California Compensation Cases November 2023

CALIFORNIA COMPENSATION CASES

Vol. 88, No. 11 November 2023

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

Granite Construction Company v. Occupational Safety and Health Appeals Board, Lexis

Occupational Injuries—Valley Fever—OSHA Safety Regulations—Court of Appeal reversed trial court’s judgment denying project subcontractor’s petition for writ of administrative mandate seeking to set aside decision wherein Occupational Safety and Health Appeals Board (Board) found that construction subcontractor violated 8 Cal. Code Reg. § 5144(a)(1) by exposing its employees to dust containing Coccidioides (fungus that causes Valley Fever), and by failing to implement adequate measures to limit this exposure, and Court of Appeal instructed trial court to grant subcontractor’s writ petition in part, when Court of Appeal found that there was no substantial evidence supporting...

Jones v. The Regents of the University of California, Lexis

Workers’ Compensation Exclusive Remedy—Application of Premises Line Rule—Court of Appeal, affirming trial court’s decision, held that trial court properly granted summary judgment for defendant Regents of the University of California (University) in action brought by plaintiff employee and her husband for injuries sustained by employee while riding her bike on University’s Irvine campus grounds on her way home from work, when Court of Appeal found that workers’ compensation exclusivity rule...

State Compensation Insurance Fund v. Department of Insurance, Lexis

Workers’ Compensation Insurance Policy Premium Calculation—Agency Decisions Designated as Precedential—Settlement Agreements—Court of Appeal, affirming trial court’s decision, held that trial court properly granted summary judgment in favor of defendant California Department of Insurance (Department), when plaintiff State Compensation Insurance Fund (State Fund) did not timely file petition for writ of administrative mandate challenging Insurance Commissioner’s decision that...

Digest of WCAB Decision Denied Judicial Review

David Silver, M.D. v. W.C.A.B. (Ortiz, Deborah), Lexis

Liens—Medical Treatment—Burden of Proof—WCAB, after granting reconsideration, affirmed WCJ’s finding that lien claimant failed to meet his burden of proof that applicant sustained injury AOE/COE and, therefore, he was not entitled to recovery on his lien for medical services provided to applicant over period 2/19/2004 to 11/9/2011, when WCAB reasoned that absent stipulations regarding alleged injury and injured body parts, lien claimants must prove injury AOE/COE in order to recover on their liens, and that lien claimant in this matter provided no evidence of injury AOE/COE to warrant provision of medical services on industrial basis, and provided no legal support for his assertion that issue of injury AOE/COE was waived at trial.

Other WCAB Decisions Denied Judicial Review

Lankster (Velma) v. W.C.A.B., Lexis

Injury AOE/COE—Substantial Medical Evidence—WCAB’s Duty to Develop Record—WCAB, granting reconsideration, amended WCJ’s finding regarding permanent disability, but concurred with WCJ that opinion of orthopedic qualified medical evaluator was substantial evidence to support determination that applicant only suffered industrial injury to her left thigh and to no other body part, and also concluded that there was no basis to further develop medical record in this matter, where applicant failed to exercise due diligence to obtain evidence supporting her claims, and it is not WCAB’s job to rescue party by ordering development of record.

Sellers (Alvin) v. W.C.A.B., Lexis

Penalties—Delay in Payment of Deposition Fees—WCAB, after granting reconsideration, affirmed WCJ’s order denying applicant’s petition for penalties under Labor Code § 5814 for defendant’s alleged delayed payment of deposition fees which WCJ determined were owed to applicant based on parties’ stipulation, when WCAB found that defendant did not unreasonably delay payment of deposition fees, where record established that...

Appeals Board Panel Decisions

Canahui De Buraye (Marleny) v. Smithfield Foods, Inc., 88 CCC Lexis

Psychiatric Injury—Entitlement to Increased Impairment Rating—WCAB, granting reconsideration, amended decision in which WCJ found that applicant meat processing worker who injured her fingers on 4/5/2019 while cleaning meat cutter was not entitled to increased impairment rating for psychiatric injury based on qualified medical evaluator’s (QME) finding that psychiatric injury was compensable consequence of orthopedic injury, and WCAB returned matter to WCJ for further proceedings on issue of increased impairment, when WCAB found that QME’s opinion was not substantial evidence on which WCJ could rely because it was insufficient for QME, who determined that applicant’s psychiatric injury was...

Moss (Earl) v. Kaiser Foundation Health Plan, Lexis

Medical Treatment—Independent Medical Review—Appeals—WCAB, after granting reconsideration, affirmed WCJ’s order remanding parties’ medical dispute to Administrative Director for evaluation by new independent medical reviewer after finding that 2/2/2022 independent medical review (IMR) determination upholding utilization review (UR) non-certification of requested medical treatment (platelet rich plasma injections) to treat applicant’s 1/3/2006 right shoulder injury was based on clearly erroneous finding of fact which was matter of ordinary knowledge, when WCAB found that IMR determination essentially adopted UR’s erroneous rationale for denial of treatment, which ignored...

Ortega Gonzalez (Jesus) v. Major Transportation Services, Inc., Lexis

Employment Relationships—Dual Employment—WCAB, denying reconsideration, affirmed WCJ’s finding that applicant, while working as truck driver on 9/2/2018, was employed by trucking company Major Transportation Services (Major Transportation) and by Professional Employer Organization (PEO) Peoplease LLC (Peoplease), and that Peoplease was required to provide workers’ compensation for Major Transportation’s joint employees, when WCAB reasoned that dual employment exists where employee is sent by one employer (general employer) to work for another employer (special employer), and both employers have...

Scirone (Maria) v. Conejo Valley Unified School District, Lexis

Serious and Willful Misconduct of Employer—WCAB, denying reconsideration, affirmed WCJ’s finding that applicant did not establish injuries she incurred on 4/6/2017 when she tripped and fell over student’s backpack in classroom while employed as school home economics teacher resulted from employer’s serious and willful misconduct under Labor Code §§ 4553 and 4553.1, when applicant relied on alleged violation of maximum number of occupants allowed in her classroom per California Building Code and violation of minimum square footage required in Consumer Home Economic labs per California Code of Regulations to support her claim that defendant was liable for serious and willful misconduct, but WCAB reasoned that it was unclear that cited maximum number of occupants and minimum square footage applied...

Soormi (Youarash) v. Foster Farms, Lexis

Permanent Disability—Apportionment—WCAB, denying reconsideration, affirmed WCJ’s findings that applicant suffered 100 percent permanent disability as result of 8/22/2019 industrial injury to his right hand and fingers while working as laborer/machine operator, and that there was no basis for apportionment of applicant’s permanent disability, when WCAB found that defendant offered no evidence and did not prove apportionment of disability to medical conditions, that although applicant qualified for only 4 percent of labor market prior to his injury, he was totally disabled and incapable of being vocationally rehabilitated solely as result of his industrial injury as determined by agreed medical evaluator, and that apportionment...