California Workers' Comp Case Roundup (5/4/2014)

CALIFORNIA COMPENSATION CASES

Vol. 79 No. 4 April 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

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Appellate Court Cases Not Originating With Appeals Board

Hopkins v. Kedzierski., lexis.com, Lexis Advance

Equitable Tolling—Equitable Estoppel—Jury Trial—Court of Appeal held that trial court did not err in denying plaintiff’s request for jury trial on issues of whether equitable tolling or equitable estoppel applied in present case, when Court of Appeal found that… Statute of Limitations—Equitable Tolling—Court of Appeal, reversing trial court’s judgment and remanding, held that reasons that trial court provided as basis for its determination that equitable tolling doctrine was inapplicable were legally insufficient, and that matter must be remanded to trial court for factual findings as to whether plaintiff demonstrated elements of equitable tolling, when Court of Appeal found that…

Statute of Limitations—Equitable Estoppel—Court of Appeal held that there was sufficient evidence in record to support trial court’s finding that doctrine of equitable estoppel did not apply, when Court of Appeal found that…

Lopez v. Delgadillo, lexis.com, Lexis Advance

Civil Actions Against Employers—Uninsured Employers—Exclusive Remedy Rule—Court of Appeal affirmed trial court’s judgment in plaintiff’s favor in civil action against defendant/employer for damages from industrial injury and for unpaid wages and penalties for wage and hour violations, when Court of Appeal found that…

Civil Actions Against Employers—Attorney’s Fee Awards—Court of Appeal held that there was no abuse of discretion and affirmed trial court’s award of attorney’s fees to plaintiff in civil action against defendant and affirmed inclusion of fees for…

Montague v. AMN Healthcare, lexis.com, Lexis Advance

General Employers—Special Employers—Vicarious Liability—Court of Appeal, affirming trial court’s summary judgment in favor of defendant general employer, held that general employer was absolved of respondeat superior liability because its employee’s act giving rise to present lawsuit was outside course and scope of her employment, when Court of Appeal found that…

General Employers—Special Employers—Negligence Cause of Action—Court of Appeal, affirming trial court’s summary judgment in favor of defendant general employer against plaintiff’s claim that general employer was negligent in training employee, held that…

Woessner-Becas (Donna) v. Kern County Employees’ Retirement Association, lexis.com, Lexis Advance

Civil Actions—Public Employees—Disability Retirements—Court of Appeal affirmed trial court’s holding that defendant county employees’ retirement board properly denied plaintiff/applicant’s request for service-connected disability retirement, when Court of Appeal found that…

Yacoub v. Talia, lexis.com, Lexis Advance

Civil Actions Against Employers—Employment Relationships—Court of Appeal affirmed trial court’s judgment in plaintiff’s favor after jury verdict and affirmed trial court’s actions in denying plaintiff’s request for two jury instructions, when Court of Appeal found that…

Appeals Board En Banc Decisions

Navarro (Ismael) v. City of Montebello, lexis.com, Lexis Advance

Qualified Medical Evaluators—Subsequent Injuries—WCAB en banc, having granted defendant’s petition for removal, and having previously issued notice of intention to allow parties and Division of Workers’ Compensation opportunity to address issues raised by WCAB en banc’s proposed holdings as to Labor Code and 8 Cal. Code Reg. § 35.5(e), and having received and considered defendant’s response, now held that (1) Labor Code does not require employee to return to same panel qualified medical evaluator for evaluation of subsequent claim of injury, and (2) requirement in 8 Cal. Code Reg. § 35.5(e) 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.

Alves (Larry) v. W.C.A.B., lexis.com, Lexis Advance

Injury to Psyche AOE/COE—Sudden and Extraordinary Employment Condition—WCAB held that applicant’s claim of injury AOE/COE to psyche was barred under Labor Code § 3208.3(d) because applicant carpenter/construction worker had not worked for defendant for six months prior to injury and applicant’s injury did not result from “sudden and extraordinary employment condition,” which was exception to claim being barred if applicant worked for employer for fewer than six months, when WCAB found that…

Consolidated Disposal Service v. W.C.A.B. (Cazares, Efrain), lexis.com, Lexis Advance

Injury AOE/COE—WCAB held that applicant driver loader/unloader sustained injuries AOE/COE to lumbar spine, psyche, and in form of sexual dysfunction and sleep disorder on 3/7/2003 and on cumulative trauma basis ending 2/2004, and WCAB’s finding of…

Permanent Disability—WCAB awarded applicant 76 percent permanent disability, after apportionment, for 3/7/2003 specific industrial injury, and 35 percent permanent partial disability, after apportionment, for…

WCAB’s Duty to Develop Record—WCAB held that there was good cause to appoint “regular physician” under Labor Code § 5701, when WCAB found that…

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

Insurance Coverage—Excess Insurance Policies—WCAB affirmed WCJ’s finding that WCAB did not have jurisdiction to determine contract dispute between defendant and its excess insurance carrier over whether certain utilization review and bill review expenses were covered by excess insurance policy, when WCAB found that…

Forward Air, Inc. v. W.C.A.B. (Feliciano, Paul), lexis.com, Lexis Advance

Permanent Disability—Rating—Vocational Expert Evidence—WCAB affirmed WCJ’s finding that applicant/warehouseman incurred 100 percent permanent disability as result of industrial amputation of left foot to mid-calf and consequential psychiatric injury, based on…

Hallie (Michelle) v. W.C.A.B., lexis.com, Lexis Advance

Injury AOE/COE—Substantial Medical Evidence—WCAB, reversing WCJ, held that applicant/customer service representative did not suffer compensable cardiovascular injury in addition to stipulated cumulative internal, orthopedic, and psychiatric injuries, when WCAB found that…

Permanent Disability—Rating—Sleep Impairment—WCAB, reversing WCJ, held that applicant customer service representative did not suffer separate, ratable sleep disorder/insomnia in addition to stipulated cumulative internal, orthopedic, and psychiatric injuries, when…

Illinois Midwest Insurance Agency v. W.C.A.B. (Bonilla, Hilda), lexis.com, Lexis Advance

Permanent Disability—Rating—AMA Guides—WCAB held that there was substantial evidence to support WCJ’s finding that applicant/presser incurred 12 percent permanent disability as result of industrial burn injuries to her left hand and consequential left thigh injury, based on entirety of record, including opinions of applicant’s treating physician and panel qualified medical evaluator, when WCAB concluded that…

Credit—Third-Party Recovery—Employer Fault—WCAB affirmed WCJ’s finding that employer’s negligence was 90 percent responsible for causing applicant/presser’s industrial burn injuries to her left hand and consequential left thigh injury, and that value of third-party case was $200,000, and held that defendant was entitled to Labor Code § 3861 credit of up to $10,000 (amount of applicant’s net third-party settlement recovery) against its workers’ compensation liability, after paying $180,000 in benefits, when WCAB found that…

Joseph R. Scott, Inc. v. W.C.A.B. (Myers, Darrell), lexis.com, Lexis Advance

Serious and Willful Misconduct of Employer—WCAB, reversing WCJ, held that applicant/pipefitter/laborer’s industrial injury to his low back, chest, ribs, and clavicle, which occurred when excavation area in which he was working caved in, was caused by employer’s serious and willful misconduct in violation of Labor Code § 4553, when WCAB found that…

Other WCAB Decisions Denied Judicial Review

Cast and Crew Entertainment Services, Inc. v. W.C.A.B. (Barstow, Jeffrey), lexis.com, Lexis Advance

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

City of Anaheim v. W.C.A.B. (Willis, Joel), lexis.com, Lexis Advance

Injury AOE/COE—WCAB held that applicant city police officer sustained cumulative trauma injury AOE/COE from 6/2/1994 through 8/14/2007 to his psyche (including insomnia), hypertension, gastro-esophageal reflux disease, and irritable bowel syndrome, based on opinions that applicant sustained injury AOE/COE from agreed medical evaluators in psychiatry and internal medicine, when WCAB found that…

City of Stockton v. W.C.A.B. (Bogarin, Eugene), lexis.com, Lexis Advance

Attorneys—Misconduct—Sanctions, Attorney’s Fees, Costs—WCAB held that applicant’s attorney’s conduct was not sanctionable conduct within meaning of Labor Code § 5813 or 8 Cal. Code Reg. § 10561 and that defendants were not entitled to attorney’s fees and costs because of applicant’s attorney’s conduct, when WCAB found that…

Debbs (Anthony) v. W.C.A.B., lexis.com, Lexis Advance

Petitions for Reconsideration—Time to File—WCAB dismissed petition for reconsideration of WCJ decision not filed within 25 days of issuance of WCJ decision (20 days under Labor Code § 5903, plus five days for mailing under Code of Civil Procedure § 1013), when…

Ecoffey (Erlinda) v. W.C.A.B., lexis.com, Lexis Advance

Permanent Disability—Rating—WCAB awarded applicant machine operator 96 percent permanent disability, without apportionment, and life pension for admitted 11/29/2000 industrial injury to her left upper extremity and psyche from incident when machine crushed her hand, based on…

Fobbs (Dee Anna) v. W.C.A.B., lexis.com, Lexis Advance

Injury AOE/COE—WCAB held that applicant food service technician did not sustain claimed injury AOE/COE to her right knee on 12/23/2011, when WCAB found that…

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

Injury AOE/COE—WCAB held that applicant did not sustain injury AOE/COE from 10/4/2008 through 2/4/2010 to neck, low back, left knee, left upper extremity, head, or psyche from her work for defendant as maid, based on…

Petitions for Reconsideration—Verification—WCAB dismissed applicant’s petition for reconsideration of its decision that applicant sustained injury AOE/COE on 10/30/2009 to left knee, cervical spine, and left chest wall, but not…

Hewko v. W.C.A.B. (Pasillas, Hector), lexis.com, Lexis Advance

Lien Claimants—Sanctions—WCAB imposed sanctions under Labor Code § 5813 and 8 Cal. Code Reg. § 10561 of $1,500 to be paid into General Fund and $1,650 in costs and attorney’s fees to be paid to defendants’ attorney, against petitioners/lien claimants who provided medical treatment for applicant’s 2002 industrial injury or represented lien claimants, when WCAB found that…

Hodges (Ronald) v. W.C.A.B., lexis.com, Lexis Advance

Petitions for Writ of Review—Dismissal—Final Orders—Court of Appeal dismissed petition for writ of review from WCAB decision that was not final order, when WCAB in its decision rescinded findings and award and remanded matter for further proceedings and new decision, regarding claim of applicant that he developed Reiter’s Syndrome as consequence of his industrial injury (malaria) from working for defendant in Angola, and when WCAB found that…

Ideal Catering v. W.C.A.B. (Giron, Gladys), lexis.com, Lexis Advance

Employment Relationships—WCAB held that applicant and defendant Larson were both employees of defendant Ideal Catering, when WCAB found that…

Mitchell (Ernestine) v. W.C.A.B., lexis.com, Lexis Advance

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

Poston (Phillip) v. W.C.A.B., lexis.com, Lexis Advance

Injury to Psyche AOE/COE—WCAB held that applicant did not sustain burden under Labor Code § 3202.5 of proving cumulative injury AOE/COE to psyche ending 11/10/2012 while working for defendant as road maintenance worker, when applicant…

Wausau Underwriters Insurance Co. v. W.C.A.B. (Sanchez, Carmen), lexis.com, Lexis Advance

Multiple Injuries—Permanent Disability—Apportionment—WCAB held that applicant’s permanent disability from three industrial injuries was “inextricably intertwined” under Benson v. W.C.A.B. (2009) 170 Cal. App. 4th 1535, 89 Cal. Rptr. 3d 166, 74 Cal. Comp. Cases 113, and WCAB awarded…

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