California Workers' Comp Case Roundup (6/5/2017)

CALIFORNIA COMPENSATION CASES

Vol. 82 No. 5 May 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

City of Jackson v. W.C.A.B. (Rice, Christopher), Lexis Advance

Permanent Disability—Apportionment—Substantial Medical Evidence—Genetics—Court of Appeal, annulling WCAB’s decision after reconsideration and remanding matter to WCAB with instructions to deny reconsideration, held that apportionment may be properly based on genetics/hereditability, that qualified medical evaluator properly apportioned applicant’s permanent disability, and that her opinion was based on substantial medical evidence, when Court of Appeal found that applicant, while employed by defendant, incurred cumulative trauma injury AOE/COE to his neck, that qualified medical evaluator opined that…

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Southern Insurance Co. v. W.C.A.B. (Berrios-Segovia, David), Lexis Advance

Workers’ Compensation Insurance Policies—Rescission—Employer’s Misrepresentations—Court of Appeal, annulling WCAB decision and remanding with directions, held that workers’ compensation insurance policy may be rescinded (Insurance Code § 650), that rescission is enforced by civil action for relief based on rescission (Civil Code § 1692) or by asserting rescission as defense, and that, because Arbitrator and WCAB did not address and determine whether rescission was meritorious defense to employee’s claim, case must be remanded with directions to hear and determine whether insurer was entitled to rescind, and did rescind, policy, when Court of Appeal found that…

Appellate Court Case Not Originating With Appeals Board

Go (Arnold) v. Zimpel, Lexis Advance

Third Party Actions—Summary Judgment—Triable Issues of Material Fact—Court of Appeal, affirming trial court’s order granting summary judgment in favor of employer of third-party tortfeasor, held that workers’ compensation insurer failed to raise triable issue of material fact as to whether injured employee’s second accident increased insurer’s payments to employee, when Court of Appeal found that…

Federal District Court Opinions of Related Interest

California Insurance Guarantee Association v. Price, Lexis Advance

Medicare Secondary Payer Statute—Reimbursement—U.S. District Court, Central District of California, vacated and set aside disputed portions of three reimbursement demands at issue in present lawsuit, and entered judicial declaration that Center for Medicare and Medicaid Services’ (CMS) interpretation of Medicare Secondary Payer (MSP) statute, 42 U.S.C.S. § 1395y(b)(2)(A)(ii), (B)(ii), is unlawful with respect to reimbursement of conditional payments, when U.S. District Court, Central District of California, found that CIGA…

Dawson v. National Collegiate Athletic Association, Lexis Advance

Employment Relationships—Fair Labor Standards Act—California Labor Code—College Athletes—U.S. District Court, Northern District of California, granting defendants’ motion to dismiss plaintiff’s complaint without leave to amend, held that there was no legal basis for finding that college athletes were “employees” under Fair Labor Standards Act (FLSA), 29 U.S.C.S. § 203, and that California Labor Code § 3352 excludes student athletes from term “employees” for purposes of workers’ compensation, when U.S. District Court, Northern District of California, found that plaintiff...

Flores v. Velocity Express, LLC, Lexis Advance

Willful Misclassificaton of Workers—Federal Fair Labor Standards Act— California Law—U.S. District Court, Northern District of California, granting plaintiffs’ motion for partial summary judgment in its entirety, held that all three plaintiffs were entitled to partial summary judgment on issue of misclassification of workers under federal Fair Labor Standards Act and California law, when U.S. District Court, Northern District of California, found that plaintiffs had worked as drivers for defendant’s regional package delivery service, that, to determine whether individual is employee or independent contractor under Fair Labor Standards Act, courts apply “economic reality test,” i.e., “[E]mployees are those who as a matter of economic reality are dependent upon the business to which they render service,” that courts consider following non-exhaustive factors to guide their application of economic reality test: “1) the degree of the alleged employer’s right to control the manner in which the work is to be performed; 2) the alleged employee’s opportunity for profit or loss depending upon his managerial skill; 3) the alleged employee’s investment in equipment or materials required for his task, or his employment of helpers; 4) whether the service rendered requires a special skill; 5) the degree of permanence of the working relationship; and 6) whether the service rendered is an integral part of the alleged employer’s business,” that courts apply similar test to determine whether individual is employee or independent contractor under California law…

Rafieh v. Safeway Inc., Lexis Advance

Exclusive Remedy Rule—Intentional and Negligent Infliction of Emotional Distress—U.S. District Court, Northern District of California, holding that plaintiff’s claims for intentional infliction of emotional distress, negligent infliction of emotional distress, and negligence are barred by exclusive remedy rule of workers’ compensation statutes, granted defendant’s motion to dismiss these three claims, when U.S. District Court, Northern District of California, found that plaintiff…

Digests of WCAB Decisions Denied Judicial Review

Campbell Soup Supply Co., L.L.C. v. W.C.A.B. (Shoaib, Ahmed), Lexis Advance

Penalties—Delay in Payment of Stipulated Award—Tax Withholdings—WCAB affirmed WCJ’s finding that defendant was liable for 25 percent penalty under Labor Code § 5814 for withholding monies owed to applicant under stipulated award settling applicant’s Labor Code § 132a claim allegedly to satisfy income and payroll taxes for back wages, which defendant paid to Internal Revenue Service and Franchise Tax Board, respectively, when WCAB found that...

Other WCAB Decisions Denied Judicial Review

California Insurance Guarantee Association v. W.C.A.B. (Zito, Sandra), Lexis Advance

Permanent Disability—Apportionment—Court of Appeal denied defendant California Insurance Guarantee Association’s petition for writ of review challenging WCAB’s findings that applicant suffered 28 percent permanent disability solely as result of 1998 back injury incurred in motor vehicle accident and that there was no substantial medical evidence in record to support apportionment of applicant’s permanent disability to 2003 industrial injury, for which another insurer had liability, or to applicant’s preexisting scoliosis, when apportionment opinion...

Garcia (Raul) v. W.C.A.B., Lexis Advance

Petitions for Writ of Review—Untimely Petitions—Court of Appeal denied applicant’s petition for writ of review as untimely when petition challenging WCAB’s decision was not filed with Court of Appeal within 45-day time limit in Labor Code § 5950, but Court of Appeal noted that...

Martinez (Candace) v. W.C.A.B., Lexis Advance

Injury AOE/COE—Substantial Evidence—Court of Appeal denied applicant’s petition for writ of review challenging WCAB’s finding that she did not sustain cumulative injury AOE/COE to her neck and back while employed as office technician from 8/13/2007 through 11/5/2014, when WCAB determined that WCJ...

State of California/Department of Justice v. W.C.A.B. (Galvan, Frank), Lexis Advance

Cumulative Injury—Date of Injury—Injurious Exposure—Court of appeal denied defendant’s petition for writ of review challenging WCAB’s finding that applicant suffered single cumulative injury, rather than three separate periods of cumulative trauma, to his cardiovascular/respiratory systems, spine, and in form of leukemia while employed as police agent from 1/1/73 through 4/20/2005, causing 100 percent permanent disability, when applicant...

Appeals Board Panel Decisions

De La Garza (Tony) v. Roll Global, Lexis Advance

Medical Treatment—Utilization Review—WCAB affirmed WCJ's order directing defendant to authorize surgical treatment recommended by applicant supervisor's primary treating physician, Randi Galli, M.D., to treat applicant's 10/22/2012 industrial burn injury to his left arm, wrist and hand, when surgical treatment was certified by 6/3/2016 utilization review (UR) decision, and WCAB found no justification for defendant's withdrawal of UR certification on basis that same treatment had been denied by UR/independent medical review (IMR) on 5/20/2016 and that such denial was effective for 12 months pursuant to Labor Code § 4610(g)(6) and 8 Cal. Code Reg. § 9792.9(o) absent change in material facts relating to applicant's condition, where earlier denial of treatment by UR physician Gerard Pennington, M.D., was based upon Dr. Pennington's…

Kraft (Judith) v. Correy Jamestown, Lexis Advance

California Insurance Guarantee Association—Other Insurance—Administration of Medical Benefits—WCAB, in split panel opinion, affirmed WCJ's order transferring administration of applicant district manager's medical award for all body parts from California Insurance Guarantee Association (CIGA), which was entity responsible for applicant's 3/20/87 alleged injuries to her neck, low back and left ankle, to Hartford Insurance Company (Hartford), defendant's workers' compensation carrier at time of applicant's 8/31/85 industrial low back and left ankle injuries, notwithstanding that liability for applicant's neck injury had not yet been adjudicated, when WCAB panel majority reasoned that…