Cal. Comp. Cases December Advanced Postings 12/28/2009

Cal. Comp. Cases December Advanced Postings 12/28/2009

The fourth 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.

Angela Gonzales and Faustino Gonzales, Petitioners v. StateWorkers' Compensation Appeals Board, F. C. Gonzales Construction, State Farm General Insurance Company, (Francisco Cortez), Respondents

 

 

74 Cal. Comp. Cases ***, 2009 Cal. Wrk. Comp. LEXIS 301

Employment Relationships--Residential Employees--WCAB upheld WCJ's finding that applicant hired to do framing on defendants/owner-builders' new home construction was not residential employee under Labor Code § 3351 for purposes of workers' compensation coverage under defendants' homeowner'' insurance policy, because defendants' home was still under construction and not fit for habitation at time of applicant's injury to his spine, upper extremities, lower extremities, head, psyche, and internal system on 8/18/2006, applicant kept separate time card for his framing work, and applicant's framing work was not incidental to ownership, maintenance, or use of residence since applicant was actually involved in construction of residence; WCAB held that homeowner's insurance carrier was not estopped to deny coverage when there was no evidence that carrier's agents represented to defendants that it would provide coverage for applicant's injury and no evidence that defendants requested such coverage, and WCAB found that defendants' estoppel claim failed as matter of law.

Yolanda Aguirre v. W.C.A.B., Ormco Corporation, GAB Robins, Travelers

74 Cal. Comp. Cases ***, 2009 Cal. Wrk. Comp. LEXIS 302

Injury AOE/COE--Post-Termination Claims--WCAB held that applicant senior technical welder did not sustain injuries AOE/COE to multiple body parts in period ending 9/23/2007 because her claim was barred as post-termination claim under Lab. C. § 3600(a)(10) and no exceptions to bar applied, when WCAB found that termination was in 9/2007 and that applicant sent claim to employer 11/18/2008.

Injury AOE/COE--Post-Termination Claims--Exceptions--WCAB held that none of three possible exceptions to bar of Lab. C. § 3600(a)(10) applied, i.e., (1) Lab. C. § 3600(a)(10)(A) exception did not apply because employer did not have notice of current injury before termination, either in 2006 or in approximately 1992 (when employer received notice of earlier injury and applicant received medical treatment for earlier injury), (2) Lab. C. § 3600(a)(10)(B) exception did not apply because medical records existing before termination did not show evidence of current injury, and, again, evidence of medical treatment for earlier injury was not evidence of medical treatment for current injury, and (3) Lab. C. § 3600(a)(10)(D) exception did not apply because date of injury was before notice of termination, when WCAB found that applicant believed her complaints were related to her employment prior to termination but did not report complaints to employer before termination.

Granite Construction, Inc., Valley Forge Insurance Company, adjusted by CNA Claim Plus v. W.C.A.B., Bay Cities Paving & Grading, Gallagher Bassett, (John Black)

74 Cal. Comp. Cases ***, 2009 Cal. Wrk. Comp. LEXIS 303

Cumulative Trauma Injury AOE/COE--Date of Injury--WCAB held that applicant laborer sustained one cumulative trauma injury to his wrists and that date of injury under Lab. C. §§ 5412 and 5500.5 was period from 1/18/2007 through 1/18/2008, while applicant worked for two employers, including petitioner, when WCAB found that applicant sought medical treatment while working for first employer but did not become disabled until 1/18/2008 (date of first time lost from work), while working for second employer/petitioner, and that date of injury under Lab. C. § 5412 required knowledge of relationship between condition and employment and also disability.

Permanent Disability--WCAB ordered defendants to pay 15-percent increase in applicant's PPD benefits under Lab. C. § 4658(d)(2), when parties stipulated that applicant was entitled to 30-percent PPD, after adjustment for age and occupation, when WCAB found that applicant became P&S for this injury on 8/11/2008, that neither employer offered him regular, modified, or alternative work within 60 days of P&S date, that language in Lab. C. § 4658(d)(2) requiring increase in PD under these circumstances was mandatory, with only exception being for employer with fewer than 50 employees, which did not apply here.

Kenny-Shea-Traylor-Frontier-Kemper Joint Venture v. W.C.A.B., Robert Stamps

74 Cal. Comp. Cases ***, 2009 Cal. Wrk. Comp. LEXIS 304

Petitions for Reconsideration--Verification--WCAB dismissed employer's petition for reconsideration that was not verified, as required by Lab. C. § 5902, when employer sought reconsideration of F&A finding S&W misconduct by employer under Lab. C. § 4553 related to applicant's 11/21/2002 industrial injuries, when WCAB found that employer's petition was not verified, and that dismissal was authorized by Lab. C. § 5902 and case law; WCAB also found that dismissal did not violate employer's due process rights, that WCAB had authority to dismiss unverified petition, that there was no mistake, inadvertence, or neglect, and that WCAB had no duty to alert attorney to requirements of Lab. C. § 5902; alternatively, WCAB would have denied reconsideration on merits.

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