07 Feb 2013

California Workers' Comp Case Roundup (2/7/2013)

CALIFORNIA COMPENSATION CASES

Vol. 78 No. 1 January 2013

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

Lexis.com subscribers can link to the cases to read the complete headnotes and summaries.

Appellate Court Cases Not Originating With Appeals Board

Hamp (Richard, Sr.) v. Harrison, Patterson, O’Connor & Kinkead, LLP, 78 Cal. Comp. Cases 1

Civil Actions—Anti-SLAPP Actions—Court of Appeal reversed trial court’s grant of anti-Strategic Lawsuit Against Public Participation (SLAPP), Code of Civil Procedure § 425.16, motion to strike complaint in defendant law firm’s favor, holding that anti-SLAPP statute did not apply to plaintiff/applicant’s action against law firm that represented him in employment action against his employer, when Court of Appeal found that…

Mooney (Valerie) v. County of Orange, 78 Cal. Comp. Cases 9

Disability Discrimination—Dismissal from Employment—Interactive Process—Court of Appeal, affirming trial court’s summary adjudication in defendant’s favor, held that plaintiff was neither “dismissed” from employment by defendant because of disability, within meaning of Government Code § 31725, nor “separated” from employment by defendant, within meaning of Government Code § 31721(a), when Court of Appeal found that…

Appeals Board En Banc Decision

McKinley (Dennis) v. Arizona Cardinals, 78 Cal. Comp. Cases 23

Jurisdiction—Forum Selection Clauses—WCAB en banc, affirming WCJ’s findings and order, declined to exercise jurisdiction over claim of cumulative industrial injury when there was reasonable mandatory forum selection clause in employment contract specifying that claims for workers’ compensation must be filed in forum other than California and there was limited connection to California with regard to applicant’s employment and claimed cumulative injury, when WCAB en banc found that…

Digests of WCAB Decisions Denied Judicial Review

Editorial Board members Melissa C. Brown, Hon. Joel K. Harter, James T. Ponzio, and Hon. Ralph Zamudio recommended the following writ denied cases for summarization in this issue.

City of Anaheim v. W.C.A.B. (Quick, Randall), 78 Cal. Comp. Cases 41

Injury AOE/COE—Off-Duty Athletic Activities—WCAB affirmed WCJ’s finding that applicant/police officer who collapsed while participating in off-duty Baker to Vegas relay race suffered injury AOE/COE, and held that applicant’s belief that he was required to participate in race by defendant Anaheim Police Department was objectively reasonable for purposes of meeting compensability requirements in Labor Code § 3600(a)(9) and Ezzy v. W.C.A.B. (1983) 146 Cal. App. 3d 252, 194 Cal. Rptr. 90, 48 Cal. Comp. Cases 611, when evidence indicated that…

County of Sacramento v. W.C.A.B. (Smith, Marylou), 78 Cal. Comp. Cases 45

Injury AOE/COE—Burden of Proof—WCAB, in spit panel decision, upheld WCJ’s finding that applicant/office assistant suffered industrial injury to her sinuses in form of fungal sinusitis, based on opinion of treating physician that it was medically probable that mold exposure in applicant’s workplace over period of time contributed to applicant’s mold sensitization and development of her fungal sinusitis, when WCAB found that…

Gonsalves (Craig) v. W.C.A.B., 78 Cal. Comp. Cases 49

Discrimination—Labor Code § 132a—WCAB, reversing WCJ, held that defendant did not violate Labor Code § 132a by refusing to allow applicant/delivery driver with low back injury to return to work after applicant received medical release to return to work with restriction that he work only eight-hour days for two weeks, when WCAB found that…

Guerrero (Lester) v. W.C.A.B., 78 Cal. Comp. Cases 53

Employment Relationships—Residential Employees—WCAB, rescinding WCJ’s finding, held that applicant was excluded from workers’ compensation coverage under Labor Code § 3352(h), when WCAB found that…

Hernandez (Guillermo) v. W.C.A.B., 78 Cal. Comp. Cases 56

Permanent Disability—Rating—Diminished Future Earning Capacity—WCAB rescinded WCJ’s finding that applicant/laborer/construction worker incurred 79 percent permanent disability as result of admitted industrial lumbar back injury, and held that applicant suffered 37 percent permanent disability pursuant to 2005 permanent disability rating schedule and opinion of agreed medical evaluator, when WCAB found that…

Pesko (David) v. W.C.A.B., 78 Cal. Comp. Cases 61

Presumption of Industrial Causation—Cancer—Peace Officers—WCAB, in split panel decision, upheld WCJ’s finding that applicant/police officer did not sustain industrial injury in form of throat cancer, when WCAB found that…

Other WCAB Decisions Denied Judicial Review

Garduno (Yolanda Cruz) v. W.C.A.B., 78 Cal. Comp. Cases 65

Average Weekly Wages—Overtime—WCAB held that applicant's weekly wages were $308.43 for purpose of computing her compensation rate for 10/4/2010 industrial injury, based on applicant's testimony, wage statements from employer, and pay stubs from applicant, with computation not including overtime pay, when WCAB found that…

Workers’ Compensation Judges—Disqualification—WCAB, denying applicant’s petition to disqualify WCJ, held that applicant did not show bias or enmity by WCJ to applicant’s attorney and that WCJ behaved appropriately at hearing, when applicant contended that she worked overtime but was not paid for overtime and that employer forced her to falsify time cards, when WCAB found that…

Khazaeli (Hamid) v. W.C.A.B., 78 Cal. Comp. Cases 67

Petitions for Reconsideration/Removal—WCAB dismissed two petitions from applicant seeking reconsideration and/or removal, when WCAB found that…

McMillan (Angela) v. W.C.A.B., 78 Cal. Comp. Cases 68

Injury AOE/COE—WCAB held that applicant promotions coordinator did not meet her burden of proving cumulative trauma injury AOE/COE to psyche during her employment with defendant ending 12/19/2000, when WCAB found…

Petitions for Writ for Review—Court of Appeal found that applicant's petition for writ of review did not comply with requirement of…

Preferred Employers Insurance v. W.C.A.B. (Murillo, Cristobal), 78 Cal. Comp. Cases 70

Injury AOE/COE—WCAB held that applicant sustained injury AOE/COE on 1/15/2007 to multiple body parts, when he stepped on furniture tack while working for defendant as carpenter/finisher, based on applicant’s testimony, testimony of applicant’s co-worker, hospital admission records of 1/19/2007, and evidence of employer’s knowledge of this injury as of 1/18/2007, and despite inconsistencies in applicant’s testimony, when WCAB found that…

Press (Rosalind) v. W.C.A.B., 78 Cal. Comp. Cases 71

Permanent Disability—Apportionment—WCAB awarded applicant 60 percent permanent partial disability, after apportionment and adjustment for age and occupation, for 12/8/2000 industrial injury, based on opinions on apportionment from psychiatric agreed medical evaluator, when WCAB found that …

Removal to WCAB—WCAB denied petition for reconsideration and removal, finding no …

Rowe (Darlene) v. W.C.A.B., 78 Cal. Comp. Cases 73

Injury AOE/COE—WCAB held that applicant school district aide sustained injury AOE/COE to her left foot and left ankle on 2/13/2007, based on…

Injury AOE/COE—WCAB held that applicant did not sustain injury AOE/COE to left foot, back, knee, upper extremities, or in form of sleep disorder in 1/2005 or cumulatively from 5/92 through 2/13/2007, based on…

Texeira (Michael) v. W.C.A.B., 78 Cal. Comp. Cases 75

Injury AOE/COE—WCAB held that applicant did not meet burden of proving injury AOE/COE to multiple body parts on 7/10/2010 while employed as salesman for defendant, when WCAB found that…

Walton (Rose) v. W.C.A.B., 78 Cal. Comp. Cases 77

Petitions for Writ for Review—Court of Appeal Jurisdiction—Court of Appeal dismissed petition for writ of review for lack of jurisdiction, when pro per applicant/petitioner was…

Warner Brothers v. W.C.A.B. (Ayala, Genoveva), 78 Cal. Comp. Cases 79

Petitions for Reconsideration—Final Orders—WCAB dismissed defendant’s petition for reconsideration of its previous decision, finding that its previous decision was not final order within meaning of Labor Code § 5900(a), 5902, or 5903, when…

Whitcomb (Rick) v. W.C.A.B., 78 Cal. Comp. Cases 80

Injury AOE/COE—WCAB held that applicant construction repair superintendent did not sustain injury AOE/COE to his left knee on 8/4/2010, allegedly from descending stairs at work site and twisting knee, and that applicant did not sustain burden of proving this injury, when WCAB found that…

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