11 Apr 2017

California Workers' Comp Case Roundup (4/11/2017)

CALIFORNIA COMPENSATION CASES

Vol. 82 No. 3 Mar 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

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Appellate Court Compensation Case

Davis (Theodore) v. W.C.A.B., Lexis

WCAB Admissions—Failure to Consider Relevant Labor Code Provision—Court of Appeal, vacating WCAB decision, held that WCAB’s admission of its failure in its decision on reconsideration to consider Labor Code § 4605, which provides that qualified medical evaluator is required to address any report by physician hired at employee’s own expense, constituted failure to “state the evidence relied upon and specify in detail the reasons for the decision,” as required by Labor Code § 5908.5, when Court of Appeal found that injured employee hired at own expense physician to review qualified medical evaluator’s reports, that WCJ concluded…

Appellate Court Case Not Originating With Appeals Board

Secci v. United Independent Taxi Drivers, Inc., Lexis

Employment Relationships—Agency—Court of Appeal, reversing trial court’s judgment notwithstanding verdict granted in favor of defendant on grounds that evidence was insufficient to support jury finding that taxi driver was defendant’s agent, held that there was sufficient evidence to support jury’s verdict that taxi driver was defendant’s agent, making defendant vicariously liable for taxi driver’s acts, when Court of Appeal found…

Federal Circuit Court Opinion of Related Interest

Del Gallego (John) v. Wells Fargo & Co. Long Term Disability Plan, Lexis

Long-Term Disability Plans—Offsets Against Workers’ Compensation Permanent Disability Benefits—U.S. Court of Appeals, Ninth Circuit, affirming trial court’s summary judgment in favor of employer’s long-term disability plan, held that long-term disability plan properly offset employee’s permanent partial disability workers’ compensation benefits, when Ninth Circuit found…

Federal District Court Opinions of Related Interest

Contreras v. Mi Tierra Mercado y Carniceri, Lexis

Diversity Jurisdiction—Fraudulent Joining of Non-Diverse Defendant—Exclusive Remedy Rule—Power Press Exception—U.S. District Court, Northern District of California, granting plaintiff’s motion to remand and remanding case to California Superior Court, held that diverse defendant failed to prove that there was absolutely no possibility that plaintiff could establish cause of action against non-diverse defendant in state court, citing Thompson v. 3M Co., 2017 U.S. Dist. LEXIS 30571, when U.S. District Court found that…

Ferrer v. Host International, Inc., Lexis

Diversity Juisdiction—Fraudulent Joining of Non-Diverse Defendant—Exclusive Remedy Rule—Intentional Infliction of Emotional Distress—Defamation—U.S. District Court, Central District of California, denying plaintiff’s motion to remand and granting defendant’s motion to dismiss, held that plaintiff could not show “non-fanciful possibility” that she could state intentional infliction of emotional distress claim against non-diverse defendant under California law, meaning that this claim was preempted by exclusive remedy rule of workers’ compensation law, and that plaintiff had “failed to state a cause of action” against non-diverse defendant for defamation, with that failure “obvious according to the settled rules” of California, making joinder against non-diverse defendant fraudulent, when U.S. District Court found that…

Martinovsky v. County of Alameda, Lexis

Workers’ Compensation Insurance Fraud—U.S. District Court, Northern District of California, granting in part and denying in part defendants’ motions to dismiss, held that facts established probable cause for search of plaintiff’s clinic as part of defendants’ investigation into alleged fraudulent filing of workers’ compensation insurance claims for health care benefits in violation of Penal Code § 550, that sufficient facts did not exist to establish probable cause for arrest of plaintiff for alleged violation of that statute, and that alleged facts did not establish violation of 42 U.S.C.S. § 1983 for deprivation of plaintiff’s civil rights based on entity liability, when U.S. District Court found that…

Thompson (Kim) v. 3M Co., Lexis

Diversity Jurisdiction—Fraudulent Joining of Non-Diverse Defendant—U.S. District Court, Central District of California, granting plaintiff’s motion to remand and remanding case to California Superior Court, held that diverse defendant had not overcome heavy burden to show fraudulent joinder of non-diverse defendant, when U.S. District Court found that plaintiff initiated present action against diverse and non-diverse defendants in California Superior Court, alleging that she…

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.

Hughes Aircraft Co. v. W.C.A.B. (Billik, Bernard), Lexis

Injury AOE/COE—Substantial Evidence—Compensable Consequence Injury—WCAB affirmed WCJ’s finding that applicant’s 5/23/2016 fall at his home was compensable consequence of 1977 industrial cumulative trauma to his immune system while employed as engineer for Hughes Aircraft, and WCAB ordered defendant to continue making payments into applicant’s medical payment account, when WCAB found that…

Jacobs (Justin) v. W.C.A.B., Lexis

Average Weekly Wages—Actual Earnings—WCAB, affirming WCJ, concluded that WCJ properly relied on pay stubs and wage statement submitted into evidence, rather than on applicant in-home care giver’s less reliable testimony, to calculate applicant’s average weekly wage based on his actual pre-injury earnings pursuant to Labor Code § 4453(c)(3), and found no merit to applicant’s assertion that WCJ should have determined average weekly wage based on earning capacity under Labor Code § 4453(c)(4), when WCAB reasoned that...

Santa Monica UCLA Medical Center v. W.C.A.B. (Fam, Girgis), Lexis

Petitions for Writ of Review—Dismissal—Premature Petitions—Court of Appeal dismissed defendant’s Petition for Writ of Review challenging WCAB’s decision affirming WCJ’s unapportioned award of 100 percent permanent disability to applicant custodial supervisor based on urinary incontinence caused by 3/2/2002 spine injury resulting in cauda equine syndrome, when WCAB…

Serrano (Maria) v. W.C.A.B., Lexis

Subsequent Injuries Benefits Trust Fund—Threshold Requirements for Liability—Preexisting Disability—WCAB affirmed WCJ’s finding that applicant, who suffered industrial injury to her head/headaches, jaw, neck, shoulders, and psyche while employed as collector by defendant bank during period 6/25/2001 to 5/4/2004, was not entitled to benefits from Subsequent Injuries Benefits Trust Fund because, contrary to applicant’s assertion, evidence did not establish that applicant had psychiatric condition that was actually disabling prior to her work injury, as is required under Labor Code § 4751 to recover Subsequent Injuries Benefits Trust Fund benefits, when reports…

Xerox Corp. v. W.C.A.B. (Schulke, Ryan, Dec’d), Lexis

Injury AOE/COE—Injury From Work Stress—Physical vs. Psychiatric Injury—WCAB, reversing WCJ in split panel decision, held that decedent suffered fatal heart injury on 1/5/2012 arising out of his employment as copy repair technician for defendant and that his dependents were entitled to death benefits, when agreed medical evaluator opined that work stress was contributing cause (10 percent) of decedent’s heart attack, and, rejecting defendant’s assertion that stress causing decedent’s heart attack was psychiatric injury that did not meet threshold of compensability under Labor Code § 3208.3, WCAB reasoned that…

Other WCAB Decisions Denied Judicial Review

Barri v. W.C.A.B., Lexis

Petitions for Writ of Mandate—Dismissal—Premature Petitions—WCAB denied lien claimant’s petition for writ of mandate challenging order of Division of Workers' Compensation (DWC) about constitutionality of certain provisions of SB 1160 and AB 1244, including provisions involving provider suspension and stay of liens, when WCAB found that…

Chevez (Maria) v. W.C.A.B., Lexis

Petitions for Writ of Review—Repetitive Petitions—Court of Appeal denied applicant’s Petition for Writ of Review as repetitive of earlier Petition for Writ of Review filed by applicant on 8/19/2016, which WCAB...

Heidary (Payam) v. W.C.A.B., Lexis

Psychiatric Injury—Good Faith Personnel Actions—WCAB affirmed WCJ’s finding that applicant’s claim for psychiatric injury while employed as college professor during period 8/22/2005 to 6/5/2009 was barred by good faith personnel action defense in Labor Code § 3208.3(h), based on opinion of psychiatric panel qualified medical evaluator, who concluded that...

Hingada (Marie) v. W.C.A.B., Lexis

Psychiatric Injury—Good Faith Personnel Actions—WCAB affirmed WCJ’s finding that applicant’s claim for psychiatric injury while employed as senior underwriting assistant during period 5/11/2011 to 8/22/2012 was barred by good faith personnel action defense in Labor Code § 3208.3(h), when substantial medical evidence established that actual events of applicant’s employment were predominant cause of applicant’s psychiatric injury, and, based upon credible testimony of applicant’s supervisor and employer’s vice president of human resources, WCAB concluded that…

Trinidad (Guillermo) v. W.C.A.B., Lexis

Petitions for Writ of Review—Dismissal—Premature Petitions—Court of Appeal dismissed pro per applicant’s Petition for Writ of Review as premature pursuant to Labor Code § 5901 because applicant...

Waddell (Shirley) v. W.C.A.B., Lexis

Sanctions—WCAB affirmed WCJ’s order that applicant appear for, and cooperate in, her deposition and cautioned applicant that her conduct in repeatedly re-litigating issues of fact and law already determined, repeatedly filing repetitious and/or frivolous pleadings, and making accusations against defense counsel and WCJ…

Appeals Board Panel Decisions

Davis (William, III) v. State of California, Department of Forestry and Fire Protection, Lexis

Presumption of Industrial Causation—Firefighters—Exposure to Biochemical Substances—WCAB, affirming WCJ, held that WCJ properly concluded that presumption of industrial causation for injury from exposure to biochemical substances in Labor Code § 3212.85 did not apply to applicant's claim for cumulative injury to his nervous and respiratory systems allegedly from regular exposure to fire retardant during his seven years of employment as firefighter with Department of Forestry and Fire Protection ending on 6/1/2008, when WCAB reasoned that…

Mason (Kimberly) v. S.E.I.U. Local 721, Lexis

Employment Relationships—Union Members—WCAB, reversing WCJ in split panel opinion, held that applicant who worked for County of Los Angeles, Department of Children and Family Services and was member of S.E.I.U. Local 721 was acting as employee of S.E.I.U. Local 721 at time she suffered injury to her left upper extremity, when applicant's injury occurred during her participation in union rally on 12/10/2013, and, relying on holding in Jones v. W.C.A.B. (1971) 20 Cal. App. 3d 124, 97 Cal. Rptr. 554, 36 Cal. Comp. Cases 563, WCAB panel majority concluded that…