10 Dec 2014

California Workers' Comp Case Roundup (12/10/2014)

CALIFORNIA COMPENSATION CASES

Vol. 79 No. 11 November 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.

Dynamex Operations West, Inc. v. The Superior Court of Los Angeles County, lexis.com, Lexis Advance

Employment Relationships—Definitions of Employee—Certification of Class—Court of Appeal, granting in part defendant’s petition for writ of mandate, held that trial court correctly allowed plaintiffs to rely on Industrial Welfare Commission’s definition of employment relationship for purposes of claims falling within scope of Wage Order No. 9-2001 (8 Cal. Code Reg. § 11090), but that, for purposes of claims falling outside scope of Wage Order No. 9-2001, common-law definition of employee, as set forth in S.G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal. 3d 341, 769 P.2d 399, 256 Cal. Rptr. 543, 54 Cal. Comp. Cases 80, will control, when Court of Appeal found that…

Hamp (Richard) v. Harrison Patterson O’Connor & Kinkead, lexis.com, Lexis Advance

Third Party Actions—Legal Malpractice—Court of Appeal held that trial court properly granted motion of defendant law firm and individual attorney for summary judgment in plaintiff/applicant’s civil action against law firm and individual attorney for legal malpractice, when Court of Appeal found that…

Third Party Actions—Breach of Fiduciary Duty—Court of Appeal held that trial court properly granted motion of defendant law firm and individual attorney for summary judgment in plaintiff’s civil action against law firm and individual attorney for breach of fiduciary duty, when Court of Appeal considered…

Lobo v. Tamco, lexis.com, Lexis Advance

Going and Coming Rule—Required Vehicle Exception—Substantial Evidence—Court of Appeal, affirming trial court’s judgment, held, in part of its decision certified for publication, that substantial evidence supported jury verdict that defendant’s employee was not acting within scope of his employment when accident occurred that gave rise to this litigation, when Court of Appeal found that…

Going and Coming Rule—Required Vehicle Exception—Jury Instructions—Court of Appeal, affirming trial court’s judgment, held, in part of its decision not certified for publication, that trial court properly refused plaintiff’s requested jury instruction, when Court of Appeal found that…

Old Republic Construction Program Group v. The Boccardo Law Firm, Inc., lexis.com, Lexis Advance

Anti-SLAPP Motions—Issues of Public Interest—Court of Appeal, affirming trial court’s order denying defendants’ motion under anti-SLAPP law, Code of Civil Procedure § 425.16, to strike causes of action asserted against them by plaintiff, held that anti-SLAPP statute does not apply to claims alleging that defendants wrongfully withdrew settlement funds derived from now-defunct lawsuit, which they had deposited in their trust account pursuant to stipulation requiring plaintiff’s consent to any withdrawal, when Court of Appeal found that…

Wycoff (Sally) v. Paradise Unified School District, lexis.com, Lexis Advance

Civil Actions Against Employers—Fair Employment and Housing Act—Court of Appeal held that trial court properly granted summary judgment in defendant employer’s favor in plaintiff/applicant’s civil action against defendant for disability discrimination, retaliation, and failure to accommodate physical disability, all in violation of Fair Employment and Housing Act (Government Code § 12940 et seq.), when Court of Appeal found that…

Digests of WCAB Decisions Denied Judicial Review

Editorial Board members Francis V. Clifford, Hon. Jacqueline C. Duncan, Susan Hamilton, and James Pettibone recommended the following writ denied cases for summarization in this issue.

American Home Assurance v. W.C.A.B. (Mancia, Edelmira), lexis.com, Lexis Advance

Cumulative Injury—Date of Injury—WCAB affirmed WCJ’s finding that American Home Assurance (coverage from 5/8/2004 through 4/10/2006), not Travelers Property and Casualty (coverage from 3/2003 through 5/7/2004), had liability for applicant/housekeeper’s second of two cumulative injuries, which occurred during period 4/4/2004 through 4/10/2006, when WCAB found that…

Broadspire Claims Services v. W.C.A.B. (Casillas, Hector), lexis.com, Lexis Advance

Attorneys—Running and Capping—Privileged Document—Because there was no final order issued from WCAB, Court of Appeal dismissed defendant’s petition for writ of review without addressing merits of WCAB’s order denying removal, whereby WCAB denied defendant’s motions to compel deposition answers from applicant regarding aspects of his relationship with his attorney, production of documents, including business card applicant testified he had received containing 800 number, and deposition of applicant’s attorney’s agent, all of which defendant claimed were necessary to its investigation of alleged fraudulent conduct by applicant or applicant’s attorney, when defendant…

County of Riverside v. W.C.A.B. (Turley, Jeff), lexis.com, Lexis Advance

Permanent Disability—Manner of Payment—Commencement Date—WCAB affirmed WCJ’s finding that permanent disability due to applicant sheriff’s captain for industrially-related cancer was payable retroactively, pursuant to Labor Code § 4650, 14 days after applicant last received his Labor Code § 4850 benefits, not when applicant became permanent and stationary, and that defendant’s failure to pay retroactive permanent disability justified WCJ’s 10 percent penalty imposition on retroactive benefits under Labor Code § 4650(d), when WCAB found that…

Houston Astros v. W.C.A.B. (Richard, James Rodney), lexis.com, Lexis Advance

Statute of Limitations—Tolling—Competency—WCAB, affirming WCJ, held that WCJ’s 9/6/2007 order dismissing applicant professional baseball player’s claim for cumulative industrial injury to multiple body parts was void and that applicant’s claim, which was re-filed by applicant on 10/12/2008, was not barred by statute of limitations, when applicant alleged that he was incompetent at time he requested dismissal of his claim just 23 days after claim was filed on 8/1/2007, and WCAB found that…

McKinney (Gary) v. W.C.A.B., lexis.com, Lexis Advance

Psychiatric Injury—Good Faith Personnel Actions—WCAB, reversing WCJ, held that applicant UPS driver did not sustain compensable psychiatric injury, when psychiatric panel qualified medical evaluator determined that 40 percent of applicant’s psychiatric injury was caused by applicant’s termination following his involvement in industrially-related automobile accident, and that termination, which occurred after investigation into automobile accident, constituted lawful, nondiscriminatory, good faith personnel action as described in…

Qualified Medical Evaluators—Discipline—WCAB held that reports of orthopedic panel qualified medical evaluator were properly admitted into evidence at trial on issue of injury AOE/COE, despite applicant’s allegation that qualified medical evaluator’s license was suspended during applicant’s case, when WCAB found that…

Peris (Marco) v. W.C.A.B., lexis.com, Lexis Advance

Average Weekly Wages—Earnings Calculation—WCAB, in split panel decision, rescinded WCJ’s finding that applicant laborer with admitted industrial injury rendering him permanently totally disabled was entitled to maximum award of permanent total disability benefits in weekly amount of $881.66, based on his earning capacity at time of injury pursuant to Labor Code § 4453(c)(4), and amended applicant’s permanent disability rate to reflect weekly rate of $249.22, based on his actual earnings in years prior to his injury, when WCAB concluded that…

Other WCAB Decisions Denied Judicial Review

Cook (Jeannette) v. W.C.A.B., lexis.com, Lexis Advance

Petition to Reopen—New and Further Disability—Majority of WCAB panel granted applicant/aircraft mechanic’s petition to reopen award, awarded additional temporary disability and on-going medical treatment benefits, and relied on agreed medical evaluator to deny …

Davis (William) v. W.C.A.B., lexis.com, Lexis Advance

Removal to WCAB—Change of Venue—WCAB denied applicant’s petition to remove case to itself after applicant sought removal to WCAB due to WCAB’s denial of his petition to change venue from Santa Rosa district office of Division of Workers’ Compensation to San Francisco district office, when WCAB found that…

Everest National Insurance Co. v. W.C.A.B. (Giedd, David), lexis.com, Lexis Advance

Employment Relationships—Out of three potential employers for applicant on 12/1/2010, date of applicant’s industrial accident, WCAB held that Alexander Construction, Inc. (Alexander) was applicant’s employer on that date and that Alexander and its workers’ compensation insurer were liable for applicant’s workers’ compensation benefits, when WCAB found that…

Mata (Lucia) v. W.C.A.B., lexis.com, Lexis Advance

Settlement Agreements—Setting Aside—WCAB held that applicant did not show good cause to set aside five settlement agreements, when WCAB found that parties submitted and WCAB approved five settlement agreements (three stipulations with request for award related to applicant’s orthopedic and psychiatric industrial injury claims, one dismissal related to same claims, and one stipulations and order related to applicant’s serious and wilful misconduct petition against employer related to one claim), that applicant sought to…

Smythe (David) v. W.C.A.B., lexis.com, Lexis Advance

Stipulations—Temporary Disability—WCAB held that applicant’s entitlement to temporary disability benefits for 12/12/2007 injury AOE/COE to disputed and undisputed body parts was settled in compromise and release agreement and stipulations with request for award, both approved by WCAB on 5/8/2012, that it was error for WCJ to order new period of temporary disability benefits, that parties stipulated that…

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