12 Mar 2015

California Workers’ Comp Case Roundup (3/12/2015)

CALIFORNIA COMPENSATION CASES

Vol. 80 No. 2 February 2015

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

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Appellate Court Compensation Case

Radiator USA v. W.C.A.B. (Kang, Am), Lexis

Injury to Psyche—Sleep Disorder—Substantial Evidence—Court of Appeal, annulling WCAB decision, held that no substantial evidence supported WCAB decision that applicant had sustained industrial injury to his psyche in form of sleep disorder, when Court of Appeal found that…

Appellate Court Cases Not Originating With Appeals Board

Electronic Waveform Lab, Inc. v. EK Health Services, Inc., Lexis

Utilization Review—Anti-SLAPP Statute—Court of Appeal, reversing trial court’s judgment dismissing defendant State Compensation Insurance Fund from plaintiff’s complaint and remanding case to trial court, held that plaintiff’s allegations did not arise from “official proceeding” within meaning of that term in Code of Civil Procedure § 425.16(e)(2) and, therefore, were not activities subject to protection via anti-SLAPP motion, when Court of Appeal found that…

Joinder—Timeliness—Procedure—Court of Appeal, dismissing appeal by two defendants whose basis for appealing was attempt to join defendant insurer’s anti-SLAPP motion after their own anti-SLAPP motion had been denied by trial court, held that joinder was untimely and materially deficient in omitting any explanation of how defendant insurer’s motion applied to other two defendants or sought any relief for other two defendants, when Court of Appeal found that…

Ferreira (Steve) v. King Taco Restaurant, Lexis

Third Party Actions—Firefighter’s Rule—Court of Appeal affirmed trial court’s holding that firefighter’s rule barred plaintiff’s civil action against alleged third-party tortfeasor/restaurant growing out of stabbing injury suffered by plaintiff, off-duty deputy sheriff, in parking lot of that third-party, when Court of Appeal found that…

Vargas v. FMI, Inc., Lexis

Motor Carriers—Independent Contractors—Vicarious Liability—Court of Appeal reversed trial court’s grant of summary judgment for defendants and held that motor carriers such as defendant trailer owner and defendant tractor owner, operating leased vehicles pursuant to federal motor carrier’s license, have nondelegable duty under 49 U.S.C.S. § 14102 to “have control of and be responsible for” such vehicles in order to protect public from tortious conduct of often judgment-proof truck lessor operators and, thus, are vicariously liable for tortious acts of independent contractor drivers, when Court of Appeal found that…

Velasquez (Wilfredo) v. Centrome, Inc., Lexis

Plaintiff's Status as Illegal Alien—Admissibility as Evidence—Court of Appeal, reversing trial court’s judgment except as to its order granting defendant’s motion for nonsuit on common law negligence cause of action, held that trial court erred in denying plaintiff’s motion for mistrial after trial court informed jury that plaintiff was illegal alien, when Court of Appeal found that plaintiff alleged that his lung disease was caused by workplace exposure to chemical compound, diacetyl, distributed by defendant, that, during voir dire, but outside present of prospective jurors, physician on UCLA Medical Center’s lung transplant team testified…

Wright (Monnie) v. State of California, Lexis

Exclusive Remedy Rule—Going and Coming Rule—Premises Line Rule—Bunkhouse Rule—Court of Appeal, reversing trial court’s summary judgment in defendant’s favor, held that plaintiff raised triable issue of material fact on question of whether his injury arose out of and in course of his employment, when Court of Appeal found that plaintiff, correctional officer at San Quentin State Prison, who lived in state-owned rental unit within gated area of prison grounds, was injured when he…

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.

Ace American Insurance Co. v. W.C.A.B. (Patino, Mary Cruz), Lexis

Penalties—Delay in Payment of Settlement Proceeds—WCAB affirmed WCJ’s award of 15 percent penalty under Labor Code § 5814 on delayed payment of $49,022.37, and accrued interest on delayed payment, owed to applicant cook under compromise and release agreement settling applicant’s claim for admitted industrial injury to her right upper extremity and psyche, when WCAB found that…

Penalties—Delay in Payment of Permanent Disability Benefits—WCAB affirmed WCJ’s finding that defendant was not entitled to credit against its settlement liability for $13,440.21 in permanent disability advances sent to applicant at her address of record but never received by applicant, and that defendant still owed this amount, plus accrued interest, and 20 percent penalty on $13,440.21 and interest under Labor Code § 5814, separate from penalty owed on $49,022.37 delayed settlement payment, when WCAB found that…

City of Fresno v. W.C.A.B. (Tristan, Dorothy), Lexis

Removal to WCAB—Discovery Orders—WCAB, denying defendant’s petition for removal, affirmed WCJ’s second discovery order requiring defendant’s labor relations specialist/human resources analyst to attend second deposition in WCJ’s presence and produce statements of witnesses to that analyst related to applicant’s complaint before Equal Employment Opportunity Commission, which involved same time period as many of applicant’s multiple workers’ compensation claims, when WCAB found that…

Clacher (Karen) v. W.C.A.B., Lexis

Psychiatric Injury—Actual Events of Employment—Burden of Proof—WCAB reversed WCJ’s finding that applicant collections agent suffered compensable psychiatric injury, in addition to admitted orthopedic injuries, when applicant claimed that she incurred physical and psychiatric injuries after allegedly being struck and knocked to floor by coworker and, although WCJ found applicant’s unrebutted testimony regarding events to be credible and found psychiatric agreed medical evaluator’s reporting, when viewed as a whole, to constitute substantial evidence of compensable psychiatric injury, WCAB reasoned that…

CPF Masonry v. W.C.A.B. (Cruz, Leonel), Lexis

Serious and Willful Misconduct by Employer—WCAB affirmed WCJ’s finding that injury suffered by applicant laborer to his eye, face, head, cervical spine, and psyche while working in trench that collapsed was caused by employer’s serious and willful misconduct pursuant to Labor Code §§ 4553 and 4553.1, when WCAB found that citations regarding incident from Cal/OSHA and lay testimony were sufficient to support finding of serious and willful misconduct, without expert testimony offered by either party, that fact that notices of violation were issued after applicant’s accident did not defeat serious and willful claim, since there is…

Dubon (Jose) v. W.C.A.B., Lexis

Utilization Review—Independent Medical Review—Court of Appeal, denying applicant’s petition for writ of review as moot, did not disturb WCAB’s en banc split decision in Dubon v. World Restoration, Inc. (2014) 79 Cal. Comp. Cases 1298 (Appeals Board en banc opinion) (Dubon II) rescinding prior en banc decision, Dubon v. World Restoration, Inc. (2014) 79 Cal. Comp. Cases 313 (Appeals Board en banc opinion) (Dubon I), denying applicant’s present petition for reconsideration, and affirming WCJ’s Findings and Order, which determined that…

McFarland Unified School District v. W.C.A.B. (McCurtis, Gabriel), Lexis

Temporary Disability—Return to Work—Odd Lot Doctrine—WCAB affirmed WCJ’s finding that applicant school superintendent who suffered cumulative industrial injury to his coccyx and lumbar spine was entitled to award of temporary total disability benefits from date of his termination from employment with defendant school district to present and continuing, when applicant, prior to being terminated, had been working modified duty based on medical reports establishing permanent partial disability, applicant’s termination was pursuant to…

Sherrod (Jessie) v. W.C.A.B., Lexis

Temporary Total Disability—Long-Term Disability—Settlements—WCAB, affirming WCJ, held that defendant was entitled to credit against its temporary total disability liability in amount of $111,840.44 for full amount of long-term disability benefits paid by lien claimant to applicant physician who suffered cumulative industrial injury in form of fibromyalgia, chronic fatigue syndrome, and stress, and WCAB concluded that defendant was not limited to credit in amount of $74,550 based on long-term disability settlement entered into between applicant and long-term disability lien claimant, when defendant voluntarily paid applicant long-term disability benefits pursuant to County’s long-term disability plan, in excess of maximum temporary disability rate, and WCAB found that…

Thompson (Andrew, Dec’d) v. W.C.A.B., Lexis

Death Benefits—Statute of Limitations—Asbestos Claims—WCAB, reversing WCJ in split panel decision, held that applicant widow’s claim for death benefits arising from asbestos-related death of her husband was barred by one-year statute of limitations in Labor Code § 5406.5, when…

Travelers Indemnity Co. v. W.C.A.B. (Davis, Diane), Lexis

Cumulative Injury—Date of Injury—WCAB held that applicant janitor/mopper-waxer suffered new period of cumulative injury to her wrists, psyche, and in forms of cognitive disorder, chronic pain syndrome, and neuropathic pain syndrome, resulting in 100 percent permanent disability, with date of injury on 8/17/2000, based on opinion of agreed medical evaluator, Roger Sohn, M.D., when WCAB found that…

Other WCAB Decisions Denied Judicial Review

Arrowood Indemnity v. W.C.A.B. (Terek, Hsaing), Lexis

Permanent Disability—Rating—Apportionment—WCAB awarded applicant 100 percent permanent disability, with no apportionment, for applicant housekeeper’s 5/24/2003 slip and fall injury AOE/COE, with admitted and found injury to…

Brown (Stephino) v. W.C.A.B., Lexis

Petitions for Reconsideration—Final WCAB Orders—Removal to WCAB—WCAB dismissed unrepresented applicant’s petition for reconsideration of 7/14/2014 order of PWCJ, when PWCJ’s order (1) granted defendant’s motion to compel applicant to attend examination by panel qualified medical evaluator and also by neurologist consulting with applicant’s primary treating physician, (2) ordered applicant to attend next scheduled appointments with panel qualified medical evaluator and neurologist, (3) suspended applicant’s right to…

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

Petition for Writ of Review—Time to File—Court of Appeal denied petition for writ of review that was not timely filed, when pro per applicant was appealing WCAB decision finding no claimed industrial injury from spider bite to right foot in 2004 and to left foot in 2005, and Court of Appeal also denied…

County of San Diego v. W.C.A.B. (Llamas, Alejandro), Lexis

Injury to Psyche AOE/COE—WCAB held that applicant senior cadastral technician sustained injury AOE/COE to psyche on 8/12/2013, based on applicant’s credible testimony and opinions from panel qualified medical evaluator, when WCAB found that…

Doolan (Gale) v. W.C.A.B., Lexis

Permanent Disability—Rating—Apportionment—WCAB awarded applicant truck driver 85 percent permanent partial disability plus life pension for admitted injury AOE/COE on 2/11/2008 to low back, psyche, peripheral vascular disease/deep vein thrombosis, pulmonary disorder, and reproductive disorder, when WCAB based its findings on…

Johnson (Samuel) v. W.C.A.B., Lexis

Injury AOE/COE—Benefits—WCAB held that applicant procurement specialist sustained admitted cumulative trauma injury AOE/COE in period ending 8/7/2006 to left hand, left wrist, and left thumb, and did not sustain injury AOE/COE to other claimed body parts (left finger, left arm, right hand, right wrist, right fingers, and psyche/stress/nervous system) in same period of time, that applicant was not entitled to…

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