California Workers' Comp Case Roundup (1/5/2012) - Messele III en banc

California Workers' Comp Case Roundup (1/5/2012) - Messele III en banc

CALIFORNIA COMPENSATION CASES

Vol. 76 No. 12 December 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

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Appellate Court Compensation Case

Baker v. W.C.A.B. (X.S.), 76 Cal. Comp. Cases 1277

Permanent Total Disability—Cost of Living Adjustments—Court of Appeal, on remand following California Supreme Court decision in same case, Baker v. W.C.A.B. (X.S.) (2011) 52 Cal. 4th 434, 129 Cal. Rptr. 3d 133, 257 P.3d 738, 76 Cal. Comp. Cases 701, held that WCAB erred in concluding that each permanent total disability payment or life pension payment should be increased by cost of living adjustment each year starting January 1 following date of injury, but rather that cost of living adjustments should be …

Appellate Court Cases Not Originating With Appeals Board

Bautista v. State of California, 76 Cal. Comp. Cases 1282

Workers' Compensation System—Health and Safety Regulations—Heat Illness Prevention—Court of Appeal, affirming trial court’s judgment of dismissal of plaintiffs’ action against California officials that alleged that current heat illness prevention regulation, 8 Cal. Code Reg. § 3395, does not ensure safety of farm workers from heat-related illnesses, held that California Constitution Art. XIV, § 4, granting legislature plenary power to create complete system of workers’ compensation, is not …

Gravelin (Gary) v. Satterfield, 76 Cal. Comp. Cases 1298

Civil Actions—Peculiar Risk Doctrine—Premises Liability for Preexisting Hazardous Conditions—Court of Appeal, affirming trial court’s judgment, held that there was no evidence of preexisting hazardous condition or of breach of nondelegable duty by defendants, when Court of Appeal found that plaintiff, injured by falling to ground while installing satellite dish on roof of defendants’ residence, was either employee of independent contractor hired by company with whom defendants contracted to replace existing satellite dish or independent contractor retained by that independent contractor, that plaintiff decided to access roof by using small roof extension located between house and carport, which collapsed when he stepped on it, that this roof extension did not fit definition of …

The People v. Svercsics (Laszlo), 76 Cal. Comp. Cases 1307

Insurance—Anti-Fraud Provisions—Convictions—Court of Appeal affirmed trial court’s conviction of defendant/applicant on three counts of making false statements to obtain workers’ compensation benefits, in violation of Insurance Code § 1871.4(a)(1), and held that substantial evidence supported conviction, when …

Insurance—Anti-Fraud Provisions—Restitution—Court of Appeal affirmed trial court’s order that defendant/applicant, having been convicted of three counts of violation of Insurance Code § 1871.4(a)(1), pay restitution of $9,500 to State Compensation Insurance Fund as victim, when Court of Appeal found that …

Appeals Board En Banc Decision

Messele (Tsegay) v. Pitco Foods, Inc., 76 Cal. Comp. Cases 1318

Qualified Medical Evaluator Requests—Timeliness—Prospective Application of WCAB's Decision—WCAB en banc, on its own motion, granted reconsideration of its prior en banc decision, Messele v. Pitco Foods, Inc. (2011) 76 Cal. Comp. Cases 956 (Appeals Board en banc opinion), then affirmed its prior decision but amended it by holding that …

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.

Beyette’s Tree Care v. W.C.A.B. (Johnson, Bart), 76 Cal. Comp. Cases 1323

Injury AOE/COE—Intoxication—WCAB affirmed WCJ’s finding that applicant suffered industrial injuries rendering him paraplegic and 100-percent permanently disabled, and that defendant failed to prove that …

Bridgestone Firestone v. W.C.A.B. (Fussell, Ronald), 76 Cal. Comp. Cases 1326

Permanent Disability—Apportionment—Non-industrial Factors—WCAB held that applicant/territory manager incurred 100-percent permanent disability as result of industrial left ankle injury, and that there was no basis for apportionment of disability to applicant’s pre-existing diabetes under Labor Code § 4663, when …

Permanent Disability—Employees Refusal of Medical Treatment—WCAB held that apportionment of applicant/territory manager’s 100-percent permanent disability following industrial injury and below-the-knee amputation was not justified under Labor Code §§ 4056 and 5705(d) on basis that applicant unreasonably refused recommended medical treatment, when…

Permanent Disability—Cost of Living Adjustments—WCAB held that applicant/territory manager who suffered 100 percent permanent disability as result of industrial injury was entitled to…

Attorney's Fees—Calculation—WCAB awarded applicant’s attorney fees in sum of $220,624.67 pursuant to …

California Indemnity Insurance Co. v. W.C.A.B. (Whiteley, Leonard), 76 Cal. Comp. Cases 1332

Permanent Disability—Apportionment—Successive Injuries—WCAB affirmed WCJ’s finding that applicant/cement truck driver who suffered industrial injuries to his neck, back, left shoulder, left hip, left knee, lungs, gastrointestinal and urological systems, and in form of headaches, blurred vision, neurological problems, and taste problems on 9/26/98, and cumulative trauma to his neck, back, left hip, and left knee from 10/2/98 to 2/15/2002, incurred 100-percent permanent disability as result of 9/26/98 specific injury, and that there was no …

Stipulations—Setting Aside—Fraud—WCAB, denying defendant’s petition for reconsideration, upheld WCJ’s order setting aside earlier stipulated award of 18-percent permanent disability in favor of applicant/cement truck driver who suffered 9/26/98 industrial injury to his neck, back, left shoulder, left hip, left knee, lungs, gastrointestinal and urological systems, and in form of headaches, blurred vision, neurological problems, and taste problems, and cumulative injuries to his neck, back, left hip, and left knee from 10/2/98 to 2/15/2002, when…

California Insurance Guarantee Association v. W.C.A.B. (Salvador Paz), 76 Cal. Comp. Cases 1342

California Insurance Guarantee Association—Covered Claims—Other Insurance—WCAB upheld WCJ’s finding that CIGA was liable for medical treatment benefits owing to applicant/painter as result of specific injuries and WCJ’s order that CIGA administer medical treatment benefits owing to applicant for both specific injuries and cumulative trauma injuries, subject to claims of contribution against two solvent carriers that had proportionate shares of medical treatment liability for applicant’s cumulative trauma injuries, when…

City of Anaheim v. W.C.A.B. (Ott, James), 76 Cal. Comp. Cases 1345

Attorney's Fees—Commutation—Calculation of Fee—WCAB held that WCJ’s award of 4.7 percent state average weekly wage adjustment was reasonable, but deferred issues related to…

Scott’s Jack London Seafood, Inc. v. W.C.A.B. (Fitzsimmons, Shelly), 76 Cal. Comp. Cases 1348

Permanent Disability—Rating—AMA Guides—WCAB affirmed WCJ's finding that applicant/bartender incurred 25-percent permanent disability as result of 5/13/2007 back injury based on panel qualified medical evaluator’s opinion, and that panel qualified medical evaluator’s opinion was sufficient to rebut strict application of AMA Guides pursuant to requirements in Almaraz v. Environmental Recovery Services/Guzman v. Milpitas Unified School District (2009) 74 Cal. Comp. Cases 1084 (Appeals Board en banc opinion) and Milpitas Unified School Dist. v. W.C.A.B. (Guzman) (2010) 187 Cal. App. 4th 808, 115 Cal. Rptr. 3d 112, 75 Cal. Comp. Cases 837, when…

Smith (Velgrace) v. W.C.A.B., 76 Cal. Comp. Cases 1355

Permanent Disability—Offers of Regular, Modified, or Alternative Work—Adjustments in Compensation—WCAB rescinded WCJ's finding that applicant/legal process clerk with industrial injuries to left shoulder, bilateral wrists, and psyche was entitled to 15-percent increase in permanent disability indemnity pursuant to Labor Code § 4658(d)(2), when WCJ's award was based on literal reading of Labor Code §§ 4658(d)(2) and 4658(d)(3)(A) and his finding that defendant's offer of modified work was not timely because it was made more than 60 days after agreed medical evaluator's first proposed permanent and stationary date, but WCAB found that…

Other WCAB Decisions Denied Judicial Review

California Insurance Guarantee Association v. W.C.A.B. (Alfred, Gloria), 76 Cal. Comp. Cases 1361

California Insurance Guarantee Association—General and Special Employers—Other Insurance—WCAB held that applicant was employee of Remedy Temp at time of her admitted injury AOE/COE on 1/23/2001 to both upper extremities, lower extremities, hips, shoulders, spine, internal organs, and psyche, when WCAB found that…

Consolidated Disposal Service v. W.C.A.B. (Cazares, Efrain), 76 Cal. Comp. Cases 1363

Petitions for Writ of Review—Dismissal—Final Orders—Court of Appeal dismissed petition for writ of review appealing decision of WCAB that was not final order as required by Labor Code §§ 5901 and 5906 and case law, which ordered …

County of Mendocino v. W.C.A.B. (Branscomb, Aaron), 76 Cal. Comp. Cases 1364

Petitions for Writ for Review—Required Exhibits—Court of Appeal denied petition for writ of review because petition was procedurally defective in that it did not include as exhibits documents petitioner was seeking review of, as required under California Rules of Court, rule 8.495(a)(1)(A)(B)…

Petitions for Writ for Review—Required Exhibits—Alternatively, to extent petition for writ of review contained contention that WCAB decision was not based on substantial evidence, Court of Appeal denied …

Hamilton (Larry) v. W.C.A.B., 76 Cal. Comp. Cases 1366

Removal to WCAB—WCAB denied petition to remove case to itself, citing 8 Cal. Code Reg. § 10843 and holding that petitioner/applicant did not show irreparable harm or substantial prejudice if removal was not granted regarding WCAB’s denial of applicant’s request for expedited hearing filed 6/30/2011, when …

Medearis (Nora) v. W.C.A.B., 76 Cal. Comp. Cases 1367

Stipulations With Request For Award—Payment of Award—WCAB held that defendant delayed paying stipulations with request for award approved 11/30/2009 for applicant’s two industrial injuries (5/17/2004 and 7/7/2004) and awarded…

Temporary Disability—Credit for Overpayment—WCAB held that defendant took credit for alleged overpayment of temporary disability benefits but did not prove credit and ordered defendant to reimburse applicant amount of credit ($651.48) plus 25-percent increase of that amount under Labor Code § 5814, when…

Temporary Disability—Credit for Overpayment—WCAB gave defendant credit for temporary disability defendant paid for periods after 6/15/2006 when defendant later treated these payments as permanent disability advances under 11/30/2009 stipulated award, when WCAB found that …

Stipulations With Request for Award—Sanctions for Delay in Payment—WCAB denied applicant’s request for sanctions under Labor Code § 5813 because of defendant’s delay in paying stipulations with request for award, when WCAB found that…

San Luis Obispo Tribune v. W.C.A.B. (Ecker, Authur II), 76 Cal. Comp. Cases 1369

Injury to Psyche AOE/COE—Good Faith Personnel Actions—WCAB held that applicant sustained injury AOE/COE to psyche and circulatory system (in form of hypertension) and that applicant’s injury to psyche was not barred by good faith personnel action defense of Labor Code § 3208.3(h), based on opinions of agreed medical evaluator, when WCAB found that…

Seabright Insurance Co. v. W.C.A.B. (Lopez, Carlos), 76 Cal. Comp. Cases 1370

Petitions for Writ for Review—Court of Appeal denied petition for writ of review, vacated WCAB decision denying petition for reconsideration, and remanded for…

TIG Insurance Co. v. W.C.A.B. (Davis, Donald), 76 Cal. Comp. Cases 1371

Medical Treatment—Utilization Review—WCAB awarded applicant medical treatment in form of in-home spa trainer with treadmill for walking (Therma Spa Trainer) for admitted industrial injury to applicant’s cervical spine that occurred on 10/17/1989, when WCAB found that…