Here's a roundup of cases to be covered in the upcoming August 2008 issue of California Compensation Cases.
CALIFORNIA COMPENSATION CASES
Vol. 73, No. 8
August 2008
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
Appellate Court Compensation Cases
Duncan v. W.C.A.B. (Silva) (3rd--C056727) - 73 Cal. Comp. Cases 1197
UEBTF--Sanctions--Court of Appeal, granting defendant's petition for writ of review and annulling WCAB decision, held that limitation of liability specified by Lab C § 3716.2 precludes imposition of sanction against UEBTF pursuant to Lab C § 5813 for bad-faith actions or tactics that are frivolous or intended solely to cause unnecessary delay, when Court of Appeal found that applicant's attorney sought Lab C § 5814.5 penalty against UEBTF for failure to timely pay award of attorney's fees, that Lab C § 3716.2 provides that UEBTF "shall pay the claimant only such benefits allowed . . . that would have accrued against an employer properly insured for workers' compensation liability" and is not liable for "any penalties," that applicant's attorney subsequently filed amended petition for sanctions pursuant to Lab C § 5813 for delay in payment of attorney's fees, that sanction provision of Lab C § 5813 is designed to protect against litigation abuses, to help WCJs and WCAB manage their calendars and provide for expeditions processing of workers' comp cases, not to penalize delayed payments of awards, that, in any event, words "sanction" and "penalty" are used interchangeably in both common and legal usage, that this common meaning of "sanction" as "penalty" is consistent with legislative purpose in enacting Lab C § 3716.2, which specifies that UEBTF is to pay "only" workers' comp "benefits" and is "not liable for any penalties," that UEBTF has no economic incentive to engage in litigation abuses, that sanctions would deplete limited resources of UEBTF, thereby undermining its ability to pay workers' comp benefits, and that sanction cannot be construed as workers' comp "benefit"
E & J Gallo Winery v. W.C.A.B. (Rubio) (5th--F055156) - 73 Cal. Comp. Cases 1206
PD--Apportionment--Burden of Proof--Court of Appeal, denying defendant's petition for writ of review, held that defendant did not meet its burden of proving that applicant's PD award should have been apportioned to prior injury, when Court of Appeal found that applicant sustained 4/22/2004 injury AOE/COE to his left shoulder, that applicant was awarded 15-percent PD with no basis to apportion award to any prior injury, that defendant bears burden of proving existence of prior PD award and extent of overlap between prior disability and current disability, that there was no evidence in record that applicant received prior PD award, and that, even assuming that prior award existed, defendant did not demonstrate that prior disability overlapped with current disability
Mt. Diablo Unified School District v. W.C.A.B. (Rollick) (1st--A121204) - 73 Cal. Comp. Cases 1212
TD--Two-Year Limitation on TD Indemnity--Ed C § 44043 Payments--Court of Appeal, annulling order and opinion of Appeals Board, held that, for purposes of determining two-year limitation period on TD indemnity mandated by Lab C § 4656(c)(1), TD payments commenced when school district paid injured employee her normal wages under Ed C § 44043, when Court of Appeal found that applicant sustained injury AOE/COE in 6/2004, that first disability payment was made in 2/2005, that in 2/2007 defendant sought order terminating further liability for TD indemnity, based on Lab C § 4656(c)(1), that parties stipulated that 85.71 weeks of defendant's payments were made pursuant to Ed C § 44043, which directs school district to pay normal wage of injured employee receiving TD benefits by supplementing TD benefits with employee's accrued leave time, that entitlement to Ed C § 44043 benefits is contingent on payment of workers' comp TD benefits, and, thus, that date on which TD payments commence can be no later than date of first payment under Ed C § 44043
Virginia Surety Co. v. W.C.A.B. (Echelard) (5th--F055253) - 73 Cal. Comp. Cases 1218
PD--Rating--Application of 1997 Schedule for Rating PD--Court of Appeal, denying defendant's petition for writ of review, held that applicant's PD was to be rated using 1997 Schedule for Rating PD because Lab C § 4660(d) exception to use of 2005 PD Rating Schedule existed, i.e., pre-2005 report of treating physician indicated existence of PD, when Court of Appeal rejected Vera v. W.C.A.B. and followed instead Genlyte Group v. W.C.A.B. (Zavala) and Zenith Insurance Co. v. W.C.A.B. (Cugini), to hold that pre-2005 treating physician's report need not state that injured employee is P&S in order for it to contain indication of PD, and Court of Appeal found that applicant sustained injury AOE/COE on 10/29/2004, that treating physician's 12/20/2004 report, coupled with physician's 7/24/2007 deposition explaining that report, constituted substantial evidence of pre-2005 indication of PD, that defendant offered no legal support for its proposition that pre-2005 medical report may be considered only "within its four corners," that physician's report stated physician's "relatively guarded prognosis," that implant was "desirable," that physician had long discussion with applicant and his mother about "implants and their longevity [and] potential problems in the long term," and that physician told them that "[a]ctivity modifications and so forth for the rest of [applicant's] life are encouraged," that in 2007 deposition physician explained that his 2004 words "relatively guarded prognosis" referred to applicant's "potential for some decrease or loss of motion and subsequent decrease and loss of function, and potentially the possibility of ongoing pain; and the fact that, with this type of injury, this far after the injury the results of surgical treatment would probably not be extremely good," that WCAB found that treating physician had "opined that applicant would have some permanent disability," and that "WCAB's reasoning and [the treating physician's] medical reporting" meant that "the record supports `an indication of permanent disability' permitting the use of the 1997 PDRS"
Supreme Court Case Not Originating With Appeals Board
Ramirez v. Nelson (S143819) - 73 Cal. Comp. Cases 1225
Negligence--Duty of Care--Negligence Per Se--Moving or Operating Equipment Near Power Lines--Supreme Court, reversing judgment of Court of Appeal, held that homeowners neither had nor breached any statutory duty of care owed to deceased worker under Pen C § 385(b), which provides that "[a]ny person who either personally or through an employee or agent, or as an employee or agent of another, operates . . . or moves any tools . . . [or] equipment . . . within six feet of a high voltage overhead conductor is guilty of a misdemeanor," when Supreme Court found that worker for unlicensed contractor, who, through his own conduct, breached duty of care embodied in Pen C § 385(b), was killed while trimming trees on defendant homeowners' property, was not one of class of persons for whose protection statute was adopted, that homeowners had no control over manner in which unlicensed contractor or his workers performed their job, that, even if homeowners were deemed to be deceased worker's employers pursuant to Lab C § 2750.5, Pen C § 385(b) did not give rise to any special standard of conduct or duty of care owed by them to deceased worker to ensure that tree trimming work would not result in his death or injury, that plaintiffs' wrongful death suit was grounded in common-law tort of negligence and was properly submitted to jury based on evidence of homeowners' allegedly negligent acts or omissions that may have caused or contributed to deceased worker's fatal injuries, and that trial court properly refused to instruct on Pen C § 385(b) and plaintiffs' negligence per se theory
Appellate Court Case Not Originating With Appeals Board
Los Angeles County Professional Peace Officers Association v. County of Los Angeles (2nd--B200582) - 73 Cal. Comp. Cases 1235
Discrimination--Lab C § 4850--Lab C § 132a--Court of Appeal held that defendant's policy regarding "cash out" payments of excess accumulated vacation hours to sheriff's deputies who were not on Lab C § 4850 leave as result of injuries AOE/COE, as opposed to its policy regarding such payments to deputies who were on such leave, discriminated against latter group in violation of Lab C §§ 4850 and 132a, when Court of Appeal found that deputy who has accumulated more than 320 hours of vacation time may defer hours in excess of 320 to following year, that, if excess hours are not used by end of that year, defendant pays deputy for those hours, that, if this "cash out" payment takes place during deputy's final compensation measurement period (period used to determine salary for purposes of retirement benefits), "cash out" payment is pensionable income, i.e., part of calculation of deputy's salary for purposes of retirement benefits, but that defendant will not "cash out" deferred excess hours of deputy on Lab C § 4850 leave at any time during deferral year, that excess hours remain in such deputy's account, but that such deputy who retires in year following Lab C § 4850 leave will never have opportunity to "cash out" or use those hours, that such deputy is compensated for those hours at retirement, but that this compensation is not pensionable income, so that deputy who has accumulated excess vacation hours, but who has never been injured on duty, and deputy who retires after taking leave due to non-job-related injury, might collect more in retirement benefits than deputy who retires after having suffered injury AOE/COE, even if all deputies have same employment history in terms of rank, years of experience, etc.
Digests of WCAB Decisions Denied Judicial Review
Editorial Board members Hon. Frederick W. Bray, William A. Herreras, John W. Miller, and Hon. Ronald W. Smitter recommended the following writ denied cases for summarization in this issue.
Bejarano v. W.C.A.B. (4th--E046236) - 73 Cal. Comp. Cases 1244
C&R Agreements--WCAB reversed WCJ and held there was no final agreement and no properly executed C&R agreement and rescinded WCJ's order approving C&R, when WCAB found that applicant claimed cumulative trauma injury AOE/COE to upper extremities, shoulders, and back through 4/7/2005 and specific injury AOE/COE on 6/4/2001 to low back, that employer was insured by three insurers at time of these injuries, that applicant and insurers reached agreement to resolve both injuries, that C&R was signed by applicant and her attorney and one insurer, that another insurer unilaterally attempted to modify agreement by adding addendum, that applicant died between time of signing C&R and date WCJ issued order approving C&R, that there was no meeting of minds among applicant and three insurers on issues of contribution, responsibility for lien claims, credit for prior payments by various defendants, and administration of claims, that parties never reached final agreement on all terms and conditions of settlement on these issues, and that C&R submitted to WCJ was not signed by all parties
Granite State Insurance Co. v. W.C.A.B. (Torres) (2nd--B205172) - 73 Cal. Comp. Cases 1249
CIGA--Covered Claims--Other Insurance--General and Special Employers--WCAB held that CIGA, on behalf of general employer's insolvent insurance carrier, was not liable for benefits owing to applicant with 1/5/2001 admitted back, neck, and shoulder injuries, since special employer's insurance policy constituted "other insurance" available to applicant under Ins C § 1063.1(c)(9), as joint and several liability between general and special employers was not precluded under Ins C § 11663, there was no evidence of contractual agreement between general and special employers under Lab C § 3602(d) that would preclude special employer's liability, and existence of contractual agreement could not be inferred from payment of benefits by general employer's insolvent carrier
Mitchell v. W.C.A.B. (2nd--B205838) - 73 Cal. Comp. Cases 1253
Psychiatric Injuries--Good-Faith Personnel Actions--WCAB held that applicant's claim for 7/10/98 psychiatric injury was barred by Lab C § 3208.3(h), when WCAB found that AME indicated that 75 percent of applicant's psychiatric injury was caused by special employer's decision not to re-hire applicant following its investigation into dispute involving applicant and two co-workers that revealed that applicant had inappropriately grabbed co-worker's arm during dispute, that this was one of several incidents in which applicant was involved, that decision not to re-hire applicant was personnel action, and that credible testimony offered by special employer's vice president of human resources, who directed investigation, showed that personnel action was lawful, non-discriminatory, and in good faith
Earnings--Evidence--WCAB held that applicant's earnings were correctly computed, based on wage statements in evidence, rather than on salary that applicant would have earned were she hired by special employer, and that issue of earnings was res judicata because WCAB had already rendered decision on this issue, which was not timely disputed by applicant and was final
San Francisco Bay Area Rapid Transit v. W.C.A.B. (Garcia) (1st--A121294) - 73 Cal. Comp. Cases 1257
Injury AOE/COE--Employment-Related Educational Activities--WCAB held that left knee injury sustained by applicant on 5/17/2006, during off-duty participation in tactical handgun instructor course, arose out of and in the course of his employment as police sergeant and chief firearms instructor for BART, when WCAB found that applicant was partially reimbursed by defendant for cost of course participation, and that participation by applicant, whose job included acting as firearms instructor, was of obvious benefit to defendant
Scott v. W.C.A.B. (2nd--B205069) - 73 Cal. Comp. Cases 1261
Petitions to Reopen--Newly Discovered Evidence--WCAB, reversing WCJ's denial of defendant's motion to reopen record to admit surveillance videos of applicant and medical opinion regarding these videos, ordered admission of videos, when WCAB found that applicant sustained cumulative trauma injury AOE/COE to both upper extremities, neck, and back, from 4/24/99 through 4/6/2001 while working for defendant as order filler, that defendant requested reopening of record after trial but before submission of matter, based on newly discovered evidence in form of videos, that defendant made substantial efforts to obtain surveillance video of applicant before MSC and trial, in form of at least four attempts in 2004 and 2005, but that applicant could not be seen at her residence on those occasions, that defendant acted with reasonable diligence within meaning of Lab C §§ 5502(d)(3) and 5903(d) and 8 CCR § 10856, that videos were relevant on issue of rating applicant's PD and were not cumulative of other evidence on same issue already in record, and that further proceedings could include applicant seeking medical comments on videos and offering testimony on her activities depicted in videos
Tri-Counties Regional Center v. W.C.A.B. (Hope) (2nd--B208508) - 73 Cal. Comp. Cases 1266
Employment Relationships--Employees--WCAB, reversing WCJ's finding that applicant/physician alleging cumulative injury through 1/31/2007 was independent contractor at time of injury, held that applicant was employee, when WCJ's finding of independent contractor status was based primarily on contract between applicant and defendant stating that applicant was independent contractor, but WCAB found that contractual statement was not determinative of applicant's status, that finding of employee status was supported by evidence that defendant had control over manner and means of work performed by applicant, since defendant scheduled applicant's appointments with patients and provided her office, medical supplies, equipment, and support staff, that applicant did not have her own business, and that applicant was paid hourly as opposed to by appointment or procedure.
© Copyright 2008 by Matthew Bender & Company, Inc., a member of the LexisNexis Group. All rights reserved.