California Compensation Cases July 2020

CALIFORNIA COMPENSATION CASES

Vol. 85 No. 7 July 2020

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

In re Howard (Daniel); Howard v. Hartford Accident and Indemnity Co., Lexis Advance.

Civil Actions—Probate Court Jurisdiction—Dismissal With Prejudice—Attorney Fees—Court of Appeal, affirming probate court’s order, held that probate court lacked jurisdiction over conservatee’s motion to assess attorney fees against respondent, when Court of Appeal found that applicant/conservatee…

Mora (Roman) v. Cem, Lexis Advance.

Injury AOE/COE—Exclusive Remedy Rule—Privette Doctrine—Court of Appeal, reversing trial court’s judgment of dismissal in defendant’s favor, held that workers’ compensation exclusive remedy rule did not bar plaintiff’s claims against general contractor, that, at pleading stage, doctrine of Privette v. Superior Court (1993) 5 Cal. 4th 689, 21 Cal. Rptr. 2d 72, 854 P.2d 721, 58 Cal. Comp. Cases 420, did not bar plaintiff’s claims, that plaintiff alleged facts sufficient to state cause of action for negligent undertaking, and that plaintiff alleged facts sufficient to state cause of action for premises liability, when Court of Appeal found that plaintiff was…

People, The v. Smiley (John); People, The v. Biasi-Smiley, Lexis Advance.

Attempted Perjury—Presenting False Claim—Court of Appeal, affirming judgments of trial court, held that there was sufficient evidence to sustain defendants’ (husband and wife) attempted perjury convictions, and that there was sufficient evidence to support wife’s conviction for presenting false claim to state board, when Court of Appeal…

Appeals Board En Banc Decisions

In re: COVID-19 State of Emergency En Banc—No. 4, Lexis Advance.

State of Emergency—COVID-19—Rescission of Suspension of Rules by WCAB—Appeals Board en banc rescinded its March 18, 2020, suspension of WCAB Rules 10961(a),10962(c), 10990(f)(3)(E), and 10995(c)(3), pursuant to which suspensions WCJs and arbitrators had been provided with unlimited extension of time within which to issue reports in response to petitions for reconsideration, removal, or disqualification, with rescission of suspension of rules to occur on September 1, 2020, making them effective again with respect to petitions filed on or after September 1, 2020, with Appeals Board en banc noting that its March 18, 2020, suspension of other rules remains in effect until further notice.

Todd (Richard) v. Subsequent Injuries Benefits Trust Fund, Lexis Advance.

Subsequent Injuries Benefits Trust Fund—Calculating Benefits—Appeals Board en banc, affirming WCJ’s Findings and Award, held that proper method of determining liability against SIBTF is to award applicant total amount of combined permanent disability compensation less amount due to applicant from subsequent injury and less credits allowed under Labor Code § 4753, when Appeals Board en banc found that applicant had prior awards…

Digests of WCAB Decisions Denied Judicial Review

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

ACE American Insurance Co. v. W.C.A.B. (Botto, Steve), Lexis Advance.

Stipulations—Enforcement—WCAB, affirming WCJ’s decision, held that WCJ did not err in determining that applicant suffered single cumulative injury to his shoulders and to his cervical, thoracic, and lumbar spines while employed by defendant from 1/1/92 through 8/13/2015, rather than multiple periods of cumulative trauma from the inception of his employment as a garbage collector in 1977, as asserted by defendant, when defendant stipulated at trial…

Permanent Disability—Rebuttal of Scheduled Rating—Combining Multiple Disabilities—WCAB affirmed WCJ’s award of 87 percent permanent disability for applicant’s cumulative injury to his shoulders and his cervical, thoracic, and lumbar spines during period 1/1/92 through 8/13/ 2015 while employed as garbage collector for defendant, when qualified medical evaluator, applying analysis in Almaraz…

Permanent Disability—Apportionment—WCAB affirmed WCJ’s finding that there was no basis to apportion applicant’s award of 87 permanent disability for industrial injury to his shoulders and to his cervical, thoracic, and lumbar spines during period 1/1/92 through 8/13/2015, notwithstanding qualified medical evaluator’s initial attempt to apportion permanent disability between different cumulative trauma periods as proposed by defendant, when qualified medical evaluator ultimately concluded…

Brawley Union High School District v. W.C.A.B. (Sosa, Imelda), Lexis Advance.

Cumulative Injury—Date of Injury—WCAB affirmed WCJ’s finding that applicant suffered cumulative injury to her left shoulder while working as administrative secretary for defendant school district during period 4/8/97 through 12/10/2012, and that her date of injury under Labor Code § 5412 was 6/13/2011 for purposes of determining liability under Labor Code § 5500.5, based on concurrence of applicant’s disability and knowledge that disability was work-related, when WCAB found that applicant…

City of Salinas v. W.C.A.B. (John, Thomas, Dec’d, John, Patricia), Lexis Advance.

Death Claims—Industrial Causation of Death—Medical Evidence—WCAB, affirming WCJ’s decision, held that decedent’s death was compensable, when WCAB found that reports of agreed medical examiner constituted substantial evidence to support WCJ’s finding of link between decedent’s death and his industrially-related esophageal cancer incurred during his employment as firefighter through 5/1/99, when agreed medical examiner concluded…

City of Victorville v. W.C.A.B. (Cruz, Jose), Lexis Advance.

Presumption of Industrial Causation—Cancer—Firefighters—Rebuttal—WCAB affirmed WCJ’s finding that applicant suffered industrial injury in form of testicular cancer while employed as firefighter by defendant City of Victorville from 9/23/2003 through 7/4/2008 and by defendant County of San Bernardino from 7/5/2008 to present, when WCAB found that applicant met burden of establishing applicability of Labor Code § 3212.1 presumption…

Cumulative Injury—Date of Injury—Period of Liability—WCAB, affirming WCJ’s decision, found that request of City of Victorville (applicant’s employer from 9/23/2003 through 7/4/2008) to be dismissed as party defendant pursuant to Labor Code §§ 5412 and 5500.5(a) was premature...

Davis (Jeffrey) v. W.C.A.B., Lexis Advance.

Permanent Disability—Rating—Rebuttal of Scheduled Rating—Vocational Expert Evidence—WCAB affirmed WCJ’s finding that applicant suffered 74 percent permanent disability as result of admitted injury to his hips, shoulders, back, psyche, knees, wrists, and hands on 1/30/ 2009, and cumulatively over period ending on 2/2/2009, and WCAB rejected applicant’s assertion…

Green Valley Farm Supply, Inc. v. WC.A.B. (Rivera, Elias), Lexis Advance.

Temporary Disability Indemnity Payments—Employer’s Failure to Offer Suitable Modified Work—WCAB affirmed WCJ’s finding that applicant, who suffered industrial injury to his right shoulder and neck and alleged injury to his head, back, and right arm while working for defendant as commercial truck driver on 3/28/2019, was entitled to temporary total disability indemnity...

Hartford Underwriters Insurance Co. v. W.C.A.B. (Reafsnyder, Greta), Lexis Advance.

Statute of Limitations—Date of Injury—WCAB affirmed WCJ’s finding that California Insurance Guarantee Association (CIGA) timely filed Application for Adjudication of Claim on 12/30/2008 alleging that applicant suffered cumulative injury to multiple body parts while working for defendant from 7/99 to 7/24/2003, thereby allowing CIGA to pursue reimbursement from Hartford Underwriters Insurance Co. as “other insurance” pursuant to Insurance Code § 1063.1(c)(9), when WCAB found that applicant’s...

California Insurance Guarantee Association—Reimbursement From Other Insurance—Equitable Estoppel—WCAB found that California Insurance Guarantee Association (CIGA) was not equitably estopped to assert cumulative trauma claim against Hartford Underwriters Insurance Co. (Hartford) as “other insurance” having liability for applicant’s cumulative injury, when WCAB found that...

Permanent Disability—Apportionment—Medical Evidence—WCAB affirmed WCJ’s finding that applicant’s permanent disability from injuries to multiple body parts was apportionable 70 percent to 7/6/99 specific injury and 30 percent to cumulative injury during period 7/99 to 7/24/ 2003 based on reporting of agreed medical examiner, when WCAB found that agreed medical examiner’s...

Person (Demond) v. W.C.A.B., Lexis Advance.

Permanent Disability—Apportionment—Aggravation of Pre-existing Conditions—WCAB affirmed WCJ’s decision that applicant correctional officer suffered four percent permanent disability as result of 7/16/2017 industrial injury to his left knee, right hip, and abdomen, and that apportionment of applicant’s permanent disability under Labor Code § 4663 and Benson v. W.C.A.B. (2009) 170 Cal. App. 4th 1535, 89 Cal. Rptr. 3d 166, 74 Cal. Comp. Cases 113, was justified…

Southern Insurance Co. v. W.C.A.B. (Hindawi, Abdel, Dec’d), Lexis Advance.

Injury AOE/COE—Intoxication—WCAB affirmed WCJ’s finding that applicant’s claim for injuries incurred on 3/30/2010 when he lost control of motorcycle he was moving into garage while employed as salesperson by defendant car dealership was not barred by intoxication defense…

Other WCAB Decisions Denied Judicial Review

Botello (Roberto) v. W.C.A.B., Lexis Advance.

Petitions for Writ of Review—Untimely Petitions—Court of Appeal denied applicant’s Petition for Writ of Review filed one day late as untimely pursuant to…

WCAB’s Duty to Develop Record—Insufficient Medical Evidence—WCAB, denying removal, affirmed WCJ’s order that parties further develop medical record on issue of apportionment of applicant’s permanent disability, when WCAB found that medical reports in existing record addressing apportionment were…

California Department of Transportation v. W.C.A.B. (Leong, Raymond), Lexis Advance.

Psychiatric Injury—Burden of Proof—Aggravation of Pre-existing Psychiatric Condition—WCAB affirmed WCJ’s finding that applicant, while working as transportation engineer on 9/21/2016, suffered compensable psychiatric injury resulting from verbal altercation at his workplace, when panel qualified medical evaluator opined…

Chaboki-Masoudi (Soussan) v. W.C.A.B., Lexis Advance.

Discovery—Closure—WCAB denied applicant’s petition for removal and affirmed WCJ’s order limiting further discovery to cross-examination of applicant’s primary treating physician but disallowing additional discovery as requested by applicant based on her belief that medical reports obtained by parties were inaccurate, when WCAB found that removal was not justified…

Christofferson Transportation v. W.C.A.B. (Okuniewicz, Richard), Lexis Advance.

Petitions for Writ of Review—Premature Petitions—Court of Appeal dismissed defendant’s petition for writ of review as premature…

Vocational Expert Evaluations—Video Evaluations—Due Process—WCAB, denying removal in split panel decision, affirmed WCJ’s order denying defendant’s motion to compel applicant’s in-person attendance at vocational evaluation, notwithstanding that applicant traveled from his residence in Alabama to California to obtain his own face-to-face vocational evaluation, when applicant asserted (and WCJ agreed)…

Dean (Debra) v. W.C.A.B., Lexis Advance.

Petitions for Writ of Review—Untimely Petitions—Court of Appeal dismissed applicant’s petition for writ of review as untimely under Labor Code § 5950 because it was…

Permanent Disability—Rating—Medical Evidence—WCAB affirmed WCJ’s finding that reports of panel qualified medical evaluator were substantial evidence...

Marroquin (Rolando) v. W.C.A.B., Lexis Advance.

Compromise and Release Agreements—Setting Aside—WCAB affirmed WCJ’s finding that there was no good cause pursuant to Labor Code § 5803 to set aside four compromise and release agreements executed in 2015 settling applicant’s claims for alleged specific injuries…

Martello v. W.C.A.B. (Faulkner, Ronald), Lexis Advance.

Liens—Medical Treatment—Maximum Fees Established By Official Medical Fee Schedule—WCAB affirmed WCJ’s order denying lien claimant’s lien for medical treatment rendered to applicant who suffered industrial injury after being bitten by cat while working for veterinary clinic…

Mumm (Robert) v. W.C.A.B., Lexis Advance.

Medical Treatment—Utilization Review—WCAB’s Jurisdiction Over Medical Treatment Disputes—WCAB affirmed WCJ’s finding that, pursuant to holding in Dubon v. World Restoration, Inc. (2014) 79 Cal. Comp. Cases 1298 (Appeals Board en banc opinion) (Dubon II), WCAB lacked jurisdiction over medical treatment dispute regarding applicant’s entitlement…

Shank (Douglas, Dec’d), Shank (Elizabeth, Widow) v. W.C.A.B., Lexis Advance.

Evidence—WCAB’s Duty to Develop Medical Record—WCAB affirmed WCJ’s decision ordering further development of medical record regarding decedent’s cause of death and applicability of Labor Code § 3212 heart presumption, when decedent, who had worked as fire apparatus engineer from 8/1/2008 to 3/31/2017, died...