California Workers' Compensation Case Roundup (9/9/2011)

California Workers' Compensation Case Roundup (9/9/2011)

CALIFORNIA COMPENSATION CASES

Vol. 76 No. 8 August 2011

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

© Copyright 2011 LexisNexis. All rights reserved. Lexis.com subscribers can link to the cases below to read the complete headnotes, court opinions, and summaries of “writ denied” cases.

Supreme Court Compensation Case

Baker v. W.C.A.B. (X.O.), 76 Cal. Comp. Cases 701

Permanent Total Disability—Cost of Living Adjustments—California Supreme Court, reversing judgment of Court of Appeal, held that legislature intended that cost of living adjustments to total permanent disability benefits and life pension benefits, as authorized by Labor Code § 4659(c), be calculated and applied prospectively commencing on January 1 following date on which injured worker first becomes entitled to receive, and actually begins receiving, such benefit payments, i.e., …

Appellate Court Compensation Cases

County of Fresno v. W.C.A.B. (O’Brien, Patrick), 76 Cal. Comp. Cases 715

Permanent Total Disability—Cost of Living Adjustments—Court of Appeal, annulling WCAB’s order denying defendant’s petition for reconsideration, followed California Supreme Court’s recent decision in Baker v. W.C.A.B. (X.S.) (2011) 52 Cal. 4th 434, ___ Cal. Rptr. 3d ___, ___ P.3d ___, 76 Cal. Comp. Cases 701, which held that legislature intended that cost of living adjustments to total permanent disability benefits and life pension benefits, as authorized by Labor Code § 4659(c), be calculated and applied prospectively commencing on January 1 following date on which injured worker first becomes entitled to receive, and actually begins receiving, such benefit payments, i.e., …

Motheral (Bill) v. W.C.A.B., 76 Cal. Comp. Cases 720

Temporary Disability Benefits—Average Weekly Earnings—Living Quarter, Utilities, and Car Allowance—Court of Appeal, annulling WCAB’s denial of employee’s petition for reconsideration, held that Labor Code § 4454 mandated inclusion of market value of employee’s living quarters, utilities, and car allowance in calculation of his average weekly earnings and resulting temporary disability payments, when Court of Appeal found that …

Supreme Court Case Not Originating With Appeals Board

SeaBright Insurance Co. v. U.S. Airways, Inc. (Lujan, Anthony), 76 Cal. Comp. Cases 728

Civil Actions—Cal-OSHA Provisions—Hirer's Delegation of Duty to Comply—California Supreme Court, reversing judgment of Court of Appeal, held that rule of Privette v. Superior Court (1993) 5 Cal. 4th 689, 854 P.2d 721, 21 Cal. Rptr. 2d 72, 58 Cal. Comp. Cases 420, and its progeny that employees of independent contractors who are injured in workplace cannot sue party that hired contractor applies when, as here, hirer of contractor failed to …

Appellate Court Cases Not Originating With Appeals Board

Gonzalez (Luis) v. DeBerry, 76 Cal. Comp. Cases 744

Civil Actions Against Employers—Employment Relationships—Hirers of Unlicensed and Uninsured Contractors—Workers' Compensation Exclusive Remedy—Court of Appeal, reversing trial court's grant of summary judgment in favor of defendants, held that plaintiff/applicant was employee of defendants/property owners/ultimate hirers under Labor Code § 2750.5, as well as of contractor, and that workers' compensation was not plaintiff's exclusive remedy against defendants, when two owners of residential property and their homeowners' association hired contractor to …

Salas (Vicente) v. Sierra Chemical Co., 76 Cal. Comp. Cases 768

Fair Employment and Housing Act—Aliens—Failure to Hire—Court of Appeal, affirming trial court’s summary judgment in favor of defendant, held that plaintiff’s claims for failure to hire were barred by doctrines of after-acquired-evidence and unclean hands, when Court of Appeal found that plaintiff was alien who used false Social Security number to obtain employment and sustained industrial injury while employed by defendant, that plaintiff filed present action against defendant, alleging disability discrimination in violation of Fair Employment and Housing Act and denial of employment in violation of public policy, specifically that defendant failed to …

Digests of WCAB Decisions Denied Judicial Review

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

Alaniz (Jose Cortez) v. W.C.A.B., 76 Cal. Comp. Cases 784

Psychiatric Injuries—Six-Month Employment Requirement—Sudden and Extraordinary Employment Condition—WCAB affirmed WCJ's finding that applicant/stock clerk's psychiatric claim stemming from injuries to his left thumb, index finger, and middle finger, which occurred while he was using power saw during temporary job assignment, was barred by six-month employment requirement in Labor Code § 3208.3(d), when WCAB found that…

Bonilla (Hilda) v. W.C.A.B., 76 Cal. Comp. Cases 788

Psychiatric Injury—Sudden and Extraordinary Employment Events—WCAB, rescinding WCJ's finding, held that applicant/dry cleaner's claim for psychiatric injury, stemming from burn injury to her hand incurred when ironing press lowered onto her hand, was barred by Labor Code § 3208.3(d) and that injury was not caused by “sudden and extraordinary” employment event, when evidence indicated that …

City of Redondo Beach v. W.C.A.B. (Tomatani, Gene), 76 Cal. Comp. Cases 794

Presumption of Compensability—Heart Trouble—Apportionment—WCAB affirmed WCJ's finding that applicant/police officer/sergeant suffered 52-percent permanent disability without basis for apportionment as result of hypertension and left ventricular hypertrophy during period 1994 to 11/24/2008, when applicant's injury was presumed …

City of Santa Clara v. W.C.A.B. (Sanchez, Juan), 76 Cal. Comp. Cases 799

Permanent Disability—Apportionment—Presumption of Total Disability for Brain Injury—WCAB in split decision, affirming WCJ's finding and approving decision in Kaiser Foundation Hospitals, PSI v. W.C.A.B. (Dragomir-Tremoureux) (2006) 71 Cal. Comp. Cases 538 (writ denied), held that applicant/heavy equipment operator, who suffered industrial injuries to right knee and to both knees and spine during cumulative period, incurred 100-percent permanent disability pursuant to …

County of Los Angeles v. W.C.A.B. (Reed, Weathea), 76 Cal. Comp. Cases 806

Psychiatric Injury—Actual Events of Employment as Predominant Cause—WCAB affirmed WCJ's finding that applicant/legal support assistant met burden under Labor Code § 3208.3(b)(1) of establishing by preponderance of evidence that she suffered compensable psychiatric injury as result of industrial injuries to her hands, wrists, internal system/hypertension, and back during period 4/75 to 3/10/2000, when WCAB found that…

Permanent Disability—Rating—Permanent Total Disability—WCAB held that, pursuant to LeBoeuf v. W.C.A.B.(1983) 34 Cal. 3d 234, 193 Cal. Rptr. 547, 666 P.2d 989, 48 Cal. Comp. Cases 587, applicant/legal support assistant incurred 100-percent permanent disability as result of injuries to her hands, wrists, internal system/hypertension, back, and psyche from 8/23/91 to 3/10/2000, when …

Dominguez (Jorge) v. W.C.A.B., 76 Cal. Comp. Cases 810

Sanctions—WCAB upheld WCJ's finding that defendant was not liable for Labor Code § 5813 sanctions for failing to timely address applicant/construction laborer's request for dermatologic consult in connection with claim for industrial injuries, when, despite applicant's contrary contention, evidence indicated that defendant undertook timely utilization review and, although initially denying dermatologic consult, ultimately authorized requested treatment, and WCAB found that…

Fireman’s Fund Insurance Co. v. W.C.A.B. (Ball, Rita), 76 Cal. Comp. Cases 813

Credit—Third-Party Recovery—Employee's Action Against Employer—WCAB upheld WCJ's finding that defendant insurer was not entitled to credit for settlement monies received by applicant/veterinarian technician who suffered specific and cumulative trauma industrial injuries, in civil suit brought against her employer for wrongful termination, when …

Hamilton (Jill Ruth) v. W.C.A.B., 76 Cal. Comp. Cases 817

Psychiatric Injury—Six-Month Employment Requirement—WCAB, rescinding WCJ's finding, held that applicant/home mortgage associate's claim for psychiatric injury, over period 9/2008 to “the present and continuing,” was barred by Labor Code § 3208.3(d), when applicant was not employed by defendant for requisite six-month period but worked for only five months and 26 days, and WCAB found that…

Holbrook Construction, Inc. v. W.C.A.B. (Torres, Cecilio), 76 Cal. Comp. Cases 821

Injury AOE/COE—Post-Termination Claims—WCAB, rescinding WCJ's finding that applicant/laborer's claim for injuries to his back, neck, upper and lower right extremity, psyche, right knee, and head was barred post-termination claim under Labor Code § 3600(a)(10), held that applicant met his burden of proving that he gave defendant adequate notice of his injuries before he received notice of termination, with both applicant and witness providing unrebutted testimony that applicant reported incident to his supervisor and requested medical treatment, when WCAB found that …

Laurence & Hovenier, Inc. v. W.C.A.B. (Barragan, Dario), 76 Cal. Comp. Cases 826

Injury AOE/COE—WCAB held that applicant rough construction carpenter sustained injury AOE/COE to his cervical and lumbar spine, right shoulder, right wrist, right ankle, left knee, and psyche from fall onto concrete slab, when WCAB found...

Permanent Disability—Rating—WCAB rated applicant's permanent disability from industrial injury as 72 percent after apportionment, based on opinions on level of disability and apportionment from psychiatric and orthopedic AMEs, 2005 Permanent Disability Rating Schedule, and pursuant to …

Mata (Alfredo) v. W.C.A.B., 76 Cal. Comp. Cases 833

Permanent Disability—Rating—WCAB affirmed WCJ's finding that applicant/laborer incurred 90-percent permanent disability as a result of 12/20/2003 industrial injuries to his spine and psyche, based on combined values of disability reflected in medical reports, and held that applicant did not meet burden of …

Morales (Antonio) v. W.C.A.B., 76 Cal. Comp. Cases 841

Medical-Legal Procedure—Ex-Parte Communications With Qualified Medical Evaluator—WCAB, denying removal, affirmed WCJ's order for new qualified medical evaluator panel based on his determination that documents had been sent to panel qualified medical evaluator ex-parte in violation of Labor Code § 4063.3, when …

Moreno (Juan) v. W.C.A.B., 76 Cal. Comp. Cases 843

Discrimination—Labor Code § 132a—WCAB held that employer did not discriminate against applicant in violation of Labor Code § 132a because applicant did not show necessary element of discrimination, i.e., that employer's treatment of him was disparate treatment, as required by California Supreme Court in Department of Rehabilitation v. Workers' Comp. Appeals Bd. (Lauher) (2003) 30 Cal. 4th 1281, 135 Cal. Rptr. 2d 665, 70 P.3d 1076, 68 Cal. Comp. Cases 831, in which applicant did not show that he was singled out or treated differently from employees without industrial injuries, when WCAB found that …

Affirmative Defenses—Business Necessity—WCAB held that, even if applicant made prima facie showing of Labor Code § 132a discrimination, employer established affirmative defense of business necessity, because …

Robinson (Tim) v. W.C.A.B., 76 Cal. Comp. Cases 847

Permanent Disability—Apportionment—Overlap—WCAB upheld WCJ's finding that applicant/correctional officer suffered 12-percent permanent disability as result of 6/27/2005 cervical spine injury, after apportionment under Labor Code §§ 4663 and 4664, when WCAB found that …

Rodriguez (Heriberto) v. W.C.A.B., 76 Cal. Comp. Cases 853

Jurisdiction—Time Limit to Amend, Alter, or Rescind Award—WCAB, rescinding WCJ's decision, held that WCAB had jurisdiction on 11/23/2010 to correct admitted error in WCJ's 5/26/2010 Findings and Award under which WCJ found that decedent/tractor driver's mother and half-sister were partial dependents of decedent entitled to death benefit following decedent's 3/14/2005 fatal injury, when WCAB found that …

Travelers Casualty & Surety Co. v. W.C.A.B. (Adam, Tommy), 76 Cal. Comp. Cases 857

Evidence—Medical Evidence—Substantial Evidence—WCAB held that opinion of agreed medical evaluator constituted substantial evidence to support WCJ's finding that applicant/roofer foreman was permanently totally disabled, warranting increase in applicant's stipulated award of permanent disability from 66 percent to 100 percent, notwithstanding that agreed medical evaluator had not considered all medical reports concerning applicant's condition, when workers' compensation insurance carrier had consented to…

Petition to Reopen—New and Further Disability—WCAB held that WCJ did not err in dividing liability for applicant's increased permanent disability between Travelers Casualty & Surety Company and State Compensation Insurance Fund, using same percentages as provided in joint stipulated award, when …

Victory Outreach San Bernardino v. W.C.A.B. (Avila, Abraham), 76 Cal. Comp. Cases 861

Employment Relationships—Employee/Independent Contractor Status—WCAB held that worker injured while delivering gasoline to co-worker was employee, rather than independent contractor, when WCAB found that …

Injury AOC/COE—WCAB held that applicant sustained injury AOE/COE to both legs, when WCAB found that …

Wynne (Robert) v. W.C.A.B., 76 Cal. Comp. Cases 865

Permanent Disability—Apportionment—WCAB, affirming WCJ's finding, held that defendant failed to meet its burden to establish apportionment under Labor Code § 4663 or 4664, with regard to permanent disability incurred by applicant/medical engineer following cumulative back injury, when WCAB found that …

Temporary Disability—Termination—WCAB affirmed WCJ's finding that applicant/medical engineer with cumulative back injury was not entitled to additional temporary total disability benefits, when WCAB found that …

Other WCAB Decisions Denied Judicial Review

Cook Concrete Products, Inc. v. W.C.A.B. (Burford, Derrick), 76 Cal. Comp. Cases 872

Cumulative Trauma Injuries AOE/COE—Multiple Injuries—WCAB held that applicant yardman sustained two separate cumulative trauma injuries AOE/COE, both with same employer and both to his back, upper extremities, abdomen (hernia), and excretory system, from 12/14/2011 through 11/25/2002 and from 3/23/2003 through 3/23/2004, based on opinions from agreed medical evaluator, applicant's credible testimony, and WCAB's consideration of Labor Code §§ 5412 and 5500.5 and Western Growers Insurance Co. v. W.C.A.B. (Austin) (1993) 16 Cal. App. 4th 227, 20 Cal. Rptr. 2d 26, 58 Cal. Comp. Cases 323 (which WCAB found was distinguishable), when WCAB found that …

Espana (Martha Sanchez) v. W.C.A.B., 76 Cal. Comp. Cases 874

Injury AOE/COE—WCAB held that applicant lab quality controller, alleging nervous breakdown from mental and physical harassment at workplace, did not sustain injury AOE/COE on 9/21/2000 to her psyche or gastrointestinal system, when WCAB found that …

Jantz (Roy) v. W.C.A.B., 76 Cal. Comp. Cases 876

Injury AOE/COE—Compensable Consequence Injuries—WCAB held that applicant/route sales driver who suffered injuries to both elbows, back, left arm, left shoulder, and both legs on 8/14/2001 and 2/28/2003 did not injure his right shoulder as compensable consequence of original injury, when WCAB found that …

Johns (Deborah) v. W.C.A.B., 76 Cal. Comp. Cases 878

Injury AOE/COE—WCAB held that applicant did not sustain injury to her left knee as compensable consequence of admitted industrial right knee injury that occurred 11/7/2003, based on opinions from panel qualified medical evaluator, when WCAB found that …

Kautzer (Richard) v. W.C.A.B., 76 Cal. Comp. Cases 880

Attorney's Fees—Calculation—WCAB upheld WCJ's award of attorney's fees of $95,153.76 to attorney for applicant/truck driver with 7/5/2007 injuries to his head, neck, ears, and psyche, when WCJ used his discretion to determine reasonable fee based on factors in 8 Cal. Code Reg. § 10775, including responsibility assumed by attorney, care exercised in representing applicant, time involved, and results obtained, and WCAB found that …

Morton’s Steakhouse, ESIS, Inc. v. W.C.A.B. (Cohen, Sason), 76 Cal. Comp. Cases 881

Statute of Limitations—WCAB held that applicant's claim of injury to psyche and knees was not barred under statute of limitations, when WCAB found that …

Injury AOE/COE—WCAB held that applicant sustained injury to psyche AOE/COE in form of depression, as compensable consequence of 9/9/96 back injury, based on …

Permanent Disability—Rating—WCAB awarded applicant 78.75-percent permanent partial disability for 9/9/96 injury, after apportionment, plus life pension, based on …

Rodriguez (Fernando) v. W.C.A.B., 76 Cal. Comp. Cases 883

Injury AOE/COE—WCAB held that applicant school district glazier did not sustain cumulative trauma injury AOE/COE to psyche from 10/1/90 through 7/7/2000, based on …

Sanchez (Maria) v. W.C.A.B., 76 Cal. Comp. Cases 885

Petitions for Reconsideration—Skeletal Petitions—WCAB dismissed pro per applicant's petition for reconsideration of joint findings and order as skeletal and not meeting requirements of 8 Cal. Code §§ 10846 and 10842, when applicant contended that she sustained 10 industrial injuries while working for defendants as live-in housekeeper/maid for 18 years, when WCAB found that…

Securitas Security Services v. W.C.A.B. (Russell, Althea), 76 Cal. Comp. Cases 887

Permanent Disability—Rating—WCAB awarded applicant security guard 65-percent permanent partial disability for 2/28/2008 injury AOE/COE to her back, left lower extremity, psyche, and sleep disorder, based on …

Evidence—Admissibility—WCAB held that reports of evaluations by two psychologists, who, according to applicant's unrebutted testimony, evaluated applicant on referral from applicant's primary treating physician, were admissible, when WCAB found that …

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