Cal. Comp. Cases December Advanced Postings 11/30/2009

Cal. Comp. Cases December Advanced Postings 11/30/2009

The first batch of advanced postings for the December 2009 issue of California Compensation Cases is now available on lexis.com. Lexis.com subscribers can click on the links below to access the full summaries.

California Insurance Guarantee Association, administered by Intercare Insurance Services, on behalf of HIH Insurance Company, in liquidation; California Insurance Guarantee Association, administered by Broadspire, L.L.C., on behalf of Superior National Insurance Company, in liquidation, Petitioner v. Workers' Compensation Appeals Board, Camino Medical Group, (Diane S. Lord), Respondents, 74 Cal. Comp. Cases ***, 2009 Cal. Wrk. Comp. LEXIS 284

Permanent Disability--Apportionment--Wilkinson Rule--WCAB upheld WCJ's finding that applicant/radiology technician's specific injuries to neck, back, right shoulder, and upper extremity on 1/27/97 combined with cumulative injuries to applicant's left shoulder and upper extremity during periods 1/11/99 through 6/22/99 and 8/10/99 through 11/30/99 to cause 52-percent permanent disability and found that, pursuant to Wilkinson v. W.C.A.B. (1977) 19 Cal. 3d 491, 138 Cal. Rptr. 696, 564 P.2d 848, 42 Cal. Comp. Cases 406, and Benson v. Permanente Medical Group (2007) 72 Cal. Comp. Cases 1620 (Appeals Board en banc opinion), WCJ correctly issued single, unapportioned permanent disability award based on unrebutted opinion of applicant's qualified medical evaluator indicating that applicant's cumulative injuries were compensable consequence of original specific injuries, and that permanent disability from all injuries was inextricably combined and could not be reasonably medically separated or apportioned under Labor Code § 4663.

Nicolae Filip, Petitioner v. Workers' Compensation Appeals Board, Exide Technologies, Zurich American Insurance, administered by Risk Enterprise Management, Respondents, 74 Cal. Comp. Cases ***, 2009 Cal. Wrk. Comp. LEXIS 285

Discrimination--Labor Code § 132a--WCAB, reversing WCJ's finding, held that employer's suspension of applicant/maintenance electrician on 10/14/2004 did not violate Labor Code § 132a, when applicant failed to prove that suspension was based on his industrial injuries to neck, back, and psyche on 10/13/2004 and during period 9/1/99 to 10/13/2004, and when reports and letters related to applicant's grievance claim, which WCAB found to be persuasive evidence because they were contemporaneous with events in question and did not depend on parties' recollection or interpretation of those events, indicated that applicant was suspended for failing to follow orders of his supervisor to wash truck.

Serious and Willful Misconduct of Employer--WCAB, reversing WCJ's finding, held that employer's actions on 10/13/2004 in assigning applicant/maintenance electrician to work in trench shoveling lead-laden mud did not constitute serious and willful misconduct under Labor Code § 4553, when applicant failed to prove that  injuries to his back, neck, and psyche on 10/13/2004 and during period 9/1/99 to 10/13/2004, resulted from obvious danger known, but disregarded, by employer, and when WCAB found that, although trench work involved heavy lifting, there was no showing that employer knew or should have known that applicant risked injury to his back, which would make it dangerous to ``quasi-criminal'' degree to assign applicant to trench work.

Regent, University of California, PSI, c/o Sedgwick CMS v. W.C.A.B., Ruth Carter, 74 Cal. Comp. Cases ***, 2009 Cal. Wrk. Comp. LEXIS 286

Temporary Total Disability--WCAB awarded applicant TTD benefits in six broken periods of time, beginning 1/21/2004 and ending 10/10/2008, for 1/5/2004 injury AOE/COE to neck, back, both arms and shoulders, and head (headaches) from fall while working as administrative specialist, based on opinions from applicant's treating physician, applicant's credible testimony, medical record, and WCAB's findings that (1) applicant was TTD because she could not return to work while her medical treatment needs were acute, (2) applicant's case involved serious injury to multiple body parts, defendant's delay in providing treatment and failure to provide detoxification program, applicant's attempt to return to work, failed cervical fusion and failed attempts to use spinal cord stimulator, and development of chronic pain and prescription narcotic addiction, and (3) defendant was entitled to credit for salary/wage loss paid to applicant for modified work within awarded TTD periods.

© Copyright 2009 LexisNexis. All rights reserved.