California Workers’ Compensation Case Roundup (July 8, 2013)

CALIFORNIA COMPENSATION CASES

Vol. 78 No. 6 June 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 Cases Not Originating With Appeals Board

Alberda v. Board of Retirement of Fresno County Employees’ Retirement Association, 78 Cal. Comp. Cases 547 (lexis.com), 78 Cal. Comp. Cases 547 (Lexis Advance)

Service-Connected Disability Retirement—Appellate Review—Standard of Review—Court of Appeal, reversing trial court’s order denying plaintiff’s petition for writ of mandate that sought to overturn retirement board’s denial of plaintiff’s application for service-connected disability retirement, held that trial court used incorrect standard of review in concluding that substantial evidence supported hearing officer’s and retirement board’s finding that plaintiff, while eligible for non-service-connected disability retirement, was not eligible for service-connected disability retirement, when Court of Appeal found that…

Hernandez v. AMCORD, Inc., 78 Cal. Comp. Cases 556 (lexis.com), 78 Cal. Comp. Cases 556 (Lexis Advance)

Asbestos Litigation—Nonsuit—Plaintiff's Evidence—Court of Appeal, reversing trial court’s judgment of nonsuit, held that plaintiff set forth sufficient evidence at trial to meet standard set forth in Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal. 4th 953, 941 P.2d 1203, 67 Cal. Rptr. 2d 16, for jury to determine issue of causation, when Court of Appeal found that…

Asbestos Litigation—Admissibility of Evidence—Defendant's Lobbying Activities—Noerr-Pennington Doctrine—Court of Appeal, reversing trial court’s ruling that no evidence regarding defendant’s alleged lobbying of California legislature for exemption from statute banning sale of asbestos spray construction products was admissible, with trial court basing its ruling on Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc. (1961) 365 U.S. 127, 81 S. Ct. 523, 5 L. Ed. 2d 464, and United Mine Workers v. Pennington (1965) 381 U.S. 657, 85 S. Ct. 1585, 14 L. Ed. 2d 626, held that…

Karty (James) v. DePhilippis, 78 Cal. Comp. Cases 574 (lexis.com), 78 Cal. Comp. Cases 574 (Lexis Advance)

Civil Actions Against Employers—Exclusive Remedy Rule—Exceptions—Court of Appeal affirmed trial court’s grant of motion for nonsuit on grounds that workers’ compensation was plaintiff/applicant’s exclusive remedy against his employer (defendant) under Labor Code §§ 3600(a) and 3602(a) for damages resulting from industrial injury, when Court of Appeal found that…

Kirk (Henry) v. Retirement Board of the City & County of San Francisco, 78 Cal. Comp. Cases 585 (lexis.com), 78 Cal. Comp. Cases 585 (Lexis Advance)

Public Employees—Disability Retirement—Court of Appeal affirmed retirement board’s denial of plaintiff/applicant’s application for disability retirement, when Court of Appeal found that…

Kivachitsky (Mihail) v. Mashburn, 78 Cal. Comp. Cases 597 (lexis.com), 78 Cal. Comp. Cases 597 (Lexis Advance)

Employment Relationships—Residential Employees—Court of Appeal, reversing superior court’s holdings that plaintiff was residential employee and that workers’ compensation was his exclusive remedy against homeowner, and reversing superior court’s grant of summary judgment in homeowner’s favor on this issue, held that plaintiff/applicant did not admit working more than 52 hours for homeowner in 90 days before injury and that evidence did not support finding that he worked more than 52 hours, when Court of Appeal found that…

National Football League v. Fireman’s Fund Insurance Co., 78 Cal. Comp. Cases 605 (lexis.com), 78 Cal. Comp. Cases 605 (Lexis Advance)

Forum Non Conveniens—Stay of Proceedings—Court of Appeal, affirming trial court orders staying proceedings pending outcome of parallel New York actions, held that trial court applied correct standards in conducting proceedings below, that no strong presumption in favor of plaintiffs’ choice of forum applied because plaintiffs were not California residents for purpose of forum non conveniens analysis, that burden of proof on defendants, as moving parties on motion, did not include establishing that California was seriously inconvenient forum because such proof is not required to justify stay of California proceedings, as contrasted with dismissal, and that trial court’s decision to stay proceedings after weighing and balancing relevant factors was well within its allowable discretion, when Court of Appeal found that…

Roger v. CorVel Healthcare, 78 Cal. Comp. Cases 638 (lexis.com), 78 Cal. Comp. Cases 638 (Lexis Advance)

Medical Provider Networks—Contracts with Member Physicians—Court of Appeal held that medical provider network was justified in terminating contract with medical provider (orthopedic surgeon) who had contract with medical provider network to provide medical treatment services to workers’ compensation patients as member of medical provider network, when reasons for termination were…

Appeals Board En Banc Decisions

Carroll (Wesley) v. Cincinnati Bengals, 78 Cal. Comp. Cases 655 (lexis.com), 78 Cal. Comp. Cases 655 (Lexis Advance)

California Workers' Compensation Jurisdiction—Exemptions—WCAB en banc, rescinding WCJ’s order and dismissing defendant as party, held that employee and employer are exempted by Labor Code § 3600.5(b) from provisions of California workers’ compensation law when employee was hired outside of California and (1) employee is temporarily within California doing work for employer, (2) employer furnished coverage under workers’ compensation or similar laws of another state that covers employee’s employment while in California, (3) other state recognizes California’s extraterritorial provisions, and (4) other state likewise exempts California employers and employees covered by California’s workers’ compensation laws from application of its workers’ compensation or similar laws, when WCAB en banc found 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.

Atlantic Services, Inc. v. W.C.A.B. (Duniven, James), 78 Cal. Comp. Cases 682 (lexis.com), 78 Cal. Comp. Cases 682 (Lexis Advance)

Injury AOE/COE—Burden of Proof—WCAB upheld WCJ’s finding that decedent, who worked as union electrician at nuclear power plant, suffered injury AOE/COE in form of thyroid cancer that resulted in his death in 2010, based on unrebutted opinion of agreed medical evaluator linking decedent’s exposure during his employment by defendant in 2003 to decedent’s cancer diagnosis seven years later, when WCAB found that …

Statute of Limitations—Occupational Diseases—Date of Injury—WCAB held that applicants’ 9/22/2010 claim for death benefits arising from decedent’s 8/25/2010 death from industrially-related thyroid cancer was not barred by statute of limitations because defendant waived statute as affirmative defense by not…

Due Process—WCAB held that it did not deny defendant’s due process rights by proceeding to trial without defendant and relying on agreed medical evaluator’s opinion to award death benefits even though defendant did not agree to agreed medical evaluator selected by parties, when WCAB found that...

Death Benefits—Amount of Benefit—Date of Injury as Determinative—WCAB held that decedent’s widow and two dependent children were entitled to award of death benefits at rate in effect at…

Caballero v. W.C.A.B. (Tran, John), 78 Cal. Comp. Cases 686 (lexis.com), 78 Cal. Comp. Cases 686 (Lexis Advance)

California Insurance Guarantee Association—Assignment of Liens—WCAB rescinded WCJ’s order denying California Insurance Guarantee Association’s petition to compel deposition of lien claimant’s non-attorney lay representative, when California Insurance Guarantee Association sought deposition testimony based on…

Carlos (Adelfo) v. W.C.A.B., 78 Cal. Comp. Cases 691 (lexis.com), 78 Cal. Comp. Cases 691 (Lexis Advance)

Employment Relationships—Independent Contractor—WCAB, in split panel decision, rescinded WCJ’s finding that applicant/handyman was employee of homeowner/defendant at time of his industrial right knee and left foot injuries and, applying factors in S.G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal. 3d 341, 769 P.2d 399, 256 Cal. Rptr. 543, 54 Cal. Comp. Cases 80, held that applicant was independent contractor when he was injured, because…

City of Cathedral City v. W.C.A.B. (Fields, Mark), 78 Cal. Comp. Cases 696 (lexis.com), 78 Cal. Comp. Cases 696 (Lexis Advance)

Permanent Disability—Apportionment—Successive Injuries—WCAB, upholding its prior decision, held that applicant/police officer was entitled to single, combined award of 74 percent permanent disability as result of specific and cumulative injuries to his lumbar spine, and in forms of gastroesophageal reflux disease, coronary heart disease, hypertensive heart disease, and hypertension, rather than separate permanent disability awards under Labor Code § 4663, when opinion of agreed medical evaluator in internal medicine, on which WCAB relied, established that disability…

City of Pasadena v. W.C.A.B. (Mayes, Roy), 78 Cal. Comp. Cases 701 (lexis.com), 78 Cal. Comp. Cases 701 (Lexis Advance)

Discrimination—Labor Code § 132a—WCAB affirmed WCJ’s finding that defendant violated Labor Code § 132a by terminating applicant, who was probationary employee, when applicant showed that he was terminated shortly after returning to work following industrial injury, despite performance evaluation stating that…

Community Development Commission v. W.C.A.B. (Arguelles, Elizabeth), 78 Cal. Comp. Cases 705 (lexis.com), 78 Cal. Comp. Cases 705 (Lexis Advance)

California Insurance Guarantee Association—Other Insurance—Statute of Limitations—WCAB affirmed WCJ’s order dismissing California Insurance Guarantee Association, on behalf of general employer’s insolvent carrier, as party defendant, when WCAB found that…

Cortez (Joel) v. W.C.A.B., 78 Cal. Comp. Cases 709 (lexis.com), 78 Cal. Comp. Cases 709 (Lexis Advance)

Permanent Disability—Rating—WCAB awarded applicant/accountant 68 percent permanent disability, after apportionment, for industrial cumulative injuries to his back, psyche, and internal/cardiovascular system, based on opinions of agreed medical evaluators in orthopedics, internal medicine, and psychiatry, as well as recommended rating from Disability Evaluation Unit that was determined utilizing WCJ’s rating instructions and 1997 Schedule for Rating Permanent Disabilities, when WCAB found that…

County of Los Angeles v. W.C.A.B. (Ellefson, Sandra), 78 Cal. Comp. Cases 713 (lexis.com), 78 Cal. Comp. Cases 713 (Lexis Advance)

Serious and Willful Misconduct of Employer—WCAB, in split panel decision, reversed WCJ’s finding and held that applicant/eligibility worker met her burden under Labor Code § 4553 of establishing that her psyche, lumbar, and ankle injuries, which occurred when drunk coworker staggered and fell on top of her chair, were caused by employer’s serious and willful misconduct, when WCAB found that…

Matthies (Crystal) v. W.C.A.B., 78 Cal. Comp. Cases 718 (lexis.com), 78 Cal. Comp. Cases 718 (Lexis Advance)

Medical-Legal Procedure—Information Provided to Qualified Medical Evaluators—WCAB affirmed WCJ’s order that Medical Unit issue replacement chiropractic qualified medical evaluator panel to evaluate applicant/server with industrial back injury and alleged injury to other body parts, when WCAB found that….

Temporary Disability—Duration of Disability—WCAB in split panel decision, rescinding WCJ’s award of ongoing temporary disability, awarded applicant temporary total disability benefits from 9/30/2011 through 6/22/2012, with claim for additional temporary disability deferred, when WCAB found that…

Pacific Compensation Insurance Co. v. W.C.A.B. (Nilsen, Gregory), 78 Cal. Comp. Cases 722 (lexis.com), 78 Cal. Comp. Cases 722 (Lexis Advance)

Permanent Disability—Rating—Permanent Total Disability—WCAB affirmed WCJ’s finding that applicant/service writer was permanently totally disabled, with no basis for apportionment, as result of industrial spine injury resulting in chronic pain syndrome and psychiatric disorder, when substantial medical and vocational evidence established that…

Perez (Sergio) v. W.C.A.B., 78 Cal. Comp. Cases 729 (lexis.com), 78 Cal. Comp. Cases 729 (Lexis Advance)

WCAB Jurisdiction—Out-of-State Injuries—WCAB affirmed WCJ’s finding that WCAB had no jurisdiction under Labor Code § 5305 over applicant’s claim for industrial injury that occurred while applicant was working in Arizona, even though applicant’s primary residence was in California and employer’s business was based in California, when WCAB found that …

Sabharwal (Balwant) v. W.C.A.B., 78 Cal. Comp. Cases 733 (lexis.com), 78 Cal. Comp. Cases 733 (Lexis Advance)

Psychiatric Injuries—Good Faith Personnel Actions—WCAB held that applicant/sorter sustained noncompensable injury to psyche/stress that was substantially caused by employer’s lawful, nondiscriminatory, good faith personnel action under Labor Code § 3208.3(h) and analysis set forth in Rolda v. Pitney Bowes, Inc. (2001) (Appeals Board en banc opinion), when WCAB found that…

Soteropoulos (Paul) v. W.C.A.B., 78 Cal. Comp. Cases 736 (lexis.com), 78 Cal. Comp. Cases 736 (Lexis Advance)

Presumption of Industrial Causation—Cancer—Firefighters—WCAB, reversing WCJ, held that defendant met burden of establishing that latency period for testicular cancer suffered by applicant while employed as on-call firefighter from 6/1/98 through 8/26/2002 was no shorter than…

Van Duinhoven (Samantha) v. W.C.A.B., 78 Cal. Comp. Cases 740 (lexis.com), 78 Cal. Comp. Cases 740 (Lexis Advance)

Permanent Disability—Rating—WCAB rescinded WCJ’s finding that applicant/spa director suffered permanent total disability as result of industrial injuries to her neck, back, left shoulder, psyche, and in form of chronic pain syndrome, and, finding that there was insufficient evidence that applicant suffered injury to her…

Other WCAB Decisions Denied Judicial Review

Athens Administrators v. W.C.A.B. (Santa Maria, Terry), 78 Cal. Comp. Cases 744 (lexis.com), 78 Cal. Comp. Cases 744 (Lexis Advance)

Statute of Limitations—WCAB held that applicant’s claim of industrial cumulative trauma through 3/14/2006 was not barred by statute of limitations, when WCAB found that…

Permanent Disability—Rating—Apportionment—WCAB awarded applicant 39 percent permanent disability for two industrial left knee injuries (12/9/2005 and cumulative ending 3/14/2006), after adjustment for age and occupation and before apportionment, 2/3 of permanent disability due to cumulative trauma injury (26 percent) and 1/3 due to 12/9/2005 injury (13 percent), all based on substantial evidence opinions from…

Evidence—Admissibility—WCAB held that all reports from panel qualified medical evaluator were inadmissible because defendant’s claims examiner made ex-parte communications with…

Li (Chen) v. W.C.A.B., 78 Cal. Comp. Cases 746 (lexis.com), 78 Cal. Comp. Cases 746 (Lexis Advance)

Permanent Disability—Rating—WCAB awarded applicant cook 65 percent permanent partial disability, after apportionment, for 10/9/1999 industrial injury to neck, low back, right wrist, right arm, and right shoulder, and, as compensable consequence, gastrointestinal problems, based on…

Rowles (Steven) v. W.C.A.B., 78 Cal. Comp. Cases 748 (lexis.com), 78 Cal. Comp. Cases 748 (Lexis Advance)

Petitions for Writ of Review—Verifications—Required Documents—Court of Appeal deemed petition for writ of mandate or review to be petition for writ of review and denied petition because...

United States Fidelity & Guaranty Insurance Co. v. W.C.A.B. (Castillo, Juan), 78 Cal. Comp. Cases 749 (lexis.com), 78 Cal. Comp. Cases 749 (Lexis Advance)

Employment Relationships—WCAB held that applicant was employee of defendants at time of two claimed industrial injuries to low back, neck, bilateral upper extremities, head, and psyche (5/6/2006 and cumulative from 7/28/2005 to present), based on applicant’s testimony about…

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