10 Mar 2017

California Workers' Comp Case Roundup (3/10/2017)

CALIFORNIA COMPENSATION CASES

Vol. 82 No. 2 Feb 2017

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, and writ denied summaries.

Federal District Court Opinions of Related Interest

County of Sacramento v. Henrikson (Eric), Lexis Advance

Federal Court Jurisdiction—Motion for Preliminary Injunction—Collateral Estoppel—U.S. District Court, Eastern District of California, granting plaintiff’s motion to enjoin defendant from attempting to relitigate scope of stipulation and order signed by judge in same U.S. District Court in prior proceedings, held that, because stipulation and order had already been conclusively determined to have no effect on plaintiff’s credit rights, collateral estoppel barred that issue’s relitigation, when federal court found that…

Vanderhule v. Amerisource Bergen Drug Corp., Lexis Advance

Federal Diversity Jurisdiction—Intentional Infliction of Emotional Distress—Exclusive Remedy Rule—U.S. District Court, Central District of California, granting plaintiff’s motion to remand case to state court, held that, although complete diversity of state citizenship existed between plaintiff and defendant employer, such diversity of citizenship did not exist between plaintiff and individual defendant, who was defendant employer’s senior human resources advisor, and that there was non-fanciful possibility that plaintiff could maintain her intentional infliction of emotional distress claim despite exclusive remedy rule of California Workers’ Compensation Act, when court found…

Appeals Board En Banc Decision

Maxham (Bradley) v. California Department of Corrections and Rehabilitation, Lexis Advance

Medical Evaluators—Information—Communication—WCAB en banc, granting defendant’s petition for removal, rescinding WCJ’s order, and returning matter to trial level, held that “information,” as used in Labor Code § 4062.3, constitutes (1) records prepared or maintained by employee’s treating physician or physicians, and/or (2) medical and nonmedical records relevant to determination of medical issues, and that “communication,” as used in Labor Code § 4062.3, may constitute “information” if it contains, references, or encloses (1) records prepared or maintained by employee’s treating physician or physicians, and/or (2) medical and nonmedical records relevant to determination of medical issues, when WCAB en banc found that…

Digests of WCAB Decisions Denied Judicial Review

Editorial Board members 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.

Aguilera (Maria) v. W.C.A.B., Lexis Advance

Permanent Disability—Rating—Permanent Total Disability—WCAB, in split panel decision, affirmed its prior decision [see Aguilera v. Collins Chiropractic Group, 2016 Cal. Wrk. Comp. P.D. LEXIS 336 (Appeals Board noteworthy panel decision)] that applicant chiropractic assistant’s 8/24/2007 industrial injury to her gastrointestinal system, cervical spine, lumbar spine, shoulders, elbows, wrists, hands, knees, psyche, and in forms of irritable bowel syndrome, hypertension, fibromyalgia, and affective spectrum disorder, caused 88 percent permanent disability after apportionment, rather than 100 percent permanent total disability as determined by WCJ, when WCAB panel majority…

Parrent (Gregory) v. W.C.A.B., Lexis Advance

Medical Provider Networks—Utilization Review—WCAB affirmed WCJ’s finding that WCAB had no jurisdiction to consider medical treatment recommended by medical provider network treating physician, to treat applicant telephone service representative’s upper extremities injured during period 5/10/99 through 11/17/2002, and found that dispute must proceed through utilization review/independent medical review process pursuant to Labor Code §§ 4610, 4610.5, and 4610.6, when WCAB reasoned that…

White Memorial Medical Center v. W.C.A.B. (Morfin, Jose), Lexis Advance

Petitions for Writ of Review—Dismissal—Non-Final Orders—Court of Appeal dismissed defendant’s petition for writ of review challenging WCAB’s finding that applicant was entitled to referral to liver specialist for treatment for his nonindustrial hepatitis C as precondition to treatment of his industrial psychiatric and hernia injuries, and awarded attorney’s fees under Labor Code § 5801, when Court of Appeal found…

Other WCAB Decisions Denied Judicial Review

Centeno (Walter, Dec’d) v. W.C.A.B., Lexis Advance

Petitions for Writ of Review—Dismissal—Untimely Petitions—Court of Appeal dismissed applicants’ petition for writ of review as untimely, when petition, which challenged WCAB’s finding...

Diehl (Robert) v. W.C.A.B., Lexis Advance

Injury AOE/COE—Burden of Proof—Substantial Evidence—WCAB affirmed WCJ’s finding that applicant failed to meet burden of proving that he suffered injury AOE/COE to his psyche and in form of headaches due to pain medication Suboxone necessitated by admitted industrial back injury on 7/22/2003, when WCAB concluded...

Garcia (Armando) v. W.C.A.B., Lexis Advance

Employment Relationships—Existence of Employment Contract—Consideration—WCAB affirmed WCJ’s finding that applicant, who suffered injury on 4/28/2009, was not employee of defendant on date of injury and was not entitled to recovery, when WCAB concluded...

Rayford (Cleveland) v. W.C.A.B., Lexis Advance

Petitions for Writ of Review—Dismissal—Premature—Court of Appeal dismissed applicant’s Petition for Writ of Review as premature pursuant to Labor Code §§ 5900 and 5901 because no final order was issued by WCAB…

Appeals Board Panel Decisions

Cervantes (Isidro) v. Quality Farms Labor, Lexis Advance

Medical-Legal Procedure—Non-Medical Records Provided to Qualified Medical Evaluator—WCAB, in split panel opinion, held that applicant tractor operator who suffered industrial injury to left shoulder, left upper extremity, neck, back, and psyche on 4/24/2007, could provide qualified medical evaluator with medical study abstracts and relevant citations to AMA Guides but that applicant did not show good cause to provide any other non-medical information to qualified medical evaluator, when WCAB reasoned that…

Woolever (Lee, Dec’d) v. City of Long Beach, Lexis Advance

Death Benefits—Death Without Dependents—WCAB affirmed WCJ's decision awarding $ 250,000.00 in death benefits to Death Without Dependents Unit and denying decedent's ex-wife's claim as dependent, when ex-wife divorced decedent in 1998 but claimed that, in addition to court ordered spousal support, decedent provided financial support in form of forgiven loan and paying for gas, tires and other necessities, but WCAB reasoned…