31 Mar 2016

California Workers’ Compensation Case Roundup (3/31/2016)

CALIFORNIA COMPENSATION CASES

Vol. 81 No. 3 March 2016

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 Cases Not Originating With Appeals Board

Astorga v. Retirement Board of the Santa Barbara County Employees Retirement System, lexis.com, Lexis Advance

Disability Retirements—Effective Date—Court of Appeal, affirming trial court’s denial of plaintiff’s petition for writ of mandate, held that, pursuant to Katosh v. Sonoma County Employees’ Retirement Assn. (2008) 163 Cal. App. 4th 56, 77 Cal. Rptr. 3d 324, disability retirement benefits are not available until day following day paid leave was last received, when Court of Appeal found that…

Wallace v. County of Stanislaus, lexis.com, Lexis Advance

Disability Discrimination—Intent to Discriminate—Jury Instructions—Court of Appeal, reversing trial court’s judgment and remanding for further proceedings to determine plaintiff’s damages, held that, pursuant to Harris v. City of Santa Monica (2013) 56 Cal. 4th 203, 294 P.3d 49, 152 Cal. Rptr. 3d 392, employee may prove requisite discriminatory intent by showing that his or her actual or perceived disability was “substantial motivating reason” for employer’s decision to take adverse employment action against employee, that California law does not require employee with actual or perceived disability to prove that employer’s adverse employment action was motivated by animosity or ill will against employee, and that California’s statutory scheme protects employees from employer’s erroneous or mistaken beliefs about employee’s physical condition, when Court of Appeal found that...

Federal District Court Opinion of Related Interest

Electronic Waveform Lab, Inc. v. EK Health Services, lexis.com, Lexis Advance

Utilization Review—Allegations of Illegality—Exclusive Remedy Rule—U.S. District Court, Central District of California, responding to motions to dismiss plaintiff’s complaint by defendants EK Health Services and State Compensation Insurance Fund, granted defendants’ motion to dismiss Cartwright Act claim (Business & Professions Code § 16700 et seq.) with leave to amend, granted defendants’ motion to dismiss intentional interference with prospective economic advantage and unfair competition law claims (Business & Professions Code § 17200 et seq.) with prejudice to extent they are predicated on defendants’ utilization review denials but is otherwise denied, denied defendant EK Health Services’ motion to dismiss trade libel claim, denied defendants’ motion to dismiss RICO Act claim (18 U.S.C.S. § 1962(c)), and denied defendants’ motion to dismiss RICO Act conspiracy claim (18 U.S.C.S. § 1962(d)), when court found that…

Appeals Board En Banc Decision

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

Hearing Representatives—Sanctions—Suspension of Privilege to Appear—WCAB en banc, having given, on 12/16/2015, 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 was shown in writing, within 20 days from date of notice, why privilege should not be suspended or further hearing should be provided, and, having further given notice that…

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.

Navarro (Joe) v. W.C.A.B., lexis.com, Lexis Advance

Permanent Disability—Rating—Permanent Total Disability—WCAB, amending WCJ’s decision, held that applicant tractor foreman suffered 84 percent permanent disability, after apportionment, as result of internal and orthopedic injuries incurred in motor vehicle accident, and concluded that, contrary to applicant’s assertion, opinion of vocational expert did not constitute substantial evidence to support finding of 100 percent permanent disability “in accordance with the fact” under Labor Code § 4662(b) and LeBoeuf v. W.C.A.B. (1983) 34 Cal. 3d 234, 193 Cal. Rptr. 547, 666 P.2d 989, 48 Cal. Comp. Cases 587, when vocational expert’s assumptions regarding medical residuals of applicant’s industrial injury were not…

San Francisco 49ers v. W.C.A.B. (Visger, George), lexis.com, Lexis Advance

Medical Treatment—Utilization Review—Time Deadlines—WCAB affirmed WCJ’s finding that applicant, who suffered industrial brain injury while playing football for San Francisco 49ers, was entitled to 30-day in-patient admission to Centre for Neuro Skills pursuant to request for authorization of treating physician Roger Bertoldi, M.D., and held that WCAB had jurisdiction to determine medical necessity of requested treatment because defendant’s utilization review determination was untimely under...

Twin City Fire Insurance Co. v. W.C.A.B. (Cepeda, Vicente), lexis.com, Lexis Advance

Employment Relationships—General and Special Employers—WCAB, in split panel opinion, affirmed WCJ’s finding that defendant JR Coatings Co. was applicant unlicensed painter’s general employer at time of his alleged industrial injury and that defendant Classic Home Improvement was special employer, based on “right of control” test and secondary factors in Kowalski v. Shell Oil Company (1979) 23 Cal. 3d 168, 151 Cal. Rptr. 671, 588 P.2d 811, 44 Cal. Comp. Cases 134, when WCAB panel majority found that…

Other WCAB Decisions Denied Judicial Review

Firstline Health, Inc. v. W.C.A.B. (Martinez, Carmen), lexis.com, Lexis Advance

Lien Claims—Medical Treatment—Burden of Proof of Lien Claimant to Establish Proper Licenses and Permits—WCAB held that lien claimant did not meet its burden of proving it had proper licenses, accreditation, and permits and WCAB disallowed entire lien, when WCAB found that…

Hernandez (Guadalupe) v. W.C.A.B., lexis.com, Lexis Advance

Petitions for Reconsideration—Dismissal—Untimely Filing—WCAB dismissed applicant’s petition for reconsideration because not filed within time requirements of...

Kennard (Keith) v. W.C.A.B., lexis.com, Lexis Advance

Injury to Psyche AOE/COE—WCAB held that applicant did not meet burden of showing he sustained injury AOE/COE to psyche under Labor Code § 3208.3 in period through 5/25/2012 from his work for employer as data analyst, when WCAB found that...

Oakland Unified School District v. W.C.A.B. (Hammonds, Glenda, dec’d), lexis.com, Lexis Advance

Permanent Disability—Apportionment—WCAB awarded deceased applicant’s estate 100 percent accrued permanent disability, when WCAB found that deceased applicant sustained injury AOE/COE to both knees on 5/21/2003 while working for defendant as school teacher, WCAB approved stipulations with request for award, which included award for 42 percent permanent partial disability, that applicant filed timely petition to reopen award based on further disability, that applicant died on 9/16/2013 of non-related causes, that WCJ found…

South Coast Air Quality Management District v. W.C.A.B. (Beck, Barbara), lexis.com, Lexis Advance

Injury AOE/COE—Applicant’s Credibility—WCAB held that applicant sustained injury AOE/COE on 10/22/2004 while working for employer as public information specialist, based on applicant’s hearing testimony, which WCAB found was…

Stoltz Metals, Inc. v. W.C.A.B. (Furman, Semyon), lexis.com, Lexis Advance

Petition for Contribution—Statute of Limitations—Date of Cumulative Trauma Injury—WCAB held that date of applicant’s cumulative trauma injury under Labor Code § 5412 was 6/7/2012, when WCAB found that applicant had specific injury AOE/COE while his employer was insured by American Protection Insurance Co., administered by Broadspire and later represented in liquidation by...

Urban Brands, Inc. v. W.C.A.B. (Davis, Alane), lexis.com, Lexis Advance

Temporary Disability—104-Week Limitation—WCAB awarded applicant temporary disability benefits from 7/5/2006 to 9/1/2010 for applicant’s industrial injury from 7/31/2001 to 7/4/2006 to neck, lumbar spine, hips, knees, internal, psyche, and shoulders, based on opinions from orthopedic agreed medical evaluator that applicant had significant flare-up of pain in 7/2006 and did not return to work during disability period, which was from day after applicant’s last day of work to date of maximum medical improvement, when WCAB found that...

Temporary Disability—Penalties—Ten Percent Increase—WCAB held that defendant delayed paying temporary disability and was…