August 2021 Cal. Comp. Cases

CALIFORNIA COMPENSATION CASES

Vol. 86, No. 8 August 2021

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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LexisNexis Online Subscribers: You can link to your account on Lexis Advance to read the complete headnotes and court decisions, en banc decisions, writ denied summaries, panel decisions and IMR decisions.

Appellate Court Cases Not Originating With Appeals Board

Hollingsworth v. Heavy Transport, Inc., Lexis Advance

Determination of Jurisdiction—Uninsured Employers—Insurance Policy Interpretation—Court of Appeal, affirming trial court’s judgment, held that (1) plaintiffs were not entitled to jury trial on factual issues that would determine whether WCAB or superior court had jurisdiction to determine which tribunal had exclusive jurisdiction over plaintiffs’ claims under Labor Code § 3706 stemming from fatal accident suffered by decedent while employed by defendant Heavy Transport, Inc. (HT), when Court of Appeal reasoned…

People, The v. Guillen (Hariberto), Lexis Advance

Workers’ Compensation Insurance Fraud—Victim Restitution—Court of Appeal, amending trial court’s order, held that trial court erred in ordering defendant/employee who was placed on probation after being convicted of making false statement for purposes of obtaining workers’ compensation benefits in violation of Insurance Code...

Federal Circuit Court Opinion of Related Interest

Orellana (Blanca Estella) v. Mayorkas, Lexis Advance

Workers’ Compensation Insurance Fraud—Immigration Applications—Admissible Evidence—U.S. Court of Appeals, Ninth Circuit, affirmed district court’s dismissal of plaintiff’s complaint challenging United States Citizenship and Immigration Services’ denial of her application for naturalization after she pleaded guilty to violating Penal Code…

Digests of WCAB Decisions Denied Judicial Review

Brophy (Jerry) v. W.C.A.B., Lexis Advance

Permanent Disability—Apportionment—Substantial Medical Evidence—WCAB, in split panel opinion, held that reporting of qualified medical evaluator was substantial evidence to support WCJ’s finding that 80 percent of applicant truck driver’s overall permanent total disability was due to non-industrial causes and 20 percent was caused by...

Kiewit Infrastructure West Co. v. W.C.A.B. (Thomas, Michael), Lexis Advance

Permanent Disability—Rating—Rebuttal of Scheduled Rating—WCAB affirmed WCJ’s finding that applicant, while employed as boilermaker, sustained admitted cumulative injury to his lumbar spine, knees and skin during period 10/11/93 through 12/19/2012, resulting in permanent total disability, when WCAB determined that applicant successfully rebutted...

Other WCAB Decisions Denied Judicial Review

City of Torrance v. W.C.A.B. (Waggoner, Stephen), Lexis Advance

Permanent Disability—Rating—Rebuttal of Scheduled Rating—WCAB, affirming WCJ’s decision, held that there was substantial medical and vocational expert evidence in record to support finding that applicant suffered 100 percent permanent disability as result of industrial injury to multiple body parts/systems while employed as firefighter during period 3/11/85 through 11/15/2011, and found that vocational expert’s opinion was...

Nike, Inc. v. W.C.A.B. (Singerman, Marisa), Lexis Advance

Petitions for Writ of Review—Dismissal of Premature Petitions—Court of Appeal dismissed defendant’s Petition for Writ of Review as premature pursuant to Labor Code §§ 5900 and 5901 because no final order was issued by WCAB, where WCAB had rescinded WCJ’s decision, determined that applicant with 3/4/2018 industrial spine injury was permitted to conduct...

Appeals Board Panel Decisions

CAUTION: These WCAB panel decisions have not been designated a “significant panel decision” by the Workers’ Compensation Appeals Board. Practitioners should proceed with caution when citing to these board panel decisions and should also verify the subsequent history of the decisions. WCAB panel decisions are citeable authority, particularly on issues of contemporaneous administrative construction of statutory language. However, WCAB panel decisions are not binding precedent, as are en banc decisions, on all other Appeals Board panels and workers’ compensation judges. While WCAB panel decisions are not binding, the WCAB will consider these decisions to the extent that it finds their reasoning persuasive.

Cisco (Ruth) v. Subsequent Injuries Benefits Trust Fund, Lexis Advance

Subsequent Injuries Benefits Trust Fund—Payment of Funds to Special Needs Trust—WCAB, affirming WCJ’s decision, held that WCJ had authority to order defendant to pay applicant’s Subsequent Injuries Benefits Trust Fund (SIBTF) proceeds into special needs trust pursuant to applicant’s request, when WCAB reasoned...

Diaz (Arturo) v. E&F Demolition, Lexis Advance

Permanent Disability—Rating—Rebuttal of Scheduled Rating—WCAB found that record in this case was not sufficient to support WCJ’s award of 50 percent permanent disability for applicant’s 1/17/2018 injury to his right foot and toes, and instead awarded 21 percent permanent disability based on agreed medical examiner’s reporting, when WCAB found that opinion of vocational expert relied upon by WCJ was insufficient to rebut…

Costs—Vocational Experts—WCAB upheld WCJ’s award of costs under Labor Code § 5811 for applicant’s vocational expert, when WCAB found that cost of vocational expert will be allowed if it was reasonable and necessary at time it was incurred, even if vocational evidence does not successfully rebut permanent disability rating, and that vocational evidence secured by applicant in this case was reasonable and necessary to determine applicant’s vocational feasibility...

Erhahon (Doreen) v. Kaiser Foundation Hospital, Lexis Advance

Liens—Procedural Rights and Duties—Consolidation of Lien Discovery Proceedings—WCAB, denying removal, affirmed WCJ’s order consolidating 57 cases for purposes of discovery as to 42 lien claims filed by lien claimant and staying lien claimant’s collection efforts in those cases pending completion of discovery, when defendant provided evidence detailing how lien claimant obstructed its efforts to conduct corporate discovery related to its allegations of fraudulent billing practices in at least 10 cases, and WCAB found that defendant...

Van Brunt (Shauna) v. VCA, Antech, Inc., Lexis Advance

Medical Treatment—Utilization Review—Opioid Medications—WCAB affirmed WCJ’s finding that WCAB lacked jurisdiction to address utilization review (UR)/independent medical review (IMR) decisions certifying progressively reduced quantities of previously-authorized Buprenorphine prescribed by treating physician for applicant’s industrial lumbar spine/left leg injury, when URs were timely issued and applicant did not appeal IMR determinations, and WCAB found that applicant...