California Workers’ Comp Case Roundup (5/5/2015)

CALIFORNIA COMPENSATION CASES

Vol. 80 No. 4 April 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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Federal District Court Opinions of Related Interest

Cotter v. Lyft, Inc., lexis.com, Lexis Advance

Employment Relationships—Employees—Independent Contractors—U.S. District Court, Northern District of California, denying plaintiff’s and defendant’s cross-motions for summary judgment to declare plaintiffs employees as matter of law or independent contractors as matter of law, held that whether individual should be classified as employee or independent contractor under California law presents mixed question of law and fact to be resolved by jury, when U.S. District Court, Northern District of California, found that…

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

Employment Relationships—Employees—Independent Contractors—U.S. District Court, Northern District of California, ruling on defendant’s motion for summary judgment to declare plaintiffs independent contractors as matter of law, held that plaintiffs are defendant’s presumptive employees because they “perform services” for the benefit of defendant, that whether individual should ultimately be classified as employee or independent contractor under California law presents mixed question of law and fact that must typically be resolved by jury, and that, because various facts material to employee/independent contractor determination remain in dispute, defendant’s summary judgment motion is denied, when U.S. District Court, Northern District of California, found that…

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.

Cast & Crew Entertainment Services, Inc. v. W.C.A.B. (Van Phue, Jeanne), lexis.com, Lexis Advance

Contribution—Apportionment of Liability—Substantial Evidence—WCAB affirmed Arbitrator’s order granting petition for reimbursement filed by defendant Entertainment Partners/American Casualty Company of Reading adjusted by CNA (collectively CNA) against Cast & Crew/Zurich North America (collectively Zurich), and ordered Zurich to reimburse CNA for 60 percent of benefits paid by CNA in connection with…

County of Santa Clara v. W.C.A.B. (Zamora, Tonya Orepeza), lexis.com, Lexis Advance

Presumption of Industrial Causation—Cancer—Correctional Officers—WCAB found that applicant sustained industrial injury in form of uterine cancer and that, at time of injury, applicant was “peace officer” within meaning of Labor Code § 3212.1, even though applicant’s job title on date of injury was “correctional officer,” when WCAB found that…

Filippini (Octavio) v. W.C.A.B., lexis.com, Lexis Advance

Medical Treatment—Utilization Review—Independent Medical Review—WCAB rescinded WCJ’s finding that defendant’s five utilization review determinations disallowing applicant’s physicians’ request for spinal surgery suffered from material defects, as described in Dubon v. World Restoration, Inc. (2014) 79 Cal. Comp. Cases 313 (Appeals Board en banc opinion) (Dubon I), that undermined integrity of utilization review decisions, and rescinded WCJ’s award of requested medical treatment, when WCAB concluded that…

Frontline Medical Associates, Inc. v. W.C.A.B. (Lopez, Enedina), lexis.com, Lexis Advance

Liens—Medical Treatment—Burden of Proof—WCAB affirmed WCJ’s order allowing lien claimant’s lien for medical office visits but disallowing lien for compound medications and convenience packs provided to applicant with admitted industrial injuries to her right wrist, right thumb, knees, and right ankle, when medical report submitted by lien claimant in support of its lien was inadmissible under Labor Code § 5502(d)(3) and 8 Cal. Code Reg. § 10770.1(h), based on…

Krause (Cynthia) v. W.C.A.B., lexis.com, Lexis Advance

Statute of Limitations—Five-Year Statute—Compensable Consequence Injuries—WCAB, denying reconsideration of WCJ’s take-nothing order, held that applicant’s claim for compensable consequence injury to her right eye, which applicant alleged arose out of her industrial knee replacement surgery necessitated by injury to her left leg, could not be raised as claim of new injury filed more than five years after date of original injury, when WCAB found that…

Myers (Lynda) v. W.C.A.B., lexis.com, Lexis Advance

Permanent Disability—Rating—Substantial Evidence—WCAB, in split panel decision, rescinded WCJ’s award of 100 percent permanent disability to applicant teacher who suffered 4/3/98 industrial orthopedic and psychiatric injuries, and held that applicant’s injury caused 93 percent permanent disability, based on reporting of agreed medical evaluator, John Greenfield, M.D., when WCAB disagreed with…

Solano (Tina) v. W.C.A.B., lexis.com, Lexis Advance

Permanent Disability—Substantial Evidence—WCAB rescinded WCJ’s finding that applicant suffered 82 percent permanent disability from admitted carpal tunnel injury, as well as injury to her upper extremities and cervical spine, and returned matter to trial level for new permanent disability rating based on findings of applicant’s primary treating physician instead of on opinion of qualified medical evaluator on which WCJ had relied, when WCAB concluded that…

Tradesmen International, Inc. v. W.C.A.B. (Salaam, Hassaan), lexis.com, Lexis Advance

Cumulative Trauma Injury AOE/COE—WCAB held that applicant welder/millwright sustained cumulative trauma injury AOE/COE to his right shoulder, back, and psyche, based on applicant’s credible testimony and opinions from two panel qualified medical evaluators, which WCAB found were…

Other WCAB Decisions Denied Judicial Review

Cruz (Nolvia Garmendia) v. W.C.A.B., lexis.com, Lexis Advance

Going and Coming Rule—Exceptions—WCAB held that applicant’s injury in motor vehicle accident was barred by going and coming rule and that three exceptions to going and coming rule raised by applicant did not apply, when WCAB found that…

Employers Insurance Co. of Wausau v. W.C.A.B. (Parker, Dwight), lexis.com, Lexis Advance

Injury AOE/COE—Multiple Employers—WCAB held that applicant hard rock miner sustained cumulative trauma injury AOE/COE to his lungs in period 1978 through 3/2008 from exposure to dust, fumes, and other airborne materials, when WCAB found that latency period was 10 years before symptoms occurred in 3/2008, that applicant’s last employment before latency period and with injurious exposure and California jurisdiction was with Guy F. Atkinson, and that, therefore…

Gonzales (Judith) v. W.C.A.B., lexis.com, Lexis Advance

Temporary Disability—WCAB held that there was insufficient medical evidence to support applicant’s requested award of temporary total disability benefits from 1/11/99 through 5/4/2006 for cumulative trauma industrial back injury ending 10/22/98, when WCAB found that…

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