California Compensation Cases January 2021

CALIFORNIA COMPENSATION CASES

Vol. 86, No. 1 January 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 Cases Not Originating With Appeals Board

Adir International, LLC v. The Travelers Indemnity Co., Lexis Advance

Insurance Policies and Endorsements—Arbitration Provisions—Trial Court’s Jurisdiction to Reconsider Prior Order Based On New Law—Court of Appeal, affirming trial court’s ruling, held that trial court did not abuse its discretion and had jurisdiction to grant reconsideration of its 8/21/2015 order denying plaintiff insured’s motion to declare arbitration provisions contained in unfiled side agreement to workers’ compensation insurance policy issued by defendant insurer unenforceable, based on decision in Nielsen Contracting, Inc. v. Applied Underwriters, Inc. (2018) 22 Cal. App. 5th 1096, 232 Cal. Rptr. 3d 282, when Nielsen court ruled…

Insurance Policies and Endorsements—Arbitration Provisions—Jurisdiction to Decide Enforceability—Court of Appeal, affirming trial court’s decision, held that trial court, not arbitration panel, should decide plaintiff insured’s challenge to enforceability of arbitration provisions...

Insurance Policies and Endorsements—Arbitration Provisions—Filing Requirements and Approval by Insurance Commissioner—Court of Appeal, affirming trial court’s decision, held that arbitration provisions contained in unfiled side agreement to workers’ compensation insurance policy were void and unenforceable, when Court of Appeal found that arbitration provisions materially modified workers’ compensation insurance policy...

Insurance Policies and Endorsements—Arbitration Provisions—Federal Preemption of State Filing Requirements—Court of Appeal, affirming trial court’s decision, held that Insurance Code § 11658 was not preempted by Federal Arbitration Act (FAA), when Court of Appeal found that FAA preempts generally applicable state law if it is applied in fashion that disfavors arbitration or interferes with purpose of FAA, but does not preempt neutral state law contract formation requirement...

Lopez (Jacob) v. Los Angeles County Metropolitan Transportation Authority, Lexis Advance

Fair Employment and Housing Act—Judicial Estoppel—Effect of Other Proceedings on Claims Under Fair Employment and Housing Act—Court of Appeal, affirming trial court’s grant of summary judgment in favor of defendant, held that plaintiff who successfully sought and obtained retirement disability benefits from California Public Employees’ Retirement System (CalPERS) based on his assertion that physical restrictions resulting from his orthopedic injuries precluded him from returning to his position as transit security lieutenant, could not prevail on his action against defendant…

Appeals Board Significant Panel Decision

Gao (Limin) v. Chevron Corporation, Lexis Advance

Hearings—Continuances—COVID-19 Pandemic—Due Process—WCAB, in Significant Panel Decision, rescinded WCJ’s order that trial of applicant’s psychiatric injury claim for period 5/2/2014 to 7/2/2015 be continued due to COVID-19 pandemic until such time as in-person testimony is allowed, and WCAB returned matter to trial level for further proceedings, when WCAB determined that continuance of trial to allow for in-person testimony without affording applicant opportunity to be heard violated…

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.

Banuelos (Francisco, Dec’d) (Michele, Wife) v. Time Warner, Inc., Lexis Advance

Medical-Legal Procedure—Admissibility of Consulting Physician’s Reports—WCAB, rescinding WCJ’s decision, held that report of consulting physician obtained by applicant outside process in Labor Code § 4062.2 was admissible at trial of applicant’s claim for death benefits stemming from death of her husband on 11/22/2015, six weeks after receiving colon cancer diagnosis, when WCAB, citing Batten v. Workers’ Comp. Appeals Bd. (2015) 241 Cal. App. 4th 1009, 194 Cal. Rptr. 3d 511, 80 Cal. Comp. Cases 1256, found that Labor Code § 4605 permits admission of report by consulting physician as long as report...

Injury AOE/COE—Burden of Proof—Substantial Medical Evidence—WCAB, rescinding WCJ’s decision, held that decedent’s widow, applicant herein, met burden of proving that decedent, while employed as maintenance technician through 10/9/2015, suffered industrially-related colon cancer, resulting in his death on 11/22/2015, based on reports of panel qualified medical evaluator and reports of consulting physician obtained by applicant, when both physicians concluded that decedent’s longstanding industrial exposure to radiofrequency radiation…

Milla (Bryan) v. United Guard Security, Inc., Lexis Advance

Psychiatric Injury—Six-Month Employment Requirement—Burden of Proof—WCAB, in split panel opinion, rescinded WCJ’s finding that applicant security guard’s claim for 8/4/2017 psychiatric injury was barred by six-month employment requirement in Labor Code § 3208.3(d), and returned matter to trial level for further proceedings, when WCAB panel majority found that WCJ improperly assigned burden of proof to applicant to show he was employed by defendant for at least six months, and WCAB explained that once injured employee presents substantial medical evidence...

Evidence—Admissibility and Authentication—Instagram Photographs—WCAB, rescinding WCJ’s decision and returning matter to trial level, found that absent genuine question regarding accuracy or reliability of Instagram “selfies” submitted into evidence by applicant to show when he worked for defendant, which was relevant to length of his employment for purposes of six-month employment requirement in Labor Code § 3208.3(d), photographs were presumed to be accurate representation of images they represented...

Munoz (Leonore) v. Department of Corrections, Lexis Advance

Psychiatric Injury—Good Faith Personnel Actions—WCAB, rescinding WCJ’s decision in split panel opinion, held that applicant’s claim for psychiatric injury incurred while working for defendant Department of Corrections as case records analyst during period 10/28/2014 through 10/28/2015, was not barred by good faith personnel action defense in Labor Code § 3208.3(h), when WCAB panel majority found that 10/28/2015 email from applicant’s supervisor to applicant and her co-workers...

Ross (Gary) v. California Highway Patrol, Lexis Advance

Permanent Disability—Calculating Apportionment—Lifetime Cap on Benefits—WCAB, amending WCJ’s award of permanent disability, held that applicant who suffered 91 percent permanent disability from admitted cumulative injury to his heart and in forms of atrial fibrillation and hemorrhoids while employed as highway patrol officer over period 6/30/2008 through 6/30/2009, was entitled to maximum award of 41 percent permanent disability, based on 100 percent lifetime cap on benefits for permanent disabilities affecting same body region under Labor Code § 4664(c)(1), when record established that applicant received prior Stipulated Awards totaling 59 percent permanent disability for four prior injuries involving same regions of body as defined in Labor Code § 4664(c)(1)(G), and WCAB, deducting 59 percent permanent disability…