California Workers' Comp Case Roundup (2/9/2014)

CALIFORNIA COMPENSATION CASES

Vol. 79 No. 1 January 2014

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

© Copyright 2014 LexisNexis. All rights reserved.

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 Compensation Case

City of Sacramento v. W.C.A.B. (Cannon, Arthur), 79 Cal. Comp. Cases 1 (lexis.com), 79 Cal. Comp. Cases 1 (Lexis Advance)

Permanent Disability—Rating—AMA Guides—Court of Appeal, affirming WCAB opinion and decision, held that rating of impairment by analogy to different condition is permissible when no objective abnormalities are found and rating is based solely on subjective complaints of pain and that rating by analogy is not limited to complex or extraordinary cases, when Court of Appeal found that…

Appellate Court Cases Not Originating With Appeals Board

Cornerstone Development Partners, Inc. v. Superior Court, 79 Cal. Comp. Cases 11 (lexis.com), 79 Cal. Comp. Cases 11 (Lexis Advance)

Third Party Actions—Hirer's Liability to Employees of Independent Contractors—Court of Appeal, vacating decision of trial court denying hirer's motion for summary judgment, ordered motion for summary judgment to be granted, when Court of Appeal found that…

Kaabinejadian (Massoud) v. Rabobank, N.A., 79 Cal. Comp. Cases 18 (lexis.com), 79 Cal. Comp. Cases 18 (Lexis Advance)

Civil Actions Against Employers—Statutes of Limitation—Equitable Tolling—Court of Appeal, reversing trial court's grant of defendant employer's demurrer to three causes of action, held that plaintiff/applicant adequately alleged that equitable tolling doctrine applied and that statute of limitations was tolled for three of plaintiff's civil causes of actions against employer while plaintiff's workers' compensation proceedings were pending, when Court of Appeal found that…

Civil Actions Against Employers—Pleading—Court of Appeal, affirming trial court, held that plaintiff did not adequately plead fourth cause of action against employer for intentional infliction of emotional distress and that trial court properly…

Lopez v. Bustillos Business Group, 79 Cal. Comp. Cases 31 (lexis.com), 79 Cal. Comp. Cases 31 (Lexis Advance)

Civil Actions Against Employers—Forum Non Conveniens—Court of Appeal affirmed trial court’s holdings that forum non conveniens doctrine applied and that Mexico was suitable alternative forum for trial of plaintiffs’ claims, and held that trial court did not abuse discretion in making these holdings, and that plaintiffs’ civil action against defendants should be dismissed, when Court of Appeal found that…

Lopez v. Stone Brewing Co., 79 Cal. Comp. Cases 38 (lexis.com), 79 Cal. Comp. Cases 38 (Lexis Advance)

Civil Actions Against Employers—Wrongful Termination—Labor Code § 132a—Court of Appeal affirmed trial court’s grant in defendant employer’s favor of summary adjudication of plaintiff’s cause of action for violation of Labor Code § 132a, when Court of Appeal found that…

Civil Actions Against Employers—Court of Appeal affirmed trial court’s grant of summary judgment in defendant’s favor on cause of action for unsafe working conditions and reversed trial court’s grant of judgment in defendant’s favor for…

Oswald (William) v. San Francisco City and County Employees’ Retirement System, 79 Cal. Comp. Cases 52 (lexis.com), 79 Cal. Comp. Cases 52 (Lexis Advance)

Civil Actions—Public Employees—Industrial Disability Retirement—Court of Appeal affirmed judgment of trial court calculating plaintiff/applicant's industrial disability retirement pension based on WCAB determination that plaintiff was entitled to 74 percent permanent disability for industrial injury under San Francisco Charter § A8.598-3, when Court of Appeal 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.

ACIG Insurance Co. v. W.C.A.B. (Brock, Huey), 79 Cal. Comp. Cases 68 (lexis.com), 79 Cal. Comp. Cases 68 (Lexis Advance)

WCAB Jurisdiction—Out-of-State Injuries—WCAB, affirming WCJ, held that California had jurisdiction pursuant to Labor Code § 5305 over applicant’s industrial injuries, which included quadriplegia and psychiatric injury, when injuries occurred while applicant was working as pipefitter at jobsite in North Dakota for entity identified as KS Industries, LLC, owned and operated by KS Industries, LP, located in Bakersfield, California, and WCAB found that…

Employment Relationships—WCAB affirmed WCJ’s finding that applicant/pipefitter who incurred industrial injuries while working at jobsite in North Dakota for entity identified as KS Industries, LLC, was employee of KS Industries, LP, located in Bakersfield, California, when WCAB found that…

Brown (Edward) v. W.C.A.B., 79 Cal. Comp. Cases 72 (lexis.com), 79 Cal. Comp. Cases 72 (Lexis Advance)

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

Brown (William) v. W.C.A.B., 79 Cal. Comp. Cases 76 (lexis.com), 79 Cal. Comp. Cases 76 (Lexis Advance)

Injury AOE/COE—Going and Coming Rule—Special Risk Exception—WCAB, affirming WCJ in split panel decision, held that applicant’s claim for death benefits arising from death of her husband/truck driver in motor vehicle accident was barred by going and coming rule, and that special risk exception did not apply, when…

Charter Communications, Inc. v. W.C.A.B. (Medel, Jose), 79 Cal. Comp. Cases 81 (lexis.com), 79 Cal. Comp. Cases 81 (Lexis Advance)

Injury AOE/COE—Injuries Occurring After Employee’s Termination—WCAB, affirming WCJ, held that applicant/senior technician suffered compensable injuries in automobile accident that occurred while applicant was traveling home from work after being fired from his job and turning over keys to company car that he had used to commute to and from work, when employer provided applicant with transportation to his home following his termination, and WCAB found that…

Oak River Insurance Co. v. W.C.A.B. (Torrez, Carlos), 79 Cal. Comp. Cases 85 (lexis.com), 79 Cal. Comp. Cases 85 (Lexis Advance)

Psychiatric Injury—Six-Month Employment Requirement—Sudden and Extraordinary Employment Events—WCAB, affirming WCJ, held that applicant/window installer’s claim for psychiatric injury stemming from orthopedic injuries incurred when applicant fell from scaffold was not barred by six-month employment requirement in Labor Code § 3208.3(d), when WCAB found that…

Evidence—Expert Witness Qualifications—WCAB, affirming WCJ, held that expert witness presented by applicant/window installer who incurred admitted industrial injuries to his ribs, left wrist, and lumbar spine and alleged psychiatric injury when he fell from scaffold, sufficiently qualified as expert witness to testify regarding construction issues, including those involving scaffolding, based on…

Radman (Linda) v. W.C.A.B., 79 Cal. Comp. Cases 91 (lexis.com), 79 Cal. Comp. Cases 91 (Lexis Advance)

Permanent Disability—Apportionment—Fibromyalgia—WCAB affirmed WCJ’s award of 90 percent permanent disability, after apportionment, in favor of applicant/claims adjuster who incurred industrial injuries to her lumbar spine, both knees, psyche, and in form of chronic pain/fibromyalgia, and subsequent cumulative trauma industrial injury to her cervical spine, shoulders, wrists, lumbar spine, knees, psyche, and in forms of incontinence and chronic pain/fibromyalgia, and held that opinion of agreed medical examiner in rheumatology constituted substantial evidence to support 10 percent apportionment of applicant’s permanent disability to pre-existing degenerative disc disease, despite…

San Diego Unified School District v. W.C.A.B. (Robledo, Esther), 79 Cal. Comp. Cases 95 (lexis.com), 79 Cal. Comp. Cases 95 (Lexis Advance)

Medical Provider Networks—Notice Requirements—WCAB affirmed WCJ’s order awarding applicant/special education technician with industrial injury to her knees, left ankle, and left hip cost of medical treatment obtained outside defendant’s medical provider network during period from 8/11/2011 through date applicant was transferred back into medical provider network, when WCAB found that…

SNCC for Lam Research Corp. v. W.C.A.B. (Sharma, Balgovind), 79 Cal. Comp. Cases 100 (lexis.com), 79 Cal. Comp. Cases 100 (Lexis Advance)

Permanent Disability—Rating—WCAB awarded applicant research scientist 100 percent permanent disability, without apportionment, for industrial injury to cervical and thoracic spines and head/brain, based on applicant’s credible testimony, opinions from three agreed medical evaluators, ratings on reports from these three agreed medical evaluators, and multiple disabilities table, when WCAB found that…

Wilson (Reginald) v. W.C.A.B., 79 Cal. Comp. Cases 104 (lexis.com), 79 Cal. Comp. Cases 104 (Lexis Advance)

Discrimination—Labor Code § 132a—WCAB, rescinding WCJ’s order, held that applicant was permitted to pursue claim for benefits under Labor Code § 132a or pursue civil suit pursuant to City of Moorpark v. Superior Court (1998) 18 Cal. 4th 1143, 77 Cal. Rptr. 2d 445, 959 P.2d 752, 63 Cal. Comp. Cases 944, even though…

Other WCAB Decisions Denied Judicial Review

County of Ventura v. W.C.A.B. (Jackson, Yvonne), 79 Cal. Comp. Cases 107 (lexis.com), 79 Cal. Comp. Cases 107 (Lexis Advance)

Injuries to Psyche AOE/COE—WCAB held that applicant sustained cumulative trauma injury AOE/COE to psyche in period from 4/6/2002 to 11/4/2002, based on substantial evidence opinions from…

Injury AOE/COE—WCAB also held that applicant sustained cumulative trauma injury AOE/COE to teeth and in form of aggravation of gastroesophageal reflux disease in period from 4/6/2002 to 11/4/2002, based on…

Doty (Jeffrey) v. W.C.A.B., 79 Cal. Comp. Cases 109 (lexis.com), 79 Cal. Comp. Cases 109 (Lexis Advance)

Employment Relationships—Employee Status—WCAB, amending WCJ’s finding, held that applicant was presumed to be employee of defendant pursuant to Labor Code § 2750.5 and was not independent contractor when he injured leg on 9/6/2011, because he did not possess contractors’ license that was required for tree pruning work he was performing, which involved…

Kroger Co., The v. W.C.A.B. (Velasquez, George), 79 Cal. Comp. Cases 111 (lexis.com), 79 Cal. Comp. Cases 111 (Lexis Advance)

Petitions for Writ of Review—Final Orders—Court of Appeal dismissed petition for writ of review because it was not appealing final order or decision of WCAB, as required by Labor Code §§ 5900 and 5901, when…

Pacific Compensation Insurance Co. v. W.C.A.B. (Maxton, John), 79 Cal. Comp. Cases 112 (lexis.com), 79 Cal. Comp. Cases 112 (Lexis Advance)

Cumulative Trauma Injuries—Date of Injury—WCAB held that applicant machine operator’s date of injury and date of last injurious exposure under Labor Code §§ 5412 and 5505.5 was 4/5/2007, which was date he first was disabled by industrial lung condition, with breathing problems and time off work, when WCAB found that…

Ransom (Emilyann) v. W.C.A.B., 79 Cal. Comp. Cases 114 (lexis.com), 79 Cal. Comp. Cases 114 (Lexis Advance)

Injury AOE/COE—WCAB held that applicant did not sustain burden of proving injury AOE/COE to additional body parts, when WCAB found that…

Robertshaw Controls v. W.C.A.B. (Owens, Jennifer), 79 Cal. Comp. Cases 116 (lexis.com), 79 Cal. Comp. Cases 116 (Lexis Advance)

Injury AOE/COE—WCAB held that applicant machinist/machine operator sustained cumulative trauma injury AOE/COE from 4/1/98 through 3/26/2002 to her upper extremities, neck, and left hand, based on opinions from orthopedic agreed medical evaluator and defense medical-legal evaluator, when WCAB found that…

Sanford (Lucius) v. W.C.A.B., 79 Cal. Comp. Cases 118 (lexis.com), 79 Cal. Comp. Cases 118 (Lexis Advance)

WCAB Jurisdiction—Exemptions—Professional Athletes—WCAB, rescinding WCJ’s decision, held that applicant/professional football player and Cleveland Browns/Baltimore Ravens were exempt from California workers’ compensation laws under Labor Code § 3600.5(b) and decision in Carroll v. Cincinnati Bengals (2013) 78 Cal. Comp. Cases 655 (Appeals Board en banc opinion) with respect to applicant’s claim for industrial injuries during period 7/1/87 to 1/17/88 while playing for Cleveland Browns, when WCAB found that…

United States Fire Insurance Co. v. W.C.A.B. (Bates, Dennis), 79 Cal. Comp. Cases 120 (lexis.com), 79 Cal. Comp. Cases 120 (Lexis Advance)

Petitions for Writ of Review—Final WCAB Orders—Court of Appeal dismissed petition for writ of review because it was appealing non-final order of WCAB, contrary to requirement of Labor Code § 5950 and Maranian v. W.C.A.B. (2000) 81 Cal. App. 4th 1068, 97 Cal. Rptr. 2d 418, 65 Cal. Comp. Cases 650, when defendants were appealing WCAB decision in which WCAB rescinded WCJ’s decision denying carrier’s $129,483.80 lien for reimbursement of benefits paid to applicant/antigen preparation technician injury for 7/14/2004 left knee injury, when carrier alleged that…

Young (Glen) v. W.C.A.B., 79 Cal. Comp. Cases 122 (lexis.com), 79 Cal. Comp. Cases 122 (Lexis Advance)

WCAB Jurisdiction—Exemptions—Professional Athletes—WCAB, rescinding WCJ’s decision, held that applicant/professional football player and Cleveland Browns/Baltimore Ravens were exempt from California workers’ compensation laws under Labor Code § 3600.5(b) and decision in Carroll v. Cincinnati Bengals (2013) 78 Cal. Comp. Cases 655 (Appeals Board en banc opinion) with respect to applicant’s claim for industrial injuries during period 11/14/84 to 12/24/88 while playing for Cleveland Browns, when WCAB found that…

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