CALIFORNIA COMPENSATION CASES
Vol. 74, No. 10
October 2009

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

Appellate Court Compensation Cases

Esquivel v. W.C.A.B. (4th--D054197) 74 Cal. Comp. Cases 1213

Injury AOE/COE--Compensable Consequence Injuries--Employer bears risk of incurring compensability liability for workers' comp 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; here, applicant sustained injuries AOE/COE for which she received ongoing medical treatment, 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 applicant's new injuries occurred outside reasonable geographic area of defendant's risk for incurring compensability liability for such injuries

Rider v. W.C.A.B. (5th--F058162) 74 Cal. Comp. Cases 1227

Petitions for Writ of Review--Final Orders--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 Lab C Sec. 5950; here, WCAB on reconsideration remanded case to WCJ for further development of record, petition for writ of review lies only from WCAB decision that conclusively determines substantive issue basic to applicant's entitlement to benefits, and 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' comp benefits

Appellate Court Case Not Originating With Appeals Board

Catholic Healthcare West v. California Insurance Guarantee Association (5th--F055842) 74 Cal. Comp. Cases 1231

CIGA--Covered Claims--Court of Appeal, reversing Superior Court judgment in favor of CIGA, held in part of opinion certified for publication that claims presented to CIGA 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 Ins C Sec. 1063.1(c)(9)(B) that limits CIGA'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' comp 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, 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 Ins C Sec. 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

Federal Circuit Court Opinion of Related Interest

Pedroza v. BRB (9th Circuit--05-75449) 74 Cal. Comp. Cases 1255

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 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

Digests of WCAB Decisions Denied Judicial Review

Editorial Board members Hon. David Hettick, Robert G. Heywood, Hon. Kenneth B. Peterson, and Robert G. Rassp recommended the following writ denied cases for summarization in this issue.

City of Los Angeles v. W.C.A.B. (Tomkies) (2nd--B215850) 74 Cal. Comp. Cases 1264

Discrimination--Lab C Sec. 132a--WCAB Jurisdiction--WCAB held that it had jurisdiction over applicant/traffic officer's claim that his former employer, City of Los Angeles, violated Lab C Sec. 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 Lab C Sec. 132a and Supreme Court's decision in Morehouse v. Workers' Comp. Appeals Bd., found that there was sufficient nexus between applicant's employment and defendant's discriminatory act to trigger protective purpose behind Lab C Sec. 132a, and that fact that applicant was not employee of defendant at time of defendant's discriminatory conduct was not controlling, since language in Lab C Sec. 132a is not limited to only current employees, but rather applies to any employee and any employer

Discrimination--Lab C Sec. 132a--WCAB upheld WCJ's finding that defendant violated Lab C Sec. 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. by showing that defendant's failure to apply its own civil service rules to applicant because of his prior industrial injury caused him detriment

City of Pasadena v. W.C.A.B. (Anderson) (2nd--B214550) 74 Cal. Comp. Cases 1272

Presumption of Industrial Causation--Cancer--Peace Officers--WCAB, rescinding WCJ's finding of no compensable  injury, held that colon cancer suffered by applicant during period of employment as police officer (primarily motorcycle and traffic) from 9/3/83 through 2/14/2007 was presumed compensable under Lab C Sec. 3212.1 and that defendant failed to rebut presumption, when (1) applicant made a prima facie showing that he was employed in included capacity as police officer and developed or manifested cancer within statutory time frames, (2) report of treating physician, as substantiated by applicant's testimony, constituted substantial evidence to establish that applicant was exposed to known carcinogens, including benzene and asbestos, while present as first responder at numerous fires and in drug houses, for purposes of applying Lab C Sec. 3212.1 presumption, (3) AME's opinion regarding applicant's exposure to carcinogens did not constitute substantial evidence because opinion was based on incorrect legal theory regarding application of Lab C Sec. 3212.1 presumption and on inadequate medical history regarding applicant's exposures, and (4) applicant having established that colon was primary site of applicant's cancer, defendant failed to rebut presumption by showing that carcinogens to which applicant demonstrated exposure were not reasonably linked to disabling cancer

D. H. Smith Company, Inc. v. W.C.A.B. (Martinez) (1st--A125547) 74 Cal. Comp. Cases 1278

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' comp 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' comp case under Lab C Sec. 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

Pomona College v. W.C.A.B. (Robusto) (2nd--B215016) 74 Cal. Comp. Cases 1284

Statute of Limitations--Estoppel--WCAB held that applicant's claim for psychiatric and emotional injuries suffered on 7/16/2002 was not barred by Lab C Sec. 5405 statute of limitations and that defendant/college was estopped to assert statute of limitations as defense to applicant's claim, notwithstanding that applicant filed Application for Adjudication of Claim more than one year after date of injury, when applicant's injury resulted from accident in which intoxicated passenger was killed after jumping from electric utility truck driven by applicant on defendant's premises during his employment with defendant as assistant football coach, and WCAB found that (1) defendant had immediate notice of accident and applicant's resulting psychological distress, as applicant relayed his distress to college administrator and to defendant's human resources department, was told to seek counseling through defendant's Employee Assistance Program, and obtained psychological services through Employee Assistance Program for seven months, (2) despite having notice of applicant's injury, defendant failed to provide applicant with claim form as required under Reynolds v. W.C.A.B., and (3) finding of liability was not precluded by decision in Wagner v. Allied Aerospace, since applicant provided all  information he had regarding his injury to defendant within days following injury

Rasmussen v. W.C.A.B. (2nd--B217713) 74 Cal. Comp. Cases 1290

Employment Relationships--Independent Contractors--WCAB held that applicant/nuclear cardiology technologist who suffered injuries to her right knee, hip, shoulder, and groin on 3/24/2008 was independent contractor, not employee, on date of her injury pursuant to factors in S.G. Borello & Sons, Inc. v. Dept. of Industrial Relations, despite applicant's testimony that she believed she was employee, when (1) although defendant provided supplies and equipment for applicant's work, applicant controlled  manner in which she performed work, which was so highly skilled and specialized that applicant required state-issued license and completion of continuing education, (2) applicant was engaged in distinct occupation, (3) applicant performed same specialized services for another physician and healthcare company, (4) applicant maintained her own malpractice insurance and indicated that she, not defendant, was ultimately liable for her own professional conduct, (5) applicant was paid for her work by day and could leave at any time once her work was completed, regardless of how many hours she worked, (6) applicant billed defendant with invoice, which employees do not typically do, and received 1099 tax form, not W-2, and (7) applicant received no holiday pay, sick leave, or health benefits, which defendant's employees did receive

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