01 Nov 2014

California Workers' Comp Case Roundup (11/1/2014)

CALIFORNIA COMPENSATION CASES

Vol. 79 No. 10 October 2014

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.com or Lexis Advance to read the complete headnotes and court decisions, en banc decisions, and writ denied summaries.

Appellate Court Compensation Cases

Allen (Tina) v. W.C.A.B., lexis.com, Lexis Advance

Termination—Res Judicata—Discrimination—Court of Appeal, affirming WCAB decision, held that it lacked jurisdiction to decide issue of whether defendant’s termination of plaintiff’s employment constituted discrimination in violation of Labor Code § 132a since that issue had been finally determined in defendant’s favor by WCAB in plaintiff/applicant’s workers’ compensation proceeding and constituted res judicata because plaintiff had not appealed that determination via timely petition for writ of review, when Court of Appeal found…

San Francisco State University v. W.C.A.B. (Jones, Ellen), lexis.com, Lexis Advance

Attorney’s Fees—Applicant’s Entitlement—Court of Appeal, vacating WCAB’s opinion and order denying defendant’s petition for reconsideration, held that applicant was not entitled to payment of her attorney’s fees by defendant, when Court of Appeal found…

Appellate Court Cases Not Originating With Appeals Board

Kaabinejadian (Massoud) v. Miller, lexis.com, Lexis Advance

Anti-SLAPP Actions—Special Motions to Strike—Court of Appeal affirmed trial court’s grant of defendant’s special motion to strike plaintiff’s complaint under Code of Civil Procedure § 425.16(e)(2), when Court of Appeal found…

McCarty v. Department of Transportation/State of California, lexis.com, Lexis Advance

Third Party Actions—Hirer’s Liability for Injuries to Contractor’s Employees—Retained Control—Court of Appeal held that there was sufficient evidence to support jury verdict in plaintiff’s favor, which found that defendant Caltrans was 37.5 percent negligent in its exercise of retained control over work of general contractor, who was plaintiff’s employer at time plaintiff was injured, and reinstated jury verdict after trial court granted Caltrans’ motion for judgment notwithstanding verdict, when Court of Appeal found…

Switzer (Terri) v. California Department of Corrections and Rehabilitation, lexis.com, Lexis Advance

Civil Actions Against Employers—Fair Employment and Housing Act— Failure to Accommodate and Failure to Engage in Interactive Process—Court of Appeal affirmed trial court’s holdings that defendant employer violated Fair Employment and Housing Act by failing to accommodate plaintiff/applicant’s psychiatric disability (Government Code § 12940(m)) and by failing to engage in interactive process to accommodate her disability (Government Code § 12940(n)), when Court of Appeal found…

Appeals Board En Banc Decision

Dubon (Jose) v. World Restoration, Inc., lexis.com, Lexis Advance

Utilization Review—Independent Medical Review—WCAB en banc, rescinding prior en banc decision, Dubon v. World Restoration, Inc. (2014) 79 Cal. Comp. Cases 313 (Appeals Board en banc opinion), denying applicant’s present petition for reconsideration, and affirming WCJ’s Findings and Order, which determined that medical necessity of applicant’s requested back surgery must be determined by independent medical review, notwithstanding any procedural defects in defendant’s timely utilization review decision, held that utilization review decision is invalid and not subject to independent medical review only if it is untimely, that legal issues regarding timeliness of utilization review decision must be resolved by WCAB, not independent medical review, that all other disputes regarding utilization review decision must be resolved by…

Digests of WCAB Decisions Denied Judicial Review

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

Alameda County Fire Department v. W.C.A.B. (Franks, Hollis, Dec’d, Franks, Eric, Son), lexis.com, Lexis Advance

Death Benefits—Conclusive Presumption of Total Dependency—Adult Children—WCAB affirmed WCJ’s finding that deceased firefighter’s adult son was eligible for lifetime death benefits pursuant to Labor Code § 4703.5 in connection with decedent’s 6/23/2012 cancer-related death, and that, contrary to defendant’s contention, pre-2014 Labor Code § 4703.5 did not exclude adult dependents from recovering lifetime benefits, when WCAB found…

ATC/VANCOM, Inc. v. W.C.A.B. (Navarro, Margarita), lexis.com, Lexis Advance

Psychiatric Injury—Burden of Proof—WCAB, affirming WCJ in split panel decision, held that report of applicant reservation agent’s qualified medical evaluator in psychiatry, Dr. Allan Kipperman, constituted substantial evidence to support finding that applicant suffered compensable psychiatric injury as consequence of cumulative industrial injury to her hands, elbows, neck, and shoulders, when WCAB…

Permanent Disability—Apportionment—Substantial Evidence—WCAB, in split panel decision, affirming WCJ’s finding that applicant reservation agent incurred 85 percent permanent disability as result of cumulative industrial injury to her hands, elbows, shoulders, neck, and psyche, held that, while opinion of applicant’s qualified medical evaluator in psychiatry, Dr. Allan Kipperman, was substantial evidence to support finding that…

Ayers (Tynia) v. W.C.A.B., lexis.com, Lexis Advance

Medical Provider Networks—Location of Provider’s Office—WCAB affirmed WCJ’s finding that applicant custodian who suffered admitted industrial injury to her psyche, internal system, and sleep was not authorized to seek medical treatment from internal medicine and pain management specialist at his Santa Ana office, notwithstanding that this doctor was listed as provider in defendant’s MPN WellComp, when this doctor was listed on WellComp website at his Beverly Hills office only, and WCAB found…

California Department of Corrections and Rehabilitation v. W.C.A.B. (Salcido, Randall), lexis.com, Lexis Advance

Temporary Disability—Temporary Disability Benefits in Lieu of Industrial Disability Leave—WCAB affirmed WCJ’s finding that applicant teacher who suffered industrial injury to his spine, head, neck, and psyche was entitled to temporary disability benefits for period 8/27/2010 through 8/25/2011 at rate of $1,066.72 per week, less credit for industrial disability leave benefits, when WCAB found…

Hamilton (Larry) v. W.C.A.B., lexis.com, Lexis Advance

WCAB Procedure—Vexatious Litigants—WCAB affirmed WCJ’s order declaring pro per applicant “vexatious litigant” pursuant to 8 Cal. Code Reg. § 10782 for purposes of proceedings before WCAB, thereby requiring that any documents filed by applicant with any WCAB office be deemed “conditionally filed” until accepted by Presiding WCJ or WCAB for filing under 8 Cal. Code Reg. § 10782(d) and (e), when…

Morris (Sonia) v. W.C.A.B., lexis.com, Lexis Advance

Permanent Disability—Apportionment—WCAB, in split panel decision, affirmed WCJ’s award of permanent disability to applicant registered nurse, apportioned 90 percent to 9/10/2004 injury to her head, neck, low back, psyche, colon, and in form of hypertension, 23 percent to cumulative injury to her low back, neck, and in form of hypertension through 11/2/2004, and six percent to 5/11/2004 back injury, and held that, contrary to her assertion, applicant was not entitled to award of 100 percent permanent disability for 9/10/2004 alone, without apportionment, “in accordance with the fact” pursuant to Labor Code § 4662, based on medical evidence showing total loss of earning capacity, when majority of WCAB panel found…

Sasco Electric v. W.C.A.B. (Anemone, Marc), lexis.com, Lexis Advance

Permanent Disability—Apportionment—WCAB affirmed WCJ’s finding that applicant electrician incurred 100 percent permanent disability, after apportionment, from cumulative industrial orthopedic, internal, and psychiatric injuries and rejected defendant’s contention that maximum permanent disability awardable was 88 percent pursuant to principles in Brodie v. W.C.A.B. (2007) 40 Cal. 4th 1313, 57 Cal. Rptr. 3d 644, 156 P.3d 1100, 72 Cal. Comp. Cases 565, and Benson v. W.C.A.B. (2009) 170 Cal. App. 4th 1535, 89 Cal. Rptr. 3d 166, 74 Cal. Comp. Cases 113, when WCJ relied on reporting of agreed medical evaluators in orthopedics and psychiatry, Drs. David Graubard and Perry Segal, respectively, and qualified medical evaluator in internal medicine, Dr. Jonathan Ng, to determine disability and apportionment attributable to each of applicant’s injuries, and WCAB concluded that…

Other WCAB Decisions Denied Judicial Review

Alvarez (Dean) v. W.C.A.B., lexis.com, Lexis Advance

Discrimination—Labor Code § 132a—Business Necessity Defense—WCAB upheld WCJ’s finding that employer did not violate Labor Code § 132a by refusing to reinstate applicant journeyman carpenter following admitted industrial injury to his neck, back, right shoulder, and right knee on 7/12/2000, when WCAB found…

Ameri Chiropractic Corp. v. W.C.A.B. (Figueroa, Michael), lexis.com, Lexis Advance

Liens—Medical—Treatment Outside Medical Provider Network—WCAB affirmed WCJ’s order disallowing Ameri Chiropractic’s lien for medical treatment self-procured outside of defendant’s medical provider network by applicant warehouse worker who suffered industrial injuries to his right hand, finger, and low back on 12/14/2010, when parties previously stipulated that…

Sanctions—WCAB affirmed WCJ’s award of sanctions, attorney’s fees, and costs against lien claimant Ameri Chiropractic and its hearing representative, Pinnacle Lien Services, pursuant to Labor Code § 5813, when Ameri Chiropractic, having already stipulated that defendant had valid medical provide network in place and admitting that it was outside defendant’s medical provider network on date it provided medical treatment to applicant, proceeded to trial without…

Chow (Florise Newton) v. W.C.A.B., lexis.com, Lexis Advance

Petitions for Writ of Review—Dismissal—Court of Appeal dismissed pro per applicant’s petition for writ of review when…

City of Fullerton v. W.C.A.B. (Herrera, Richard), lexis.com, Lexis Advance

Temporary Disability—Lien Claims—WCAB awarded applicant city police officer temporary total disability benefits from 4/8/2010 to 5/26/2010 for cumulative trauma injury AOE/COE to his right knee ending 11/2/2009, based on medical opinions from panel qualified medical evaluator whose reports also referred to…

Granados (Eugenia) v. W.C.A.B., lexis.com, Lexis Advance

Petitions for Reconsideration—Dismissal—WCAB dismissed pro per applicant’s petition for reconsideration as skeletal, in violation of 8 Cal. Code Reg. § 10846, and unsupported by specific references to record and relevant principles of law, and WCAB, while indicating that “wide latitude” should be granted to…

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