California Workers’ Comp Case Roundup (9/1/2016)

CALIFORNIA COMPENSATION CASES

Vol. 81 No. 8 August 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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Appellate Court Compensation Cases

Hernandez (Andrew) v. W.C.A.B., Lexis

Salary in Lieu of Disability Benefits—California Highway Patrol Officers—Court of Appeal, annulling WCAB decision, held that California Highway Patrol improperly charged part of leave-of-absence benefits paid to injured officer to officer’s accrued annual vacation leave, when Court of Appeal…

Truck Insurance Exchange of Farmers Insurance Group v. W.C.A.B. (Kwok, Ng Fung), Lexis

Laches—Delay in Filing Claim—Court of Appeal, affirming order of WCAB, held that affirmative defense of laches was not available to insurer, when Court of Appeal found that employer received notification of applicant’s injury on day after injury occurred, that notice to or knowledge of workplace injury…

Appellate Court Case Not Originating With Appeals Board

Ace American Insurance Co. v. Fireman’s Fund Insurance Co., Lexis

Settlements—Equitable Subrogation—Court of Appeal, reversing trial court’s judgment sustaining defendant primary insurer’s demurrer, held that, in equitable subrogation action, excess insurer that has settled and discharged insured’s liability may recover from primary insurer amount in excess of primary insurer’s policy limits if excess insurer can prove that primary insurer’s unreasonable refusal to settle within its policy limits resulted in loss to excess insurer in amount in excess of policy limits of primary insurer it would not otherwise have had, that excess judgment is not required element of cause of action for equitable subrogation, when insured or excess insurer has actually contributed to excess settlement, and that plaintiff may allege that primary insurer’s breach of duty to accept reasonable settlement offers resulted in damages in form of excess settlement, when Court of Appeal found…

Federal District Court Opinion of Related Interest

Shepherd v. Kohl’s Department Stores, Inc., Lexis

Wrongful Termination—Medicinal Marijuana—U. S. District Court, Eastern District of California, granting in part and denying in part defendant’s motion for summary judgment in case in which plaintiff employee was terminated for use of medicinal marijuana, held that plaintiff’s claims pursuant to FEHA, Government Code § 12940 et seq., for failure to accommodate, failure to engage in interactive process, and disability discrimination would be dismissed since, pursuant to Ross v. RagingWire Technologies (2008) 42 Cal. 4th 920, 174 P.3d 200, 70 Cal. Rptr. 3d 382, plaintiff cannot state cause of action under FEHA…

Digests of WCAB Decisions Denied Judicial Review

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

Breckenridge Insurance Services, LLC v. W.C.A.B. (Groth, Craig), Lexis

Statute of Limitations—Tolling—WCAB, reversing WCJ, held that applicant landscape construction worker’s 7/7/2012 application for adjudication alleging specific injury to his face, mouth, jaw, head, and arm on 8/23/2010 resulting from dog bite was not barred by one-year statute of limitations in Labor Code § 5405, when WCAB concluded…

City of Guadalupe v. W.C.A.B. (Ortega, Robert), Lexis

Credit—Administrative Leave Payments—WCAB affirmed WCJ’s finding that defendant was not entitled to credit against applicant police officer’s temporary disability benefits for payments made to applicant while he was on paid administrative leave, when WCAB found that…

City of Huntington Beach v. W.C.A.B. (Dalbey, Steven), Lexis

Presumption of Industrial Causation—Heart Trouble—Peace Officers—WCAB affirmed WCJ’s finding that applicant peace officer suffered cumulative injury to his cardiovascular/circulatory system and skin while employed by defendant City of Huntington Beach (City) from 9/30/2005 to 9/30/2006, and that Labor Code §§ 3212 and 3212.5 presumption applied to heart injury, when applicant was employed by City for 13 years in active law enforcement, and his heart injury…

Illinois Midwest Insurance Agency, LLC v. W.C.A.B. (Whitt, David), Lexis

Statute of Limitations—Specific and Cumulative Injuries—WCAB rescinded WCJ’s finding that applicant machine operator’s Application for Adjudication of Claim filed on 10/3/2013 was barred by statute of limitations in Labor Code § 5405(a) because it was filed more than one year after applicant suffered specific injury on 1/4/2012, when applicant originally alleged cumulative trauma from 1/4/2009 to 1/4/2010 (later amended to allege cumulative trauma from 1/4/2012 to 1/4/2013), but stipulated at trial to specific injury on 1/4/2012 to conform to report of qualified medical evaluator David Broderick, M.D., who found that applicant suffered specific injury on 1/4/2012 while loading postcards into machine at work, and WCAB found…

Mojarro (Armando) v. W.C.A.B., Lexis

WCAB Jurisdiction—Request for Additional Permanent Disability Benefits After Award—Time to File—WCAB held that it did not have jurisdiction under Labor Code § 5903 to consider applicant’s petition for reconsideration of findings and order holding that applicant was not entitled to additional indemnity benefits or penalties beyond benefits awarded in amended stipulations with request for award approved by WCAB on 10/14/2014, when WCAB found…

Ostini (Susan) v. W.C.A.B., Lexis

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…

Packard (Linda) v. W.C.A.B., Lexis

Medical Treatment—Reasonableness and Necessity—Continuing Medical Award—WCAB, in split panel opinion, affirmed WCJ’s finding that applicant mental health specialist’s general award of medical treatment for industrial injury to her head, right clavicle, right rib, right shoulder, neck, tooth, psyche, and in form of headaches on 6/1/2004, sustained when she was assaulted by psychiatric patient, did not encompass medical treatment recommended by applicant’s treating dentist, including extraction of fractured tooth and placement of anchored cantilever bridge to treat applicant’s temporomandibular joint symptoms, when WCAB panel…

Zenith Insurance Co. v. W.C.A.B. (Castro, Carlos), Lexis

Liens—Professional Copy Services—Registration Requirements—WCAB, reversing WCJ, held that lien claimant established that it provided photocopying services as independent contractor for applicant’s attorney who was member of State Bar, as described in Business & Professions Code § 22451(b), and…

Other WCAB Decisions Denied Judicial Review

De Anza Country Club v. W.C.A.B. (Fuentes, Ramon), Lexis

Petitions for Reconsideration/Removal—WCAB dismissed petition for reconsideration that was appealing non-final WCAB order, contrary to requirements of Labor Code §§ 5900(a), 5902, and 5903, and denied petition for removal because defendant did not make showing required by 8 Cal. Code Reg. § 10843(a) that, absent removal, there would be substantial prejudice or irreparable harm…

Graves (Michael Ben) v. W.C.A.B., Lexis

Vexatious Litigant—Court of Appeal denied two petitions from applicant who was previously designated as vexatious litigant, i.e., (1) petition for writ of review and request to pre-file new litigation, and (2) petition for order vacating 7/24/2015 order that…

Little (Nathan) v. W.C.A.B., Lexis

Petitions for Writ of Review—Time to File Petition—Court of Appeal denied petition for writ of review of WCAB decision because petition for writ of review was not filed within 45-day limit of Labor Code § 5950, when pro per applicant was appealing WCAB decision denying removal, affirming WCJ’s finding…

RZ Plumbing, Inc. v. W.C.A.B. (Koon, Alan), Lexis

Injury AOE/COE—WCAB held that applicant’s injury on 7/20/2015 was injury AOE/COE, when WCAB found that applicant was working for petitioner as plumber on that date, that fire started at location where applicant was working, that applicant went to roof and grabbed bucket and threw water at fire...

Employment Relationships—WCAB held that applicant was petitioner’s employee on 7/20/2015, not independent contractor, considering factors from S. G. Borello & Sons, Inc. v. DIR (1989) 48 Cal. 3d 341, 256 Cal. Rptr. 543, 769 P.2d 399, 54 Cal. Comp. Cases 80, when WCAB found that…

Sanchez (Alexandra) v. W.C.A.B., lLexis

Injury AOE/COE—WCAB held that applicant phlebotomist did not prove she sustained industrial injury as claimed on 1/4/2010, when WCAB found that applicant sustained allergic industrial injury on 11/12/2009, that she contended she sustained additional industrial injury…

Whiteto (Troy) v. W.C.A.B., Lexis

Petitions for Reconsideration—Time to File—Personal Service—WCAB dismissed pro per applicant’s petition for reconsideration of WCAB’s 4/27/2015 order approving compromise and release because petition for reconsideration was not timely filed within 20 days of personal service of that order…

Appeals Board Panel Decisions

Larsen (Deborah) v. Securitas Security Services, Lexis

Psychiatric Injury—Violent Acts—Increased Permanent Disability—WCAB affirmed WCJ's findings that applicant security guard sustained compensable psychiatric injury which resulted in 56 percent permanent disability, after apportionment and after combination with permanent disability to applicant's shoulders, and that applicant's psychiatric permanent disability was separately compensable…

Serrano (Jesus) v. Exact Staff, Lexis

Insurance Coverage—Employee Leasing Agreement—Payroll Services—Concurrent Employment—WCAB affirmed arbitrator's finding that Exact Staff, insured by Tower Insurance Company administered by York Insurance Services Group, and HR Comp, LLC (HR Comp), insured by Travelers Insurance Company (Travelers), had joint and several liability for alleged industrial injury incurred by applicant when he crashed forklift on 4/2/2010, after being hired by Exact Staff and assigned to work as laborer for entity known as Service Connection, when…