04 Jan 2022

California Compensation Cases December 2021

CALIFORNIA COMPENSATION CASES

Vol. 86, No. 12 December 2021

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

LexisNexis Online Subscribers: You can link to your account on Lexis Advance to read the complete headnotes and court decisions, en banc decisions, writ denied summaries, and panel decisions.

Appellate Court Case Not Originating With Appeals Board

Oakes v. Progressive Transportation Services, Inc., Lexis Advance

Third-Party Actions—Settlements—Attorney’s Fees and Litigation Expenses—Court of Appeal, affirming trial court’s judgment in favor of defendants in third-party action arising from injuries plaintiff suffered in industrially-related automobile accident, held that (1) defendants made valid settlement offer under Code of Civil Procedure § 998, subjecting plaintiff to statutory penalty because he recovered less at trial than amount offered by defendants, (2) plaintiff’s rejection of settlement offer did not preclude plaintiff from recovering his reasonable litigation expenses and attorney’s fees from final judgment entered in his favor...

Digests of WCAB Decisions Denied Judicial Review

Carpet Land Mills/Vartan Avedisszadehn v. W.C.A.B. (Manzur, Christian), Lexis Advance

Death Benefits—Dependency—WCAB, rescinding WCJ’s finding of partial dependency, held that decedent’s 24-year-old son, applicant herein, was totally dependent on decedent for support on 7/22/2011, date of decedent’s fatal injury, and WCAB issued new award of total dependency death benefits in amount of $250,000.00 consistent with Labor Code § 4702(a)(3), when applicant testified that at time of his father’s death he was not employed or in school and received as his sole income approximately $840.00 per month from his father to cover monthly living expenses, and WCAB determined that WCJ erred...

City and County of San Francisco v. W.C.A.B. (Pacatte, Steven), Lexis Advance

Injury AOE/COE—Going and Coming Rule—Required Vehicle Exception—WCAB affirmed WCJ’s finding that applicants’ claim for death benefits arising from fatal injuries suffered by decedent who, while employed as firefighter on 12/12/2018, was involved in automobile accident while commuting from his home to fire station, was not barred by “going and coming rule” based on applicability of “required vehicle” exception to rule as described…

Illinois Midwest Insurance Agency, LLC v. W.C.A.B. (Casarotti, Danielle), Lexis Advance

Medical Treatment—Utilization Review—Treatment Recommendations—WCAB affirmed WCJ’s finding that applicant who suffered injury to multiple body parts, including her head/brain, while working as bartender on 1/28/2012 was entitled to medical treatment in forms of home assistance services for eight hours per day, seven days per week, transportation to and from medical appointments, and monthly injections of medication Aimovig 140 mg for three months, as recommended by her treating physician based on applicant’s cognitive deficits and migraine headaches, without application of Patterson v. The Oaks Farm (2014) 79 Cal. Comp. Cases 910 (Appeals Board significant panel decision), when WCAB found that...

Other WCAB Decision Denied Judicial Review

Commercial Cleaning Systems v. W.C.A.B. (Tejada Cruz, Samuel Enrique), Lexis Advance

Petition to Reopen—Good Cause—WCAB, granting reconsideration, affirmed WCJ’s order reopening applicant’s claims for industrial injuries incurred during his employment as maintenance worker on 2/21/2018, 9/4/2018, and during period 8/1/2016 through 9/4/2018, after claims were dismissed for applicant’s failure to appear at scheduled trial, when WCAB reasoned that applicant...

Appeals Board Panel Decisions

CAUTION: These WCAB panel decisions have not been designated a “significant panel decision” by the Workers’ Compensation Appeals Board. Practitioners should proceed with caution when citing to these board panel decisions and should also verify the subsequent history of the decisions. WCAB panel decisions are citeable authority, particularly on issues of contemporaneous administrative construction of statutory language. However, WCAB panel decisions are not binding precedent, as are en banc decisions, on all other Appeals Board panels and workers’ compensation judges. While WCAB panel decisions are not binding, the WCAB will consider these decisions to the extent that it finds their reasoning persuasive.

Acosta (Mario) v. ACME Corporation, Lexis Advance

Subsequent Injuries Benefits Trust Fund—Eligibility Requirements—WCAB, granting reconsideration, rescinded WCJ’s decision finding that applicant who suffered industrial left shoulder injury on 9/7/2006 met burden of proof as to all elements of Subsequent Injuries Benefits Trust Fund (SIBTF) eligibility under Labor Code § 4751, including establishment of prior labor disability, and deferred issue of applicant’s SIBTF entitlement, when WCAB…

Bonnevie (Victor) v. Fox Studio Lot, Lexis Advance

Medical-Legal Procedure—Stipulation to Use Agreed Medical Examiner—WCAB, denying removal in split panel opinion, affirmed WCJ’s finding that applicant was not permitted to unilaterally withdraw from his agreement to utilize orthopedic agreed medical examiner (AME) Kenneth Sabbag, M.D., to evaluate his claims for orthopedic injuries incurred on 1/13/2020 and during period 1/13/2019 through 1/13/2020, when WCAB panel majority found that...

Flores (Paola) v. Westside Accurate Courier Services, Lexis Advance

Temporary Disability—Undocumented Workers—WCAB affirmed WCJ’s finding that applicant, while employed by defendant as driver prior to resigning from her employment, suffered industrial injury to her neck as result of motor vehicle accident on 8/23/2018 but was not entitled to temporary disability indemnity after defendant learned that applicant could not legally be employed because she was undocumented, when WCAB reasoned that although…

Laudonio (Carol) v. County of San Bernardino, Lexis Advance

Petitions to Reopen—New and Further Disability Claims—Time to File Claim—WCAB, in split panel opinion, affirmed WCJ’s decision that applicant suffered new and further disability to her psyche as compensable consequence of her original industrial orthopedic injury while employed as child support officer during period 9/11/2007 through 9/11/2008, but did not suffer new and further disability to her wrists, elbows, shoulders, or neck, and WCAB found that applicant’s Petition to Reopen was timely filed within five-year period in Labor Code § 5410, when applicant filed Petition on 8/28/2013 alleging new and further disability to her wrists, elbows, shoulders, and neck, and WCAB reasoned that applicant’s...

Villegas Payan (Jerry) v. West Coast Auto Sales, Lexis Advance

COVID-19 Pandemic—Discovery—WCAB, granting removal, rescinded WCJ’s 7/22/2021 Order closing discovery and setting matter for trial on 8/23/2021, and returned matter to trial level for further proceedings, when applicant, on behalf of decedent who contracted COVID-19 while employed as auto salesman on 7/12/2020 and subsequently died as result of virus, requested that discovery remain open to allow reasonable time to complete discovery on issues related to transmission of COVID-19 and potential workplace outbreaks, and WCAB reasoned that if decedent contracted COVID-19 during “outbreak”…