California Workers' Comp Case Roundup (10/2/2015)

CALIFORNIA COMPENSATION CASES

Vol. 80 No. 9 September 2015

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

Garcia v. Seacon Logix, Inc., lexis.com, Lexis Advance

Employment Relationships—Employees vs. Independent Contractors—Court of Appeal, affirming trial court’s judgment, held that substantial evidence supported trial court’s finding that plaintiffs were employees of defendant, not independent contractors, when Court of Appeal found that…

Federal District Court Opinions of Related Interest

O’Connor v. Uber Technologies, Inc., lexis.com, Lexis Advance

Employment Relationships—Employees vs. Independent Contractors—Class Certification—U.S. District Court, Northern District of California, ruling on plaintiffs’ motion for class certification, certified class action on behalf of specified drivers and former drivers for defendant to pursue their claim that defendant violated California’s Unfair Competition Law by violating Labor Code § 351 in uniformly failing to pass on entire amount of any tip or gratuity “that is paid, given to, or left for an employee by a patron,” when U.S. District Court, Northern District of California, found that…

Perez v. Abbas, lexis.com, Lexis Advance

Employment Relationships—Misclassification of Employees—U.S. District Court, Northern District of California, held that defendant owner of taxi cab companies misclassified drivers as independent contractors when, in fact, they were employees within meaning of 29 U.S.C.S. § 203(e)(1), when court found, inter alia, that drivers were required to work 12-hour shifts six days per week, that drivers were not permitted to…

Perez v. National Consolidated Couriers, Inc., lexis.com, Lexis Advance

Employment Relationships—Misclassification of Employees—U.S. District Court, Northern District of California, entered consent judgment and order against defendants owners of courier services that delivered and picked up packages, and whose drivers they had misclassified as independent contractors, permanently enjoining defendants from violating specified provisions of Fair Labor Standards Act, i.e., misclassifying any employee as independent contractor, paying employees at rate of…

State Agency Opinion of Related Interest

Berwick v. Uber Technologies, Inc., lexis.com, Lexis Advance

Employment Relationships—Employees vs. Independent Contractors—Hearing Officer of California Labor Commissioner, holding that plaintiff, former driver for defendant, was defendant’s employee, not independent contractor, ordered that defendant, pursuant to Labor Code § 2802, pay plaintiff reimbursable expenses consisting of IRS mileage rate for miles driven while working for defendant, plus bridge tolls, plus interest, when Hearing Officer found that, pursuant to S. G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal. 3d 341, 769 P.2d 399, 256 Cal. Rptr. 543, 54 Cal. Comp. Cases 80, factors relevant to resolving issue of employment vs. independent contractor indicated that...

Federal Agency Opinion of Related Interest

Browning-Ferris Industries of California, Inc., lexis.com, Lexis Advance

National Labor Relations Board—Joint-Employer Standard—Contingent Employment Relationship—National Labor Relations Board, in 3-2 decision, adopted new standard for assessing joint-employer status under National Labor Relations Act, 29 U.S.C.S. § 151 et seq., “to better effectuate the purposes of the Act in the current economic landscape” involving contingent workers, which will enable National Labor Relations Board to find that two or more entities are joint employers of single workforce if...

Appeals Board En Banc Decisions

Matute v. Los Angeles Unified School District, lexis.com, Lexis Advance

Independent Medical Review—Appeals—Timeliness—WCAB en banc, rescinding WCJ’s findings and order, held that term “mailing” in Labor Code § 4610.6(h) is equivalent to and means “service by mail” in 8 Cal. Code Reg. § 10957.1(c), and that 30-day period to file timely appeal from independent medical review determination under Labor Code § 4610.6(h) is extended by...

Trinh v. Tzeng Long USA, Inc., lexis.com, Lexis Advance

Lien Claims—Hearing Representatives—Sanctions—WCAB en banc, removing case to itself on its own motion, issued notice of intention to suspend privileges of Professional Lien Services and Mike Traw of appearing before WCAB pursuant to Labor Code § 4907(a)(2), which provides for suspension of privilege of appearing for “failure to pay final order of sanctions, attorney’s fees, or costs, issued under Section 5813,” when WCAB en banc found that…

Digests of WCAB Decisions Denied Judicial Review

Editorial Board members Melissa C. Brown, Hon. Joel K. Harter, James T. Ponzio, and Hon. Ralph Zamudio recommended the following writ denied cases for summarization in this issue.

Arredondo v. WCAB, lexis.com, Lexis Advance

Medical Treatment—Utilization Review—Independent Medical Review—WCAB, in split panel decision, affirmed WCJ’s finding that WCAB lacked jurisdiction to review timely utilization review non-certification of requested medical treatment because of Administrative Director’s alleged failure to timely complete independent medical review, when panel majority concluded that, although WCJ misconstrued Labor Code § 4610.6(d) in finding that independent medical review must issue within 30 days of receipt of request by not accounting for extra 15 days allowed to provide supporting documentation to independent medical review organization, WCJ correctly found that...

Care West Insurance Co. v. WCAB (Ellis), lexis.com, Lexis Advance

California Insurance Guarantee Association—Other Insurance—Stipulations—WCAB, in split panel decision, held that California Insurance Guarantee Association, on behalf of insolvent carrier Ullico, was liable for applicant’s cumulative industrial injury, based on prior stipulation in compromise and release agreement executed by Ullico and other carrier, Care West, with joint and several liability regarding apportionment of liability (26 percent to Care West and 74 percent to Ullico), but that California Insurance Guarantee Association was not liable for outstanding lien claims, when WCAB found that...

City of Gardena v. WCAB (Funke), lexis.com, Lexis Advance

Temporary Disability—Post-Retirement Period of Disability—WCAB affirmed WCJ’s finding that applicant detective who suffered industrial injury to his lower extremities from 9/25/95 to 3/31/98 was entitled to temporary disability benefits for post-retirement periods, based on opinion of agreed medical evaluator, and that Labor Code § 4853 did not apply to preclude applicant’s temporary disability award for these periods nor was award precluded by applicant’s failure to file petition to reopen, when…

City of Torrance v. WCAB (Nazir), lexis.com, Lexis Advance

Third Party Settlements—WCAB Approval—WCAB, dismissing defendant’s petition for reconsideration as not taken from final order and denying removal, affirmed WCJ’s finding that WCAB had no authority to compel applicant police officer to sign compromise and release in workers’ compensation case, when applicant entered global written settlement in civil case agreeing to...

Colon v. WCAB, lexis.com, Lexis Advance

Serious and Willful Misconduct of Employer—WCAB, affirming WCJ, held that applicant truck driver did not prove that his industrial injuries from chemical exposure were caused by employer’s serious and willful misconduct pursuant to Labor Code § 4553, when applicant was injured while picking up hazardous waste for employer at two different facilities where reckless driving of forklift drivers caused drums of chemicals to fall and spill on applicant, and, although applicant asserted that employer’s failure to provide adequate respiratory filters to...

Detroit Pistons v. WCAB (Coleman), lexis.com, Lexis Advance

WCAB Jurisdiction—Professional Athletes—WCAB, affirming WCJ in split panel decision, held that applicant professional basketball player’s unrebutted testimony and substantial medical evidence established that injurious exposure applicant sustained while temporarily working in California contributed to his admitted cumulative injury during period, that connection between applicant’s work in California and admitted injury was more than…

Hartford Accident & Indemnity v. WCAB (Bloxham), lexis.com, Lexis Advance

Injury AOE/COE—Going and Coming Rule—Personal Comfort Doctrine—WCAB affirmed WCJ’s finding that claim filed by applicant car salesman injured in automobile accident while returning to employer’s premises from convenience store where salesman had purchased cigarettes with employer’s permission during paid break was not barred by “going and coming” rule, when WCAB found that…

Kirkwood v. WCAB, lexis.com, Lexis Advance

Permanent Disability—Rating—Permanent Total Disability—WCAB rescinded WCJ’s award of 100 percent permanent disability, without apportionment, to applicant who suffered cumulative trauma industrial injury to her right upper extremity and psyche, and returned matter to WCJ to determine apportionment of applicant’s overall disability between her industrial right arm injury and her preexisting, nonindustrial left arm amputation injury, and whether Subsequent Injuries Benefit Trust Fund had any liability, which WCAB determined…

McFarland v. WCAB, lexis.com, Lexis Advance

Medical Treatment—Utilization Review—Independent Medical Review—WCAB, affirming WCJ in split panel decision, held that, pursuant to Dubon v. World Restoration, Inc. (2014) 79 Cal. Comp. Cases 1298 (Appeals Board en banc opinion) (Dubon II), WCAB lacked jurisdiction over treating physician’s request for medical treatment in form of epidural steroid injections to treat applicant’s industrial back injury, when...

Medical Treatment—Utilization Review—Rebuttal of Medical Treatment Utilization Schedule—Commissioner Sweeney dissented from decision denying jurisdiction over applicant’s appeal from adverse utilization review determination based on medical treatment utilization schedule guidelines, and proposed that applicant be allowed to rebut medical treatment utilization schedule guidelines before WCAB, when Commissioner Sweeney found that...

Murphy v. WCAB, lexis.com, Lexis Advance

Penalties—Delay in Providing Medical Treatment—Utilization Review—WCAB, reversing WCJ in split panel decision, rescinded WCJ’s award of 25 percent penalty under Labor Code § 5814 for defendant’s delayed provision of dental treatment to applicant who suffered industrial injury to her right foot and psyche, and held that defendant did not act unreasonably in making advance payment of $25,510 to applicant’s treating physician, William Evans, D.M.D., M.D., for proposed dental treatment in forms of oral surgery and dental implants approximately seven months after treatment was requested and approved by defendant’s utilization review, when WCAB found that…

SA Recycling LLC v. WCAB (Melendez), lexis.com, Lexis Advance

Injury AOC/COE—Development of Record—WCAB, reversing WCJ’s finding of no injury AOE/COE, remanded for WCJ to further develop record by directing parties to obtain substantial medical evidence on issue of causation of applicant’s injury, when WCAB found that…

Post-Termination Claims—Exceptions—WCAB reversed WCJ and held that applicant’s claim was not barred by Labor Code § 3600(a)(10) as post-termination claim, when WCAB found that…

St. Helena Hospital v. WCAB (Jones), lexis.com, Lexis Advance

Injury AOE/COE—Substantial Evidence—WCAB’s Duty to Develop Record—WCAB, in split panel decision, rescinded WCJ’s finding that applicant licensed vocational nurse did not suffer compensable cumulative trauma to her knees, and held that there was insufficient evidence in record to determine whether applicant incurred cumulative trauma injury AOE/COE, when panel majority found that…

Other WCAB Decisions Denied Judicial Review

CIGA v. WCAB (Zinn), lexis.com, Lexis Advance

Petitions for Reconsideration—Time to File—WCAB dismissed petition for reconsideration not filed within time requirements of Labor Code §§ 5900(a) and 5903 and 8 Cal. Code Reg. § 10507(a)(1), when WCAB found that…

Express Employment Professionals v. WCAB (Lett), lexis.com, Lexis Advance

Injury AOE/COE—Majority of WCAB panel held that applicant welder sustained injury AOE/COE to his low back, legs, and thigh from lifting incident on 8/14/2011, based on applicant’s credible testimony and…

Ilori v. WCAB, lexis.com, Lexis Advance

Injury to Psyche AOE/COE—Actual Events of Employment—WCAB held that applicant resort banquet supervisor did not sustain injury to psyche and internal system AOE/COE in period ending 4/4/2012, when WCAB found that...

Injury to Psyche AOE/COE—Defense of Good Faith Personnel Actions—WCAB held that, even if applicant’s claimed injury to psyche was injury AOE/COE, claim was barred under Labor Code § 3208.3(h) providing defense that injury to psyche was barred by employer’s good faith personnel actions, when WCAB found that…

Navarro v. WCAB, lexis.com, Lexis Advance

Employment Relationships—Employees vs. Independent Contractors—Taxicab Drivers—WCAB, in split panel decision, affirmed WCJ’s finding that applicant was independent contractor, not employee of defendant, on date he sustained injuries to multiple body parts, based on factors in S. G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal. 3d 341, 256 Cal. Rptr. 543, 769 P.2d 399, 54 Cal. Comp. Cases 80, when applicant…

Optimal Health Institute/Dr. Kan v. WCAB (Zhang), lexis.com, Lexis Advance

Lien Claims—Medical Treatment—WCAB disallowed liens of medical provider for medical treatment provided for applicant senior associate scientist’s claimed cumulative trauma industrial injury to multiple body parts ending 10/19/2001, when WCAB found that…

San Mateo County Transit District v. WCAB (Artiga), lexis.com, Lexis Advance

Injury to Psyche AOE/COE—WCAB held that applicant bus driver sustained injury to psyche AOE/COE on 12/30/2010 under Labor Code § 3208.3(b)(1), based on applicant’s testimony and opinions from agreed medical evaluator, when WCAB found that…

Temporary Disability—WCAB awarded applicant temporary total disability for maximum of 104 weeks beginning 12/30/2010, based on…