Cal. Comp. Cases May Advanced Postings (5/6/2010)

Cal. Comp. Cases May Advanced Postings (5/6/2010)

Here's the second batch of advanced postings for the May 2010 issue of Cal. Comp. Cases. users can link to the case summaries.

Wesley Harvick, Petitioner v. Workers' Compensation Appeals Board, State of California, Department of Corrections and Rehabilitation, State Compensation Insurance Fund, Adjusting Agent, Respondents

75 Cal. Comp. Cases ***, 2010 Cal. Wrk. Comp. LEXIS 49

Permanent Disability--Rating--New and Further Disability--WCAB, in panel majority opinion, affirmed WCJ's finding that applicant/correctional officer with industrial injuries to his psyche, heart, and in form of gastroesophageal reflux during period 5/15/89 to 9/24/99, who was originally awarded 48-percent permanent disability, suffered new and further disability resulting in 95-percent permanent disability as rated using eight work function impairments in 1997 Schedule for Rating Permanent Disabilities/Multiple Disabilities Table and based on applicant's deposition testimony, opinions of agreed medical evaluators in psychiatry and internal medicine, and recommended rating, and that psychiatric agreed medical evaluator's opinion that applicant was 100-percent permanently disabled due to a combination of factors, including applicant's cardiac disability and his inability to obtain necessary psychiatric treatment through workers' compensation, did not constitute sufficient evidence to rebut rating under 1997 Schedule and support finding of permanent total disability.

Zurich Insurance Company (insurer for Valley Health Systems), Petitioner v. Workers' Compensation Appeals Board, Unilab/Quest Diagnostics (PSI, administered by Sedgwick Claims Management Services), Unilab/Quest Diagnostics (insured by American Casualty Company of Reading, Pennsylvania, administered by CNA Claimsplus), Valley Health Systems (PSI, administered by Tri-Star Risk Management), (Nina Goodrich), Respondents

75 Cal. Comp. Cases ***, 2010 Cal. Wrk. Comp. LEXIS 50

Contribution--Time to Initiate Proceedings--WCAB, rescinding arbitrator's finding, held that defendant/Sedgwick's claim for contribution/reimbursement against multiple co-defendants for benefits paid to applicant/phlebotomist with admitted industrial injuries to her upper extremities was not barred by one-year statute of limitations in Labor Code § 5500.5(e), when, because applicant elected to proceed against and settled claim with co-defendant/CNA by way of 4/25/2005 Compromise and Release, WCAB found that (1) CNA, not Sedgwick, was "employer held liable under award" and was, therefore, party required to initiate contribution proceedings within one year from date Compromise and Release, pursuant to express language in Labor Code § 5500.5(e), (2) Sedgwick was not "held liable" under Compromise and Release, since it was not signatory, and was not required to institute supplemental proceedings pursuant to Labor Code § 5500.5(e) in order to preserve its right to contribution/reimbursement, but rather permissibly filed lien under Labor Code § 4903(c), and (3) even if Sedgwick were required to have filed petition for contribution within one year from date of Compromise and Release, CNA would be estopped from asserting statute of limitations as defense to contribution/reimbursement, since CNA stipulated in Compromise and Release that it and Sedgwick "reserve their right to contribution against each other as well as any other employer/carrier" and reserved WCAB jurisdiction over issue of contribution and apportionment of liability between parties in event of dispute.

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