California Workers’ Comp Case Roundup (8/6/2015)

CALIFORNIA COMPENSATION CASES

Vol. 80 No. 7 July 2015

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 Case

Department of Corrections and Rehabilitation v. W.C.A.B. (Thompson, Gregory, Dec’d), lexis.com, Lexis Advance

Workers’ Compensation Death Benefits—Cal PERS Special Death Benefits —Court of Appeal, annulling WCAB decision and remanding with directions, held that WCAB wrongfully failed to address claim by Department of Corrections and Rehabilitation, decedent’s employer, that WCJ failed to adjudicate widow’s petition to determine her entitlement to special death benefit under PERS, when Court of Appeal found that...

Appellate Court Cases Not Originating With Appeals Board

Chorn v. Brown, lexis.com, Lexis Advance

Liens—Activation and Filing Fees—Restrictions on Assignments—Constitutionality—Court of Appeal, affirming Superior Court’s order dismissing plaintiff’s action for lack of subject matter jurisdiction, held that Labor Code § 5955 and California Supreme Court’s decision in Greener v. W.C.A.B. (1993) 6 Cal. 4th 1028, 863 P.2d 784, 25 Cal. Rptr. 2d 539, 58 Cal. Comp. Cases 793, deprived Superior Court of subject matter jurisdiction to determine constitutionality of amendments to Labor Code § 4903, since granting plaintiff’s requested relief would interfere with WCAB’s ability to carry out its duties, when Court of Appeal found that...

Harrelson (Shirley) v. Board of Retirement of the Orange County Employees Retirement System, lexis.com, Lexis Advance

Civil Actions—Public Employees—Industrial Disability Retirements—Court of Appeal affirmed trial court’s denial of plaintiff/applicant’s petition for writ of mandate seeking to overturn county employees retirement board’s denial of plaintiff’s application for disability retirement related to plaintiff’s industrial injuries, when Court of Appeal found that…

Lewings v. Chipotle Mexican Grill, Inc., lexis.com, Lexis Advance

Civil Actions Against Employees—Workers’ Compensation Costs Paid by Employees—Court of Appeal reversed trial court and held that defendant employer violated Labor Code § 3751, which prohibits employers from passing on any costs of obtaining workers’ compensation to its employees, when Court of Appeal found that…

McNames (William) v. Board of Retirement of the Orange County Employees Retirement System, lexis.com, Lexis Advance

Civil Actions—Public Employees—Service-Connected Disability Retirement—Court of Appeal affirmed trial court’s denial of plaintiff/applicant’s petition for writ of mandate seeking reversal of county employees retirement board’s denial of plaintiff’s application for service-connected disability retirement, when Court of Appeal found that…

Federal Circuit Court Opinion of Related Interest

Angelotti Chiropractic, Inc. v. Baker, lexis.com, Lexis Advance

Liens—Activation Fee—Constitutionality—U.S. Court of Appeals, Ninth Circuit, affirmed dismissal by U.S. District Court, Central District of California, of plaintiffs’ claims under Takings Clause and Due Process Clause challenging California SB 863, vacated district court’s preliminary injunction, and, via pendent appellate jurisdiction, reversed district court’s denial of defendants’ motion to dismiss plaintiffs’ Equal Protection Clause claim, when U.S. Court of Appeals, Ninth Circuit, found that…

Federal District Court Opinions of Related Interest

American Zurich Insurance Co. v. Country Villa Service Corp., lexis.com, Lexis Advance

Workers’ Compensation Insurance Policies—Side Agreements—U.S. District Court, Central District of California, granting insured’s motion for partial summary judgment, held that side agreements to workers’ compensation insurance policies were, in their entirety, void ab initio and, thus, unenforceable, when court found that insurer provided seven years (2004-2011) of workers’ compensation insurance to…

San Francisco Bay Area Rapid Transit District v. General Reinsurance Corp., lexis.com, Lexis Advance

Federal Court Jurisdiction—Workers’ Compensation Reinsurance Pollicy —Date of injury—U.S. District Court, Northern District of California, held that it had jurisdiction to make factual determination regarding date of injury to resolve parties’ policy coverage dispute, when court found that reinsurer’s policy covered employer from 7/1/85 through 7/1/92, that injured employee worked for employer from 1979 until retirement in 2005, with one two-year exception, that in 10/2006 employee was diagnosed with multiple myeloma, that employee claimed that…

Date of Injury—Right to Litigate—U.S. District Court, Northern District of California, held that defendant reinsurer in breach of contract action brought by employer had right to litigate employee’s cumulative trauma date of injury, when court found…

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.

Ace American Insurance Co. v. W.C.A.B. (Martin, Bonnie), lexis.com, Lexis Advance

WCAB Procedure—Bifurcation of Issues for Trial—Due Process—WCAB, in split panel decision, denied defendant’s petition for removal challenging WCJ’s finding that defendant was not entitled to bifurcation of third-party credit and employer negligence issues and trial on those issues alone when normal compensation issues were not yet ready for trial, when WCJ ordered matter off-calendar over defendant’s objection because discovery was not completed in case-in-chief, and WCAB panel majority found

Acorn Engineering Co. v. W.C.A.B. (Banuelos, Luis), lexis.com, Lexis Advance

Injury AOE/COE—Stress-Related Stroke—Burden of Proof—WCAB affirmed WCJ’s finding that applicant machinist suffered compensable industrial injury in form of stroke, when applicant’s treating physician and panel qualified medical evaluator concluded that applicant’s stroke resulted from work-related stress, and WCAB found that…

Deluxe Laboratories v. W.C.A.B. (Samaras, Michael), lexis.com, Lexis Advance

Medical Treatment—Utilization Review—WCAB reversed WCJ’s finding that applicant who suffered industrial neck and back injury and claimed injury to multiple other body parts improperly selected Lawrence Miller, M.D., as his primary treating physician, and held that, contrary to WCJ’s finding, applicant was not barred by holding in Tenet/Centinela Hospital Medical Center v. W.C.A.B. (Rushing) (2000) 80 Cal. App. 4th 1041 [95 Cal. Rptr. 2d 858, 65 Cal. Comp. Cases 477], from selecting Dr. Miller as new treating physician because applicant’s original primary treating physician, Brian Grossman, M.D., did not discharge applicant from care in that, although he declared applicant “discharged from active care,” he anticipated that applicant would require further medical treatment and imposed work restrictions, and WCAB found that…

Illinois Midwest Insurance Agency, LLC v. W.C.A.B. (Millette, Ernest), lexis.com, Lexis Advance

Medical Treatment—Utilization Review—WCAB affirmed WCJ’s order awarding applicant/occupational therapist, who incurred injury to his face and neck, medical treatment, including 12 hours per day of home healthcare services, supplies for Foley catheter, power wheelchair, and urological consult, requested by his primary treating physician after applicant’s release from hospital, post-surgery, when defendant indefinitely deferred utilization review of medical treatment on basis that “causation is in dispute,” applicant attempted to resolve dispute through panel qualified medical evaluator and then, when that failed, sought to resolve dispute by requesting expedited hearing, and WCAB found that…

Northrop Grumman Systems Corp. v. W.C.A.B. (Dileva, Jerry), lexis.com, Lexis Advance

Permanent Disability—Apportionment—WCAB, in split panel decision, affirmed WCJ’s joint award of 96 percent permanent disability for applicant landscape gardener’s three separate injuries to his spine and psyche, without apportionment between dates of injury pursuant to Labor Code § 4663, and held that, while orthopedic agreed medical examiner Michael Patzakis, M.D., was able to apportion applicant’s orthopedic disability among three dates of injury as contemplated in Benson v. W.C.A.B. (2009) 170 Cal. App. 4th 1535, 89 Cal. Rptr. 3d 166, 74 Cal. Comp. Cases 113, fact that treating psychiatrist, David Friedman, M.D., Ph.D., found combined psychiatric effects of three injuries to be inextricably intertwined justified combined award, when panel majority reasoned that…

The Town of Hillsborough v. W.C.A.B. (Chinca, Robert), lexis.com, Lexis Advance

Presumptions of Industrial Causation—Cancer—Peace Officers—WCAB, affirming WCJ, held that applicant police officer who alleged that he suffered industrial injury in form of lymphoma was entitled to application of cancer presumption in Labor Code § 3212.1 and that his first manifestation of cancer within meaning of Labor Code § 3212.1 was on 1/18/2013, which was date cancerous tumor was discovered, when evidence established that applicant was exposed to known carcinogens, including lead, benzene, engine and diesel exhaust, and various other products of combustion during his employment with defendant, and WCAB concluded that…

Other WCAB Decisions Denied Judicial Review

Boeing Co., The v. W.C.A.B. (Zunker, James), lexis.com, Lexis Advance

Injury AOE/COE—WCAB held that applicant hydraulic technician sustained cumulative trauma injury AOE/COE in period from 6/10/1986 to 2/14/2011 to internal system, throat, lungs, stomach, upper and lower gastro-intestinal systems, low back, and brain, based on applicant’s testimony, review of entire record, and opinions from…

WCAB Orders—Setting Case for Trial—Closing Discovery—Due Process—WCAB held that it did not violate defendant’s due process rights by setting matter for trial at time of mandatory settlement conference, closing discovery (with one exception), and denying defendant’s request to leave record open to take deposition of…

California Insurance Guarantee Association v. W.C.A.B. (Nami,Yousef), lexis.com, Lexis Advance

Permanent Disability—Rating—Apportionment—WCAB awarded 100 percent permanent disability, without apportionment, for applicant plant engineer’s 2/20/2004 injury to his low back and compensable consequence injury to psyche, based on (1) opinions on extent of disability and apportionment of disability from orthopedic agreed medical evaluator and applicant’s psychiatric qualified medical evaluator, and contrary to…

County of Los Angeles v. W.C.A.B. (Perez, Audelia), lexis.com, Lexis Advance

California Insurance Guarantee Association—Liability Between General and Special Employers—Other Insurance—Collateral Estoppel—WCAB held that collateral estoppel barred parties from relitigating issue of whether general or special employer was liable for applicant’s workers’ compensation benefits for two 1997 industrial injuries, and that special employer remained liable, when WCAB found that…

Enlow (Greg) v. W.C.A.B., lexis.com, Lexis Advance

Petitions for Reconsideration—Time to File—WCAB dismissed two petitions for reconsideration from pro per applicant, first dismissal dated 10/20/2014 because WCAB found that…

Hickey (Jennifer) v. W.C.A.B., lexis.com, Lexis Advance

Injury AOE/COE—Post-Termination Defense—WCAB held that applicant did not sustain her burden of proving injury AOE/COE on 4/21/2013 to her right shoulder, upper extremities, or neck, when WCAB found that applicant’s testimony that she was injured from altercation with patient on that date was not credible, that applicant’s witness’ testimony on mechanism of injury was also not…

Discrimination—Labor Code § 132a—WCAB held that applicant’s claim for Labor Code § 132a discrimination was barred because she did not file claim within one year of 4/24/2013 termination, since claim was…

Kung (Kin Wah) v. W.C.A.B., lexis.com, Lexis Advance

Petitions for Removal—Dismissal as Moot—WCAB dismissed applicant’s petition for removal to WCAB, finding that applicant did not show irreparable harm or significant prejudice under 8 Cal. Code Reg. § 10843 if removal was not…

Moulthrop (Kari) v. W.C.A.B., lexis.com, Lexis Advance

Petitions for Writ of Review—Time to File—Court of Appeal denied petition for writ of review not timely filed, when applicant was appealing WCAB decision correcting applicant’s permanent total disability rate to…

Rochlin (Michael) v. W.C.A.B., lexis.com, Lexis Advance

Permanent Disability—Rating—WCAB awarded applicant construction accountant 57 percent permanent disability, based on opinions from two agreed medical evaluators who rated applicant’s disability using AMA Guides and who found no need to assess applicant’s permanent impairment using alternatives to AMA Guides and whose opinions rated 55 percent permanent disability, and WCAB found that…

Silver v. W.C.A.B. (Jimenez, Angelisa), lexis.com, Lexis Advance

Lien Claims—Medical Treatment—WCAB disallowed lien claims of medical providers, when WCAB found that applicant claimed two industrial injuries to multiple body parts, specific injury on 2/15/99 and cumulative trauma injury ending 2/15/99, that these two claims were resolved by…

Zurich North America Insurance Co. v. W.C.A.B. (Garcia, Araceli), lexis.com, Lexis Advance

Permanent Disability—Rating—Apportionment—WCAB awarded applicant janitor temporary disability benefits, future medical treatment benefits, and 100 percent permanent total disability benefits for 5/16/2005 injury AOE/COE to back, left foot, right major wrist, and psyche (from fall down stairs), WCAB’s permanent disability rating was based on opinions from orthopedic agreed medical evaluator, panel psychiatric qualified medical evaluator, and vocational expert, and on applicant’s credible testimony, when WCAB found…