California Workers' Compensation Case Roundup (7/9/2011)

California Workers' Compensation Case Roundup (7/9/2011)

CALIFORNIA COMPENSATION CASES

Vol. 76 No. 6 June 2011

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

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Lexis.com subscribers can link to the cases below to read the complete headnotes, court decisions and writ denied summaries.

Appellate Court Compensation Case

Nittel (Adam) v. W.C.A.B., 76 Cal. Comp. Cases 545

Permanent Disability—1997 Schedule for Rating Permanent Disabilities—Court of Appeal, annulling decision of W.C.A.B. and remanding case to award applicant compensation in accordance with decision of WCJ, held that defendant breached duty it owed applicant pursuant to Labor Code § 4061 to give notice of employer’s position regarding applicant’s entitlement to permanent disability at time last payment of temporary disability is made and 8 Cal. Code Reg. § 9814 when employer has provided salary or other payments in lieu of or in excess of temporary disability indemnity, thereby, pursuant to Labor Code § 4660(d), entitling applicant to workers’ compensation benefits based on 1997 Schedule for Rating Permanent Disabilities, when Court of Appeal found that applicant had …

Appellate Court Case Not Originating With Appeals Board

Cortez (Octoviano) v. Abich, 76 Cal. Comp. Cases 553

Employment Relationships—Residential Employees—After remand from Supreme Court, Court of Appeal reversed trial court's grant of summary judgment in favor of defendants/homeowners in plaintiff's tort action against defendants for negligence and premises liability and held that…

Digests of WCAB Decisions Denied Judicial Review

Editorial Board members Hon. David Hettick, Robert G. Heywood, Kenneth B. Peterson, and Robert G.Rassp recommended the following writ denied cases for summarization in this issue.

Cedars-Sinai Medical Center v. W.C.A.B. (Modlin, Adriana), 76 Cal. Comp. Cases 557  

Temporary Disability—Duration of Disability—WCAB, rescinding WCJ's finding that applicant/executive secretary, who suffered industrial injury to her back, right hand, and right upper extremity on 11/5/97, suffered second period of temporary disability from 1/1/2003 through 11/3/2005 after having become permanent and stationary on 2/14/2002, held that applicant suffered only single period of temporary disability from 11/6/97 through 11/3/2005, based on medical evidence, when WCAB found that …

Permanent Disability—Application of 1997 Schedule for Rating Permanent Disabilities—WCAB upheld WCJ's finding that, pursuant to Labor Code § 4660(d), 1997 Schedule for Rating Permanent Disabilities applied to rate permanent disability incurred by applicant/executive secretary as result of industrial injury to her back, right hand, and right upper extremity on 11/5/97, when WCAB found that…

Cortez (Roberto) v. W.C.A.B., 76 Cal. Comp. Cases 561

Attorney's Fees—Employer Contested Agreed Medical Examiner Evaluation—WCAB affirmed WCJ's finding that California Insurance Guarantee Association had sole liability for additional attorney's fees owed to attorney for applicant/deliveryman with specific and cumulative hernia and back injuries, attributed to cumulative trauma case filed by California Insurance Guarantee Association, and held that fees were…

Escamilla (Daniel) v. W.C.A.B. (Lee, Vonder Kaye), 76 Cal. Comp. Cases 567

Sanctions and Costs—Bad Faith/Frivolous Conduct—WCAB upheld WCJ's award of $2,500 in sanctions and $2,464.50 in costs against lien claimant and lien claimant's hearing representative pursuant to…

Irvine Eurocars, L.L.C. v. W.C.A.B. (Van Haastere, Marianne Ballin (aka Vanhaastere)), 76 Cal. Comp. Cases 571

Employment Relationships—Employees—WCAB, relying on Joe Kerley Lincoln Mercury, Inc. v. W.C.A.B. (Fieldhouse) (2003) 68 Cal. Comp. Cases 1217 (writ denied), concluded in split decision that substantial evidence supported WCJ's finding that applicant, who worked as nanny/house manager at personal residence of car dealership's president/owner when she suffered injuries to her neck, left upper extremity, face, and leg, was employee of …

LaRue (Frances E.) v. W.C.A.B., 76 Cal. Comp. Cases 574

Permanent Disability—Apportionment—Non-Industrial Factors—WCAB, with one dissent, affirmed its prior decision rescinding WCJ's finding that there was no basis for Labor Code § 4663 apportionment of total permanent disability incurred by applicant/legal secretary with back injury, in which it held that WCJ erred in …

Mart (William) v. W.C.A.B., 76 Cal. Comp. Cases 578

WCAB Jurisdiction—Five-Year Statute of Limitations—New and Further Temporary Disability—WCAB rescinded WCJ's finding that applicant/custodian with 9/13/96 injury to his right knee and 5/7/97 injuries to his low back, right shoulder, right knee, cervical spine, head, and urological system was entitled to temporary disability indemnity for period of temporary disability from 7/16/2006 to present, and held that WCJ lacked jurisdiction to …

Montebello Unified School Dist. v. W.C.A.B. (Gallardo, Margaret), 76 Cal. Comp. Cases 582

Medical-Legal Procedure—Medical Reports to Agreed Medical Evaluator—WCAB, granting removal, held that WCJ erred in ordering parties to schedule agreed medical evaluation with agreed medical evaluator on whom parties no longer agreed, because such order subjected both parties to significant prejudice, but found that under Rule 35 …

National Union Fire Ins. Co. v. W.C.A.B. (Nunez, Camillia Carmen (aka Camila Carmen Nunez)), 76 Cal. Comp. Cases 588

WCAB Jurisdiction—Five-Year Statute of Limitations—WCAB affirmed arbitrator's finding that WCJ was not deprived of jurisdiction under Labor Code § 5804 to issue decision awarding applicant 100-percent psychiatric permanent disability on basis that stipulated award was …

Contribution—WCAB affirmed arbitrator's finding that in contribution proceedings under Labor Code § 5500.5 by elected carrier who paid $9,223,010.44 in benefits to applicant with cumulative orthopedic and psychiatric injury, co-defendant against whom contribution was being sought was …

Medical Treatment—Home Health Care—Reimbursement Rates—WCAB affirmed arbitrator's finding in contribution proceeding regarding $9,223,010.44 in benefits paid to applicant with cumulative orthopedic and psychiatric injuries, holding that to determine cost of home health care provided to applicant …

Robbins (Steven) v. W.C.A.B., 76 Cal. Comp. Cases 593

Subsequent Injuries Benefits Trust Fund Liability—Pre-existing Disability—WCAB held that applicant did not meet qualifications to receive benefits from Subsequent Injuries Benefits Trust Fund as specified in Labor Code § 4751 and denied applicant's request for these benefits, when WCAB found that …

Securitas Security Services v. W.C.A.B. (Castro-Aguilar, Enrique (aka Enrique Aguilar)), 76 Cal. Comp. Cases 596

Injury AOE/COE—Affirmative Defenses—Initial Physical Aggressor—WCAB affirmed its prior decision rescinding WCJ's finding that applicant/security guard's claim for injuries to his shoulder, upper extremity, elbow, wrist, and psyche, incurred in attempt to prevent theft of defendant's property, was barred by initial physical aggressor defense of Labor Code § 3600(a)(7), and held that, under …

Travelers Indemnity Co. v. W.C.A.B. (Morales, Celestino), 76 Cal. Comp. Cases 601

California Insurance Guarantee Association—Other Insurance—Laches—WCAB rescinded arbitrator's order, based on laches, denying California Insurance Guarantee Association's petition for reimbursement from special employer's solvent carrier under Insurance Code § 1063.1(c)(9) for expenditures arising from applicant's industrial injury, and held that doctrine of laches did not apply to …

Yang (Bao-Fa) v. W.C.A.B., 76 Cal. Comp. Cases 607

Credit—Third-Party Recovery—Estoppel—WCAB held that WCJ erred in applying principle of estoppel to find that defendant could not assert credit under Labor Code § 3861 against applicant's third-party recovery for injuries, when WCAB found that …

Other WCAB Decisions Denied Judicial Review

ACE American Insurance Co. v. W.C.A.B. (Vieira, Antonio), 76 Cal. Comp. Cases 610

Temporary Disability—WCAB awarded applicant temporary total disability from 1/13/2010 through at least date of surgery (5/20/2010) for admitted 1/29/2001 low back injury AOE/COE, when WCAB found that …

Carlson (Clifford) v. W.C.A.B., 76 Cal. Comp. Cases 612

Permanent Disability—Delay in Payment of Award—WCAB held that defendant complied with previous permanent disability award (7/13/2004 stipulations with request for award) and that applicant did not …

Permanent Disability Awards—Credit for Advances—WCAB held that it properly calculated credit for defendant's payment of permanent disability advances, when stipulations with request for award provided for …

Evidence—Admissibility—WCAB excluded affidavit applicant presented after trial, when WCAB found that …

Fraud—WCAB found no substantiation for applicant's contention that …

Catholic Healthcare West v. W.C.A.B. (Castrillo, Cheryl), 76 Cal. Comp. Cases 614

Injury AOE/COE—WCAB held that applicant surgical scrub nurse sustained injury AOE/COE in 4/98 to her right hand, right wrist, right forearm, and psyche from incident in which her hand/wrist was caught between surgical cart and wall, when WCAB based …

Injury AOE/COE—WCAB held that applicant sustained cumulative trauma injury AOE/COE from 1/1/93 through 5/15/98 to neck, back, spine, both shoulders, and psyche, but not to liver, kidney, internal, both upper extremities (except shoulders), both lower extremities, head, or in form of Hepatitis C or headaches, based on …

County of San Bernardino v. W.C.A.B. (Patino, Linda Murillo), 76 Cal. Comp. Cases 616

Injury AOE/COE—WCAB held that applicant health service assistant sustained injury AOE/COE to her low back on 8/18/2008, based on opinions from two of applicant's treating physicians, which WCAB found were …

Medical Reports—Admissibility—WCAB admitted reports from two of applicant's treating physicians, when WCAB found that …

Travelers Indemnity Co. of Illinois v. W.C.A.B. (Lang, Bryna), 76 Cal. Comp. Cases 618

Injury AOE/COE—WCAB held that applicant sustained injury AOE/COE in form of pancreatitis, when WCAB found that parties had previously stipulated that …

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