police sergeant 100 percent permanent disability for admitted injury to psyche in period 12/8/1980 through 3/23/2009 from stress from interactions with…

Garcia (Mary) v. W.C.A.B., lexis.com, Lexis Advance

Permanent Disability—Rating—WCAB awarded applicant juvenile institutions officer 65 percent permanent disability, after apportionment, for 9/30/2002 industrial injury to both upper extremities and right knee,…

Graves (Randy) v. W.C.A.B., lexis.com, Lexis Advance

Employment Relationships—WCAB held that applicant tractor operator was not employee of defendant on dates of claimed industrial injuries, 6/27/2012 and 6/28/2012, when WCAB found that applicant was not credible in claiming employment relationship with defendant,…

Livengood (Michelle) v. W.C.A.B., lexis.com, Lexis Advance

Temporary Disability—Petitions to Terminate—WCAB granted defendant’s petition to terminate applicant park aide’s temporary disability benefits for three admitted industrial injuries to multiple body parts that…

Pueblo Surgery Center, Inc. v. W.C.A.B. (Torres, Raul), lexis.com, Lexis Advance

Petitions for Writ of Review—Time to File—Court of Appeal dismissed petition for writ of review because it was not timely filed, when lien claimant was appealing WCAB decision in which WCAB affirmed…

Sanders (Bobbie) v. W.C.A.B., lexis.com, Lexis Advance

Injury AOE/COE—WCAB held that applicant keyboard operator did not sustain her burden of proving injury AOE/COE on 10/15/1997 or cumulatively ending 10/15/1997 to her neck, back, hands, shoulders, wrists, fingers, knees,…

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