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Workers' Compensation

California: Top 25 Noteworthy Panel Decisions (July through December 2020)

LexisNexis has selected some of the top “noteworthy” panel decisions issued by the California Workers’ Compensation Appeals Board during the period July through December 2020. Particularly topical, are the cases addressing procedural and substantive issues surrounding the COVID-19 pandemic. The Appeals Board recently issued several decisions holding that telephonic hearings necessitated by the COVID-19 shelter-in-place restrictions, which required suspension of all in-person testimony, did not violate due process. In additional COVID-19-related cases, Appeals Board panels found that an employee’s refusal of modified work at Starbucks due to the risk of contracting COVID-19 was not unreasonable, and that an employer was obligated to pay TTD indemnity to a partially disabled employee for a period during which the employer’s business was shut down due to state and local emergency COVID-19 orders.

Other cases of interest include one in which the Appeals Board determined that an employee’s non-specific assertions that his employer expected him to stay in good physical condition were not sufficient to impose workers’ compensation liability for injuries suffered during an off-duty CrossFit class, a split panel opinion analyzing the parties’ burden of proof with respect to the six-month employment requirement in Labor Code § 3208.3(d), and several decisions discussing defendant’s obligation to provide supplemental job displacement benefits vouchers, as clarified in Dennis v. State of California (2020) 85 Cal. Comp. Cases 389 (Appeals Board en banc opinion).

In one highlighted case addressing the issue of apportionment, the Appeals Board distinguished the recent decision in Hom v. City & County of San Francisco, 2020 Cal. Wrk. Comp. P.D. LEXIS 124 (Appeals Board noteworthy panel decision) and found no basis for apportionment of applicant’s permanent disability to a prior heart injury under Labor Code § 4664(b) where defendant did not prove overlap between applicant’s prior and subsequent heart injuries. In another apportionment case, the Appeals Board made a number of noteworthy observations that could prove helpful in determining whether the Court of Appeal in County of Santa Clara v. W.C.A.B. (Justice) (2020) 49 Cal. App. 5th 605, 262 Cal. Rptr. 3d 876, 85 Cal. Comp. Cases 467, correctly distinguished the holding in Hikida v. W.C.A.B. (2017) 12 Cal. App. 5th 1249, 219 Cal. Rptr. 3d 654, 82 Cal. Comp. Cases 679.

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, as these decisions are subject to appeal. 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.

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ARBITRATION

■ Delia De Winton, Applicant v. Sun Life Medical Center, Inc., Farmers Insurance Company, Uninsured Employers Benefits Trust Fund, Defendants, 2020 Cal. Wrk. Comp. P.D. LEXIS 241

Arbitration—Issues for Arbitration—WCAB rescinded arbitrator’s order that Farmers Insurance Exchange be dismissed as party defendant and that Uninsured Employers Benefits Trust Fund assume responsibility for administering applicant’s claim, and returned matter to trial level of WCAB rather than to arbitrator to determine identity of applicant’s employer, when WCAB found that arbitrator prematurely determined coverage issue before issue of applicant’s employer was resolved, that employment issues are not subject to mandatory arbitration, although parties may agree to voluntary arbitration of those issues, and that in order to facilitate expeditious resolution of claim, identity of applicant’s employer should be established before case is referred to arbitrator because, if employment is disputed, arbitrator’s determination of coverage or lack of coverage for employer may be unnecessary. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 33.01[1], [2]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 16, § 16.05[2].]

■ Rigoberto Anzalado, et al., Applicants v. Sandberg Furniture Manufacturing, Matrix Absence Management/Safety National, Helmsman/National Union Insurance, Defendants (2020) 85 Cal. Comp. Cases 1037, 2020 Cal. Wrk. Comp. P.D. LEXIS 304

Arbitration—Issues for Arbitration—Injury AOE/COE as Threshold Issue—WCAB, rescinding arbitrator’s decision, held that arbitrator incorrectly found that defendant National Union Fire Insurance Company (National Union) did not need to prove injury AOE/COE to prevail on its petition for contribution from defendant Safety National, when WCAB reasoned that issue of injury AOE/COE is threshold issue and that when Safety National raised injury AOE/COE as defense to contribution clam, arbitrator was required to address this issue de novo before deciding other issues related to National Union’s contribution claim, such as date of cumulative injury under Labor Code § 5412 and last date of injurious exposure under Labor Code § 5500.5 (which are irrelevant if there is no industrial injury), and WCAB found that based on panel qualified medical evaluator’s reports, there was insufficient evidence to support finding that applicant suffered industrial injury, and because there was no industrial injury, National Union was not entitled to contribution. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 33.01[1], [2]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 16, § 16.05[2].]

COSTS

■ Jose Reynoso, Applicant v. Catchball Products Corporation, RCG, LLC, Douglas Stoutenburg, Uninsured Employers Benefits Trust Fund, Defendants (2020) 85 Cal. Comp. Cases 988, 2020 Cal. Wrk. Comp. P.D. LEXIS 246

Costs—Interpreting Services—Defendant’s Liability When No Employment Found—WCAB rescinded WCJ’s decision that, based on finding of no employment, defendant was not obligated to pay for Spanish interpreting services provided to allow applicant to testify as witness, and held that although WCJ ultimately found that defendant did not employ applicant, defendant was nonetheless liable for interpreter’s costs under Labor Code § 5811(b), when WCAB concluded that, as used in Labor Code § 5811(b) for purposes of payment of interpreter fees, word “employer” applies to any defendant against whom claim for benefits is asserted based on alleged employment relationship, irrespective of whether there is ultimate finding of employment, and WCAB reasoned that such interpretation is supported by broad definition of term “employer” in Labor Code § 3300, as well as by policies underlying workers’ compensation laws, including policy favoring prompt payment for services and procedural protections limiting payment only to costs “reasonably, actually and necessarily” incurred, and is consistent with vital role played by interpreters in workers’ compensation system. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 23.13[3], 27.01[8][a]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 16, §§ 16.35[1], 16.49.]

COVID-19 PANDEMIC

■ Harvinder Bedi, Applicant v. San Mateo County Transit District, PSI, adjusted by the Cities Group, Defendants, 2020 Cal. Wrk. Comp. P.D. LEXIS 228

Expedited Hearings—Telephonic Trial—COVID-19 Restrictions—Due Process—WCAB, affirming WCJ’s decision, found that defendant was not denied due process as result of telephonic trial necessitated by COVID-19 shelter-in-place restrictions, when Governor Newsom’s state of emergency Executive Order N-63-20, issued on 5/7/2020, expressly allows for telephonic hearings, and WCAB noted that despite COVID-19 emergency, DWC and WCAB have not altered scheduling of expedited hearings, that hearing in this case was properly noticed and evidence was received, that defendant’s inability to produce or identify witness at trial was not good cause to reopen record for additional testimony, and that all parties must be prepared for full trial on set date, including presentation of witness testimony. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 26.02[1], 25.09; Rassp & Herlick, California Workers’ Compensation Law, Ch. 16, §§ 16.04[3], 16.11.]

■ Robert Ceballos, Applicant v. TriMark Chefs’ Toys, Sompo America Insurance Company, administered by Gallagher Bassett Services, Inc., Defendants (2020) 85 Cal. Comp. Cases 955, 2020 Cal. Wrk. Comp. P.D. LEXIS 285

Hearings—Telephonic Trial—COVID-19 Restrictions—Due Process—WCAB, denying reconsideration, found that telephonic trial of applicant’s claim for 9/27/2018 industrial injury did not deprive defendant of its due process right to fair trial, when WCAB reasoned that due process is “a flexible concept that must be tailored to the requirements of each particular situation,” that telephonic trial was permitted based on Governor Newsom’s 5/7/2020 Executive Order issued in response to COVID-19 restrictions, suspending requirement of in-person testimony, that case law has long permitted telephonic testimony in situations where in-person testimony is not possible or impractical, and that telephonic trial did not affect WCJ’s credibility determinations in this case. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 25.09, 26.02[1]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 16, §§ 16.04[3], 16.11.]

Temporary Disability—Offers of Suitable Modified Work—COVID-19—WCAB affirmed WCJ’s finding that applicant who suffered admitted industrial injury to his left foot, neck, lumbar spine, and right shoulder on 9/27/2018 while working as warehouse worker for defendant, was entitled to temporary disability benefits beginning 4/12/2019 and continuing thereafter, including temporary total disability indemnity for periods applicant had no other employment and temporary partial disability for period from approximately 11/2019 to 3/2020, during which time applicant worked part-time as Starbucks barista, when WCAB determined that there was substantial medical evidence to support finding of temporary disability during period for which benefits were awarded, and WCAB rejected defendant’s assertion that applicant’s temporary disability indemnity award should have been reduced by income he would have received from Starbucks had his employment at that job not ended for reasons unrelated to his injury, where WCAB found that burden was on defendant to show there was other work “reasonably available” to applicant during period of partial disability, and that applicant unreasonably refused work or was terminated due to his own misconduct, that injured worker may refuse modified duty he or she reasonably believes could present health risk, that unlike his warehouse job, applicant’s Starbucks job involved high volume of contact with public, which CDC advised increases risk of COVID-19, and, therefore, applicant did not act unreasonably in declining job due to increased risk, and that under these circumstances, defendant did not demonstrate that applicant’s work at Starbucks was “reasonably available” to him but for his own misconduct or his own unreasonable refusal to work. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 7.02[4][c]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 6, § 6.11.]

■ Salvador Corona, Applicant v. California Walls, Inc dba Crown Industrial Operators, Truck Insurance Exchange, Farmers Oklahoma City, Defendants (2020) 85 Cal. Comp. Cases 1043, 2020 Cal. Wrk. Comp. P.D. LEXIS 256

Temporary Disability—Offers of Regular, Modified or Alternative Work—COVID-19 Shutdown—WCAB, affirming WCJ’s decision, held that applicant who suffered industrial injury to both knees and alleged injury to his right shoulder and lumbar spine on 2/19/2020, while employed as warehouse worker, was entitled to temporary disability indemnity from 3/17/2020 to 5/10/2020, during time defendant was required to shut down due to state and local emergency orders as result of COVID-19 pandemic, when applicant had returned to work with restrictions, which defendant accommodated for approximately one month until COVID-19 shelter-in-place orders placed all employees, including applicant, out of work and left applicant with no employment for approximately two months, and WCAB, relying on prior decisions in McFarland Unified School Dist. v. W.C.A.B. (McCurtis) (2015) 80 Cal. Comp. Cases 199 (writ denied), and Manpower Temporary Services v. W.C.A.B. (Rodriguez) (2006) 71 Cal. Comp. Cases 1614 (writ denied), found that because applicant’s termination from employment was not for cause or due to his own misconduct, but rather was due to COVID-19 shutdown, defendant did not meet burden to show that it was released from paying temporary disability benefits for two-month period applicant was out of work, and that pursuant to en banc decision in Dennis v. State of California (2020) 85 Cal. Comp. Cases 389 (Appeals Board en banc opinion), defendant’s inability to offer modified duties to applicant because of COVID-19 orders was inconsequential. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 7.02[4][c]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 6, § 6.11.]

DISCOVERY

■ John Skaff, Applicant v. City of Stockton, PSI, administered by Athens, Defendants, 2020 Cal. Wrk. Comp. P.D. LEXIS 231

Discovery—Misapplication of Discovery Standard—WCAB, granting reconsideration on its own motion, rescinded decision in which WCJ found that applicant failed to establish that he suffered industrial injury in form of prostate cancer while employed as police officer, and returned matter to trial level for further proceedings, when WCJ determined issue of injury AOE/COE without further development of record as previously ordered by WCAB regarding issue of whether contents of Hazard Awareness Recognition Program (HARP) forms retained by Bureau of Narcotics Enforcement could support applicant’s claimed entitlement to adverse inference that he was exposed to carcinogenic chemicals at work that contributed to his prostate cancer or otherwise evidenced his claimed injuries, and WCAB concluded that (1) WCJ’s requirement that applicant establish that HARP forms would prove causation before allowing their discovery or prior to receiving opinion from panel qualified medical evaluator of their necessity for purposes of preparing medical opinion misapplied law applicable to discovery, placing applicant in legally untenable position in which he would be required to possess direct knowledge of contents of forms in order to gain access to them or to rely on opinion of medical evaluator whose reporting was in question in order to obtain materials necessary to contest validity of that opinion, (2) issue of discovery of HARP forms must be determined by evaluation of whether they may lead to discovery of relevant evidence, and (3) HARP forms sought by applicant in this matter were discoverable, as they contained information, including data identifying chemicals to which applicant was exposed during his tenure as police officer investigating methamphetamine laboratories, which was relevant to issues of application of Labor Code § 3212.1 cancer presumption, applicant’s entitlement to adverse inference on issue of industrial causation based on defendant’s alleged failure to retain HARP records, and whether applicant’s exposure to chemicals while employed by defendant caused his prostate cancer. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 25.40[1]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 15, § 15.45[1].]

EVIDENCE

■ Bryan Milla, Applicant v. United Guard Security, Inc., The Hartford, Defendants, 2020 Cal. Wrk. Comp. P.D. LEXIS 330

Evidence—Admissibility and Authentication—Instagram Photographs—WCAB, rescinding WCJ’s decision and returning matter to trial level, found that absent genuine question regarding accuracy or reliability of Instagram “selfies” submitted into evidence by applicant to show when he worked for defendant, which was relevant to length of his employment for purposes of six-month employment requirement in Labor Code § 3208.3(d), photographs were presumed to be accurate representation of images they represented, and formal authentication of photos was not required before they could be introduced into evidence, and that although formal authentication was unnecessary, photographs could, if necessary, be authenticated by applicant’s testimony that they represented fair and accurate representations of what they depicted. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 23,12[2][h], 25.06A[5]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 15, § 15.45[1].]

EXPEDITED HEARINGS

■ Harvinder Bedi, Applicant v. San Mateo County Transit District, PSI, adjusted by the Cities Group, Defendants, 2020 Cal. Wrk. Comp. P.D. LEXIS 228

Expedited Hearings—Telephonic Trial—COVID-19 Restrictions—Due Process—WCAB, affirming WCJ’s decision, found that defendant was not denied due process as result of telephonic trial necessitated by COVID-19 shelter-in-place restrictions, when Governor Newsom’s state of emergency Executive Order N-63-20, issued on 5/7/2020, expressly allows for telephonic hearings, and WCAB noted that despite COVID-19 emergency, DWC and WCAB have not altered scheduling of expedited hearings, that hearing in this case was properly noticed and evidence was received, that defendant’s inability to produce or identify witness at trial was not good cause to reopen record for additional testimony, and that all parties must be prepared for full trial on set date, including presentation of witness testimony. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 26.02[1], 25.09; Rassp & Herlick, California Workers’ Compensation Law, Ch. 16, §§ 16.04[3], 16.11.]

HEARINGS

■ Robert Ceballos, Applicant v. TriMark Chefs’ Toys, Sompo America Insurance Company, administered by Gallagher Bassett Services, Inc., Defendants (2020) 85 Cal. Comp. Cases 955, 2020 Cal. Wrk. Comp. P.D. LEXIS 285

Hearings—Telephonic Trial—COVID-19 Restrictions—Due Process—WCAB, denying reconsideration, found that telephonic trial of applicant’s claim for 9/27/2018 industrial injury did not deprive defendant of its due process right to fair trial, when WCAB reasoned that due process is “a flexible concept that must be tailored to the requirements of each particular situation,” that telephonic trial was permitted based on Governor Newsom’s 5/7/2020 Executive Order issued in response to COVID-19 restrictions, suspending requirement of in-person testimony, that case law has long permitted telephonic testimony in situations where in-person testimony is not possible or impractical, and that telephonic trial did not affect WCJ’s credibility determinations in this case. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 25.09, 26.02[1]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 16, §§ 16.04[3], 16.11.]

INJURY AOE/COE

■ Eric Williams, Applicant v. City of Folsom, PSI, adjusted by York Risk Services, Defendants, 2020 Cal. Wrk. Comp. P.D. LEXIS 291, aff’d by Eric Williams, Applicant v. City of Folsom, PSI, adjusted by York Risk Services, Defendants, 2020 Cal. Wrk. Comp. P.D. LEXIS 321 [Petition for writ of review filed 10/13/2020, sub nom. Williams v. W.C.A.B., 3rd Appellate Dist., Civ. No. C092803]

Injury AOE/COE—Off-Duty Recreational/Athletic Activities—WCAB, reversing WCJ’s decision in split panel opinion, held that applicant, while employed as firefighter on 1/6/2015, suffered injury to his head, brain, and other body parts during his participation in off-duty CrossFit class, and that Labor Code § 3600(a)(9) barred compensability of injury, when WCAB panel majority, citing Ezzy v. W.C.A.B. (1983) 146 Cal. App. 3d 252, 194 Cal. Rptr. 90, 48 Cal. Comp. Cases 611, found that establishing compensability of injury sustained while participating in off-duty recreational or athletic activity requires showing that employee subjectively believed participation in activity was expected by employer, and that belief was objectively reasonable, that prior decisions have held injuries compensable under Labor Code § 3600(a)(9) where there was specific conduct by employer with respect to activity at issue, and that applicant’s testimony regarding defendant’s expectations that he stay in good physical condition to perform his job and general assertions of benefit to defendant were insufficient to establish compensable injury under Ezzy, absent direct evidence that defendant’s conduct reasonably conveyed to applicant that participation in private fitness program was expected or that applicant was required to pass certain level of fitness on annual fitness assessment, especially given that defendant had its own fitness program that provided firefighters with paid exercise time and use of exercise equipment on its premises; Commissioner Sweeney, dissenting, would find applicant’s injury compensable based on his credible and unrebutted testimony that he would not be able to maintain defendant’s required standards of physical fitness for firefighters without off-duty fitness program, as job required arduous physical capabilities that can only be maintained through disciplined exercise regimen, and evidence that defendant encouraged applicant to pursue physical fitness activities outside of work as supplement to defendant’s fitness program, and that firefighters would be subject to demotions or transfers if they were not fit enough to perform their duties. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 4.25; Rassp & Herlick, California Workers’ Compensation Law, Ch. 10, § 10.03[6].]

MEDICAL-LEGAL PROCEDURE

■ Ray Hobbs, Applicant v. North Valley Electronics Distributing, Employers Compensation Insurance Company, Massachusetts Bay Insurance Company, administered by Hanover Insurance Group, Defendants, 2020 Cal. Wrk. Comp. P.D. LEXIS 239

Medical-Legal Procedure—Qualified Medical Evaluator Panel Requests—Party Seeking Reimbursement Not Entitled to Participate in Qualified Medical Evaluator Process—WCAB, rescinding WCJ’s decision, held that Employers Compensation Insurance Company (Employers Compensation), although “party” to applicant’s claim for cumulative trauma during period 9/29/2015 to 9/29/2016 by virtue of filing Application for Adjudication of Claim to pursue reimbursement from Hanover Insurance Group (Hanover) for its liability in relation to applicant’s 2015 specific injury claim, was not entitled, pursuant to Labor Code § 4062.2, to request qualified medical evaluator panel in applicant’s cumulative trauma claim, and, therefore, its request for panel in this case was void, when WCAB found that medical-legal statutory scheme contemplates only two parties, “employer” and “employee,” having right to engage in qualified medical evaluator process, that in this case Hanover had sole coverage during alleged cumulative trauma period and only Hanover, as purported “employer,” and applicant as “employee,” were entitled to request qualified medical evaluator panel, that, furthermore, Employers Compensation’s rights in applicant’s cumulative injury claim were essentially those of lien claimant, and that as party seeking reimbursement for benefits provided in relation to its own claim, Employers Compensation was precluded from participating in qualified medical evaluator process. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 22.06[1], [7], 22.11[1]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 15, § 15.03[2], Ch. 16, § 16.54[1].]

■ John McKray, Applicant v. Burlingame Industries, Inc., National Union Fire Insurance Co., Defendants, 2020 Cal. Wrk. Comp. P.D. LEXIS 293

Medical-Legal Procedure—Specialty Designation—Chiropractors—WCAB, rescinding WCJ’s decision, held that panel qualified medical evaluator in specialty of chiropractic, as requested by applicant park ranger, was appropriate specialist to evaluate applicant’s 1/4/2020 industrial left thigh and low back injury, when WCAB found that, while parties were not required to first go to Medical Unit before going to WCAB to seek order on specialty, and that WCJ had authority to address panel specialty dispute in first instance, WCJ erred in finding that specialty of chiropractic was inappropriate to address disputed medical issues in this matter based on applicant’s need for treatment of dog bite outside scope of chiropractor’s practice, because pursuant to reasoning in Ramirez v. Jaguar Farm Labor Contracting, Inc. (2018) 84 Cal. Comp. Cases 56 (Appeals Board noteworthy panel decision)], panel qualified medical evaluator is prohibited from addressing current medical treatment disputes and, therefore, chiropractic qualified medical evaluator’s presumed inability to comment on treatment for dog bite did not, under 8 Cal. Code Reg. § 31.5(a)(10), render this specialty medically or otherwise inappropriate to evaluate disputed medical issues in applicant’s claim, and, if necessary, parties may obtain additional panel in another specialty to evaluate injuries outside scope of chiropractor’s practice. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 22.11[6], [7]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 16, § 16.54[6], [7].]

■ Francisco Banuelos (Dec’d), Michele Banuelos (Wife), Applicant v. Time Warner, Inc. (Now Charter Communications), New Hampshire Insurance Co., administered by ESIS, Defendants, 2020 Cal. Wrk. Comp. P.D. LEXIS 283

Medical-Legal Procedure—Admissibility of Consulting Physician’s Reports—WCAB, rescinding WCJ’s decision, held that report of consulting physician obtained by applicant outside process in Labor Code § 4062.2 was admissible at trial of applicant’s claim for death benefits stemming from death of her husband on 11/22/2015, six weeks after receiving colon cancer diagnosis, when WCAB, citing Batten v. W.C.A.B. (2015) 241 Cal. App. 4th 1009, 194 Cal. Rptr. 3d 511, 80 Cal. Comp. Cases 1256, found that Labor Code § 4605 permits admission of report by consulting physician as long as report was not obtained solely for purpose of rebutting panel qualified medical evaluator’s opinion, that in this matter applicant did not retain consulting physician to rebut panel qualified medical evaluator’s opinion, as panel qualified medical evaluator had already issued report opining that decedent’s terminal cancer was industrially-caused, that although Batten endorsed definition of consulting physician under Labor Code § 4605 as doctor who is consulted “for the purposes of discussing proper medical treatment,” due process requires that deceased employees have same rights to obtain medical reporting as living employees under Labor Code § 4605, and to extent definition of consulting physician outlined in Batten would preclude applicant from obtaining report under Labor Code § 4605, this violated her due process right to obtain and present evidence, that admission into evidence of reports from non-examining physicians is necessary to adjudicate substantive rights of parties in death cases because physician cannot examine deceased employee, and WCAB has wide latitude pursuant to Labor Code §§ 5708 and 5709 to admit these reports, and that it was error for WCJ to exclude consulting physician’s reports and deposition testimony from evidence in this case. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 22.04; Rassp & Herlick, California Workers’ Compensation Law, Ch. 16, § 16.51[6].]

■ Veronica Madrigal, Applicant v. Monterey County Office of Education, PSI, administered by Intercare Holdings Insurance Services, Inc., Defendants, 2020 Cal. Wrk. Comp. P.D. LEXIS 346

Medical-Legal Procedure—Exchange of Information—Ex Parte Communications—WCAB, affirming WCJ’s finding, held that applicant did not engage in ex parte communication in violation of Labor Code § 4062.3(e) by purportedly sending advocacy letter to panel qualified medical evaluator without simultaneously serving defendant, and that even had applicant violated Labor Code § 4062.3(e), defendant waived right to object, and, further, was not entitled to replacement qualified medical evaluator panel based on applicant’s alleged violation of Labor Code § 4062.3(b), when WCAB found that (1) defendant objected to advocacy letter based on Labor Code § 4062.3(b), governing information proposed to be served on qualified medical evaluator, and not pursuant to Labor Code § 4062.3(e), such that applicant’s response to objection conceding to technical violation was not concession that she had engaged in ex parte communication as alleged by defendant, (2) even assuming applicant’s advocacy letter was prohibited ex parte communication, defendant waived objection by continuing to engage in discovery with panel qualified medical evaluator, including soliciting supplemental report from him regarding applicant’s temporary disability status and relying on doctor’s reporting to terminate temporary disability, thereby engaging in conduct inconsistent with election to terminate evaluation with doctor, (3) even assuming applicant’s letter was “information” subject to Labor Code § 4062.3(b) as described in Maxham v. California Department of Corrections and Rehabilitation (2017) 82 Cal. Comp. Cases 136 (Appeals Board en banc opinion), and Suon v. California Dairies (2018) 83 Cal. Comp. Cases 1803 (Appeals Board en banc decision), defendant was not automatically entitled to new qualified medical evaluator panel for applicant’s alleged violation of this provision, and (4) WCJ assessed appropriate remedy for applicant’s alleged violation of Labor Code § 4062.3(b) pursuant to Suon and correctly concluded that applicant’s technical error in failing to serve advocacy letter on defendant before sending it to panel qualified medical evaluator was harmless, and that defendant was not entitled to new qualified medical evaluator panel. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 22.06[1][d], [3], 22.11[18], 23.15; Rassp & Herlick, California Workers’ Compensation Law, Ch. 15, § 15.03[4][d], [e], Ch. 16, § 16.35.]

MEDICAL TREATMENT

■ Ruthiea Avist, Applicant v. UC San Francisco Medical Center, PSI, Administered by Sedgwick Claims Management Services, Defendants, 2020 Cal. Wrk. Comp. P.D. LEXIS 254

Medical Treatment—Home Health Care—Improper Termination of Services—WCAB, rescinding WCJ’s decision, held that defendant improperly terminated home health care services without establishing that services were no longer necessary to cure or relieve effects of applicant’s 1/14/2005 industrial spinal injury pursuant to Patterson v. The Oaks Farm (2014) 79 Cal. Comp. Cases 910 (Appeals Board significant panel decision), and found that applicant was entitled to reimbursement for home health care services from 8/15/2016, and that services must be reinstated as requested by applicant’s primary treating physician, when parties had stipulated in 2010 and again in 2013 that applicant’s primary treating physician would assess and comment on her need for ongoing home care services and that physician’s commentary and prescription renewal would be subject to “non-UR”/statutory requirements, and WCAB found that stipulations precluded defendant from submitting treating physician’s request for authorization to utilization review and obligated defendant to continue providing home health care, which it had provided from 2009 to 8/14/2016, until services were no longer reasonably required to cure or relieve effects of applicant’s injury, that defendant submitted no evidence in this case that applicant’s condition or circumstances had changed so as to eliminate need for home health care, and that, in fact, medical evidence indicated that applicant continued to require home health care and that her need will increase as she ages given her spinal cord disability. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 5.02, 5.04[6], 22.05[6]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 4, §§ 4.05[3], 4.10.]

■ Charles Greenhall, Applicant v. CalTech, Defendant, 2020 Cal. Wrk. Comp. P.D. LEXIS 269

Medical Treatment—Utilization Review—Concurrent and Expedited Utilization Review Determinations—WCAB, amending WCJ’s decision, held that (1) applicant who suffered traumatic brain and orthopedic injuries on 1/14/2019 when he was struck by vehicle while employed as scientist by defendant, was entitled, under Labor Code § 4610(i), to “concurrent” utilization review (UR) of requests for authorization for continued care at Casa Colina Transitional Living Residential Program (Casa Colina), where applicant was receiving neurorehabilitation therapy for cognitive deficits, and that 72-hour expedited review was necessary due to applicant’s inpatient status at Casa Colina and evidence of necessity for continued inpatient care given his serious risk of bodily injury if such care is discontinued, and (2) under Labor Code § 4610(i)(4)(C) and 8 Cal. Code Reg. § 9792.9.1(e)(6), defendant is not permitted to discontinue applicant’s inpatient care at Casa Colina before establishing that treating physician was notified of decision and agreed to safe discharge plan that is appropriate for applicant’s medical needs, such as plan recommended by treating physician to transfer applicant to assisted living facility with memory care unit. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 5.02[2][c], 22.05[6][b][iii]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 4, § 4.10[4].]

■ Suanna Watford, Applicant v. Los Angeles Unified School District, PSI, Administered By Sedgwick Claims Management Company, Defendants (2020) 85 Cal. Comp. Cases 1063, 2020 Cal. Wrk. Comp. P.D. LEXIS 282

Medical Treatment—Housekeeping Services—Stipulations—WCAB, in split panel opinion, rescinded WCJ’s denial of applicant bus driver’s request for housekeeping expenses from 1/1/2007 to 7/30/2013, and held that parties’ 2000 Stipulation to have agreed medical examiner resolve future medical treatment disputes in connection with applicant’s 6/10/96 industrial injury bound defendant with respect to disputes over future home health care services, including reimbursement for housekeeping services (which defendant had provided through 2006), when WCAB found that, similar to circumstances in Bertrand v. County of Orange, 2014 Cal. Wrk. Comp. P.D. LEXIS 342 (Appeals Board noteworthy panel decision), and Federal Express Corporation v. W.C.A.B. (Payne) (2017) 82 Cal. Comp. Cases 1014 (writ denied), parties here stipulated to procedure for evaluating applicant’s need for homecare by having applicant’s primary treating physician report on issue, defendant submitted treating physician’s recommendations for ongoing home care to utilization review (UR), and UR issued denials in 2007, 2009 and 2010, that, contrary to WCJ’s finding, WCAB had jurisdiction to consider parties’ medical treatment disputes, as all of defendant’s UR denials of home health care occurred before existence of independent medical review process, which became effective 1/1/2013, and there was no requirement to “appeal” adverse UR determination before going to WCAB, and that upon return to trial level, WCJ should consider applicability of Patterson v. The Oaks Farm (2014) 79 Cal. Comp. Cases 910 (Appeals Board significant panel decision), in determining whether applicant is entitled to reimbursement for housekeeping services; Commissioner Razo, concurring in part and dissenting in part, would affirm WCJ’s denial of retroactive reimbursement for housekeeping services, noting that parties did not agree to waive UR process on issue of home health care services, as parties stipulation only addressed future medical treatment and did not establish ongoing process for extending or modifying level of housekeeping services, and that absence of stipulation or award to continue to provide specific form of medical treatment distinguished this case from those cited by WCAB panel majority. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 5.02[2][d], 5.04[6], 22.05[6][b][iv]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 4, §§ 4.05[3], 4.10[7].]

■ Robert Shelven, Applicant v. Ralphs Grocery Company, PSI, tpa Sedgwick CMS, Inc., Defendants, 2020 Cal. Wrk. Comp. P.D. LEXIS 343

Medical Treatment—Utilization Review—Timeframes—WCAB, affirming WCJ’s decision, held that pursuant to Labor Code § 4610(k), defendant was not required to submit treating physician’s 2/13/2020 request for authorization (RFA) to utilization review (UR), and that WCAB had no jurisdiction over parties’ medical treatment dispute in connection with applicant’s 5/19/2017 industrial injury, when WCAB found that treatment recommended in 2/13/2020 RFA, consisting of cervical spine epidural injection at level C5-C6, was same treatment recommended in 9/26/2019 RFA for purposes of Labor Code § 4610(k), notwithstanding that earlier RFA also included recommendation for injection at level C4-C5, that prior treatment request was denied by UR within 12-month period indicated in Labor Code § 4610(k) on basis that Medical Treatment Utilization Schedule guidelines did not support cervical epidural steroid injections, and that applicant did not qualify for exception to rule in Labor Code § 4610(k) that UR decision to modify or deny treatment recommendation is effective for 12 months from date of decision, because 2/13/2020 RFA was not supported by documented change in facts material to basis of prior UR decision denying same treatment. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 5.02[2][c], 22.05[6][b][iii]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 4, § 4.10[5].]

PERMANENT DISABILITY

■ Robert Smith, Applicant v. City of Berkeley, PSI, administered by Innovative Claim Solutions, Defendants (2020) 85 Cal. Comp. Cases 1054, 2020 Cal. Wrk. Comp. P.D. LEXIS 245

Permanent Disability—Apportionment—Prior Awards—WCAB, affirming WCJ’s decision, held that applicant, while employed as fire captain, sustained 57 percent permanent disability as result of admitted cumulative injury in form of hypertensive cardiovascular disease ending 8/1/2018, and found no basis for apportionment of applicant’s 2012 stipulated award of 37 percent permanent disability for prior industrial injury to applicant’s heart, pursuant to conclusive presumption in Labor Code § 4664(b), when WCAB found that conclusive presumption applies to disabilities sustained in subsequent injury to same region of body only to extent disabilities overlap, and defendant has burden of establishing overlap between prior and subsequent disabilities, that only medical opinion presented on issue of overlap in this case was that of qualified medical evaluator, who rated applicant’s impairment from subsequent heart injury in form of left ventricular hypertrophy under different chapter of AMA Guides than used for rating prior heart injury caused by myocardial infarction, and determined that there was no overlap between applicant’s prior and subsequent heart injuries based on their distinct natures (i.e, damage to heart caused by myocardial infraction is caused by restricted blood flow to coronary arteries, and left ventricular hypertrophy involves thickening of left ventricle wall), and that Hom v. City & County of San Francisco, 2020 Cal. Wrk. Comp. P.D. LEXIS 124 (Appeals Board noteworthy panel decision), did not mandate different result because in Hom there was substantial evidence to establish overlap that met requirements for apportionment under Labor Code § 4664(b), whereas in this case there was no such evidence. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 8.05[1]-[3], 8.06[5][d], 8.07[2][a]-[c]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 7, § 7.42[1]-[3]; The Lawyer’s Guide to the AMA Guides and California Workers’ Compensation, Chs. 6, 8.]

■ Margie Durazo, Applicant v. Solomon Dental Corporation dba Dental Wellness, and Employers Compensation Insurance Company, Defendants (2020) 85 Cal. Comp. Cases 976, 2020 Cal. Wrk. Comp. P.D. LEXIS 259

Permanent Disability—Apportionment—Preexisting Disability—Disability From Medical Treatment—WCAB rescinded WCJ’s findings that applicant suffered 41 percent permanent disability as result of 8/24/2012 left knee injury while employed by defendant as dental assistant, and that apportionment was precluded pursuant to Hikida v. W.C.A.B. (2017) 12 Cal. App. 5th 1249, 219 Cal. Rptr. 3d 654, 82 Cal. Comp. Cases 679, based on primary treating physician’s opinion that applicant’s permanent disability arose solely from outcome of knee replacement surgery, despite qualified medical evaluator’s contrary opinion that applicant’s disability was 50 percent apportionable to her preexisting osteoarthritis, and WCAB returned matter to WCJ for further proceedings and new decision that, among other things, addresses decision in County of Santa Clara v. W.C.A.B. (Justice) (2020) 49 Cal. App. 5th 605, 262 Cal. Rptr. 3d 876, 85 Cal. Comp. Cases 467, which distinguishes Hikida, when WCAB noted that parties have not had opportunity to consider effect of Justice on issues of permanent disability and apportionment in this case, as Justice was decided after WCJ issued her decision, that if conflict exists between Justice and Hikida, WCAB is free to choose between conflicting lines of authority until either Supreme Court resolves conflict or Legislature clears up uncertainty through legislation, and that on remand, record may require further development as to orthopedic consulting physician’s opinion regarding applicant’s overall level of permanent disability, and concerning whether knee replacement surgery potentially eliminated applicant’s preexisting osteoarthritis, in which case surgery may be considered sole cause of her permanent disability. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 8.05[1]-[3], 8.06[5]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 7, §§ 7.40, 7.41, 7.42[3]; The Lawyer’s Guide to the AMA Guides and California Workers’ Compensation, Chs. 6, 8.]

PSYCHIATRIC INJURY

■ Bryan Milla, Applicant v. United Guard Security, Inc., The Hartford, Defendants, 2020 Cal. Wrk. Comp. P.D. LEXIS 330

Psychiatric Injury—Six-Month Employment Requirement—Burden of Proof—WCAB, in split panel opinion, rescinded WCJ’s finding that applicant security guard’s claim for 8/4/2017 psychiatric injury was barred by six-month employment requirement in Labor Code § 3208.3(d), and returned matter to trial level for further proceedings, when WCAB panel majority found that WCJ improperly assigned burden of proof to applicant to show he was employed by defendant for at least six months, and WCAB explained that once injured employee presents substantial medical evidence to establish compensable psychiatric injury pursuant to requirements of Labor Code § 3208.3(b), as did applicant, burden shifts to defendant to establish applicability of six-month employment requirement, that because there was substantial medical evidence in this case to prove compensable psychiatric injury under Labor Code § 3208.3(b), defendant had burden to show that length of applicant’s actual service with defendant was insufficient under Labor Code § 3208.3(d), and that assigning burden of proof regarding length of employment to employer is appropriate because employer is more likely to have documentary evidence, such as timesheets and wage records, showing employee’s period of employment; Commissioner Lowe, dissenting, opined that applicant held burden of proof to show at least six months of employment with defendant for purposes of Labor Code § 3208.3(d), when Commissioner Lowe reasoned that six-month employment requirement is condition of compensation established as part of Legislature’s intent to create higher threshold of compensability for psychiatric injuries, rather than defense against psychiatric claim that defendant must prove. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 4.02[3][d]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 10, § 10.06[3][c].]

SETTLEMENTS

■ Daniel Moreno, Applicant v. Hidden Valley Ranch, Cypress Insurance Company, administered by Hathaway Berkshire Homestate Companies, Defendants, 2020 Cal. Wrk. Comp. P.D. LEXIS 194

Settlements—Compromise and Release Agreements—Setting Aside—WCAB, rescinding WCJ’s decision, held that there was good cause to set aside Order Approving Compromise and Release agreement (OACR) settling applicant’s claim for cumulative injury to his low back and hips through 7/10/2017 while employed as maintenance worker, when applicant, while he was unrepresented, was not notified of his right to qualified medical evaluator panel before he agreed to settle his claim, and WCAB found that defendant’s subsequent notice to applicant of his right to request panel after settlement was approved and after medical treatment and permanent disability were settled, was disingenuous, that medical reports WCJ relied upon to approve compromise and release did not indicate whether applicant sustained permanent disability from his injury, that at time of settlement, applicant was still receiving temporary disability and medical treatment, that amount of settlement based on minimal record in this case should have triggered inquiry by WCJ into whether settlement adequately compensated applicant for benefits resolved as part of agreement, and that under circumstances in this matter, WCJ failed to properly inquire into settlement’s adequacy when it was presented for approval, which constituted good cause to set aside OACR. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 29.05[1]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 18, § 18.11[1].]

SUBSEQUENT INJURIES BENEFITS TRUST FUND

■ Jessica Adams, Applicant v. Subsequent Injuries Benefits Trust Fund, Defendant, 2020 Cal. Wrk. Comp. P.D. LEXIS 176, affd. by Jessica Adams, Applicant v. Subsequent Injuries Benefits Trust Fund, Defendant, 2020 Cal. Wrk. Comp. P.D. LEXIS 216

Subsequent Injuries Benefits Trust Fund—Time to File Application—WCAB, amending WCJ’s decision, held that applicant’s claim for Subsequent Injuries Benefits Trust Fund (SIBTF) benefits was timely filed, when WCAB found that pursuant to Subsequent Injuries Fund v. W.C.A.B. (Talcott) (1970) 2 Cal. 3d 56, 465 P.2d 28, 84 Cal. Rptr. 140, 35 Cal. Comp. Cases 80, “reasonable time” for filing application starts running when there is determination by WCAB regarding level of permanent disability and not, as SIBTF argued, from receipt of medical report indicating likelihood of entitlement to SIBTF benefits, that applicant’s filing of SIBTF claim six months and one day after WCAB’s finding on issue of permanent disability which indicated substantial likelihood that applicant would be entitled to SIBTF benefits, was reasonable, and that although WCJ correctly determined that applicable standard to measure timeliness of applicant’s SIBTF claim here was reasonable time after applicant learned from WCAB’s permanent disability findings of her likely entitlement to SIBTF benefits, WCJ incorrectly applied reasonable time standard from date of other events, such as date of injury, date of qualified medical evaluator’s report and date of Disability Evaluation Unit’s rating. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 8.09, 31.20[4]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 8, §§ 8.01, 8.02.]

■ James Boano, Applicant v. State of California, Department of Fire and Forestry Protection, legally uninsured, Subsequent Injuries Benefits Trust Fund, Defendants, 2020 Cal. Wrk. Comp. P.D. LEXIS 219

Subsequent Injuries Benefits Trust Fund—Combining Disabilities to Determine Eligibility—Credit Against Payments—WCAB, affirming WCJ’s decision, held that WCJ correctly added applicant’s prior and subsequent permanent disabilities to determine applicant’s eligibility for Subsequent Injuries Benefits Trust Fund (SIBTF) benefits, and found that SIBTF was entitled to credit pursuant to Labor Code § 4753 from all of applicant’s seven prior permanent disability awards as well as credit from applicant’s CalPERS industrial disability retirement payments, when WCAB reasoned that CalPERS retirement payments were result of applicant’s prior back injury and were not payments that were excepted from credit under Labor Code § 4753, and that if it were to provide SIBTF with credit for only two prior permanent disabilities that applicant selected as part of his SIBTF claim, as applicant urged WCAB to do, WCAB would be unable to reconcile this with purpose of Labor Code § 4753 to avoid depletion of SIBTF funds and to avoid double recovery for same injuries. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 8.09[2], [4], 31.20[4][a], [c]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 8, §§ 8.02[5], 8.04[3], Ch. 16, § 16.19.]

SUPPLEMENTAL JOB DISPLACEMENT BENEFITS

■ Jaqueline Finch, Applicant v. Chicos, Hartford Accident & Indemnity Company, administered by Broadspire, DIR Return to Work Supplemental Program, Defendants, 2020 Cal. Wrk. Comp. P.D. LEXIS 233

Supplemental Job Displacement Benefits—Eligibility For Return to Work Supplemental Program—WCAB affirmed WCJ’s finding that no valid supplemental job displacement benefits (SJDB) voucher issued to applicant who suffered industrial injury to her left thumb during period 4/20/2014 to 4/20/2015 and, therefore, applicant never became eligible to participate in Return to Work Supplemental Program (RTWSP), when serious dispute existed regarding applicant’s entitlement to SJDB voucher at time parties settled applicant’s case by way of Compromise and Release, and to resolve dispute defendant agreed to issue voucher if applicant stipulated that she would only use voucher to secure supplemental funding from State, which applicant did, and WCAB found that given stipulation, defendant’s subsequent issuance of voucher entitled “Supplemental Job Placement Nontransferable Voucher For Injuries Occurring on or after 1/1/13” was, in fact, not voucher providing applicant with benefits delineated in 8 Cal. Code Reg. § 10133.31, but rather voucher “in name only,” and was not sufficient to trigger applicant’s eligibility for RTWSP or to create obligation by Administrative Director to provide said benefits. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 35.01, 35.03; Rassp & Herlick, California Workers’ Compensation Law, Ch. 21, §§ 21.01, 21.03.]

■ Carol Proud, Applicant v. San Pasqual Valley Unified School District, PSI, administered by SISCI, Defendants, 2020 Cal. Wrk. Comp. P.D. LEXIS 218

Supplemental Job Displacement Benefits—Employer’s Duty to Offer Regular, Modified, or Alternative Employment—Entitlement to Benefits When Employee Loses No Time From Work—WCAB, reversing WCJ’s finding, held that applicant who suffered 23 percent permanent disability as result of industrial injury to multiple body parts on 1/15/2014 and to her right shoulder on 1/30/2014 while working for defendant as director of special education, but who lost no time from work before her employment contract was terminated by defendant, was entitled to supplemental job displacement benefits (SJDB) return-to-work voucher pursuant to Labor Code § 4658.7(b), when WCAB reasoned that although applicant lost no time from work and, therefore, under 8 Cal. Code Reg. § 10133.31(c) was deemed to have been offered and accepted regular work in accordance with criteria in Labor Code § 4658.7(b), applicant could have lost time from work given her work restrictions, but instead chose to self-accommodate in order to stay employed, and WCAB found that denying applicant SJDB voucher based on her desire to stay employed would be punitive and contrary to intended consequence of 8 Cal. Code Reg. § 10133.31(c), that, additionally, defendant made no offer of modified work to accommodate applicant’s work restrictions as required by Labor Code § 4658.7(b) to avoid liability for voucher, and that, as explained in Dennis v. State of California (2020) 85 Cal. Comp. Cases 389 (Appeals Board en banc opinion), applicant’s termination from employment did not release defendant from statutory obligation to provide SJDB voucher. [See generally Hanna, Cal. Law 99of Emp. Inj. and Workers’ Comp. 2d § 35.01; Rassp & Herlick, California Workers’ Compensation Law, Ch. 21, § 21.01.]

TEMPORARY DISABILITY

■ Salvador Corona, Applicant v. California Walls, Inc dba Crown Industrial Operators, Truck Insurance Exchange, Farmers Oklahoma City, Defendants (2020) 85 Cal. Comp. Cases 1043, 2020 Cal. Wrk. Comp. P.D. LEXIS 256

Temporary Disability—Offers of Regular, Modified or Alternative Work—COVID-19 Shutdown—WCAB, affirming WCJ’s decision, held that applicant who suffered industrial injury to both knees and alleged injury to his right shoulder and lumbar spine on 2/19/2020, while employed as warehouse worker, was entitled to temporary disability indemnity from 3/17/2020 to 5/10/2020, during time defendant was required to shut down due to state and local emergency orders as result of COVID-19 pandemic, when applicant had returned to work with restrictions, which defendant accommodated for approximately one month until COVID-19 shelter-in-place orders placed all employees, including applicant, out of work and left applicant with no employment for approximately two months, and WCAB, relying on prior decisions in McFarland Unified School Dist. v. W.C.A.B. (McCurtis) (2015) 80 Cal. Comp. Cases 199 (writ denied), and Manpower Temporary Services v. W.C.A.B. (Rodriguez) (2006) 71 Cal. Comp. Cases 1614 (writ denied), found that because applicant’s termination from employment was not for cause or due to his own misconduct, but rather was due to COVID-19 shutdown, defendant did not meet burden to show that it was released from paying temporary disability benefits for two-month period applicant was out of work, and that pursuant to en banc decision in Dennis v. State of California (2020) 85 Cal. Comp. Cases 389 (Appeals Board en banc opinion), defendant’s inability to offer modified duties to applicant because of COVID-19 orders was inconsequential. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 7.02[4][c]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 6, § 6.11.]

■ Robert Ceballos, Applicant v. TriMark Chefs’ Toys, Sompo America Insurance Company, administered by Gallagher Bassett Services, Inc., Defendants (2020) 85 Cal. Comp. Cases 955, 2020 Cal. Wrk. Comp. P.D. LEXIS 285

Temporary Disability—Offers of Suitable Modified Work—COVID-19—WCAB affirmed WCJ’s finding that applicant who suffered admitted industrial injury to his left foot, neck, lumbar spine, and right shoulder on 9/27/2018 while working as warehouse worker for defendant, was entitled to temporary disability benefits beginning 4/12/2019 and continuing thereafter, including temporary total disability indemnity for periods applicant had no other employment and temporary partial disability for period from approximately 11/2019 to 3/2020, during which time applicant worked part-time as Starbucks barista, when WCAB determined that there was substantial medical evidence to support finding of temporary disability during period for which benefits were awarded, and WCAB rejected defendant’s assertion that applicant’s temporary disability indemnity award should have been reduced by income he would have received from Starbucks had his employment at that job not ended for reasons unrelated to his injury, where WCAB found that burden was on defendant to show there was other work “reasonably available” to applicant during period of partial disability, and that applicant unreasonably refused work or was terminated due to his own misconduct, that injured worker may refuse modified duty he or she reasonably believes could present health risk, that unlike his warehouse job, applicant’s Starbucks job involved high volume of contact with public, which CDC advised increases risk of COVID-19, and, therefore, applicant did not act unreasonably in declining job due to increased risk, and that under these circumstances, defendant did not demonstrate that applicant’s work at Starbucks was “reasonably available” to him but for his own misconduct or his own unreasonable refusal to work. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 7.02[4][c]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 6, § 6.11.]

THIRD-PARTY ACTIONS

■ Nora Jordan, Applicant v. State Controller’s Office, Legally Uninsured, Adjusted By State Compensation Insurance Fund, Defendants, 2020 Cal. Wrk. Comp. P.D. LEXIS 352

Third-Party Actions—Employer’s Claim for Credit—Employer’s Negligence—Nondelegable Duty Doctrine—WCAB rescinded decision in which WCJ found, among other things, that defendant was entitled to credit under Labor Code § 3861 for applicant’s third-party settlement recovery against benefits due to applicant beyond $50,000.00 defendant paid, and returned matter to trial level for further proceedings, when applicant, who suffered industrial injury to her low back, left ankle and psyche on 12/2/2009 when she slipped on wet floor at premises leased by defendant that had inadequate lighting, settled personal injury lawsuit against lessor of premises and its maintenance contractor, and claimed that defendant was barred from asserting credit against her personal injury recovery based upon its alleged nondelegable duty to maintain its work premises in safe condition, and WCAB reasoned that WCJ determined defendant held one-third of fault (with one-third held by applicant and one-third held by maintenance company) for applicant’s injury without determining whether or not defendant was vicariously liable for fault of maintenance contractor based upon its alleged nondelegable duty to maintain safe workplace, that framework set forth in Associated Construction & Engineering Co. v. W.C.A.B. (Cole) (1978) 22 Cal.3d 829, 587 P.2d 684, 150 Cal. Rptr. 888. 43 Cal. Comp. Cases 1333, requires multi-step analysis whereby determination of employer’s degree of fault must precede determination of damages so that degree of fault may be utilized as factor in determining damages, and that because WCJ did not determine issue of whether defendant was vicariously liable for conduct of maintenance contractor under nondelegable duties doctrine before setting amount of defendant’s credit, record was not sufficiently developed so as to enable WCAB to evaluate grounds upon which WCJ determined amount of credit. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 11.44[3]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 12, § 12.06[1].]