California Workers' Comp Case Round Up (4/4/2013)

California Workers' Comp Case Round Up (4/4/2013)

CALIFORNIA COMPENSATION CASES

Vol. 78 No. 3 March 2013

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 Case Not Originating With Appeals Board

Mathies (Eugene) v. Buhrer, 78 Cal. Comp. Cases 205 (lexis.com), 78 Cal. Comp. Cases 205 (Lexis Advance)

Third Party Actions—Hirer’s Liability—Court of Appeal affirmed trial court’s holding that there were no triable issues of material fact about whether exceptions to 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 applied, when Court of Appeal found that...

Third Party Actions—Workers’ Compensation Insurance—Suspension of Contractor’s License—Hirer’s Liability—Court of Appeal held that there were triable issues of material fact under Labor Code § 2750.5 and State Compensation Ins. Fund v. Workers’ Comp. Appeals Bd. (Meier) (1985) 40 Cal. 3d 5, 219 Cal. Rptr. 13, 706 P.2d 1146, 50 Cal. Comp. Cases 562, about whether plaintiff was statutory employee of homeowner/hirer, when plaintiff alleged that…

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.

Athens Administrators v. W.C.A.B. (Kite, Richard), 78 Cal. Comp. Cases 213 (lexis.com), 78 Cal. Comp. Cases 213 (Lexis Advance)

Permanent Disability—Rating—AMA Guides—WCAB held that WCJ did not err in combining permanent disability stemming from injury to each of applicant/forklift operator’s hips by using simple addition, rather than by using combined values chart or reduction method, based on panel qualified medical evaluator’s opinion, when WCAB found that…

Permanent Disability—Offers of Regular, Modified, or Alternative Employment—WCAB upheld WCJ’s finding that applicant was entitled to 15 percent increase in permanent disability awarded for hip injury, based on defendant’s failure to…

Beneficial Services, Inc. v. W.C.A.B. (See, Rosalie), 78 Cal. Comp. Cases 219 (lexis.com), 78 Cal. Comp. Cases 219 (Lexis Advance)

Injury AOE/COE—WCAB held that applicant realtor sustained one specific injury AOE/COE on 1/25/2002 to her spine and both knees, had a fall on 10/13/2002 that was compensable consequence of 1/25/2002 injury, and did not sustain cumulative trauma injury AOE/COE, when WCAB found that…

Sanctions—Bad Faith Actions or Tactics—WCAB imposed sanctions of $500 under Labor Code § 5813 on defense attorney and his law firm, jointly and severally, for attaching 97 pages of medical reports to petition for reconsideration that were already part of WCAB’s adjudication file, thus exceeding page limit without obtaining WCAB’s permission, when WCAB found that…

Bodnar (Deborah) v. W.C.A.B., 78 Cal. Comp. Cases 224 (lexis.com), 78 Cal. Comp. Cases 224 (Lexis Advance)

Temporary Disability—Compensation Rate—WCAB held that applicant’s temporary total disability for 5/28/2009 industrial injury should be computed under Labor Code § 4453(c)(1) using applicant’s rate of pay after post-injury pay cut instead of pay on date of injury, when WCAB found that…

California Insurance Guarantee Association v. W.C.A.B. (Key, William), 78 Cal. Comp. Cases 227 (lexis.com), 78 Cal. Comp. Cases 227 (Lexis Advance)

California Insurance Guarantee Association—Other Insurance—Pre-Judgment Interest—WCAB affirmed Arbitrator’s finding that California Insurance Guarantee Association, on behalf of general employer’s insolvent carrier, was not entitled to pre-judgment interest on award of reimbursement against special employer’s workers’ compensation carrier for benefits paid to applicant with industrial injury, when WCAB found that…

California Insurance Guarantee Association—Other Insurance—Administration of Benefits—WCAB granted reconsideration and held that special employer’s workers’ compensation carrier was required to administer applicant’s award of further medical treatment, when Arbitrator found that…

County of San Bernardino v. W.C.A.B. (Hansen, Harold), 78 Cal. Comp. Cases 232 (lexis.com), 78 Cal. Comp. Cases 232 (Lexis Advance)

Liens—Medical—Statute of Limitations—WCAB affirmed WCJ’s finding that lien claimant’s lien for medical treatment provided to applicant/deputy sheriff with right shoulder injury and left knee injury was not barred by statute of limitations in Labor Code § 4903.5, when WCAB found that…

Gellman (Tara) v. W.C.A.B., 78 Cal. Comp. Cases 236 (lexis.com), 78 Cal. Comp. Cases 236 (Lexis Advance)

Injury AOE/COE—Going and Coming Rule—Special Mission Exception—WCAB, affirming WCJ, held that applicant/workers’ compensation defense attorney did not meet her burden of proving that she sustained injury AOE/COE when she fell while walking from her apartment to her parked car while carrying box of work-related documents, when evidence indicated that applicant fell while still on property where she resided and had not yet started her commute to work, and WCAB found that…

Marriott International v. W.C.A.B. (Torres, Leonorilda), 78 Cal. Comp. Cases 240 (lexis.com), 78 Cal. Comp. Cases 240 (Lexis Advance)

Liens—Medical Treatment—WCAB affirmed WCJ’s finding that lien claimant was entitled to reimbursement for $ 1,445 lien for anesthesiology services provided to applicant in connection with applicant’s surgical procedure performed at surgery center, when WCAB found that…

Rainbow USA, Inc. v. W.C.A.B. (Raymond, Tammy), 78 Cal. Comp. Cases 245 (lexis.com), 78 Cal. Comp. Cases 245 (Lexis Advance)

Petitions to Reopen—Good Cause to Reopen—WCAB held that defendant did not show good cause pursuant to Labor Code § 5803 to reopen WCJ’s 2009 Finding of Fact and Order in which WCJ found that defendant failed to rebut Labor Code § 5402 presumption that applicant/store manager’s alleged cumulative trauma injuries to her back and in forms of cardiopulmonary injury, depression, and subsequent infection were industrially caused, when defendant sought to reopen 2009 decision based on agreed medical evaluator’s 2010 report indicating that applicant’s complaints resulted from nonindustrial vertebral osteomyelitis and endocarditis, but WCAB determined that…

Romero (Luis) v. W.C.A.B., 78 Cal. Comp. Cases 249 (lexis.com), 78 Cal. Comp. Cases 249 (Lexis Advance)

Credit—Third-Party Settlements—Employer Negligence—WCAB held that defendant was entitled to full credit under Labor Code § 3861 for applicant/maintenance worker’s net third-party settlement recovery in amount of $2,000,000 against its future workers’ compensation liability to applicant, when WCAB found that…

Turco (Samuel) v. W.C.A.B., 78 Cal. Comp. Cases 252 (lexis.com), 78 Cal. Comp. Cases 252 (Lexis Advance)

Statute of Limitations—Cumulative Injury—WCAB, reversing WCJ, held that applicant’s claim against defendant for cumulative injury to his heart and cardiovascular system over his period of employment as police officer through 3/27/98 was barred by statute of limitations in Labor Code § 5405, when WCAB found that…

Wiacek (Larry) v. W.C.A.B., 78 Cal. Comp. Cases 256 (lexis.com), 78 Cal. Comp. Cases 256 (Lexis Advance)

Injury AOE/COE—Going and Coming Rule—WCAB held that applicant/elevator mechanic did not sustain injury AOE/COE in form of coccidioidomycosis infection causing valley fever, when (1) there was no evidence indicating that applicant was exposed to coccidioidomycosis fungus at any of his work sites, (2) although qualified medical evaluator reported that applicant was exposed to coccidioidomycosis fungus while driving through central valley during weekend commutes from Southern California, where he was working for defendant, to his home in Bay Area, qualified medical evaluator’s opinion was not persuasive because…

Medical-Legal Procedure—Qualified Medical Evaluators—WCAB held that it was inappropriate for applicant to hire three qualified medical evaluators in internal medicine to report on issue of causation in connection with his claim for injury to his lungs in form of coccidioidomycosis infection causing valley fever, despite fact that first qualified medical evaluator did not make determination regarding…

Other WCAB Decisions Denied Judicial Review

County of Los Angeles v. W.C.A.B. (Thompson, Kevin), 78 Cal. Comp. Cases 261 (lexis.com), 78 Cal. Comp. Cases 261 (Lexis Advance)

Attorney’s Fees—Applicant’s Depositions—WCAB ordered defendant to pay balance of applicant’s attorney’s fees for attorney to represent applicant at his deposition, holding that defendant waived objections to that order and that fees were proper under Labor Code § 5710, when WCAB found that…

Llano (Robert) v. W.C.A.B., 78 Cal. Comp. Cases 263 (lexis.com), 78 Cal. Comp. Cases 263 (Lexis Advance)

Permanent Disability—Rating—WCAB awarded applicant field engineer 28 percent permanent disability (30 percent standard before adjustment for age and occupation) for 3/16/2001 admitted industrial right shoulder injury that occurred when he dislocated his shoulder while carrying heavy computer monitors, with WCAB’s rating based on…

One Beacon Insurance Co. v. W.C.A.B. (Crawford, Debra), 78 Cal. Comp. Cases 265 (lexis.com), 78 Cal. Comp. Cases 265 (Lexis Advance)

Cumulative Trauma Injury—Date of Injury—WCAB, rescinding WCJ’s finding, held that applicant/balloon technician/assembler’s date of cumulative injury to her bilateral upper extremities and neck was 8/22/96 pursuant to Labor Code § 5412, based on…

R.W. Colgate v. W.C.A.B. (Sanchez, Daniel), 78 Cal. Comp. Cases 266 (lexis.com), 78 Cal. Comp. Cases 266 (Lexis Advance)

Statute of Limitations—WCAB held that statute of limitations of Labor Code § 5405 did not bar applicant’s claim of industrial injury on 3/11/2004 and that defendants did not meet burden under Labor Code §§ 5409 and 5705 of proving this affirmative defense, when WCAB found that…

Rorick (Lew) v. W.C.A.B., 78 Cal. Comp. Cases 267 (lexis.com), 78 Cal. Comp. Cases 267 (Lexis Advance)

Permanent Disability—Rating—WCAB awarded applicant 44 percent permanent disability, without apportionment, for applicant plumber’s 11/4/2002 low back injury from drilling holes in concrete, based on opinions from defense qualified medical evaluator that applicant had restrictions of no heavy work, when WCAB found that…

Evidence—Exclusions—WCAB excluded specified reports from applicant’s treating physician because physician did not sign reports under penalty of perjury and, therefore, did not comply with Labor Code § 5703(a)(2), and WCAB excluded specified…

Discovery—Close of Discovery—WCAB denied applicant’s request to reopen record for evidence about subsequent medical events that could lead to additional temporary disability and permanent disability benefits, when WCAB found that …

Ruelas v. W.C.A.B. (Costaneda, Oscar Ornelas), 78 Cal. Comp. Cases 269 (lexis.com), 78 Cal. Comp. Cases 269 (Lexis Advance)

Employment Relationships—Employee Status—WCAB held that applicant was employee of defendant on date of injury, 4/9/2009, not independent contractor, when WCAB found that…

Going and Coming Rule—WCAB held that applicant’s injury was not barred by going and coming rule, when WCAB found that…

SCI/Ontrac v. W.C.A.B. (Alcedo, Jennifer), 78 Cal. Comp. Cases 271 (lexis.com), 78 Cal. Comp. Cases 271 (Lexis Advance)

Employment Relationships—Employee Status—WCAB held that applicant was employee of defendant on date of injury (3/22/2011), not independent contractor, when WCAB found that…

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