02 Jan 2016

California Workers' Compensation Case Roundup (1/2/2016)

CALIFORNIA COMPENSATION CASES

Vol. 80 No. 12 December 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

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 Case

Lexington Insurance Co. v. W.C.A.B. (Ali, Sheik Zahid), lexis.com, Lexis Advance

Employees vs. Independent Contractors—Substantial Evidence—Court of Appeal, denying insurer’s petition for writ of review, held that insurer failed to demonstrate that truck driver was independent contractor excluded from workers’ compensation coverage, when Court of Appeal found that…

Appellate Court Cases Not Originating With Appeals Board

Anderson (Chris) v. Glaus Pyle Schomer Burns & Dehaven, Inc., lexis.com, Lexis Advance

Third Party Actions—Hirer’s Liability to Employees of Sub-contractors—Court of Appeal affirmed trial court’s grant of summary judgment in defendant’s favor, when Court of Appeal found that defendant was telecommunications company that performed site audits on utility company’s equipment, that defendant had contract with ITC Service Group to provide workers to perform site audits/field inspections of cell phone transmission equipment, that ITC hired plaintiff/applicant as field technician to perform these site audits, that plaintiff claimed...

Brady v. Calsol, Inc., lexis.com, Lexis Advance

Products Liability—Component Parts Doctrine—Court of Appeal, reversing trial court’s summary judgment in favor of defendant and remanding for further proceedings, held that component parts doctrine requires showing that mineral spirits supplied by defendant to plaintiffs’ employer was not inherently dangerous and that defendant’s failure to make that showing means that there remains dispute of material fact as to whether mineral spirits are inherently dangerous, when Court of Appeal found that...

Prue v. Brady Co./San Diego, Inc., lexis.com, Lexis Advance

Wrongful Termination—Violation of Public Policy—Statutes of Limitations—Court of Appeal, reversing trial court’s grant of summary judgment in favor of defendant and remanding with directions, held that plaintiff’s complaint adequately alleged facts apprising defendant of cause of action for wrongful termination in violation of public policy, that complaint was timely filed, and that trial court abused its discretion in denying plaintiff leave to amend his complaint, when Court of Appeal found that…

Sproal (Shari) v. City of Colton, lexis.com, Lexis Advance

Civil Actions Against Employers—Fair Employment and Housing Act—Court of Appeal affirmed trial court’s grant of summary judgment in defendant/employer’s favor on plaintiff/applicant’s civil suit for four causes of action under Fair Employment and Housing Act (Government Code § 12900 et seq.), when Court of Appeal found that…

State Compensation Insurance Fund v. Urgent Nursing Resources, Inc., lexis.com, Lexis Advance

Civil Actions—Insurance—Independent Contractors vs. Employees—Court of Appeal affirmed trial court’s holding that defendant did not owe premiums for workers’ compensation insurance to plaintiff for nurses who were independent contractors, not employees, when defendant operated nurses’ registry providing nurses on temporary basis to various hospitals, nurses were given choice to accept or reject assignments (without explanation or penalty) and to decide if they wanted to be designated as independent contractors (and given form 1099) or employees of defendant (and given W2 form), plaintiff provided...

Appeals Board En Banc Decision

In re: Javier Jimenez, lexis.com, Lexis Advance

Hearing Representatives—Sanctions—Suspension of Privilege to Appear—WCAB en banc gave notice of intention to suspend privilege of hearing representative to appear as representative of any party before WCAB or any WCJ for 180 days pursuant to Labor Code § 4907 unless good cause is shown in writing, within 20 days from date of this notice, why privilege should not be suspended or further hearing should be provided, and notice was further given that any ordered suspension will continue until there has been full compliance with sanction orders, when WCAB en banc found that...

Digests of WCAB Decisions Denied Judicial Review

Editorial Board members Frederick W. Bray, Hon. Colleen S. Casey, William A. Herreras, and John W. Miller recommended the following writ denied cases for summarization in this issue.

Baker v. W.C.A.B. (Arnold, Charles), lexis.com, Lexis Advance

Employment Relationships—Residential Employees—Illegal Enterprises—WCAB, in split panel decision, held that applicant suffered compensable injury under Labor Code § 3600 in form of paraplegia and bilateral lower extremity paralysis caused by gunshot wound sustained while applicant was working in home of illegally uninsured defendant, who operated marijuana growing business at his residence, when applicant accepted job with defendant for purpose of learning marijuana cultivation but, in addition to performing tasks related to marijuana operation, applicant was paid $500 per week plus room and board to perform various household chores and tasks unrelated to marijuana business, and WCAB panel majority found that…

City of Richmond v. W.C.A.B. (Soto, Eduardo), lexis.com, Lexis Advance

Injury AOE/COE—Off-Duty Recreational, Social, and Athletic Activities—WCAB, affirming WCJ’s decision, held that applicant police officer’s injury incurred while riding dirt bike off-duty was compensable, when WCAB concluded that…

Cypress Insurance Co. v. W.C.A.B. (Valenzuela, Alicia), lexis.com, Lexis Advance

Contribution and Reimbursement—WCAB affirmed Arbitrator’s decision that defendant Cypress Insurance Co. was entitled to reimbursement from Constitution State Service Co. for 80 percent of medical treatment provided by Cypress to applicant for cumulative trauma low back injury, but that Constitution was not responsible for any medical treatment provided by Cypress to applicant’s kidneys or psyche, when WCAB rejected...

Smith (Amy) v. W.C.A.B., lexis.com, Lexis Advance

Discovery—Sub Rosa Video—WCAB, denying removal, affirmed WCJ’s finding that defendant was not precluded from using sub rosa video taken of applicant exercising at gymnasium, when film was obtained after investigator followed applicant from her home to gym and purchased “day pass” at gym in order to enter area where applicant was working out, and WCAB found that...

Travelers Property Casualty Co. of America v. W.C.A.B. (Mahmoudi, Rouhangiz), lexis.com, Lexis Advance

Psychiatric Injury—Good Faith Personnel Actions—Physical Injury—WCAB, affirming WCJ’s decision, held that defendant failed to establish that applicant clinical laboratory scientist’s claim for psychiatric injury and heart attack that applicant suffered after being verbally confronted by her supervisor was barred by good-faith personnel action defense in Labor Code § 3208.3(h), when WCAB found that…

Walker (Matthew) v. W.C.A.B., lexis.com, Lexis Advance

WCAB Jurisdiction—Professional Athletes—Application of Labor Code § 3600.5—Amendments—WCAB, reversing WCJ, held that applicant’s claim for industrial injury while employed as professional hockey player by multiple out-of-state hockey teams was barred under amendments to Labor Code § 3600.5, when applicant filed claim one day after amendments became operative, and WCAB concluded that...

Other WCAB Decisions Denied Judicial Review

Cedars-Sinai Health System v. W.C.A.B. (Wade, Frances), lexis.com, Lexis Advance

Permanent Disability Ratings—Multiple Injuries—Apportionment and Overlap—WCAB made one combined permanent disability award to applicant clinical partner/LVN for two industrial injuries (on 12/7/96 and cumulative ending 12/7/96) to back, right hip, psyche, hypertension, and cardiovascular system for 96.5 percent permanent disability plus life pension, based on opinions from agreed medical evaluators in orthopedics, internal medicine, and psychiatry, and on rating from Disability Evaluation Unit rater, who was cross-examined, when WCAB found that…

Hartford, The v. W.C.A.B. (Washington, Lorenzo), lexis.com, Lexis Advance

Remand to WCAB—WCAB denied defendants’ petition to remove case to itself, holding that defendants did not make showings required by 8 Cal. Code Reg. § 10843(a), i.e., defendants did not show substantial prejudice or irreparable harm if removal was not granted and also did not show that petition for reconsideration would be inadequate remedy if defendants lost on final decision, when defendants...

Men’s Wearhouse, The v. W.C.A.B. (Walton, James), lexis.com, Lexis Advance

Petitions for Writ of Review—Final WCAB Decisions—Court of Appeal dismissed petition for writ of review of non-final WCAB decision rescinding WCJ’s finding and order on…

Thomas (Sara) v. W.C.A.B., lexis.com, Lexis Advance

Injury AOE/COE—Burden of Proof—WCAB held that applicant did not meet burden of proving injury AOE/COE, because she did not present substantial medical evidence to support her testimony about mechanism of injury, when WCAB found that...