06 Mar 2014

California Workers' Comp Case Roundup (3/6/2014)

CALIFORNIA COMPENSATION CASES

Vol. 79 No. 2 February 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

County of Nevada v. W.C.A.B. (Lade, David), lexis.com, Lexis Advance

Public Safety Employees—Leaves of Absence—Salary in Lieu of Temporary Disability—Court of Appeal, annulling WCAB’s order denying reconsideration of WCJ award to applicant of Labor Code § 4850(a) benefits for public safety employees on “leave of absence while … disabled without loss of salary in lieu of temporary disability payments” after applicant had returned to work on modified duty, when Court of Appeal found that…

Larkin (John) v. W.C.A.B., lexis.com, Lexis Advance

Workers’ Compensation Benefits—Volunteer Peace Officers—Salaried Peace Officers—Court of Appeal held that WCAB correctly determined that benefits provided under Labor Code § 4458.2, when considered in light of legislative scheme of which it is part and, in particular, Labor Code § 3362, was intended to establish benefits for volunteer peace officers and cannot be applied to enhance benefits for peace officers generally, when Court of Appeal found that…

Appellate Court Cases Not Originating With Appeals Board

Gonzalez v. Seal Methods, Inc., lexis.com, Lexis Advance

Exclusive Remedy—Power Press Exception—Court of Appeal, affirming trial court’s summary judgment in favor of defendant, held that plaintiff’s injury did not fall within Labor Code § 4558’s exception to exclusive remedy rule when employer has failed to install point of operation guard on power press or employer has removed such guard, when Court of Appeal found that…

Appeals Board Significant Panel Decision

Kim (Eun Jae) v. B.C.D. Tofu House, Inc., lexis.com, Lexis Advance

Expedited Hearings—Unaccepted Claims—WCAB, in significant panel decision, held that, without regard to 8 Cal. Code Reg. § 10252, which limits expedited hearings to specific issues in accepted claims, expedited hearing may be requested and conducted under Labor Code § 5502(b)(2) and 8 Cal. Code Reg. § 9767.6(c) to determine whether employee must treat in employer’s medical provider network during 90-day delay period, under Labor Code § 5402(b), in which employer must investigate and determine whether to accept or reject claim, when WCAB found that…

Expedited Hearings—Unaccepted Claims—Removal to WCAB—WCAB, in significant panel decision, having removed case to itself on its own motion, dismissed defendant’s petition for removal as moot, because...

Digests of WCAB Decisions Denied Judicial Review

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

Atlas Transfer and Storage Co., Inc. v. W.C.A.B. (Allen, Frank), lexis.com, Lexis Advance

Employment Relationships—Employees—Truck Drivers—WCAB, affirming WCJ, held that applicant, who suffered specific and cumulative injuries to various body parts while working as moving van driver for defendant/hauling company, was defendant’s employee at time of injuries rather than independent contractor, based on…

City of Oakland v. W.C.A.B. (Brown-Kuria, C. Dupsi), lexis.com, Lexis Advance

Injuries AOE/COE—WCAB held that applicant city housing development coordinator sustained two industrial injuries to multiple body parts during her employment with defendant and on cumulative trauma basis, based on testimony from applicant and applicant’s vocational expert and on opinions from applicant’s qualified medical evaluator, all of which WCAB found was substantial evidence, when WCAB found that...

Permanent Disability—Apportionment—WCAB awarded applicant 100 percent permanent total disability for two industrial injuries, without apportionment, based on substantial evidence opinions from applicant’s qualified medical evaluator and applicant’s vocational expert, when WCAB found that…

FirstComp Omaha v. W.C.A.B. (Martinez, Jorge), lexis.com, Lexis Advance

Insurance Coverage—Scope of Policy Coverage—WCAB affirmed Arbitrator’s finding that insurance policy issued by Endurance Insurance Co. to Landforce Logistics, Inc., provided workers’ compensation coverage for all employees of Landforce Logistics, not solely those classified as clerical, including, if ultimately determined to be employee of Landforce Logistics, applicant/truck driver who alleged that he incurred industrial injury while driving truck in Utah, when WCAB found that…

Illinois Midwest Insurance Agency v. W.C.A.B. (Yanez, Jose), lexis.com, Lexis Advance

Cumulative Injury—Date of Injury—Period of Liability—WCAB, amending WCJ’s decision, held that applicant/general laborer’s date of injury under Labor Code § 5412 was 8/5/2009, which was date applicant first suffered disability and became aware that…

Kroger Company, The v. W.C.A.B. (Voeltz, Robert); Voeltz (Robert) v. W.C.A.B., lexis.com, Lexis Advance

Permanent Disability—Application of 1997 Schedule for Rating Permanent Disabilities—WCAB held that 1997 Schedule for Rating Permanent Disabilities applied to rate permanent disability incurred by applicant/clerk as result of industrial cumulative injuries to his back and psyche, based on…

Permanent Disability—Rating—Apportionment—WCAB held that applicant/clerk suffered 89 percent permanent disability, after apportionment, as result of cumulative industrial injury to his back and psyche, when WCAB found that…

Medical Provider Networks—Admissibility of Outside Medical Reports—WCAB held that reports of applicant/clerk’s primary treating physician were properly admitted into evidence even though physician was not part of…

Attorney’s Fee Awards—Commutation—Cost of Living Adjustments—Although WCJ’s award of attorney’s fees was not challenged on reconsideration or appeal, WCAB, raising issue sua sponte, found that…

Lane (John) v. W.C.A.B., lexis.com, Lexis Advance

Death Benefits—Statute of Limitations—WCAB affirmed WCJ’s finding that application for death benefits filed on 7/6/2011 by dependents of decedent who died on 11/22/2010 following 6/23/99 industrial injury to his left foot, psyche, and in form of…

Mitchell (Bruce) v. W.C.A.B., lexis.com, Lexis Advance

Discrimination—Labor Code § 132a—WCAB held that defendant employer did not discriminate against applicant in violation of Labor Code § 132a, when WCAB found that…

Morfin (Jose) v. W.C.A.B., lexis.com, Lexis Advance

Statute of Limitations—WCAB held that applicant/orderly’s claim for hepatitis C as result of 5/11/92 needle stick in his finger was not barred by statute of limitations, when applicant established WCAB jurisdiction at time he filed…

Laches—WCAB held that applicant/orderly’s claim for hepatitis C as result of 5/11/92 needle stick in his finger was not barred by doctrine of laches, when applicant filed claim for needle stick injury on…

Injury AOE/COE—Hepatitis C—Burden of Proof—WCAB, reversing WCJ, held that, based on totality of evidence in record, including agreed medical examiner’s reporting and CDC statistics, applicant/orderly failed to meet burden of proving that he sustained injury AOE/COE in form of hepatitis C as result of…

NBC Universal Media, LLC v. W.C.A.B. (Moussa, Ceicel), lexis.com, Lexis Advance

Permanent Disability—Rating—Substantial Evidence—WCAB, affirming WCJ, awarded applicant/sales clerk 71 percent permanent disability, after apportionment, for specific and cumulative industrial injuries to both knees, low back, and psyche, based on “range of evidence,” including orthopedic reports of primary treating physician and panel qualified medical evaluator, when WCJ found that…

New Axia Holdings v. W.C.A.B. (Martinez, Jesus), lexis.com, Lexis Advance

Permanent Disability—Apportionment—Overlap—WCAB, in split panel decision, held that WCJ improperly reduced applicant’s award of 45 percent permanent disability for cumulative industrial lumbar spine injury by 28 percent, to find…

Permanent Disability—Rating—WCAB rescinded WCJ’s finding that applicant suffered 17 percent permanent disability, after apportionment under Labor Code § 4664(b), as result of cumulative industrial injury to his lumbar spine, when WCAB concluded that…

University of California, San Francisco v. W.C.A.B. (Herrera, Martha), lexis.com, Lexis Advance

Stipulations—Setting Aside—WCAB affirmed WCJ’s order setting aside parties’ pre-trial conference stipulation that applicant had permanent disability rate of $230 per week, and WCJ’s finding that applicant was entitled to 15 percent increase in…

Other WCAB Decisions Denied Judicial Review

Delgado (Arturo) v. W.C.A.B., lexis.com, Lexis Advance

Permanent Disability—Rating—WCAB awarded applicant 57 percent permanent partial disability, after apportionment, for 12/21/2006 injury AOE/COE to his low back and psyche, which occurred while he was working for defendant as tire repairer/lead/mobile tire repairer, from lifting while installing tire and rim, with WCAB basing its…

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