Legal Brief Bank


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, the Appeals Board denied the defense appeal.

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]

Travelers v. WCAB (Mastache)

Last Activity: 3/29/2019

The Second District Court of Appeal has granted the defense Petition for Writ of Review, and will decide whether a change to 10 C.C.R. 2259 (elimination of the requirement for a countersignature of the insured, with respect to the General / Special Employer Exclusionary Endorsement) should be applied retroactively. CWCI has filed an amicus brief highlighting an important subtext to the case: The refusal, despite its de novo review, of the Appeals Board to take judicial notice of the Department of Insurance Rulemaking file. [B292915]

County of Santa Clara v. WCAB (Justice)

Last Activity: 3/16/2019

The 6th District is considering the defense appeal in a case where the injured worker received an unapportioned award, despite evidence of significant prior knee injuries and surgeries. Applicant obtained bilateral total knee replacements on an industrial basis, with successful results. But the WCAB held that the TKR served as the basis for the permanent disability under the AMA Guides. Despite the AME finding of 50% apportionment to underlying pathology, the Board held that there can be no apportionment where industrial medical treatment results in permanent disability. The Court of Appeal has accepted the Institute's joint amicus curiae brief with CalChamber arguing against this unwarranted expansion of Hikida. [H046562]

City of Petaluma v. WCAB (Lindh)

Last Activity: 3/13/2019

The Court of Appeal held that an employee with a pre-existing condition that caused 85% of his residual disability is subject to apportionment, despite his arguments that apportionment only applies to degenerative conditions, and that defendant failed to prove that the underlying condition, alone, would have resulted in disability. The Appeals Board had held that the medical evidence from the QME improperly apportioned to causation of injury rather than disability, but the Court of Appeal annulled the Board's decision and remanded the case with directions to award the apportionment. The case represents an important addition to decisional case law on the question of whether apportionment to pathology/congenital defects is valid. CWCI filed a joint amicus brief with CAJPA. On 3/13/19, the Supreme Court denied applicant's appeal. [A153811] [S253601]

Gund v. Co. of Trinity

Last Activity: 2/08/2019

On its own motion, the California Supreme Court has granted review of 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 have 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. [C076828] [S249792]

Black v. Corvel

Last Activity: 2/06/2019

A group of police officers and firefighters in Rialto and Stockton claimed RICO violations and fraud for bad-faith case handling. After four amended complaints, the trial judge found that the plaintiffs could not state a viable cause of action, and dismissed the case. Plaintiffs appealed the dismissal to the Ninth Circuit. CWCI filed an amicus brief on behalf of the defense, and the Ninth Circuit Court of Appeals has upheld the dismissal. [17-55956]

Dept. of Corrections v. WCAB (Fitzpatrick)

Last Activity: 1/02/2019

The Court of Appeal reversed a longstanding practice of the Appeals Board, and held that WCAB exceeded its jurisdiction when it relied upon Labor Code 4662(b) to find 100% permanent total disability, where the scheduled permanent disability rating of 99% under section 4660 was unrebutted. Thus, even in cases falling under section 4662(b) "in accordance with the fact," applicant must still provide substantial evidence rebutting the scheduled rating pursuant to section 4660. [C085850] [S252184] [27 CA5th 607, 83 CCC 1680]

Vanguard v. Baker (Anguizola)

Last Activity: 11/28/2018

An indicted provider alleged that anti-fraud provisions of SB 1160 and AB 1244 violated his due process rights. US District Court Judge George Wu initially ruled that LC section 4615 deprives a subset of lien claimants of a protectable interest without affording meaningful due process. The DWC complied with this ruling by posting additional names to its website. The court has dismissed the remainder of the case. [Case 5:17-cv-00965]

Suon v. California Dairies

Last Activity: 10/23/2018

In an en banc decision, the WCAB has provided instructions for the application of its prior en banc decision in Maxham v. California Dept. of Corrections, applying a reasonableness standard for the time to object to provision of certain records to a QME and to terminate the evaluation upon discovery of a prohibited communication. [83 CCC 1803]

Barri v. WCAB

Last Activity: 10/19/2018

The Institute obtained an order publishing a Court of Appeal decision denying a request from a convicted provider who sought to enjoin the WCAB from suspending providers from the workers' compensation system, and from staying their liens. Chiropractor Michael Barri contended that the lien stay provisions interfered with his right to counsel and violated prohibitions against ex post facto laws. While acknowledging that the Division had been slow to implement procedures, the court held that a workers' compensation lien represents only a statutory remedy, and merely an unreliable expectancy in a payment. As such, it is not entitled to broad constitutional protections. Furthermore, because the WCAB has exclusive jurisdiction over the creation, adjudication, and payment of liens, a lien claimant has no other remedies available to recover payment for services. [G054838] [28 CA5th 428, 83 CCC 1643]

First Foursquare Church v. WCAB (Austin)

Last Activity: 9/26/2018

The 2d District Court of Appeal has denied a defendant's appeal of a ruling that applicant's cumulative trauma injury ended at the time applicant changed from one employer to the next. Because she had no disability during the first employment, that employer contended that a DOI cannot be applied unless there is both knowledge and disability under section 5412. In denying the writ, the COA refused to consider whether a change in employment alone constitutes a basis for the assignment of a CT DOI. [B291548]

Page v. Parisotto

Last Activity: 9/05/2018

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 have appealed the original dismissal of the action, and extensive briefing continues. [BC625992] [B282643]

King v. CompPartners

Last Activity: 8/23/2018

In a unanimous decision, the California Supreme Court held that allegations of medical negligence by a UR physician for failure to warn of the dangers of sudden cessation of a medication, or to provide a weaning plan, fall within the exclusive remedy protections of the Workers' Compensation Act, which preempts the employee's tort claims. The case reaffirms that injuries derivative of a compensable workplace injury fall within the scope of the workers' compensation bargain and are therefore compensable within the workers' compensation system. [S232197]

County of San Diego v. WCAB (Pike)

Last Activity: 6/20/2018

The Court of Appeal reversed the WCAB, and held that L.C. section 4656(c)(2) prohibits TD awards for periods after five years from a post-1/1/2008 DOI, even where the case has been timely reopened and the TD started within 5 years from DOI. The plain language of the statute states that payments cannot be ordered past five years from DOI. CWCI filed an amicus brief at the Court of Appeal in support of the defendants. Applicant's appeal to the Supreme Court was denied on 6/20/18. [S248235] [D072648]

Dynamex v. Superior Court

Last Activity: 6/20/2018

In a wage and hour dispute, the Supreme Court overturned 30 years of precedent under Borello, and implemented a new standard to determine whether a worker is an employee or an independent contractor. Under the new "ABC" test, the business must show (a) that the worker is free from the control and direction of the hirer in connection with the performance of the work, both under the contract for the performance of the work and in fact; and (b) that the worker performs work that is outside the usual course of the hiring entity's business; and (c) that the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as that involved in the work performed. Failure to satisfy any one of the ABC elements compels a finding that the worker is an employee. A request to apply the new rule prospectively only was denied on June 20, 2018. [S222732]

Howard et al. v. Baker

Last Activity: 4/04/2018

Superior Court dismissed plaintiffs' claims that the DIR improperly denied them reappointment as QMEs based on its new interpretation of ML-104, used that interpretation as justification for refusing to renew their QME certifications, and failed to provide due process hearings; in dismissing the case for lack of jurisdiction, the court noted that the DWC probably erred in relying on underground regulations in denying reappointment. In a settlement agreement, the DWC agreed to reinstate the providers, enforce the regulations "as written," and remove contrary training materials from its website. [LA Superior Court BS171032]

The Lien Cases (Rodriguez)

Last Activity: 3/23/2018

In an en banc decision, the Appeals Board suspended CCR 10859, consolidated and then dismissed as moot more than 1,234 Petitions for Reconsideration, and held that the issue of whether lien Declarations were timely filed must be adjudicated in each case in the first instance at the trial level. In 2018, the Appeals Board followed up with another en banc decision, confirming that declarations filed at or before 5:00 p.m. on Monday, July 3, 2017, are timely filed.

SCIF v. WCAB (Guzman)

Last Activity: 2/23/2018

In a published opinion, the Court of Appeal ruled in favor of the defense where the injured worker had less than six months of employment but claimed entitlement to compensation for a psychiatric injury based on a "sudden and extraordinary employment condition" exception under L.C. section 3208.3(d). The only evidence presented was applicant's subjective testimony that he was surprised at the accident. The court remanded to the WCAB with directions to deny the claim for psychiatric injury. CWCI acted as amicus in the case, and helped to obtain publication of the court's decision. [H044300]

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