California Compensation Cases May 2024

CALIFORNIA COMPENSATION CASES

Vol. 89, No. 5 May 2024

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

Appellate Court Compensation Case

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3 Stonedeggs, Inc. v. W.C.A.B. (Nanez, Braden) (3rd—C098711)

Injury AOE/COE—Commercial Traveler Rule—Court of Appeal, affirming WCAB’s decision, held that injury incurred by applicant in automobile accident while driving off-hours for personal reasons after leaving remote fire camp where he was temporarily working, was covered under “commercial traveler” exception to workers’ compensation “going and coming” rule, which provides...

Appellate Court Case Not Originating with Appeals Board

O’Bryan (Kevin) v. NuSil Technology (5th—F084899)

Exclusive Remedy Rule—Fraudulent Concealment Exception—Statute of Limitations—Court of Appeal, affirming trial court’s judgment, held that complaint filed by plaintiffs Kevin O’Bryan (O’Bryan) and his wife Tiffany O’Bryan against O’Bryan’s employer, defendant NuSil Technology, LLC, for fraudulent concealment under Labor Code § 3602(b)(2) was barred by...

Appeals Board En Banc Decision

Ledezma (Alfredo) v. Kareem Cart Commissary and Mfg (WCAB—ADJ8965291, ADJ10451326, ADJ10750348, ADJ15382349, ADJ15382351, ADJ16951068, ADJ16951573, ADJ16953628, ADJ16953629, ADJ16124753, ADJ16124750, ADJ17290772, ADJ16953860)

Sanctions—Bad Faith or Frivolous Conduct—WCAB, granting removal on its own motion, en banc, consolidated eight cases and issued separate notices of intention to impose sanctions of up to $20,000.00 each against attorney Susan Garrett and hearing representative Lance Garrett pursuant to Labor Code § 5813 and 8 Cal. Code Reg. § 10421(b), when WCAB believed...

Digests of WCAB Decisions Denied Judicial Review

Ross Stores v. W.C.A.B. (Herrera, Teresa) (4th—D083795)

Injury AOE/COE—Personal Comfort Doctrine—WCAB, denying reconsideration, affirmed WCJ’s finding that injuries applicant incurred on 7/14/2021 after finishing her work shift as retail clerk at employer Ross Stores but while still on employer’s premises clothes shopping during “double discount” day, on which employee’s received 40 percent discount, were compensable under personal comfort doctrine, under which...

Sabert Corporation v. W.C.A.B. (Vasquez, Cynthia) (4th—E082819)

Serious and Willful Misconduct—WCAB, denying reconsideration, affirmed WCJ’s finding that applicant machine operator established amputation injuries she incurred to her arm and fingers on 10/24/2016 while cleaning rollers on extruder machine resulted from employer’s serious and willful misconduct under Labor Code §§ 4553 and 4553.1, when applicant was...

Vior (Julie) v. W.C.A.B. (2nd—B334676)

Permanent Disability—Apportionment—Further Development of Medical Record—WCAB, denying reconsideration based on removal standard, affirmed its 10/3/2023 decision rescinding WCJ’s unapportioned award of 100 percent permanent disability for applicant’s cumulative injury to her hands and upper extremities while employed as painter...

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.

Burnett (Andrew) v. High Desert Juvenile Detention and Assessment

Center (WCAB—ADJ11250045)

Psychiatric Injury—Violent Acts—WCAB, denying reconsideration in split panel opinion, affirmed WCJ’s decision that applicant’s psychiatric injury was compensable consequence of orthopedic injury and did not result from “violent act” within meaning of Labor Code §§ 4660.1(c)(2)(A) and 3208.3(b)(2), and, therefore, applicant was not entitled to increased permanent disability for psychiatric injury, when applicant, while…

Caravez (Juan) v. Red Bluff Meadows (WCAB—ADJ9626208, ADJ11089339)

Permanent Disability—Apportionment—Benson Exception—Substantial Evidence—WCAB, granting reconsideration, rescinded WCJ’s combined award of 64 percent permanent disability for applicant’s two industrial back injuries, when WCJ’s combined award was issued based on his finding that combined award was…