California Workers' Comp Case Roundup (5/5/2018)

CALIFORNIA COMPENSATION CASES

Vol. 82 No. 4 Apr 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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Appellate Court Compensation Cases

County of Riverside v. W.C.A.B. (Sylves, Peter), Lexis Advance

Cumulative Trauma Injuries—Application for Adjudication—Time to File—Court of Appeal, affirming WCAB order, held that injured employee timely filed application for adjudication of claim within one year of date of injury, as required by Labor Code § 5405(a), when Court of Appeal found that…

Cumulative Trauma Injuries—Employers’ Liability—Indian Tribes—Court of Appeal, affirming WCAB order, held that Labor Code § 5500.5(a) did not bar liability of defendant County, when Court of Appeal found that...

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Iniguez (Enrique) v. W.C.A.B., Lexis Advance

Injury AOE/COE—Body Parts Injured—Finality of Findings—Court of Appeal, annulling and remanding decision of WCAB, held that 2012 WCJ decision was not final judgment entitled to preclusive effect under either collateral estoppel or res judicata, when Court of Appeal found that applicant claimed to have sustained injury AOE/COE to his head, neck, back, both shoulders, and lower extremities while employed by defendant, that WCJ’s 2012 decision...

Marinwood Community Services, Inc. v. W.C.A.B., Lexis Advance

Employment Relationships—Volunteer Firefighter—Court of Appeal, affirming WCAB decision, held that WCAB’s decision that applicant was employee of fire department was based on reasonable interpretation of  relevant statutes, when Court of Appeal found that...

Firefighters—Cancer Presumption—Extension of Presumption—Court of Appeal, affirming WCAB decision, held that WCAB’s decision that extension of cancer presumption ran from date firefighter last worked for any agency was based on reasonable interpretation of relevant statutes, when Court of Appeal found that…

Ramirez (Daniel) v. W.C.A.B., Lexis Advance

Utilization Review—Independent Medical Review—WCAB Jurisdiction—Medical Treatment Utilization Schedule—Court of Appeal, reversing WCAB order taking matter off calendar and ordering WCAB to enter order consistent with views expressed by Court of Appeal, held that WCAB correctly concluded that it had no jurisdiction over present dispute as to whether utilization review and independent medical review had used correct standard, i.e., medical treatment utilization schedule, to deny acupuncture treatment requested by applicant’s treating physician, when Court of Appeal found…

Appellate Court Case Not Originating With Appeals Board

People, The v. Riddles, Lexis Advance

Insurance Fraud—Restitution—Court of Appeal, affirming trial court’s judgment of conviction, held that trial court did not abuse its discretion when ordering defendant to pay restitution in amount of premium loss suffered by workers’ compensation insurer, when Court of Appeal found that defendant pled guilty to one count of workers’ compensation insurance fraud in violation of Insurance Code § 11760(a), that defendant’s conviction...

Superior Court Opinion of Related Interest

Page (Janice), Hansen (Dorene), Gonzalez (Leticia) v. Acting Administrative Director, Division of Workers’ Compensation, Lexis Advance

Superior Court Jurisdiction—Workers’ Compensation System—Permanent Disability Benefits—Discrimination Based on Gender—California Superior Court, sustaining defendants’ demurrer without leave to amend against plaintiffs’ class action complaint, held that it lacked subject matter jurisdiction over allegations in complaint, when California Superior Court found that plaintiffs...

Federal District Court Opinion of Related Interest

Jankins v. Wells Fargo Bank, N.A., Lexis Advance

Federal Court Jurisdiction—Diversity Jurisdiction—Fraudulent Joinder of Defendants—U.S. District Court, Central District of California, granting plaintiff’s motion to remand to state court, held that defendant failed to sufficiently establish fraudulent joinder, so that complete diversity requirement was not satisfied, when U.S. District Court found that plaintiff was employed by defendant as customer service banker, that plaintiff was denied requested medical leave of absence by defendant, that plaintiff’s employment was terminated by defendant, that plaintiff filed administrative complaint under California Fair Employment and Housing Act with Department of Fair Employment and Housing and received right to sue letter, that plaintiff filed present action in California Superior Court…

Digests of WCAB Decisions Denied Judicial Review

Editorial Board members Frederick W. Bray, Hon. Colleen S. Casey, William A. Herreras, and John W. Miller recommended the following writ denied cases for summarization in this issue.

Beverly Hills Center for Arthroscopic and Outpatient Surgery v. W.C.A.B. (Estrella, Maria), Lexis Advance

Liens—Outpatient Surgery Centers—Illegal Referrals—WCAB affirmed WCJ’s finding that lien claimant Beverly Hills Center for Arthroscopic & Outpatient Surgery was not entitled to reimbursement for services provided to applicant in connection with 3/22/2005 specific injury, when WCAB found that...

Carrillo (Aaron) v. W.C.A.B., Lexis Advance

Injury AOE/COE—Off-Duty Social Activities—Intoxication—WCAB affirmed WCJ’s order that applicant busboy take nothing on his claim for 4/18/2011 industrial injuries to his head, brain, upper and lower extremities, and psyche, when applicant’s injuries were sustained in motor vehicle accident that occurred after applicant returned to his workplace following end of his shift and consumed alcohol, and WCAB…

City of Santa Maria v. W.C.A.B. (Gowing, Sean), Lexis Advance

Discovery—Sub Rosa Video—WCAB affirmed WCJ’s decision denying defendant’s petition to reopen applicant police officer’s stipulated awards of permanent disability to reduce permanent disability awarded for industrial back and knee injuries, based primarily on sub rosa surveillance of applicant undertaken by defendant shortly after stipulated awards were issued that showed applicant engaged in activities that defendant alleged were not consistent with level of permanent disability awarded, when WCAB found that...

County of Orange v. W.C.A.B. (Azoulay, Avi), Lexis Advance

Presumption of Industrial Causation—Blood-Borne Infectious Disease—Police Officers—WCAB affirmed its prior decision [see Azoulay v. City of Orange, 2016 Cal. Wrk. Comp. P.D. LEXIS 338 (Appeals Board noteworthy panel decision)] that applicant was entitled to presumption of industrial causation afforded by Labor Code § 3212.8, when WCAB found that…

Petitions for Reconsideration—Time for WCAB to Act on Petition—WCAB noted in footnote that WCAB has 60 days from filing of petition for reconsideration to act on petition; however, if WCAB fails to act...

Presumption of Industrial Causation—Blood-Borne Infectious Disease—Police Officers—WCAB, reversing WCJ, held that applicant suffered presumptively compensable injury AOE/COE in form of blood-borne infectious disease while employed as juvenile correction officer during period 7/1/2001 through 6/11/2012, when agreed medical examiner, Dr. Green, testified that applicant’s blood infection was caused by bacteria that traveled to applicant’s bloodstream from ruptured diverticula (caused by non-industrial diverticulitis) in applicant’s colon, and WCAB concluded that…

Entertainment by J & J, Inc. v. W.C.A.B. (Bernstein, Brian), Lexis Advance

Petitions for Reconsideration—Time for WCAB to Act on Petition—Court of Appeal denied defendant’s petition for writ of review requesting that Court of Appeal confirm that defendant had due process right to decision on merits of its petition for reconsideration by WCAB, despite provisions of Labor Code § 5909 stating that reconsideration is denied by operation of law if petition is not acted upon within 60 days, when, through no fault of defendant in this case, WCAB…

Estrada (Juventino) v. W.C.A.B., Lexis Advance

Writ of Review—Scope of Review—Court of Appeal denied applicant’s petition for writ of review challenging WCAB’s findings that applicant did not suffer injury AOE/COE to his head, skull, back, circulatory system, and nervous system on 6/30/2010, as alleged, and that presumption of compensable injury in Labor Code § 5402 did not apply, when WCJ determined that applicant was not credible regarding his alleged injury and that he did not meet burden of proving with substantial evidence that he suffered injury AOE/COE, and Court of Appeal determined that…

Mission Builders Home Improvement v. W.C.A.B. (Barragan, Augustine), Lexis Advance

Employment Relationships—Employees vs. Independent Contractors—WCAB, reversing WCJ, found that applicant, who alleged that he sustained industrial injuries to his right hip, right leg, left knee, low back, internal system/sleep, and psyche on 8/17/2005, while working as roofing salesperson and estimator for defendants was employee rather than independent contractor, based on “right of control” test and secondary factors described in S. G. Borello & Sons, Inc. v. Dept. of Industrial Relations (1989) 48 Cal. 3d 341, 769 P.2d 399, 256 Cal. Rptr. 543, 54 Cal. Comp. Cases 80, and Court of Appeal, denying writ of review, opined that, while WCJ expressly found that applicant was not credible witness, WCAB could reasonably have found that…

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

Permanent Disability—Apportionment—WCAB rescinded WCJ’s unapportioned award of 100 percent permanent disability to applicant who suffered industrial injuries to her back, left shoulder, urinary system, gastrointestinal system, and psyche while working as a housekeeper on 1/1/2000 and from 1/1/2000 through 9/2/2003, and returned matter to trial level for further development of record on issues of permanent disability and apportionment, when WCAB found that…

PT Gaming, LLC v. W.C.A.B. (Pecoraro, Roger), Lexis Advance

Medical-Legal Procedure—Non-Medical Records Provided to Qualified Medical Evaluator—WCAB, reversing WCJ, held that defendant improperly sent panel qualified medical evaluator Robert Fenton, M.D., non-medical records and information, namely, copy of applicant’s Facebook page and advocacy letter, over applicant’s timely objection and without order from WCJ, in violation of 8 Cal. Code Reg. § 35(d), and WCAB found that...

Settlements—Compromise and Release Agreements—Setting Aside—WCAB rescinded WCJ’s 6/8/2016 Order Approving Compromise and Release, when WCAB found that WCJ may have lacked authority to enter Order Approving Compromise and Release because Order Approving Compromise and Release issued after filing of Petition for Reconsideration, that WCJ should have…

San Francisco Chronicle v. W.C.A.B. (Paez, Tony), Lexis Advance

Injury AOE/COE—Substantial Evidence—WCAB, reversing WCJ, held that opinion of agreed medical examiner in internal medicine, Matthew W. Duncan, M.D., that applicant’s bladder cancer was, with medical probability, caused by his long history of exposure to newspaper ink and dyes during his employment as newspaper carrier/driver for defendant, constituted substantial evidence to support finding that applicant suffered bladder cancer AOE/COE, when Dr. Duncan’s opinion was supported by several scientific studies demonstrating increased risk of bladder cancer resulting from exposure to printing inks, material safety data sheets pertaining to chemicals in printing ink used by defendant, several of which were identified by OSHA as possible carcinogens, and literature indicating that particular pigment in black ink used in newspapers was potentially carcinogenic and linked to bladder cancer, as were other chemicals in printing ink, and WCAB reasoned that...

State Compensation Insurance Fund v. W.C.A.B. (Hosey, Steve), Lexis Advance

Permanent Disability—Rate of Indemnity Payments—WCAB amended its prior decision [see Hosey v. Salinas Peppers, 2016 Cal. Wrk. Comp. P.D. LEXIS 428 (Appeals Board noteworthy panel decision)] to reflect that $230 per week was correct rate of permanent disability owed to applicant...

White (Jean) v. W.C.A.B., Lexis Advance

Findings and Awards—Accrued Damages—Court of Appeal denied applicant’s petition for writ of review challenging WCAB’s finding that applicant, who was permanently totally disabled as result of industrial injury to multiple body parts on 6/19/95, was not entitled to recover accrued value of assisted living services delayed by defendant for almost two years after award of assisted living was issued, when there was no statutory or case law authority to support such award, and WCAB determined that...

Other WCAB Decisions Denied Judicial Review

Entertainment by J & J, Inc. v. W.C.A.B. (Bernstein, Brian), Lexis Advance

Injury AOE/COE—Substantial Evidence—Specific vs. Cumulative Injury—Court of Appeal denied defendant’s petition for writ of review challenging WCAB’s finding that applicant suffered specific industrial injury to his back on 1/17/99, rather than cumulative injury during period 1/18/99 through 10/28/99, when WCAB found that...

Jackson (Cynthia) v. W.C.A.B., Lexis Advance

Temporary Disability—Wage Loss—Concurrent Employment—WCAB affirmed WCJ’s finding that applicant school security guard who suffered industrial injury to her spine and psyche on 11/1/2011 was not entitled to wage loss under Labor Code § 4453(c)(2), when WCAB found that...

Medical-Legal Procedure—Replacement Qualified Medical Evaluators—WCAB affirmed WCJ’s finding that applicant was not entitled to replacement qualified medical evaluator to evaluate her vision on basis that reports of qualified medical evaluator…

Credit—Overpayment of Temporary Disability—WCAB affirmed WCJ’s finding that defendant was entitled to credit against permanent disability for duplicate payment of full salary and temporary disability for period 1/12/2013 through 3/22/2013, when applicant did not provide any support for her assertion that credit should have been denied, and WCAB found...

Appeals Board Panel Decisions

Garza (James) v. O’Reilly Auto Parts, Lexis Advance

Medical—Legal Procedure—Assignment and Selection of Panel Qualified Medical Evaluators—Specialty Designation—WCAB, denying removal, affirmed WCJ's finding that qualified medical evaluator panel in specialty of orthopedics was correct panel to evaluate applicant's alleged 5/6/2015 industrial injury to his left foot, low back, knees, and sleep, notwithstanding applicant's request for chiropractic panel, when WCAB reasoned that…

Rodriguez (Vivian) v. Simi Valley Unified School District, Lexis Advance

Medical Treatment—Utilization Review—Home Health Care Evaluations—WCAB rescinded WCJ's order requiring defendant to complete applicant's home health care evaluation after determining that utilization review (UR) was inapplicable to applicant's request for authorization (RFA) because request for evaluation did not involve medical treatment issue, when WCAB concluded that...