California Workers' Comp Case Roundup (7/3/2015)

CALIFORNIA COMPENSATION CASES

Vol. 80 No. 6 June 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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Supreme Court Compensation Case

South Coast Framing, Inc. v. W.C.A.B. (Clark, Brandon), lexis.com, Lexis Advance

Injury AOE/COE—Causation—Substantial Evidence—California Supreme Court, reversing Court of Appeal’s judgment, held that, for injured worker to be entitled to workers’ compensation benefits, industrial injury need be only a contributing cause to disability, and that substantial evidence supported WCJ’s finding that drug prescribed by decedent’s workers’ compensation physician contributed to decedent’s death, when California Supreme Court found that…

Appellate Court Cases Not Originating With Appeals Board

American Home Assurance Co. v. 99 Cents Only Stores, lexis.com, Lexis Advance

Insurance Coverage—Rescission for Misrepresentations—Court of Appeal reversed trial court’s dismissal of plaintiffs’ causes of actions for declaratory relief and unjust enrichment, finding that these causes of action were adequately plead and could not be resolved at pleading stage, and affirmed trial court’s sustaining of demurrer to plaintiffs’ quantum meruit cause of action, all related to plaintiffs’ civil action against defendants, when Court of Appeal found that…

HCF Insurance Agency v. Patriot Underwriters, Inc., lexis.com, Lexis Advance

Insurance Agreements—Enforceability of Arbitration Clauses—Court of Appeal held that arbitration clause of agreement between plaintiff and defendant was unenforceable for plaintiff’s causes of action for fraud and intentional interference with economic advantage because, under agreement, arbitration was allowed for only breach of contract and breach of implied covenant of fair dealing, and cause of action for anti-trust violation could not be arbitrated under applicable Florida law, when Court of Appeal found that…

Noe v. Superior Court of Los Angeles County, lexis.com, Lexis Advance

Employment Relationships—Misclassification of Workers—Court of Appeal, denying plaintiffs’ petition for writ of mandate, held that, although Labor Code § 226.8 is not limited to persons or employers who make misclassification decision, but also extends to any person or employer who is aware that co-employer has willfully misclassified their joint employees and fails to remedy misclassification, statute cannot be enforced through direct private action, when Court of Appeal found that…

People v. Johns, lexis.com, Lexis Advance

Criminal Court Actions—Victim Restitution—Court of Appeal affirmed trial court’s award of restitution to victim of defendant’s crime, when Court of Appeal found that defendant in criminal action was convicted of resisting peace officer in violation of Penal Code § 69 when defendant assaulted peace officer, that defendant received sentence of probation and later county jail time, that trial court ordered defendant to pay peace officer/victim $102,075.81 in restitution, that this amount included $85,462.31 in temporary disability benefits victim received from her employer, that it was undisputed that…

Sponsler (Joe) v. Kiewit Infrastructure West Co., lexis.com, Lexis Advance

Third Party Actions—Hirer's Liability to Employees of Sub-Contractors—Court of Appeal, reversing trial court’s grant of summary judgment in hirer’s favor, held that there were triable issues of fact related to plaintiff’s causes of action for negligence and premises liability, when Court of Appeal found that...

Digests of WCAB Decisions Denied Judicial Review

Editorial Board members Hon. David Hettick, Robert G. Heywood, Richard M. Jacobsmeyer, Kenneth B. Peterson, and Robert G. Rassp recommended the following writ denied cases for summarization in this issue.

Contra Costa Electric, Inc. v. W.C.A.B. (Pillo, John), lexis.com, Lexis Advance

Cumulative Injury—Injurious Exposure—Asbestos—WCAB affirmed WCJ’s finding that decedent electrician who died on 12/10/2010 from mesothelioma suffered injurious exposure to asbestos fibers during period of employment with defendant from 1999 to 2006 for purposes of defendant’s liability for death claim under Labor Code § 5500.5, when applicant offered testimony of coworkers and industrial hygienist’s report establishing that decedent was exposed to…

Creffitta, Inc. v. W.C.A.B. (Alvarez, Diego), lexis.com, Lexis Advance

Hearings—Unavailability of Witness—Testimony Via Skype—WCAB, affirming WCJ, held that applicant was properly permitted to testify regarding alleged industrial injury from Mexico via Skype at his own expense after he was deported from United States and not able to attend workers’ compensation trial, when applicant could not legally enter United States to testify at trial, and, in allowing applicant to testify remotely, WCAB reasoned that...

Florists Mutual Insurance Co. v. W.C.A.B. (Barron Bigsby, Suzanne), lexis.com, Lexis Advance

Insurance Coverage—Covered Employees—Termination of Policy—WCAB affirmed Arbitrator’s finding that defendant insurer had valid insurance policy in effect covering employer during period of applicant’s alleged cumulative trauma, and that applicant’s injury was covered by policy, when WCAB found that...

Garcia (Felipe) v. W.C.A.B., lexis.com, Lexis Advance

Employment Relationships—Employees vs. Independent Contractors—Farm Workers—WCAB denied applicant’s petition for reconsideration challenging WCAB’s prior decision [see Garcia v. Gaytan, 2014 Cal. Wrk. Comp. P.D. LEXIS 568 (Appeals Board noteworthy panel decision)], in which WCAB found that...

Great Divide Insurance Co. v. W.C.A.B. (Smith, Derek), lexis.com, Lexis Advance

Permanent Disability—Apportionment—WCAB affirmed WCJ’s unapportioned award of 71 percent permanent disability for single period of cumulative trauma incurred by applicant over his entire career as professional football player, and found that WCJ did not impermissibly merge multiple periods of cumulative trauma or otherwise fail to properly apportion permanent disability, when WCJ, in awarding permanent disability, relied on…

Illinois Midwest Insurance Agency, LLC v. W.C.A.B. (Long, Wilson), lexis.com, Lexis Advance

Insurance Coverage—WCAB affirmed Arbitrator’s finding that insurer had valid insurance policy in effect for applicant’s employer and, thus, had coverage for industrial injuries suffered by applicant, when (1) insurer initially issued insurance policy to corporation that was later divided into two separate companies, (2) after company divided, there was no change in any aspect of its business including ownership, operations, location, and number of employees, (3) insurer continued to accept premiums on insurance policy calculated on payroll (including applicant’s salary) of both new companies, and (4) Arbitrator concluded that…

Pasquier (Manuel) v. W.C.A.B., lexis.com, Lexis Advance

Penalties—Delay in Payment of Settlement Proceeds—WCAB, in split panel decision, affirmed WCJ’s award of single $10,000 penalty under Labor Code § 5814 for defendant’s unreasonable delay of three lump sum payments due under compromise and release agreement, and held that applicant was not entitled to three separate penalties for defendant’s unreasonable delays or to two separate penalties based on delayed lump sum payments to applicant and applicant’s attorney, as suggested by applicant, when panel majority found that…

Penalties—Attorney’s Fees—WCAB, in split panel decision, affirmed WCJ’s award of $3,000 attorney’s fee to applicant’s attorney under Labor Code § 5814.5, based on eight hours of work at $375 per hour, when panel majority found that…

Tokio Marine and Nichido Fire Insurance Co. v. W.C.A.B. (Valenzuela, Sergio), lexis.com, Lexis Advance

California Insurance Guarantee Association—Other Insurance—Reimbursement—WCAB held that it had jurisdiction to consider California Insurance Guarantee Association’s petition for reimbursement from Tokio Marine and Nichido Fire Insurance and that petition for reimbursement was timely, not barred by laches (no prejudice shown), and not barred by two stipulations with request for award, when WCAB found that…

2K Fabrications, Inc. v. W.C.A.B. (Martinez, Jose), lexis.com, Lexis Advance

Insurance Coverage—Cancellation of Policy—WCAB affirmed Arbitrator’s finding that State Compensation Insurance Fund did not provide coverage for employer on 7/8/2003, date of applicant’s alleged injury, because policy that had existed providing coverage to employer was canceled in accordance with Insurance Code and by terms of insurance policy itself as of 3/18/2003 for employer’s nonpayment of premium and failure to issue payroll reports, when WCAB found that…

Valley Vintners, Inc. v. W.C.A.B. (Miller, Richard), lexis.com, Lexis Advance

WCAB Jurisdiction—Five-Year Statute of Limitations—WCAB held that WCAB had jurisdiction to award applicant 45 percent permanent disability beyond five years from date of injury to his low back, when applicant previously received stipulated award of 15 percent permanent disability under which...

Other WCAB Decisions Denied Judicial Review

Advo, Inc. v. W.C.A.B. (Hernandez, Jose), lexis.com, Lexis Advance

Petitions for Writ of Review—Dismissal—Final WCAB Decisions—Court of Appeal dismissed petition for writ of review of WCAB decision that was not final order or decision as required by Labor Code §§ 5900 and 5901l, since, in its decision, WCAB rescinded Arbitrator’s decision, held that Arbitrator erred in finding that...

Cha (JungOak) v. W.C.A.B., lexis.com, Lexis Advance

Petitions for Reconsideration—Time to File—WCAB dismissed applicant’s petition for reconsideration not filed within time requirements of...

Injury AOE/COE—Alternatively, even if petition for reconsideration had been timely filed, WCAB ruled on merits and held that applicant did not meet burden of proving she sustained claimed industrial injury (cumulative trauma injury to circulatory system, pulmonary system, nose, skin, or cadmium exposure in period ending 11/29/2008), when WCAB found…

City of Los Angeles v. W.C.A.B (Hopper, Tarriel), lexis.com, Lexis Advance

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

Dr. Pepper Snapple Group v. W.C.A.B. (Gonzales, Art), lexis.com, Lexis Advance

Removal to WCAB—Setting Case for Trial—WCAB denied defendants’ petition to remove case to WCAB, finding that defendants did not show substantial prejudice or irreparable harm if removal was not granted and also did not show that reconsideration would not be adequate remedy if ultimate decision was adverse to defendants, when defendants were…

Granite State Insurance Co. v. W.C.A.B. (Beckstead, Richard), lexis.com, Lexis Advance

Injury AOE/COE—WCAB held that applicant sales manager sustained injury AOE/COE on 10/20/95 when employer was insured by Fremont Insurance Co. (in liquidation and represented by California Insurance Guarantee Association) and cumulative trauma injury AOE/COE from 10/20/95 to 10/13/97 when…

Permanent Disability Awards—Administration of Awards—WCAB awarded single award of 100 percent permanent disability and future medical treatment for both of applicant’s injuries (specific and cumulative), based on opinions from agreed medical evaluator as corroborated by other medical evaluators, when WCAB found that…

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

WCAB Awards—Permanent Disability—Medical Treatment—WCAB made awards for applicant office administrator’s 12/22/2006 industrial injury to her left shoulder, which later caused complex regional pain syndrome/very severe reflex sympathetic dystrophy to four extremities, of 100 percent permanent disability, based on opinions from…

Lamps Plus, Inc. v. W.C.A.B. (Stepanian, Arthur), lexis.com, Lexis Advance

Petitions for Writ of Review—Dismissal—WCAB Final Orders—Court of Appeal dismissed petition for writ of review of WCAB decision that was not final order or decision as required by Labor Code §§ 5900 and 5901, when, in WCAB decision, WCAB affirmed its…

Martin (June) v. W.C.A.B., lexis.com, Lexis Advance

Injury AOE/COE—WCAB reversed WCJ and held that applicant clerical worker did not meet burden of proving her claim of injury AOE/COE from 11/25/2008 through 11/25/2009 to her respiratory system, internal systems, and brain from exposure to carbon monoxide, when WCAB found that applicant testified she worked in office in trailer during long-term construction at hospital, that she claimed exposure to carbon monoxide from working next to...