California Compensation Cases May 2021

CALIFORNIA COMPENSATION CASES

Vol. 86, No. 5 May 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 Compensation Case

Applied Materials v. W.C.A.B. (D.C.), Lexis Advance

Cumulative Trauma—Date of Injury—Court of Appeal, affirming WCAB’s finding, held that applicant’s date of injury under Labor Code § 5412 for cumulative trauma to her neck, both upper extremities, and psyche was in 2008 (during XL Specialty Insurance Company’s period of coverage), not in 2002 (during Arrowood Indemnity Company’s coverage), when applicant, who worked for employer from 1996 until 2008, sustained, in addition to cumulative trauma, specific injury to her neck and right upper extremity in 2001 and specific injury to her neck and both upper extremities in 2005, due to constant, repeated use of computer keyboard and mouse at work, but applicant returned to modified work after 2001 injury and continued to perform such work, punctuated by periods of temporary total disability, until 2008, and Court of Appeal concluded...

Injury AOE/COE—Post-Traumatic Stress Disorder From Medical Treatment—Sexual Misconduct of Medical Provider—Court of Appeal, affirming WCAB’s finding, held that applicant met burden of proving that her post-traumatic stress disorder (PTSD) was compensable consequence injury that resulted from medical treatment for industrial injuries incurred by applicant in 2001, 2005 and during cumulative period ending in 2008, and that her employment was contributing cause of PTSD without which injury would not have occurred, when Court of Appeal found that applicant’s treating physician engaged in inappropriate sexual relations with applicant while treating applicant for her industrial injuries, that there was substantial evidence doctor had duty of care to applicant as her treating physician and breached duty by using his position as her physician, together with diminished capacity brought about by applicant’s over-medication, to induce applicant to engage in otherwise unwanted sexual relations over period of several years while treating her, that breach of duty caused harm, and that since applicant’s psychiatric disability was caused in part by treating physician’s negligence, it was compensable, and Court of Appeal rejected defendants’...

Permanent Disability—Defendants’ Joint and Several Liability—Court of Appeal, affirming WCAB’s finding, held that defendant XL Specialty Insurance Company was jointly and severally liable for permanent disability caused by sexual exploitation of applicant by physician treating her industrial injuries, when Court of Appeal found there was substantial evidence...

Injury AOE/COE—Medical Reports—Substantial Evidence—Court of Appeal, affirming WCAB’s finding, rejected defendant XL Specialty Insurance Company’s challenges to sufficiency of agreed medical examiner’s reports to support WCAB’s finding of orthopedic injuries during defendant’s coverage period, and found that contrary to defendant’s assertions, agreed medical examiner’s evaluation included extensive review of applicant’s medical records and it was not necessary for agreed medical examiner to re-examine applicant after 2011 to opine regarding industrial causation since applicant’s injuries predated 2008, and agreed medical examiner had information he needed to form opinion regarding causation.

Psychiatric Injury AOE/COE—Substantial Evidence—Court of Appeal, affirming WCAB’s finding, rejected defendant Arrowood Insurance Company’s challenge to sufficiency of evidence to support WCAB’s finding of psychiatric injury due to applicant’s 2001 orthopedic injury, when Court of Appeal found there was substantial evidence that applicant’s post-traumatic stress disorder…

New and Further Disability—WCAB Jurisdiction—Court of Appeal, affirming WCAB’s finding, rejected defendant Arrowood Insurance Company’s challenge to sufficiency of evidence to support finding of new and further disability within five years of applicant’s November 2001 industrial injury, when Court of Appeal found there was substantial evidence of new need for medical treatment, including psychiatric treatment, before November 2006 that supported WCAB’s implied finding of new and further disability from November 2001 injury.

Permanent Disability—Applicable Rating Schedule—Court of Appeal, affirming WCAB’s finding, held that 2005 Permanent Disability Rating Schedule (2005 Schedule), not 1997 Schedule for Rating Permanent Disabilities (1997 Schedule), applied to applicant’s psychiatric permanent disability claim, and therefore there was no merit to defendant Arrowood Insurance Company’s assertion that report of psychiatric qualified medical evaluator describing applicant’s psychiatric permanent disability according to GAF scale in 2005 Schedule rather than according to work functions in 1997 Schedule was not substantial evidence with respect to 2001 injury for which defendant had coverage, when Court of Appeal reasoned that 2005 Schedule applies to all injuries incurred after 1/1/2005, unless exception to application of 2005 Schedule set forth in Labor Code § 4660(d) is applicable, that applicant here did not suffer psychiatric injury until after 1/1/2005…

Permanent Disability—Rating—Rebuttal of Scheduled Rating—Court of Appeal annulled WCAB’s award of 100 percent permanent disability for applicant’s psychiatric injury, and returned matter to WCAB for further proceedings on issue of permanent disability, when Court of Appeal found that reports of psychiatric qualified medical evaluator relied upon by WCAB did not constitute substantial evidence because...

Federal Circuit Court Opinion of Related Interest

California Trucking Association v. Bonta, Lexis Advance

Motor Carriers—Standing to Bring Suit to Enjoin Enforcement of AB5—U.S. Court of Appeals, Ninth Circuit, held that plaintiffs California Trucking Association and its members had standing to bring suit to enjoin state from enforcing AB5 against motor carriers operating in California, when complaint alleged that plaintiffs currently contract with independent truck owner-operators, rather than employees, to provide transportation services on their behalf, which is permissible under 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, but not under “ABC” test in AB5 (see Labor Code § 2775), and that plaintiffs are continuing with these current business practices, which violate AB5, and Court of Appeals, applying three-prong test, concluded that plaintiffs had standing to bring suit… [Editor’s Note: AB5 was repealed effective 9/4/2020, and its provisions were revised and recast in AB2257, but portion of AB5 that set forth “ABC” test was unchanged].

Employee Classifications—Motor Carriers/Truck Drivers—Application of “ABC” Test—Federal Preemption—U.S. Court of Appeals, Ninth Circuit, in split panel opinion reversed district court’s order enjoining enforcement of “ABC” test, as outlined 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 AB5 (see Labor Code § 2775), against motor carriers doing business in California, when district court issued preliminary injunction on basis that such enforcement was preempted by Federal Aviation Administration Authorization Act of 1994 (FAAAA), which expressly preempts any state law related to price, route, or service of any motor carrier with respect to transportation of property, but Court of Appeals panel majority found…[Editor’s Note: AB5 was repealed effective 9/4/2020, and its provisions were revised and recast in AB2257, but portion of AB5 that set forth “ABC” test was unchanged].

Digest of WCAB Decision Denied Judicial Review

Ozuna (Ernest) v. W.C.A.B., Lexis Advance

Third-Party Settlements—Employer’s Credit Rights—WCAB affirmed WCJ’s finding that employer could assert Labor Code § 3861 credit against its future workers’ compensation liability in amount equal to applicant’s net recovery in his personal injury action against third-party defendant, totaling $1,584,068.81, after employer paid $1,245,147.98 in workers’ compensation benefits based on its proportional share of liability, and WCAB, distinguishing instant case from S. Cal. Edison Co. v. W.C.A.B. (Tate) (1997) 58 Cal. App. 4th 766, 68 Cal. Rptr. 2d 265, 62 Cal. Comp. Cases 1403, determined that employer was not required…

Other WCAB Decision Denied Judicial Review

Javier v. W.C.A.B. (Moreno, Beatriz), Lexis Advance

Injury AOE/COE—Apportionment of Permanent Disability—Unauthorized Acts—WCAB affirmed WCJ’s finding that applicant suffered cumulative injury to her neck and back while working as caregiver during period 7/31/2010 through 7/31/2011 and that injury resulted in 29 percent permanent disability, without basis for apportionment, when WCAB found that applicant credibly testified regarding her job duties...

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.

Angell (Sharon) v. Subsequent Injuries Benefits Trust Fund, Lexis Advance

Discovery—Disclosure of Social Security Information—Credit Rights of Subsequent Injuries Benefits Trust Fund—WCAB, affirming WCJ’s finding, held that WCJ had authority to order applicant seeking benefits from Subsequent Injuries Benefits Trust Fund (SIBTF) to disclose information regarding her social security disability benefits so that credit to which SIBTF may be entitled under Labor Code § 4753 could be determined, when WCAB rejected applicant’s assertion that deposition was sole discovery procedure permitted in workers’ compensation proceedings, and determined that WCAB may order discovery…

Brar (Binu) v. County of Fresno, Lexis Advance

Medical-Legal Procedure—Selection and Assignment of Qualified Medical Evaluators—WCAB, affirming WCJ’s decision, held that applicant’s letter to defendant was sufficient to trigger 10-day period in which to request qualified medical evaluator panel from Medical Unit, that panel in pain medicine issued by Medical Unit in response to applicant’s request was valid, and that parties were required to utilize qualified medical evaluator selected from panel following strike process, when applicant, who suffered injury to cervical spine, hands, left shoulder, thoracic spine, and in forms of headache, sleep dysfunction, TMJ, constipation, and palpitations while employed as finance division chief through 7/24/2020, sent defendant letter requesting medical evaluation on 7/9/2020 and waited 10 days, plus five days for mailing, before requesting qualified medical evaluator panel from Medical Unit on 7/24/2020, pursuant to procedure in Labor Code §§ 4060 and 4062.2, and WCAB found that Labor Code § 4060 did not require represented applicant…

Rosenbrook (Kenneth) v. Knight-Swift Transportation Holdings, Inc., Lexis Advance

Medical-Legal Procedure—Telehealth Evaluations—Emergency Regulations—COVID-19 Pandemic—WCAB, affirming WCJ’s decision, found that defendant’s refusal to allow applicant to undergo panel qualified medical evaluation for 6/27/2013 internal injury claim via telehealth rather than in person was unreasonable pursuant to emergency regulation 8 Cal. Code Regs. § 46.2(a)(3), when applicant resided in State of Washington and medical evaluation was set in California, thereby requiring applicant to travel to attend in-person evaluation, qualified medical evaluator confirmed he was willing and able to conduct telehealth evaluation of applicant’s condition, and WCAB found that contrary to defendant’s contention...