California Compensation Cases October 2020

CALIFORNIA COMPENSATION CASES

Vol. 85, No. 10 October 2020

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

Contreras Curiel Corp. v. The Superior Court of San Diego County, G.S., Lexis Advance

Exclusive Remedy Rule—Wrongful Death—Employee’s Intoxication—Court of Appeal, vacating trial court’s order and granting summary judgment in favor of employer, held that plaintiff’s wrongful death claim against his mother’s employer, brought through guardian ad litem, for death of his mother in single-vehicle car accident which occurred on her way home from work as server at employer’s restaurant, and which plaintiff alleged was caused by her intoxication, was barred by exclusive remedy provisions of Workers’ Compensation Act, when Court of Appeal found that evidence, viewed in light most favorable to plaintiff, showed that employer allowed and encouraged its servers to consume alcohol...

Federal District Court Opinion of Related Interest

Brooks v. Corecivic of Tennessee LLC, 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, 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 found that, contrary to defendant’s contention, plaintiff was permitted…

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’s claims against defendant, her former employer, for negligent supervision and intentional infliction of emotional distress based on defendant’s COVID-19 response, which plaintiff, who worked as correctional officer at detention center operated by defendant, alleged was severely inadequate, when District Court found that plaintiff’s claims were barred…

Digests of WCAB Decisions Denied Judicial Review

County of San Bernardino v. W.C.A.B. (Cortes, Camille), Lexis Advance

Injury AOE/COE—Stress-Related Physical Injuries—Burden of Proof—WCAB rescinded WCJ’s finding that applicant’s claim for cumulative injuries to her head, brain, digestive system, and excretory system while employed as probation officer through 10/26/2017 was barred by good faith personnel action defense in Labor Code § 3208.3(h), and held that Labor Code § 3208.3(h) was not applicable…

Hablian (Jack), Esterly (Linda), Baxter (Gene), Case (Joseph), Camacho (Omar) v. W.C.A.B., Lexis Advance

WCAB Procedure—Class Certification—WCAB affirmed WCJ’s order denying applicants’ petition for class certification to pursue class action against multiple insurance companies for failure to pay workers’ compensation benefits under Labor Code § 4650(d), when WCAB found that to prevail on class certification petition, applicants were required to establish six elements…

Hom (Stephen) v. W.C.A.B., Lexis Advance

Permanent Disability—Apportionment—Prior Awards—WCAB, rescinding WCJ’s award of 30 percent permanent disability, awarded applicant police officer 10 percent permanent disability for 11/16/2013 lumbar spine injury, after apportionment of 20 percent pursuant to Labor Code § 4664 for prior Stipulated Award of permanent disability in connection with 2012 lumbar spine injury, when WCAB reasoned that, contrary to WCJ’s determination, apportionment was not precluded...

Infinity Staffing v. W.C.A.B. (Guillen, Heriberto), Lexis Advance

Workers’ Compensation Judges—Disqualification—WCAB, in split panel opinion, denied defendant’s petition to disqualify WCJ from applicant’s workers’ compensation case based on her testimony in criminal case against applicant for workers’ compensation insurance fraud under Insurance Code § 1871.4, when WCAB panel majority found that testimony provided by WCJ regarding matters in applicant’s workers’ compensation case did not, as claimed by defendant…

Meadowbrook Insurancee Co v. W.C.A.B. (Gamez, Luis), Lexis Advance

Temporary Disability—Seasonal Workers—WCAB affirmed WCJ’s finding that applicant who sustained industrial injury to his low back on 10/1/2018 while working as farm laborer for defendant was regular, year-round worker, and not seasonal employee, at time of his injury, and that he was, therefore, entitled to temporary disability indemnity from 10/1/2018 and continuing on year-round basis, without regard to “seasons,” when WCAB found that evidence established applicant was…

Other WCAB Decisions Denied Judicial Review

Carwell, LLC v. W.C.A.B. (Pinto, Waldina), Lexis Advance

Cumulative Trauma—Substantial Evidence—WCAB affirmed WCJ’s finding that applicant suffered cumulative injury to her right knee, in addition to other body parts, while working as shuttle driver for car dealership during period 1/1/2014 to 9/8/2015, resulting in permanent disability, when panel qualified medical evaluator opined that applicant’s torn meniscus was caused by repetitive activities applicant performed at her job, rather than by specific event or incident, and also described permanent disability in applicant’s knee related to meniscus tear, and WCAB found that medical evaluator’s opinion constituted substantial evidence to support WCJ’s finding of cumulative trauma and his award of permanent disability.

Employbridge, LLC v. W.C.A.B. (Ramirez, Cecilia), Lexis Advance

Petitions for Writ of Review/Mandate—Premature Petitions—No Reasonable Basis for Petition—Court of Appeal dismissed defendant’s Petition for Writ of Review as premature and denied Petition for Writ of Mandate, and remanded case to WCAB for purpose of awarding attorney’s fees pursuant to Labor Code § 5801, when WCAB had not yet issued final order or award in this case, and Court of Appeal found no reasonable basis for defendant’s petition for writ of review challenging WCAB’s non-final order returning matter to trial level for further development of medical evidence on issue of whether applicant suffered injury AOE/COE while working as machine operator/packer through 6/19/2017.

LM Insurance Corp. v. W.C.A.B. (Havner, Spencer), Lexis Advance

Insurance Coverage—Out-of-State Employers—Professional Athletes—WCAB affirmed arbitrator’s finding that State Compensation Insurance Fund (SCIF), who issued insurance policy covering players of United Football League’s (UFL) California-based Sacramento Mountain Lions, had no coverage for cumulative injury suffered by applicant while playing professional football for UFL’s Nevada-based Las Vegas Locomotives, and did not absolve LM Insurance Corporation (LM) from liability for applicant’s injury, when applicant was never employed by Sacramento Mountain Lions.

Meadowbrook Insurance Group v. W.C.A.B. (Acosta, Maria), Lexis Advance

Injury AOE/COE—Burden of Proof—WCAB, affirming WCJ’s decision, held that applicant met burden of proving that, while employed as seasonal grape picker on 8/11/2017, she suffered industrial injury to her back and right shoulder while moving table, when WCAB found that WCJ did not err by admitting report of applicant’s treating physician into evidence and relying on that report over inconsistent report of panel qualified medical evaluator to find that applicant suffered injury AOE/COE...

Security National Insurance Co. v. W.C.A.B. (Reinke, Jeffrey), Lexis Advance

Insurance Coverage—Scope of Coverage—WCAB, affirming arbitrator’s decision, held that workers’ compensation insurance policy issued by Security National Insurance Company to subcontractor on construction project had coverage for accepted industrial injury incurred by applicant, subcontractor’s employee, when he was struck by car on 1/25/2017 while walking on public street from parking lot to job site, prior to start of work day, and, in turn, found that applicant’s injury.

Wesco Aircraft Hardware v. W.C.A.B. (Kurtz, Karl), Lexis Advance

Petitions for Writ of Review—Premature Petitions—Court of Appeal dismissed defendant’s Petition for Writ of Review as premature, when WCAB, while affirming WCJ’s finding that defendant violated Labor Code § 132a by terminating applicant who suffered industrial injury to his back during period 2/1/2005 to 2/26/2014 while employed as quality control inspector, had not yet issued final order or award in this case, but rather returned matter to trial level for further proceedings regarding whether applicant was medically fit for reinstatement to his employment and whether he was entitled to reimbursement of certain lost wages.

Workforce Integration, Inc. v. W.C.A.B. (Alonso, Miguel), Lexis Advance

Injury AOE/COE—Cumulative Trauma—Lack of Substantial Evidence—WCAB affirmed WCJ’s finding that defendant did not meet burden of proving that applicant, who suffered fatal industrial injury in traffic accident on 5/27/2017 while employed as truck driver by defendant, also suffered cumulative trauma in form of fatigue during period 5/26/2017 to 5/27/2017, which contributed to accident, while working shift for different employer, when WCAB found that evidence showed…

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.

Miller (Brandy) v. Apple One Employment Services, Lexis Advance

Medical Treatment—Utilization Review—Time Deadlines—WCAB affirmed WCJ’s decision awarding applicant administrative coordinator who suffered 2/4/2010 industrial injuries to her neck, upper and lower extremities, psyche, spinal cord, and in form of Brown-Seguard Syndrome, reasonable and necessary medical treatment, including wheelchair accessible van, home health care services, hospital bed and mattress, and wheelchair cushion, when defendant’s utilization review (UR) denials of requested treatment were untimely, and WCAB found that faulty fax transmission of request for authorization (RFA) for treatment sent by applicant’s primary treating physician did not relieve defendant of responsibility to investigate applicant’s need for requested medical treatment and issue timely UR determinations, where WCAB reasoned that defendants have regulatory duty…

Sauceda (Patrick) v. Fresno Unified School District, Lexis Advance

Serious and Willful Misconduct of Employer—WCAB, affirming WCJ’s decision in split panel opinion, held that applicant, while employed by school district as special education teacher on 9/30/2008, sustained industrial injury to his head, left eye, and left knee when student assaulted him, and that, in failing to warn applicant of student’s violent tendencies, employer engaged in serious and willful misconduct under Labor Code § 4553, and WCAB, in finding serious and willful misconduct by employer, reasoned that California school districts have affirmative duty under Education Code...

Villa Campos (Jorge) v. Mt. Diablo Country Club, Lexis Advance

Medical-Legal Procedure—Qualified Medical Evaluator Panel Requests—WCAB, granting removal, rescinded WCJ’s finding that defendant’s request for qualified medical evaluator panel was valid even though request was incorrectly made pursuant to statutory procedure set forth in Labor Code § 4060, applicable to disputed injury cases, rather than Labor Code § 4062, applicable when injury is accepted and only nature and extent of injury is in dispute, and WCAB returned matter to WCJ for further proceedings, when WCAB determined that defendant’s dispute properly arose under Labor Code § 4062...