Legal Brief Bank


Kuciemba v Victory Woodworks

Last Activity: 12/23/2021

Following a dismissal of the Complaint by the Federal District Court, plaintiffs have appealed to the Ninth Circuit in a case involving a claim for personal injury against an employer by an employee's spouse, who allegedly contracted COVID-19 from her employee-husband who in turn alleges that he was infected at work. The Ninth Circuit has scheduled Oral Argument on March 10, 2022.

See's Candies v. Superior Court (Ek)

Last Activity: 12/22/2021

The Court of Appeal has determined that the exclusive remedy rule does not protect an employer from a COVID-related civil lawsuit brought on behalf of an employee's spouse. The employee alleged that she was infected with the virus at work, and passed it along to her family. Her husband died from the disease, and the employee filed a claim for damages in Superior Court. The employer contended that the claim represented a derivative injury and was thus barred under exclusive remedy. But the Court of Appeal held that the fact an employee's injury is the biological cause of a nonemployee's injury does not thereby make the nonemployee's claim derivative of the employee s injury. CWCI joined the US Chamber of Commerce as amicus curiae on behalf of the employer. [B312241]

Mierczynski v. City of Fullerton

Last Activity: 12/15/2021

In a case involving an incapacitated dependent of a deceased firefighter, the WCAB refused to order death benefits to increase over time under section 4661.5 and further held that the issue of incapacity was subject to the Board's continuing jurisdiction. Applicant appealed, contending that under section 4458.5 the initial death benefit should have been at the max TTD rate in effect at the time of payment, and that the rate is thereafter subject to further annual increases. Finally, AA argued that the WCAB has no authority to reserve jurisdiction over incapacity based on speculation. Both the Court of Appeal and the Supreme Court denied the appeal. [G060410] [S271296]

City and Co of San Francisco v WCAB (Pacatte)

Last Activity: 10/29/2021

The First District denied a defense petition seeking to set aside a finding of compensability under the Special Mission exception to the going-and-coming rule. A firefighter driving his personal vehicle to his regular work station as part of his daily commute was killed in a head-on collision. While it was possible for him to be called to duty at another location, the employee had not been reassigned since joining his current station house and was not expected to be reassigned on DOI. The defense position on appeal was that the employee is required to demonstrate that, on the actual DOI, a benefit to the employer existed and that the employee needed his car for work. While the Court granted amicus status to CWCI, it denied the petition on 10/29/21.

Banerjee v Superior Court

Last Activity: 10/05/2021

In the first published decision interpreting the prohibition against self-referrals under LC section 139.32 and the "physician's office" exception contained in LC section 139.31(e), the Court of Appeal held that a physician may render services to patients through separate legal entities in which they have financial interest without violating the prohibition on self-referrals, as long as services are rendered within the same physician's office or group practice office.

Great Divide Ins Co v WCAB (Banegas)

Last Activity: 9/16/2021

Citing jurisdiction as asserted by the WCAB, the Court of Appeal has dismissed a case that raised issues of the parameters of the Commercial Traveler Rule.. The WCAB had notified the Court that it had not received the defense Petition for Reconsideration of its earlier ruling, although it was correctly filed. In the underlying matter, an Oakland-based employee was sent to a special project in Santa Monica, where the employer provided hotel and a food allowance. On a weekend, the employee traveled back to Oakland for personal reasons. While returning to Santa Monica, the employee was killed in a car accident. The WCJ originally found that the claim was barred, but the WCAB reversed under the Commercial Traveler exception. [F083019]

Applied Materials v. WCAB

Last Activity: 6/01/2021

In the latest confirmation that there is no "alternate path" to a finding of total disability under Fitzpatrick, the Court of Appeal overturned a WCAB finding of 100% disability for an injured worker who claimed psychiatric injury (PTSD) after she became involved in a sexual relationship with the PTP for her underlying orthopedic industrial injury. The Award was based on a psych QME finding that applicant was totally disabled because she was unable to work due solely to PTSD, and under Hikida, the entire disability was the result of industrial medical treatment. Because the QME used an incorrect legal standard, the Court of Appeal reversed and remanded for further proceedings. CWCI acted as amicus and obtained publication of this decision. [H047148] [H047154]

Vasquez v. Jan-Pro

Last Activity: 1/14/2021

The California Supreme Court has confirmed that its prior decision in Dynamex should apply retroactively to all non-final cases governed by similarly worded wage orders. Because Dynamex did not overrule any prior California Supreme Court decision or disapprove any prior California Court of Appeal decision, the well-established general principle affirming the retroactive application of judicial decisions interpreting legislative measures supports the retroactive application in this case. [S258191]

Gund v. Co. of Trinity

Last Activity: 8/28/2020

The California Supreme Court has upheld an appellate court ruling that the workers compensation system provides the only available remedy to two private citizens who were injured in a knife attack while checking on the well-being of a neighbor at the request of a deputy sheriff. The trial court and the Court of Appeal ruled that the couple was knowingly assisting in active law enforcement service and that LC Section 3366 prohibits the couple from pursuing a civil action against the County. By a vote of 5-2, the Supreme Court has agreed. [C076828] [S249792]

County of Santa Clara v. WCAB (Justice)

Last Activity: 8/26/2020

In a case where the Institute filed a joint amicus curiae brief with CalChamber, the 6th District Court of Appeal has held that apportionment is mandated even where industrial medical treatment has caused residual permanent disability. In limiting Hikida to new conditions where the medical treatment is the sole cause of the disability, the decision has effectively confirmed apportionment under LC sections 4663 and 4664 in all instances where both industrial and nonindustrial factors have combined to cause permanent disability. On 8/26/2020, the Supreme Court denied applicant's appeal. [S263128] [H046562]

Hom v. City and Co. of San Francisco

Last Activity: 8/06/2020

In an apportionment case with a complicated procedural history involving multiple injuries using both DRE and ROM methodologies, the Court of Appeal has ultimately upheld the WCAB's second decision in favor of the defense. The WCAB had originally found in favor of applicant, but confessed error upon receipt of the defense appellate pleadings and asked the Court of Appeal to remand the case for further consideration. The WCAB then reversed its original decision and held that Under AMA Guides 2.5(h), impairments to the same body part utilizing the same edition of the Guides may overlap, and conversion is only necessary if different editions of the Guides were utilized.

Todd v. SIBTF

Last Activity: 6/23/2020

The en banc Appeals Board held that (1) prior and subsequent permanent disabilities shall be added to the extent they do not overlap in order to determine the combined permanent disability specified in section 4751; and (2) that SIBTF is liable, under section 4751, for the total amount of the combined permanent disability less the amount due to applicant from the subsequent injury and less credits allowable under section 4753.

Dennis v. Dept. of Corrections

Last Activity: 4/13/2020

In a series of en banc decisions, the WCAB exercised its power to invalidate a regulation against 8 CCR 10133.54 on the basis that it improperly vested adjudicatory review of SJDB voucher disputes and constituted an invalid assertion of jurisdiction that exceeded the statutory authority. The WCAB further held that in order to avoid the obligation to provide a SJDB voucher, an employer must offer regular, modified, or alternative work -- regardless of the employer's ability to make such an offer, and regardless of an employee's ability to accept. In order for an offer of employment to be bona fide, it must be genuine and made in good faith at the time conveyed.

Colamonico v. Secure Transportation

Last Activity: 11/14/2019

The en banc Appeals Board held that a lien claimant has the initial burden to prove all elements necessary to establish entitlement to payment for a medical-legal service, and only after having done so may the lien claimant proceed to address the reasonable value of those services pursuant to the framework under section 4622. Defendant's failure to issue an Explanation of Review in response to a med-legal billing does not constitute a waiver of objections under Labor Code sections 4620 and 4621.

Travelers v. WCAB (Mastache)

Last Activity: 10/02/2019

The Court of Appeal has published a decision finding that the parties to a staffing agreement had validly contracted to eliminate the obligation for a counter-signature on a policy endorsement related to coverage of special employees. The court held that the solvent carrier thus did not represent "other insurance" and that CIGA was fully liable. [B292915]

Page v. Parisotto

Last Activity: 9/20/2019

In a class action lawsuit alleging systemic gender bias in the workers' comp system, plaintiffs contended that benefits were being awarded on the basis of stereotypes in violation of equal opportunity protections. Plaintiffs appealed the original dismissal of the action, and the parties engaged in extensive briefing. On the eve of a scheduled oral argument, the parties submitted a Notice of Settlement on 9/20/19, effectively ending the litigation. [BC625992] [B282643]

Skelton v. WCAB

Last Activity: 9/16/2019

In the first published case clarifying the California Supreme Court's decision in Dept. of Rehabilitation v. WCAB (Lauher) (2003) 30 Cal.4th 1281, the Court of Appeal has confirmed that an injured employee's entitlement to temporary disability indemnity ends when the employee has returned to work even if the employee is not yet permanent and stationary.

Pa'u v. Dept of Forestry

Last Activity: 9/11/2019

Relying on the benefit of hindsight, the WCAB has reversed course and ruled that Saturdays are not "working days" for purposes of determining the timeliness of a UR decision under LC section 4610. Instead, "working days" are defined as days other than Saturdays, Sunday, or state holidays. This decision has been designated by the Board as a Significant Panel Decision.

Wilson v. Cal Fire / SCIF

Last Activity: 7/15/2019

In an en banc opinion binding on all WCJs and future WCAB panels, the Appeals Board has held that the determination of whether an injury is catastrophic under Labor Code section 4660.1(c)(2)(B) focuses on the nature of the injury and is a fact-driven inquiry. The exception for catastrophic injury does not permit consideration of economic impact of the injury, but rather requires a fact-specific inquiry into the nature of the underlying physical injury. The Board provides a list of broadly defined factors to be considered. On July 15, 2019, the Appeals Board denied the defense appeal and the case was not pursued any further.

Allied Signal Aerospace v. WCAB (Wiggs)

Last Activity: 6/05/2019

The 2nd District has reversed the WCAB in a case where the Appeals Board had initially held that a pre-UR/IMR stipulation between the parties takes precedence over the subsequently enacted legislation. While the case was pending, the parties reached a settlement but the Court proceeded anyway. In a published decision, the Court of Appeal overturned the award of housekeeping services on the basis that there was no ongoing stipulation and the Appeals Board did not have jurisdiction to review the medical necessity of the services. [B293080]

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