California Compensation Cases April 2023

CALIFORNIA COMPENSATION CASES

Vol. 88, No. 4 April 2023

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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Appellate Court Cases Not Originating with Appeals Board

California Capital Insurance Company v. Employers Compensation Insurance Company,  Lexis

Third Party Actions—General Liability Insurance Policies—Equitable Contribution—Court of Appeal, reversing trial court’s judgment, held that defendant restaurant’s commercial general liability insurer was not entitled to equitable contribution from defendant’s workers’ compensation/employers’ liability insurer for defense and settlement of negligence claim brought by plaintiff who suffered traumatic brain injury in motor vehicle accident while driving with intoxicated co-worker after he was off-shift from his job with defendant, when Court of Appeal found that equitable contribution...

Castellanos v. State of California,  Lexis

App-Based Gig Workers—Proposition 22—Constitutionality and Enforceability—Court of Appeal, in split opinion, reversed trial court’s holding that Proposition 22 (Bus. & Prof. Code §§ 7448 et seq.) (Prop 22) is unconstitutional and unenforceable in its entirety based on violation of Legislature’s plenary authority to enact workers’ compensation laws conferred by Cal. Const., art. XIV, § 4 and on single-subject rule in Cal. Const., art. II, § 8(d), and Court of Appeal found instead that only certain provisions...

Lin (Suchin) v. Kaiser Foundation Hospitals,  Lexis

Fair Employment and Housing Act—Disability Discrimination—Court of Appeal, reversing trial court’s grant of summary judgment in favor of plaintiff’s former employer (defendant), held that there were triable issues of fact related to plaintiff’s claims involving disability discrimination under Fair Employment and Housing Act (FEHA) (Government Code § 12940 et seq.), which prohibits employer from discharging or otherwise discriminating against employee based on employee’s disability, when Court of Appeal found that although defendant tentatively planned to terminate plaintiff before she became disabled as part of its workforce reduction layoff plan, there was evidence that final decision…

Federal Circuit Court Opinion of Related Interest

Olson v. State of California,  Lexis

Employment Classification—Constitutionality of AB 5—Gig Workers—U.S. Court of Appeals, Ninth Circuit, remanded district court’s order denying motion for preliminary injunction filed by plaintiffs in action to enjoin defendants State of California and California Attorney General from enforcing AB 5 (codifying “ABC test” adopted in Dynamex Operations West, Inc. v. Superior Court (2018) 4 Cal. 5th 903, 416 P.3d 1, 232 Cal. Rptr. 3d 1, 83 Cal. Comp. Cases 817, to categorize workers as employees or independent contractors for purposes of California wage orders), as amended by AB 170 and AB 2257, on constitutional grounds, when Court of Appeals found that district court erred by dismissing plaintiffs’ claims that AB 5 and its amendments violate...

Federal District Court Opinion of Related Interest

Lawson v. Grubhub, Inc.,  Lexis

App-Based Drivers—Application of ABC Test—Minimum Wage and Overtime Claims—District Court for Northern District of California, on remand from Ninth Circuit for determination of food delivery driver’s (driver) status as employee or independent contractor with respect to minimum wage and overtime claims, held that (1) app-based food delivery service Grubhub, Inc. (Grubhub), did not qualify for Labor Code § 2776(a) business-to-business exemption from application of ABC test to driver’s minimum wage and overtime claims, because Grubhub did not show that driver advertised or held himself out to public as provider of food delivery services, nor that he actually negotiated his own rates or had ability to do so, and, therefore, Grubhub did not establish...

Appeals Board En Banc Decision

In re: COVID-19 State of Emergency En Banc—No. 9,  Lexis

COVID-19 State of Emergency No. 9—Reinstatement of Rules—In response to Governor Newsom’s March 4, 2020 declaration of state of emergency due to COVID-19, WCAB ordered temporary suspension of W.C.A.B. Rule 10500(b)(6) (Misc. No. 260), regarding witness signatures, W.C.A.B. Rule 10940(b) (Misc. No. 261), regarding electronic filing of documents with WCAB, and W.C.A.B. Rule 10789(c) (Misc. No. 266), regarding walk-through assignment hours, but WCAB rescinded all remaining provisions of en banc order Nos. 260, 261 and 266, effective 3/22/2023, after Governor Newsom terminated state of emergency.

Digests of WCAB Decisions Denied Judicial Review

Fox Sports 1, LLC v. W.C.A.B. (Rieger, Jack),  Lexis

Injury AOE/COE—Self-Inflicted Injury Exemption—WCAB, after granting reconsideration, affirmed WCJ’s finding that applicant, while employed as production assistant, sustained compensable catastrophic injury in fall from fifth-floor stairwell at his place of employment on 10/2/2018, and that defendant did not provide sufficient evidence to demonstrate that applicant’s fall was barred by self-harm exemption in Labor Code § 3600(a)(5), when WCAB reasoned that exclusion for self-inflicted injury required proof not only that injury was self-inflicted, but also that...

Injury AOE/COE—Departure From Duties—WCAB, after granting reconsideration, held that defendant failed to demonstrate that applicant engaged in outright departure from his employment duties, thereby rendering his 10/2/2018 injury non-compensable, where evidence was uncontested that applicant was injured while using stairwell at his place of employment during work hours, there was no suggestion he was not permitted to use stairwell, security camera footage showed applicant clearly reporting for work on morning of injury, and witnesses confirmed that applicant...

Smith, III (Paul) v. W.C.A.B.,  Lexis

Petitions for Reconsideration—Grant and Hold Orders—Time for WCAB to Issue Final Decision—Court of Appeal denied applicant’s Petition for Writ of Review seeking to vacate WCAB’s grant and hold order, when WCAB issued order on its own motion more than 60 days after WCJ issued decision regarding applicant’s claim for cumulative injuries he sustained while playing professional football, and less than one week after WCAB had issued Opinion and Decision After Reconsideration, and applicant asserted that WCAB lacked jurisdiction to grant reconsideration on its own motion after mandatory 60-day time period in Labor Code § 5900 had expired and sought to have WCAB’s order vacated on that basis.

Other WCAB Decisions Denied Judicial Review

Allison (Carol) v. W.C.A.B.,  Lexis

Petitions for Writ of Mandate—Moot Petitions—Court of Appeal dismissed applicant’s 11/15/2022 Petition for Writ of Mandate seeking to compel WCAB to appoint new special master or WCJ to conduct proceedings in applicant’s case, after previous special master retired and two and one-half years passed without any action by WCAB regarding new appointment, when WCAB issued Opinion and Decision After Removal on 11/21/2022 returning matter to trial level and referring matter to Presiding WCJ for appointment of special master, and WCAB’s action rendered applicant’s Petition moot.

County of Orange v. W.C.A.B. (Shull, Yvonne),  Lexis

Injury AOE/COE—Burden of Proof—Lien Claimants—WCAB, denying reconsideration, affirmed WCJ’s finding that lien claimant Anthem Blue Cross met its burden of proving by preponderance of evidence, based on opinions of panel qualified medical evaluator (PQME), that applicant sustained injury AOE/COE in form of multiple sclerosis (MS) while working as deputy sheriff/sergeant during period 1/24/86 through 3/20/2017, when applicant’s unrebutted testimony indicated she suffered extreme stress as result of her job duties, and PQME concluded that applicant’s job duties caused acceleration, aggravation or “lighting-up” of her preexisting MS.

Travelers Indemnity Company v. W.C.A.B. (Zeber, George),  Lexis

Petitions for Writ for Review—Annulment of WCAB’s Decision—Court of Appeal vacated WCAB’s 9/13/2022 order and remanded matter to WCAB for further proceedings, when WCAB requested that its decision be annulled because it agreed with defendant’s position that award of compensation by WCAB was improperly issued before insurance coverage issues were fully resolved.