Court of Appeal and WCAB En Banc Decisions

Published decisions of the Courts of Appeal and En Banc Decisions of the Workers’ Compensation Appeals Board (WCAB) must be followed in subsequent cases with the same facts.

Employment/Independent Contractors

Lara v. WCAB (2010) 75 CCC 91, Court of Appeal, Second Appellate District, Division Three.

Applicant was hired by a restaurant to trim bushes. On the second job, he fell from the roof and was injured. He supplied his own tools, charged by the job rather than the hour, and was not supervised by the restaurant owner. Applying the factors outlined in S. B. Borello & Sons v. Department of Industrial Relations (1989) 54 CCC 80, the Court concluded that the defendant did not have right to control the manner and means by which applicant did the job for which he was hired, and therefore found that he was an independent contractor and not an employee.

Note: This case is important for employers who hire independent contractors. Many independent contractors are considered to be employees for the purpose of workers’ compensation coverage where the employer retains the right to control the manner and means by which the job is performed. This will particularly be the case with relatively unskilled and unsophisticated workers.

Denials of Writs of Review

Writ denied cases serve as guidance in subsequent cases with the same facts, but are not required to be followed by the WCAB and the Courts.

California Insurance Guarantee Association (CIGA)

Pacific Connections of California v. WCAB (Gomez) (2010) 75 CCC 173, Court of Appeal, Second Appellate District, Division One, writ denied

Tokio Marine and Fire Insurance Company v. WCAB (Lopez) (2010) 75 CCC 188, Court of Appeal, Second Appellate District, Division One, writ denied.

In a case of general and special employment where the insurer for the general employer, a temporary agency became insolvent, the WCAB held that the special employer's insurance carrier was liable for applicant’s benefits and that CIGA, on behalf of the general employer's insolvent carrier, had no liability. Here, the general and special employers had joint and several liability for applicant's benefits. There was no evidence of valid, enforceable agreement between the two employers under Labor Code § 3602(d) indicating that the general employer would provide workers' compensation for the special employees. Therefore, Insurance Code § 11663 did not apply and there was no valid endorsement for exclusion of the special employees from coverage in the policy issued by special employer's carrier. Since the special employer's insurance constituted “other insurance” available to applicant under Insurance Code § 1063.1(c)(9), that carrier was liable for applicant’s benefits and not CIGA.

Note: In another case with the same facts, the Court of Appeal is going to make a final decision. These cases are important for employers (special employers) who hire temporary employees from agencies or payroll companies (general employers) who provide workers’ compensation coverage. The insurer for the special employer may be found liable if the insurance carrier for the temporary agency becomes insolvent.

Injury AOE/COE

City of L.A. v. WCAB (Nichols) (2010) 75 CCC 65, Court of Appeal, Second Appellate District, Division Five, writ denied.

Applicant was struck by a motor vehicle during her lunch period while walking to her car which was parked on a public street. She testified that she was going to her car to retrieve money to pay off a debt owed to a co-worker. Her supervisor testified that she had rescheduled applicant’s lunch period to accommodate staffing need, that she allowed employees to leave the premises to feed meters and obtain refreshments, and that applicant’s pay included her lunch period. The WCAB held that applicant had sustained an industrial injury and that her claim was not barred by going and coming rule because the personal comfort exception applied.

Note: Normally, injuries sustained off premises are not compensable. However, if the employee is on a paid break or is performing an act of personal convenience that is reasonable, such as obtaining a snack on an unpaid break, the injury will be compensable. 

Martinez v. WCAB (2010) 75 CCC ____, Court of Appeal, Second Appellate District, Division Eight, writ denied.

Applicant claimed injuries to multiple body parts including his psyche. At the MSC, the defendant stipulated to psychiatric injury. However, at the trial, it raised the defense of the six month exclusion pursuant to Labor Code §3208.3(d). The WCAB found that stipulation did not preclude the defendant from raising six-month rule at trial because the language the of statute assumes that psychiatric injury has occurred and addresses liability for payment of compensation, not the existence of the industrial injury. Furthermore, applicant was not prejudiced by allowing defendant to raise the issue, since applicant would have ample opportunity to prepare rebuttal evidence.

Note: A psychiatric industrial injury is not compensable unless the employee has been on the job for a total of 6 months, including broken periods of employment.

Temporary Disability

Ramirez v. WCAB (2010) 75 CCC 181, Court of Appeal, First Appellate District, Division Two, writ denied.

The defendant was not required to file a Petition to Terminate Temporary Disability, in spite of a prior stipulation that TD would not cease until a petition was filed, where both the PTP and the AME declared applicant’s condition to be P & S and defendant promptly sent applicant a notice that it was discontinuing TD and asserting a credit for TD overpayment.

Terrones v. WCAB (2010) 75 CCC 185, Court of Appeal, Second Appellate District, Division Two, writ denied.

Applicant did not prove that the defendant was required to pay more than two years of temporary disability as a result of a delay in authorization of hip surgery, nor did the hip surgery amount to an amputation constituting an exception to the two year cap.

Note: Current law caps temporary disability at two years within five years of the date of injury unless the industrial injury involves certain listed conditions such as amputations.

WCAB Panel Decisions

WCAB Panel decisions may be used as guidance, but do not constitute binding legal precedent.

Evidence

Wenneker v. County of Contra Costa, ADJ 2954617, 2134977, 3431606, WCAB panel decision, December 17, 2009.

Surveillance films obtained after the close of discovery at an MSC are not automatically inadmissible unless they depict activities that the applicant performed on a daily or regular basis prior to the MSC and the defendant did not exercise “due diligence” in its efforts to observe and film such activities. “Due diligence” does not demand that a party make every possible effort, but only that it make a reasonable effort.

Note: Evidence not disclosed at the conference that takes place prior to a trial cannot be used at the trial unless the defendant was unaware of the evidence even after having acted with due diligence.

Medical Treatment/Utilization Review

Gerkins v. Villa Automotive, ADJ 924376, WCAB panel decision, July 9, 2009.

An injured worker was not entitled to an orthopedic mattress at defendant’s expense where he failed to present the opinion of a physician that the mattress was reasonably required to cure or relieve from the effects of the injury in accordance with the MTUS/ACOEM Guidelines or any other scientific evidence.

Note: Injured workers are only entitled to treatment that is likely to have a medical benefit and not just any type of treatment that a doctor might recommend.

Disclaimer: The information contained herein is not to be construed as legal advice and is not meant to be a substitute for legal advice. Zenith insurance company (“zenith”) makes no representations or warranties, express or implied, guarantees or conditions of compliance with applicable laws or regulations and such compliance is ultimately the responsibility of the employer. Zenith expressly disclaims any and all liability with respect to any actions taken or not taken based upon the information contained in this presentation or with respect to any errors or omissions contained in such information. The information contained herein is not applicable in all jurisdictions of the united states. The jurisdiction you are in, changes in the law or regulations, or the specific facts of an individual case may result in different interpretations of the law or process than those presented herein.