California Workers' Comp Case Roundup (8/10/2013)

California Workers' Comp Case Roundup (8/10/2013)

CALIFORNIA COMPENSATION CASES

Vol. 78 No. 7 July 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 Compensation Cases

Acme Steel v. W.C.A.B. (Borman, Michael), 78 Cal. Comp. Cases 751 (lexis.com), 78 Cal. Comp. Cases 751 (Lexis Advance)

Permanent Disability—Apportionment—Court of Appeal, annulling WCAB order denying reconsideration and remanding case to WCAB, held that WCAB’s failure to apportion hearing loss portion of applicant’s current cumulative trauma was contrary to law, when Court of Appeal found that…

State Farm General Insurance Co. v. W.C.A.B. (Lutz, Joanne), 78 Cal. Comp. Cases 758 (lexis.com), 78 Cal. Comp. Cases 758 (Lexis Advance)

Res Judicata—California Insurance Guarantee Association—Contribution/Reimbursement—Court of Appeal, annulling WCAB order denying State Farm’s petition for reconsideration, held that California Insurance Guarantee Association’s claim for reimbursement was barred by principles of res judicata, when Court of Appeal found that…

Universal Psychiatric Medical Center, Inc. v. W.C.A.B. (Yero, Idahirma), 78 Cal. Comp. Cases 769 (lexis.com), 78 Cal. Comp. Cases 769 (Lexis Advance)

Liens—Dismissal—Court of Appeal, annulling WCAB’s decision denying lien claimant’s petition for reconsideration and remanding case with directions to vacate dismissal of lien claimant’s liens, held that WCAB’s decision was not supported by substantial evidence, 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.

Cemex, Inc. v. W.C.A.B. (Burdine, William), 78 Cal. Comp. Cases 780 (lexis.com), 78 Cal. Comp. Cases 780 (Lexis Advance)

Permanent Disability—Rating—Apportionment—WCAB awarded applicant heavy equipment operator 100 percent permanent total disability, without apportionment, for cumulative trauma injury AOE/COE to applicant’s neck, back, upper extremities, left thumb, and psyche, based on...

City of Los Angeles v. W.C.A.B. (Ceja, Roy), 78 Cal. Comp. Cases 784 (lexis.com), 78 Cal. Comp. Cases 784 (Lexis Advance)

Injury AOE/COE—Off-Duty Police Officers—Concurrent Employment—WCAB affirmed WCJ’s finding that applicant suffered injury AOE/COE and was acting in his capacity as police officer for City of Los Angeles, rather than as security employee of private concert promoter Live Nation at time of injury, when…

Higgs (Michael) v. W.C.A.B., 78 Cal. Comp. Cases 787 (lexis.com), 78 Cal. Comp. Cases 787 (Lexis Advance)

Employment Relationships—WCAB held that applicant failed to establish by preponderance of evidence that he had employment relationship with defendant trucking company or its owners/operators during period of alleged cumulative trauma to his spine, when…

Hull’s Walnut Creek Chapel v. W.C.A.B. (Maghuyop, Don), 78 Cal. Comp. Cases 791 (lexis.com), 78 Cal. Comp. Cases 791 (Lexis Advance)

Permanent Disability—Apportionment—Substantial Evidence—WCAB, upholding WCJ’s award of 100 percent permanent disability to applicant/mortician who incurred cumulative injuries to multiple body parts, found that opinion of agreed medical examiner in psychiatry constituted…

Innovative Orthopedic Solutions v. W.C.A.B. (Meyer, Sharon), 78 Cal. Comp. Cases 795 (lexis.com), 78 Cal. Comp. Cases 795 (Lexis Advance)

Liens—Filing and Activation Fees—WCAB upheld WCJ’s order dismissing lien in connection with applicant’s claim for industrial injuries to her head, upper extremities, shoulder, nervous system (stress), and body systems, for failure to file appropriate lien activation fee prior to 1/2/2013 lien conference, when WCAB found that…

Magic Warehouse and Delivery v. W.C.A.B. (Sabedra, Timothy), 78 Cal. Comp. Cases 798 (lexis.com), 78 Cal. Comp. Cases 798 (Lexis Advance)

Employment Relationships—Employees—WCAB, reversing WCJ in majority panel opinion, held that applicant/truck driver was employee of defendant rather than independent contractor on date of alleged injuries, based on analysis of 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, demonstrating that…

Select Personnel Services v. W.C.A.B. (Ibarra, Lorena), 78 Cal. Comp. Cases 804 (lexis.com), 78 Cal. Comp. Cases 804 (Lexis Advance)

Joint and Several Awards—Election and Right of Contribution—Due Process—WCAB issued joint and several award against multiple defendants, including Select Personnel Services and its insurance carrier, in favor of applicant/forklift operator claiming cumulative trauma to her upper extremities, when WCAB found that…

Sharon (Barbara) v. W.C.A.B., 78 Cal. Comp. Cases 807 (lexis.com), 78 Cal. Comp. Cases 807 (Lexis Advance)

Permanent Disability—Application of 2005 Permanent Disability Rating Schedule—WCAB rescinded WCJ’s finding that 1997 Schedule for Rating Permanent Disabilities applied to rate permanent disability incurred by applicant/grocery checker as result of 2004 injury to both knees, and held that…

Williams (Gerald) v. W.C.A.B., 78 Cal. Comp. Cases 811 (lexis.com), 78 Cal. Comp. Cases 811 (Lexis Advance)

Permanent Disability—Apportionment—WCAB affirmed WCJ’s apportionment of applicant’s permanent disability, based on testimony of two vocational experts that applicant suffered 35 percent loss of future earning capacity and agreed medical examiner’s 20 percent apportionment finding, when…

Other WCAB Decisions Denied Judicial Review

Ace America v. W.C.A.B. (Ortega Ismael), 78 Cal. Comp. Cases 815 (lexis.com), 78 Cal. Comp. Cases 815 (Lexis Advance)

Injury AOE/COE—WCAB held that applicant truck driver sustained injury AOE/COE on 10/26/2010 to his lumbar spine, with radiculopathy and injury to both lower extremities and buttocks, but that applicant did not…

Comprehensive Therapeutics, Inc. v. W.C.A.B. (Zahiri, Monier), 78 Cal. Comp. Cases 816 (lexis.com), 78 Cal. Comp. Cases 816 (Lexis Advance)

Lien Claims—Medical Treatment—WCAB, disallowing lien/request for reimbursement, held that medical treatment provided to applicant by lien claimant was for non-industrial condition (fibromyalgia), when WCAB found that…

Medical Reports—Service—WCAB held that lien claimant did not show improper service, when…

Gallegos (Tatiana) v. W.C.A.B., 78 Cal. Comp. Cases 818 (lexis.com), 78 Cal. Comp. Cases 818 (Lexis Advance)

Petitions for Writ of Review—Final Orders—Court of Appeal denied without prejudice petition for writ of review of WCAB decision that was not final order or decision as required by Labor Code §§ 5900 and 5901, when…

Little (Nathan) v. W.C.A.B., 78 Cal. Comp. Cases 819 (lexis.com), 78 Cal. Comp. Cases 819 (Lexis Advance)

Petitions for Reconsideration—Final Orders—WCAB dismissed applicant’s petition for reconsideration because applicant was not appealing final order, as required by Labor Code §§ 5900(a), 5902, and 5903, when…

Removal to WCAB—Alternatively, WCAB treated applicant’s petition as petition for removal to WCAB and found…

Reichelt (Lawrence) v. W.C.A.B., 78 Cal. Comp. Cases 820 (lexis.com), 78 Cal. Comp. Cases 820 (Lexis Advance)

Petitions for Writ of Review—Final Orders—Court of Appeal dismissed petition for writ of review because…

Shek (John) v. W.C.A.B., 78 Cal. Comp. Cases 821 (lexis.com), 78 Cal. Comp. Cases 821 (Lexis Advance)

Petitions for Reconsideration/Removal—In 3/12/2013 decision, WCAB dismissed pro per applicant’s petition for removal as successive and noted that…

Wausau Insurance v. W.C.A.B. (Leon, Heidi Riddle), 78 Cal. Comp. Cases 822 (lexis.com), 78 Cal. Comp. Cases 822 (Lexis Advance)

Petitions for Writ of Review—Final Orders—Court of Appeal dismissed petition for writ of review of WCAB decision that was not final order or decision as required by Labor Code §§ 5900 and 5901, when…

Zada (Dave) v. W.C.A.B., 78 Cal. Comp. Cases 824 (lexis.com), 78 Cal. Comp. Cases 824 (Lexis Advance)

Petitions for Writ of Review—Required Exhibits—Verification—Court of Appeal dismissed petition for writ of review because it did not comply with…