California Workers' Comp Case Roundup (10/31/2016)

CALIFORNIA COMPENSATION CASES

Vol. 81 No. 10 Oct 2016

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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LexisNexis Online Subscribers: You can link to your account on Lexis.com or Lexis Advance to read the complete headnotes and court decisions, en banc decisions, and writ denied summaries.

Appellate Court Cases Not Originating With Appeals Board

Nicodemus v. Saint Francis Memorial Hospital, lexis.com, Lexis Advance

Civil Actions—Class Actions—Certification of Class—Overcharges for Copying Patient Medical Treatment Records—Court of Appeal reversed trial court’s denial of plaintiff’s request for certification of class for patients who claimed defendants copying service and medical provider overcharged for medical treatment records requested by their attorneys before litigation, in amounts exceeding amounts authorized by Evidence Code § 1158, when Court of Appeal found that…

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Tevis (Kelly) v. Spare Time, Inc., lexis.com, Lexis Advance

Civil Actions Against Employers—Fair Employment and Housing Act—Court of Appeal reversed trial court’s grant of summary judgment in four of plaintiff’s causes of action against defendant, three under Fair Employment and Housing Act, Government Code § 12900 et seq., and one for wrongful termination, when Court of Appeal found that…

Civil Actions Against Employers—Summary Judgment—Court of Appeal affirmed trial court’s grant of summary judgment in six of plaintiff’s causes of action for (1) sexual harassment, because plaintiff did not file claim within one year of last alleged harassment incident, making claim barred by statute of limitations, (2) failure to prevent sexual harassment, because plaintiff did not file claim within one year…

Digests of WCAB Decisions Denied Judicial Review

Editorial Board members Frederick W. Bray, Hon. Colleen S. Casey, William A. Herreras, and John W. Miller recommended the following writ denied cases for summarization in this issue.

CEVA Freight, LLC v. W.C.A.B. (Jimenez, Pascual), lexis.com, Lexis Advance

Employment Relationships—Employee Status—WCAB held that applicant truck driver was employee of defendant on 6/25/2016, not employee of defendant’s contractor, Armando Amador, based on Labor Code §§ 3353, 3357, and 5705(a) and factors set out in S. G. Borello & Sons, Inc. v. Dept. of Industrial Relations (1989) 48 Cal. 3d 341, 256 Cal. Rptr. 543, 769 P.2d 399, 54 Cal. Comp. Cases 80, including control factor, when WCAB found that…

County of Riverside v. W.C.A.B. (Sanchez, Guadalupe), lexis.com, Lexis Advance

Employment Relationships—County Work Release Programs—WCAB affirmed WCJ’s finding that applicant, who suffered injuries to his neck, low back, upper and lower extremities, and head on 2/1/2014 while working as laborer for CalTrans as part of County of Riverside work release program after pleading guilty to gun possession, was employee of County pursuant to presumption of employment in Labor Code § 3357 and analysis in Arriaga v. County of Alameda (1995) 9 Cal. 4th 1055, 40 Cal. Rptr. 2d 116, 892 P.2d 150, 60 Cal. Comp. Cases 316, and that Penal Code § 4017 and County of Riverside Ordinance No. 766 did not apply to preclude finding of employment, when WCAB found that…

OneBeacon America Insurance Co. v. W.C.A.B. (Cole, Timothy), lexis.com, Lexis Advance

Injury AOE/COE—Tuberculosis—WCAB held that applicant sales manager sustained injury AOE/COE to back and internal system (tuberculosis) in period from 11/1/2004 to 2/16/2014, based on applicant’s credible and unrebutted testimony and reports and deposition testimony from panel qualified medical evaluator, when WCAB found…

Washington Hospital v. W.C.A.B. (Strey, Diane), lexis.com, Lexis Advance

Psychiatric Injury—Good Faith Personnel Actions—WCAB affirmed WCJ’s finding that applicant labor and delivery nurse suffered compensable injury to her psyche during period ending on 8/20/2010, and that defendant failed to meet burden of proving that applicant’s claim for psychiatric injury was barred by good faith personnel action defense in Labor Code § 3208.3(h), when medical evidence established that applicant’s psychiatric injury was caused by stress of being ordered by defendant to attend retraining program and having to abruptly leave practice of nursing during her attendance, allegedly based on complaints by several physicians regarding applicant’s performance following fetal fatality in labor and delivery unit, in which applicant was not involved, and there was no documentation offered into evidence indicating that applicant had any performance deficiencies, applicant was not informed of identities of physicians who allegedly lodged complaints against her or of substance of alleged complaints until three years after she competed training program, testimony offered at trial was questionable regarding whether there had ever been complaints lodged against applicant, and WCAB concluded…

Other WCAB Decisions Denied Judicial Review

Alfama (Frank Antone, III) v. W.C.A.B., lexis.com, Lexis Advance

Psychiatric Injuries—Post-Termination Claims—WCAB affirmed WCJ’s finding that applicant’s claim for psychiatric injury while employed as produce/deli/cashier/customer service person from 10/31/2008 through 12/27/2009 was barred by post-termination provisions of Labor Code § 3208.3(e), when applicant admitted…

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

Petitions for Writ of Review—Time to File—Court of Appeal dismissed applicant’s petition for writ of review not filed within time requirements of Labor Code § 5950, when applicant was appealing WCAB decision…

City of Torrance v. W.C.A.B. (Bazilius, Zachary), lexis.com, Lexis Advance

Injury AOE/COE—WCAB held that applicant city police officer sustained injury AOE/COE on 7/12/2010 to his back, neck, circulatory system, heart, gastrointestinal system, sleep disorder, urological system, and teeth, based on entire medical record, including reports from panel qualified medical evaluators…

Credit—Overpayments—Labor Code § 4850 Benefits and Temporary Disability—WCAB denied defendant’s request for credit for overpayments of Labor Code § 4850 and temporary total disability benefits paid to applicant, when WCAB found…

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Cronin (Mark) v. W.C.A.B., lexis.com, Lexis Advance

Medical Treatment—Timeliness of Independent Medical Review Determinations—In case involving medical treatment dispute for applicant police officer’s admitted injury to cervical spine, right hip, and both wrists and claimed injury to lumbar spine, both in period from 9/6/1996 through 6/30/2015, majority of WCAB panel held…

St. Vincent de Paul v. W.C.A.B. (Groves, Dwayne), lexis.com, Lexis Advance

Injury AOE/COE—Subsequent Injuries—WCAB held that applicant did not sustain cumulative trauma injury AOE/COE to knee and back from 1/31/2005 through 2/1/2006, when WCAB found that applicant sustained two stipulated injuries as maintenance man and painter for petitioner, i.e., left knee injury in 2001 and low back injury in 2005 as compensable consequence of 2001 knee injury, and was issued award in 2005 for left knee and low back injuries that included 28.5 percent permanent disability and further medical treatment, that petitioner contended…

Appeals Board Panel Decisions

Erwin (Randy) v. Gulfstream Aerospace, lexis.com, Lexis Advance

Statute of Limitations—Tolling—WCAB reversed WCJ and held that applicant's claim for 6/7/2013 industrial injury incurred while working as upholstery technician was not barred by one-year statute of limitations in Labor Code § 5405, when there was no evidence in record to support WCJ's conclusion that defendant performed its duty to notify applicant of his potential right to workers' compensation benefits pursuant to Labor Code § 5401, or regarding time within which applicant was required to commence workers' compensation proceedings, and only contradictory evidence as to whether or not applicant had “actual knowledge” of his workers' compensation rights, and WCAB found…

Ferrell (Chaka) v. County of Riverside, lexis.com, Lexis Advance

Personnel Actions—Good Faith—Psychiatric Injury—WCAB affirmed WCJ's findings that applicant suffered injury AOE/COE to her psyche while employed as community improvement specialist from 7/12/2011 to 11/22/2011, and that defendant failed to prove that claim was barred by “good faith personnel action” defense in Labor Code § 3208.3(h), when WCAB…

Sanctions—WCAB admonished defense counsel for making inappropriate and unprofessional comments in his Petition for Reconsideration, and writing in disrespectful and insulting tone, and warned counsel that any such future conduct may result in sanctions under Labor Code § 5813 and 8 Cal. Code Reg. § 10561(b)(9)(B), which provides that sanctionable conduct includes any language or gesture that impugns integrity of WCAB…