California Workers' Compensation Cases Roundup 1/12/2011

California Workers' Compensation Cases Roundup 1/12/2011

CALIFORNIA COMPENSATION CASES

Vol. 75, No. 12 December 2010

A Report of En Banc and Significant Panel Decisions of the WCAB and Selected Court Opinions of Related Interest, With a Digest of WCAB Decisions Denied Judicial Review

CONTENTS OF THIS ISSUE

Appellate Court Compensation Cases

Allied Waste Industries v. W.C.A.B. (Rojas) (3rd--C064914) 75 Cal. Comp. Cases 1315

Permanent Total Disability--Cost of Living Adjustments--Court of Appeal, annulling WCAB decision, held that injured worker was entitled to cost of living adjustment provided for in Lab C Sec 4659(c) as of January 1st following date of injury, when Court of Appeal, noting that review of contrary interpretation of statute in Duncan v. W.C.A.B. (X.S.), was currently pending before California Supreme Court, found that applicant was permanently totally disabled from injury occurring on 2/18/2005, and that, under plain language of statute, calculation of cost of living adjustment begins by ascertaining state average weekly wage for year preceding injury and comparing it to average for prior year, then starting cost of living adjustment on January 1st following date of injury, i.e., 1/1/2006

Colleran v. W.C.A.B. (2nd--B220878) 75 Cal. Comp. Cases 1322

Vocational Rehabilitation--Repeal of Lab C Sec  139.5--Vested Rights--Court of Appeal, annulling WCAB decision, held that applicant was entitled to vocational rehabilitation benefits and services as of 12/29/2008, date on which Rehabilitation Unit, in final and enforceable order, determined that applicant was so entitled, so that applicant possessed vested right to vocational rehabilitation that survived repeal of Lab C Sec 139.5, effective 1/1/2009, when Court of Appeal found that applicant sustained industrial injury in 1999, that defendant did not appeal Rehabilitation Unit's 12/29/2008 determination that entitled applicant to vocational rehabilitation benefits and services, and that neither Weiner v. W.C.A.B. nor Beverly Hilton Hotel v. W.C.A.B. (Boganim), was dispositive of present case since each addressed question of finality of award when timely appeal or petition for writ of review was pending on effective date of repeal of Lab C Sec 139.5.

State Compensation Ins. Fund v. W.C.A.B. (Hancock) (3rd--C064985) 75 Cal. Comp. Cases 1336

Stipulated Awards--Waiver of Further Industrial Injuries--Court of Appeal held that stipulated award covering applicant's low back, left and right knees, and bilateral carpal tunnel, which stated that "this agreement resolves all issues of liability for any injury specific or cumulative for [applicant's] entire period of employment with this employer," did not constitute waiver of applicant's right to allege, subsequently, industrial injury to his bilateral shoulders, when Court of Appeal found that waiver of workers' comp right cannot be established without clear showing of intent to relinquish that right, that doubtful cases will be decided against waiver, that stipulation here contains no language waiving protection of Civ C Sec 1542, which provides that general release does not extend to claims that creditor does not know or suspect to exist in his or her favor at time of executing release, that stipulation here includes no reference to future or unknown claims of liability, that stipulation here is susceptible to interpretation that, as of date of its execution and approval, parties had effectively negotiated all known issues pertaining to applicant's claim, making language ambiguous as to its scope for claims of industrial injury to additional body parts, and that evidence outside language of stipulation was insufficient to establish that applicant intended to relinquish his claim of bilateral shoulder injury in stipulated award, because he did not have knowledge that his shoulder problems were industrial until date subsequent to stipulation

Injury AOE/COE--Petitions to Reopen--New and Further Disability--Court of Appeal, annulling WCAB order, held that WCAB erred in allowing applicant's petition for new and further disability, filed pursuant to Lab C Sec 5410, to include body parts that were not part of original award and were not compensable consequences of injuries to body parts of original award, when Court of Appeal found that statute requires that original injury has caused new and further disability, that this causation is demonstrated when claimed new and further disability either has been to same body part or is alleged as compensable consequence of original injury, and that nothing in record supports conclusion that applicant's shoulder injuries, constituting injury to new body part, were compensable consequence of his original injuries

Injury AOE/COE--Petitions to Reopen--Good Cause--Court of Appeal, annulling WCAB order, held that WCAB erred in granting applicant's petition to reopen for good cause, filed pursuant to Lab C Sec 5803, when Court of Appeal found that WCAB stated that left shoulder injury, and, allegedly, right shoulder injury, was newly disclosed injury that AME had not commented upon at time parties entered into previous stipulated award, that any factor or circumstance unknown at time original award was made, which renders previous findings and award "inequitable," will justify reopening of case and amendment of F&A, that, in order to constitute "good cause" for reopening, new evidence must be accompanied by showing that it could not with reasonable diligence have been discovered and produced at original hearing, and that applicant's petition to reopen contains no showing of such diligence

Appellate Court Cases Not Originating With Appeals Board

Calvario-Nava v. Arambel (5th--F058958) 75 Cal. Comp. Cases 1350

Civil Actions Against Employers--Exclusive Remedy Rule--Employment Relationships--Special Employers--Court of Appeal held that plaintiff produced sufficient evidence on issue of whether defendant was his special employer on date of injury such that there was triable issue of fact on this issue and that it was error for trial court to grant summary judgment to defendant on this issue, when defendant was landowner who harvested fruit for commercial market, landowner hired licensed insured labor contractors to provide workers to pick fruit for harvest, plaintiff was hired by one of these labor contractors, plaintiff was critically injured on 7/19/2007 when caught between wheel and tractor while working for labor contractor, plaintiff received workers' comp benefits from labor contractor's insurer and also brought civil action against defendant, in summary judgment motion defendant contended it was plaintiff's special employer and that, therefore, workers' comp system was plaintiff's exclusive remedy for his injuries, and Court of Appeal found that plaintiff was employee of labor contractor (independent contractor), that labor contractor was directly and regularly involved in supervising employees he hired to harvest defendant's fruit, and that defendant's managers were involved only in control and direction of pickers to extent necessary to achieve goals it hired labor contractor to achieve

Gilbreath v. Holland Residential (2nd--B216102) 75 Cal. Comp. Cases 1359

Civil Actions Against Employers--Exclusive Remedy Rule--Premises Liability--Court of Appeal affirmed trial court's grant of summary judgment in favor of defendant on issue of whether workers' comp was plaintiff's exclusive remedy in her civil premises liability action against defendant, when Court of Appeal found that plaintiff was senior manager for premises owner's condominium complex, that her duties included oversight of property, that defendant provided property management services to premises owner and hired plaintiff, that plaintiff was walking dog and inspecting premises when she noticed open elevator door, that she stepped into elevator to investigate and either reset elevator door or have door repaired so other tenants could use elevator, that she fell into elevator that was stuck at floor lower than floor outside elevator, that she brought civil premises liability action against her employer, premises owner, and elevator company, that parties agreed and Court of Appeal found that plaintiff was in course and scope of her employment at time of fall, and that, therefore, workers' comp was plaintiff's exclusive remedy against her employer

Civil Actions Against Employers--Exclusive Remedy Rule--Judicial Estoppel--Court of Appeal held that doctrine of judicial estoppel did not apply, when plaintiff contended that her employer was estopped from raising exclusive remedy because employer's insurer initially denied claim for workers' comp benefits in part on grounds that plaintiff was not acting in course and scope of her employment at time of injury, and Court of Appeal found that insurer's written notice to plaintiff denying claim was not equivalent of taking inconsistent position in judicial or quasi-judicial administrative proceeding

Meadows v. Farrell (6th--H035309) 75 Cal. Comp. Cases 1367

Civil Actions--Anti-SLAPP Actions--Intentional Infliction of Emotional Distress--Court of Appeal affirmed trial court's denial of defendant's special motion to strike (anti-SLAPP motion under CCP Sec 425.16) plaintiff's cause of action against defendant for intentional infliction of emotional distress, when Court of Appeal found that plaintiff sustained industrial injury from 12/2006 motor vehicle collision, that her employer's workers' comp insurer assigned defendant to be nurse case manager for her claim and oversee medical care, that defendant made two statements to plaintiff that plaintiff would potentially be fired if she did not return to work soon, that plaintiff filed civil action against defendant based on statements allegedly made by defendant, including this cause of action for defendant's two statements about firing, that defendant did not show that these two statements were protected activity under CCP Sec 425.16(e)(2), in that defendant did not show that statements were "made in connection with an issue under consideration or review" by judicial body

Civil Actions--Anti-SLAPP Actions--Court of Appeal affirmed trial court's denial of defendant's anti-SLAPP motion to strike plaintiff's four causes of action against defendant for defamation, negligence, invasion of privacy, and intentional interference with prospective economic advantage, when Court of Appeal found that these four causes of actions were based on plaintiff's contention that defendant disseminated statements from physician about plaintiff's alleged drug addiction or abuse to statewide medical database available to persons not involved in plaintiff's workers' comp case, and that in anti-SLAPP motion defendant did not address whether this dissemination was protected activity within meaning of CCP Sec 425.16

People v. Brown (4th--D056908) 75 Cal. Comp. Cases 1379

Insurance--Anti-Fraud Provisions--Restitution--Court of Appeal affirmed trial court's restitution order after defendant/applicant pled guilty to one misdemeanor count of workers' comp fraud for unlawfully making knowingly false statements to obtain workers' comp benefits, in violation of Ins C Sec 1871.4(a)(1), when Court of Appeal found that defendant claimed slip and fall injury to left knee on 9/21/2001 while working for employer insured by Zenith Insurance Co., that defendant filed claim for workers' comp benefits, that defendant was later charged with violation of Ins C Sec 1871.4(a)(1), based on his failure to disclose previous industrial left knee injury that occurred in 1998, that trial court ordered defendant to reimburse Zenith for over $151,000 it paid in medical treatment and disability benefits for alleged 9/21/2001 injury, that trial court did not offset any of restitution for 9/21/2001 injury, that Pen C Sec 1202.4(f) authorizes victim restitution for economic loss suffered as result of defendant's conduct, that on appeal defendant disputed amount of restitution award and contended that, since conviction was related to fraudulent statements about 1998 left knee injury, he should be liable for only reimbursement for expenses related to those fraudulent statements, not for expenses for 9/21/2001 injury, that standard on appeal was to determine if trial court abused discretion in determining amount of restitution order, that under this standard there was no abuse of discretion because Zenith presented prima facie case of its economic loss sufficient for court to calculate restitution, that defendant did not present any evidence to rebut prima facie case of amount of loss, since defendant did not show that he had industrial injury on 9/21/2001 that would obligate Zenith to pay workers' comp benefits, that there was factual and rational basis for amount of restitution ordered by trial court, and that trial court's order was not arbitrary, capricious, or based on demonstrable error of law

Sameyah v. Los Angeles County Employees Retirement Assn (2nd--B222290) 75 Cal. Comp. Cases 1384

Service-Connected Survivor Death Benefits--Presumption of Industrial Causation--Cancer--Law Enforcement Officer--Court of Appeal, affirming trial court's judgment, held that substantial evidence supported trial court's decision that defendant had rebutted cancer presumption set forth in Gov C Sec 31720.6(a), (b) by making requisite showing outlined in Gov C Sec 31720.6(c), i.e., by establishing primary site of decedent's lymphoma and by demonstrating that carcinogens to which decedent was exposed during performance of his job duties were not reasonably linked to his Burkitt's lymphoma, when Court of Appeal found that decedent, plaintiff's husband, worked as Los Angeles County deputy sheriff from 6/96 through 7/2003, that he died in 1/2004 of Burkitt's lymphoma, that plaintiff filed application with defendant for service-connected survivor death benefits, stating that her husband was exposed to carcinogens in course of his work, that defendant determined that, as required by Gov C Sec 31720.6(c), cancer presumption in Gov C Sec 31720.6(a), (b) was rebutted by evidence demonstrating that (1) carcinogens to which decedent was exposed on job were not reasonably linked to Burkitt's lymphoma and (2) primary site of decedent's cancer was stomach, and that similar cancer presumption regarding workers' comp disability benefits in Lab C Sec 3212.1 has been interpreted to uphold rebuttal of presumption in factual and evidentiary situations similar to those in this case

Toyota v. Superior Court of Los Angeles County (Braun) (2nd--B226902) 75 Cal. Comp. Cases 1399

Civil Actions--Independent Psychiatric Examinations--Attorney's Presence--Court of Appeal, ordering issuance of peremptory writ of mandate directing trial court to vacate portion of its ruling on defendant's motion to compel independent psychiatric examination that permitted plaintiff's counsel to monitor examination from separate room, held that trial court abused its discretion since plaintiff demonstrated no legitimate need for such monitoring and defendant produced evidence that such monitoring might compromise integrity of examination, when Court of Appeal found that plaintiff sued its former employer for, inter alia, gender discrimination and sexual harassment under Fair Employment and Housing Act and for common-law claims of defamation, constructive discharge, and intentional and negligent infliction of emotional distress, alleging that he was sexually harassed by supervisor, that plaintiff stated in response to interrogatories that he had sought mental health treatment, counseling, and therapy due to stress and anxiety from alleged harassment, that defendant sought independent psychiatric examination of plaintiff under CCP Sec 2032.310 et seq., that trial court issued order granting defendant's motion for such examination but permitting plaintiff's counsel to be present at adjacent location to monitor examination, that California Supreme Court held in Edwards v. Superior Court that plaintiff could not insist on attorney's presence at psychiatric examination, that plaintiff had made no showing of need for exception to this rule, that examination was to be audio taped and plaintiff's attorney would be provided with copy, that defendant had presented evidence, in form of testimony by psychiatric examiners, that attorney's presence in another room would interfere with examiner's ability to establish rapport with plaintiff necessary for examination, especially given plaintiff's ability to speak with attorney in person at breaks (though not on subject of examination), and might well influence plaintiff to answer questions in particular way so as to please attorney whom he would know was listening, and that, absent evidence to contrary, it must be presumed that examiners will act appropriately

Vradenburgh v. Southern California Edison (4th--G041931) 75 Cal. Comp. Cases 1406

Civil Actions Against Employers--Exclusive Remedy Rule--Special Employers--Court of Appeal affirmed trial court's holdings that defendant was plaintiff's special employer on date of injury as matter of law, that there was, therefore, no triable issue of fact on this question, and that workers' comp was plaintiff's exclusive remedy against defendant under Lab C Sec 3602(a), when Court of Appeal found that defendant operated nuclear power facility, that defendant and Bechtel had two-year loaned-employee agreement that Bechtel would provide union and non-union laborers to work at defendant's facility, that under agreement between defendant and Bechtel defendant had "exclusive supervision, direction and control" over Bechtel's employees' work at defendant's facility, that plaintiff was Teamster's union truck driver hired by Bechtel and assigned to defendant's facility, that defendant's transportation manager provided job assignments to plaintiff at least once daily, gave new assignment when plaintiff completed previous assignment, and received daily log from plaintiff listing his location, time, and activities, that Bechtel did not direct manner in which plaintiff was to perform deliveries for defendant, that plaintiff was injured at defendant's facility on 8/23/2006 when he fell while climbing into truck cab while unloading defendant's materials from defendant's truck, that plaintiff brought civil negligence action against defendant, that undisputed evidence established that defendant had right to control plaintiff's work, and that trial court properly granted summary judgment in defendant's favor on special employer issue

Digests of WCAB Decisions Denied Judicial Review

Editorial Board members Hon. Frederick W. Bray, William A. Herreras, Hon. Colleen S. Casey, John W. Miller, and Hon. Ronald W. Smitter recommended the following writ denied cases for summarization in this issue.

Advantage Workers' Comp Ins. v. W.C.A.B. (Baum) (6th--H035823) 75 Cal. Comp. Cases 1415

Attorneys--Disqualification--WCAB denied defendant's petition for removal from WCJ's order declining to disqualify attorney from representing his ex-wife with regard to her claim for cumulative injury to bilateral upper extremities and psyche, when WCAB found that disqualification of applicant's attorney was not warranted because it would deprive applicant of selecting attorney who is uniquely qualified to represent her, and that defendant failed to establish that applicant's attorney violated any ethical rules of conduct by representing his ex-wife, that attorney had conflict of interest with his client due to pending divorce proceedings, that representation would prevent full and impartial discovery, or that defendant would suffer significant prejudice or irreparable harm, absent removal

City of Anaheim v. W.C.A.B. (Roush) (4th--G044218) 75 Cal. Comp. Cases 1418

PD--Rating--WCAB rated applicant police officer's PD as 70 percent, without apportionment and with life pension, for cumulative trauma injury AOE/COE from 8/30/2003 through 8/30/2004 to heart, hypertension, back, low back, and right foot, based on WCJ's rating instructions (which relied on factors of disability from panel QME in internal medicine and from applicant's QME) to Disability Evaluation Unit, Disability Evaluation Unit's formal rating, cross-examination of Disability Evaluation Unit rater, and applicant's testimony, when WCAB found that rating instructions for right foot disability were adequate, that defendant did not object to rating instructions or move to strike rating instructions at time of trial, that defendant's first objection to rating instructions was in petition for reconsideration of WCJ's findings and award, and that defendant's contention that rating instructions should have requested rating for disability when applicant was wearing his shoe orthotics, in addition to when he was not wearing orthotics, was not persuasive because defendant did not meet burden of proving that any refusal by applicant to wear shoe orthotics 100 percent of time when weight bearing was unreasonable

County of Orange v. W.C.A.B. (Moore) (4th--G044275) 75 Cal. Comp. Cases 1422

Public Employees--Salary in Lieu of Benefits--Post-Retirement Period of Disability--WCAB affirmed WCJ's finding that applicant/deputy sheriff who suffered cumulative injuries to his spine, bilateral knees, and left shoulder was entitled to Lab C Sec 4850 benefits for post-retirement period of TTD, when WCAB, distinguishing between Public Employees Retirement System retirements and retirements under County Employees Retirement Law of 1937, found that (1) Lab C Sec 4850 does not prohibit safety officers from receiving salary in lieu of benefits unless they have applied for and are receiving disability retirement benefits, which applicant was not, since he was receiving only service retirement benefits, (2) although all safety officers who retire under Public Employees Retirement System are barred by Lab C Sec 4853 from receiving Lab C Sec 4850 benefits, Lab C Sec 4853 does not apply to officers retired under County Employees Retirement Law of 1937, such as applicant, and (3) applicant's unrebutted testimony indicated that he did not voluntarily remove himself from labor market so as to preclude entitlement to TD benefits

Jeffers v. W.C.A.B. (Chapital and Hildalgo) (1st--A129078) 75 Cal. Comp. Cases 1427

Employment Relationships--Employees--WCAB upheld WCJ's finding that illegally uninsured president and sole shareholder of defendant corporations was, as individual, decedent/plasterer's sole employer on date of decedent's injuries that resulted in his death, and that decedent was not employee of defendant corporations, when WCAB found that president was judicially estopped from claiming that decedent was employee of corporations pursuant to stipulations that formed basis of Judgment for Declaratory Relief in Superior Court, that, even if doctrine of judicial estoppel did not apply, evidence at trial did not support finding that decedent was employee of corporations or that general-special employment relationship existed, and that president operated corporations as his "alter ego" rather than as separate entities

Lam v. W.C.A.B. (2nd--B225983) 75 Cal. Comp. Cases

TD--Two-Year Limitation on TD Indemnity--WCAB rescinded WCJ's finding that applicant/stage hand/rigger, with 8/3/2005 admitted low back injury and alleged cumulative injuries ending in 8/2005 and over period 1/2006 to 4/11/2007, was entitled to additional periods of TD and that defendant was estopped from asserting 104-week cap on TD indemnity under Lab C Sec 4656(c)(1) based on its refusal to authorize further medical treatment in accordance with treating physician's recommendations, when WCAB found that record required further development to clarify periods of applicant's TD, that applicant's claim for additional TD indemnity for period of disability beginning in 9/2007 was barred by 104-week limitation period  in Lab C Sec 4656(c)(1), which commenced with defendant's initial payment of TD indemnity in 8/2005, and that doctrine of equitable estoppel did not apply to "toll"  limitation period in Lab C Sec 4656(c)(1) because applicant did not prove elements of estoppel, i.e., that defendant made misrepresentations and that applicant detrimentally relied on these misrepresentations

Lambert v. W.C.A.B. (2nd--B224901) 75 Cal. Comp. Cases 1441

PD--Apportionment--Successive Injuries--WCAB affirmed WCJ's finding that applicant/police officer suffered specific injury to his left knee, left hip, and lumbar spine on 4/1/98 and separate and distinct injury during cumulative period 10/14/98 through 5/22/2002, and that, pursuant to Benson v. W.C.A.B. and AME's opinion, PD resulting from injuries was apportionable under Lab C Sec 4663, 75 percent to specific injury and 25 percent to cumulative trauma, when AME's opinion constituted substantial evidence to support finding of separate injuries and apportionment since he consistently maintained that injuries were distinct and, with reasonable medical probability, parceled out PD based on causation

Moreno Valley Unified School District v. W.C.A.B. (Baladaray) (4th--E051337) 75 Cal. Comp. Cases 1444

Psychiatric Injuries--Good Faith Personnel Actions--WCAB affirmed WCJ's finding that applicant/warehouse manager suffered industrial psychiatric injury during period 2002 through 2006 as result of harassment by his supervisors in response to his reaction regarding certain management decisions, and that defendant did not meet its burden of proof pursuant to Lab C Sec 3202.5 that injury was caused by good faith personnel actions under Lab C Sec 3208.3(h) so as to bar applicant's claim, when WCAB found that (1) evidence indicated that management personnel intentionally distorted or misinterpreted applicant's efforts to fulfill his job duties while at same time he sought to implement cost saving changes demanded of him by defendant, (2) AME's report of management's unreasonable actions and applicant's work environment was corroborated by applicant's credible testimony, which was unrebutted by defense witnesses, and (3) defendant's stated goal of streamlining operations to save money due to budget constraints did not, in itself, constitute good faith personnel action if defendant's actions toward applicant in achieving stated goal were unreasonable and improper

Terjimanian v. W.C.A.B. (2nd--B223966) 75 Cal. Comp. Cases 1449

PD--2005 Permanent Disability Rating Schedule--WCAB held that applicant's PD for 4/2/2003 industrial injury should be rated using 2005 Permanent Disability Rating Schedule, not 1997 Schedule for Rating Permanent Disabilities, because none of exceptions to use of 2005 schedule set out in Lab C Sec 4660(d) applied, and 5/6/2004 report from neurologist who consulted about possible Parkinson's disease did not indicate existence of PD within meaning of Lab C Sec 4660(d) because that statute applied only to compensable claims arising before 1/1/2005 and WCAB found that applicant did not have compensable Parkinson's-like disease

PD--Rating--WCAB awarded applicant teacher eight-percent PD, without apportionment, for 4/2/2003 injury AOE/COE to head, based on applicant's testimony, opinions from AMEs in neurology and psychiatry, respectively, and rating from DEU (with no objection to rating and no timely request to cross-examine rater)

Injury AOE/COE--WCAB held that applicant did not sustain injury AOE/COE on 4/2/2003 to psyche, based on opinions from AME in psychiatry, or neurological system (including in form of Parkinson's-like conditions), based on opinions from AME in neurology

Other WCAB Decisions Denied Judicial Review

American Home Assurance v. W.C.A.B. (Diato) (4th-- D058185) 75 Cal. Comp. Cases 1453

Petitions for Reconsideration--Service on Lien Claimant--WCAB dismissed defendant insurer's petition for reconsideration of WCAB's joint F&A, when WCAB issued joint F&A and ordered defendants to pay applicant TTD benefits for two industrial injuries (5/7/2008 and cumulative through 6/27/2008) and penalties and reimburse EDD for its lien for benefits paid to applicant during applicant's period of TD, and WCAB found that defendants did not file proof of service of petition for reconsideration on EDD, as required by Lab C Sec 5905, 8 CCR Sec 10850, and case law, that failure to file proof of service could be grounds for dismissal, and that EDD was lien claimant and party in case and actively litigated issues that were subject of joint F&A

Franco's Glazing v. W.C.A.B. (Valdes-Fernandez) (2nd-- B228895) 75 Cal. Comp. Cases 1455

Removal to WCAB--WCAB denied petition to remove case to itself related to WCJ's orders denying defendant's request to take matter off calendar and setting matter for trial, when WCAB found that applicant claimed industrial injury and named one employer who was insured by petitioner, that petitioner investigated and denied claim because its investigation indicated that applicant was not employed by its insured, that applicant filed amended application for adjudication of claim naming second employer, that applicant filed declaration of readiness to proceed, that petitioner did not object to declaration of readiness, that at MSC petitioner requested that matter be taken off calendar to join UEBTF, that applicant objected, that WCJ found that joinder of UEBTF was not pre-requisite to trial setting and set matter for trial, and that petitioner did not prove that there would be irreparable harm or substantial prejudice if removal was not granted

Hernandez v. W.C.A.B. (2nd--B227353) 75 Cal. Comp. Cases 1457

Penalties--WCAB denied applicant's request for penalties under two statutes related to applicant's two industrial injuries, i.e., (1) under Lab C Sec 5814 when WCAB found that defendant sent applicant $54.92 life pension check in 3/2006, that applicant made telephone call to defendant's claims adjustor in 2006 when he realized check was missing, that check was never cashed, that defendant notified State of California about check as abandoned property, that applicant received letter in 2010 from State of California, listing check as abandoned property, that defendant timely reissued check, that there was no evidence of unreasonable delay or refusal to pay check by defendant, and that under Lab C Sec 5814(g) applicant had two years after payment due date to seek penalty and did not do so, and (2) under Lab C Sec 4650(d) when WCAB found no evidence that life pension check payment was delayed or late

Constitutional Challenges--WCAB held that it had no jurisdiction to rule on issue of whether SB 899 violated state or federal

Evidence--WCAB held that it did not violate Evid C, Lab C, or applicant's due process rights by permitting defendant's counsel at trial to ask applicant about two letters, when WCAB found that defendant sent applicant two letters in 2006 when life pension check sent in 2006 was uncashed, that applicant testified that he did not remember receiving these two letters, that two letters were not admitted into evidence, that defendant showed applicant the two letters to attempt to refresh applicant's memory, and that WCAB did not rely on these two letters in reaching its decision on penalty issues

Miles v. W.C.A.B. (2nd--B223646) 75 Cal. Comp. Cases 1459

Stipulations--Good Cause to Set Aside--WCAB held that applicant associate warden/correctional officer did not show good cause to set aside parties' stipulation that applicant was P&S on 10/16/2006 for cumulative trauma industrial injury ending 7/16/99, when WCAB found that parties stipulated that applicant sustained injury AOE/COE to back and circulatory system ending 7/16/99, applicant became P&S on 10/16/2006, applicant received TD benefits from 9/13/2006 through 1/3/2007, and applicant had been adequately compensated for TD, that applicant died on 8/21/2009, that applicant's attorney contended that (1) applicant should be relieved of 10/16/2006 stipulated P&S date because that date related to pulmonary embolism condition that WCAB found was not compensable, and (2) WCAB should apply 3/25/2003 P&S date for applicant's orthopedic condition to entire claim, and that WCAB did not agree with either of applicant's attorney's contentions

Nulwala v. W.C.A.B. (2nd--B227548) 75 Cal. Comp. Cases 1461

Temporary Disability--WCAB reversed WCJ and held that applicant was not entitled to TD benefits from 8/12/2009 to present and continuing, when WCAB found that applicant hospital x-ray technician sustained injury AOE/COE on 7/22/2009 to her neck and right shoulder, that defendant paid TTD benefits from 7/29/2009 through 8/11/2009, that applicant was released to return to work 8/11/2009 without restrictions and resigned 9/14/2009, that reason for resignation was applicant's move to Pennsylvania with her husband for his new job, that parties stipulated that defendant employer offered applicant alternative work after injury, that applicant did not receive any new restrictions until 9/28/2009 evaluation from panel QME when she was restricted to modified work, that defendant made offer of proof, which WCAB accepted, that it had modified/alternative work available after 8/11/2009 but did not offer it to applicant because she did not return to work after 8/11/2009 and resigned 9/14/2009, and that, if applicant had not resigned, defendant would have offered her modified/alternative work

Sheng v. W.C.A.B. (2nd--B224765) 75 Cal. Comp. Cases 1463

Petitions for Reconsideration--Final Orders--WCAB dismissed petition for reconsideration of WCJ's discovery order that WCAB found was not final order subject to reconsideration under Lab C Sec 5900 and case law, when applicant account analyst claimed cumulative trauma injury AOE/COE ending 3/16/2007 to her spine, shoulders, arms, wrists, hands, and lower extremities, applicant disputed first treating physician's opinion and switched to second treating physician, WCJ ordered parties to obtain supplemental report from panel QME on issues of PD, apportionment, and rating, using AMA Guides, and WCAB found that applicant should have resolved dispute over first treating physician's opinion by using procedures of Lab C Sec 4061 and Lab C Sec 4062, including using panel QME, and that opinions of second treating physician on medical-legal issues were inadmissible under these circumstances

Removal to WCAB--Alternatively, if WCAB construed applicant's petition for reconsideration of WCJ's non-final order as petition for removal to WCAB under Lab C Sec 5310, related to WCJ's order for supplemental report from panel QME for applicant's claimed cumulative trauma injury, WCAB denied removal under Lab C Sec 5310 and 8 CCR Sec 10843, because applicant did not show substantial prejudice or irreparable harm if removal was not granted

Petitions for Reconsideration--Waiver--WCAB held that applicant waived issue of whether defendant gave Reynolds notices (Reynolds v. Workers' Compensation Appeals Board) related to statute of limitations defense, when WCAB found that applicant claimed specific injury AOE/COE on 2/18/99 to both knees and legs from work as project manager, that this injury was barred by statute of limitations because applicant did not file claim within one year of last medical treatment paid for by defendant for this injury, and that applicant did not raise Reynolds notice issue at time of MSC (in pre-trial conference statements, as required by Lab C Sec 5502(e)(3)) or at time of trial and raised issue for first time in petition for reconsideration of WCJ's F&O

Walgreens Corporation v. W.C.A.B. (Palinska) (1st--A128934) 75 Cal. Comp. Cases

Temporary Disability--WCAB awarded applicant TD indemnity from 6/28/2006 to 12/13/2006, when WCAB found that applicant clerk sustained specific injury AOE/COE on 2/19/2003 to her left shoulder and cumulative trauma injury AOE/COE on 8/31/2004, also to left shoulder, and that both of these injuries caused need for TD from 6/28/2006 to 12/13/2006 because applicant's treating physicians released her to return to modified duties in this period and defendant did not establish that applicant worked at modified duties or that it offered her work with modified duties during this period, and applicant's retirement in 8/2005 occurred because defendant could not accommodate her need for modified duty

Warner Bros. v. W.C.A.B. (Weatherwax) (2nd--B225602) 75 Cal. Comp. Cases 1467

Statute of Limitations--WCAB held that applicant's claim of cumulative trauma injury AOE/COE was not barred by one-year statute of limitations of Lab C Sec 5405, when WCAB found that applicant movie studio grip claimed cumulative trauma injury AOE/COE from 1/16/2005 to 1/26/2006 to low back, right shoulder, left knee, left ankle, and psyche, that earliest date applicant knew that he had possible workers' compensation claim was when he consulted attorney in late 2006 after learning he could not return to work as grip, and that filing application for adjudication of claim in late 1/2007, served by mail on defendant on 1/30/2007, was timely filing

Medical-Legal Procedures--Objections to Medical Determination--Self-Procured Treatment--WCAB awarded applicant TD benefits from 1/11/2006 through 7/15/2007, which included period of recovery from 3/2006 self-procured back surgery, and held that Lab C Sec 4062(b) procedures did not apply to period of recovery from self-procured back surgery because at time applicant self-procured surgery he did not know he could file cumulative trauma claim, that after he filed claim defendant denied claim and did not pay any benefits, and that AME found that applicant's past treatment, including back surgery, was excellent

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