04 Mar 2016

California Workers' Compensation Case Roundup (3/4/2016)

CALIFORNIA COMPENSATION CASES

Vol. 81 No. 2 February 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 Compensation Case

Star Insurance Co. v. W.C.A.B. (Tavares, Armando (Dec’d)), lexis.com, Lexis Advance

Death AOE/COE—Substantial Evidence—Court of Appeal, affirming WCAB decision, held that evidence was sufficient to show that decedent’s employment contributed to his death, when Court of Appeal found that decedent tractor driver was pressure washing mud off tractor and disc when he told foreman that he was having chest pain, that foreman agreed to drive decedent to doctor, that decedent asked to use restroom before leaving workplace, that decedent died while in restroom, that forensic pathologist, who performed postmortem examination of decedent, stated that…

Workers’ Compensation Proceedings—Evidentiary Standards—Court of Appeal, rejecting petitioner’s invitation to clarify whether workers’ compensation cases are exempt from evidentiary standards set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993) 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469, held that petitioner’s failure to raise this evidentiary issue in its…

Appellate Court Cases Not Originating With Appeals Board

County of Santa Clara v. Escobar, lexis.com, Lexis Advance

Tortfeasors—Liens—County’s Statutory Cause of Action—Court of Appeal, reversing trial court’s judgment sustaining tortfeasor’s demurrer, held that adjudicated tortfeasor holding disputed funds that it knows are encumbered by public hospital lien cannot avoid liability by simply turning over control of funds to injured party, when Court of Appeal found that…

County of Santa Clara v. Escobar (Javier) (Escobar III), lexis.com, Lexis Advance

Tortfeasors—Liens—County’s Statutory Cause of Action—Constructive Trustees—Court of Appeal, affirming trial court’s conclusion, held that, when, with knowledge of county’s Government Code § 23004.1 lien, injured party assumed dominion over entire amount of judgment, including portion encumbered by lien, injured party thereby became constructive trustee of encumbered funds, when Court of Appeal found that…

Davis (John) v. County of Los Angeles, 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 in plaintiff’s civil action under Fair Employment and Housing Act (Government Code § 12900 et seq.) for discrimination, harassment, and/or retaliation, when Court of Appeal found that...

Escobar v. Fresh Express, Inc. (Escobar II), lexis.com, Lexis Advance

Tortfeasors—Liens—County’s Statutory Cause of Action—Satisfaction of Judgment—Court of Appeal, reversing trial court’s order denying relief to county lien claimant seeking to enforce judgment lien in Monterey County, where underlying judgment was rendered, on ground that county’s sole remedy lay in pursuing tortfeasor in action then pending in Santa Clara County, suggested that trial court entertain motion to abate this matter pending outcome of case in Santa Clara County, when Court of Appeal found that...

Vatuvei (Tanu) v. Citrus and Allied Essences, Ltd., lexis.com, Lexis Advance

Third Party Actions—Subrogation—Time to File Complaints in Intervention—Court of Appeal affirmed trial court holding that appellant Ace Fire Underwriters did not timely request to file complaint in intervention in plaintiff’s third party civil action, when Court of Appeal found that…

Zenith Insurance Co. v. Bunn-O-Matic, lexis.com, Lexis Advance

Third Party Actions—Voluntary Dismissal After Settlement—Court of Appeal affirmed trial court’s order denying appellant’s motion to set aside dismissal of third party action, when Court of Appeal found that appellant/applicant sustained industrial injury from slip and fall on wet floor near beverage dispensing machine at work, that her employer’s workers’ compensation insurer, Zenith Insurance Co., paid appellant’s workers’ compensation benefits and filed third party civil action against...

Appeals Board En Banc Decision

Trinh (David) v. Tzeng Long USA, Inc., lexis.com, Lexis Advance

Lien Claims—Hearing Representatives—Sanctions—WCAB en banc, following issuance of notice of intention to suspend privileges of Mike Traw and Professional Lien Services of appearing before WCAB pursuant to Labor Code § 4907(a)(2), which provides for suspension of privilege of appearing for 90 days, with suspensions continuing until order of costs and sanction is complied with, for “failure to pay final order of sanctions, attorney’s fees, or costs, issued under Section 5813”…

Digests of WCAB Decisions Denied Judicial Review

Editorial Board members 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.

ASR Construction v. W.C.A.B. (Davis, Wayne), lexis.com, Lexis Advance

Penalties—Delay in Payment of Compensation—WCAB, in split panel opinion, rescinded WCJ’s imposition of Labor Code § 5814 penalty for defendant’s delay in provision of medical treatment and payment of benefits, when panel majority found that defendant did not act unreasonably in denying applicant’s claim and was entitled to argue that opinion of panel qualified medical evaluator indicating that...

Injury AOC/COE—Valley Fever—WCAB affirmed WCJ’s finding that applicant sustained cumulative trauma injury AOE/COE in form of Valley Fever, while employed by Defendant as outdoor painter, when WCAB found that...

Temporary Disability—104-Week Limitation—WCAB held that applicant/outdoor painter with cumulative trauma injury AOE/COE in the form of Valley Fever was entitled to no more than 104 weeks of temporary disability indemnity, when WCAB found that…

Average Weekly Wage—Earnings Calculation—WCAB held that applicant/outdoor painter with cumulative trauma injury AOE/COE in form of Valley Fever was entitled to average weekly wage of $710.14, when WCJ calculated applicant’s earnings at...

Bautista (Edward) v. W.C.A.B., lexis.com, Lexis Advance

Medical Provider Networks—Second Opinion Process—Non-Final Orders—Court of Appeal denied applicant’s petition for writ of review seeking review of WCAB’s interim order denying removal, in which WCAB, in split panel opinion, affirmed WCJ’s finding that applicant, who had suffered admitted industrial injury to his ribs, pulmonary system, lumbar spine, and right ankle, and alleged...

City of Stockton v. W.C.A.B. (Prouty, Andrew, Dec’d), lexis.com, Lexis Advance

Injury AOE/COE—Death—Alcohol Overuse—WCAB held that applicant, decedent’s widow, met burden of establishing that decedent’s death was compensable, when death was caused by...

Johns Mansville v. W.C.A.B. (Cooper, Herbert, Dec’d), lexis.com, Lexis Advance

Settlements—Compromise and Release—WCAB affirmed WCJ’s finding that decedent’s surviving spouse was entitled to pursue claim for death benefits arising from decedent’s death caused by malignant peritoneal mesothelioma, involving injury to decedent’s abdomen, stomach, and peritoneum, caused by decedent’s asbestos exposure from 1962 to 1972, when WCAB found that...

Landmark Medical Management, LLC v. W.C.A.B. (Ortiz, Nieves), lexis.com, Lexis Advance

WCAB Procedure—Consolidation of Cases—WCAB, denying removal, affirmed WCJ’s order consolidating and staying liens of Landmark Medical Management on behalf of multiple lien claimants who purchased accounts receivable from other health care providers, when WCAB concluded that...

MV Contracting v. W.C.A.B. (Cabrera, Horacio, Dec’d), lexis.com, Lexis Advance

Injury AOE/COE—Going and Coming Rule—Employer-Furnished Transportation—WCAB affirmed WCJ’s finding that decedent and injured applicants, in consolidated cases brought by applicants and decedent’s dependents, suffered injury AOE/COE in motor vehicle accident while traveling to work in van driven by decedent, and that their claims were not barred by “going and coming rule,” when substantial evidence established that...

Presumption of Compensability—Time to Act on Claim—WCAB found that presumption of compensability under Labor Code § 5402 applied to injured applicants’ claims arising from motor vehicle accident, when employer failed to timely deny applicants’ claims within 90 days of filing of claim form on behalf of...

New CAPS, LLC v. W.C.A.B. (Harris, Daniel, Dec’d), lexis.com, Lexis Advance

Injury AOE/COE—Death—Substantial Evidence—WCAB affirmed WCJ’s finding that applicant met burden of proving that her husband suffered fatal injury AOE/COE while working for employer film production company as extra, when decedent was found dead in his car, which had become stuck approximately one-half mile from road to movie production base-camp where he was working that day, and only admissible medical reporting was from panel qualified medical evaluator Patricia Wiggins, M.D., who concluded that…

Travelers Insurance Co. v. W.C.A.B. (Duckworth, Bobby), lexis.com, Lexis Advance

Compromise and Release Agreements—Scope of Settlement—Non-Final Orders—Court of Appeal dismissed defendant’s petition for writ of review from non-final order in which WCAB, affirming WCJ, held that applicant professional football player’s claim for cumulative industrial injury to his brain and nervous system was not barred by 1989 compromise and release agreement settling applicant’s claim for cumulative orthopedic injury during same period as claimed brain injury, when WCAB concluded that…

Other WCAB Decisions Denied Judicial Review

Norris (William) v. W.C.A.B., lexis.com, Lexis Advance

Removal to WCAB—WCAB Orders for Independent Medical Evaluator to Review Evaluation and Treatment Records—Requests for Disqualification of Independent Medical Evaluator—WCAB denied petitioner’s request for removal to itself, finding that petitioner made no showing, if removal was not granted, of substantial prejudice or irreparable harm, and no showing that reconsideration would not be adequate remedy if...

Willis (Kim) v. W.C.A.B., lexis.com, Lexis Advance

Injury AOE/COE—Development of Medical Record—WCAB held that applicant school psychologist did not sustain injury AOE/COE to either knee on 5/2/2007 when she restrained student and student kicked her in right knee, when WCAB found that...

Presumption of Compensability of Labor Code § 5402—Waiver—WCAB held that applicant waived issue of whether presumption of compensability of Labor Code § 5402 applied to…