California Workers' Comp Case Roundup (5-4-2012)

California Workers' Comp Case Roundup (5-4-2012)

CALIFORNIA COMPENSATION CASES

Vol. 77 No. 4 April 2012

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

State Compensation Insurance Fund v. W.C.A.B. (Garcia, Rigoberto), 77 Cal. Comp. Cases 307

Psychiatric Injury—Six-Month Employment Rule—Sudden and Extraordinary Employment Condition—Court of Appeal, annulling WCAB order and remanding matter with instructions to deny applicant’s claim for psychiatric injury, held that applicant’s fall from 24-foot ladder during employment as avocado picker, while sudden, was not extraordinary within meaning of Labor Code § 3208.3(d) and thus did not give rise to compensable psychiatric injury, when Court of Appeal found that...

Appellate Court Cases Not Originating With Appeals Board

Azoulay v. Valley View Medical Clinic, Inc., 77 Cal. Comp. Cases 314

Civil Actions—Medical Treatment—Physician's Financial Interest—Court of Appeal affirmed trial court’s judgment in favor of defendants and trial court’s holding that any alleged partnership agreement between plaintiff physical therapist and his professional corporation and defendants (physician and his wife and professional corporation) was illegal under Labor Code § 139.3(a), which prohibits agreements whereby physicians treating workers’ compensation patients refer patients to health care entities in which referring physician has financial interest, unless exception from Labor Code § 139.31 applies, when Court of Appeal found that…

Crumlish (Deborah) v. The Board of Administration of the San Diego City Employees’ Retirement System, 77 Cal. Comp. Cases 325

Public Employees—Disability Retirement—Court of Appeal affirmed denial of plaintiff/applicant’s request for disability retirement by city employees’ retirement board, when Court of Appeal found that plaintiff worked for city fire department as 911 dispatcher, claimed industrial injury to neck, back, and upper extremities, and received injection for lumbar spine, that injection was given with contaminated vial, leading to hepatitis C, chemotherapy for hepatitis C, and mental impairments (memory loss, anxiety, and depression), that plaintiff’s industrial injury claim was resolved by WCAB’s approval of stipulations with request for award listing injuries as…

Public Employees—Disability Retirement—Collateral Estoppel—Court of Appeal held that collateral estoppel did not apply and retirement board was not estopped from denying plaintiff’s request for disability retirement based on lumbar spine condition, even though WCAB approved stipulations with request for award related to industrial injury to plaintiff’s lumbar spine, hepatitis C, and mental impairments and city, as plaintiff's employer, was party to that stipulated award, when Court of Appeal found …

Fernandez v. Sunquest Executive Air Charter, Inc., 77 Cal. Comp. Cases 340

Civil Actions Against Employers—Exclusive Remedy Rule—Employment Relationships—Court of Appeal affirmed jury verdict that deceased husband of plaintiff widow was employee (not independent contractor) of defendant on date of husband/co-pilot’s fatal airplane crash (1/12/2007) and affirmed trial court’s holding that widow’s civil action against employer was barred and workers’ compensation was widow’s exclusive remedy for benefits from employer related to that crash, when Court of Appeal found 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.

Ace American Insurance Co. v. W.C.A.B. (Sulek, Emil), 77 Cal. Comp. Cases 353

Discovery—Pre-trial Conference Statements—WCAB, denying defendant’s petition for reconsideration and removal, found that defendant failed to identify its witnesses on pretrial conference statement filed at pretrial conference in connection with applicant/trash truck driver’s claim for industrial injury to his bilateral shoulders, and held that WCJ correctly excluded those undisclosed witnesses from testifying at trial pursuant to Labor Code § 5502(e)(3), when there was no indication that …

American Safety Insurance Co. v. W.C.A.B. (Chavez, Matias), 77 Cal. Comp. Cases 360

Permanent Disability—Rating—Permanent Total Disability—WCAB affirmed WCJ’s finding that applicant/forklift driver who suffered cumulative injuries to his right knee and low back incurred permanent total disability based on his right knee injury “in accordance with the fact” under Labor Code § 4662 pursuant to…

Permanent Disability—Cost of Living Increases—WCAB affirmed WCJ’s finding that permanent total disability awarded to applicant/forklift driver as result of cumulative right knee injury was subject to …

Binstock (Beverly) v. W.C.A.B., 77 Cal. Comp. Cases 365

Permanent Total Disability—WCAB held that applicant was not permanently totally disabled as result of three admitted industrial injuries (9/20/2001, 1/28/2002, and cumulative ending 2/9/2003), based on applicant’s testimony and opinions from agreed medical evaluator in orthopedics, agreed medical evaluator in psychiatry, and applicant’s treating physician, under either LeBoeuf or Labor Code § 4662, when WCAB considered …

Permanent Total Disability—Rating—WCAB held that applicant had no permanent partial disability for admitted injury AOE/COE on 9/20/2001 to neck and psyche, based on …

Permanent Total Disability—Apportionment—WCAB awarded applicant 13 percent permanent partial disability, after apportionment and adjustment for age and occupation, for admitted injury AOE/COE on 1/28/2002 to right knee and psyche, based on…

Permanent Total Disability—Apportionment—WCAB awarded applicant home health care worker 47 percent permanent partial disability, after apportionment and adjustment for age and occupation, for admitted cumulative trauma injury AOE/COE ending 2/9/2003 to her back, neck, bilateral wrists and hands, bilateral knees, right shoulder, and psyche, based on …

Subsequent Injuries Benefits Trust Fund—Labor Disabling Injury—WCAB held that applicant did not meet threshold requirements for Subsequent Injuries Benefits Trust Fund liability under Labor Code § 4751 because…

Catrucco (Guiseppe) v. W.C.A.B., 77 Cal. Comp. Cases 372

Subsequent Injuries Benefits Trust Fund—Threshold Requirements for Liability—WCAB affirmed WCJ’s finding that applicant/painter, who suffered specific and cumulative industrial injuries to multiple body parts between 1989 and 1993, did not meet his burden of establishing entitlement to Subsequent Injuries Benefits Trust Fund benefits pursuant to requirements in Labor Code § 4751, when WCAB found that …

Dhaliwal (Harbans) v. W.C.A.B., 77 Cal. Comp. Cases 376

Serious and Willful Misconduct By Employer—WCAB held that applicant/auto mechanic failed to establish that employer’s serious and willful misconduct caused his upper extremity, shoulder, and clavicle injuries, which occurred when tire that applicant had overinflated exploded and knocked him about five feet, when WCAB found that…

Mapstead (Michelle) v. W.C.A.B., 77 Cal. Comp. Cases 379

Serious and Willful Misconduct by Employer—WCAB affirmed WCJ’s finding that injuries incurred by applicant to her back, chest, respiratory system, and other body parts on 9/22/98 while performing an up-and-over drill as part of her firefighter training were not caused by employer’s serious and willful misconduct under Labor Code § 4553, when WCAB found that …

Evidence—Admissibility—WCAB held that WCJ properly denied applicant’s request to exclude testimony of certain defense witnesses, when applicant’s request was based on …

Munson (Melissa) v. W.C.A.B., 77 Cal. Comp. Cases 384

Attorney's Fees—Calculation—WCAB, affirming WCJ’s finding that applicant’s attorney was entitled to fee equaling 10 percent of value of lifetime award of death benefits to decedent/police officer’s mentally incapacitated young adult son, rejected applicant’s attorney’s position that he was entitled to 13.7 percent fee based on above-average complexity of case, and that fee should have been calculated on present value of dependent son’s award, which assumed 4.7 percent annual COLA/SAWW increase, when WCAB found that …

Personnel Plus, Inc. v. W.C.A.B. (Patron, Francisco), 77 Cal. Comp. Cases 398

Presumption of Compensability—Rebuttal of Presumption—WCAB rescinded WCJ’s finding that applicant/forklift operator suffered compensable injuries to his neck, back, and right shoulder on 7/13/2010, and remanded matter for further development of medical record, when applicant’s testimony regarding his injury contained …

Evidence—Medical Evidence—WCAB’s Duty to Further Develop Record—WCAB rescinded WCJ’s finding that applicant/forklift operator suffered compensable injuries to his neck, back, and right shoulder on 7/13/2010, when, although applicant’s testimony regarding his injury contained significant inconsistencies and could not be deemed credible and treating chiropractor’s report on which WCJ relied did not constitute substantial evidence because it was based on false history provided by applicant, WCAB found that …

Other WCAB Decisions Denied Judicial Review

Amaya (Francisco) v. W.C.A.B., 77 Cal. Comp. Cases 404

Injury AOE/COE—WCAB held that applicant silk screen printer did not meet burden of proving injury AOE/COE from stroke at work on 10/7/2011 to his upper extremities, lower extremities, spine, and internal organs, when WCAB found that …

WCAB Duty to Develop Record—WCAB held that it did not have duty to further develop record on issue of causation of applicant’s claimed industrial injury, when WCAB found that …

Olguin (Emilia) v. W.C.A.B., 77 Cal. Comp. Cases 406

Petitions for Writ of Review—Dismissal—Court of Appeal dismissed without prejudice petition for writ of review of 11/14/2011 WCAB decision that dismissed as untimely applicant’s petition for reconsideration of joint findings of fact and awards, when applicant filed …

Risk Enterprise Management v. W.C.A.B. (Walz, Zachary), 77 Cal. Comp. Cases 408

Vocational Rehabilitation—Repeal of Statute—WCAB Jurisdiction—WCAB held that it had jurisdiction under Labor Code § 5502(b)(3) and Labor Code § 5803 to enforce applicant’s vested rights from portion of Rehabilitation Unit Determination that became final prior to 1/1/2009 repeal of Labor Code § 139.5, when WCAB found that …

Shek (John) v. W.C.A.B., 77 Cal. Comp. Cases 410

Petitions for Reconsideration—Final Orders—WCAB dismissed applicant’s petition for reconsideration of WCJ’s orders that WCAB found were non-final interlocutory orders not subject to petition for reconsideration under Labor Code § 5900(a), Labor Code § 5902, or Labor Code § 5903, when WCJ had ordered …

Removal to WCAB—Alternatively, if petition was petition for removal of case to WCAB under Labor Code § 5310, WCAB denied removal because applicant did not show…

Watson (Harold) v. W.C.A.B., 77 Cal. Comp. Cases 412

Vocational Rehabilitation—Repeal of Statute—WCAB denied reconsideration of its 9/6/2011 decision in which it rescinded WCJ's finding that defendant had not filed timely appeal of Rehabilitation Unit's 11/18/2008 Determination in which applicant with 12/13/94 industrial injuries to his neck and back and alleged injuries to his shoulders, lower extremities, hearing loss, upper body, teeth, gums, jaw, and eyes was awarded retroactive vocational rehabilitation maintenance allowance for period 9/16/96 to 11/17/2008, and held that…