California Workers' Comp Case Roundup (7/6/2017)

CALIFORNIA COMPENSATION CASES

Vol. 82 No. 6 June 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 Advance to read the complete headnotes and court decisions, en banc decisions, and writ denied summaries.

Appellate Court Case Not Originating With Appeals Board

Ortega v. Crabb Construction Co., Inc., Lexis Advance

Injured Employee of Subcontractor—General Contractor’s Liability—Court of Appeal, affirming trial court’s grant of summary judgment in defendant general contractor’s favor, held that plaintiff failed to create dispute of material fact as to whether defendant instructed plaintiff to walk on plywood walkway without safety harness, when Court of Appeal found that...

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Federal District Court Opinion of Related Interest

Chavarria (Jesse) v. Management and Training Corp., Lexis Advance

Wrongful Termination—Fair Employment and Housing Act Violations—U.S. District Court, Southern District of California, denying defendant’s motion for summary judgment on all remaining claims, held that factual issues remained on each of plaintiff’s claims, when U.S. District Court, Southern District of California, found that...

Digests of WCAB Decisions Denied Judicial Review

Editorial Board members David Hettick, Robert G. Heywood, Richard M. Jacobsmeyer, Kenneth B. Peterson, and Robert G. Rassp recommended the following writ denied cases for summarization in this issue.

County of Kern v. W.C.A.B. (Castellanos, Hilda), Lexis Advance

Temporary Disability—Post-Retirement Period of Disability—Court of Appeal denied defendant’s Petition for Writ of Review challenging WCAB’s finding that applicant medical investigator who suffered industrial injury to her wrists, arms, and neck during period 11/19/88 through 2/28/2013 was entitled to temporary total disability benefits for post-retirement period of temporary disability from 3/31/2016, and continuing, pursuant to Gonzales v. W.C.A.B. (1998) 68 Cal. App. 4th 843, 81 Cal. Rptr. 2d 54, 63 Cal. Comp. Cases 1477, when WCAB determined that...

Intercare Holding Insurance Co. v. W.C.A.B. (Smith, Matthew), Lexis Advance

Workers’ Compensation Fraud—Suspension of Benefits—Court of Appeal denied defendant’s Petition for Writ of Mandate challenging WCAB’s order granting removal and WCAB’s finding that applicant...

Discovery—Depositions—Fifth Amendment and Privacy Rights—Court of Appeal denied defendant’s Petition for Writ of Mandate challenging WCAB’s order granting removal and WCAB’s finding that WCJ correctly refused...

Other WCAB Decisions Denied Judicial Review

Amadio (Bobye) v. W.C.A.B., Lexis Advance

Evidence—Medical Evidence—Substantial Evidence—Court of Appeal denied applicant’s Petition for Writ of Review challenging WCAB’s finding that medical reports of qualified medical evaluator, Mark Greenspan, M.D., and agreed medical evaluator, Steven Silbart, M.D., constituted substantial evidence to support WCJ’s finding that applicant...

Colgan (Sean) v. W.C.A.B., Lexis Advance

Compromise and Release Agreements—Setting Aside—Court of Appeal denied applicant’s petition for writ of review challenging WCAB’s finding that there was no basis to set aside WCJ’s Order Approving Compromise and Release settling applicant’s “serious and willful” misconduct claim, notwithstanding applicant’s assertion that he believed he was settling only underlying workers’ compensation claim, when WCAB found...

Denver Nuggets v. W.C.A.B. (Copeland, Hollis), Lexis Advance

WCAB Jurisdiction—Personal Jurisdiction—Necessity of Minimum Contacts—Court of Appeal denied defendant Denver Nuggets’ (Nuggets) Petition for Writ of Review challenging WCAB’s finding that Pinnacol Assurance, which provided insurance coverage to Nuggets during period 1972 through 1982, was not authorized to provide workers’ compensation insurance in California and that WCAB had no personal jurisdiction over Pinnacol in consolidated cases involving multiple professional basketball players who played for Nuggets during period of coverage, when WCAB found that...

Frontline Medical Associates, Inc. v. W.C.A.B. (Wheeler, Curt), Lexis Advance

Liens—Medical Treatment—Court of Appeal denied lien claimant Frontline Medical Associates, Inc.’s (Frontline) petition for writ of review challenging WCAB’s finding that Frontline was not entitled to payment on its lien in amount of $155,823.70 for services rendered to applicant, who incurred industrial injury to his lumbar spine while employed as mixer driver on 11/20/2007, when WCAB found...

Garcia (Raul) 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 he did not suffer injury AOE/COE to his brain, left ear, or head on 6/24/2009 as alleged, when WCAB’s finding turned on credibility of witnesses and weight of evidence, which are questions of fact, and Court of Appeal reasoned that it does not have power to re-weigh evidence and credibility of witnesses, as these are functions of WCAB, and that WCAB’s decision in this case was supported by substantial medical evidence.

National Steel and Shipbuilding Co. v. W.C.A.B. (Morgan, Robert, Dec’d), Lexis Advance

Petition for Writ of Review—Dismissed as Premature—Court of Appeal dismissed defendant’s Petition for Writ of Review as premature pursuant to Labor Code §§ 5900 and 5950, when Court of Appeal determined that WCAB’s order denying defendant’s Petition for Removal challenging WCJ’s finding that...

Salmon (Linda) v. W.C.A.B., Lexis Advance

Permanent Disability—Rating—Rebuttal of Scheduled Rating—Court of Appeal denied applicant’s Petition for Writ of Review challenging WCAB’s finding that applicant suffered 19 percent permanent disability as result of industrial orthopedic and psychological injuries incurred on 10/8/2003 while applicant was working as specialty sales associate at Home Depot, based on reporting of agreed medical examiners, when WCAB’s rating was based on opinions of agreed medical examiners, and WCAB concluded that...

Credit—Overpayment of Temporary Disability Indemnity—Court of Appeal denied applicant’s Petition for Writ of Review challenging WCAB’s finding that defendant was entitled to credit for overpayment of temporary disability in amount of $2,010.64, when applicant’s permanent and stationary date was undisputed and supported by reporting of agreed medical evaluator, and WCAB found that...

Evidence—Exclusion of Exhibits—Court of Appeal denied applicant’s Petition for Writ of Review challenging WCAB’s order excluding from evidence exhibits offered by applicant in support of her claim for self-procured medical expenses and barring applicant’s claim for recovery of these expenses, when applicant...

Appeals Board Panel Decisions

Collazo (Alfredo) v. Meco-Naq Corp., Lexis Advance

Liens—Medical—Reasonableness of Charges—Burden of Proof—WCAB rescinded WCJ's finding that lien claimant Monrovia Memorial Hospital (Monrovia) was not entitled to full reimbursement of its lien for services rendered to applicant with 3/31/2008 industrial injury, when WCAB concluded that WCJ incorrectly disregarded Monrovia's Kunz study and failed to explain why he chose to use Medicare reimbursement multiplier in analyzing reasonableness of Monrovia's charges, and explained that long-term care hospitals such as Monrovia are exempt from Official Medical Fee Schedule (OMFS) because, while Legislature intended under Labor Code § 5307(j) that long-term care hospitals be paid in accordance with OMFS, applicable regulations...

Keltner (Jedediah) v. California Guest Services, Inc., Lexis Advance

Temporary Disability—Permanent and Stationary Status—Utilization Review—WCAB, in split panel opinion, affirmed WCJ's finding that determination of agreed medical examiner Joel Renbaum, M.D., indicating that in absence of surgery applicant maintenance supervisor's 2/15/2015 lumbar spine injury had reached permanent and stationary status, was substantial evidence despite fact that Dr. Renbaum did not review utilization review (UR) reports denying lumbar surgery, and WCAB concluded...

Padron (Sharon) v. Frito Lay, Lexis Advance

Credit—Employer Benefit Plan—WCAB rescinded WCJ's finding that defendant was entitled to $ 37,700.35 credit against applicant's temporary and/or permanent disability benefits as result of short-term and long-term disability payments made to applicant under defendant's disability plans, and returned matter to WCJ for new decision, when WCAB...

Quintanilla (Amanda) v. Sun Healthcare Group, Lexis Advance

Third Party Actions—Employer's Claim for Credit—Professional Negligence—WCAB rescinded WCJ's finding that defendant was entitled to third-party credit in amount of $ 184,547.28 against its workers' compensation liability based on applicant nurse's recovery in third-party action against her employer, defendant Mission Hospital, for slip and fall injuries incurred by applicant on 8/3/2012, and returned matter to WCJ for further proceedings on issue of credit, when WCAB found that...

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