California Workers' Comp Case Roundup (8/8/2014)

CALIFORNIA COMPENSATION CASES

Vol. 79 No. 7 July 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 Case

Young (Daniel) v. W.C.A.B., lexis.com, Lexis Advance

Injury AOC/COE—Off-Duty Athletic Activities—Court of Appeal, annulling WCAB decision, held that applicant, county jail correctional sergeant, injured while performing jumping jacks at home, was injured AOE/COE, when Court of Appeal found that applicant satisfied two-prong test set forth in Ezzy v. W.C.A.B. (1983) 146 Cal.App.3d 252, 194 Cal.Rptr.90, 48 Cal.Comp.Cases 611, i.e., that he subjectively believed that his participation in injury-producing activity was expected by defendant, and that this belief was objectively reasonable, that legal standard that must be met to…

Supreme Court Case Not Originating With Appeals Board

Ayala v. Antelope Valley Newspapers, Inc., lexis.com, Lexis Advance

Employment Relationships—Newspaper Carriers—Class Actions—California Supreme Court, affirming Court of Appeal’s judgment, held that, pursuant to S.G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341, 256 Cal.Rptr. 543, 769 P.2d 399, 54 Cal.Comp.Cases 80, whether employer-employee relationship exists turns foremost on degree of hirer’s right to control how end result is achieved, and, in turn, whether hirer’s right to control can be shown on class-wide basis will depend on extent to which individual variations in hirer’s rights vis-à-vis each putative class member exist, and whether such variations, if any, are manageable, when Court of Appeal found that…

Salas (Vicente) v. Sierra Chemical Co., 79 Cal. Comp. Cases 782 lexis.com, Lexis Advance

Fair Employment and Housing Act—Immigration Status—Federal Preemption—California Supreme Court, reversing judgment of Court of Appeal, held that neither (1) California Fair Employment and Housing Act, Government Code § 12900 et seq., nor (2) Government Code § 7285(a), providing that all rights available under state law, except…

Fair Employment and Housing Act—Defenses—After-Acquired Evidence and Unclean Hands—California Supreme Court, reversing judgment of Court of Appeal, held that to allow after-acquired evidence to be complete defense would eviscerate public policies embodied in Fair Employment and Housing Act by allowing employer to engage in invidious employment discrimination with total impunity, but that doctrine of…

Appellate Court Cases Not Originating With Appeals Board

Old Republic Construction Program Group v. The Boccardo Law-Firm, Inc., lexis.com, Lexis Advance

Anti-SLAPP Actions—Special Motions to Strike—Court of Appeal, affirming trial court’s order denying defendants’ motion under anti-SLAPP statute (Code of Civil Procedure § 425.16 et seq.) to strike three causes of action (breach of contract, negligence, and declaratory relief) asserted against them by plaintiff, held that statute did not apply to claims alleging that defendants wrongfully withdrew settlement funds deposited in their trust account pursuant to stipulation requiring plaintiff’s consent to any withdrawal, when Court of Appeal found that…

People, The v. Morales, lexis.com, Lexis Advance

Workers’ Compensation Fraud—Court of Appeal reversed Superior Court judgment following defendant’s jury conviction of one count of insurance fraud in violation of Insurance Code § 11760(a), when Court of Appeal found that…

Workers’ Compensation Fraud—Court of Appeal affirmed Superior Court judgment following defendant’s jury conviction of (1) one count of insurance fraud in violation of Insurance Code § 11760(a) (knowledge and encouragement of son’s misrepresentations to Granite State Insurance about number of employees with purpose of obtaining lower workers’ compensation rates), (2) one count of insurance fraud against…

Rodriguez v. City of Santa Cruz, lexis.com, Lexis Advance

Petitions for Writ of Mandate—Standard of Review—Court of Appeal, reversing trial court’s order denying plaintiff’s petition for writ of mandate and remanding matter to trial court, held that correct standard of review, which trial court failed to use, of administrative decision by local agency (here, plaintiff’s employer) denying plaintiff’s “fundamental vested right to a disability retirement pension if he in fact was disabled” is trial court’s exercise of “its independent judgment on the evidence” to “find an abuse of discretion if the findings are not supported by the weight of the evidence,” when Court of Appeal found that…

Roman Catholic Bishop of Monterey, CA v. Mansfield, McLeod (Shannon), lexis.com, Lexis Advance

Third Party Actions—Attorney’s Fees and Litigation Expenses—Court of Appeal held that Labor Code § 3856(b) did not control applicant/appellant’s motion for attorney’s fees and litigation expenses, that Labor Code § 3856(c) controlled this motion, and that, under Labor Code § 3856(c), appellant could not recover attorney’s fees or litigation expenses because she failed to obtain judgment in trial against defendants that was greater than amount of workers’ compensation lien defendants acquired from employer Roman Catholic Bishop of Monterey, California (Bishop), when Court of Appeal found that…

State of California, The, ex rel. Wilson v. The Superior Court of Los Angeles County, lexis.com, Lexis Advance

Insurance Fraud—Insurance Code § 1871.7—Court of Appeal, in qui tam action against pharmaceutical company to impose civil penalties for violation of Insurance Fraud Prevention Act (Insurance Code § 1871 et seq.), granted petition for writ of mandate, reversed trial court’s summary adjudication order favorable to defendant, and held that, for assessment of monetary penalties (but not for imposition of other available remedies), Insurance Code § 1871.7 requires proof that resulting claims for payment for pharmaceutical company’s drugs are in some manner deceitful, though not necessarily containing express misstatements of fact, and that causation may be established under standard substantial-factor test, not but-for test, when Court of Appeal found that…

Ruiz v. Affinity Logistics Corp., 79 Cal. Comp. Cases 897, lexis.com, Lexis Advance

Medical Treatment—Home Health Care Services—WCAB en banc, rescinding WCJ’s findings and award and returning matter to WCJ for further development of record, held that (1) Labor Code §§ 4600(h), 4603.2(b)(1), and 5307.8 apply to requests for home health care services in all cases that are not final, regardless of date of injury or dates of service, (2) prescription for home health care services required by Labor Code § 4600(h) is either oral referral, recommendation, or order for home health care services for injured worker communicated directly by physician to employer and/or its agent or signed and…

Appeals Board Significant Panel Decision

Patterson (Jennifer) v. The Oaks Farm, lexis.com, Lexis Advance

Nurse Case Managers—Requests for Authorization of Medical Treatment—Expedited Hearings—WCAB, in Significant Panel Decision affirming findings and order of WCJ, held that (1) provision of nurse case manager is form of medical treatment under Labor Code § 4600, (2) employer may not unilaterally cease to provide approved nurse case manager services when there is no evidence of change in employee’s circumstances or condition showing that services are no longer reasonably required to cure or relieve from effects of industrial injury, (3) use of expedited hearing to…

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.

California Insurance Guarantee Association v. W.C.A.B. (Villanueva, Ricardo), lexis.com, Lexis Advance

California Insurance Guarantee Association—Other Insurance—General-Special Employment Relationship—WCAB, in split panel decision, affirmed WCJ’s finding that California Insurance Guarantee Association was not entitled to reimbursement from Liberty Mutual, carrier for Beazer Homes, or to change of administrators, when majority of WCAB panel determined that there was insufficient evidence to establish that Beazer Homes provided requisite supervision over applicant’s job duties as required under S.G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal. 3d 341, 256 Cal. Rptr. 543, 769 P.2d 399, 54 Cal. Comp. Cases 80, to support finding that Beazer Homes was applicant’s special employer at time of his industrial injury, because…

Campos (Matty) v. W.C.A.B., lexis.com, Lexis Advance

Injury AOE/COE—Collecting Personal Belongings After Shift—WCAB, in split panel decision, affirmed WCJ’s finding that applicant/custodian did not sustain injury AOE/COE pursuant to Labor Code § 3600, and held that injury incurred by applicant from sexual assault by co-worker when…

Central Metal, Inc. v. W.C.A.B. (Moreno, Arnold), lexis.com, Lexis Advance

Insurance Coverage—Notice of Cancellation—Effect of Bankruptcy Proceedings—WCAB, affirming Arbitrator, held that State Compensation Insurance Fund had no workers’ compensation coverage for applicant’s employer on 2/1/2011, applicant’s date of injury, when employer filed Chapter 11 bankruptcy on 1/8/2010, State Compensation Insurance Fund, having insured employer since at least 2000, converted employer’s policy after…

CEVA Freight, LLC v. W.C.A.B. (Vasquez, Gabriel), lexis.com, Lexis Advance

Employment Relationships—Employees vs. Independent Contractors—Truck Drivers—WCAB reversed WCJ’s finding that applicant was independent contractor and held that applicant was defendant’s employee when he sustained industrial cumulative injury to multiple body parts while working as delivery driver, based on S.G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal. 3d 341, 256 Cal. Rptr. 543, 769 P.2d 399, 54 Cal. Comp. Cases 80, when WCAB found that…

Cleveland Browns v. W.C.A.B. (Saleh, Tarek), lexis.com, Lexis Advance

WCAB Jurisdiction—Professional Athletes—WCAB rescinded WCJ’s finding that applicant suffered cumulative industrial injury to various body parts while playing professional football from 5/15/97 through 1/6/2002 and remanded matter for further proceedings on issue of California jurisdiction over Cleveland Browns, when WCJ attempted to exercise jurisdiction pursuant to Labor Code § 3600.5(a), which gives WCAB jurisdiction over injuries sustained outside state when employee was “regularly employed” within state, and did not reach question of jurisdiction based on injury in California, and WCAB, without making final determinations on unresolved issues, held that (1) because applicant claimed…

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

Penalties—Delay in Providing Medical Treatment—Prescription Pain Medication—WCAB, in split panel decision, rescinded WCJ’s order denying applicant/deputy sheriff’s petition for penalty under Labor Code § 5814, and held that penalty was justified because applicant established that defendant unreasonably delayed or denied medical treatment for his back and neck injuries by abruptly withdrawing authorization for narcotic/opioid pain medication, including diazepam and Norco, based on reliance on utilization review process, when WCAB found that…

Penalties—Delay in Providing Medical Treatment—Conclusive Presumption of Settlement of Penalty—WCAB held that Labor Code § 5814(c), which provides that, after case has been settled, it is conclusively presumed that any accrued penalty claims are also settled unless expressly excluded from settlement, did not apply to preclude WCAB’s award of penalty under Labor Code § 5814, when WCAB found that…

Delta Dental Plan of California v. W.C.A.B. (Funk, Linda), lexis.com, Lexis Advance

Statute of Limitations—Notices—Actual Knowledge—WCAB held that statute of limitations of Labor Code § 5400 was tolled until applicant audit review clerk/supervisor filed claim form for cumulative trauma industrial injury to applicant’s upper extremities and psyche, when WCAB found that…

Monarch Consulting, Inc. v. W.C.A.B. (Martinez, Marciel), lexis.com, Lexis Advance

Insurance Coverage—Payroll Companies—Employee Leasing—WCAB affirmed Arbitrator’s finding that Monarch Consulting dba PES Payroll, through its insurance carrier American Home Insurance, provided workers’ compensation coverage for temporary employment agencies HR Business Staffing and Air Ground Manpower, two corporations with same owner, and had liability for injuries incurred by applicant after applicant was leased by general employer HR Business to special employer Foamex, when WCAB found that…

Navarro (Orlando) v. W.C.A.B., lexis.com, Lexis Advance

Qualified Medical Evaluators—Discipline—Court of Appeal denied applicant’s petition for writ of review challenging WCAB’s finding that applicant/security guard sustained no cumulative industrial injury to his neck, back, upper and lower extremities, vision, and psyche, based on applicant’s testimony and reports issued by panel qualified medical evaluator on 9/5/2012 and 11/15/2012, when applicant contended that…

Reiner v. W.C.A.B. (Palafox Rosa), lexis.com, Lexis Advance

Sanctions—WCAB ordered defendant’s former attorney to pay three $2,500 sanctions, for total sum of $7,500, pursuant to Labor Code § 5813 and 8 Cal. Code Reg. § 10561, when WCAB found that defendant’s former attorney’s skeletal Petition for Reconsideration of WCJ’s decision included no explanation or evidentiary basis for his assertions as required by Labor Code § 5902 and 8 Cal. Code Reg. § 10842, and alleged no facts to support request for reconsideration, that defendant’s former attorney filed two earlier frivolous petitions in this case for which sanctions were justified, that imposition of…

San Francisco Police Dept./City and County of San Francisco v. W.C.A.B. (Casey, Aaron), lexis.com, Lexis Advance

Temporary Disability—Permanent and Stationary Status—Utilization Review and Independent Medical Review—WCAB, affirming WCJ, held that applicant/crime prevention specialist who suffered industrial injury to both knees was entitled to award of temporary total disability benefits from 5/2/2013, date applicant was evaluated by agreed medical evaluator, and continuing, notwithstanding that agreed medical evaluator reported on 6/3/2013 that applicant’s condition was permanent and stationary on date of his evaluation, when agreed medical evaluator subsequently reported that…

Temporary Disability—Five-Year Statute of Limitations—WCAB, affirming WCJ, held that applicant/crime prevention specialist who suffered industrial injury to both knees was not barred by five-year statute of limitations in Labor Code § 5804 from receiving award of additional temporary disability benefits for period of temporary disability more than five years after date of injury, and that…

Other WCAB Decisions Denied Judicial Review

Burns International Security Services v. W.C.A.B. (Alvarez, Yolanda), lexis.com, Lexis Advance

Removal to WCAB—WCAB denied defendant’s petition to remove case to WCAB, finding no showing of prejudice if removal was not granted, when defendant sought removal (1) due to WCAB’s 5/24/2010 order rescinding earlier findings, award, and order and remanding matter for further development of medical record, further proceedings, and new decision, when WCAB found that parties did not file petition for reconsideration of 5/24/2010 order, and (2) due to WCAB’s 10/22/2013 order taking matter off calendar, when WCAB found that…

California Department of Corrections and Rehabilitation v. W.C.A.B. (Mallin, Jami), lexis.com, Lexis Advance

WCAB Decisions—Decisions Corrected by WCAB—Moot Appeals—Court of Appeal dismissed as moot petition for writ of review of Appeals Board 3/18/2014 decision (see Mallin v. Dept. of Correction, 2014 Cal. Wrk. Comp. P.D. LEXIS 126 (Appeals Board noteworthy panel decision)), when…

Cameron (Deborah) v. W.C.A.B., lexis.com, Lexis Advance

Injury AOE/COE—WCAB held that applicant licensed vocational nurse sustained injury AOE/COE on 8/19/2004 to her back and abdominal wall (hernia) but not to her…

Permanent Disability—Medical Treatment—WCAB awarded applicant 30 percent permanent disability, after apportionment, and further medical treatment for 8/19/2004 industrial back and hernia injuries, WCAB based permanent disability rating on…

Chambers (Vivian, Dec’d), Chambers (Valencia, Sister) v. W.C.A.B., lexis.com, Lexis Advance

Workers’ Compensation Judges—Disqualification—WCAB held that applicant did not show bias of WCJ in petition to disqualify WCJ for bias, and WCAB dismissed petition to disqualify, in proceedings related to WCJ’s and WCAB’s earlier orders denying petitioner’s request for home health care services that…

Csaki (Zoltan) v. W.C.A.B., lexis.com, Lexis Advance

Injury AOE/COE—Compensable Consequence Injury—WCAB held that applicant salesperson did not sustain injury to his neck/cervical spine as compensable consequence of 7/15/2000 industrial injury to his shoulders, knees, low back, and psyche, when WCAB found that…

San Joaquin Community Hospital v. W.C.A.B. (Clark, Barbara, aka Diefenbach, Barbara), lexis.com, Lexis Advance

Medical Treatment Awards—Further Medical Treatment—WCAB awarded applicant nurse further medical treatment for 2/16/1994 injury AOE/COE to head, teeth, jaw (including TMJ), neck, psyche, and in form of fibromyalgia and headaches, resulting from injury when patient kicked applicant, when WCAB found that in 2000 applicant received general award for further medical treatment for this…

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