California: Top 25 Noteworthy Panel Decisions (January-June 2013)

California: Top 25 Noteworthy Panel Decisions (January-June 2013)

The following cases are LexisNexis’ picks for the top “noteworthy” panel decisions issued by the California Workers’ Compensation Appeals Board during the period January through June 2013. We thank our advisory board members for their feedback on current topics and issues of interest to the workers’ compensation community.

Note: Lexis.com and Lexis Advance subscribers can link to the actual WCAB panel decisions to read them.

ATTORNEY’S FEES

Ed Hoffman, Applicant v. Best Overnite Express, Inc., Tower Select Insurance, Defendants, 2013 Cal. Wrk. Comp. P.D. LEXIS 110 (lexis.com), 2013 Cal. Wrk. Comp. P.D. LEXIS 110 (Lexis Advance)

Attorney’s Fees--Efforts to Secure Reimbursement to Employment Development Department--WCAB, reversing WCJ, held that under Labor Code § 4903.2 lien claimant/EDD was required to pay a portion of attorney’s fee payable to applicant/truck driver’s attorney out of stipulated award of retroactive temporary disability stemming from applicant’s cumulative back injury during period 5/1/2010 to 5/1/2011, when WCAB found that elements of Labor Code § 4903.2 were met in that EDD filed a lien, received notice of all proceedings, failed to participate in proceedings to resolve bona fide temporary disability dispute and, instead, relied upon and was a passive beneficiary of efforts of applicant’s attorney in effectuating a recovery for applicant.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 20.02[2][i], 30.27.]

CALIFORNIA INSURANCE GUARANTEE ASSOCIATION

Samuel Williams, Applicant v. Starving Students, Legion Insurance Company, in liquidation, California Insurance Guarantee Association, Defendants, 2013 Cal. Wrk. Comp. P.D. LEXIS 89 (lexis.com), 2013 Cal. Wrk. Comp. P.D. LEXIS 89 (Lexis Advance) [amended by Williams v. Starving Students, 2013 Cal. Wrk. Comp. P.D. LEXIS 187 (lexis.com), 2013 Cal. Wrk. Comp. P.D. LEXIS 187 (Lexis Advance)]

California Insurance Guarantee Association--Liability for Interest--WCAB, granting reconsideration, held that CIGA was liable, under Labor Code § 5800 and Code of Civil Procedure § 685.010, only for interest on delayed payments of Compromise and Release proceeds made after its assumption of liability for payment of applicant’s Compromise and Release proceeds, but was not liable for interest on payments made prior to insolvent carrier’s liquidation; WCAB found that CIGA’s liability for interest was not precluded by applicant’s failure to raise issue prior to trial.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d §§ 2.84[1], [2], 27.01[7].]

CREDIT

Hector Becerra, Applicant v. City of Fresno, PSI, Defendant, 2013 Cal. Wrk. Comp. P.D. LEXIS 96 (lexis.com), 2013 Cal. Wrk. Comp. P.D. LEXIS 96 (Lexis Advance)

Credit--Self-Employment Earnings--WCAB upheld WCJ’s finding that defendant was entitled to a credit pursuant to Labor Code § 4909 against temporary total disability benefits due to applicant/police officer who sustained admitted industrial injury to his left shoulder on 12/15/2010, for net earnings from applicant’s self-employment janitorial business that he started in 10/2010.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 7.04[9][b].]

Temporary Disability--Duration of Temporary Disability--WCAB, rescinding WCJ’s finding, held that applicant/police officer who sustained an admitted industrial injury to his left shoulder on 12/15/2010 was not entitled to temporary partial disability benefits for period 1/5/2011 “to date and continuing,” when WCAB found that applicant’s inability to work during this period did not result from orthopedic disability, for which modified work was available, but rather from psychiatric disability stemming from a denied cumulative stress claim. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 7.01, 7.02[1].]

COMMUTATION AND COLA

Darryl Oyas, Applicant v. California State Department of Corrections, State Compensation Insurance Fund, Defendants, 2013 Cal. Wrk. Comp. P.D. LEXIS 174 (lexis.com), 2013 Cal. Wrk. Comp. P.D. LEXIS 174 (Lexis Advance)

Attorney’s Fees--Commutation--WCAB rescinded WCJ’s 15 percent attorney’s fee award to attorney for applicant/correctional officer who incurred 100 percent permanent disability as a result of cumulative heart injury over period 11/1/97 through 11/1/2010, and returned matter to trial level, when WCAB found that (1) in making award, WCJ improperly conflated determination of what percentage of applicant’s permanent total disability award should be paid to his attorney as a reasonable fee with whether commuted value of applicant’s award should include future state average weekly wage (SAWW) increase to which applicant would be entitled under Labor Code § 4659(c), (2) WCJ should have exercised his discretion in determining reasonable value of applicant’s attorney’s efforts after he had determined appropriate calculation of applicant’s award, (3) while determination of annual SAWW increases may not be certain, it should not preclude WCJ from relying upon Disability Evaluation Unit’s commutation calculation which factor in COLAs in Labor Code § 4659(c), and (4) upon return to trial level, WCJ should utilize Uniform Increasing Reduction method in commuting present value of applicant’s award of permanent total disability as this method of commutation is preferred by applicant and provides greatest benefit, WCJ should first determine proper commuted value of applicant’s permanent disability award, incorporating a reasonable SAWW adjustment factor, and then determine proper percentage of award payable to applicant’s attorney, and, when making a determination regarding attorney’s fees, WCJ should consider relevant factors set forth in Policy and Procedures Manual, such as responsibility assumed by attorney, care exercised in representing applicant, time involved and results obtained.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d §§ 8.08[2], 20.02[1][a], 20.03, 27.02, 32.04[3][b].]

Eugene Gilmore, Applicant v. Autoland Resale Center, State Compensation Insurance Fund, Defendants, 2013 Cal. Wrk. Comp. P.D. LEXIS 148 (lexis.com), 2013 Cal. Wrk. Comp. P.D. LEXIS 148 (Lexis Advance)

Attorney’s Fees--Commutation--WCAB, rescinding WCJ’s order, held that applicant’s attorney was entitled to a 12 percent fee taking into account a 3 percent cost of living adjustment (COLA), when WCAB found that (1) this was a case of average complexity and, although applicant’s attorney assumed a large responsibility and obtained an excellent result, case was not heavily litigated by defendant and some of time spent by applicant’s attorney was unnecessary, (2) contrary to WCJ’s exclusion of COLA increase, it was reasonable to allow a fee on entire present value of 100 percent permanent disability award, including COLA increases, because COLA increases are part of results of permanent total disability award obtained by attorney and should be considered when awarding a fee, (3) attorney’s fee should be based on 3 percent average increase in state average weekly wage (SAWW), as projected increase of 3 percent is equitable, and risk that actual COLA will be greater than assumed COLA is better borne by attorney than by injured employee since attorney obtains substantial benefit from commutation by being assured that fee is paid, and (4) attorney’s fee should be commuted using “uniformly increasing reduction” method, which allows for increases in amount taken weekly from weekly payments to applicant over his lifetime. [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d §§ 8.08[2], 20.02[1][a], 20.03, 27.02, 32.04[3][b].]

DEATH BENEFITS AND DEPENDENCY

Jamie Xelowski, Deceased, Jennifer Campbell, Daughter, Applicants v. City and County of San Francisco - Community Health Network, PSI, Defendants, 2013 Cal. Wrk. Comp. P.D. LEXIS 91 (lexis.com), 2013 Cal. Wrk. Comp. P.D. LEXIS 91 (Lexis Advance) [affirmed by Xelowski v. City  and County of San Francisco - Community Health Network, PSI, 2013 Cal. Wrk. Comp. P.D. LEXIS 188 (lexis.com), 2013 Cal. Wrk. Comp. P.D. LEXIS 188 (Lexis Advance)]

Death Benefits--Continuation Benefits for Totally Dependent Minor Children--WCAB, rescinding WCJ’s finding, held that 10/5/2010 Notice of Award from Social Security Administration (SSA) issued to decedent’s adult daughter in which SSA found that decedent’s daughter became “disabled” pursuant to 42 U.S.C.S. § 423(d)(2)(A) five years before her mother’s death, was sufficient to meet Labor Code § 3501(a) requirement of an administrative finding by a “trier of fact” that decedent’s daughter was “physically or mentally incapacitated from earning” for purposes of applying conclusive presumption of dependency, when (1) WCAB determined that a finding of fact made by SSA Commissioner in issuing Notice of Award, necessarily involved a “trier of fact” as described in Labor Code § 3501(a), regardless of whether or not a formal evidentiary hearing was conducted, and (2) WCAB could discern no meaningful distinction between SSA finding of disability based upon a determination that applicant’s impairment was of such severity as to preclude her from engaging in any kind of “substantial gainful work which exists in the national economy,” and Labor Code § 3501(a) requirement that there be an administrative finding that applicant is “physically or mentally incapacitated from earning.”  [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d §§ 9.02[1], [5], 9.03[3], 9.05[3][b].]

Miguel Platero (Deceased), Applicant v. Centinela State Prison, legally uninsured, adjusted by State Compensation Insurance Fund, Defendants, 2013 Cal. Wrk. Comp. P.D. LEXIS 177 (lexis.com), 2013 Cal. Wrk. Comp. P.D. LEXIS 177 (Lexis Advance)

Death Benefits--Conclusively Presumed Total Dependent Minor Child--Entitlement to Benefits Upon Reaching Majority--WCAB affirmed WCJ’s finding that minor child who was a conclusively presumed total dependent on date of decedent/correctional officer’s industrial injury to his head, brain, heart, psyche and in form of hypertension from 7/1/96 through 5/1/2008, resulting in death on 11/28/2009, was not precluded from receiving $250,000.00 death benefit to which he was entitled under Labor Code §§ 4702 and4703 after he reached majority, when WCAB found that dependency as defined in Labor Code § 3501 is determined as of date of injury not death, that fact that a minor reaches majority does not defeat his or her conclusively presumed total dependency on date of injury nor terminate death benefits, and that 2002 amendments to Labor Code §§ 3501 and 4703.5 do not act to limit death benefits to a conclusively presumed total dependent by ending payment of death benefits to or on behalf of a minor once minor reaches age 18. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 9.02[1], [5], 9.03[3], 9.05[3][a], [b].]

DISCOVERY

Irene Yera, Applicant v. J.C. Penney, National Union Fire Insurance Company of Pittsburgh, Pennsylvania, Defendants, 2013 Cal. Wrk. Comp. P.D. LEXIS 189 (lexis.com), 2013 Cal. Wrk. Comp. P.D. LEXIS 189 (Lexis Advance)

Discovery—Depositions—WCAB granted removal and rescinded WCJ’s order denying defendant’s motion to compel applicant/sales assistant with alleged injuries to her neck, upper extremities, chest, nervous system and other body parts during period 3/22/2011 to 5/11/2012, to attend her deposition in presence of employer representative store manager, and held that applicant was required to proceed with deposition, when WCAB concluded that applicant was not excused from attending deposition when she did not request a protective order prior to deposition, there was no evidence from applicant identifying any right to privacy that would or could be affected if store manager were present during deposition, and only reason provided by applicant for not proceeding with deposition was that applicant would feel intimated by store manager’s presence, and WCAB found that such a summary assertion of subjective feeling was not a sufficient basis to exclude store manager from deposition, especially given that applicant was represented by counsel and had remedies available to address any improper behavior that may occur at deposition.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 1.11[3][g], 25.41[1], 26.03[4].]

LIEN FILING AND ACTIVATION FEES

Maria Elena Mendez, Applicant v. Le Chef Bakery, Pacific Compensation Insurance Co., Defendants, 2013 Cal. Wrk. Comp. P.D. LEXIS 170 (lexis.com), 2013 Cal. Wrk. Comp. P.D. LEXIS 170 (Lexis Advance)

Liens--Medical--Filing and Activation Fees--WCAB rescinded WCJ’s order dismissing lien claimant’s medical lien for failure to pay lien activation fee pursuant to Labor Code § 4903.06, and held that a lien claimant is not required to pay a lien activation fee prior to a 2013 lien trial when the Declaration of Readiness (DOR) is filed prior to 1/1/2013, lien conference occurs prior to 1/1/2013 and lien trial takes place in 2013, without any intervening 2013 lien conference; WCAB also found that, pursuant to Labor Code § 4903.06(a)(5), if a lien subject to lien activation fee is not resolved or withdrawn by 1/1/2014, lien activation fee must be paid by that date or lien will be dismissed by operation of law.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 30.04[8][A], 30.05[3].]

Angela Alexandrescu, Applicant v. Walmart Stores, American Home Assurance, Defendants, 2013 Cal. Wrk. Comp. P.D. LEXIS 137 (lexis.com), 2013 Cal. Wrk. Comp. P.D. LEXIS 137 (Lexis Advance)

Liens--Medical--Filing and Activation Fees--WCAB held that, while it was improper for WCJ to dismiss lien claimant’s lien pursuant to 8 Cal. Code Reg. § 10562 for failure o appear at properly noticed 1/14/2013 status conference without issuing a notice of intent (NIT) to dismiss, Labor Code § 4903.06(a)(4) required mandatory dismissal of lien for lien claimant’s failure to pay $100.00 lien activation fee prior to commencement of status conference, which WCAB found was akin to a “lien conference” under 8 Cal. Code Reg. § 10770.1(c) for purposes of payment of activation fee.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 26.01[3][b], 30.04[8][A], 30.05[3], 30.22[1][c].]

Ricardo Zambrano, Applicant v. La Pinata Mexican Restaurant, Zenith Insurance Company, Defendants, 2013 Cal. Wrk. Comp. P.D. LEXIS 191 (lexis.com), 2013 Cal. Wrk. Comp. P.D. LEXIS 191 (Lexis Advance)

Liens--Medical--Filing and Activation Fees--WCAB rescinded WCJ’s order dismissing lien claimant’s medical treatment lien for failure to submit proof of payment of $100.00 lien activation fee pursuant to Labor Code § 4903.06(a)(4), when WCAB found that, although lien claimant did not provide proof of activation fee payment at 2/20/2013 lien conference allegedly due to a mistake, lien claimant in fact paid lien activation fee on 2/19/2013 and lien was, therefore, not subject to dismissal under Labor Code § 4903.06(a)(4). [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 30.04[8][A], 30.05[3].]

MEDICAL PROVIDER NETWORKS

Joshua Grossman, Applicant v. Aramark Uniform Service, ACE American Insurance Company, Defendants; San Joaquin Accident & Medical Group, Lien Claimant, 2013 Cal. Wrk. Comp. P.D. LEXIS 1 (lexis.com), 2013 Cal. Wrk. Comp. P.D. LEXIS 1 (Lexis Advance) [affirmed by Grossman v. Aramark Uniform Service, 2013 Cal. Wrk. Comp. P.D. LEXIS 149 (lexis.com), 2013 Cal. Wrk. Comp. P.D. LEXIS 9 (Lexis Advance)]

Medical Provider Networks--Liability for Self-Procured Treatment--WCAB affirmed its prior decision [see Grossman v. Aramark Uniform Service, 2013 Cal. Wrk. Comp. P.D. LEXIS 1], holding that lien claimant was entitled to reimbursement on its lien for medical treatment self-procured by applicant outside defendant’s MPN, when WCAB found that (1) defendant’s assertion that it “substantially complied” with MPN notice requirements, and that its failure to properly notify applicant that it was transferring his care into defendant’s MPN should be excused because its intention to transfer applicant’s care into MPN was “glaringly obvious,” did not rebut evidence that applicant was unsuccessful in obtaining an MPN primary treating physician using information provided by defendant, (2) defendant’s failure to take steps to reasonably assure that applicant had access to a primary treating physician in its MPN was a neglect or refusal to provide reasonable medical treatment rendering defendant liable for medical treatment pursuant to Knight v. United Parcel Service (2006) 71 Cal. Comp. Cases 1423 (Appeals Board en banc opinion), and (3) treatment provided by lien claimant was reasonable and necessary based upon report of Agreed Medical Examiner.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 5.03[4].]

Hector Gomez, Applicant v. Fastenal and Travelers Property Casualty Company of America, Defendants, 2013 Cal. Wrk. Comp. P.D. LEXIS 47 (lexis.com), 2013 Cal. Wrk. Comp. P.D. LEXIS 47 (Lexis Advance)

Medical Provider Networks--Outside Treatment---WCAB, reversing WCJ, held that applicant/salesperson with admitted 2/9/2012 low back injury was not entitled to treat outside defendant’s MPN based upon defendant’s alleged violation of 8 Cal. Code Reg. § 9767.6(a) for failing to “arrange an initial medical evaluation with an MPN physician,” when defendant provided applicant with a list of MPN medical offices to choose from and applicant was able to obtain prompt medical treatment from an MPN physician notwithstanding that defendant did not actually schedule applicant’s initial medical visit, and WCAB found that technical violation of requirement that employer “arrange” initial medical visit did not result in a neglect or refusal to provide medical treatment under Labor Code § 4600 so as to justify forfeiture of defendant’s medical control; WCAB also found that applicant did not establish entitlement to treat outside MPN based upon MPN specialist’s refusal to act as primary treating physician, when WCAB found that to interpret requirements of Labor Code § 4616.3 so as to allow an employee to treat outside MPN if a specialist selected from within MPN is unwilling to assume role of primary treating physician is unreasonable provided that there are other available MPN physicians that meet access standards and, here, applicant did not show that there were no treating physicians available within MPN. [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d § 5.03[4].]

Eleanor Gomez, Applicant v. Jostens, Inc., Travelers Insurance Company, Defendants, 2013 Cal. Wrk. Comp. P.D. LEXIS 46 (lexis.com), 2013 Cal. Wrk. Comp. P.D. LEXIS 46 (Lexis Advance)

Medical Provider Networks--Access Standards--WCAB, reversing WCJ, held that applicant/paste-up group leader with cumulative trauma to her cervical spine, left upper extremity and psyche ending on 12/26/2001, was entitled to continue treating outside defendant’s MPN, when WCAB found that, while defendant’s MPN met access standards in 8 Cal. Code Reg. § 9767.5(c) with regard to proximity of MPN physicians to employer’s workplace, applicant is a former employee who no longer works at that workplace and lives in a rural area, and that defendant’s MPN physicians were not close enough to applicant’s residence or “readily available/accessible” as required under Labor Code § 4616(b) to reasonably require applicant to obtain treatment from one of them, particularly in light of fact that office of applicant’s treating physician is located within 30 minutes of her residence and that applicant would have to drive 60 minutes each way to attend appointment with MPN physician. [See generally Hanna, Cal. Law of

Emp. Inj. and Workers' Comp. 2d § 5.03[1].]

MEDICAL TREATMENT

Crispin Mendez-Correa, Applicant v. Vevoda Dairy, Zenith Insurance Company, Defendants, 2013 Cal. Wrk. Comp. P.D. LEXIS 171 (lexis.com), 2013 Cal. Wrk. Comp. P.D. LEXIS 171 (Lexis Advance)

Medical Treatment--Liability for Self-Procured Treatment Outside Medical Provide Network--WCAB rescinded WCJ’s finding that applicant/cow milker/calf feeder who sustained an industrial injury to his nose and low back on 7/31/2008 self-procured medical treatment outside defendant’s MPN at his own expense pursuant to Labor Code § 4605, when WCAB found that WCJ incorrectly concluded that any and all medical treatment obtained outside of a properly noticed MPN is necessarily self-procured by injured worker at his own expense pursuant to Labor Code § 4605, that authority to determine if a bill is injured worker’s obligation under Labor Code § 4605 is different from exercising jurisdiction under Labor Code § 4903 to determine a lien against compensation based upon employer’s obligation to provide reasonable medical treatment, that injured worker is only liable for medical treatment that he intended to self-procure at his own expense pursuant to Labor Code § 4605, and that here, while record showed that applicant obtained treatment outside defendant’s MPN, evidence did not establish that he intended to do so at his own expense under Labor Code § 4605. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 5.07[1], [10].]

NON-ATTORNEY HEARING REPRESENTATIVES

Clennon Moore, Applicant v. County of Los Angeles, PSI, Tristar, Defendants, 2013 Cal. Wrk. Comp. P.D. LEXIS 70 (lexis.com), 2013 Cal. Wrk. Comp. P.D. LEXIS 70 (Lexis Advance)

Non-Attorney Hearing Representatives--Suspension of Privilege to Appear--WCAB denied defendant’s Petition to Remove privilege of non-attorney hearing representative to appear before WCAB pursuant to Labor Code § 4907, notwithstanding that representative had engaged in unprofessional, disruptive and improper conduct in his representation of applicant/medical assistant with claim for 2/13/80 head and back injuries, resulting in WCAB’s 7/25/2005 “cease and desist” order against representative, ordering him to stop using abusive, contemptuous language in documents filed in WCAB proceedings and to stop engaging in disruptive and inappropriate conduct towards WCAB personnel, when WCAB found that, while amendments to Labor Code § 4907, effective 1/1/2013, require that non-attorney representatives adhere “to same professional standards of conduct as attorneys,” WCAB could not conclude that representative, at this time, was engaging in misconduct in violation of “cease and desist” order; however, WCAB admonished non-attorney hearing representative that engaging in future conduct that fails to meet standards of conduct now applicable to attorneys and non-attorneys alike will result in instigation of proceedings pursuant to Labor Code § 4907. [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d §§ 1.11[6][b], 20.01[1][a], [2].]

Non-Attorney Hearing Representatives--Paralegals--WCAB admonished non-attorney hearing representative representing applicant/medical assistant with claim for 2/13/80 head and back injuries that holding himself out as a paralegal, as indicated on his letterhead, subjected him to requirements of Business and Professions Code § 6450 et seq., including possession of a certificate of paralegal training, written declaration from a supervising attorney stating that he was qualified to perform paralegal tasks and compliance with mandatory continuing legal education, and that violation of requirements are punishable by fines or potential imprisonment under Business and Professions Code § 6455.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d §§ 1.11[6][b], 20.01[1][a], [2].]

PENALTIES

The Romano Trust, on behalf of Charles Romano, deceased, Applicant v. The Kroger Co. dba Ralph’s Grocery Co., PSI, administered by Sedgwick CMS, Defendants, 2013 Cal. Wrk. Comp. P.D. LEXIS 125 (lexis.com), 2013 Cal. Wrk. Comp. P.D. LEXIS 125 (Lexis Advance)

Penalties--Delay in Providing Medical Treatment--WCAB affirmed WCJ’s award of multiple 25 percent penalties under Labor Code § 5814 and attorney’s fees under Labor Code § 5814.5 for defendant’s 11 separate instances of unreasonable delay or denial of medical care to applicant/stocker who incurred industrial injuries to various body parts on 12/20/2003 and in the form of methicillin-resistant staph infection (MRSA), which ultimately led to applicant’s paralysis and death on 5/2/2008, when WCAB found that (1) in denying medical treatment and hospital expenses (including failure to authorize final hospitalization where applicant died from cardiorespiratory arrest, respiratory failure and pneumonia brought on by his industrial MRSA infection and related medical conditions), defendant exhibited complete disregard for legal and ethical obligation to provide medical care to critically injured applicant, and claims administrator demonstrated callous indifference to catastrophic consequences of its delays, inaction and neglect, (2) defendant was not protected from penalty liability for unreasonably delayed treatment ultimately paid for by Medi-Cal, (3) defendant’s liability for penalties was not absolved by applicant’s death since penalties were part and parcel of original 2006 award of medical benefits due to applicant under Labor Code § 4600, and (4) defendant waived Labor Code § 5814(g) two-year  statute of limitations defense to penalty liability by failing to raise issue at Mandatory Settlement Conference or trial; WCAB found that defendant’s repeated, unreasonable delays and denials and willingness to ignore award of medical treatment by WCAB, justified referral of this case to Audit Unit of DWC pursuant to Labor Code § 129(b)(3) and 8 Cal. Code Reg. §§ 10100.2(o), 10106(b), 10106.1(c)(3) for potential imposition of administrative penalty.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 10.40[1]-[3], [5], 10.42, 10.50, 27.12[2].]

PERMANENT DISABILITY

Horace Grant, Applicant v. Los Angeles Lakers, Federal Insurance Company, Defendants, 2013 Cal. Wrk. Comp. P.D. LEXIS 48 (lexis.com), 2013 Cal. Wrk. Comp. P.D. LEXIS 48 (Lexis Advance)

Permanent Disability--Rating--AMA Guides--WCAB rescinded WCJ’s finding that applicant/professional basketball player incurred 90 percent permanent disability as a result of injuries to his neck, lumbar spine, shoulders, arms, knees, ankles, right hip, wrists and in form of posttraumatic headaches, posttraumatic head syndrome, and sleep disorder from 3/12/2003 to 3/14/2004, and held that Qualified Medical Evaluator’s reporting relied upon by WCJ did not include a proper analysis of applicant’s condition pursuant to AMA Guides and was not substantial evidence, when Qualified Medical Evaluator’s assessment of  applicant’s permanent disability using other than usual AMA Guides charts and tables on basis that applicant was a professional athlete was unjustified since occupational factor is already accounted for in rating string, Qualified Medical Evaluator’s deviation from usual method of measuring impairment under AMA Guides solely to obtain a higher whole person impairment (WPI) was contrary to holding 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, and Qualified Medical Evaluator’s deviation from usual tables in AMA Guides was not supported by medical record and was not adequately explained by Qualified Medical Evaluator.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d § 32.03A; The Lawyer's Guide to the AMA Guides and California Workers' Compensation, Chs. 4, 8.]

Ronald Gerton, Applicant v. City of Pleasanton, PSI, Defendant, 2013 Cal. Wrk. Comp. P.D. LEXIS 105 (lexis.com), 2013 Cal. Wrk. Comp. P.D. LEXIS 105 (Lexis Advance)

Permanent Disability—Rating—Diminished Future Earning Capacity—WCAB rescinded WCJ’s finding that applicant/firefighter incurred 62 percent permanent partial disability as a result of injury to his low back during cumulative period ending on 6/16/2009 and that DFEC set forth in 2005 Permanent Disability Rating Schedule was rebutted by testimony of applicant’s vocational expert pursuant to analysis in Dahl v. Contra Costa County, 2012 Cal. Wrk. Comp. P.D. LEXIS 173, and held that, while analysis in Dahl, which takes into account effect of injury’s impairment on worker’s amenability to rehabilitation, may be properly applied in this case of less than total permanent disability, record required further development on whether applicant carried his burden of rebutting DFEC component of 2005 PDRS because vocational expert’s opinion did not fully address applicant’s amenability to rehabilitation and potential effect of rehabilitation on his DFEC, and because there was insufficient evidence on issue of applicant’s post-injury earnings and whether his actual earning history could be utilized to evaluate his DFEC and extent of permanent disability. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 8.02[3], [4][a], 8.05[1], 32.03A; The Lawyer’s Guide to the AMA Guides and California Workers’ Compensation, Ch. 8.]

POST-TERMINATION CLAIMS

Noe Morales, Applicant v. FMF Racing, Westland Insurance c/o Gallagher Bassett, Defendants, 2013 Cal. Wrk. Comp. P.D. LEXIS 22 (lexis.com), 2013 Cal. Wrk. Comp. P.D. LEXIS 22 (Lexis Advance)

Post-termination Claims—WCAB, reversing WCJ  in a split panel opinion, held that applicant/bracket assembler’s claim for 3/23/2011 injuries to his right arm and other body parts was barred under Labor Code § 3600(a)(10) as a post-termination claim, when WCAB distinguished facts in Dover v. Fresh Start Bakeries, Inc., 2006 Cal. Wrk. Comp. P.D. LEXIS 53 (holding that Labor Code § 3600(a)(10) was inapplicable where injured worker gave notice of injury contemporaneous with his notice of termination) and found that applicant did not satisfy pre-termination notice requirement because he did not take first opportunity to report his injury to his employer but rather delayed two days before giving notice and then gave notice only after his plea not to be fired for his chronic absenteeism was denied, and applicant offered no evidence for his failure to comply with employer’s policy that notice be given immediately after injury.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d §§ 3.23, 4.65[1], 25.21[3], 26.06[3].]

PUBLIC EMPLOYEES

Paul Smith, Applicant v. California Department of Corrections and Rehabilitation, State Compensation Insurance Fund, Defendants, 2013 Cal. Wrk. Comp. P.D. LEXIS 80 (lexis.com), 2013 Cal. Wrk. Comp. P.D. LEXIS 80 (Lexis Advance)

Public Employees--Special Findings For Public Safety Employees--WCAB rescinded WCJ’s 11/29/2012 Order Finding Industrial Causation pursuant to Government Code § 21166, when WCAB determined that finding of industrial causation was based solely on skeletal Government Code § 21166 petition filed by applicant/correctional officer with alleged cumulative injury to his nervous and internal systems from 10/2008 through 10/2009, and that WCJ did not follow proper procedures for making determination on industrial causation as required by Government Code § 21166, because WCJ did not use “same procedure” that it would in a workers’ compensation hearing nor did it employ any of WCAB’s  “well-established rules of practice and procedure for conducting hearings concerning workers’ injuries and ascertaining cognizable evidence of disability” as there was no evidence admitted, no hearing conducted, no stipulations entered and, therefore, no basis for finding industrial causation. [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d §§ 4.02[2], [3] , 21.07[6], 34.02.]

THIRD PARTY ACTIONS AND EMPLOYER CREDIT

Miguel Guzman (Deceased), Applicant v. Girardi & Keese, Angelus Block Company, Inc., Integrated Claims, Defendants, 2013 Cal. Wrk. Comp. P.D. LEXIS 2 (lexis.com), 2013 Cal. Wrk. Comp. P.D. LEXIS 2 (Lexis Advance)

Third-Party Actions—Employer Liens—WCAB  Jurisdiction—WCAB, reversing WCJ, held that where there was no prior judicial determination regarding degree of fault, if any, attributable to employer in connection with decedent/employee’s 6/10/2005 fatal industrial injury, WCAB had jurisdiction to make such determination pursuant to Labor Code §§ 3858 and 3861 for purposes of calculating allowable reimbursement from  plaintiffs’ $445,000.00 civil settlement on employer’s third-party lien for $125,000.00 workers’ compensation death benefit  paid to decedent’s dependents, when WCAB found that (1) despite WCJ’s contrary finding, fact that employer fault issue arises in context of a claim for reimbursement rather than a claim for credit does not preclude WCAB jurisdiction since there is no distinction between necessary factual determinations required by WCAB in claims for reimbursement versus claims for credit, (2) an order, now final, was issued in civil court finding that the court did not have jurisdiction over issue of employer’s claim for reimbursement on its third party lien, thereby depriving parties from a forum to litigate issue  if WCAB jurisdiction is denied,  and (3) language in civil settlement agreement indicated parties’ intention to resolve dispute over employer’s lien at WCAB.   [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d § 11.42[2], [5], [6].]

Sharif El Katan, Applicant v. Barrett Business Services, Inc., PSI, Defendant, 2013 Cal. Wrk. Comp. P.D. LEXIS 41 (lexis.com), 2013 Cal. Wrk. Comp. P.D. LEXIS 41 (Lexis Advance)

Credit--Third-Party Recovery--Malpractice Action--WCAB affirmed WCJ's finding that defendant was not entitled to a credit under Labor Code § 3861 for pro per applicant/security guard’s net recovery in legal malpractice case against his former civil attorneys filed after his civil case stemming from 4/28/2006 assault was dismissed, when WCAB found that, while defendant would have been entitled to credit for any recovery applicant had obtained against third party, defendant’s right to credit did not extend to applicant’s malpractice case because (1) employer’s rights against a third party are derivative of employee’s rights and, therefore, employer must be able to prove same necessary elements of action as employee, (2) applicant’s action against his former civil attorneys flowed from attorneys’ breach of fiduciary duty to applicant, a duty that attorneys did not owe to defendant and could not have breached, and (3) defendant was not legally harmed by applicant’s former civil attorneys so as to justify award of credit since defendant was not obligated to pay any additional benefits to applicant due to former attorneys failure to competently represent applicant in civil cases.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d § 11.42[5].]

WCAB JURISDICTION--PROFESSIONAL ATHLETES

Gaylon Hyder, Applicant v. St. Louis Rams, The Travelers Indemnity Co., successor in interest to Gulf Insurance Co., Defendants, 2013 Cal. Wrk. Comp. P.D. LEXIS 56 (lexis.com), 2013 Cal. Wrk. Comp. P.D. LEXIS 56 (Lexis Advance)

WCAB Jurisdiction--Professional Athletes--WCAB, rescinding WCJ’s award of 44 percent permanent disability, held that WCAB had no jurisdiction over applicant/professional football player’s claims for injury to his neck, back, shoulders, wrists, hands, and knees from 3/1/2000 to 3/1/2001, when there was no substantial medical evidence indicating that any portion of applicant’s industrial injury occurred in California, and WCAB found that applicant’s single day of practice in California for approximately one hour was insufficient to support a finding of regular employment in California under Labor Code § 3600.5(a), and that evidence of a single day’s work in the state, without more, does not constitute regular employment for purposes of conferring California jurisdiction.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d § 3.22[2].]

Maurice Williams, Applicant v. Jacksonville Jaguars, USF&G, ACE Insurance, Defendants, 2013 Cal. Wrk. Comp. P.D. LEXIS 88 (lexis.com), 2013 Cal. Wrk. Comp. P.D. LEXIS 88 (Lexis Advance)

WCAB Jurisdiction--Professional Athletes--Choice of Forum--WCAB, affirming WCJ, declined to exercise jurisdiction over applicant’s claim for industrial injury to his head, neck, spine, hips, and upper and lower extremities from 1/1/2001 through 12/5/2009, while playing professional football for Jacksonville Jaguars, when (1) WCAB found that applicant was bound by forum selection clause in contracts between himself and Jaguars from 2007 through 2011, under which applicant and Jaguars contractually agreed that any workers’ compensation claims would be brought in State of Florida, because there was no indication that clause was product of fraud or overreaching, especially since applicant was represented by a union certified agent during contract negotiations, that enforcement of clause would be unreasonable or unjust given that applicant selected forum where his team was located and where he resided, that proceeding with claim in Florida would be “gravely difficult,” or that enforcement of clause would contravene any public policy, (2) record indicated that applicant filed claim in California solely because California laws (particularly statute of limitations) were more favorable to his claim, and (3) although choice of forum agreement was only in effect for three of the eight years during which applicant sustained industrial injury, applicant worked for Jaguars throughout his entire professional football career and for final three years of employment, including the last year.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d § 3.22[2].]

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