Cal. Comp. Cases December Advanced Postings 12/17/2009

Cal. Comp. Cases December Advanced Postings 12/17/2009

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

County of Los Angeles (Edelman Mental Health Facility), PSI, PDQ Personnel Services, Petitioners v. Workers' Compensation Appeals Board, California Insurance Guarantee Association, administered by Intercare Insurance Services, on behalf of Superior National Insurance Company, in liquidation (insurer for PDQ Personnel Services), (Donald Anson), Respondents

74 Cal. Comp. Cases ***, 2009 Cal. Wrk. Comp. LEXIS 297

California Insurance Guarantee Association--General and Special Employers--Other Insurance--WCAB rescinded WCJ's award against California Insurance Guarantee Association, and held that California Insurance Guarantee Association, on behalf of general employer's insolvent carrier, was not liable for providing benefits to applicant with 6/9/2000 back injury and alleged back injury during period 2/2000 through 6/8/2000, because applicant's claim was not "covered claim," when WCAB found that, although there was evidence establishing that general employer and self-insured special employer agreed that general employer would provide workers' compensation coverage, self-insured special employer's Certificate to Self Insure constituted "other insurance" available to applicant under Insurance Code § 1063.1(c)(9) because there was no evidence regarding whether special employer intended to exclude general employer's employees from its Certificate to Self Insure or whether it was possible for special employer to exclude such special employees if general employer's carrier became insolvent and its covered claims were assumed by CIGA.

Scott Schwartz, Petitioner v. Workers' Compensation Appeals Board, West Coast Wood Products, William J. O'Connor, Karen Rabe, Respondents

74 Cal. Comp. Cases ***, 2009 Cal. Wrk. Comp. LEXIS 298

Serious and Willful Misconduct of Employer--Liability of Corporate Shareholders--WCAB held that corporate shareholders were not personally liable for serious and willful misconduct award that issued on behalf of applicant/carpenter who suffered injuries to his left hand and psyche on 4/16/92 and against corporation that had dissolved before award was issued, when WCAB found that applicant did not meet burden of proving that shareholders acted as "alter ego" of corporation pursuant to Associated Vendors, Inc. v. Oakland Meat Co. (1962) 210 Cal. App. 2d 825, 26 Cal. Rptr. 806, that, even had applicant prevailed on "alter ego" theory, enforcement of award against shareholders would have been denial of due process because shareholders had no notice of serious and willful hearing and did not participate in litigation of issue, and that elements of equitable estoppel were not met so as to justify enforcement of award against shareholders because there was no substantial evidence that shareholders attempted to mislead applicant or made any misrepresentations regarding status of corporation or applicant's claim against it.

Ann Bachtold v. W.C.A.B., American River College, PSI, administered by Bragg and Associates, administered by York Insurance Services Group, Inc.

74 Cal. Comp. Cases ***, 2009 Cal. Wrk. Comp. LEXIS 299

Medical Treatment--WCAB awarded applicant further medical treatment for 9/6/2007 industrial injury to right foot and neck but denied applicant's request for medical treatment in form of cervical fusion, finding that need for cervical fusion was not related to this industrial injury, based on opinions from AME, when WCAB found that applicant was injured when 220-pound table top fell on her foot, that she also leaned over to attempt to move table top, injuring her neck, that applicant's treating physicians recommended cervical fusion, and that AME gave opinion that 9/6/2007 injury did not cause spondylolisthesis or cervical arthritis/spondylosis found in applicant's spine and that need for cervical fusion for these conditions was on non-industrial basis.

Evidence--Newly Discovered Evidence--WCAB denied applicant's petition for reconsideration, seeking admission of testimony and reports from two treating physicians on mechanism of injury and need for cervical fusion that applicant claimed were newly discovered, when WCAB found that applicant did not comply with requirements of 8 Cal. Code Reg. § 10856 because applicant did not establish that evidence could not have been discovered or produced before case was submitted.

Brad M. Weiser v. W.C.A.B., Laurel Sheet Metal Products, Inc., Employers Compensation Insurance Company

74 Cal. Comp. Cases ***, 2009 Cal. Wrk. Comp. LEXIS 300

Temporary Disability--Two-Year Limitation on Temporary Disability Indemnity--WCAB held that two-year limitation on TD under Lab. C. § 4656(c)(1) applied to TD from applicant's two admitted industrial injuries, because period of TD caused by  both injuries overlapped, and WCAB denied applicant's request for additional TD benefits, when WCAB found that applicant sustained two injuries AOE/COE on 11/29/2004 to back and left leg from slip and fall, and on cumulative trauma basis ending 11/29/2004 to back, neck, right shoulder, upper extremities, and additional body parts, that defendant paid TD for 104 weeks for applicant's back condition from 11/29/2004 injury, that applicant claimed additional TD for cumulative trauma injury, that back condition from both specific and cumulative trauma injuries caused applicant's period of disability from 11/30/2004 through 11/30/2006, already paid by defendant, and that TD caused by shoulder condition from cumulative trauma injury overlapped TD caused by back condition; WCAB based its decision on overlap on opinions from physician appointed by WCAB as "regular physician" under Lab. C. § 5701.

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