Medical Treatment--Spinal Surgery--Appeals Board en banc, rescinding WCJ's Findings and Order of 5/13/2009 that determined that applicant was entitled to lumbar spinal fusion surgery held that procedures and timelines governing objections to treating physician's recommendation for spinal surgery are contained in Labor Code §§ 4610 and 4062 and in Administrative Director Rules 9788.1, 9788.11, and 9792.6(o), and they are (1) when treating physician recommends spinal surgery, defendant must undertake utilization review, (2) if utilization review approves requested spinal surgery, or if defendant fails to timely complete utilization review, defendant must authorize surgery, (3) if utilization review denies spinal surgery request, defendant may object under Labor Code § 4062(b), but any objection must comply with Administrative Director Rule 9788.1 and use form required by Administrative Director Rule 9788.11, (4) defendant must complete its utilization review process within 10 days of its receipt of treating physician's report, which must comply with Administrative Rule 9792.6(o), and, if utilization denies requested surgery, any Labor Code § 4062(b) objection must be made within that same 10-day period, and (5) if defendant fails to meet 10-day timelines or comply with Administrative Director Rules 9788.1 and 9788.11, defendant loses its right to second opinion report and must authorize spinal surgery, and WCAB en banc also disapproved of Brasher v. Nationwide Studio Fund (Brasher) (2006) 71 Cal. Comp. Cases 1282 (Appeals Board significant panel decision) to extent it holds that (1) defendant may opt out of utilization review and instead dispute requested spinal surgery using only procedure specified in Labor Code § 4062(b), and (2) if defendant's utilization review denies spinal surgery, it is employee who must object under Labor Code § 4062(a), when WCAB en banc found that applicant sustained industrial injuries to his low back in 1996, 1997, and 1998, that applicant's treating physician sent defendant report clearly requesting surgery authorization on 2/25/2009, that defendant's utilization review denying spinal surgery issued on 3/4/2009, within mandated 10-day timeline, that defendant did not then initiate spinal surgery second opinion process within 10-day period as required by Labor Code § 4062(b) because defendant was relying on Brasher, and that on remand defendant would have 10 days from date of receipt of WCAB's en banc opinion within which to object to treating physician's spinal surgery recommendation and commence spinal surgery second opinion process. See Cervantes v. El Aguila Food Produces, Inc. (WCAB en banc)
Discrimination--Labor Code § 132a--Court of Appeal, annulling decision of WCAB, held that applicant did not make prima facie showing of discrimination in violation of Labor Code § 132a, when Court of Appeal found that applicant sustained industrial injury to his neck and was taken off work by his treating physician on 8/3/2004, that reports and releases to return to work from applicant's treating physician and agreed medical evaluator received by defendant were unclear and ambiguous regarding applicant's ability to return to usual and customary duties, that, when agreed medical evaluator resolved question in his 12/1/2006 deposition by testifying that he thought applicant could probably perform his usual and customary job, defendant returned applicant to work on 1/8/2007, that applicant presented no evidence that defendant treated him disadvantageously because of industrial nature of his injury, as compared to how defendant treated any nonindustrially injured employee, so that applicant failed to satisfy test established in Department of Rehabilitation v. W.C.A.B. (Lauher) (2003) 30 Cal. 4th 1281, 135 Cal. Rptr. 2d 665, 70 P.3d 1076, 68 Cal. Comp. Cases 831, for making prima facie showing of discrimination. See Gelson’s Market v W.C.A.B. (Fowler)
Death Benefits--Decedent's Estate--Court of Appeal, granting employer's petition for writ of review, annulled WCAB's order requiring employer to pay full $125,000 death benefit to Death Without Dependents Unit pursuant to Labor Code § 4706.5(a), when Court of Appeal found that employer had paid deceased employee's mother/heir death benefits of $104,208 pursuant to Labor Code § 4702(a)(6)(B) until Six Flags, Inc. v. W.C.A.B. (Rackchamroon) (2006) 145 Cal. App. 4th 91, 51 Cal. Rptr. 3d 377, 71 Cal. Comp. Cases 1759, declared that statute unconstitutional on grounds that decedent's estate was not “dependent,” which is only category of persons to whom California Constitution authorizes workers' compensation death benefits to be paid, and that, because death benefits were paid to decedent's heir pursuant to Labor Code § 4702(a)(6)(B) before it was declared unconstitutional, Death Without Dependents Unit was not entitled to be paid any death benefit. See City of Los Angeles v. W.C.A.B. (Foster)
California Insurance Guarantee Association--Covered Claims--Court of Appeal, reversing Superior Court judgment in favor of California Insurance Guarantee Association, held in part of opinion certified for publication that claims presented to California Insurance Guarantee Association by healthcare corporation, party to present case, were covered claims despite fact that employer corporation of applicant had changed its name to name not listed on insurance policy, that phrase in Insurance Code § 1063.1(c)(9)(B) that limits California Insurance Guarantee Association's liability to claims presented by “the original claimant under the insurance policy in his or her own name” includes affiliated corporation into which employer corporation was merged, because merger was internal restructuring of family of corporations, and did not expand or otherwise change ownership or control of operation, and because surviving corporation continued employer corporation's corporate activities as well as its hospital operations, when Court of Appeal found that nurse employed by corporation that later disappeared as result of corporate mergers and reorganizations sustained injury AOE/COE in 1985, that, insofar as California's corporate law is concerned, corporate entity that is party to present case is responsible for workers' compensation benefits owed to nurse and holds all of employer corporation's rights under policy issued by now-insolvent insurer, that present case constituted narrow exception to holding in Baxter Healthcare Corp. v. California Insurance Guarantee Association (2000) 85 Cal. App. 4th 306, 102 Cal. Rptr. 2d 87, in which court had concluded that surviving corporation of merger between unaffiliated entities was not original claimant under insurance policy issued in name of corporation that disappeared via that merger, that Insurance Code § 1063.1(c)(9)(B) was intended to protect entity that purchased insurance and applicant, and that purpose of statute is promoted by decision in present case. See Catholic Healthcare West v. California Insurance Guarantee Association
Longshore and Harbor Worker's Compensation Act--Psychiatric Injuries--Legitimate Personnel Actions--U.S. Court of Appeals, Ninth Circuit, denying petition for review of order of Benefits Review Board, held that psychological injuries arising from legitimate personnel actions are not compensable under Longshore Act, when Circuit Court found that applicant was demoted by employer for poor work performance and failure to fill out proper safety forms after 8/24/99 accident, that parties agreed that substantial evidence supported findings of Administrative Law Judge and Benefits Review Board that applicant's psychological injuries were result of this legitimate personnel action by employer, and that rule that psychological injuries caused not by general working conditions but by legitimate personnel actions are not compensable under Longshore Act is reasonable and reflects policy underlying Act. See Pedroza v. Benefits Review Board
Injury AOE/COE—Compensable Consequence Injuries—Medical Treatment—Court of Appeal, affirming WCAB decision, held that employer bears risk of incurring compensability liability for workers' compensation for injury employee suffers during travel to or from medical appointment related to existing compensable injury while employee is traveling reasonable distance, within reasonable geographic area, to or from that appointment, and that determinations of reasonableness of geographic area limitation on employer's compensability risk and distance employee travels must be made on case-by-case basis considering all relevant circumstances, when Court of Appeal found that applicant sustained injuries AOE/COE in 2003 and 2005 for which she received ongoing medical treatment, that in 5/2007 applicant drove approximately 130 miles from her home to visit her mother, that, within minutes of leaving her mother's home to drive 136 miles to keep medical appointments for treatment of her industrial injuries, applicant sustained serious injuries in automobile accident, and that applicant's new injuries occurred outside reasonable geographic area of defendant's risk for incurring compensability liability for such injuries. See Esquivel v. W.C.A.B.
Petitions for Writ of Review--Final Orders–Court of Appeal, denying defendant's petition for writ of review, held that case was not eligible for review by Court of Appeal since only those orders, decisions, and awards of WCAB deemed to be final are subject to petitions for writ of review pursuant to Labor Code § 5950, when Court of Appeal found that WCAB on reconsideration remanded case to WCJ for further development of record, that petition for writ of review lies only from WCAB decision that conclusively determines substantive issue basic to applicant's entitlement to benefits, and that in present case WCAB issued intermediate procedural order on evidentiary matter that did not deprive parties of any substantive rights and that failed to affirmatively dispose of any threshold issues in determining applicant's entitlement to workers' compensation benefits. See Rider v. WCAB
Attorney-Client Privilege—Waiver--Court of Appeal held that trial court did not violate defendant's right to due process by refusing to dismiss action pursuant to defendant's argument that it could not present complete defense without violating ethical duties it owed to client, including attorney-client privilege, when Court of Appeal found that plaintiff referred bad faith insurance litigation matter involving his client to defendant, that defendant breached agreement to pay plaintiff 25 percent of any contingency fee that defendant might receive in this matter, that defendant claimed that client had not paid contingency fee pursuant to 1997 agreement between client and defendant but had instead paid different fee that defendant had negotiated in 2002 during dispute over fees that occurred near time of settlement of bad faith litigation, that jury found defendant liable on claims of breach of contract, third party beneficiary breach of contract, money had and received, and conversion, and awarded plaintiff $260,000 in damages, that client had waived attorney-client privilege with respect to anything having to do with fee dispute in bad faith litigation, that trial court properly considered four factors in determining not to dismiss plaintiff's case, i.e., (1) whether evidence at issue was client's confidential information and whether client was insisting that information remain confidential, (2) whether confidential information at issue was highly material to defendant's defenses, (3) whether trial court was able to effectively use ad hoc measures from its equitable arsenal, such as sealing and protective orders, limited admissibility of evidence, orders restricting use of testimony in successive proceedings, and in camera proceedings, so as to permit action to proceed, and (4) whether it would be fundamentally unfair to allow action to proceed, and that defendant had forfeited its claim that dismissal was required because of plaintiff's alleged violation of various ethical duties. See Dietz v. Meisenheimer & Herron
California Insurance Agent and Agency Held Liable For Failure to Procure Workers' Compensation Coverage. In Williams v. Hilb, Rogal & Hobbs Ins. Servs., 2009 Cal. App. LEXIS 1496 (Sept. 9, 2009), the Court of Appeal of California (Second Appellate District, Division Eight), affirmed the entry of the judgment against the defendants. Initially, the appellate court acknowledged that generally an insurance agent does not have a duty to volunteer to an insured that the insured should procure additional or different insurance coverage. According to the court, ordinarily the insurance agent's duty is to use reasonable care, diligence, and judgment in procuring the insurance requested by an insured. The court noted, however, that the rule changes when any of the following factors was present: (a) the agent misrepresented the nature, extent or scope of the coverage being offered or provided; (b) there was a request or inquiry by the insured for a particular type or extent of coverage; or (c) the agent assumed an additional duty by either express agreement or by holding himself or herself out as having expertise in a given field of insurance being sought by the insured. The court continued that an agent assumes additional duties by holding herself out as having expertise in the insurance being sought by the insured and may be liable to the insured for losses which resulted as a breach of that special duty. While the court acknowledged that ordinarily an insured has a duty to read and understand the policy of insurance, the court added that the language of the policy might not control because of an insurer's conduct extrinsic to the contract. Moreover, an insured's failure to read the policy did not always render the insured's reliance on the agent's advice unjustifiable as a matter of law. The court concluded that the evidence amply supported the court's finding that Defendant failed to use the skill and care a reasonably careful insurance professional would have used in similar circumstances and that Defendant’s agent had held herself out as an expert. There was no error.
Third Party Actions--Insurance--Medical Payments--Reimbursement--Attorney's Fees--Supreme Court held that, although made-whole rule applies in medical payments insurance context, and insured must be made whole as to all damages proximately caused by injury, liability for attorney fees is not included under made-whole rule, but is instead subject to equitable apportionment rule, when Supreme Court found that insured settled claim for damages arising from 12/8/2003 automobile accident against third party for $6,000, which sum represented her total damages, that insured incurred approximately $2,000 in attorney fees in obtaining that settlement, that insurer paid insured $1,000 under her insurance policy's medical payments provision, that insurance policy required insured to reimburse insurer for monies she recovered from third party that duplicated her recovery under her policy, that insured reimbursed insurer in amount of $600, arrived at by subtracting attorney fees of $400 (insurer's pro rata share of total attorney fees of $2,000) from $1,000 in medical payments insured received from insurer, and that insured was not entitled to withhold reimbursement from insurer on grounds that she had not been reimbursed for 100 percent of attorney fees she incurred. See 21st Century Insurance
Co. v. The
Superior
Court
of
San Diego
County (Quintana)
Injury AOE/COE--Going and Coming Rule--Special Mission Exception--Court of Appeal, reversing trial court's grant of summary judgment to defendant employer, held that defendant employer had failed to show that there were no triable issues of material fact as to whether its employee was acting within course and scope of his employment at time of automobile accident causing injuries to plaintiffs, that employee's attendance at out-of-town business conference may be considered special errand/special mission, and that, when employee intends to drive home from errand/mission, errand/mission is not concluded simply because employee drives his regular commute route, but, rather, that errand/mission is concluded only when employee returns home or deviates from errand/mission for personal reasons, when Court of Appeal found that defendant employee was vice-president of anti-piracy internet operations of Warner Brothers, that in 8/2006 he attended three-day business conference in Sunnyvale, California, sponsored by one of his employer's anti-piracy vendors, that defendant employer approved this trip and paid for employee's airfare, hotel, and airport parking, that on 8/11/2006 employee left conference and flew back to Burbank Airport, where he retrieved his car from parking lot, that, on his way home, he drove around studio complex where his office was located without stopping and took his normal route home until he was involved in automobile collision that gave rise to present cause of action, that business conference was special errand/mission what had not yet concluded at time of accident, and that fact that employee coincidentally passed his office on his return route home was immaterial since employee did not stop at office and intended to return home from airport. See Jeewarat v. Warner Brothers Entertainment, Inc.
Injury AOE/COE--Going and Coming Rule--Special Mission Exception--Court of Appeal held that substantial evidence supported WCAB's decision that applicant sustained injury AOE/COE in 8/9/2007 motorcycle accident during his commute to non-routine meeting at his usual place of business on day he was not scheduled to work, when Court of Appeal found that applicant was required by defendant/printing company to attend meeting at worksite to address specific complaints from one customer that was “upset,” that such meetings occurred only two to four times per year, that all machines for customer's line are stopped so that everyone from each of three shifts may attend, that except for such meetings printing plant ran 24 hours per day, seven days per week, that defendant contended that attendance at meeting was not extraordinary in relation to applicant's routine duties as printing machine operator and thus did not fulfill one of requirements for constituting special mission exception to going and coming rule, but that WCAB reasonably concluded that attendance at meeting was not integral and routine part of applicant's job duties as machine operator. See American Home Assurance v. W.C.A.B. (Wuertz)
Permanent Disability--AMA Guides--2005 Permanent Disability Rating Schedule--WCAB en banc clarifying and modifying 2/3/2009 en banc decisions in same cases, which had held that (1) AMA Guides portion of 2005 Schedule for Rating Permanent Disabilities was rebuttable, (2) AMA Guides portion of 2005 Schedule was rebutted by showing that impairment rating based on AMA Guides would result in permanent disability award that would be inequitable, disproportionate, and not fair and accurate measure of employee's permanent disability, and (3) when impairment rating based on AMA Guides had been rebutted, WCAB could make impairment determination that considered medical opinions that were not based or were only partially based on AMA Guides, now held, in 4-3 decision, that (1) language of Labor Code § 4660(c), which provides that “the schedule . . . shall be prima facie evidence of the percentage of permanent disability to be attributed to each injury covered by the schedule,” unambiguously means that permanent disability rating established by 2005 Schedule is rebuttable, (2) burden of rebutting scheduled permanent disability rating rests with party disputing that rating, (3) one method of rebutting scheduled permanent disability rating is to successfully challenge one of component elements of that rating, such as injured employee's whole person impairment under AMA Guides, and (4) when determining injured employee's whole person impairment, it is not permissible to go outside four corners of AMA Guides, but physician may utilize any chapter, table, or method in AMA Guides that most accurately reflects injured employee's impairment, that WCAB now specifically rejects ``inequitable, disproportionate, and not a fair and accurate measure of the employee's permanent disability'' standard set forth in 2/3/2009 opinion, that present decision does not permit physician to utilize any chapter, table, or method in AMA Guides simply to achieve desired result, e.g., whole person impairment that would result in permanent disability rating based directly or indirectly on any Schedule in effect prior to 2005, that physician's opinion regarding injured employee's whole person impairment under Guides must constitute substantial evidence, that opinion must set forth facts and reasoning that justify it, and that physician's whole person impairment opinion that is not based on AMA Guides does not constitute substantial evidence. Almaraz v. Environmental Recovery Services; Guzman v.
Milpitas
Unified
School District (Appeals Board en banc) (free download)
Permanent Disability--2005 Permanent Disability Rating Schedule--Diminished Future Earning Capacity--WCAB en banc, clarifying 2/3/2009 en banc decision in same case, which had held that (1) diminished future earning capacity portion of 2005 Schedule for Rating Permanent Disabilities was rebuttable, (2) diminished future earning capacity portion of 2005 Schedule ordinarily was not rebutted by establishing percentage to which injured employee's future earning capacity had been diminished, (3) diminished future earning capacity portion of 2005 Schedule was not rebutted by taking two-thirds of injured employee's estimated diminished future earnings, then comparing resulting sum to permanent disability money chart to approximate corresponding permanent disability rating, and (4) diminished future earning capacity portion of 2005 Schedule could be rebutted in manner consistent with Labor Code § 4660--including Labor Code § 4660(b)(2) and RAND data to which it referred, and that diminished future earning capacity rebuttal approach consonant with Labor Code § 4660 and RAND data to which it referred consisted, in essence, of (1) obtaining two sets of wage data (one for injured employee and one for similarly situated employees), generally through Employment Development Department, (2) doing some simple mathematical calculations with that wage data to determine injured employee's individualized proportional earnings loss, (3) dividing employee's whole person impairment by proportional earnings loss to obtain ratio, and (4) seeing if ratio fell within certain ranges of ratios in Table A of 2005 Schedule, and that, if it did, determination of employee's diminished future earning capacity adjustment factor was simple and related back to Schedule, but that, if it did not, then non-complex formula was used to perform additional calculations to determine individualized diminished future earning capacity adjustment factor, now held that (1) language of Labor Code § 4660(c), which provides that “the schedule . . . shall be prima facie evidence of the percentage of permanent disability to be attributed to each injury covered by the schedule,” unambiguously means that permanent disability rating established by Schedule is rebuttable, (2) burden of rebutting scheduled permanent disability rating rests with party disputing that rating, and (3) one method of rebutting scheduled permanent disability rating is to successfully challenge one of component elements of that rating, such as injured employee's diminished future earning capacity adjustment factor, which may be accomplished by establishing that individualized adjustment factor most accurately reflects injured employee's diminished future earning capacity, but that any individualized diminished future earning capacity adjustment factor must be consistent with Labor Code § 4660(b)(2), RAND data to which it refers, and numeric formula adopted by Administrative Director in 2005 Schedule, and that any evidence presented to support proposed individualized diminished future earning capacity adjustment factor must constitute substantial evidence on which WCAB may rely, and that, even if this rebuttal evidence is legally substantial, WCAB as trier-of-fact may still determine that evidence does not overcome diminished future earning capacity adjustment factor component of scheduled permanent disability rating. Ogilvie v. City and
County of
San Francisco (Appeals Board en banc) (free download)
Vocational Rehabilitation--Sunsetting--The Court of Appeal, annulling the WCAB decision and following Weiner v. Ralphs Co.(2009) 74 Cal. Comp. Cases 736 (Appeals Board en banc opinion), held that the WCAB's decision on 10/7/2008 that affirmed the WCJ's 1/31/2008 award of vocational rehabilitation benefits to the applicant was not a "final" decision, so that applicant lost all rights to vocational rehabilitation benefits as of the 1/1/2008 repeal of Labor Code § 139.5. Beverly Hilton Hotel v. W.C.A.B. (Boganim)
Permanent Disability—Applicability of 1997 Schedule for Rating Permanent Disabilities—Court of Appeal, annulling WCAB's decision and remanding matter to determine applicable permanent disability rating schedule, held that 2004 treating physician's reports may indicate existence of permanent disability under 1997 Schedule for Rating Permanent Disabilities and Labor Code § 4660(d), when Court of Appeal found that applicant sustained industrial injury to his cervical spine on 2/20/2003, that on 2/3/2004 treating physician (orthopedic surgeon) performed cervical discectomy and fusion at C5-6 and C6-7, which required grafts and internal fixation of anterior plate with four 14-millimeter screws, that treating physician's 9/30/2004 report stated that computer range of motion testing for cervical spine suggested 18-percent whole person impairment under AMA Guides (4th edition), that WCAB determined that WCJ mistakenly applied 1997 Schedule based solely on diagnostic reports and that 2005 Schedule applied because there was no comprehensive medical-legal or treating physician's report indicating existence of permanent disability prior to 1/1/2005, that, while WCJ relied on cervical fusion, limited range of cervical motion, and whole person impairment in diagnostic reports as indicating existence of permanent disability under Labor Code § 4660(d), WCJ also found that treating physician's 2004 reports incorporated diagnostic reports, that WCAB's determination that WCJ relied solely on diagnostic reports to find indication of existence of permanent disability was not supported by substantial evidence, that 1997 Schedule provides that spinal permanent disability may be based on such factors as permanent impairment, limitation of motion, or impaired function, that WCAB did not address whether cervical fusion, limited range of motion, and whole person impairment under AMA Guides indicated existence of permanent disability under 1997 Schedule and Labor Code § 4660(d), and that WCAB on remand should determine this issue and whether 1997 Schedule or 2005 Schedule applies. Snedecor v. WCAB, 2009 Cal. App. Unpub. LEXIS 6622
Third Party Actions—Settlement—Credit—California Insurance Guarantee Association—Court of Appeal, affirming WCAB decision, held that, pursuant to Labor Code § 3861, defendant was entitled to credit against future workers' compensation benefits to be paid to applicant in amount of net settlement of applicant's action against third-party tortfeasor that was paid to applicant by California Insurance Guarantee Association, when Court of Appeal found that applicant sustained industrial injury in 8/2003 at hands of third party tortfeasor, that defendant provided applicant with $74,408.79 in workers' compensation benefits, that applicant's lawsuit against third party tortfeasor was settled for $50,000, with defendant releasing its lien against workers' compensation benefits already paid to applicant, that defendant claimed credit against its liability for future workers' compensation benefits up to $50,000, that California Insurance Guarantee Association was obligated under Insurance Code §§ 1063.1(c)(1) and 1063.2(a) to pay settlement, regardless of whether defendant was entitled to credit, that California Insurance Guarantee Association's assets were unaffected by grant or denial of credit to defendant, and that, if credit were denied, applicant would be in better position than if third party tortfeasor's insurer had remained solvent. Baur v. WCAB, 2009 Cal. App. LEXIS 1394
Vocational Rehabilitation—Sunsetting—“Vested” Rights--WCAB, en banc, denying applicant's petition for reconsideration of WCAB's prior en banc decision in same case, Weiner v. Ralphs Company (2009) 74 Cal. Comp. Cases 736 (Appeals Board en banc opinion), in which it held that (1) repeal of Labor Code § 139.5 terminated any rights to vocational rehabilitation benefits or services pursuant to orders or awards that were not final before January 1, 2009, (2) no saving clause was adopted to protect vocational rehabilitation rights in cases still pending on or after January 1, 2009, (3) vocational rehabilitation statutes that were repealed in 2003 do not continue to function as "ghost statutes" on or after January 1, 2009, (4) effective January 1, 2009, WCAB lost jurisdiction over non-vested and inchoate vocational rehabilitation claims, but WCAB continues to have jurisdiction under Labor Code §§ 5502(b)(3) and 5803 to enforce or terminate vested rights, and (5) subject matter jurisdiction over non-vested and inchoate vocational rehabilitation claims cannot be conferred by waiver, estoppel, stipulation, or consent, held now that, even if WCAB assumed that some Vocational Rehabilitation Maintenance Allowance was indisputably due to applicant prior to January 1, 2009, this does not mean that applicant's right to this Vocational Rehabilitation Maintenance Allowance had vested, that statutory right vests through final order or award, that no final order or award of Vocational Rehabilitation Maintenance Allowance was made in present case, and that repeal of Labor Code § 139.5 extinguished applicant's right to such award. Weiner v. Ralphs Company (2009) 74 Cal. Comp. Cases ***, 2009 Cal. Wrk. Comp. LEXIS 204
Permanent Disability—Apportionment—Wilkinson Rule--Court of Appeal, denying applicant's petition for writ of review, affirming WCAB decision, and following Benson v. Permanente Medical Group (2007) 72 Cal. Comp. Cases 1620 (Appeals Board en banc opinion), aff'd sub nom. Benson v. W.C.A.B. (2009) 170 Cal. App. 4th 1535, 89 Cal. Rptr. 3d 166, 74 Cal. Comp. Cases 113, held that Wilkinson v. W.C.A.B. (1977) 19 Cal. 3d 491, 138 Cal. Rptr. 696, 564 P.2d 848, 42 Cal. Comp. Cases 406, which provided that injured worker, while employed by same employer, who sustained two separate injuries to same part of body, which became permanent and stationary at same time, was entitled to combined award of permanent disability, is no longer generally applicable because inconsistent with post-SB 899 requirement that WCAB apportion to cause of disability for each industrial injury, when Court of Appeal found that applicant sustained specific industrial injury on 4/13/99 to her right lower extremity, right knee, right elbow, right ankle, and psyche, and cumulative trauma injury through period ending 3/19/2001 to her right knee, psyche, and right lower extremity, and that applicant's injuries became permanent and stationary at same time. LaPlante v. WCAB, 2009 Cal. App. Unpub. LEXIS 6235.
Employment Relationships--Unemployment Insurance--Court of Appeal held that Superior Court correctly denied plaintiff's requested declaratory relief to invalidate precedential decision by Unemployment Insurance Appeals Board that upheld Employment Development Department's assessment of unemployment insurance employer contributions and penalties against courier service, when Court of Appeal found that Employment Development Department found that drivers for courier service were employees, not independent contractors, that Unemployment Insurance Appeals Board designated its own decision as precedential, that Superior Court dismissed plaintiff's appeal, that California courts and administrative agencies were all authorized to apply comprehensive and overlapping tests regarding employment status stated in S.G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal. 3d 341, 769 P.2d 399, 256 Cal. Rptr. 543, 54 Cal. Comp. Cases 80, that reasoning of Borello, which arose in workers' compensation context, applied equally to analysis of tax-related issues, such as employer contributions, requiring employment determination pursuant to Unemployment Insurance Code §; 621(b), that there was nothing in record or in Unemployment Insurance Appeals Board's decision to suggest that there was no proper basis under Unemployment Insurance Code's provisions for liability for employer assessments, independent of any liberal construction of Code regarding benefits, or that there was any undue focus in present case on employee protection, as opposed to employer rights, and that, contrary to plaintiff's contentions, Air Couriers International v. Employment Development Department (2007) 150 Cal. App. 4th 923, 59 Cal. Rptr. 3d 37, was correctly decided when it concluded that employer had no basis to argue that legal standards set forth in Borello were inapplicable in unemployment insurance context. Messenger Courier Association of the v. Calif. Uneployment Insurance Appeals Board, 2009 Cal. App. LEXIS 1149.
Discrimination--Labor Code § 132a--Appellate Review--Court of Appeal, annulling WCAB order denying reconsideration, held that it was unable to conduct adequate review of WCAB's decision as to whether defendant discriminated against applicant in violation of Labor Code § 132a, when Court of Appeal found that applicant sustained injury AOE/COE on 11/24/2004, that defendant maintained policy of requiring employees to submit to drug testing if involved in accident or injury at work, that refusal to submit to such test constituted grounds for immediate termination, that applicant, after failing to submit to test, was terminated, that WCJ presumed, without addressing applicant's contention to contrary, that defendant's policy did not violate Labor Code § 132a by discriminating against industrially injured workers, that WCAB on reconsideration did not make finding whether policy discriminated against defendant for sustaining industrial injury and, if so, whether defendant demonstrated that its conduct was necessary and directly linked to realities of doing business, and that without these findings WCAB's opinion did not sufficiently state evidence relied on and specify in detail reasons for its decision, as required by Labor Code § 5908.5. Cantrell v. Workers' Comp. App. Bd., 2009 Cal. App. Unpub. LEXIS 5738
Medical Treatment--Utilization Review--Objections to Medical Determination--Court of Appeal, on remand from Supreme Court decision in State Compensation Insurance Fund v. W.C.A.B. (Sandhagen) (2008) 44 Cal. 4th 230, 79 Cal. Rptr. 3d 171, 186 P.3d 535, 73 Cal. Comp. Cases 981, annulled decision of WCAB and held that utilization review process pursuant to Labor Code § 4610 is required for every medical treatment request, that defendant's failure to comply with deadlines set forth in Labor Code § 4610(g)(1) precluded it from using utilization review process or utilization review medical reports to deny applicant's medical treatment request, and that Labor Code § 4062 precludes employers from using its provisions to object to employees' treatment requests but permits employees to use its provisions to object to employers' decisions regarding treatment requests. Petitions for Writ of Review--Final Orders--Court of Appeal held that WCAB's en banc decision, holding that defendant's failure to comply with deadlines set forth in Labor Code § 4610(g)(1) precluded it from using utilization review process and rendered untimely utilization review medical reports inadmissible, was final order for purposes of appellate review because it settled issue critical to applicant's claim, and that fact that matter was remanded by WCAB following its en banc decision was irrelevant to question of finality of its holding since nothing in its rescission and remand order allowed WCJ to depart from this holding on remand. SCIF v. W.C.A.B. (Sandhagen); Sandhagen v. W.C.A.B., 2009 Cal. App. Unpub. LEXIS 5841
Temporary Disability; Credits; Time to Claim--Court of Appeal, annulling WCAB decision and award, held that defendant's challenge to applicant's claim of ongoing temporary disability must be made within 20 days of receipt of physician's report stating that disability, as provided by Labor Code § 4062(a), that treating physician's opinion in last report that applicant was temporarily totally disabled through 6/2006 marked end of period in which defendant's claim for credit for overpayment of temporary disability indemnity was subject to time limit in Labor Code § 4062(a), and that defendant's claim for credit subsequent to 6/2006 could not be denied on grounds of that statutory time limit, when Court of Appeal found that applicant sustained injury AOE/COE on 7/23/2003, that applicant became permanent and stationary on 2/5/2007, date on which he was examined by agreed medical evaluator, and that record did not support equitable bar to credit for overpayment. J.C. Penney Company v. W.C.A.B. (Edwards), 2009 Cal. App. LEXIS 1101
Insurance; Policy Terms. Court of Appeal, affirming orders of trial court, held that word "occurrence" in excess-insurance policies phrase "loss arising out of any one occurrence" clearly, explicitly, and unambiguously refers to accident or cumulative injury that causes employee to suffer damage and does not refer to loss sustained by employer in form of workers' compensation award of compromise and release, that employer cannot assert waiver and estoppel against insurers because insurers' past conduct cannot bring within policy coverage risks not covered by its terms and because there is no evidence that insurers intentionally waived their rights as to current claims, that first insurer was entitled to reimbursement of benefits paid for injuries that occurred during time when insurer did not cover employer since such payment unjustly enriched employer, that second insurer properly received summary adjudication from trial court interpreting policy and was not required to join request for declaratory judgment to action regarding any particular claim under policy, and that third party that sold policies to employer was properly granted summary judgment by trial court because it was agent and could not be held liable for actions of insurers. Supervalu, Inc. v. Wexford Underwriting Managers, Inc., 2009 Cal. App. LEXIS 988
Permanent Disability and Apportionment Under Wilkinson Rule. Court of Appeal, affirming WCAB decision and following Benson v. Permanente Medical Group (2007) 72 Cal. Comp. Cases 1620 (Appeals Board en banc opinion), aff'd sub nom. Benson v. W.C.A.B. (2009) 170 Cal. App. 4th 1535, 89 Cal. Rptr. 3d 166, 74 Cal. Comp. Cases 113, held that rule established by Wilkinson v. W.C.A.B. (1977) 19 Cal. 3d 491,138 Cal. Rptr. 696, 564 P.2d 848, 42 Cal. Comp. Cases 406, which provided that injured worker who sustained two separate injuries to same part of body, which became permanent and stationary at same time, was entitled to receive combined award of permanent disability, is no longer generally applicable because inconsistent with post-SB 899 requirement that apportionment be based on causation, when Court of Appeal found that applicant sustained cumulative trauma injury to lower back and right knee between 1980 and 3/28/2000 and specific injury to right knee on 6/28/2000 while employed by defendant, that, after apportionment, specific injury caused 62-percent permanent disability and cumulative trauma injury caused 14-percent permanent disability, and that awards for separate injuries may no longer be combined into single, merged award. See Vilkitis v. W.C.A.B. – read the opinion here
Permanent Disability and Apportionment Under Wilkinson Rule. Court of Appeal, affirming WCAB decision and following Benson v. Permanente Medical Group (2007) 72 Cal. Comp. Cases 1620 (Appeals Board en banc opinion), aff'd sub nom. Benson v. W.C.A.B. (2009) 170 Cal. App. 4th 1535, 89 Cal. Rptr. 3d 166, 74 Cal. Comp. Cases 113, held that rule established by Wilkinson v. W.C.A.B. (1977) 19 Cal. 3d 491,138 Cal. Rptr. 696, 564 P.2d 848, 42 Cal. Comp. Cases 406, which provided that injured worker who sustained two separate injuries to same part of body, which became permanent and stationary at same time, was entitled to receive combined award of permanent disability, is no longer generally applicable because inconsistent with post-SB 899 requirement that apportionment be based on causation, when Court of Appeal found that applicant industrially injured his back on 11/19/99 and on 1/27/2000 while employed by defendant, that, after apportionment, these two injuries caused permanent disability of 47 percent and 23 percent, respectively, that awards for separate injuries may no longer be combined into single, merged award, and that, contrary to applicant's contention that he is being denied equal protection because he is being treated differently from worker who has same level of disability but has been injured only once, legislative classifications are presumed valid and will be sustained unless palpably arbitrary, irrational, and manifestly without support, and SB 899 is rationally related to legitimate governmental interest of reducing workers' compensation costs. See Forzetting v. W.C.A.B. – read the opinion here
Vocational Rehabilitation; Sunsetting. WCAB, en banc, held that (1) repeal of Labor Code § 139.5 terminated any rights to vocational rehabilitation benefits or services pursuant to orders or awards that were not final before January 1, 2009, (2) no saving clause was adopted to protect vocational rehabilitation rights in cases still pending on or after January 1, 2009, (3) vocational rehabilitation statutes that were repealed in 2003 do not continue to function as "ghost statutes" on or after January 1, 2009, (4) effective January 1, 2009, WCAB lost jurisdiction over non-vested and inchoate vocational rehabilitation claims, but WCAB continues to have jurisdiction under Labor Code §§ 5502(b)(3) and 5803 to enforce or terminate vested rights, and (5) subject matter jurisdiction over non-vested and inchoate vocational rehabilitation claims cannot be conferred by waiver, estoppel, stipulation, or consent. Weiner v. Ralphs Co., WCAB en banc, 74 Cal. Comp. Cases ***.
Attorney's Fees Not Allowed For Successfully Resisting Challenges Related to Specific Treatment Requests. Smith v. Workers' Comp. Appeals Bd., 2009
Cal. LEXIS 4295 (May 11, 2009). In two consolidated workers' compensation cases, petitioner workers obtained awards for future treatment of their industrial injuries and then initiated proceedings to obtain treatments denied by respondent insurer. The workers prevailed in those proceedings. The Court of Appeal, Second Appellate District, Division Six (California) reversed the California Workers' Compensation Appeals Board's rulings denying the workers' attorney fee requests. In one of the cases, the injured worker was originally awarded treatment for injuries to his right shoulder, neck, and psyche. A dispute subsequently arose as to whether epidural injections to his back were covered by the award. The other worker was originally awarded treatment for injuries to his right foot. Based on further utilization review, the employer challenged the necessity of a weight loss program and treatment for diabetes. Reversing the Court of Appeal, the Supreme Court held that in light of unambiguous statutory language and legislative history, Labor Code § 4607 authorizes an award of attorney's fees only to employees who successfully resist efforts to terminate their award of medical treatment and does not permit award of fees to employees who successfully challenge denial of specific treatment requests. The Supreme Court found that the state's utilization review scheme, including its dispute resolution process, contained procedures for resolving disputes over treatment requests that uses physicians, rather than judges, as adjudicators and does not require, although it permits, employees to obtain counsel. See generally Larson’s Workers’ Compensation Law § 133.03.
© Copyright 2009 LexisNexis. All rights reserved.