Here’s the third batch of advanced postings for the October 2009 issue of California Compensation Cases. Lexis.com subscribers can link to the cases below.

City of Los Angeles (Department of Transportation), PSI, Petitioner v. Workers' Compensation Appeals Board, John Tomkies Respondents

74 Cal. Comp. Cases, 2009 Cal. Wrk. Comp. LEXIS 248

Discrimination--Labor Code § 132a--WCAB Jurisdiction--WCAB held that it had jurisdiction over applicant/traffic officer's claim that his former employer, City of Los Angeles, violated Labor Code § 132a by refusing to place him on its "eligible for rehire" list because of  his 8/29/2001 admitted industrial right foot injury, and that jurisdiction over applicant's claim was not precluded by fact that defendant's discriminatory conduct arose after applicant had resigned from his job and was working as probation officer for County, when (1) applicant had resigned from his job with understanding that he could have his name restored to defendant's "eligible for rehire" list  pursuant to defendant's civil service rules, (2) applicant followed procedures designated by defendant for obtaining placement on eligible list before he left his employment, and his right to be considered for rehire accrued before his resignation, (3) circumstances of discrimination arose out of employer-employee relationship, and (4) WCAB, relying on language and purpose of Labor Code Sec 132a and Supreme Court's decision in Morehouse v. Workers' Comp. Appeals Bd. (1984) 154 Cal. App. 3d 323, 201 Cal. Rptr. 154, 49 Cal. Comp. Cases 313, found that there was sufficient nexus between applicant's employment and defendant's discriminatory act to trigger protective purpose behind Labor Code § 132a, and that fact that applicant was not employee of defendant at time of defendant's discriminatory conduct was not controlling, since language in Labor Code § 132a is not limited to only current employees, but rather applies to any employee and any employer.

Discrimination--Labor Code § 132a--WCAB upheld WCJ's finding that defendant violated Labor Code § 132a by refusing to place applicant/traffic officer's name on "eligible for rehire" list pursuant to its civil service rules because of earlier absences from work caused by applicant's 8/29/2001 admitted industrial right foot injury, when applicant made prima facie case of discrimination under Barns v. W.C.A.B. (1989) 216 Cal. App. 3d 524, 266 Cal. Rptr. 503, 54 Cal. Comp. Cases 433, by showing that defendant's failure to apply its own civil service rules to applicant because of his prior industrial injury caused him detriment.

D. H. Smith Company, Inc., ICW Group, Petitioners v. Workers' Compensation Appeals Board, Fernando R. Martinez, Respondents

74 Cal. Comp. Cases ***, 2009 Cal. Wrk. Comp. LEXIS 249

Injury AOE/COE--Injury From Unauthorized Activities--WCAB rescinded WCJ's order that applicant take nothing by way of his claim for 6/26/2007 injuries and held, instead, that applicant sustained injury AOE/COE for purposes of pursuing workers' compensation benefits, when WCJ's take nothing order was based on his finding that applicant's injuries, which occurred while applicant was driving his employer's truck to work, occurred outside "scope" of employment because applicant was driving without driver's license and contrary to employer's direction that applicant travel to work only as passenger in company truck with his son driving, but WCAB found that whether applicant was outside "scope" of his employment at time of injury was irrelevant to workers' compensation case under Labor Code § 3600, since "scope" of employment issue relates to employer's liability in tort cases under doctrine of respondeat superior, that applicant was authorized to travel to work in company truck, albeit as passenger rather than driver, that allowing applicant to travel to work in company truck benefitted employer, and that, even if applicant's injury occurred while authorized travel was conducted in unauthorized manner, injury arose out of and occurred in course of employment.

Injury AOE/COE--Going and Coming Rule--Employer-Furnished Transportation--WCAB upheld WCJ's finding that "going and coming" rule did not apply to bar applicant's claim for 6/26/2007 injuries sustained in motor vehicle collision while applicant was driving employer's truck to work even though applicant was not authorized to drive company truck because he had no driver's license, when applicant was expressly authorized to travel to work in truck as passenger with his son driving, WCAB found no evidence that vehicle was being used for anything other than work-related travel at time of accident, and WCAB did not find that applicant's driving of truck, rather than riding as passenger, constituted material deviation from his employment so as to take him out of course of employment.

S & B Surgery Center, Inc., S & B SPV, LLC, a wholly owned subsidiary of S & B Surgery Center v. W.C.A.B., Anastasi Construction Company, State Compensation Insurance Fund, (Henry Lopez)

74 Cal. Comp. Cases ***, 2009 Cal. Wrk. Comp. LEXIS 250

Petitions for Writ of Review--Time to File--Court of Appeal dismissed petition for writ of review because it was not timely filed, citing Lab. C. § 5950 and Camper v. W.C.A.B. (1992) 3 Cal. 4th 679, 12 Cal. Rptr. 101, 836 P.2d 888, 57 Cal. Comp. Cases 644.

Santa Teresita Hospital, Frontier Insurance Company v. W.C.A.B., Alison Tomeck

74 Cal. Comp. Cases ***, 2009 Cal. Wrk. Comp. LEXIS 251

Permanent Disability--Apportionment--WCAB held that applicant registered nurse sustained 50-percent PD, after apportionment, for 12/23/2008 industrial back injury, when WCAB relied on opinion of AME/orthopedic surgeon that applicant was 100-percent PTD from this injury, with 50-percent apportionment due to applicant's pre-existing non-industrial lupus disease; WCAB also found that opinion of AME/rheumatologist (that applicant was 100-percent PTD but that there should be 100-percent apportionment to applicant's lupus) was not substantial medical evidence because this AME was only physician who diagnosed collapsed vertebrae, instead of compression fracture at T-11, and this AME misinterpreted issue and reached wrong conclusion, since this AME framed issue as effect of this injury on applicant's lupus and should have framed issue as whether lupus worsened disability from this injury.

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