California Compensation Cases May 2023

CALIFORNIA COMPENSATION CASES

Vol. 88, No. 5 May 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

People, The v. Ayala; People, The v. Ayala,  Lexis

Workers’ Compensation Insurance Fraud—Restitution Orders—Court of Appeal, affirming trial court’s judgment, held that trial court did not abuse its discretion in calculating restitution owed to various workers’ compensation insurance companies by defendants charged with workers’ compensation insurance fraud and tax fraud, based on amount of premiums lost by insurers due to defendants’ false payroll reporting, when Court of Appeal found that defendants’ pleas of no contest...

People, The v. Gaspar,  Lexis

Workers’ Compensation Insurance Fraud—Restitution Orders—Court of Appeal upheld defendant’s conviction under Insurance Code § 700(b) for conducting unlawful insurance transaction without license, when Court of Appeal found that substantial evidence supported jury’s finding that defendant, who owned and managed Professional Employer Organization (PEO), provided invalid workers’ compensation insurance coverage declarations to multiple businesses which contracted with her PEO for payroll services, tax services, and obtaining workers’ compensation insurance, collected more than...

Sadeghi v. Hao Li,  Lexis

Exceptions to Workers’ Compensation Exclusivity Doctrine—Sufficiency of Pleadings—Sham Pleading Doctrine—Court of Appeal, reversing trial court’s judgment of dismissal, held that trial court erroneously applied sham pleading doctrine to dismiss plaintiff’s complaint alleging multiple tort causes of action against his employer Pinscreen’s cofounder and CEO, defendant Dr. Hao Li, who terminated plaintiff within his first working hour and then physically attacked him with help of co-workers, when Court of Appeal concluded that sham pleading doctrine, which precludes amendment of pleadings to alter or omit harmful facts or allegations inconsistent...

Workers’ Compensation Exclusivity Doctrine—Tort Claims Against Employer—WCAB, reversing trial court’s judgment of dismissal, held that trial court erred in sustaining demurrer to plaintiff’s causes of action for battery and intentional infliction of emotional distress against defendant Dr. Hao Li, his employer Pinscreen’s cofounder and CEO, who terminated plaintiff within his first working hour and then physically attacked plaintiff with help of coworkers, when Court of Appeal concluded that...

Sutton (Tony) v. Saputo Cheese USA, Inc.,  Lexis

Workers’ Compensation Exclusivity Doctrine—Dual Employers—Pleading Affirmative Defenses—Court of Appeal, affirming trial court’s summary judgment in favor of defendant Saputo Cheese USA, Inc. (Saputo) in plaintiff’s action for negligence and premises liability, held that trial court did not err in determining Saputo was statutorily barred based on workers’ compensation exclusivity doctrine from bringing tort action against Saputo, when record revealed that Select Staffing (plaintiff’s general employer) assigned plaintiff to work as temporary employee at Saputo (plaintiff’s special employer) pursuant to 2011 service agreement, thereby creating dual employment relationship, and plaintiff was working at Saputo as forklift operator when he suffered injury on 8/19/2017, and Court of Appeal reasoned that...

Digests of WCAB Decisions Denied Judicial Review

California Department of Forestry and Fire Protection v. W.C.A.B. (Russell, Russ),  Lexis

Average Weekly Wage—Earnings—Presumption of Maximum Earnings for Retired Firefighters—WCAB, after granting reconsideration, held that applicant who suffered industrially-related prostate cancer while employed as fire captain from 6/1/63 until his retirement in 6/2005 was entitled under Labor Code § 4453 to maximum permanent disability indemnity rate in effect on date of his injury in 2014, despite minimum post-retirement earnings at that time, when WCAB applied…

County of Sacramento v. W.C.A.B. (Munso, Nathan),  Lexis

Injury AOE/COE—Neutral Risk Doctrine—WCAB, denying reconsideration, affirmed WCJ’s finding that applicant sustained injury AOE/COE in form of stroke on 10/18/2017, when WCAB found that stroke occurred while applicant, employed as sergeant for Sacramento County Sheriff’s Department, was traveling on business and was commercial traveler at time stroke occurred and was therefore in course of his employment, that medical evidence indicated stroke resulted from carotid artery dissection likely caused by some unknown physical trauma occurring within 12 hours of stroke, but potentially more than 12 hours beforehand, that because applicant suffered amnesia...

Lazcano (Patricia) v. W.C.A.B.,  Lexis

Medical Provider Networks—Physician Pre-Designation—WCAB, granting reconsideration, rescinded WCJ’s finding that applicant who suffered admitted industrial injury while employed as administrative assistant on 1/5/2016 and on 8/20/2019 was entitled to receive medical treatment outside defendant’s medical provider network (MPN) based on defendant’s failure to properly notify Applicant of her right to predesignate physician pursuant to Labor Code § 4600(d) and 8 Cal. Code Reg. § 9780.1, and substituted new findings that applicant was not entitled to treat outside MPN at defendant’s expense...

Perry (Michael A.) v. W.C.A.B.,  Lexis

Workers’ Compensation Judges—Disqualification—WCAB, denying defendant’s petition to disqualify WCJ, found that defendant did not establish good cause for disqualification pursuant to Labor Code § 5311 and Code of Civil Procedure § 641, when WCAB reasoned that WCJ may be disqualified when, among other grounds, WCJ has formed unqualified opinion as to merits of action [Code of Civil Procedure § 641(f)] or demonstrated bias toward either party [Code of Civil Procedure § 641(g)], that under 8 Cal Code Reg. § 10960, petition for disqualification must be supported by affidavit or sworn declaration detailing facts establishing one or more grounds for disqualification, that WCJ’s expressions of opinion in discharge of his or her official duties...

Other WCAB Decisions Denied Judicial Review

McKenzie (Adamina) v. W.C.A.B., Lexis

Petitions for Writ for Review—Premature Petitions—Court of Appeal denied applicant’s Petition for Writ of Review without prejudice to refile should WCAB issue final order disposing of issues raised in petition on merits, when applicant’s Petition was premature under Labor Code §§ 5900 and 5901 given that no final order had yet been issued by WCAB.

Mikail (Mojgan) v. W.C.A.B.,  Lexis

Temporary Disability Indemnity—WCAB, denying reconsideration, affirmed WCJ’s award of temporary disability to applicant who suffered industrial injury while employed as school psychologist on 3/8/2011, when WCAB found that award was consistent with amounts due to applicant under Labor Code for full 104-week timeframe, and rejected applicant’s assertion that WCAB erred in failing to award full salary retroactively and other benefits, which applicant did not establish she was entitled to.

San Mateo County Transit District v. W.C.A.B. (Grant, Gayle),  Lexis

Temporary Disability—Post-Retirement Earning Capacity—WCAB, after granting reconsideration, affirmed decision in which WCJ found that applicant retired from her employment as bus driver due to 11/9/2018 industrial left knee injury, and that she was entitled to temporary disability benefits for post-retirement period of temporary disability, when applicant credibly testified that she retired because she was unable to perform duties of her job as bus driver due to her left knee injury, that she cannot return to workforce in any capacity until she undergoes left knee surgery prescribed by her treating physician, which defendant has denied...