Cal. Comp. Cases December 2020

CALIFORNIA COMPENSATION CASES

Vol. 85, No. 12 December 2020

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 Cases Not Originating With Appeals Board

People, The v. Superior Court of Los Angeles County, Lexis Advance

Employee Classification—Truck Drivers—Application of “ABC” Test—Federal Preemption—Court of Appeal granted plaintiff’s petition for writ of mandate seeking relief from trial court’s determination, and held that Federal Aviation Administration Authorization Act of 1994 (FAAAA) did not preempt, pursuant to 49 U.S.C. § 14501 (c)(1), application of California’s “ABC” test as set forth in Dynamex Operations West, Inc. v. Superior Court (2018) 4 Cal. 5th 903, 416 P.3d 1, 232 Cal. Rptr. 3d 1, 83 Cal. Comp. Cases 817, and codified in Labor Code § 2775, to determine whether federally licensed interstate motor carrier correctly classified its truck drivers as independent contractors, when Court of Appeal found Supreme Court’s holding…

Razon v. Southern California Permanente Medical Group, Lexis Advance

Workers’ Compensation Settlements—Release of Civil Claims Against Employer—Court of Appeal, affirming trial court’s order granting defendant’s motion for summary judgment, held that plaintiff’s civil lawsuit against defendant, his former employer, alleging disability discrimination, failure to accommodate and failure to engage in interactive process in violation of California Fair Employment and Housing Act (FEHA), was barred by plaintiff’s written release of all claims pertaining to his employment with defendant which was included in voluntary resignation letter executed by applicant as condition of workers’ compensation settlement, when Court of Appeal found that contrary to plaintiff’s assertion…

Appeals Board En Banc Decision

In re: COVID-19 State of Emergency, En Banc—No. 7, Lexis Advance

COVID-19 State of Emergency Rules—Suspension of Timeframes for Assignment of Walk-Through Cases—WCAB en banc ordered temporary suspension of W.C.A.B. Rule 10789(c), regarding required timeframes for assignment of walk-through cases, to provide all district offices ability to schedule walk-through timeframes as appropriate for their capacity based on continued state of emergency related to COVID-19 pandemic and to facilitate resolution of claims while observing public health measures, and, additionally, citing permissive language in W.C.A.B. Rule 10789(a), WCAB expressly authorized presiding WCJs at each district office to prioritize and/or restrict allowable walk-through documents as needed to expedite claim resolution or account for limited capacity in their respective offices.

Digest of WCAB Decision Denied Judicial Review

Dean (Faizah Nailah) v. W.C.A.B., Lexis Advance

Discrimination—Labor Code § 132a—Statute of Limitations—Tolling—WCAB, affirming WCJ’s decision, found that applicant’s petition alleging that defendant violated Labor Code § 132a by removing applicant from its lineman apprenticeship program and terminating her employment due to her workers’ compensation claim was barred by statute of limitations, when WCAB found that Labor Code § 132a petition must be filed within one year…

Discrimination—Labor Code § 132a—Burden of Proof—WCAB, affirming WCJ’s decision, held that applicant did not meet burden of proving prima facie case of Labor Code § 132a discrimination against defendant pursuant to Department of Rehabilitation v. W.C.A.B. (Lauher) (2003) 30 Cal. 4th 1281, 135 Cal. Rptr. 2d 665, 70 P.3d 1076, 68 Cal. Comp. Cases 831, when applicant’s own testimony indicated that defendant’s alleged discriminatory conduct occurred before defendant knew…

Other WCAB Decisions Denied Judicial Review

Gomez (Maria) v. W.C.A.B., Lexis Advance

Petitions for Writ of Review—Premature Petitions—Court of Appeal denied applicant’s Petition for Writ of Review because there was no final order or award of WCAB, when WCAB had rescinded WCJ’s dismissal order and returned matter to WCJ for further proceedings regarding whether there were sufficient grounds to dismiss applicant’s case with prejudice for lack of prosecution.

Sentry Casualty Co. v. W.C.A.B. (Cerda, Rodolfo), Lexis Advance

Cumulative Trauma—Substantial Medical Evidence—WCAB, affirming WCJ’s decision, held that applicant sustained cumulative industrial injury to his back, neck, shoulders, and right elbow while employed by defendant as metallic casting tech through 1/8/2018, and rejected defendant’s assertion that WCJ impermissibly merged multiple specific injuries incurred by applicant into single cumulative trauma in violation of Labor Code § 3208.2, when WCAB found that evidentiary record in this case did not establish applicant suffered individual injuries that progressed to disability with need for medical treatment, and that WCJ, in finding cumulative injury, properly relied on opinion of applicant’s primary treating physician...

University of California San Francisco v. W.C.A.B. (Michels, William), Lexis Advance

Presumption of Compensability—Employer’s Time to Act on Claim—Rebuttal Evidence—WCAB affirmed WCJ’s findings that applicant suffered cumulative injury to his internal organs, lungs and pulmonary system, throat, and sinus while employed by defendant from 9/1/2010 to 10/31/2011, and that defendant failed to offer evidence admissible to rebut Labor Code § 5402(b) presumption of compensability applicable in this case based on defendant’s failure to act on applicant’s claim within 90 days of its receipt, when WCAB concluded that defendant did not act diligently in investigating applicant’s claim…

Vons v. W.C.A.B. (Vaca, Edward), Lexis Advance

Petitions for Writ of Review—Premature Petitions—Court of Appeal denied defendant’s Petition for Writ of Review as premature, when WCAB’s findings that applicant’s Labor Code § 132a claim was not subject of valid settlement agreement, and that his accompanying remedies were not precluded as matter of law, did not resolve applicant’s claim and was not final order or award subject to review by Court of Appeal.

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.

Anzalado (Rigobero, Dec’d), Anzalado (Laura), Anzalado (Daniel), Anzalado (Cynthia), Anzalado (Angel), Dependents v. Sandberg Furniture Manufacturing, Lexis Advance

Arbitration—Issues for Arbitration—Injury AOE/COE as Threshold Issue —WCAB, rescinding arbitrator’s decision, held that arbitrator incorrectly found that defendant National Union Fire Insurance Company (National Union) did not need to prove injury AOE/COE to prevail on its petition for contribution from defendant Safety National, when WCAB reasoned that issue of injury AOE/COE is threshold issue and that when Safety National raised injury AOE/COE as defense to contribution clam, arbitrator was required to address this issue de novo before deciding other issues related to National Union’s contribution claim...

Corona (Salvador) v. California Walls, Inc., Lexis Advance

Temporary Disability—Offers of Regular, Modified or Alternative Work—COVID-19 Shutdown—WCAB, affirming WCJ’s decision, held that applicant who suffered industrial injury to both knees and alleged injury to his right shoulder and lumbar spine on 2/19/2020, while employed as warehouse worker, was entitled to temporary disability indemnity from 3/17/2020 to 5/10/2020, during time defendant was required to shut down due to state and local emergency orders as result of COVID-19 pandemic, when applicant had returned to work with restrictions, which defendant accommodated for approximately one month until COVID-19 shelter-in-place orders placed all employees, including applicant, out of work and left applicant with no employment for approximately two months, and WCAB, relying on prior decisions…

Smith (Robert) v. City of Berkeley, Lexis Advance

Permanent Disability—Apportionment—Prior Awards—WCAB, affirming WCJ’s decision, held that applicant, while employed as fire captain, sustained 57 percent permanent disability as result of admitted cumulative injury in form of hypertensive cardiovascular disease ending 8/1/2018, and found no basis for apportionment of applicant’s 2012 stipulated award of 37 percent permanent disability for prior industrial injury to applicant’s heart, pursuant to conclusive presumption in Labor Code § 4664(b), when WCAB found that conclusive presumption applies to disabilities sustained in subsequent injury to same region of body only to extent disabilities overlap, and defendant has burden of establishing...

Watford (Suanna) v. Los Angeles Unified School District, Lexis Advance

Medical Treatment—Housekeeping Services—Stipulations—WCAB, in split panel opinion, rescinded WCJ’s denial of applicant bus driver’s request for housekeeping expenses from 1/1/2007 to 7/30/2013, and held that parties’ 2000 Stipulation to have agreed medical examiner resolve future medical treatment disputes in connection with applicant’s 6/10/96 industrial injury bound defendant with respect to disputes over future home health care services, including reimbursement for housekeeping services (which defendant had provided through 2006), when WCAB found that, similar to circumstances in Bertrand v. County of Orange, 2014 Cal. Wrk. Comp. P.D. LEXIS 342 (Appeals Board noteworthy panel decision), and Federal Express Corporation v. W.C.A.B. (Payne) (2017) 82 Cal. Comp. Cases 1014 (writ denied), parties here stipulated to procedure for evaluating applicant’s need for homecare by having applicant’s primary treating physician report on issue, defendant submitted treating physician’s recommendations for ongoing home care to utilization review (UR), and UR issued denials in 2007, 2009 and 2010, that, contrary to WCJ’s finding, WCAB had jurisdiction to consider parties’ medical treatment disputes…