California Workers’ Comp Case Roundup (6/10/2015)

CALIFORNIA COMPENSATION CASES

Vol. 80 No. 5 May 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 Case

Cynthia Lozano et al., Petitioners v. Workers’ Compensation Appeals Board and State Compensation Insurance Fund, Respondents, lexis.com, Lexis Advance

Presumption of Industrial Causation—Cancer—Firefighters—Court of Appeal, annulling WCAB decision and remanding case for further proceedings, held that decedent firefighter, who died in 2007 of stomach cancer, was entitled to Labor Code § 3212.1 presumption that cancer arose out of and in course of employment, when Court of Appeal found that…

Appellate Court Cases Not Originating With Appeals Board

Michelle Jensen, Plaintiff and Appellant v. Kenneth Krauss et al., Defendants and Respondents, lexis.com, Lexis Advance

Civil Actions Against Employers—Exclusive Remedy Rule—Dual Capacity Exception—Court of Appeal held that plaintiff’s civil action against her employer/defendant was barred because workers’ compensation was her exclusive remedy for injury from defendant’s alleged dental malpractice and dual capacity doctrine exception to workers’ compensation exclusivity did not apply, when Court of Appeal found that…

Kimco Staffing Services, Inc., et al., Plaintiffs and Appellants v. The State of California et al., Defendants and Respondents, lexis.com, Lexis Advance

Equal Protection—Permissibly Self-Insured Employers—Court of Appeal, affirming trial court’s dismissal of plaintiffs’ actions following order sustaining without leave to amend defendant’s demurrer, held that Labor Code § 3701.9, which prohibits temporary services employers and leasing employers, such as plaintiffs, from self-insuring their workers’ compensation liability, has rational basis for treating such employers differently from other employers with respect to self-insurance and, thus, does not violate equal protection provisions of United States and California Constitutions, when Court of Appeal found that…

Rahmi Turkmen, Plaintiff and Appellant v. James R. Katz et al., Defendants and Respondents, lexis.com, Lexis Advance

Civil Actions—Reimbursement for Work Performed by Unlicensed Contractors—Court of Appeal affirmed trial court’s grant of summary judgment in favor of defendants/homeowners against plaintiff tile contractor who performed work at defendants’ residence without having appropriate license, when plaintiff had C-54 tile setter’s license, which allowed ceramic and mosaic tile work, plaintiff performed work at…

Federal Tax Court Opinion of Related Interest

Clarence William Speer and Susan M. Speer, Petitioners v. Commissioner of Internal Revenue, Respondent, lexis.com, Lexis Advance

Federal Income Tax—Gross Income—Unused Vacation Time and Sick Leave—U.S. Tax Court, affirming adjustment by Commissioner of Internal Revenue, held that payments received by taxpayer upon his retirement from Los Angeles Police Department for unused vacation time and unused sick leave (so-called leave payments) were not received under workers’ compensation law as compensation for personal injuries or sickness and, therefore, were not excludable from gross income as defined in 26 U.S.C.S. § 104(a)(1), when U.S. Tax Court 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.

Michael Briggs, Petitioner v. Workers' Compensation Appeals Board, Steve Austin's Motor Home Safari, State Compensation Insurance Fund, Respondents, lexis.com, Lexis Advance

Medical Treatment—Utilization Review—WCAB denied applicant’s petition for removal challenging WCJ’s finding that, pursuant to Dubon v. World Restoration, Inc. (2014) 79 Cal. Comp. Cases 1298 (Appeals Board en banc opinion) (Dubon II), WCAB had no jurisdiction over applicant’s appeal of utilization review determination reducing pain medication prescribed by treating physician for applicant’s 1999 and 2001 industrial injuries because…

Chelo's Hair Fashion, Petitioner v. Workers' Compensation Appeals Board, Teresa Martinez, Respondents, lexis.com, Lexis Advance

Employment Relationships—Employees vs. Independent Contractors—Hairdressers—WCAB affirmed WCJ’s finding that applicant hairdresser was employee of defendant, rather than independent contractor, at time of her alleged injuries, when WCAB found that…

Scott Graham, Petitioner v. Workers' Compensation Appeals Board, San Diego Unified School District, PSI, administered by York Risk Services Group, Inc., Respondents, lexis.com, Lexis Advance

Medical Treatment—Utilization Review—Independent Medical Review—WCAB affirmed WCJ’s finding that defendant’s utilization review denial of discogram recommended by applicant’s treating physician to determine nature of applicant’s back pain was not invalid and that WCAB had no jurisdiction to…

Lions Raisins, aka Lions Raisins Packing Company, PSI, administered by Acclamation Insurance Management Services, Petitioner v. Workers' Compensation Appeals Board, Ismael Miramontes, Respondents, lexis.com, Lexis Advance

Medical Treatment—Home Health Care—WCAB affirmed WCJ’s award of home health care for 56 hours per week, at $10 per hour, based on prescription from treating physician indicating that applicant needed home health care on “full time” basis coupled with treating physician’s deposition testimony that eight hours per day of home health care was reasonable, and fact that defendant had been providing eight hours per day of home health care since 2007 and…

Los Angeles County Metropolitan Transportation Authority (aka Los Angeles Metropolitan Transit Authority, LAMTA), PSI, Petitioner v. Workers' Compensation Appeals Board, Armand La Count, Respondents, lexis.com, Lexis Advance

Permanent Disability—Rating—Permanent Total Disability—WCAB, affirming WCJ, held that applicant incurred permanent total disability as result of admitted industrial injury to his neck, back, left shoulder, left wrist, right hip, psyche, gastrointestinal system, and in forms of diabetes, hypertension, and sleep disorder, when WCAB found that…

Other WCAB Decisions Denied Judicial Review

Richard Avila, Petitioner v. Workers' Compensation Appeals Board, Payless Cashways, Continental Insurance Company, administered by CNA Claims Plus, Respondents, lexis.com, Lexis Advance

Petitions for Writ for Review—Time to File—Court of Appeal denied without prejudice petition for writ of review that was premature, since…

California Insurance Guarantee Association, administered by Broadspire, on behalf of Superior National Insurance Company, in liquidation, insurer for United Staffing Solutions, Inc., Petitioner v. Workers' Compensation Appeals Board, HCA/Chino Valley Medical Center, Transportation Insurance Company, administered by Broadspire, David Hanna, Respondents, lexis.com, Lexis Advance

Petitions for Reconsideration—Dismissal for Failure to Serve—WCAB dismissed petition for reconsideration filed by California Insurance Guarantee Association for failure to serve petition on…

City of Bell, PSI, administered by Adminsure, Petitioner v. Workers' Compensation Appeals Board, Steven Finkelstein, Respondents, lexis.com, Lexis Advance

Public Employees—Salary in Lieu of Benefits—WCAB affirmed WCJ’s finding that applicant police captain who suffered admitted cumulative injury to his low back and knees from 1/22/92 through 5/14/2014 was entitled to Labor Code § 4850 benefits, notwithstanding defendant’s assertion that it was liable for temporary disability benefits rather than Labor Code § 4850 benefits because applicant had been…

City of Glendale, PSI, Petitioner v. Workers' Compensation Appeals Board, James Fisher, Respondents, lexis.com, Lexis Advance

Statute of Limitations—WCAB held that applicant city maintenance worker’s claim of cumulative trauma injury from 5/5/80 to 4/1/2009 to back, both legs, knees, feet, and ankles was not barred by statute of limitations of Labor Code § 5405, when WCAB found that…

Christina Garcia, Petitioner v. Workers' Compensation Appeals Board, St. Mary's and All Angels School, Oak River Insurance Company, administered by Berkshire Hathaway Homestate Companies, Respondents, lexis.com, Lexis Advance

Injury AOE/COE—WCAB held that applicant teacher and summer school director did not sustain burden of proving injury AOE/COE to psyche, sleep, internal system, and in form of migraine headaches, when applicant claimed that stress at work caused her injuries and WCAB found that…

Meadowbrook/Star Insurance Company, insurer for Apache Auto, Inc., Petitioner v. Workers' Compensation Appeals Board, Apache Auto, Inc., Zenith Insurance Company, Ramon Prieto (Dec'd), Aida Rodriguez, et al., (Dependents), Respondents, lexis.com, Lexis Advance

Cumulative Trauma Injury AOE/COE—Multiple Insurers—WCAB held that applicant auto wrecker salesperson sustained cumulative trauma injury AOE/COE in period from 11/2008 through 12/26/2008, period when petitioner Star/Meadowbrook insured employer, to his heart/cardiovascular and neurological system, causing atrial fibrillation 12/26/2008 and death on 7/28/2013, based on…

Gustavo Antonio Mendoza, Petitioner v. Workers' Compensation Appeals Board, Professional Security Consults/Professional Security Consultants, CNA Claims Plus, Respondents, lexis.com, Lexis Advance

Utilization Review—Timely Utilization Review Decisions—WCAB Jurisdiction—In case decided before issuance of Dubon v. World Restoration, Inc. (2014) 79 Cal. Comp. Cases 1298 (Appeals Board en banc opinion), WCAB held that utilization review decision of 6/24/2014 was timely made and valid and that, therefore, it had no jurisdiction to determine validity, nature, and extent of requested medical treatment that was subject of utilization review determination, when WCAB found that…

Karen Segroves, Petitioner v. Workers' Compensation Appeals Board, Paula's Pancake House/Burger Barn, Twin City Fire Insurance Company, The Hartford, Respondents, lexis.com, Lexis Advance

Cumulative Trauma Injury AOE/COE—WCAB held that applicant waitress did not sustain burden of proving she sustained cumulative trauma injury AOE/COE from 8/15/1997 through 5/15/2015 to both shoulders, cervical spine, and dental, based on…

Tito Thomas, Petitioner v. Workers' Compensation Appeals Board, G4S Secure Solutions, Inc., Gallagher Bassett Services, Inc., Respondents, lexis.com, Lexis Advance

Injury AOE/COE—WCAB held that applicant security officer did not sustain burden of proving three claimed industrial injuries (9/1/2007 to 4/20/2009, 12/31/2008, and compensable consequence of 12/31/2008 injury, all to head, upper extremities, neck, psyche, and respiratory system (tuberculosis)), based on WCAB’s findings that…

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