California Workers' Comp Case Roundup (10/28/2015)

CALIFORNIA COMPENSATION CASES

Vol. 80 No. 10 October 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 Compensation Cases

Contra Costa County v. W.C.A.B. (Dahl, Doreen), lexis.com, Lexis Advance

Permanent Disability—Rating—Rebuttal of 2005 Permanent Disability Rating Schedule—Court of Appeal, annulling WCAB’s decision and remanding for further proceedings, held that applicant’s “rebuttal” of Labor Code § 4660 Schedule rating of her industrial injuries included no evidence that those injuries rendered her incapable of rehabilitation, which was only method of rebuttal open to applicant under LeBoeuf v. W.C.A.B. (1983) 34 Cal. 3d 234, 666 P.2d 989, 193 Cal. Rptr. 547, 48 Cal. Comp. Cases 587, as interpreted by Ogilvie v. W.C.A.B. (2011) 197 Cal. App. 4th 1262, 129 Cal. Rptr. 3d 704, 76 Cal. Comp. Cases 624, when Court of Appeal found that…

Hallmark Marketing Corp. v. W.C.A.B. (Gannon, Carol), lexis.com, Lexis Advance

Permanent Disability—Permanent Total Disability—Ability to Compete in Open Labor Market—Court of Appeal, annulling WCAB’s opinion and order denying defendant’s petition for reconsideration and remanding for WCAB to reconsider defendant’s petition for reconsideration, in case involving 1997 disability rating schedule held that (1) WCJ applied correct legal standard for finding permanent total disability in context of work restriction of at-home-only employment, (2) applicant has initial burden, under this standard, to show that she can work only from home in work that is not generally available, and, if applicant meets this burden, burden shifts to employer to establish applicant’s ability to compete in open labor market (i.e., to show there is work available that applicant can perform), and (3) WCJ could properly conclude on present record that employer failed to meet its burden, when Court of Appeal found that...

New York Knickerbockers v. W.C.A.B. (Macklin, Durand), lexis.com, Lexis Advance

Petitions for Writ for Review—Verification—Court of Appeal held that petitions for writ of review of WCAB decisions must be verified, when Court of Appeal found that...

Venue—Choice of Forum—Court of Appeal held that, relying on location of third party administrator, petitioner properly filed petition in Second District of California Court of Appeal, since Labor Code § 5950’s requirement that...

WCAB Jurisdiction—Professional Athletes—Court of Appeal, affirming WCAB award and distinguishing present case from Federal Insurance Co. v. W.C.A.B. (Johnson) (2013) 221 Cal. App. 4th 1116, 165 Cal. Rptr. 3d 288, 78 Cal. Comp. Cases 1257, held that California had legitimate interest in industrial injury when applicant was employed by California-based team and participated in other games and practices in California for non-California NBA teams, during period of exposure causing cumulative injury, so that subjecting petitioner/defendant to California workers’ compensation law is reasonable and not denial of due process, when Court of Appeal found that…

Appellate Court Cases Not Originating With Appeals Board

Haskins v. Kern County Employees’ Retirement Association – Board of Retirement, lexis.com, Lexis Advance

Civil Actions—Public Safety Employees—Service-Connected Disability Retirements—Rebuttal of Cancer Presumption—Court of Appeal affirmed trial court’s finding that county retirement board rebutted presumption of Government Code § 31720.6(a) that plaintiff county firefighter’s prostate cancer was injury AOE/COE by demonstrating under Government Code § 31720.6(c) that carcinogens that plaintiff showed he was exposed to during firefighting duties were not reasonably linked to his prostate cancer, and Court of Appeal affirmed retirement board’s denial of plaintiff’s request for service-connected disability retirement, when Court of Appeal found that…

Lewings v. Chipotle Mexican Grill, Inc., lexis.com, Lexis Advance

Civil Actions Against Employers—Workers’ Compensation Costs Paid by Employees—In opinion after rehearing, Court of Appeal, affirming trial court’s dismissal of cause of action for violation of Labor Code § 3751, held that defendant employer violated Labor Code § 3751, which prohibits employers from passing on any costs of obtaining workers’ compensation to its employees, when Court of Appeal found...

Melendrez v. Ameron International Corp., lexis.com, Lexis Advance

Exclusive Remedy Rule—Contributing Cause Standard—Court of Appeal, affirming trial court’s grant of summary judgment in favor of defendant, held that, under contributing cause standard applicable in workers’ compensation law, decedent employee’s mesothelioma was covered by workers’ compensation, and his separate exposure at home did not create separate injury outside workers’ compensation coverage, meaning that plaintiffs’ lawsuit was barred by workers’ compensation exclusivity, when Court of Appeal found that…

Settlement Offer Refusals—Award of Costs—Court of Appeal, affirming trial court’s order granting in part and denying in part plaintiffs’ motion to tax costs and ordering award of defendant’s expert witness fees, held that trial court did not abuse its discretion in awarding those fees, when Court of Appeal found that…

Digests of WCAB Decisions Denied Judicial Review

Editorial Board members David Hettick, Robert G. Heywood, Richard M. Jacobsmeyer, Kenneth B. Peterson, and Robert G. Rassp recommended the following writ denied cases for summarization in this issue.

Atlas Crane and Rigging, Inc. v. W.C.A.B. (Gallaher, David), lexis.com, Lexis Advance

Serious and Willful Misconduct of Employer—WCAB affirmed WCJ’s finding that employer’s failure to fix broken backup alarm on crane constituted “serious and willful” misconduct under Labor Code §§ 4553 and 4553.1, resulting in crush injury to applicant crane operator’s left hand and wrist, when WCAB found that…

Collins (Calvin) v. W.C.A.B., lexis.com, Lexis Advance

Settlements—Execution—WCAB, affirming WCJ, held that compromise and release, under which parties purported to settle applicant’s claim for cumulative trauma injuries to his head, neck, fingers, hips, knees, ankles, feet, toes, neurological system, eyes/ophthalmology, internal system, psyche, and otolaryngolic system while employed as professional football player present in California, was not binding on defendant even though applicant and his attorney executed compromise and release and, at various times thereafter, defendant communicated to WCAB that case was being settled, when WCAB found…

WCAB Jurisdiction—Professional Athletes—WCAB, affirming WCJ in split panel decision, held that California did not have jurisdiction over applicant professional football player’s claim for cumulative trauma against employer Atlanta Falcons, when panel majority concluded that…

Lee v. W.C.A.B. (Lee, Edwin), lexis.com, Lexis Advance

Attorney’s Fees—Division of Fees—WCAB rescinded WCJ’s decision dividing $43,633.33 attorney’s fee allowed under compromise and release in death claim, $5,200 to applicant’s former attorney, Todd Arron, who represented applicant from 10/21/2010 through 12/14/2010, and $38,433.33 to applicant’s current attorney, Robert Lee, who represented applicant from 12/9/2010 through 9/10/2014 and, instead, divided fee one-third to Mr. Arron ($14,544.44) and two-thirds to Mr. Lee ($29,088.89), when WCAB found that...

Osteria Coppa LLC v. W.C.A.B. (Ramirez, Angel), lexis.com, Lexis Advance

Presumption of Compensability—Failure to Timely Deny Claim—Rebuttal of Presumption—WCAB, affirming WCJ, held that decedent suffered compensable fatal brain injury and that his widow’s death claim was presumed compensable pursuant to presumption in Labor Code § 5402(b) for defendant’s failure to timely deny claim within 90 days of its receipt and subsequent failure to rebut presumption of compensability, when WCAB found that…

Perez-Zepeda (Angel) v. W.C.A.B., lexis.com, Lexis Advance

Third Party Actions—Credit—Employer Negligence—WCAB, affirming Arbitrator, held that applicant janitor assigned by employer DMS Facility Services to provide janitorial services at decommissioned building owned by third-party Sargent Fletcher did not meet his burden of proof to establish employer negligence in connection with industrial injuries he incurred upon falling approximately nine feet while moving furniture after guardrail had been removed from his work area, and that, consequently, employer’s right to credit under Labor Code § 3361 for applicant’s third-party recovery was not barred or reduced, when WCAB reasoned that…

Ribeiro (Maria) v. W.C.A.B., lexis.com, Lexis Advance

Medical Treatment—Self-Procured Treatment—Temporary and Permanent Disability—WCAB, affirming WCJ, held that applicant restaurant manager, who suffered industrial neck and low back injury and subsequently underwent self-procured neck surgery in Germany on emergency basis due to her increasing symptoms, was not entitled to compensation for additional permanent disability or for period of temporary disability following surgery, when agreed medical evaluator David Kim, M.D., concluded…

Transportation Insurance Co. v. W.C.A.B. (Hanna, David), lexis.com, Lexis Advance

Petitions for Reconsideration—Successive Petitions—WCAB held that it did not exceed its jurisdiction in granting California Insurance Guarantee Association’s petition for reconsideration of WCAB’s order dismissing California Insurance Guarantee Association’s prior petition for reconsideration, when WCAB found that…

Writ of Review—Stay of WCAB Proceedings—WCAB held that court of appeal’s denial of California Insurance Guarantee Association’s petition for writ of review challenging WCAB’s order dismissing California Insurance Guarantee Association’s petition for reconsideration did not preclude WCAB from acting on California Insurance Guarantee Association’s petition for reconsideration challenging same order, which California Insurance Guarantee Association filed before filing petition for writ of review, or from issuing decision addressing merits of California Insurance Guarantee Association’s petition for reconsideration, when WCAB found that…

Evidence—Admissibility—Deposition Transcripts—WCAB, reversing WCJ’s order excluding applicant’s deposition testimony from evidence in lieu of live testimony, held that deposition transcripts should have been admitted because transcripts were properly designated in pretrial conference statement, as required by Labor Code § 5502(d)(3), and would have been admissible pursuant to Code of Civil Procedure § 2025.620(c) on grounds that applicant resided more than 150 miles away from location of trial and was unavailable to testify, that transcripts were evidence best calculated to…

California Insurance Guarantee Association—Other Insurance—General and Special Employers—WCAB, reversing WCJ, held that applicant nurse had dual employment relationship with United Staffing Solutions (insured by Superior National Insurance Co., now in liquidation with California Insurance Guarantee Association assuming its covered claims) acting as applicant’s general employer and Chino Valley Medical Center (insured by Transportation Insurance Co.) acting as applicant’s special employer, based on...

Voelker (Keith) v. W.C.A.B., lexis.com, Lexis Advance

Discovery—Subpoena Duces Tecum—WCAB amended WCJ’s order denying applicant’s motion to quash subpoena duces tecum demanding from golf course “[a]ll records pertaining to the applicant including but not limited to club membership application, membership billing and payments, correspondence to and from the applicant, tee-time bookings, tournament entry forms, NCGA records and scorecards, and electronic printouts of USGA and/or NCGA handicap entries,” as well as club team information and rosters, and partially quashed subpoena duces tecum to delete demand for…

West Coast Drywall & Paint, Inc. v. W.C.A.B. (Polanco, Samuel), lexis.com, Lexis Advance

Post-Termination Claims—WCAB rescinded WCJ’s finding that applicant’s claim for cumulative industrial injury to his back, head, eye, wrist, hand, right shoulder, right elbow, right knee, feet, heart, and in form of sleep disorder was barred by Labor Code § 3600(a)(10) post-termination defense, and held that Labor Code § 3600(a)(10)(D) exception to post-termination defense was applicable, when WCAB found that…

Other WCAB Decisions Denied Judicial Review

Smith (Kim) v. W.C.A.B., lexis.com, Lexis Advance

Compromise and Release Agreements—Setting Aside—WCAB dismissed pro per applicant’s untimely petition for reconsideration challenging WCJ’s order denying applicant’s request to set aside order approving compromise and release agreement, and would have denied petition on its merits, had petition been timely filed, when…