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California Workers' Comp Case Roundup (6/7/2013)

June 08, 2013 (19 min read)
CALIFORNIA COMPENSATION CASES
Vol. 78 No. 5 May 2013
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
County of Sacramento v. W.C.A.B. (Brooks, Michael), 78 Cal. Comp. Cases 379 (lexis.com), 78 Cal. Comp. Cases 379 (Lexis Advance)
Psychiatric Injuries—Personnel Actions—Medical Evidence—Court of Appeal, annulling WCAB decision and remanding case, held that WCAB’s decision that applicant’s claim for psychiatric injury was compensable and not barred by Labor Code § 3208.3(h) defense of having been “substantially caused by a . . . personnel action” was not supported by substantial evidence, when Court of Appeal found …
Appellate Court Cases Not Originating With Appeals Board
California Dept. of Corrections and Rehabilitation v. State Personnel Board, 78 Cal. Comp. Cases 390 (lexis.com), 78 Cal. Comp. Cases 390 (Lexis Advance)
Public Safety Officers Procedural Bill of Rights Act—Internal Workers’ Compensation Fraud Investigations—Statute of Limitations—Court of Appeal, affirming trial court’s judgment, held that Public Safety Officers Procedural Bill of Rights Act, Government Code § 3300 et seq., excepts internal workers’ compensation fraud investigations from one-year limitations period established in Government Code § 3304(d)(1), when Court of Appeal found…
Christensen (David) v. Grai, 78 Cal. Comp. Cases 399 (lexis.com), 78 Cal. Comp. Cases 399 (Lexis Advance)
Civil Actions—Exclusive Remedy—Court of Appeal held that plaintiff/applicant’s causes of action against defendants Uninsured Employers Benefit Trust Fund and Fund’s adjuster and supervisor were barred because WCAB had exclusive jurisdiction under Labor Code § 5300 over plaintiff’s causes of actions and trial court had no jurisdiction to hear claim to enforce settlement, when Court of Appeal found…
Civil Actions—Government Claims Act—Alternatively, Court of Appeal affirmed trial court’s holding that plaintiff’s causes of action against defendants/governmental entities were barred under Government Claims Act (Government Code § 900 et seq.) because plaintiff did not…
Mendez (Elvira Tapia) v. Los Anegeles Unified School Dist., 78 Cal. Comp. Cases 406 (lexis.com), 78 Cal. Comp. Cases 406 (Lexis Advance)
Civil Actions Against Co-Workers—Exclusive Remedy Rule—Exceptions—Court of Appeal held that trial court properly granted summary judgment in favor of plaintiff applicant’s co-worker because plaintiff’s complaint for assault and battery by co-worker was barred under rule that workers’ compensation was plaintiff’s exclusive remedy against co-worker under Labor Code § 3601(a) and that exception to workers’ compensation rule under Labor Code § 3601(a)(1) when injury was caused by co-worker’s “willful and unprovoked physical act of aggressor” did not apply, when Court of Appeal found …
Civil Actions Against Employers—Wrongful Termination—Court of Appeal affirmed trial court’s grant of summary judgment in favor of defendant school district on cause of action for wrongful termination, when Court of Appeal found …
Pantazis (Athena) v. Oakland Convention and Visitors Bureau, 78 Cal. Comp. Cases 422 (lexis.com), 78 Cal. Comp. Cases 422 (Lexis Advance)
Civil Actions Against Employers—Res Judicata—Court of Appeal held that plaintiff/applicant’s civil action against her employer’s successor was barred under res judicata doctrine because same issues were previously litigated in plaintiff’s workers’ compensation proceeding, when Court of Appeal found …
People v. Shim, 78 Cal. Comp. Cases 431 (lexis.com), 78 Cal. Comp. Cases 431 (Lexis Advance)
Criminal Court Actions—Victim Restitution—Offsets—Court of Appeal affirmed trial court’s allowance of offset for employer’s workers’ compensation insurer’s payment of death benefits to heirs of injured worker killed in industrial accident against employer’s obligation for restitution to heirs under Penal Code §§ 1202.4 and 1203.1, when Court of Appeal found…
Appeals Board En Banc Decisions
Figueroa (Eliezer) v. B.C. Doering Co., 78 Cal. Comp. Cases 439 (lexis.com), 78 Cal. Comp. Cases 439 (Lexis Advance)
Liens—Activation Fee—WCAB en banc, affirming WCAB significant panel decision in Figueroa v. B.C. Doering Co. (2013) 78 Cal. Comp. Cases 336, that dismissed lien claim with prejudice, held that, when lien claim falls within newly enacted lien activation fee requirements of Labor Code § 4903.06(a), (1) lien activation fee must …
Martinez (Luis) v. Terrazas, 78 Cal. Comp. Cases 444 (lexis.com), 78 Cal. Comp. Cases 444 (Lexis Advance)
Liens—Activation Fee—Costs—WCAB en banc held that (1) claim for medical-legal expenses may not be filed as petition for costs under Labor Code § 5811, and (2) medical-legal lien claimants who withdrew their liens and filed petitions for costs prior to present decision may pursue recovery through lien process if they comply with lien activation fee requirements of Labor Code § 4903.06 and if their liens have not otherwise been dismissed, when WCAB en banc found…
Appeals Board Significant Panel Decision
Mendez (Maria) v. Le Chef Bakery, 78 Cal. Comp. Cases 454 (lexis.com), 78 Cal. Comp. Cases 454 (Lexis Advance)
Liens—Activation Fee—WCAB, in Significant Panel Decision, rescinding WCJ order dismissing lien claim with prejudice and returning matter to trial level, held that lien claimant was not required to pay lien activation fee prior to 2013 lien trial, when WCAB 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.
California Insurance Guarantee Association v. W.C.A.B. (Colomaria, Thomas), 78 Cal. Comp. Cases 461 (lexis.com), 78 Cal. Comp. Cases 461 (Lexis Advance)
California Insurance Guarantee Association—Other Insurance—Pre-Judgment Interest—WCAB affirmed WCJ’s finding that California Insurance Guarantee Association was not entitled to pre-judgment interest on amounts ordered reimbursed to it for benefits paid to applicant/ supervising producer with industrial injuries, when WCAB found that…
Escamilla v. W.C.A.B., 78 Cal. Comp. Cases 466 (lexis.com), 78 Cal. Comp. Cases 466 (Lexis Advance)
Suspension or Removal of Privilege to Appear Before WCAB—WCAB en banc determined that nonattorney hearing representative’s pattern of sanctionable conduct in 11 cases constituted good cause, pursuant to Labor Code § 4907, to suspend hearing representative’s privilege to appear in any WCAB proceeding for 90 days, when WCAB en banc found that…
Firecode Safety Equipment, Inc. v. W.C.A.B. (Maxwell, Matthew), 78 Cal. Comp. Cases 473 (lexis.com), 78 Cal. Comp. Cases 473 (Lexis Advance)
Petitions for Reconsideration—Time to File—WCAB dismissed petition for reconsideration because it was not filed within time requirements of Labor Code § 5900(a), Labor Code § 5903, Code of Civil Procedure § 1013, and 8 Cal. Code Reg. § 10507 when defendants…
Death Benefits—Continuation Benefits for Totally Dependent Minor Children—WCAB, in split panel decision, affirmed WCJ’s finding that son of decedent/service technician who suffered fatal car accident qualified as total dependent of decedent under Labor Code § 3501 for purposes of receiving continuation benefits for minor children pursuant to Labor Code § 4703.5, when WCAB…
Haitbrink Asphalt Paving v. W.C.A.B. (Acevedo, Ernesto), 78 Cal. Comp. Cases 478 (lexis.com), 78 Cal. Comp. Cases 478 (Lexis Advance)
WCAB Procedure—Employer’s Duty to Provide Notice of Rights—WCAB held that applicant/laborer’s claim for compensable consequence paralysis injury incurred in automobile accident while en route to self-procured medical appointment for admitted low back injury was not barred, even though at time of paralysis injury applicant had not yet filed claim form or application for adjudication for low back injury and self-procured medical treatment outside defendant’s Medical Provider Network, when WCAB found that…
Injury AOE/COE—Injury En Route to Medical Appointment—WCAB affirmed WCJ’s finding that applicant incurred paralysis injury AOE/COE in traffic accident, when WCAB found that…
Holz (Charles) v. W.C.A.B., 78 Cal. Comp. Cases 484 (lexis.com), 78 Cal. Comp. Cases 484 (Lexis Advance)
Discovery—Order Compelling Vocational Expert Evaluation—WCAB granted defendant’s petition for removal and rescinded WCJ’s order denying defendant’s motion to compel applicant/furniture mover/store manager’s attendance at evaluation and/or participation in phone call with defendant’s vocational rehabilitation expert, when WCAB found…
Marriott International v. W.C.A.B. (Vargas, Marcelina), 78 Cal. Comp. Cases 488 (lexis.com), 78 Cal. Comp. Cases 488 (Lexis Advance)
Liens—Medical Treatment—Burden of Proof—WCAB awarded lien claimants/outpatient surgery centers balance of their liens for operating room charges and implantable medical hardware in connection with medical treatment, including epidural injections and spine surgery, provided in 2002 to applicant/hotel housekeeper who sustained admitted industrial injuries to her spine and other body parts, when WCAB found that…
Poole (Sharon) v. W.C.A.B., 78 Cal. Comp. Cases 492 (lexis.com), 78 Cal. Comp. Cases 492 (Lexis Advance)
Discrimination—Labor Code § 132a—WCAB, in split panel decision, upheld WCJ’s finding that defendant did not violate Labor Code § 132a by terminating applicant/customer services representative following industrial injury to her bilateral upper extremities during cumulative period, when WCAB found that…
Redwood Empire Sawmill v. W.C.A.B. (Mendoza, Humberto), 78 Cal. Comp. Cases 498 (lexis.com), 78 Cal. Comp. Cases 498 (Lexis Advance)
Psychiatric Injuries—Six-Month Employment Requirement—Sudden and Extraordinary Employment Conditions—WCAB, affirming WCJ, held that claim for psychiatric injury incurred by applicant/lumber loader/helper was not barred by six-month employment requirement in Labor Code § 3208.3(d), when…
Rodriguez (Kay) v. W.C.A.B., 78 Cal. Comp. Cases 502 (lexis.com), 78 Cal. Comp. Cases 502 (Lexis Advance)
Permanent Disability—Rating—AMA Guides—WCAB affirmed WCJ’s finding that applicant/licensed program analyst incurred 31 percent permanent disability as combined result of cumulative trauma industrial injuries to her right wrist, right hand, right shoulder, neck, and back, with 11 percent permanent disability attributable to her hand/wrist injuries based on…
Schroeder (Edward) v. W.C.A.B., 78 Cal. Comp. Cases 506 (lexis.com), 78 Cal. Comp. Cases 506 (Lexis Advance)
Permanent Disability—Rating—Permanent Total Disability—WCAB denied reconsideration of its decision in which it rescinded WCJ’s finding that applicant/correctional officer with admitted industrial injury to his heart (including hypertension and cardiovascular system), psyche, and in forms of hypoxia/vascular dementia, erectile dysfunction, headaches, loss of sense of smell, and cognitive disorder caused permanent total disability pursuant to Labor Code § 4662(d), and remanded matter for rating on existing medical record, when WCAB found that…
Turlock City Tow Services v. W.C.A.B. (Viverios, George), 78 Cal. Comp. Cases 511 (lexis.com), 78 Cal. Comp. Cases 511 (Lexis Advance)
Medical Treatment—Utilization Review—Penalties for Unreasonable Delay—WCAB affirmed WCJ’s award of 15 percent penalty under Labor Code § 5814 and reasonable attorney’s fees under Labor Code § 5814.5 for defendant’s failure to provide plasma decompression disc surgery pursuant to applicant’s medical treatment award for industrial injuries to his left lower extremity, spine, back, and left hip, when applicant’s treating physician issued report on 2/11/2009 requesting authorization to perform plasma decompression disc surgery, defendant failed to authorize procedure even after WCAB found that…
Zurich North American v. W.C.A.B. (Driver, Gwendolyn), 78 Cal. Comp. Cases 515 (lexis.com), 78 Cal. Comp. Cases 515 (Lexis Advance)
Permanent Disability—Apportionment—Successive Injuries—WCAB affirmed WCJ’s finding that applicant/salesperson incurred 100 percent permanent disability as combined result of industrial injuries to her knees and back on 10/3/2002, to her neck and back during periods 10/2001 to 3/18/2002 and 9/5/2002 to 6/20/2003, and to her neck back, knees, wrists and upper extremities from 10/2001 to 6/30/2003, and that there was no…
Credit—Settlement of Permanent Disability with Codefendant—WCAB held that defendant was not entitled to credit against its liability for permanent total disability incurred by applicant/salesperson with multiple specific and cumulative industrial injuries for monies received by applicant in settlement with codefendant that had liability for applicant’s cumulative trauma injuries during periods 10/2001 to 3/18/2002 and 10/2001 to 6/30/2003, when WCAB found that…
Temporary Disability—Duration of Disability—WCAB held that opinions of applicant/salesperson’s treating physician and agreed medical evaluator constituted substantial evidence to support…
Penalties—Delay in Payment of Temporary Disability—Failure to Self-Impose Penalty—WCAB upheld WCJ’s award of Labor Code § 5814 penalties to applicant/salesperson with multiple specific and cumulative injuries for defendant’s unreasonable delayed payment of temporary disability benefits for periods from 3/11/2005 to 4/21/2005 and 3/11/2005 to 6/30/2005, for failure to self-impose penalties on delayed payments under Labor Code § 4650(d), and for failure to pay temporary disability at correct weekly rate for period 3/11/2005 to 8/11/2005, when WCAB found that…
Other WCAB Decisions Denied Judicial Review
Blackwood (Baltazar) v. W.C.A.B., 78 Cal. Comp. Cases 524 (lexis.com), 78 Cal. Comp. Cases 524 (Lexis Advance)
Injury AOE/COE—Presumption of Compensability—WCAB held that presumption of compensability of Labor Code § 5402(b) did not apply to…
Concentra Managed Care v. W.C.A.B. (Virdier, Susan), 78 Cal. Comp. Cases 525 (lexis.com), 78 Cal. Comp. Cases 525 (Lexis Advance)
California Insurance Guarantee Association—Covered Claims—Other Insurance—WCAB held that employer’s insurance with petitioner Travelers constituted “other insurance” within meaning of Insurance Code § 1063.1(c)(9) such that WCAB ordered Travelers to administer applicant’s medical treatment award for cumulative trauma industrial injury and relieved California Insurance Guarantee Association of liability for administering same award, when WCAB found that…
Cortell (George) v. W.C.A.B., 78 Cal. Comp. Cases 527 (lexis.com), 78 Cal. Comp. Cases 527 (Lexis Advance)
Petitions for Reconsideration Without Verifications—Dismissals—WCAB dismissed petition for reconsideration because…
Injury AOE/COE—Post-Termination Claims—WCAB held that applicant’s claim of injury AOE/COE on 9/1/2010 was barred as post-termination claim under Labor Code § 3600(a)(10) because applicant did not report claimed injury until after he received notice of termination (dated 9/11/2010), when WCAB found that…
County of Los Angeles v. W.C.A.B. (Medina, Myrna), 78 Cal. Comp. Cases 529 (lexis.com), 78 Cal. Comp. Cases 529 (Lexis Advance)
Injury AOE/COE—WCAB held that applicant eligibility worker sustained injury AOE/COE to her neck and right shoulder, elbow, wrist, and hand, based on…
Due Process—WCAB held that defendant waived issue of violation of its due process rights by not raising issue at trial, and that, alternatively, even if issue was timely raised, there was no violation of defendant’s due process rights, when defendant contended that its due process rights were violated by not being allowed to complete agreed medical evaluator/panel qualified medical evaluator process set out in Labor Code §§ 4060 and 4062.2, WCAB found that…
County of Riverside v. W.C.A.B. (Durazo, Veronica), 78 Cal. Comp. Cases 531 (lexis.com), 78 Cal. Comp. Cases 531 (Lexis Advance)
Injury AOE/COE—WCAB held that applicant county correctional deputy sustained injury AOE/COE on 3/3/2008 to her head from slip and fall on wet floor, based on…
Injury AOE/COE—WCAB held that applicant sustained cumulative trauma injury AOE/COE from 6/8/95 through 5/30/2008 to ears, speech, and in form of headaches and strokes, based on…
Gamez (Sara) v. W.C.A.B., 78 Cal. Comp. Cases 533 (lexis.com), 78 Cal. Comp. Cases 533 (Lexis Advance)
Petitions for Writ for Review—Final Orders—Court of Appeal denied without prejudice to refile petition for writ of review of non-final decision in which WCAB rescinded WCJ’s decision, issued new decision on some issues, and remanded for…
Manzo (Roberto) v. W.C.A.B., 78 Cal. Comp. Cases 534 (lexis.com), 78 Cal. Comp. Cases 534 (Lexis Advance)
Discrimination—Labor Code § 132a—WCAB held that employer did not discriminate against applicant carpenter in violation of Labor Code § 132a by 4/11/2008 lay off, when WCAB found that…
Martinez (David) v. W.C.A.B., 78 Cal. Comp. Cases 535 (lexis.com), 78 Cal. Comp. Cases 535 (Lexis Advance)
Petitions for Writ of Review—Time to File—Court of Appeal dismissed petition for writ of review as untimely filed, citing Camper v. W.C.A.B. (1992) 3 Cal. 4th 679, 12 Cal. Rptr. 2d 101, 836 P.2d 888, 57 Cal. Comp. Cases 644, when petitioner …
Miller (Peggy) v. W.C.A.B., 78 Cal. Comp. Cases 536 (lexis.com), 78 Cal. Comp. Cases 536 (Lexis Advance)
Petitions for Writ for Review—Final Orders—Court of Appeal denied petition for writ of review because petition was appealing non-final WCAB order, citing 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 WCAB ordered …
Molina (Edward) v. W.C.A.B., 78 Cal. Comp. Cases 537 (lexis.com), 78 Cal. Comp. Cases 537 (Lexis Advance)
Injury AOE/COE—WCAB held that applicant equipment operator did not sustain cumulative trauma injury AOE/COE from 9/1/98 through 3/30/2007 to his cardiovascular system, lungs, headaches, psyche, respiratory system, or sinuses, based on…
Motley (Kristi) v. W.C.A.B., 78 Cal. Comp. Cases 538 (lexis.com), 78 Cal. Comp. Cases 538 (Lexis Advance)
Permanent Disability—Rating—WCAB awarded applicant 32 percent permanent partial disability for her 7/26/2005 and 11/14/2005 industrial injuries to neck, back, right shoulder, and psyche, based on…
Reed (Robert) v. W.C.A.B., 78 Cal. Comp. Cases 539 (lexis.com), 78 Cal. Comp. Cases 539 (Lexis Advance)
Injury AOE/COE—WCAB held that applicant laborer sustained injury AOE/COE on 1/20/2006 and 3/21/2007 to his left knee but not to his back, right knee, or in form of sleep disorder, based on opinions from orthopedic agreed medical evaluator in reports and deposition testimony, when WCAB found that …
Rosado (Michael) v. W.C.A.B., 78 Cal. Comp. Cases 540 (lexis.com), 78 Cal. Comp. Cases 540 (Lexis Advance)
Petitions for Writ of Review—Timeliness—Court of Appeal dismissed petition for writ of review as untimely filed, citing Camper v. W.C.A.B. (1992) 3 Cal. 4th 679, 686, 12 Cal. Rptr. 2d 101, 836 P.2d 888, 57 Cal. Comp. Cases 644, when applicant was…
Sperber (Tina) v. W.C.A.B., 78 Cal. Comp. Cases 542 (lexis.com), 78 Cal. Comp. Cases 542 (Lexis Advance)
Injury AOE/COE—WCAB held that applicant did not sustain injury AOE/COE to both lower extremities on 7/12/2010 when applicant contended she was investigating ownership of residence for defendant’s family law client as part of her job duties as legal assistant for defendant’s law firm and was injured in jumping over wall of that residence, when WCAB found that…
Thomas (Sylvia) v. W.C.A.B., 78 Cal. Comp. Cases 543 (lexis.com), 78 Cal. Comp. Cases 543 (Lexis Advance)
Statute of Limitations—WCAB held that applicant financial examiner’s claim for injury AOE/COE to left ankle on 7/12/89 was barred under Labor Code § 5404 because applicant did not provide employer with…
Injury AOE/COE—Benefits—WCAB held that applicant sustained admitted injury AOE/COE on 8/12/93 to her right knee and left ankle and awarded…
Injury AOE/COE—Benefits—WCAB held that applicant sustained admitted injury AOE/COE on 4/11/94 to her back, neck, right knee, and in form of…
White (Rosalie) v. W.C.A.B., 78 Cal. Comp. Cases 545 (lexis.com), 78 Cal. Comp. Cases 545 (Lexis Advance)
Injury AOE/COE—WCAB held that applicant medical supply order processor did not meet burden of proving claimed injury AOE/COE to psyche, headaches, stress, and right hand from 1/22/2007 through 10/15/2007, when WCAB found …

 

 

 

 

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