California Workers’ Comp Case Roundup (7/7/2016)

CALIFORNIA COMPENSATION CASES

Vol. 81 No. 6 June 2016

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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LexisNexis Online Subscribers: You can link to your account on Lexis.com or Lexis Advance to read the complete headnotes and court decisions, en banc decisions, and writ denied summaries.

Appellate Court Cases Not Originating With Appeals Board

Dushman (Brian) v. Southern California Gas Co., lexis.com, Lexis Advance

Civil Actions Against Employer—Fair Employment and Housing Act—Court of Appeal affirmed trial court’s grant of summary judgment in favor of defendant, in plaintiff/applicant’s civil action against his employer (defendant), which included four causes of action under Fair Employment and Housing Act, Government Code § 12900 et seq., and one cause of action for wrongful termination in violation of public policy, when Court of Appeal found that…

Tuttle (Jack) v. Ukiah Adventist Hospital, lexis.com, Lexis Advance

Third Party Actions—Damages—Set-Offs for Prior Settlements—Credit for Workers’ Compensation Benefits—Court of Appeal held that trial court in plaintiff/applicant’s third party action properly allowed set-offs and credit under Code of Civil Procedure § 877, when Court of Appeal found that…

Third Party Actions—Damages—Common Fund—Court of Appeal affirmed trial court’s denial of plaintiffs’ request for reduction of set-off based on “common fund” doctrine, when Court of Appeal found that…

Digests of WCAB Decisions Denied Judicial Review

Editorial Board members Francis V. Clifford, Hon. Jacqueline C. Duncan, Susan Hamilton, and James Pettibone recommended the following writ denied cases for summarization in this issue.

Beutler Corp. v. W.C.A.B. (Ornelas, Martin), lexis.com, Lexis Advance

Credit—Third-Party Recovery—Amounts Paid Under Uninsured Motorist Liability Policy—WCAB affirmed WCJ’s finding that Arch Insurance Co. (Arch), employer’s workers’ compensation carrier, was not entitled to take credit/offset pursuant to Labor Code § 3861 against its workers’ compensation liability for applicant’s recovery from uninsured motorist liability policy purchased by employer from Arch, based on rationale and principles in Fireman’s Fund Indem. Co. v. Industrial Acci.Com. (Turci) (1964) 226 Cal. App. 2d 676, 38 Cal. Rptr. 336, when WCAB reasoned…

County of Riverside v. W.C.A.B. (Couch, Kevin), lexis.com, Lexis Advance

Presumption of Industrial Causation—Cancer Presumption—Peace Officers—WCAB, reversing WCJ, found that applicant deputy sheriff suffered injury AOE/COE in form of chronic lymphocytic leukemia (CLL) based on presumption of compensability in Labor Code § 3212.1, when WCAB concluded that...

Estrella (Leo) v. W.C.A.B., lexis.com, Lexis Advance

Statute of Limitations—Cumulative Injuries—Professional Athletes—WCAB, in split panel decision, affirmed WCJ’s finding that applicant professional baseball pitcher’s 2013 claim against defendants Milwaukee Brewers and San Francisco Giants for cumulative injury during period 6/1/93 through 2004, was barred by one-year statute of limitations in Labor Code § 5405, when WCAB panel majority found that...

Mascorro (Pamela) v. W.C.A.B., lexis.com, Lexis Advance

Petitions for Removal—Identity of Parties—Dismissal of Party Defendant—WCAB denied applicant’s petition to remove case to itself related to applicant’s 10/22/2009 industrial injury, in which applicant sought dismissal of one corporation as party defendant, so as to leave separate, although related, corporation as defendant, after WCJ continued case and set conference on...

Payne v. W.C.A.B. (Cline, Teresa), lexis.com, Lexis Advance

Liens—Procedural Rights and Duties—Appearance Requirements—WCAB, denying removal, affirmed WCJ’s decision ordering that lien of David Payne, M.D., be submitted for decision following lien trial at which neither Dr. Payne nor his representative, Legal Service Bureau, appeared, and rejected Dr. Payne’s assertion that WCJ violated his due process rights by ordering his lien submitted without allowing him opportunity to present evidence, when WCAB found that...

Wells (Rachel) v. W.C.A.B., lexis.com, Lexis Advance

Medical Treatment—Utilization Review—Time Deadlines—WCAB rescinded WCJ’s finding that 4/2/2015 request for additional information sent by defendant’s utilization review organization to applicant’s treating physician was invalid because it was not signed by physician, thereby rendering 4/7/2015 utilization review decision conditionally denying prescription medications untimely, and giving WCAB jurisdiction to decide medical necessity, when WCAB found that…

Other WCAB Decisions Denied Judicial Review

County of San Diego v. W.C.A.B. (Walling, Stephen), lexis.com, Lexis Advance

Injury AOE/COE—Court of Appeal affirmed WCAB’s holding that applicant deputy sheriff sustained injury AOE/COE to his right shoulder on 3/18/2013 when on call with his supervisor and fell while climbing wall approximately six feet tall, based on substantial evidence from applicant’s credible testimony, corroboration from supervisor’s testimony, and opinions on causation of injury from panel qualified medical evaluator, when WCAB found that…

Medical Treatment—Court of Appeal affirmed WCAB’s medical treatment award for applicant’s 3/18/2013 industrial right shoulder injury, including treatment for torn labrium, when WCAB based its…

McLamb (Yvette ) v. W.C.A.B., lexis.com, Lexis Advance

WCAB Duty to Develop Record—Majority of WCAB panel held that it did not have duty to develop record on issue of causation of applicant’s cumulative trauma injury ending 3/17/2010 because medical evidence from panel qualified medical evaluator was sufficient on this issue, even though panel qualified medical evaluator changed opinion on causation of applicant’s spine condition (new injury in 2010 or natural progression of 2006 industrial spine injury), when WCAB found that...

White (Bruce) v. W.C.A.B., lexis.com, Lexis Advance

Permanent Disability—Rating—WCAB awarded applicant 52 percent permanent disability and further medical treatment for low back injury that occurred from 1/1/1995 through 2/7/2010 while working for defendant as golf cart mechanic, based on opinions from panel qualified medical evaluator, formal rating from Disability Evaluation Unit, and 2005 Permanent Disability Rating Schedule, when WCAB found that...

Appeals Board Panel Decisions

Bresson (Karen) v. United Parcel Service, Inc., lexis.com, Lexis Advance

Settlements—Compromise and Release—Scope of Settlement—WCAB affirmed WCJ's finding that applicant's claim against defendant United Parcel Service, Inc. (UPS), for cumulative trauma to her teeth, neck and multiple other body parts incurred over period 1/1/2006 to 1/15/2010, was not precluded by 7/12/2012 Compromise and Release Agreement settling applicant's separate claim against defendant Vons Grocery Company for cumulative injury during period 7/14/80 through 11/1/2009, notwithstanding language in addendum to Compromise and Release purporting to settle all of applicant's claimed injuries, when…

Podesta (Robert) v. Evening Post Publishing, lexis.com, Lexis Advance

Permanent Disability—AMA Guides—WCAB rescinded WCJ's award of 100 percent permanent total disability to applicant master control operator who incurred admitted industrial back injury on 7/23/2012, and returned matter to WCJ for further development of medical record with regard to proper rating of applicant's permanent disability, when qualified medical evaluator Thor Gjerdrum, M.D., provided 16 percent whole person impairment based upon…