California Compensation Cases April 2021

CALIFORNIA COMPENSATION CASES

Vol. 86, No. 4 April 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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Appellate Court Case Not Originating With Appeals Board

Parada v. East Coast Transport Inc., Lexis Advance

Employee Classifications—Employees vs. Independent Contractors—Truck Drivers—Retroactive Application of Dynamex—Court of Appeal reversed trial court’s finding that plaintiffs who owned and operated trucks were independent contractors rather than employees while driving trucks for defendant trucking company, and remanded matter to trial court to consider whether plaintiffs were misclassified as independent contractors under “ABC” test 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, which applied retroactively based on Supreme Court’s decision in Vazquez v. Jan-Pro Franchising International, Inc. (2021) 10 Cal. 5th 944, 478 P.3d 1207, 273 Cal. Rptr. 3d 741, 86 Cal. Comp. Cases 107, when trial of this matter occurred under erroneous assumption that multi-factor test in S. G. Borello & Sons, Inc. v. Dept. of Industrial Relations (1989) 48 Cal. 3d 341, 769 P.2d 399, 256 Cal. Rptr. 543, 54 Cal. Comp. Cases 80, rather than Dynamex test, governed whether plaintiffs were independent contractors, and Court of Appeal found that although it was unlikely defendant could meet its burden…

Employee Classifications—Truck Drivers—Application of “ABC” Test—Federal Preemption—Court of Appeal, reversing trial court’s finding that plaintiffs who owned and operated trucks were independent contractors rather than employees while performing work for defendant trucking company, rejected defendant’s assertion that federal law, specifically Federal Aviation Administration Authorization Act of 1994 (FAAAA), preempted application of “ABC” test 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, to motor carriers, when Court of Appeal reasoned that identical assertion was rejected by appellate court…

Federal District Court Opinion of Related Interest

Smith v. Corecivic of Tennessee, Lexis Advance

Wrongful Constructive Discharge—Failure to Maintain Safe Work Environment—Employer’s COVID-19 Response—District Court for Southern District of California denied defendant’s motion to dismiss plaintiff’s claim for constructive discharge against defendant, private operator of correctional facilities, for failing to maintain safe work environment in violation of public policy pursuant to Labor Code §§ 6400 et seq., 8 Cal. Code Reg. §§ 3380 and 5141, 29 U.S.C.S. § 654(a)(1), and 29 C.F.R. § 1910.132, when plaintiff claimed she was compelled to resign her position as detention officer at detention center operated by defendant due to unsafe and intolerable conditions created by defendant with respect to COVID-19 response, and District Court rejected defendant’s contention…

Exclusive Remedy Rule—Intentional Infliction of Emotional Distress and Negligent Supervision—Employer’s COVID-19 Response—District Court for Southern District of California granted defendant’s motion to dismiss plaintiff detention officer’s claims against defendant, her former employer at detention center, for negligent supervision and intentional infliction of emotional distress based on defendant’s alleged severely inadequate COVID-19 response, when District Court found that plaintiff’s claims were based…

Digests of WCAB Decisions Denied Judicial Review

Hagen v. W.C.A.B. (Adams, Jessica), Lexis Advance

Subsequent Injuries Benefits Trust Fund—Time to File Application for Benefits—WCAB, amending WCJ’s decision, held that applicant who suffered industrial injury on 8/16/2008 timely filed application for Subsequent Injuries Benefits Trust Fund (SIBTF) benefits on 5/10/2018, which was six months and one day after applicant received Stipulated Award of 67 percent permanent disability, when WCAB, applying standard set forth in Subsequent Injuries Fund v. W.C.A.B. (Talcott) (1970) 2 Cal. 3d 56, 465 P.2d 28, 84 Cal. Rptr. 140, 35 Cal. Comp. Cases 80, determined that “reasonable time” for applicant to file SIBTF claim began to run only after WCAB issued finding regarding permanent disability, which finding indicated substantial likelihood that applicant would be entitled to SIBTF benefits…

Santa Clara Valley Transportation Authority v. W.C.A.B. (Cappucci, Carla), Lexis Advance

Injury AOE/COE—Bunkhouse Rule—WCAB, affirming WCJ’s decision, held that specific injury incurred by applicant to her neck, left knee, head, and left side when she fell in shower prior to start of her work shift on 11/29/2018 was sufficiently connected to her employment to justify application of bunkhouse rule, when evidence established that applicant worked for defendant as coach driver and regularly stayed overnight on defendant’s premises prior to her early morning work shifts in order to avoid lengthy commute from her residence, and that on date of her injury applicant slipped and fell in shower while preparing for workday after having spent night on premises, and WCAB found that because defendant provided sleeping area and showers…

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.

Lund (Bruce) v. Ryko Solutions Inc., Lexis Advance

Permanent Disability—Rating—Permanent Total Disability—Combining Multiple Impairments—WCAB affirmed WCJ’s finding that applicant suffered 100 percent permanent disability from 7/8/2014 admitted industrial injury to his lumbar spine and psyche while employed as technician, and found that although language in Labor Code § 4662(b) indicating that permanent total disability is to be determined “in accordance with the fact” does not provide independent method for determining permanent disability rating separate from method provided in Labor Code § 4660, consistent with holding in Dept. of Corrections & Rehabilitation v. W.C.A.B. (Fitzpatrick) (2018) 27 Cal. App. 5th 607, 238 Cal. Rptr. 3d 224, 83 Cal. Comp. Cases 1680, WCJ provided valid alternative bases for reaching his determination...

Psychiatric Injury—Catastrophic Injuries—Increased Permanent Disability—WCAB affirmed WCJ’s finding that applicant who suffered 7/8/2014 admitted industrial injury to his lumbar spine and psyche while employed as technician, was entitled to separate permanent disability rating for injury to his psyche based on “catastrophic” nature of his injury as provided in Labor Code § 4660.1(c)(2)(B), which provides exception to Labor Code § 4660.1(c)(1)’s preclusion against increased impairment rating for psychiatric injuries that arise out of compensable physical injury, when WCAB was persuaded that WCJ properly relied on factors...

Marquez (Gloria) v. Supercuts, Lexis Advance

Medical-Legal Procedure—Qualified Medical Evaluator Panels—Specialty Designation—WCAB affirmed WCJ’s finding that chiropractic qualified medical evaluator panel issued by Medical Unit was appropriate to evaluate applicant’s industrial injury to her neck, arm, wrists, back, and shoulders on 8/20/2018 and cumulatively from 8/20/2017 through 8/20/2018, and separate cumulative injury to her back and knees from 9/20/2016 through 9/20/2017, and found that defendant was not entitled to additional panel of qualified medical evaluators or replacement panel in specialty of orthopedic surgery, when WCAB found that contrary to defendant’s assertion, chiropractic panel qualified medical evaluator’s recommendation...

Zaldana (Nelson) v. Cali Concrete, Inc., Lexis Advance

Hearings—Continuances—COVID-19 Restrictions—Due Process—WCAB, denying applicant’s Petition for Removal, held that WCJ did not err in setting applicant’s case for remote video trial due to COVID-19 restrictions and refusing to continue trial until it could be conducted in-person with live testimony, when WCAB applied standard set forth in Gao v. Chevron Corporation (2021) 86 Cal. Comp. Cases 44 (Appeals Board Significant Panel Decision), and found that in light of Governor Newsom’s 5/7/2020 Executive Order N-63-20 suspending in-person testimony…