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Welcome to the Resources Section. Here you will find a plethora of original materials as referenced in the print edition.
This Alphabetical listing of the full text of Appellate Court Decisions is updated upon release of each edition of the Appeals Board Reporter.
STATUTE OF LIMITATIONS–Date of cumulative injury–Labor Code §5412–The date of injury in cases of occupational disease or cumulative injuries is the date upon which the employee first suffered disability and either knew, or in the exercise of reasonable diligence should have known that such disability was caused by his present or prior employment. Whether an employee knew or should have known the disability was industrially related is generally a question of fact. (See Nielsen v. Workers' Comp. Appeals Bd. (1985) 164 Cal.App.3d 918.)STATUTE OF LIMITATIONS–Date of cumulative injury–Labor Code §5412–I is the employer's burden to prove the applicant's knowledge.
TEMPORARY DISABILITY–Labor Code §4656(c)(1)– When independent injuries result in concurrent periods of temporary disability, the 104-week/two-year limitation likewise runs concurrently.
California Family Rights Act does not require an employer to submit disputes regarding an employee's entitlement to medical leave to a third health care provider and the fact that an employee is working for a second employer does not mean he or she is not incapacitated from working in his or her current job.
Industrial Disability Leave (IDL) paid to certain state employees constitutes temporary disability indemnity for the purpose of the Labor Code §4656(c)(1) limitation on aggregate temporary disability payments.
FELA case: Whether a particular railroad appliance comes within the purview of the Safety Appliance Act is a question of law.
TEMPORARY DISABILITY–Labor Code §4656(c)(1)– When two independent injuries result in concurrent periods of temporary disability, the 104-week/two-year limitation likewise runs concurrently.
CIVIL LITIGATION–Products liability case§In a case of first impression the Supreme Court adopted the "sophisticated user" doctrine which provides that a product manufacturer is not liable to a sophisticated user of its product for failure to warn of a risk of harm where the user knew or objectively should have known of such risk.
EMPLOYMENT–General v. special employee relationship–The right to control an employee is the primary consideration in determining whether a special relationship exists. (See Kowalski v. Shell Oil Co. (1979) 23 Cal.3d 575.) What is relevant is the right to supervise and not whether the right is exercised. Control need not be exercised. It is sufficient if the right to direct the details of the work is present. (See Wedeck v. Unocal Corp (1997) 59 Cal.App.4th 848.)
California Department of Corrections and Rehabilitation ____Cal.App.4th ____, 10 WCAB Rptr. 10,137
Virginia Brooks v. Workers' Compensation Appeals Board, California Department of Corrections and Rehabilitation ____Cal.App.4th ____, 10 WCAB Rptr. 10,137Industrial Disability Leave (IDL) paid to certain state employees constitutes temporary disability indemnity for the purpose of the Labor Code §4656(c)(1) limitation on aggregate temporary disability payments.
EXCLUSIVE REMEDY–School volunteers as employees of school district–Labor Code §3364.5 does not require that the resolution a school district passes to deem volunteers employees of the school district for purposes of entitlement to workers' compensation benefits contain a list of the specific volunteers entitle to such benefits.
CIVIL LITIGATION−Doctrine of fair procedure−The common law doctrine of fair procedure protects against arbitrary decisions by private organizations under certain circumstances. When the doctrine applies, private entities may not expel or exclude qualified persons without acting in a manner that is substantially rational and procedurally fair. (See Potvin v. Metropolitan Life Ins. Co. (2000) 22 Cal.4th 1060.) [In this case, an occupational medical clinic was denied admission to a preferred provide network operated by State Compensation Insurance Fund in violation of the fair procedure doctrine.]
A cumulative chart tracking every writs granted case that has appeared in Appeals Board Reporter. Chart includes the case name, Appeals Board Repoter citation, DCS/SC Docket No., and disposition/status.
This table, updated upon the release of each issue of Appeals Board Reporter, lists every appellate court opinion summarized in the Appeals Board Reporter and shows the Official Reporter citation and the Appeals Board Reporter citaion.
PERMANENT DISABILITY−Old vs. New rating schedule−Labor Code §4660(d)−A medical-legal report issued before January 1, 2005 need not state that the claimant is permanent and stationary in order to trigger the old rating schedule. It is only necessary for the pre-2005 report to indicate that the claimant has suffered a permanent impairment of earning capacity, a permanent impairment of the normal use of a body part, or a permanent competitive handicap in the open labor market. (See Genlyte Group LLC v. Workers' Comp. Appeals Bd. (Zavala) (2008) 158 Cal.App.4th 705, 10 WCAB Rptr. 10,003.)
COMPROMISE AND RELEASE−Interpretation of release language−The interpretation of a compromise and release is a two-step process: (1) The court provisionally receives all credible evidence concerning the parties' intentions to determine ambiguity, i.e., whether the language is reasonably susceptible to the interpretation urged by the party and (2) if in light of the extrinsic evidence the court decides the language is reasonably susceptible to the interpretation urged, the extrinsic evidence is then admitted to aid in interpreting the compromise and release. (See Beard v. Goodrich (2003) 110 Cal.,App.4th 1031.) [In this case, the express language of the compromise and release stating that the injured worker was releasing all civil , administrative, federal or state claims against the employer could not reasonably be read to mean "except civil or state claims."]
CIVIL LITIGATION−Employment discriminaion−Fair Employment and Housing Act−Government Code §12940−A wrongful termination case filed under the Fair Employment and Housing Act for violation of public policy may be based on a violation of Labor Code §132a. [In this case there was no discrimination because the employee was not physically able to perform regular job.] See Jordan v. Workers' Comp. Appeals Bd. (1985) 175 Cal.App.3d 162.)
EMPLOYMENT–Status as an employee vs. independent contractor–For purposes of workers' compensation insurance, persons who make deliveries of newspapers for a newspaper distributor are employee.
APPORTIONMENT–Apportionment for prior disability–Labor Code §4664–The percentage of a previous award of permanent disability must be subtracted from a newer award of permanent disability. (See Brodie v. Workers' Comp. Appeals Bd. (2007) 40 Cal.4th 1313, 9 WCAB Rptr. 10,142.)
EXCLUSIVE REMEDY–a workers' compensation claimant's lawsuit against his employers' workers' compensation insurer for causes of action for invasion of privacy, intentional and negligent infliction of mental distress, disability/age discrimination on the basis that the Workers' Compensation Appeals Board had exclusive jurisdiction.
CIVIL LITIGATION–Employer liable for retaliation under FEHA but nonemployer individuals are not personally liable for their role in retaliation
CRIMINAL PROCEEDINGS–A prison inmate who assaulted a prison guard was ordered to pay restitution for the workers' compensation benefits the prison paid to the guard.
PERMANENT DISABILITY–Old vs. new rating schedule–Labor Code §4660(d)–A comprehensive medical-legal report or treating physician's report does not have to state the injured worker's condition has reached permanent and stationary status to indicate the existence of permanent disability within the meaning of Labor Code §4660(d). (See Genlyte Group LLC and St. Paul Travelers v. Workers' Compensation Appeals Board (Maria Zavala) ____Cal.App.4th ____, 10 WCAB Rptr. 10.003.)
PETITION FOR RECONSIDERATION−Petition for reconsideration of an Opinion and Order of an Appeals Board panel must be filed with the Reconsideration Unit of the Appeals Board in San Francisco office. A petition for reconsideration timely but mistakenly filed in the San Francisco District Office should be deemed timely filed for jurisdictional purposes. (See Shipley v. Workers' Comp. Appeals Bd. (1992) 7 Cal.App.4th 1104.)
10 WCAB Rptr. 10,042WCAB PROCEDURE–Reliance on a single physician's report–The opinion of a single physician can suffice to support the Appeals Board's determinations. (See Smith v. Workers' Comp. Appeals Bd. (1969) 71 Cal.2d 588.) [In this case the applicant failed to show that the reliance on the single physician opinion was unreasonable.]WCAB PROCEDURE–Petition for reconsideration of amended findings and award–If the amendment of the award is determined to result from clerical error, a petition for reconsideration must be filed within 20 days of the original findings and award. If the amendment is determined to constitute a substantial or material change in the award, then the petition for reconsideration must be filed within 20 days of the amended findings and award. (See Nestle Ice Cream Co. v. Workers' Comp. Appeals Bd. (Ryerson ) (2007) 146 Cal.App.4th 1104, 9 WCAB Rptr. 10,214.)
This table, updated upon the release of each issue of Appeals Board Reporter, lists every appellate court opinion summarized in the Appeals Board Reporter and shows the Official Reporter citation and the Appeals Board Reporter citaion.
Continued Application Of The Rule In Wilkinson Is Not Consistent With The New Apportionment Rules Based On Causation.
Multiple penalty case-When there is an unreasonble delay in paying an award,a separate 5814 penalty is imposed for each type of benefit delayed. Once the delay is determined to be unreasonable, the WCAB has no discretion in calculating the penalty.
Civil Litigation–Asbestos Litigation–The Locomotive Boiler Inspection Act (49 United States Code §20702 Et Seq.) Exempts Railroad Employees' State Law Actions Against Manufacturers Of Locomotives Containing Asbestos Materials. (See Napier V. Atlantic Coast Line (1925) 272 U.S. 605.)
PSYCHIATRIC INJURY−Labor Code §3208.3(b)(1)−In order to establish that a psychiatric injury is compensable, an employee must demonstrate by a preponderance of evidence that "actual events" of employment were predominant as to all causes combined of the psychiatric injury. [In this case the disdainful reactions of co-workers to applicant's abusive conduct toward them were neither "actual events of employment" nor the "predominant" cause of applicant's psychiatric injury.]
WCAB PROCEDURE–Jurisdiction to enforce an award more than five years post injury–The Appeals Board has continuing jurisdiction over all its orders, decisions and awards. While the Appeals Board's power to alter prior decisions is limited to five years from the date of injury under Labor Code §§5410 and 5804, it authority to enforce awards and to conduct ancillary proceedings is not time-barred. (See Barnes v. Workers' Comp. Appeals Bd. (2000) 23 Cal.4th 679, 2 WCAB Rptr. 10,267.)
PERMANENT DISABILITY−Application of old vs. new rating schedule−Labor Code §4066(d)−The injured worker's permanent and stationary status is not required before a physician's report can indicate the existence of permanent disability under Labor Code §4660(d). (See Genlyte Group LLC v. Workers' Comp. Appeals Bd. (Zavala) (2008) _____Cal.App.4th ____, 10 WCAB Rptr. 10,003.)PERMANENT DISABILITY−Application of old vs. new rating schedule−Labor Code §4066(d)−The duty of the employer to give notice of permanent disability indemnity pursuant to Labor Code §4061(a) arises with the last payment of temporary disability indemnity. (See Pendergrass v. Duggan Plumbing (2007) 9 WCAB Rptr. 10,118 [en banc]; Energetic Painting and Drywall, Inc. v. Workers' Comp. Appeals Bd. (Ramirez) (2007) 153 Cal.App.4th 633, 9 WCAB Rptr. 10,251.)
CIVIL LITIGATION–General/Special employer determination–Where an employer sends an employee to do work for another person, and both have the right to exercise certain powers of control over the employee, the employee may be held to have two employers––his original or "general" employer and a second, the special employer. (See Kowalski v. Shell Oil Co. (1979) 23 Cal.3d 168.)CIVIL LITIGATION–Factors to be considered in determining special employer/employee relationship–The relevant factors to be considered in determining whether a special employment relationship exists include: (1_ The right to control and direct the activities of the alleged employee or the manner and method in which the work is performed, whether exercised or not; (2) whether the borrowing employer's control over the employee and the work he is performing extends beyond mere suggestion of details or cooperation; (3) whether the employee is performing the special employer's work; (4) whether there was an agreement, understanding, or meeting of the minds between the original and special employee; (5) whether the employee acquiesced in the new work situation; (6) whether the original employer terminated his relationship with the employee; (7) whether the special employer furnished the tools and place for performance; (8) whether the new employment was over a considerable length of time; (9) whether the borrowing employer had the right to fire the employee; and (10) whether the borrowing employer had the obligation to pay the employee. (See Wedeck v. Unocal Corp. (1997) 59 Cal.App.4th 848.)
WCAB JURISDICTION–Medical-legal liens–A psychologist's medical-legal liens filed with the WCAB as an expert witness on behalf of workers who filed workers' compensation claims and in addition filed third party civil actions, was limited to adjudicating the medical-legal liens in the workers' compensation system and could not recover payment in a civil action against the workers' attorneys despite the fact that the psychologist withdrew the liens in the workers' compensation case.
WCAB PROCEDURE–Effect of no contest plea to making a false or fraudulent statement in seeking workers' compensation benefits–Insurance Code §1871.4(a)(1)–A non contest plea to a misdemeanor misrepresentation offense can not be used in a workers' compensation proceeding under Penal Code §1016(3).WCAB PROCEDURE–Effect of no contest plea to making a false or fraudulent statement in seeking workers' compensation benefits–Entitlement to receive further compensation benefits after a fraud conviction necessarily will require: (1) an actual. Otherwise compensable industrial injury; (2) substantial medical evidence supporting an award of compensation not stemming from the fraudulent misrepresentation; and (3) that claimant's credibility is not so destroyed as to make claimant unbelievable concerning any disputed issue in the underling compensation case. (See Tensfeldt v. Workers' Comp. Appeals Bd. (1998) 66 Cal.App.4th 116.) [In this case the applicant was entitled to recover workers' compensation benefits because (1) the employer admitted applicant had sustained two industrial injuries; (2) the medical reporting of the treating physician and QME unrelated to the misrepresentations substantiated the teen for temporary disability indemnity and medical treatment; and (3) the WCJ did not find the misdemeanor plea so destroyed applicant's credibility as to make her unbelievable.]
Late benefit payment which fails to include interest in that payment, only a single penalty may be imposed under Labor Code section 5814.
The Commission on Health and Safety and Workers' Compensation is recommending the repeal of baseball Arbitration. The CHSWC consultants' report on this final offer arbitration can be downloaded here.
Proposed adoption of the Insurance Commissioner's regulations pertaining to pure premium rates for workers' compensation insurance, the Experience Rating Plan, and the Uniform Statistical Reporting Plan to be effective on January 1, 2000.
PERMANENT DISABILITY–Old vs. new rating schedule–Labor Code §4660(d)–A comprehensive medical-legal report, like a treating physician's report, must contain an indication of the existence of permanent disability to trigger use of the old rating schedule. (See Costco Wholesale Corp. v. Workers' Comp. Appeals Bd. (Chavez) (2007) 151 Cal.App.4th 750, 9 WCAAB Rptr. 10,184.) PERMANENT DISABILITY–Old vs. new rating schedule–Labor Code §4660(d)–A comprehensive medical-legal report or treating physician's report does not have to state the injured worker's condition has reached permanent and stationary status to indicate the existence of permanent disability within the meaning of Labor Code §4660(d).
Klare Richardson-Tunnell v. School Insurance Program for Employees and Lucia Mar Unified School District - _____Cal.App.4th _____,10 WCAB Rptr. 10,006 CIVIL LITIATION–Governmental Investigatory immunity–Government Code §821.6–Video tape surveillance of workers' compensation claimant by a public entity is barred by the governmental investigatory immunity and the claimant can not sue for damages based on an invasion of privacy.
Exclusive Remedy—Bunkhouse Rule—When An Employee Is Injured While Living On The Employer'S Premises, The Course Of Employment Requirement Of Labor Code Section 3600(A) Is Satisfied If The Employment Contract Of The Employee Contemplates, Or The Work Necessity Requires, The Employee To Reside On The Employer'S Premises. (See Aubin V. Kaiser Steel Corp. (1960) 185 Cal.App.2D 658.) Exclusive Remedy—Bunkhouse Rule—Unless The Cause Of An Injury Is So Remote That It Cannot Be Deemed Incidental To, And Thus Arising Out Of, The Employment, An Injury Occurring In Employer-Furnished Housing In The Course Of Employment Ordinarily Arises Out Of The Employment. (Modin V. Industrial Acc. Com. (1931) 211 Cal.2D 90.)
Exclusive Remedy—Bunkhouse Rule—The Award Of Compensation Under The Bunkhouse Rule Does Not Turn On Whether The Employee Is Injured On His Or Her Day Off, Or After Work, Or While Engaged In A Purely Personal Activity, As Long As There Is Some Causal Connection Between The Employment And The Injury, And The Injury Is Sustained In The Course Of Employment.
WCAB PROCEDURE–Burden of proof–The burden of proving an injury is compensable as arising out of and in the course of employment falls on the employee. (See Wright v. Beverly Fabrics, Inc. (2002) 95 Cal.App.4th 346, 4 WCAB Rptr. 10,035.) [In this case the employee failed to prove an erectile dysfunction disorder was the result of his industrial injury to his knees and back.]
APPORTIONMENT–Labor Code §4663–Apportionment to age, per se, runs afoul of the state antidiscrimination law. [In this case the applicant contended it was error to apportion disability to age and preexisting osteoporosis, but the Court of Appeal found that the specific apportionment finding was not supported by substantial evidence and returned the matter to the trial level for further proceedings and evidentiary findings.]
PERMANENT DISABILITY−Labor Code §4660(d)−Application of the Old vs. New Permanent Disability Rating Schedule−The new rating schedule applies to injuries prior to January 1, 2005, if none of the exceptions of Labor Code §4660(d) are applicable.
PERMANENT DISABILITY−Labor Code §4660(d)−Application of the Old vs. New Permanent Disability Rating Schedule−The new rating schedule applies to injuries prior to January 1, 2005, if none of the exceptions of Labor Code §4660(d) are applicable.
CIVIL LITIGATION–Consolidation of asbestos cases for trial–Code of Civil Procedure §1048–The criteria for evaluating whether a trial court has abused its discretion in consolidating asbestos case include: (1) common worksite, (2) similar occupation, (3) similar time of exposure, (4) type of disease, (5) whether injured workers are living or deceased, (6) status of discovery in each case, (7) whether all plaintiffs are represented by the same counsel, and (8) type of cancer alleged.
APPELLATE PROCEDURE–Time limit to file a petition for writ of review–Labor Code §5950–When a petition for writ of review is not filed within 45 days of the Appeals Board's decision, the appellate court has not jurisdiction and the petition must be denied. (See Southwest Airlines v. Workers' Comp. Appeals Bd. (1991) 234 Cal.App.3d 1421.)
WCAB PROCEDURE–Summary of evidence–Labor Code §5313–A WCJ shall, within 30 days after the case is submitted, issue and serve a findings and order, along with a summary of the evidence received and relied upon and the reasons or grounds upon which the determination is made. When a summary of the evidence is not prepared, the appellate court is unable to conduct a meaningful review of the Appeals Board's order, and the appellate court properly annulled the order and remanded the case to the Appeals Board for preparation of a summary of the evidence and a new order based on that evidence.
This 50 page document describes State Compensation Insurance Fund's recommendations for fixing the laws that govern workers' comp in California.
Landmark Appellate Court Opinion on Workers' Compensation Penalties. County of San Luis Obispo v. Workers' Compensation Appeals Board; Russell Barnes
When attorneys separately representing the employer and employee each actively prosecute an action against a third party, the fee of the employee's attorney must come out of the employee's share of any recovery.
The following legislation was signed into law by Governor Davis prior to the October 14, 2001 deadline and will take effect January 1, 2002.
CIVIL LITIGATION–Relation back doctrine–Wrongful death and loss of consortium claims do not relate back to the decedent's original personal injury claim. (See Bartalo v. Superior Court (1975) 51 Cal.App.3d 526.) [In this case the plaintiff's husband filed a lawsuit alleging non-cancerous asbestos injuries. Four years after the lawsuit was filed, he developed asbestos-linked lung cancer and died. This wife then filed an amended complaint asserting wrongful death claims for herself and on behalf of her children. The plaintiffs failed to secure a trial on the amended complaint within five years of filing the original complaint and the entire lawsuit was found by the Court of Appeal to have been erroneously dismissed.]
INJURY AOE/COE–Commercial Traveler Rule–oes commercial traveler status arise by virtue of an employee's unilateral, voluntary decision to engage in an activity which offers a minor benefit to the employer?INJURYAOE/COE–Special Mission Exception–Can an employee create a special mission by his own unilateral action which action was not expected or anticipated by the employer?
PERMANENT DISABILITY–Application of old vs. new rating schedule–Labor Code §4660(d)–The new rating schedule applies when none of the exceptions in Labor Code §4660(d) apply. [In this case a March 15, 2004 injury was properly rated under the new rating schedule because no comprehensive medical-legal report was obtained prior to January 1, 2005 and the employer was not required to give the Labor Code §4061 notice prior to January 1, 2005. (See Costco Wholesale Corp. v. Workers' Comp. Appeals Bd. (Chavez) (2007) 151 Cal.App.4th 148, 9 WCAB Rptr. 10,184.)
WCAB PROCEDURE–Summary of evidence–Labor Code §5313–A WCJ shall, within 30 days after the case is submitted, issue and serve a findings and order, along with a summary of the evidence received and relied upon and the reasons or grounds upon which the determination is made. When a summary of the evidence is not prepared, the appellate court is unable to conduct a meaningful review of the Appeals Board's order, and the appellate court properly annulled the order and remanded the case to the Appeals Board for preparation of a summary of the evidence and a new order based on that evidence.
WCAB PROCEDURE–Statute of limitations–Under Labor Code §5405, an injured worker has one year from the date of injury to file a workers' compensation claim. The statute of limitations is the same for cumulative trauma cases except that the date of injury is the date on which the employee first suffered from the disease or injury and, either knew, or in the exercise of reasonable diligence should have known, that the disability was caused by employment. PERMANENT DISABILITY–Where successive injuries to the same part of the body became permanent and stationary at the same time, the injured worker is entitled to a permanent disability award based on the combined disability at the permanent disability rates applicable at the time the last injury of the successive injuries giving rise to such benefits occurred. (See Parker v. Workers' Comp. Appeals Bd. (1992) 9 Cal.App.4th 1636.)
CIVIL LITIGATION–Attorney-client privilege–Evidence Code §952 extends the attorney client privilege to confidential communications shared with those who are present to further the interest of the cline in the consultation or those whom disclosure is reasonably necessary for the transmission of the information or the accomplishment of the purpose for which the lawyer is consulted. A determination must be made as to whether the employees to whom legal advice is relayed had a need to know the disclosed information to further the purpose of the legal consultation.
INJURY AOE/COE–An injury sustained by an employee acting in response to an emergency or other situation, whether it is classified as a rescue, response to an emergency, or exercise of common decency, is within the course of employment. (See Martinez v. Workers' Comp. Appeals Bd. (1976) 15 Cal.33d 982.)
PERMANENT DISABILITY−Application of the old vs. new Permanent Disability Rating Schedule−Labor Code §4660(d)−An employer is required to give the notice under Labor Code §4061 when the employer makes the last payment of temporary disability benefits, not when those payments commence. (See Energetic Painting & Drywall, Inc. v. Workers' Comp. Appeals Bd. (2007) 153 Cal.App. 4th 633, 9 WCAB Rptr. 10,251.)PERMANENT DISABILITY−Application of the old vs. new Permanent Disability Rating Schedule−Labor Code §4660(d)−A comprehensive medical-legal or treating physician's report containing work restrictions does not contain an indication of permanent disability within the meaning of Labor Code §4660(d).
CIVIL LITIGATION–Employee litigation expenses and attorney fees–Labor Code §3856–When an injured employee prosecutes an action against a third party tortfeasor, Labor Code §3856 authorizes the employee to recover his or her litigation expenses and attorney fees from the judgment before the employer may exert a lien on the judgment to recover the amount of workers' compensation benefits expended on the employee's behalf. (See Phelps v. Stostad (1997) 16 Cal.4th 23.) [In this case the workers' compensation carrier filed a complaint against the third party tortfeasor, settled its complaint three months before trial, and assigned its lien to the third party tortfeasor, and the employee's case proceeded to trial and he obtained a judgment in his favor which was less than the lien amount, but the employee was properly awarded his litigation expenses and attorney fees in accordance with Labor Code §3856.]
PERMANENT DISABILITY–New vs. Old rating schedule–A medical report containing only generic statements of statutory language with no reference to the medical facts of the case is not sufficient to qualify as a indicating permanent disability.
PERMANENT DISABILITY–New vs. Old rating schedule–The employer's duty to provide notice pursuant to Labor Code §4061 must be provided at the time of the last payment of temporary disability. (See Costco Wholesale Corp. v. Workers' Comp. Appeals Board (Chavez) (2007) 151 Cal.App.4th 148, 9 WCAB Rptr. 10,184.)
MEDICAL TREATMENT–ACOEM Guidelines–Labor Code §4604.5(c)–The ACOEM Guidelines are presumptively correct on the issue and extent and scope of medical treatment, regardless of the date of injury. The presumption is rebuttable and may be controverted by a preponderance of the evidence establishing that a variance from the guidelines is reasonably required to care and relieve the employee from the effects of his or her injury.
CIVIL LITIGATION−Required vehicle exception to the going and coming rule−When the employer requires an employee to drive to and from its office in order to have his vehicle available for company business during the business day, accidents on the way to and from the office are a risk incident to the employer's business. (See Huntsinger v. Glass Containers Corp. (1972) 22 Cal.App.3d 803.) The test for determining whether the employee was required to use his personally owned vehicle during the business day, turns on whether the employer derives a special benefit from the employee's use of his vehicle. See State Farm Mut. Auto. Ins. Co. v. Haight (1988) 205 Cal.App.3d 803.)
INJURY–Presumption of compensability–The Labor Code §5402(b) presumption is properly rebutted when applicant' own medical evidence shows that the injury claimed is not compensable, even when the applicant's was obtained after the 90-day period after applicant's filing of a claim form. (See Witherall v. Workers' Comp. Appeals Bd. (1994) 59 Cal.Comp.Cases 1128 [writ denied] and Bowles v. Workers' Comp. Appeals Bd. (1995) 60 Cal.Comp.Cases 874 writ denied].)
ATTORNEY FEES−Labor Code §4906−The Appeals Board has the exclusive jurisdiction over fees to be allowed or paid to applicants' attorneys. (See Wheeler & Beaton v. Workers' Comp. Appeals Bd. (1995) 40 Cal.App.4th 389.) [In this case, the Appeals Board properly refused to approve an attorney fee agreement that provided for attorney fees to be calculated on an hourly rate of $225.00 or 12% of the permanent disability award, whichever is less.]ATTORNEY FEES–Labor Code §4906–The law does not forbid contracts between applicants and attorneys, but merely gives the Appeals Board the final approval over their enforcement. Once services are rendered, the WCJ may approve, increase or reduce the fees provided for in such a contract, taking into consideration the factors listed in Labor Code §4906 (d) and the WCAB Policy and Procedures Manual.
CIVIL LITIGATION−Pregnancy Discrimination Act of 1978−Pregnancy leave must be considered when calculating service credit for retirement benefits if the employer give credit for other period of temporary disability leave.
CIVIL LITIGATION– Incentive compensation plan–A profit-based supplementary incentive compensation plan, designed to reward employees beyond their normal pay for their collective contribution to store profits, did not violate wage protection policies of the Labor Code insofar as the plan included store expenses such as workers' compensation costs, cash and merchandise shortages, breakage, and third party tort claims in the profit calculation.
CIVIL LITIGATION–Disability Discrimination–Under the California Fair Employment and Housing Act (FEHA) the burden is on the plaintiff to show that he or she is a qualified individual under FEHA (i.e., that he or she can perform the essential functions of the job with or without reasonable accommodation).
TEMPORARY DISABILITY–104-week maximum entitlement–Labor Code §4656–The maximum two-year temporary disability indemnity period under labor Code §4656 is lawful and constitutional.
INJURY–Presumption of injury blood borne infection–Labor Code §3212.8–A presumption is an assumption of fact that the law requires to me made from another facto or group of facts found or otherwise established in the case. A presumption becomes operative at trial when the basic facts giving rise to the presumption are established by the pleading, stipulation, judicial notice or evidence. (See Gee v. Workers' Comp. Appeals Bd. (2002) 96 Cal.4th 1418, 4 WCAB Rptr. 10,101.) [In this case the applicant failed to establish the underlying basic facts necessary to invoke the application the Labor Code §3212.8 presumption that the blood-borne infectious disease manifested itself while applicant was employed as a police officer.]
PERMANENT DISABILITY–Application of old vs. new rating schedule–Labor Code §4660(d)–A comprehensive medical-legal report prepared prior to January 1, 2005 must indicate the existence of permanent disability in order to apply the old rating schedule. (See Costco Wholesale Corp. v. Workers' Comp. Appeals Bd. (2007) 151 Cal.App.4th 148.)PERMANENT DISABILITY–Application of old vs. new rating schedule–Labor Code §4660(d)–The duty to give notice under Labor Code §4061 arises with the last payment of temporary disability. (See Costco Wholesale Corp. v. Workers' Comp. Appeals Bd. (2007) 151 Cal.App.4th 148.)
WCAB PROCEDURE−Application of old Permanent Disability Rating Schedule−Labor Code §4660(d)−For injuries occurring before January 1, 2005, a comprehensive medical-legal report issued prior to January 1, 2005, the report must show the existence of permanent disability to permit the use of the new rating schedule. (See Baglione v. Hertz Car Sales (2007) 9 WCAB Rptr. 10,119 (Baglione II).)WCAB PROCEDURE−Application of old Permanent Disability Rating Schedule−Labor Code §4660(d)−The term "permanent disability" has two separate and independent components: (1) the applicant has a ratable disability, and (2) the status of that disability is "permanent and stationary" as that term is used in the workers' compensation statutes.
INJURY–Burden of proof on issue of causation–The injured worker has the burden of proving industrial causation by a reasonable probability. This burden does not require the injured worker to prove causation with scientific certainty. (See Rosas v. Workers' Comp. Appeals Bd. (1993) 16 Cal.App.4th 1692.) [In this case the applicant's QME and the medical literature provided substantial evidence to support a finding that it was reasonable that applicant's contracting hepatitis C as a utility maintenance worker in a sewage system was industrially related.]
WCAB PROCEDURE−Application of old Permanent Disability Rating Schedule−Labor Code §4660(d)− For injuries occurring before January 1, 2005, a treating physician's report issued prior to January 1, 2005, must indicate that the applicant has a ratable disability that has reached permanent and stationary status.WCAB PROCEDURE−Application of old Permanent Disability Rating Schedule−Labor Code §4660(d)−The old rating schedule will apply only when the employer has made, or is required to make, the last payment of temporary disability indemnity before January 1, 2005. (See Costco Wholesale Corp. v. Workers' Comp. Appeals Bd.(Chavez) (2007) 151 Cal.App.4th 148, 9 WCAB Rptr. 10,184.)
PERMANENT DISABILITY–Applicability of new permanent disability rating schedule–Labor Code §4660(d)–In interpreting Labor Code §4660(d), the employer's duty to provide the Labor Code §4061 notice attaches with the last payment of temporary disability. (See Costco Wholesale Corp. v. Workers' Comp. Appeals Bd. (Chavez) (2007) 151 Cal.App. 4th 148, 9 WCAb Rptr. 10,184.)
PERMANENT DISABILITY–Applicability of new permanent disability rating schedule–Labor Code §4660(d)–In interpreting Labor Code §4660(d), the employer's duty to provide the Labor Code §4061 notice attaches with the last payment of temporary disability. (See Costco Wholesale Corp. v. Workers' Comp. Appeals Bd. (Chavez) (2007) 151 Cal.App. 4th 148, 9 WCAb Rptr. 10,184.)
PERMANENT DISABILITY-Applicability of the new Permanent Disability Rating Schedule–Labor Code §4660–For all pending cases involving injuries occurring before January 1,2005, the new rating schedule must be applied unless one of the exceptions listed in Labor Code §4660(d) has been established (See Aldi v. Carr, McClellan, Ingersoll, Thompson & Hern (2005) 8 WCAB Rptr. 10,199 [en banc].)
PERMANENT DISABILITY–Applicability of new permanent disability rating schedule–Labor Code §4660(d)–In interpreting Labor Code §4660(d), the employer's duty to provide the Labor Code §4061 notice attaches with the last payment of temporary disability. (See Costco Wholesale Corp. v. Workers' Comp. Appeals Bd. (Chavez) (2007) 151 Cal.App. 4th 148, 9 WCAb Rptr. 10,184.)
PERMANENT DISABILITY–Applicability of new permanent disability rating schedule–Labor Code §4660(d)–In interpreting Labor Code §4660(d), the employer's duty to provide the Labor Code §4061 notice attaches with the last payment of temporary disability. (See Costco Wholesale Corp. v. Workers' Comp. Appeals Bd. (Chavez) (2007) 151 Cal.App. 4th 148, 9 WCAb Rptr. 10,184.)
PERMANENT DISABILITY–Application of new vs. old rating schedule–Under Labor Code §4660(d), a comprehensive medical-legal report, like the treating physician's report, must contain an indication of permanent disability to trigger the use of the pre-2005 rating schedule. (See Costco Wholesale Corp. v. Workers' Comp. Appeals Bd. (Chavez) (2007) 151 Cal.App.4th 148, 9 WCAB Rptr. 10,184.)
CIVIL LITIGATION–Longshore and Harbor Workers' Compensation Act–33 U.S. Code §901-905–In determining the applicability of the LHWCA, one must examine not only the nature of a claimant's employer but also examine the nature of the claimant's particular workplace and duties.
INJURY-Heart trouble presumption–Labor Code §3212–The heart trouble presumption of injury does not apply to a special investigator for the California Horse Racing Board.
CALIFORNIA INSUARNCE GUARANTEE ASSOCIATION–Successive injuries in different periods of coverage–CIGA is an insurer of last resort and does not assume responsibility for claims where there is any other insurance available. This is true when an employer has insurance policies for different policy periods and one insurer becomes insolvent, the remaining solvent carrier is responsible for paying the claim. (Industrial Indemnity Co. v.Workers' Comp. Appeals Bd. (Garcia) (1997) 60 Cal.App.4th 548.)CALIFORNIA INSURANCE GUARANTEE ASSOCIATION–Contributio9n or reimbursement–Insurance Code §1063.1(c)(5) and (c)(9)–Insurers may not obtain contribution or reimbursement from CIGA even if the injuries for which compensation benefits were paid are not joint and several, but are separate and distinct. (See California Ins. Guarantee Association v. Workers' Comp. Appeals Bd. (Hooten) (2005) 128 Cal.App.569, 7 WCAB Rptr. 10,133.)
APPORTIONMENT - When an injured employee received a prior disability award, apportionment of the amount of permanent disability indemnity is calculated by determining the overall percentage of permanent disability and then subtracting the percentage of permanent disability caused by other factors, including the prior disability award. Brodie v. Workers' Compensation Appeals Board, Contra Costa County Fire Protection District 40 Cal.4th 1313,9 WCAB Rptr. 10,142 .
CIVIL LITIGATION–Liability for breach of nondelegable duty imposed by statute or regulation–The common law rule that generally protects the hirer of an independent contractor from liability to third parties injured as a result of the contractor's negligence does not preclude liability where the hirer breaches a nondelegable duty.
CIVIL LITIGATION–Liability for breach of nondelegable duty–Although an injured worker who obtains workers' compensation may not sue a general contractor for a peculiar risk, such a worker may sue the general contractor for breach of duty to comply with applicable safety regulations and statutes. (See Felmlee v. Falcon Cable TV (1995) 36 Cal.App.4th 1032.)
CIVIL LITIGATION–Back pay and reinstatement as remedies for wrongful demotiond–An employee who is wrongfully demoted is not entitled to full back pay for a period when he was not available for work due to a nonindustrial illness and is not entitled to immediate reinstatement when he is medically unable to return to work.
MEDICAL TREATMENT–The ACOEM Guidelines apply to recommendations on assessing and treating acute low back problems and do not apply to chronic back problems. MEDICAL TREATMENT–Second opinion for spinal surgery procedures–Labor Code §4062(b)–The procedures for resolving disputes concerning spinal surgery set forth in Labor Code 4602(b) and in the case of a represented injured worker, when the parties cannot agree on a board certified or board-eligible orthopedic surgeon or a neurosurgeon to prepare a second opinion report resolving he disputed surgical recommendation, the administrative director must randomly select an orthopedic surgeon or neurosurgeon to prepare a second opinion report resolving the dispute.
CIVIL LITIGATION–Recovery of medical expenses–An injured plaintiff ins a civil action cannot recover more than the amount of medical expenses he or she paid or incurred, even if the reasonable value of those services might be a greater sum. (See Hanif v. Housing Authority (1988) 200 Cal.App.3d 635, Nishihama v. City and County of San Francisco I2001) 93 Cal.App.4th 298.)CIVIL LITIGATION–Recovery of medical expenses–The intervention of a third party in purchasing a medical lien does not prevent a plaintiff from recovering the amounts billed by the medical provider for care and treatment, as long as the plaintiff legitimately incurs those expenses and remains liable for their payment.
MEDICAL TREATMENT–Spinal surgery second opinion process– Labor Code §4062–When an employee has self-procured spinal surgery before the resolution of the second opinion process, the employer is not liable for the costs of the spinal surgery.
MEDICAL TREATMENT–Outpatient surgery center lien claims If an outpatient surgery center claims to have provided medical treatment to an injured worker as a "clinic," it is required to have a fictitious name permit and license from the Medical Board. But if it claims to have provided services only as an "outpatient setting," it is not required to have a license or fictitious name permit from the Medical Board if it is properly accredited by an agency recognized by the Medical Board.
WCAB PROCEDURE–Petition for reconsideration–California Code of Regulations, Title 8 §10840–Petitions for reconsideration from final orders, decisions or awards and answers thereto shall be filed in the district office of the Workers' Compensation Appeals Board from which the order decision or award is issued. Petitions for reconsideration from final orders, decisions or awards issued by the Appeals Board in San Francisco and answers there to shall be filed at the office of the Appeals Board in San Francisco.
CIVIL LITIGATION–Entry of judgment nunc pro tunc–It was not an abuse of discretion for the trial judge to enter judgment nunc pro tunc to the day after the jury's special verdict and the day before the plaintiff's death. Caldo v. Metalclad Insulation Corporation (2007) ___Cal.App.4th --, 9 WCAB Rptr. 10,210.
CIVIL LITIGATION–Landowner liability to an employee of an independent contractor–A landowner who hires an independent contractor may be liable for injuries to the contractor's employee, if (1) the landowner knows, or should have known, of a latent or concealed preexisting hazardous condition on its property, (2) the contractor did not know and could not have reasonably discovered the hazardous condition, and (3) the landowner failed to warn the contractor of the condition. Kinsman v. Unocal Corporation (2007) 9 WCAB Rptr. 10,210.
EXCLUSIVE REMEDY - As a general rule, an employee who sustains an industrial injury arising out of and in the course of employment is limited to recovery under the workers' compensation system. To be within the scope of employment, the incident giving rise to the injury must be an outgrowth of the employment, the risk of injury must be inherent in the workplace, or typical of or broadly incidental to the employer's enterprise. (See Torres v. Parkhouse Tire Service, Inc. (2001) 26 Cal.4th 995, 3 WCAB Rptr. 10,267.)
PERMANENT DISABILITY - Application of old vs. new Permanent Disability Rating Schedule–The employer must give the Labor Code §4061 notice at the time of the last payment of temporary disability is made. Therefore, if the last payment of temporary disability is made after January 1, 2005, the new rating schedule must be used to calculate permanent disability.
PERMANENT DISABILITY–Application of old vs. new Permanent Disability Rating Schedule–Under Labor Code §4660(d), a medical-legal report, like the treating physician's report, must contain an indication of permanent disability to trigger the use of the pre-2005 rating schedule.PERMANENT DISABILITY–Application of old vs. new Permanent Disability Rating Schedule–The employer must give the Labor Code §4061 notice at the time of the last payment of temporary disability is made. Therefore, if the last payment of temporary disability is made after January 1, 2005, the new rating schedule must be used to calculate permanent disability.
INJURY AOE/COE–Special mission exception to the going and coming rule–When the employee engages in a special activity that is (1) special, that is extraordinary, in relation to the employees routine duties, (2) is within the course of his employment and (3) reasonably undertaken at the request or invitation of the employer, an injury suffered while traveling to and from the place of such activity is also within the courts of employment and is compensable. (See Dimmig v. Workers' Comp. Appeals Bd. (1972) 8 Cal.2d 880.)
TEMPORARY DISABILITY−Payments beyond five years of date of injury−Labor Code §4656(a)−The Appeals Board has jurisdiction to order additional temporary total disability benefits when a timely petition to reopen is filed and the new and further disability commenced within five years of the date of injury. (See General Foundry Service v. Workers' Comp. Appeals Bd. (1970) 3 Cal.3d 324.)
WCAB PROCEDURE–Concept of substantial medical evidence–Labor Code §5952(d)–In order to constitute substantial evidence, a medical opinion must be predicated on reasonable medical probability and must set forth the reasoning behind the physician's opinion not just his conclusion (See Chu v. Workers' Comp. Appeals Bd. (1996) 49 Cal.App.4th 1176.). A medical opinion is not substantial evidence if it is based on facts no longer, germane, on inadequate medical histories or examinations, or incorrect legal theories, or on surmise, speculation, conjecture or guess (See Hegglin v. Workers' Comp. Appeals Bd. (1971) 4 Cal. 3d 152.).
WCAB PROCEDURE–Ninety day presumption of compensability–Labor Code §5402(b)–The presumption of compensability is mandatory and not dependent upon whether a party timely raises the provision as an issue. Whenever the presumption's underlying conditions are established by the pleadings, stipulations, judicial notice, or evidence, the trier of fact must adopt the initial assumption set forth by the presumption. See Gee v. Workers' Comp. Appeals Bd. (2002) 96 Cal.App.4th 1418, 4 WCAB Rptr. 10,101.)CONDITIONS OF COMPENSATION–Post termination defense–Labor Code §3600(a)(10)(D) expressly permits post-termination injury cumulative claims where the date of injury, as established under Labor Code §5412, occurs after termination.
INSURANCE COVERAGE–Uninsured motorist coverage workers' compensation exclusion–Insurance Code §11590.2(c)(4)–The purpose and intent of the workers' compensation exclusion mandated by Insurance Code §11580.2(c)(4) is to shift the cost of an industrial injury sustained by an employee, as a result of the negligence of an uninsured motorist, from the motoring public to the employer or his workers' compensation carriers. (See California State Auto. Assn. Inter-Ins. Bureau v. Jackson (1973) 9 Cal.3d 859.)WCAB PROCEDURE–By executing a compromise and release, an injured worker is barred from reopening his workers' compensation claim in the absence of fraud or bad faith. (See City of Anaheim v. Workers' Comp. Appeals Bd. (1982)
Civil Litigation– Court of Appeal decision concludes that the common law doctrine of fair procedure may preclude State Fund from unilaterally terminating its broker agreements without affording basic procedural rights.
INJURY–Going and coming rule–The judicially created "going and coming rule' generally precludes workers' compensation benefits for injuries sustained during a local commute en route to a fixed place of business at fixed hours. (See Hinojosa v. Workmen's Comp. Appeals Bd. (1972) 8 Cal.3d 150.) Before entry onto the employer's premises, the going and coming rule ordinarily precludes recovery; after entry, the injury is presumed compensable as arising out of and in the course of employment. See General Ins. Co. v. Workers' Comp. Appeals Bd. (1976) 16 Cal.3d 595.)
PERMANENT DISABILITY-Applicability of the new Permanent Disability Rating Schedule–Labor Code §4660–A treating physician's report that merely mentions a condition that could result in permanent disability does not qualify as a treating physician's report that indicates the existence of permanent disability. (See State Compensation Insurance Fund v. Workers' Comp. Appeals Bd. (Echieverria) (2007) 9 WCAB Rptr. 10,023.)
WCAB PROCEDURE–Expedited hearings–Labor Code §5502(b)–Expedited hearings shall be held and a determination as to the rights of the parties shall be made and filed within 30 days after a declaration of readiness to proceed is filed if the issue in dispute include entitlement to : (1) temporary disability, (2) medical treatment, (3) vocational rehabilitation services or the termination of an employer's liability to provide vocational rehabilitation services, (4) compensation from one or more responsible employers when two or more employers dispute liability as among themselves, and (5) any other issues required an expedited hearing and determination as prescribed by the rules and regulations of the Administrative Director. [In this case, the WCJ properly limited the findings in an expedited hearing to entitlement to additional temporary disability due to further surgery for an industrial hand injury and entitlement to the additional hand surgery. The WCJ properly excluded in the expedited hearing concerning the existence of a compensable consequence psychological injury.]
EMPLOYMENT STATUS–Residential employees–Labor Code §3352–A property management company acting on behalf of a homeowners association is not exempt from liability for workers' compensation benefits under Labor Code §3352.
ATTORNEY FEES−Labor Code §4607−When an employee receives an award which includes future medical care, and the employer/insurance carrier refuses to furnish the treatment but does not institute proceeding to terminate care pursuant to Labor Code §4607, the employee's attorney who succeeds in enforcing the award may receive attorney fees.
INJURY–Cumulative injury exception to the post termination rule–Labor Code §3600(a)(10)(D)–In general, workers are not deemed to know that cumulative tauma injuries are work related. In assessing he workers' knowledge, consideration must be given to the intelligence, training and qualifications of the worker as well as the nature of the disability. Any doubts as to compensability of injuries must be resolved in favor of the worker. (See City of Fresno v. Workers' Comp. Appeals Bd. (1985) 163 Cal.App.3d 324.)
9 WCAB Rptr. 10,003TEMPORARY DISABILITY–Seasonal worker–Labor Code §4453–A seasonal worker is not entitled to temporary disability during the off-season where the parties stipulated that the injured worker did not have any off season earnings.
EMPLOYMENT STATUS–Residential employees–Labor Code §3351(d)–Adult caregivers attending the owner or occupant of a residential dwelling were residential employees because their duties were personal services not in the course of a trade, business, profession, or occupation of the owner or occupant.
INJURY–Post termination/layoff defense–Labor Code §3600(a)(10) does not require an employer to make an affirmative showing of prejudice for the post termination defense to apply.
APPORTIONMENT−Apportionment to non industrial factors−Labor Code §4663−Apportionment based on non industrial factors must be sufficiently described by the medical evidence. (See E.J. Gallo v. Workers Comp. Appeals Bd. (Dykes) (2005) 134 Cal.App.4th 1536, 8 WCAB Rptr. 10,006.) The medical evidence must show that the injured worker suffered from an underlying pathology prior to the industrial injury. (See E.L. Yeager Construction v. Workers' Comp. Appeals Bd. (Gatten) 145 Cal.App.4th 922, 8 WCAB Rptr. 10,362.) [In this case the employer failed to prove that the injured worker suffered from an apportionalble undelyign disease or condition that could be attributable to her disability.]
TEMPORARY DISABILITY–Labor Code §4453(c)(4)–When the employee is working for two employers at the time of the injury, the average weekly earnings may be calculated using the earnings from the employment other than the employment in which the injury occurred. [The worker in this case was a State Fund attorney injured wile serving as a juror. The average weekly earnings were calculated based on his earnings as an attorney, not on the per diem as a juror.]
WCAB PROCEDURE–Applicability of the new permanent disability schedule–In order to apply the old permanent disability rating schedule to injuries occurring prior to January 1, 2005either no comprehensive medical-legal report or no report of the treating physician indicating existence of permanent disability. [In this case the treating physician did not relate the range of motion and pain symptoms to his prediction of permanent disability, and his report did not make any mention of prognosis but instead simply declared that the worker remained temporarily totally disabled.]
DEATH BENEFITS–Death without dependents&ndash |
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