25 Sep 2020

California Compensation Cases September 2020

CALIFORNIA COMPENSATION CASES

Vol. 85, No. 9 September 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

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, panel decisions and IMR decisions.

Supreme Court Case Not Originating With Appeals Board

Gund v. County of Trinity, Lexis Advance

Exclusive Remedy Rule—Employment Status—Persons Assisting Police Officers in Active Law Enforcement—California Supreme Court, in majority decision, affirmed Court of Appeal’s judgment upholding grant of summary judgment in favor of defendants, and held that plaintiffs, who were private citizens, were engaged in “active law enforcement” pursuant to Labor Code § 3366…

Appellate Court Cases Not Originating With Appeals Board

Mendoza-Hernandez (Misael) v. State Compensation Insurance Fund, Lexis Advance

Civil Liability of Workers’ Compensation Insurer—Nonpayment of Benefits—Court of Appeal, affirming trial court’s order sustaining State Compensation Insurance Fund’s (SCIF) demurrer, held that plaintiff, who was rendered permanently totally disabled by 2007 industrial injury, could not maintain separate civil action against SCIF for intentional infliction of emotional distress after SCIF refused to comply with stipulated order in workers’ compensation proceeding requiring SCIF to pay for plaintiff’s home health care services as recommended by physician, when Court of Appeal found that…

Santos (Marivel) v. Crenshaw Manufacturing, Inc., Lexis Advance

Exclusive Remedy Rule—Power Press Exception—Court of Appeal, reversing trial court’s grant of summary judgment in employer’s favor, concluded that triable issues of material fact existed as to whether employer violated Labor Code § 4558 by knowingly removing or failing to install point of operation guard on power press involved in applicant’s 1/12/2017 left hand injury, and was thereby subject to application of “power press” exception to exclusive remedy rule, when Court of Appeal reasoned that under Labor Code § 4558(c)…

Digests of WCAB Decisions Denied Judicial Review

County of Alameda v. W.C.A.B. (Williams, Horace), Lexis Advance

Permanent Disability—Rating—Rebuttal of Scheduled Rating— Vocational Expert Evidence—WCAB affirmed WCJ’s finding that, although applicant’s permanent disability from 8/4/2015 industrial head and brain injuries rated at 67 percent under AMA Guides, applicant was permanently totally disabled by injuries pursuant to principles in Ogilvie v. W.C.A.B.

County of Imperial v. W.C.A.B. (Martinez, Iran), Lexis Advance

Presumption of Industrial Causation—Cancer—Special Agents—WCAB affirmed WCJ’s finding that applicant who was diagnosed with pancreatic cancer in 2017 while working as probation officer, was eligible for Labor Code § 3212.1 cancer presumption and that defendant failed to rebut presumption, when WCAB determined, based on applicant’s exposures and on latency period of pancreatic cancer…

Delarosa (Richard) v. W.C.A.B., Lexis Advance

Injury AOE/COE—Substantial Medical Evidence—WCAB, amending WCJ’s decision, found that applicant sustained injury AOE/COE to his thoracic spine, psyche, heart in form of coronary artery disease, and injury in form of skin disfigurement, while working as correctional officer for defendant during period 3/20/87 through 9/7/2010, resulting in 64 percent permanent disability plus entitlement to 15 percent increase in permanent disability pursuant to Labor Code § 4658(d)(2), but that applicant did not sustain…

Parent (Richard) v. W.C.A.B., Lexis Advance

Permanent Disability Indemnity—Commencement of Payments—WCAB, amending WCJ’s decision, held that applicant who was awarded 96 percent permanent disability for 10/21/2013 and 10/23/2013 industrial injuries to his hands, wrists and knees, and was paid temporary disability indemnity during periods 10/21/2013 to 11/13/2013 and 3/30/2016 to 2/21/2018, was entitled to retroactive payment of permanent disability indemnity award commencing on 2/22/2018 pursuant to Labor Code § 4650(b) and Brower v. David Jones Construction (2014) 79 Cal. Comp. Cases 550 (Appeals Board en banc opinion), when WCAB reasoned that…

State Compensation Insurance Fund v. W.C.A.B. (Ayala, Michael, Case, Thomas, Vasquez, Tommy), Lexis Advance

Serious and Willful Misconduct of Employer—WCAB, rescinding WCJ’s decision in split panel opinion, held that injuries suffered by applicants correctional officers in 8/12/2002 premeditated attack on prison staff by inmates affiliated with “Crips” and “Bloods” prison gangs, were caused by defendant’s serious and willful misconduct, thereby entitling applicants to increased compensation, when WCAB panel majority concluded…

Other WCAB Decisions Denied Judicial Review

Abac (Eugenio) v. W.C.A.B., Lexis Advance

Average Weekly Wages—Calculation Based on Actual Earnings—WCAB affirmed WCJ’s finding that applicant’s earnings at time of his 9/20/2018 industrial injury were $535.33 per week and not, as asserted by applicant, $755.48 per week, which equaled highest single week of applicant’s earnings in year prior to his injury, when sole evidence submitted in this case addressing applicant’s earnings consisted of records reflecting his actual earnings, and WCAB concluded that using this evidence WCJ properly calculated…

American Apparel, LLC v. W.C.A.B. (Abarca, Lusino), Lexis Advance

Petitions for Writ of Review—Premature Petitions—No Reasonable Basis for Petition—Court of Appeal dismissed defendant’s Petition for Writ of Review as premature and remanded case to WCAB for purpose of awarding attorney’s fees pursuant to Labor Code § 5801, when WCAB had not yet issued final order or award in this case, and Court of Appeal found no reasonable basis for defendant’s petition challenging WCAB’s non-final order permitting applicant to treat outside defendant’s medical provider network (MPN) based on defendant’s denial of treatment within MPN.

Hoggs (Gina) v. W.C.A.B., Lexis Advance

Petitions for Writ for Review—Untimely Petitions—Court of Appeal denied pro per applicant’s untimely Petition for Writ of Review challenging WCAB’s finding that there was no good cause to set aside Compromise and Release agreement settling applicant’s claims for specific and cumulative injuries to her lumbar spine.

Ramirez (Ruben) v. W.C.A.B., Lexis Advance

Petitions for Reconsideration—Untimely Petitions—WCAB dismissed applicant’s Petition for Reconsideration as untimely, when Petition was not filed within 25 days of service of WCJ’s decision pursuant to Labor Code § 5903, and indicated that had Petition not been dismissed as untimely it would have been denied on its merits.

Injury AOE/COE—Subsequent Nonindustrial Injury—WCAB upheld WCJ’s finding that applicant did not suffer injury AOE/COE to his neck on 10/19/2015 as compensable consequence of 2/11/2010 admitted low back and psyche injuries, when applicant’s neck was injured in automobile accident on his way home from gym, and gym membership was unauthorized, self-procured medical treatment for which defendant was not liable.

20th Century Fox v. W.C.A.B. (Cortez, Oswaldo), Lexis Advance

Injury AOE/COE—Substantial Evidence—Credibility Determinations— WCAB affirmed WCJ’s determination that applicant suffered injury AOE/COE to his left elbow, knees, neck, and back while working as cook during period 2/15/98 to 11/11/2013, when WCAB determined that finding of industrial orthopedic injury was supported by reports and deposition testimony of orthopedic agreed medical examiner setting forth…

WM Bolthouse Farms v. W.C.A.B. (Galvan, Maria), Lexis Advance

Permanent Disability—Rating—Increased Impairment From Medical Treatment—WCAB affirmed WCJ’s finding that applicant suffered 75 percent permanent disability as result of cumulative injury to her cervical spine, thoracic spine, lumbar spine, shoulders, and upper and lower extremities, while employed as packer/sorter from 1/1/2013 to 7/1/2014, and concluded that WCJ did not err in relying…

Xiong (Jua) v. W.C.A.B., Lexis Advance

Temporary Disability—Offers of Regular, Modified, or Alternative Employment—Termination for Cause—WCAB affirmed WCJ’s finding that applicant who suffered industrial injury when he slipped and fell while working as store manager on 1/24/2017 was not entitled to temporary disability indemnity for period of alleged disability following his termination from employment for cause, when defense witness credibly testified that...

Independent Medical Review Decision

CM19-0119912, Lexis Advance

Home Health Care—House Cleaning Services—IMR reviewer upheld UR decision denying treating physician’s request for house cleaning services 8 hours per week for 3 months for 70-year old applicant following cervical fusion related to 5/25/2017 industrial injury. Although the MTUS chronic pain guidelines do not specifically address house cleaning services, the IMR reviewer noted that the 2017 MTUS treatment guidelines for home health care selectively recommend home health care on a short-term basis following hospitalization and major surgical procedures for those patients who are homebound without access to necessary assistance. In this case, the treating physician did not provide documentation indicating that applicant was homebound or had inadequate necessary assistance and, therefore, the IMR reviewer concluded that the guideline criteria to support house cleaning services were not met, and that the services were not medically necessary. [LexisNexis Commentary: The IMR reviewer in this case regarded house cleaning services as a form of home health care and denied the request for services based on the sole criterion that there was insufficient documentation that applicant was homebound. This IMR illustrates the importance that treating physicians provide sufficient documentation to justify the requested services.]