California Workers' Comp Case Roundup (6/14/2014)

CALIFORNIA COMPENSATION CASES

Vol. 79 No. 5 May 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 Compensation Cases

Benavides (Leopoldo) v. W.C.A.B., lexis.com, Lexis Advance

Petition to Reopen—Good Cause—Substantial Evidence—Court of Appeal, annulling WCAB decision and remanding with directions to reinstate WCJ’s award of 72 percent permanent disability, held that there was good cause to reopen original award of 51 percent permanent disability, namely, abnormal electromyography test performed before stipulated judgment was entered but not reviewed by agreed medical evaluator prior to that judgment, when Court of Appeal found that…

Lantz (Shannon) (Lantz, Patrick (Dec’d)) v. W.C.A.B., lexis.com, Lexis Advance

Injury AOE/COE—Going and Coming Rule—Special Mission Exception—Court of Appeal, affirming WCAB order, held that applicant/survivor’s claim for death benefits stemming from death of decedent/correctional officer was barred by going and coming rule, when Court of Appeal found that…

Regents of the University of California, The v. W.C.A.B. (Lappi, Shirley), lexis.com, Lexis Advance

WCAB Decisions—Finality—Propriety of Judicial Review—Court of Appeal, annulling WCAB decision, held that, because defendant’s petition sought review of WCAB’s order requiring production of disputed documents to special master for in camera inspection, issue before Court of Appeal was whether order was appropriate preliminary step in resolving discovery dispute, so that order was reviewable as final order from which petition for writ of review may be taken under Labor Code § 5950, when Court of Appeal found that…

Workers’ Compensation Proceedings—Evidence Code—Privileges—Court of Appeal, annulling WCAB decision, held that Evidence Code statutes governing privilege are applicable to workers’ compensation administrative proceedings, and that, because Evidence Code § 915 expressly prohibits tribunal from ordering party to produce documents for review as means of determining validity of claimed privilege, WCAB erred in ordering that documents claimed by defendants as privileged be produced for special master to review in camera to determine whether they are privileged, when Court of Appeal found that…

Appellate Court Cases Not Originating With Appeals Board

Paulus v. Crane Co., lexis.com, Lexis Advance

Asbestos—Mesothelioma—Causation—Court of Appeal, affirming Superior Court judgment, held that plaintiffs, survivors of decedent plumber, established that decedent’s exposure to defendant’s asbestos products was, in reasonable medical probability, substantial factor in causing or contributing to decedent’s risk of developing cancer, and that plaintiffs were not required to demonstrate that fibers from defendant’s particular product were the ones, or among the ones, that actually produced decedent’s malignant growth, when Court of Appeal found that…

Judgments—Setoffs—Court of Appeal, affirming Superior Court judgment, held that trial court properly calculated setoff of damages in amounts of defendant’s settlements with other defendants and properly rejected defendant’s argument that it was entitled to further setoff for settlements that plaintiffs would be entitled to recover, but had not yet sought, from various asbestos bankruptcy trusts, when Court of Appeal found that…

United Parcel Service, Inc. v. Department of Fair Employment and Housing (Mason, Eva Linda), lexis.com, Lexis Advance

Civil Actions—Fair Employment and Housing Act—Discrimination—Court of Appeal affirmed trial court’s judgment holding that plaintiff employer unlawfully discriminated against applicant in violation of Fair Employment and Housing Act (Government Code § 12900 et seq.), as found by Fair Employment and Housing Commission, when Court of Appeal found that…

Appeals Board En Banc Decisions

Brower (Warren) v. David Jones Construction, lexis.com, Lexis Advance

Temporary Disability Indemnity—Permanent Disability Payments—Cost of Living Adjustments—WCAB en banc held that (1) when defendant stops paying temporary disability indemnity pursuant to Labor Code § 4656(c) before applicant is determined to be permanent and stationary, defendant must commence paying permanent disability indemnity based on reasonable estimate of applicant’s ultimate level of permanent disability, (2) when applicant who is receiving permanent partial disability payments pursuant to Labor Code § 4650(b)(1) becomes permanent and stationary and is determined to be permanently totally disabled, defendant must pay permanent total disability indemnity retroactive to date its statutory obligation to pay temporary disability indemnity terminated, and (3) cost of living adjustments begin on 1/1 after applicant becomes entitled to receive permanent disability indemnity pursuant to Labor Code § 4650(b)(1) or (2), when WCAB en banc found that…

Dubon (Jose) v. World Restoration, Inc., lexis.com, Lexis Advance

Utilization Review—Independent Medical Review—WCAB en banc granted defendant’s petition for reconsideration of its en banc decision issued 2/27/2014 to allow time for study of issues, with defendant contending that…

Digests of WCAB Decisions Denied Judicial Review

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

Cedars-Sinai Health System v. W.C.A.B. (Newton, Sheila), lexis.com, Lexis Advance

Psychiatric Injury—Good Faith Personnel Actions—WCAB, affirming WCJ in split panel decision, held that applicant/registered nurse suffered compensable cumulative psychiatric injury, and that applicant’s psychiatric claim was not barred by good faith personnel action defense in Labor Code § 3208.3(h), when WCAB, applying analysis in Rolda v. Pitney Bowes (2001) 66 Cal. Comp. Cases 241 (Appeals Board en banc opinion) and relying on agreed medical evaluator’s opinion, found that…

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

Statute of Limitations—Tolling—WCAB affirmed WCJ’s finding that applicant/police officer’s application for adjudication of claim filed on 10/23/2009, alleging 6/5/95 cervical spine injury, was not barred by statute of limitations in Labor Code § 5405, when WCAB found that statute of limitations was tolled because defendant failed to provide applicant with pamphlet advising him of his workers’ compensation rights pursuant to former 8 Cal. Code Reg. § 9882(a), in effect on applicant’s date of injury, that defendant did not establish that applicant had…

County of Los Angeles v. W.C.A.B. (Seafus, Virginia), lexis.com, Lexis Advance

Permanent Disability—Apportionment—Overlap—WCAB, affirming WCJ, awarded applicant/human services administrator 87 percent permanent disability, after 15 percent apportionment under Labor Code § 4663, for industrial injury to her heart, cardiovascular system, psychological system, and in form of sleep disorder, but found no basis for apportionment pursuant to Labor Code § 4664(c)(1) and Kopping v. W.C.A.B. (2006) 142 Cal. App. 4th 1099 [48 Cal. Rptr. 3d 618] [71 Cal. Comp. Cases 1229], when WCAB concluded that…

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

Medical-Legal Procedure—Qualified Medical Evaluator Reporting Timeframes—Replacement Panels—WCAB, denying defendant’s petition for removal, held that defendant was not entitled to replacement panel qualified medical evaluator to examine applicant with industrial right shoulder injury pursuant to 8 Cal. Code Reg. § 38(h), due to qualified medical evaluator’s alleged failure to timely issue supplemental report, when WCAB found…

Negherbon Auto Center v. W.C.A.B. (Blaylock, Barry), lexis.com, Lexis Advance

Serious and Willful Misconduct by Employer—Safety Order Violations—WCAB, affirming WCJ, held that applicant met burden of proving that employer violated Labor Code § 4553 based on its serious and willful misconduct in causing applicant to suffer injury to his lungs and permanent total disability due to workplace exposure to cigarette smoke, when WCAB found that…

Tampa Bay Buccaneers v. W.C.A.B. (Harper, Alvin), lexis.com, Lexis Advance

Cumulative Trauma—Labor Code § 5500.5—WCAB Jurisdiction—WCAB affirmed WCJ’s finding that applicant suffered cumulative industrial injury to numerous body parts while playing professional football for defendant Tampa Bay Buccaneers and other football teams from 3/8/95 through 2/2001, and that Tampa Bay Buccaneers had liability pursuant to Labor Code § 5500.5, even though Tampa Bay Buccaneers did not employ applicant during last year of stipulated cumulative trauma period and applicant played only one game in California while playing for Tampa Bay, when WCAB found that…

Other WCAB Decisions Denied Judicial Review

Davtyan (Zhanna) v. W.C.A.B., lexis.com, Lexis Advance

Discrimination—Labor Code § 132a—WCAB held that employer did not discriminate against applicant in violation of Labor Code § 132a by terminating her for poor work performance and using profanity directed at supervisor, when WCAB found that…

Attorney’s Fees—WCAB denied claim of applicant’s attorney for attorney’s fees under Labor Code § 5814.5, when WCAB found that…

Hannan v. W.C.A.B. (Suniga, Joshua), lexis.com, Lexis Advance

Attorney’s Fees—Division of Fees—WCAB awarded attorney’s fees of $15,000, representing 15 percent of compromise and release amount of $100,000, withheld $15,000 from settlement for fees, and ordered $5,000 from withheld fees to be paid to petitioner/applicant’s former attorney as reasonable fee and remainder of withheld fees to be returned to applicant ($10,000), when WCAB, on applicant’s former attorney’ s petition for reconsideration, found that applicant claimed 8/5/2003 industrial injury to his low back, head, and right upper extremity while working for defendant as tanker truck driver, that division of withheld attorney’s fee should be determined using factors of 8 Cal. Code Reg. § 10775 and DWC/WCAB Policy and Procedural Manual § 1.140, that factors WCAB considered included…

Harris-Boyd (Linda) v. W.C.A.B., lexis.com, Lexis Advance

Injury AOE/COE—WCAB held that applicant flight attendant sustained injury AOE/COE on 3/16/2005 to cervical spine, thoracic spine, right shoulder, right upper extremity, left upper extremity, both lower extremities, headaches, sleep difficulties, psyche, and internal (hypertension and gastrointestinal), but not to…

Permanent Disability—Rating—WCAB awarded applicant 91 percent permanent disability, after apportionment, plus life pension, based on applicant’s testimony, opinions from applicant’s treating physician, panel qualified medical evaluator in internal medicine, and third physician, formal rating instructions, and recommended rating from Disability Evaluation Unit rater, with no objection to…

Levenets (Peter) v. W.C.A.B., lexis.com, Lexis Advance

Injury AOE/COE—WCAB held that applicant security guard did not meet burden under Labor Code §§ 3202.5 and 5705 of proving he sustained claimed industrial injury to his circulatory system on 5/10/2012, with opinions from agreed medical evaluator or otherwise, when WCAB found that applicant claimed injury on 5/10/2012 from developing chest pains, that agreed medical evaluator in internal medicine gave diagnoses that included…

Liberty Mutual Insurance Co. v. W.C.A.B. (Erne, Greg), lexis.com, Lexis Advance

Petitions for Writ of Review—Final Orders—Court of Appeal dismissed petition for writ of review because petitioner was appealing WCAB decision, which rescinded WCJ’s decision finding that applicant plumber sustained…

Pedersen (Debbie) v. W.C.A.B., lexis.com, Lexis Advance

Permanent Disability—Time of Payment—WCAB, rescinding WCJ’s award in split panel decision, held that payment of permanent total disability indemnity to applicant/mammography technician who suffered cumulative industrial injury to cervical spine, vocal cords, right elbow, and wrists should commence on 3/19/2008, which was date on which agreed medical examiner found increased permanent disability, rather than on date last temporary total disability indemnity was paid under prior stipulated award, as found by WCJ, when WCAB concluded that…

Rahmatian (Michael) v. W.C.A.B., lexis.com, Lexis Advance

Removal to WCAB—WCAB denied petition for removal because petitioner did not show significant prejudice or irreparable harm if case was not removed to WCAB due to WCJ’s 10/11/2013 order that Medical Director issue new panel qualified medical evaluator list in neurology specialty for applicant’s three claimed industrial injuries to his neck (1/8/2002 through 1/8/2003, 12/15/2002, and 1/8/2003), when WCAB found that…

Roper (Stewart) v. W.C.A.B., lexis.com, Lexis Advance

Injury AOE/COE—Permanent Disability—WCAB held that applicant football coach sustained injury AOE/COE on 9/5/98 and 9/28/99 to left knee and cardiovascular system but not to right knee, hips, or psyche while working for two different employers, based on opinions from agreed medical evaluators in orthopedics, psychiatry, and internal medicine, and WCAB awarded applicant…

Injury AOE/COE—WCAB held that applicant did not sustain injury to his knees, hips, psyche, or internal/cardiovascular system in periods ending 6/15/99, 3/11/2002, 6/1/2002, and 6/15/2003, based on…

Tijerino (Luis) v. W.C.A.B., lexis.com, Lexis Advance

Injury AOE/COE—WCAB held that applicant cameraman/television technician/engineer/editor did not sustain injury AOE/COE on 9/15/2007 in form of chronic pain disorder, in addition to admitted and found injury AOE/COE to other body parts on same date, based on…

Permanent Disability—Rating—WCAB awarded applicant 73 percent permanent disability for 9/15/2007 injury AOE/COE, after apportionment, and with life pension, based on opinions from two agreed medical evaluators, formal rating instructions, motion to strike rating instructions, amended instructions, and Disability Evaluation Unit rating, and WCAB found…

WCAB’s Duty to Develop Record—WCAB held that it did not have duty to develop record on issue of rating applicant’s permanent disability from 9/15/2007 industrial injury by asking agreed medical evaluators to further report, when WCAB found that…

Toma (Georghe) v. W.C.A.B., lexis.com, Lexis Advance

Subsequent Injuries Benefits Trust Fund—Threshold Requirements—WCAB rescinded WCJ’s finding that applicant/electrician was entitled to receive Subsequent Injuries Benefits Trust Fund benefits for combined permanent disability from 1998 industrial injury to low back and industrial cumulative injury over period 10/16/2000 through 10/16/2001, and held that applicant was not entitled to receive Subsequent Injuries Benefits Trust Fund benefits under Labor Code § 4751, when WCAB concluded that…

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