California Workers' Comp Case Roundup (1/4/2014)

CALIFORNIA COMPENSATION CASES

Vol. 78 No. 12 December 2013

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 Cases

Federal Insurance Co. v. W.C.A.B. (Johnson, Adrienne), 78 Cal. Comp. Cases 1257 (lexis.com), 78 Cal. Comp. Cases 1257 (Lexis Advance)

WCAB Jurisdiction—Professional Athletes—Court of Appeal, annulling WCAB decision and remanding to WCAB with directions to dismiss employee’s application for workers’ compensation, held that California did not have sufficient interest in this matter to apply its workers’ compensation law and to retain jurisdiction over case, and that Court of Appeal had jurisdiction to review order in this case even though WCAB decision was not final decision or order, when Court of Appeal found …

San Diego Unified School Dist. v. W.C.A.B. (Findlay, James), 78 Cal. Comp. Cases 1269 (lexis.com), 78 Cal. Comp. Cases 1269 (Lexis Advance)

Medical Treatment Expenses—Reasonable Value of Services—Substantial Evidence—Court of Appeal, affirming decision of WCAB, held that substantial evidence supported WCAB’s finding as to reasonable value of applicant’s epidural injections, when Court of Appeal found…

Medical Treatment of Expenses—Reasonable Value of Services—Pre-Award Interest—Court of Appeal, affirming decision of WCAB, held that employer waived its contention that WCAB erroneously awarded lien claimant pre-award interest, when Court of Appeal found…

Reply Briefs—Motion to Strike—Court of Appeal denied as moot lien claimant’s motion to strike portions of defendant’s reply brief that raised new arguments and referred to facts outside record, when Court of Appeal found…

South Coast Framing, Inc. v. W.C.A.B. (Clark, Brandon), 78 Cal. Comp. Cases 1277 (lexis.com), 78 Cal. Comp. Cases 1277 (Lexis Advance)

Injury AOE/COE—Death—Substantial Evidence—Court of Appeal, annulling WCAB’s order denying reconsideration of WCJ’s decision that decedent died as result of medication he took after suffering industrial injury, and remanding with directions to enter new order denying claim, held that WCAB’s order was not supported by substantial evidence, when Court of Appeal found…

Appellate Court Cases Not Originating With Appeals Board

Beckley (Perry) v. Board of Administration of California Public Employees Retirement System, 78 Cal. Comp. Cases 1283 (lexis.com), 78 Cal. Comp. Cases 1283 (Lexis Advance)

Public Employees—Disability Retirements—Court of Appeal affirmed trial court’s holding that plaintiff/applicant was entitled to industrial disability retirement from California Public Employees’ Retirement System under Government Code § 20000 et seq., when Court of Appeal found…

Herrera v. Unistar Food Processing, Inc., 78 Cal. Comp. Cases 1294 (lexis.com), 78 Cal. Comp. Cases 1294 (Lexis Advance)

Civil Actions Against Employers—Exclusive Remedy Rule—Power Press Exception—Court of Appeal, affirming trial court’s grant of summary judgment in defendant’s favor, held that commercial meat grinder that caused plaintiff’s injury was not power press within meaning of Labor Code § 4558 and that plaintiff’s injury, therefore, did not fall within power press exception to rule that workers’ compensation was plaintiff’s exclusive remedy against defendant employer for this injury under Labor Code §§ 3600(a), 3602, when Court of Appeal found…

Porter (Mary) v. Board of Retirement of the Orange County Employees’ Retirement Association, 78 Cal. Comp. Cases 1305 (lexis.com), 78 Cal. Comp. Cases 1305 (Lexis Advance)

Public Employees—Disability Retirements—Effective Date—Court of Appeal affirmed trial court’s holding that plaintiff/applicant’s industrial disability retirement benefits should begin 2/15/2000, day following her last day of regular employment, pursuant to Government Code § 31724 and its legislative history (County Employees Retirement Law of 1937, Government Code § 31450 et seq.), without offset for sick leave or workers’ compensation temporary disability benefits, when Court of Appeal found …

Digests of WCAB Decisions Denied Judicial Review

Editorial Board members Francis V. Clifford, Hon. Jacqueline C. Duncan, Susan Hamilton, and James Pettibone, recommended the following writ denied cases for summarization in this issue.

Barrett Business Services, Inc. v. W.C.A.B. (Gallagher, Michael), 78 Cal. Comp. Cases 1318 (lexis.com), 78 Cal. Comp. Cases 1318 (Lexis Advance)

Permanent Disability—Rating—Diminished Future Earning Capacity—WCAB awarded applicant/production worker 100 percent permanent total disability, without apportionment, for admitted industrial injury to lumbar spine and psyche, notwithstanding agreed medical evaluator’s reporting that applicant had 35 percent whole person impairment under AMA Guides, when agreed medical evaluator opined that…

Bates (Bruce) v. W.C.A.B., 78 Cal. Comp. Cases 1322 (lexis.com), 78 Cal. Comp. Cases 1322 (Lexis Advance)

Permanent Disability—Rating—Vocational Expert Evidence—WCAB affirmed its prior decision rescinding WCJ’s finding that applicant/warehouse supervisor incurred 100 percent permanent disability as result of 2/10/92 industrial injuries to his cervical spine, low back, and psyche, and held that applicant’s injuries caused 80 percent permanent disability, after apportionment, when WCAB found …

City and County of San Francisco v. W.C.A.B. (Maliga, Laverne), 78 Cal. Comp. Cases 1326 (lexis.com), 78 Cal. Comp. Cases 1326 (Lexis Advance)

Injury AOE/COE—Employment-Related Educational Activities—WCAB affirmed WCJ’s finding that injuries incurred by applicant/firefighter to her right lower extremity and right ankle while attending trench rescue training class were compensable, even though class was not paid for by her employer, when WCAB found…

City of Foster City v. W.C.A.B. (McLaughlin, Michael), 78 Cal. Comp. Cases 1330 (lexis.com), 78 Cal. Comp. Cases 1330 (Lexis Advance)

Injury AOE/COE—Death from Vicodin Overdose—WCAB affirmed WCJ’s finding that decedent/police officer’s death arose out of and in course of his employment with defendant, when WCAB found…

Fike (Dan) v. W.C.A.B., 78 Cal. Comp. Cases 1334 (lexis.com), 78 Cal. Comp. Cases 1334 (Lexis Advance)

WCAB Jurisdiction—Exemptions—Professional Athletes—WCAB affirmed WCJ’s finding that applicant/professional football player was temporarily employed in State of California during period of alleged cumulative trauma while playing for Cleveland Browns, and that California WCAB lacked jurisdiction over applicant’s workers’ compensation claim pursuant to Labor Code § 3600.5(b) and en banc decision in Carroll v. Cincinnati Bengals (2013) 78 Cal. Comp. Cases 655 (Appeals Board en banc opinion), when WCAB found…

Graham (Paul) v. W.C.A.B., 78 Cal. Comp. Cases 1338 (lexis.com), 78 Cal. Comp. Cases 1338 (Lexis Advance)

Settlements—Compromise and Release Agreements—Interpretation—WCAB, affirming WCJ, held that order approving compromise and release, under which applicant/deputy sheriff received sum of $25,000, included settlement of applicant’s claim for injuries incurred in motorcycle accident involving third-party, in addition to applicant’s subsequent claim for industrial cumulative trauma cardiovascular injury, when WCAB found…

Jacobs v. W.C.A.B. (Gladden, Rochelle), 78 Cal. Comp. Cases 1345 (lexis.com), 78 Cal. Comp. Cases 1345 (Lexis Advance)

Death Benefits—Conclusive Presumption of Total Dependency—Domestic Partners—WCAB, reversing WCJ, held that decedent/parole agent’s same sex domestic partner was not entitled to Labor Code § 3501(b) conclusive presumption of total dependency for purpose of entitlement to death benefits, when WCAB found…

Russell (Lonnie) v. W.C.A.B., 78 Cal. Comp. Cases 1350 (lexis.com), 78 Cal. Comp. Cases 1350 (Lexis Advance)

Injury AOE/COE—Burden of Proof—Credibility Determinations—WCAB, in split panel decision, held that applicant/program supervisor did not sustain compensable consequence injury to right knee in addition to admitted industrial injury to her lumbar spine, when agreed medical evaluator found…

Verizon Communications v. W.C.A.B. (Head, Thomas), 78 Cal. Comp. Cases 1353 (lexis.com), 78 Cal. Comp. Cases 1353 (Lexis Advance)

WCAB’s Jurisdiction—Five-Year Statute of Limitations—Stipulations—WCAB, affirming WCJ, held that WCAB had jurisdiction to award applicant/maintenance worker 100 percent permanent disability beyond five years from date of injury to his right shoulder, when applicant had previously received stipulated award of 56 percent permanent disability, under which parties stipulated to defer issues regarding validity and rebuttal of 2005 Permanent Disability Rating Schedule, presumably pending court of appeal’s decision in Ogilvie v. City and County of San Francisco (2009) 74 Cal. Comp. Cases 1127 (Appeals Board en banc opinion), and WCAB found…

Other WCAB Decisions Denied Judicial Review

Companion Property and Casualty Insurance Co. v. W.C.A.B. (Alonso, Daniel), 78 Cal. Comp. Cases 1357 (lexis.com), 78 Cal. Comp. Cases 1357 (Lexis Advance)

Injury AOE/COE—Post-Termination Defense—WCAB held that defendant employer did not meet burden of proving post-termination defense of Labor Code § 3600(a)(10), when WCAB found…

Evidence—Adverse Inferences—WCAB found that neither party issued subpoena for defendant’s supervisor to testify at applicant’s trial, and WCAB…

Davido (David) v. W.C.A.B., 78 Cal. Comp. Cases 1359 (lexis.com), 78 Cal. Comp. Cases 1359 (Lexis Advance)

Compensation Rate—Earning Capacity—WCAB held that applicant’s earning capacity for purpose of receiving temporary disability benefits for 8/19/2010 industrial right ankle and left knee injury was $287.67 per week, based on applicant’s W-2s and testimony about wages from applicant’s job as athletic director for employer, and WCAB also held that…

Gjertsen (Angela) v. W.C.A.B., 78 Cal. Comp. Cases 1360 (lexis.com), 78 Cal. Comp. Cases 1360 (Lexis Advance)

Removal to WCAB—WCAB denied applicant’s petition to remove case to itself, when applicant’s step-daughter provided home health care services for applicant’s cumulative trauma industrial injury that occurred i1/16/2008 to 1/16/2009, when WCAB found…

Hariri v. W.C.A.B. (Johnson, Karen), 78 Cal. Comp. Cases 1361 (lexis.com), 78 Cal. Comp. Cases 1361 (Lexis Advance)

Petitions for Writ of Review—Contents of Petitions—Court of Appeal dismissed petition for writ of review because it did not state grounds on which relief could be granted, and Court of Appeal noted that petition for writ of review was not filed by active member of California State Bar, when petitioner…

Randall (Tracy) v. W.C.A.B., 78 Cal. Comp. Cases 1362 (lexis.com), 78 Cal. Comp. Cases 1362 (Lexis Advance)

Petitions for Writ of Review—Final Orders—Court of Appeal dismissed petition for writ of review not taken from final order or decision of WCAB, when applicant was appealing WCAB decision that rescinded WCJ’s decision holding that…

Regis Corp. v. W.C.A.B. (Matheney, Kathy), 78 Cal. Comp. Cases 1363 (lexis.com), 78 Cal. Comp. Cases 1363 (Lexis Advance)

Permanent Disability—Rating—WCAB awarded applicant 71 percent permanent partial disability, without apportionment and with life pension, for 1/11/1999 injury AOE/COE to upper back, cervical spine with radiculopathy and bilateral shoulder symptoms, and right upper extremity (including hand and fingers), when WCAB based…

Warner Bros. Pictures, Inc. v. W.C.A.B. (Hecht, Susan), 78 Cal. Comp. Cases 1364 (lexis.com), 78 Cal. Comp. Cases 1364 (Lexis Advance)

Injury AOE/COE—WCAB held that applicant executive assistant sustained injury AOE/COE to psyche, digestive system, head, and sleep disorder in period 9/15/92 through 10/19/2007, based on applicant’s unrebutted testimony and opinions from two physicians (including psychiatric agreed medical evaluator), that applicant’s employment was…