California Workers’ Comp Case Roundup (9/2/2015)

CALIFORNIA COMPENSATION CASES

Vol. 80 No. 8 August 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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Appellate Court Cases Not Originating With Appeals Board

Franco (Jose) v. West Coast Pipe Inspection and Maintenance, Inc., Lexis

Civil Actions Against Employers—Exclusive Remedy—Special Employers—Court of Appeal affirmed summary judgment by civil trial court in favor of defendants, based on trial court’s holding that defendant West Coast Pipe Inspection and Maintenance, Inc., was special employer of plaintiff/applicant on date of plaintiff’s injuries and that, therefore, workers’ compensation was plaintiff’s exclusive remedy against defendants, when Court of Appeal found that…

Rodriguez v. RWA Trucking Co., Inc.,  Lexis

Workers’ Compensation Insurance—Independent Contractors Contribution—Federal Preemption—Court of Appeal, affirming in part and reversing in part trial court’s judgment, and remanding to trial court, held that federal law preempted plaintiffs’ claim that defendant, in violation of Insurance Code § 1631, unlawfully transacted insurance without license, that federal law did not preempt plaintiffs’ claim that defendant, in violation of Business and Professions Code § 17200 and Labor Code § 3751, charged plaintiffs for workers’ compensation insurance, that trial court erred in awarding plaintiffs prejudgment interest under Civil Code § 3287, and that defendant did not violate law by charging plaintiffs for costs of liability insurance, when Court of Appeal found that…

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.

Cahill Contractors v. W.C.A.B. (Hallquist, Christian), Lexis

WCAB Procedure—Consolidation of Cases—Admission of Evidence—WCAB affirmed WCJ’s order admitting into evidence reports of agreed medical evaluator John Lavorgna, M.D., obtained by defendant California Insurance Guarantee Association in applicant’s specific injury case, when defendant Arch Insurance Co., carrier with liability for applicant’s cumulative trauma, challenged admissibility of reports in connection with cumulative injury on basis that they were obtained by California Insurance Guarantee Association outside mandatory medical-legal process, but WCAB found that…

Injury AOC/COE—Substantial Evidence—WCAB affirmed WCJ’s finding that applicant journeyman carpenter sustained cumulative trauma to his right knee during five-week period ending 6/14/2010, and that cumulative injury was new injury rather than merely exacerbation of earlier specific right knee injury incurred by applicant in 1999, based on...

California Insurance Guarantee Assn. v. W.C.A.B. (Lopez, Rosa), Lexis

California Insurance Guarantee Association—Other Insurance—Stipulations—WCAB, affirming WCJ, held that California Insurance Guarantee Association, on behalf of insolvent carrier Ullico, was liable for 48 percent of applicant’s medical treatment charges and 50 percent of applicant’s medical-legal expenses, based on stipulation regarding defendants’ liability in compromise and release agreement executed by Ullico and by carrier with joint and several liability, Care West, when WCAB found that...

G4S Secure Solutions, Inc. v. W.C.A.B. (Simone, Elisa), Lexis

Permanent Disability—Rating—Permanent Total Disability—WCAB, affirming WCJ, awarded applicant armed security officer 100 percent permanent total disability, without apportionment, for right hip and lumbar spine injuries, based on applicant’s credible testimony and opinions of orthopedic agreed medical evaluator, Kenneth Sabbag, M.D., who initially provided opinions regarding applicant’s impairment under AMA Guides but later reported that there was medical basis to conclude that applicant had total loss of earning capacity and was unable to compete in the open labor market due to complications stemming from failed surgeries, when WCAB concluded that…

Travelers Property Casualty Co. of America v. W.C.A.B. (Gonzales, Luis), Lexis

WCAB Jurisdiction—Insidious Diseases—Valley Fever—WCAB, in split panel decision, affirmed WCJ’s determination that applicant oil field worker/heavy equipment operator was entitled to interim award of 24 percent permanent disability with WCAB jurisdiction reserved over permanent disability, based on finding that applicant’s industrially-related valley fever constituted “insidious progressive disease,” when panel majority concluded that…

Warner Brothers v. W.C.A.B. (Ferrona, Darlene), Lexis

Medical Treatment—Home Health Care—Utilization Review—WCAB affirmed WCJ’s finding that applicant, who incurred cumulative industrial injury to her psyche and in form of fibromyalgia, was entitled to home health care services 24 hours per day, seven days per week, pursuant to opinion of her treating physician, A. Joseph Glaser, Ph.D., when defendant had agreed to provide home health care services 24 hours per day, seven days per week, in 2009 based on recommendations of agreed medical evaluators and again in 2014 after Dr. Glaser submitted request for authorization indicating applicant’s continued need for home health care, and WCAB found that…

Other WCAB Decisions Denied Judicial Review

Choe v. W.C.A.B. (Song, Tok Sun), Lexis

Petitions for Reconsideration—Time to File—WCAB dismissed petition for reconsideration that was not timely filed under Labor Code §§ 5900(a) and 5903 and 8 Cal. Code Reg. § 10507(a)(1) (petition for reconsideration was not filed within 20 days of actual service of WCJ’s decision), when…

Costa (Brandon) v. W.C.A.B., Lexis

Temporary Partial Disability—WCAB denied applicant’s request for temporary partial disability benefits for admitted 10/28/2011 industrial back injury, when WCAB found that employer requested medical reports indicating applicant’s medical status in letter to applicant dated 7/24/2012, that applicant acknowledged existence of…

State Compensation Insurance Fund v. W.C.A.B. (Conen, Patrick), Lexis

Permanent Disability—Permanent Total Disability—Rating—WCAB affirmed WCJ’s award of 100 percent permanent disability to applicant heavy equipment operator who suffered 7/17/2008 industrial injury to his low back, urological system, and psyche, based on opinions of orthopedic agreed medical evaluator and psychiatric agreed medical evaluator, who both concluded that applicant was precluded from returning to gainful employment due to combination of failed back surgery, opiate dependence, level of depression, and chronic pain, and WCAB found that…

Permanent Disability—Apportionment—WCAB, in panel split decision, affirmed WCJ’s finding that opinions of orthopedic agreed medical evaluator and psychiatric agreed medical evaluator did not constitute substantial evidence to justify apportionment of applicant heavy machine operator’s permanent total disability caused by 7/17/2008 industrial injury to his low back, urological system, and psyche, when WCAB concluded that…

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