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Workers' Compensation

California Compensation Cases July 2021

CALIFORNIA COMPENSATION CASES

Vol. 86, No. 7 July 2021

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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LexisNexis Online Subscribers: You can link to your account on Lexis Advance to read the complete headnotes and court decisions, en banc decisions, writ denied summaries, panel decisions and IMR decisions.

Appellate Court Case Not Originating With Appeals Board

Mateel Environmental Justice Foundation v. Ukiah Rifle and Pistol Club, Lexis Advance

Employees—Definition—Court of Appeal reversed trial court’s grant of summary judgment in favor of defendant Ukiah Rifle and Pistol Club (Club) on basis that it was not “person in the course of doing business” subject to discharge prohibitions in Proposition 65 (Health & Safety Code § 25249.5 et seq.), and held that there was triable issue of fact as to whether Club had 10 or more employees during relevant time…

Digests of WCAB Decisions Denied Judicial Review

Alameda-Contra Costa Transit District v. W.C.A.B. (Jones, Sheila Marie Williams), Lexis Advance

Discrimination—Labor Code § 132a—WCAB, rescinding WCJ’s decision, held that applicant established prima facie case of discrimination in violation of Labor Code § 132a under standard set forth in Department of Rehabilitation v. W.C.A.B. (Lauher) (2003) 30 Cal. 4th 1281, 135 Cal. Rptr. 2d 665, 70 P.3d 1076, 68 Cal. Comp. Cases 831, thereby shifting burden of proof to defendant to establish business necessity, which defendant did not do, when WCAB found that applicant...

City of Richmond v. W.C.A.B. (Tiscareno, Michael), Lexis Advance

Permanent Disability—Rating—Combining Multiple Disabilities—WCAB affirmed WCJ’s finding that applicant firefighter’s industrial injury to his neck, back, shoulders, knees, and elbows caused 100 percent permanent disability, and held that to find permanent disability, WCJ properly added applicant’s multiple impairments pursuant to Athens Administrators v. W.C.A.B.(Kite) (2013) 78 Cal. Comp. Cases 213 (writ denied), rather than using Combined Values Chart...

Fresno Unified School District v. W.C.A.B. (Swanson, Karen), Lexis Advance

Permanent Disability—Rating and Apportionment—Rebuttal of Scheduled Rating—WCAB affirmed WCJ’s finding that applicant elementary school teacher’s 2/17/2004 industrial injuries to her neck, low back, psyche, cervical spine, esophagus, and bladder resulted in permanent total disability pursuant to Ogilvie v. W.C.A.B. (2011) 197 Cal. App. 4th 1262, 129 Cal. Rptr. 3d 704, 76 Cal. Comp. Cases 624, when vocational expert evidence established...

National Cement Company, Inc. v. W.C.A.B. (Rivota, Korey), Lexis Advance

Medical Treatment—Utilization Review—Assisted Living Facility—WCAB affirmed WCJ’s decision that applicant cement truck driver who was previously awarded 100 percent permanent disability with need for further medical treatment following 5/5/2014 industrial injury to multiple body parts, including his brain, was entitled to further medical treatment in form of continued interdisciplinary post-acute rehabilitation at

Other WCAB Decisions Denied Judicial Review

Piro (Carlos) v. W.C.A.B., Lexis Advance

Petitions for Writ for Review—Premature Petitions—Court of Appeal denied applicant’s premature Petition for Writ of Review filed before WCAB issued final decision in this matter but advised that applicant was permitted to refile Petition for Writ of Review after WCAB issues decision on applicant’s Petition for Reconsideration, which was granted on 5/18/2021.

Yang (Gerry) v. W.C.A.B., Lexis Advance

Petitions for Removal—WCAB denied pro per applicant’s Petition for Removal appealing WCJ’s order denying applicant’s request for Expedited Hearing and taking matter off calendar for further discovery, when WCAB found that applicant did not establish that he suffered any significant prejudice or irreparable harm from WCJ’s order, nor did he establish that Petition for Reconsideration would not be adequate remedy if adverse decision is ultimately issued.

Appeals Board Panel Decisions

CAUTION: These WCAB panel decisions have not been designated a “significant panel decision” by the Workers’ Compensation Appeals Board. Practitioners should proceed with caution when citing to these board panel decisions and should also verify the subsequent history of the decisions. WCAB panel decisions are citeable authority, particularly on issues of contemporaneous administrative construction of statutory language. However, WCAB panel decisions are not binding precedent, as are en banc decisions, on all other Appeals Board panels and workers’ compensation judges. While WCAB panel decisions are not binding, the WCAB will consider these decisions to the extent that it finds their reasoning persuasive.

Garcia (Zenaida) v. Riverside Magnolia Corporation, Lexis Advance

Supplemental Job Displacement Benefits—Applicant’s Entitlement to Voucher—Treating Physician’s Return-to-Work Report—WCAB, rescinding WCJ’s decision, held that applicant who claimed industrial injury to her left upper extremity while employed as housekeeper on 10/22/2017, met burden of establishing entitlement to supplemental job displacement…

Gill (Amarjeet) v. County of Fresno, Lexis Advance

Medical-Legal Procedure—Qualified Medical Evaluator Panel Requests—Compensability Disputes—WCAB, rescinding WCJ’s decision, held that applicant’s initial qualified medical evaluator panel request was proper pursuant to Labor Code §§ 4060 and 4062.2, and ordered parties to utilize panel issued as replacement qualified medical evaluator panel…

Gonzalez (Karla) v. AC Transit, Lexis Advance

Medical Provider Networks—Continuity of Care—WCAB affirmed WCJ’s finding that applicant who suffered industrial injury to her right ankle while employed as janitor on 12/10/2013 and on 3/9/2017 was entitled to completion of care outside defendant’s medical provider network (MPN) consisting of right ankle surgery with physician…

Nevarez (Efrain) v. American Choice Van Lines, Lexis Advance

Insurance Coverage—Restricting and Limiting Endorsements—WCAB amended arbitrator’s decision for purposes of clarity regarding whether insurer’s policies were limited in their coverage, and to excise portions of decision that addressed issues not subject to mandatory arbitration, such as those related to employment or date of injury, but WCAB affirmed arbitrator’s finding...

Quintanilla (Amanda) v. Sun Healthcare Group, Lexis Advance

Third-Party Actions—Employer’s Claim for Credit—Application of Medical Injury Comprehensive Reform Act as Bar to Credit—WCAB rescinded WCJ’s award of third-party credit in amount of $184,547.28 against defendant’s workers’ compensation liability for injuries suffered by applicant on 8/3/2012 while working as nurse...