California Workers' Comp Case Roundup (9/6/2013)

California Workers' Comp Case Roundup (9/6/2013)

CALIFORNIA COMPENSATION CASES

Vol. 78 No. 8 August 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 Case

Southern California Edison v. W.C.A.B. (Martinez, Elise), 78 Cal. Comp. Cases 825 (lexis.com), 78 Cal. Comp. Cases 825 (Lexis Advance)

Permanent Disability—Rating—Permanent Total Disability—Court of Appeal annulled WCAB's decision holding that applicant/technical specialist/scientist III/systems computer programmer who incurred specific industrial injuries to her neck, right shoulder, right wrist, right hand and psyche on 6/15/2001, and cumulative industrial injuries to her lumbar and cervical spines, shoulders, wrists, hands, psyche, and in form of fibromyalgia from 2/98 through 5/21/2004, was permanently totally disabled, without apportionment, based upon opinion of independent medical evaluator in rheumatology that applicant was unable to participate in labor market and had total loss of future earning capacity due to her fibromyalgia, when Court of Appeal found…

Estrada (Frank) v. City of Los Angeles, 78 Cal. Comp. Cases 840 (lexis.com), 78 Cal. Comp. Cases 840 (Lexis Advance)

Fair Employment and Housing Act—Discrimination—Employees—Court of Appeal, affirming judgment of trial court, held that plaintiff alleging disability discrimination in violation of California Fair Employment and Housing Act was not employee of defendant city and, thus, was not person eligible to bring such action, when Court of Appeal found…

Sanchez v. Hitachi Koki, Co., Ltd., 78 Cal. Comp. Cases 851 (lexis.com), 78 Cal. Comp. Cases 851 (Lexis Advance)

Third Party Actions—Strict Liability—Negligence—Court of Appeal affirmed trial court’s grant of summary judgment in defendants’ favor and held plaintiff did not show triable issue of material fact under O’Neil v. Crane Co. (2012) 53 Cal. 4th 335, 135 Cal. Rptr. 3d 288, 266 P.3d 987, on theories of strict liability or negligence related to plaintiff’s injury from using grinder manufactured by defendant Hitachi with saw blade manufactured by different company, when Court of Appeal found…

Digests of WCAB Decisions Denied Judicial Review

Editorial Board members Hon. David Hettick, Robert G. Heywood, Kenneth B. Peterson, and Robert G. Rassp, recommended the following writ denied cases for summarization in this issue, except the writ denied cases of Charon v. W.C.A.B., Nairne v. W.C.A.B., and Zenith Insurance Co. v. W.C.A.B. (Hernandez) were reviewed and recommended for summarization by Editorial Board members Melissa C. Brown, Hon. Joel K. Harter, James T.  Ponzio, and Hon. Ralph Zamudio

Barbosa (Elieser) v. W.C.A.B., 78 Cal. Comp. Cases 860 (lexis.com), 78 Cal. Comp. Cases 860 (Lexis Advance)

Employment Relationships—Independent Contractors—WCAB affirmed WCJ’s finding that applicant/delivery driver was not defendant’s employee but was rather independent contractor when injured while loading his van, when WCAB, 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, found that…

California Insurance Guarantee Association v. W.C.A.B. (Anson, Donald), 78 Cal. Comp. Cases 865 (lexis.com), 78 Cal. Comp. Cases 865 (Lexis Advance)

California Insurance Guarantee Association—Other Insurance—Pre-Judgment Interest—WCAB affirmed WCJ’s finding that California Insurance Guarantee Association was not entitled to pre-judgment interest on amounts ordered reimbursed to it pursuant to Insurance Code § 1063.1(c)(9) for benefits paid to applicant, when WCAB found that…

Charon (Carol) v. W.C.A.B., 78 Cal. Comp. Cases 869 (lexis.com), 78 Cal. Comp. Cases 869 (Lexis Advance)

Permanent Disability—Rating—Apportionment—WCAB awarded applicant 90 percent permanent partial disability, after apportionment, for industrial injury, based on opinions from agreed medical evaluator, including agreed medical evaluator’s opinion that 10 percent of applicant’s overall permanent disability was due to non-industrial factors that occurred after date of original stipulated award, in form of problems with applicant’s daughter and grandchildren, when WCAB found that…

McKinley (Dennis) v. W.C.A.B., 78 Cal. Comp. Cases 872 (lexis.com), 78 Cal. Comp. Cases 872 (Lexis Advance)

Jurisdiction—Forum Selection Clauses—WCAB en banc, affirming WCJ’s findings and order, declined to exercise jurisdiction over claim of industrial cumulative trauma injury when there was reasonable mandatory forum selection clause in employment contract specifying that claims for workers’ compensation must be filed in forum other than California and there was limited connection to California with regard to applicant’s employment and claimed cumulative injury, when WCAB en banc found that…

Nairne (Kenton) v. W.C.A.B., 78 Cal. Comp. Cases 879 (lexis.com), 78 Cal. Comp. Cases 879 (Lexis Advance)

Statute of Limitations—Time to File Claims—Estoppel—WCAB, reversing WCJ, held that applicant/home care provider’s claim for injuries to his head, left ear, hearing, and back was barred by Labor Code § 5405 statute of limitations for failure to file claim within one year after defendant denied liability, and that defendant…

Zenith Insurance Co. v. W.C.A.B. (Hernandez, Jose), 78 Cal. Comp. Cases 884 (lexis.com), 78 Cal. Comp. Cases 884 (Lexis Advance)

Injury AOE/COE—Recreational/Athletic Activities—WCAB, in split panel decision, affirmed WCJ’s finding that applicant/field worker suffered compensable injury to his right knee and lower extremities while playing basketball on defendant’s premises during his lunch break, and held that applicant’s belief that he was expected to participate in lunchtime basketball games was objectively reasonable for purposes of meeting compensability requirements in Labor Code § 3600(a)(9) and Ezzy v. W.C.A.B. (1983) 146 Cal. App. 3d 252, 194 Cal. Rptr. 90, 48 Cal. Comp. Cases 611, when evidence indicated that…

Other WCAB Decisions Denied Judicial Review     

Dominguez (Rosemary) v. W.C.A.B., 78 Cal. Comp. Cases 888 (lexis.com), 78 Cal. Comp. Cases 888 (Lexis Advance)

Settlements—Setting Aside—WCAB denied applicant’s request to set aside stipulations with request for award and compromise and release approved by WCAB on 3/6/2013 related to applicant investigator’s two industrial injuries in 2000 to multiple body parts, when applicant claimed duress in signing settlement documents, claimed she did not understand settlement documents, claimed settlements were procured by fraud, and claimed conflict of interest because her attorney disclosed on 3/6/2013 that he was previously partner in law firm at time that law firm was defense counsel in applicant’s case, when WCAB found that…

Franklin (Ruthie) v. W.C.A.B., 78 Cal. Comp. Cases 890 (lexis.com), 78 Cal. Comp. Cases 890 (Lexis Advance)

Permanent Disability—Medical Treatment—WCAB awarded applicant 29 percent permanent partial disability, after apportionment, and further medical treatment, for cumulative trauma injury AOE/COE ending 9/11/2008 to neck, right upper extremity, psyche, and in form of pain and insomnia, when WCAB based…

Gomez (Diane) v. W.C.A.B., 78 Cal. Comp. Cases 891 (lexis.com), 78 Cal. Comp. Cases 891 (Lexis Advance)

Permanent Disability—Rating—Apportionment—WCAB awarded applicant 77 percent permanent disability, after apportionment and with life pension, for 1/24/2005 injury AOE/COE to back with psychiatric sequella, based on parties’ stipulation that applicant’s overall permanent disability for this injury was 100 percent, before apportionment, and based on…

Guzman (David) v. W.C.A.B., 78 Cal. Comp. Cases 893 (lexis.com), 78 Cal. Comp. Cases 893 (Lexis Advance)

Injury AOE/COE—WCAB held that applicant did not meet burden of proving claimed injuries to psyche AOE/COE on 11/25/2008 or 10/14/2009, or on cumulative basis ending 10/6/2010, in that applicant did not show that actual events of employment were predominant as to all causes of claimed psychiatric injuries under Labor Code § 3208.3(b)(1), when WCAB found…

WCAB’s Duty to Develop Record—WCAB held that it had no duty to develop record on issue of injury to psyche when record included...