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Zenith Insurance Company v WCAB (Hernandez)

Last Activity: 5/01/2025

Applicant alleged injury due to a MVA while riding home from work in a carpool van arranged by another employee. The applicant worked as a laborer at a location sixty miles from his home. The applicant did not have a driver's license or a car, and did not know how to drive. The employer made it clear at the time of hire that it did not provide or arrange transportation for employees. The claim was denied based on the going and coming rule. The WCJ found injury AOE/COE. The WCJ found the special risk exception to the going and coming rule applied. He found the commute was not a "local" commute as contemplated by Hinojosa, due to the distance to the work site. He determined that the applicant had to take extraordinary action to ensure that he could make it to work on time, every day, and get home afterwards by participating in the van pool. The WCJ found that this employment related condition created a special risk, noting the applicant would never have been in a van coming home from work, at the location where the accident took place, but for this special condition of employment. The WCJ also found this case fell within the "dual purpose" exception to the going and coming rule. The WCJ concluded this exception applies because applicant's employer obtained a benefit from the vanpool which permitted applicant to arrive "at work and on time every day." The Board denied reconsideration. Defendant appealed. The Institute filed an amicus brief on 12/18/24. On 5/1/25, the COA annulled and remanded, holding 1) the special risk exception only applies to situations just outside the employment premises - this case does not meet that requirement and 2) the facts were not sufficient to apply the dual purpose exception, as they do not go beyond the normal need of the presence of the person for the performance of the work. (Hinojosa) [C101549]

Mayor v Ross Valley Sanitary District

Last Activity: 4/16/2025

WCJ found applicant PTD based on medical reports and applicant's vocational expert on 3/2/23. Defendant filed a petition for reconsideration on 3/23/23, arguing that applicant's vocational expert reached an unsubstantiated conclusion, failed to consider the entire medical record, and that the F&A did not discuss apportionment identified by the physicians. The WCAB granted reconsideration for further study on 8/14/23. The WCAB issued first decision on 1/26/24, then a second on 2/2/24 to clarify jurisdiction. The Board noted they received notice of the timely reconsideration petition on 6/15/23 and citing Shipley (4th DCA) found initial grant on 8/14/23 was within the 60 days allowed by LC 5909. Applicant filed a Petition for Writ of Mandate. The 1st DCA issued an OSC on 3/14/24. After multiple extensions, the WCAB's response was filed 5/21/24. The WCAB argued that petitioner seeks improper mandamus relief by asking the Court to compel the Appeals Board to exercise its discretion "in a particular manner" to "reach a particular result." Oral argument was requested by petitioner on 6/12/24. On 7/5/24, the COA invited the parties to submit supplemental briefing addressing the impact, if any, of AB 171. On 8/28/24 the COA issued a peremptory writ of mandate directing the WCAB to rescind their orders granting defendant's petition for reconsideration and opinions and decisions after reconsideration. Because defendant's petition for reconsideration was denied by operation of law under former LC section 5909 on 5/22/23, the WCJ's award of 100% PD and attorney's fees issued on 3/2/23, is now final. Certified for Publication. The WCAB filed a petition for rehearing on 9/12/24. Rehearing denied on 9/18/24. The WCAB filed a petition for review with the CA Supreme Court on 10/7/24. CA Supreme Court granted review 12/11/24. [ADJ10036954][A169465][S287261]

Calif Depart of Corrections and Rehabilitation v WCAB (Ayala)

Last Activity: 2/20/2025

Applicant prevailed on Serious and Willful action and argued the 50% increase in benefits should be based on the enhanced industrial disability leave (EIDL) rate rather than the TD rate. Defendants argued the calculation should be based on the TD rate, because EIDL is not a form of compensation created under Division 4 of the Labor Code but was rather conferred by the Government Code. The WCJ ruled the TD rate controlled calculation of the S&W award. The WCAB reversed on reconsideration. CDCR appealed. The DCA granted review, reversed, and remanded on 08/14/23. The Court followed the reasoning in Ellison (State of California v. WCAB (1996) 44 Cal.App.4th 128), which held that the 10% penalty for unreasonable delay of benefits under Section 5814 must be calculated using the TD rate, and not the EIDL rate. Applicant filed a petition for review on 09/27/23. The petition was granted on 12/13/23. The Institute filed an amicus brief on 3/20/24. Oral argument was completed 12/4/24. On 02/20/25, a unanimous CA SCt affirmed in full, finding that the board s conclusion was plainly inconsistent with the statutory definition of compensation as limited to compensation under the workers compensation law. (Lab. Code, 3207.) [E079076, S282013]

Zenith Insurance Company et al. v. WCAB (Chan)

Last Activity: 1/21/2025

Applicant claimed injury following an argument with and subsequent assault by a co-worker. The claim was denied based on an initial aggressor defense. The timeline of proceedings was 10/31/22 - Take nothing - initial aggressor; 11/23/22 - Petition for Reconsideration filed by applicant; 11/28/22 - Report and Recommendation on Reconsideration; 11/30/22 - File transmitted to Board; 01/17/23 - Board received notice (no known explanation for 11/30/22 - 01/17/23 delay); 03/03/23 - Petition granted for further study; 11/01/24 - Opinion and Decision after Reconsideration. The Board granted the petition on 03/03/23, which was within 60 days of the petition being "discovered", but more than 60 days after the file was transmitted to them. The Board's order included language regarding jurisdiction. "In so doing so, we sent a clear signal to the parties of our intention to exercise jurisdiction and issue a final decision after reconsideration. Neither party expressed any opposition to this course of action, and it appears clear from the fact that neither party sought judicial review of our grant of reconsideration that both parties have acted in reliance on our grant." On appeal, defendant argued the Board did not have jurisdiction to issue a decision once the 60-day period allowed by LC section 5909 elapsed, and that the order granting reconsideration for further study does not comply with LC sections 5903 and 5908.5. The Institute filed an amicus letter in support of Zenith's petition on 12/30/24. [H052785]

Castellanos v State of California

Last Activity: 7/25/2024

In 2020, voters passed Prop 22 giving app-based delivery companies an exemption from AB5/Dynamex and effectively confirming their drivers as independent contractors. A group of drivers successfully obtained a ruling from the Alameda Co. Superior Court declaring Prop 22 to be unconstitutional. That ruling is now before the 1st District Court of Appeal, and the sponsors of the original ballot measure have intervened. The 1st District Court of Appeal affirmed in part and reversed on 03/13/23. The DCA held Prop 22 does not intrude on Legislature's WC plenary authority or violate initiative single subject rule, but its definition of amendment violates separation of powers principles. As those unconstitutional provisions can be severed, that portion of judgement affirmed, and otherwise reversed. A petition for review was filed on 04/21/23, and granted on 06/28/23. Oral argument was completed 5/21/2024 and the matter was submitted 6/3/2024. On 7/25/24 the California Supreme Court affirmed the judgment of the Court of Appeal holding that Business and Professions Code section 7451 does not conflict with article XIV, section 4 of the California Constitution. [A163655] [S279622]

Vigil v County of Kern

Last Activity: 6/17/2024

On 6/10/24 the WCAB issued a new en banc decision clarifying the process for rebutting the Combined Values Chart (CVC) of the Permanent Disability Rating Schedule (PDRS). The WCJ calculated PD by adding the impairment to applicant's left and right hips, and then combining it with the impairment to the spine. Defendant appealed, contending the WCJ misapplied Kite to the hips. In Kite, the CVC was rebutted by substantial medical evidence showing the synergistic effect of the two impairments on applicant. Here the Board explained the term 'synergy' is not a "magic word" that immediately rebuts the use of the CVC. Instead, the physician must provide a reasoned analysis explaining how and why synergistic ADL overlap exists, which did not occur in this case. Rather than stopping there, the Board went on to note one significant point of confusion on the issue of overlap is that the analysis should focus on overlapping activities of daily living (ADLs), not overlapping body parts. The Board held that the CVC may be rebutted, and impairments added where the applicant establishes the impact of each impairment on ADLs and that either: (a) there is no overlap between the effects on ADLs between body parts or (b) there is overlap, but the overlap increases or amplifies the impact on the overlapping ADLs. [ADJ11201607][ADJ11201608]

Scheuing v. Lawrence Livermore National Laboratory

Last Activity: 3/27/2024

WCJ issued F&A on 12/1/23 finding 28% PD. Applicant timely filed for reconsideration on 12/18/23, claiming PTD. The district office transmitted case to WCAB on 2/21/24, which was WCAB's first notice of petition. WCAB did not act on petition until 3/27/24, over three months post recon filing. In a significant panel decision, the WCAB found because the failure to act on the petition was the result of administrative error, the time to act was tolled until 60 days post 2/21/24. Noting that while Labor Code 5909 states a petition is denied by operation of law if WCAB does not act within 60 days, WCAB does not deny petitions for recon by operation of law based on CA Supreme Court holdings that summary denials of recon are not sufficient after enactment of LC 5908.5. WCAB held Shipley allowed tolling of 60-day period when WCAB does not receive petition within 60 days due to irregularities outside party's control, noting they have relied on Shipley for 30 years, essentially ignoring Zurich, other than a footnote. [ ADJ8655364; ADJ14830172]

Mauser(dec) v. Mamba Sports Academy

Last Activity: 3/18/2024

Mauser died in a helicopter crash. Her dependents filed workers compensation and civil claims. Dependents resolved the workers compensation claim by stipulation for $563k. The civil claim was resolved for several times the value of the workers compensation claim. Defendant filed a redacted petition for credit and a complete petition under seal on 06/22/22. The WCJ deferred action on 07/06/22, pending a hearing. Defendant ceased death benefit payments on 11/08/22. Applicant sought the deposition of Vanessa Bryant and filed a petition to enforce the death benefit award. Bryant objected to the notice of deposition alleging she was improperly designated as the employer representative. The WCJ ordered Defendant to produce Bryant, reinstate benefits and awarded interest, penalties, sanctions, and attorney fees. The WCJ referenced the redacted petition only, noting the amount of net recovery was unknown. The WCAB denied reconsideration, adopting the WCJ s report on reconsideration. Writ was denied on 01/25/24. Defendant filed a Petition for Review on 02/02/24. A request to withdraw the Petition was filed on 2/21/24 and granted on 3/18/24. [ADJ13092614] [G063403] [S283692]

Zurich American Insurance Co. v. WCAB

Last Activity: 12/22/2023

On 12/18/23, the 2nd DCA held in Zurich American Insurance Co. v. WCAB, that LC 5909 shows clear legislative intent to terminate WCAB's jurisdiction to consider petitions for reconsideration after 60 days, and that decisions made after that date are void as in excess of the Board's jurisdiction. The Board contended writ relief was not appropriate because its decision to apply an exception to LC 5909 constituted a discretionary application of the exception recognized in Shipley. The Board noted delays in the transmission from the district office to the Board often occur because of the nature of EAMS or normal human error - not through the fault of the parties - therefore, an extension of time to respond was necessary to ensure due process to all parties. The Board stated these irregularities arose in approximately 1 percent of petitions before the COVID-19 pandemic and 5 percent thereafter. Because LC 5909 divests the Board of jurisdiction to consider a deemed-denied petition for reconsideration after 60 days have passed, the Court disagreed with the conclusion in Shipley that a petitioner has a due process right to review by the Board after the deadline. The Court stated that even if Shipley can be read to apply equitable principles to allow the Board to consider a petition for reconsideration beyond the statutory deadline, the exception must be applied only (1) where a diligent petitioner's rights were violated due to the fault of the Board (such as a lost petition), and (2) the Board misled the petitioner in a manner that deprived the petitioner of a right to review by the Board or the appellate courts. The Court said petitioners must be diligent by promptly seeking the status of their petitions, and if the Board does not act within the 60-day time period, by seeking review of the deemed-denied petition under LC 5950 within 45 days. The Court issued a writ of mandate directing the Board to rescind its order granting CIGA's petition for reconsideration and ordering Zurich dismissed as a party defendant. [ADJ487398] [B321864]

Nunes (Grace) v. State of California, Dept. of Motor Vehicle

Last Activity: 8/29/2023

On June 22, 2023, the WCAB issued their first non-COVID en banc decision since June 2020 in Grace Nunes v. State Of California, Dept. Of Motor Vehicles, Legally Uninsured. The Appeals Board held that Labor Code section 4663 requires a reporting physician to make an apportionment determination and describes the standard for apportionment. The WCAB found the Labor Code makes no provision for vocational apportionment, stating vocational evidence may be used to address issues relevant to the determination of permanent disability. Vocational evidence must address apportionment and may not substitute impermissible vocational apportionment in place of otherwise valid medical apportionment. The applicant's Petition for Reconsideration was denied by the WCAB en banc on August 29, 2023. The WCAB rejected applicant's contention that a vocational expert may substitute a competing theory of apportionment in place of otherwise valid legal apportionment. (ADJ8210063, ADJ8621818)

Earley et al v WCAB

Last Activity: 8/01/2023

Petitioners, all injured workers with pending Petitions for Reconsideration at the WCAB, filed a Petition for Writ of Mandate asking the 2d District Court of Appeal to force the WCAB to invalidate its practice of issuing "grant for study" orders as without statutory authority. On 5/4/2022, the COA issued an Order to Show Cause to the WCAB. Ironically, the COA granted the WCAB's request for an extension of time on 6/2/22. Oral argument was completed, and the case submitted on 3/29/23. On 4/25/23 the court vacated submission to allow briefing on attorney fees. A supplemental brief was filed by Petitioner on 5/15/23. The WCAB filed their response on 5/30/23. In a partial victory for petitioners, the Court invalidated the WCAB's grant and study process on 8/1/23. However, the Court further held the WCAB does not have to issue final decisions within 60 days. Petitioner attorneys were awarded $110k+ in attorney fees. [B318842]

Kuciemba v Victory Woodworks

Last Activity: 7/25/2023

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 held Oral Argument on March 10, 2022. On 4/21/22, the federal court ordered the case out of submission and certified two COVID-specific questions to the California Supreme Court regarding (1) whether the derivative injury rule applies to bar the claim, and (2) whether an employer owes a duty of ordinary care to the employee's household members. On 6/22/22, the California Supreme Court granted the Ninth Circuit's request to answer these questions of state law. Oral argument was completed 5/9/23. On 7/6/23, the Supreme Court answered both questions no, finding that exclusivity and the derivative injury rule did not bar Ms. Kuciemba's tort claim, and that the employer did not owe a duty to nonemployees to prevent the spread of COVID-19. As Victory owed no duty of care to Ms. Kuciemba, the 9th Circuit affirmed the district court's order dismissing the complaint on 7/25/23. CWCI participated as joint amicus with the US and California Chambers of Commerce. [S274191]

California Capital v Employers Compensation

Last Activity: 6/22/2023

The WC carrier has filed an appeal after the trial court issued an order for equitable contribution to the GL carrier, in a case where two employees were in a motor vehicle accident after drinking following their shifts at the insured restaurant. The GL carrier settled with the passenger for policy limits of $2 million and an assignment of rights from the insured. The GL carrier then sued the WC carrier for equitable contribution, alleging the two employees were in the course and scope of their employment. CWCI amicus application was granted 10/12/22. Decision reversed and remanded with costs on 03/03/23. Decision Published on 03/20/23. Petition for review filed with the California Supreme Court on 5/2/23. The petition for review was denied on 06/21/23. [G060532]

Manuel v Superior Court / BrightView Landscape

Last Activity: 10/27/2022

The employee has filed an appeal after the trial court found that the Federal Immigration Reform Act directly contradicts and preempts California statutes (SB 1818) and ordered him to respond to interrogatories regarding his immigration status in his wrongful termination claim. The Court of Appeal issued an Order to Show Cause to the Superior Court. The Court of Appeal issued a writ of mandate on 8/26/22, ordering the trial court to vacate the discovery order. [H048665]

Bierbach v Digger's Polaris

Last Activity: 6/21/2022

The US Supreme Court is considering a request by the injured worker to grant review of a Minnesota Supreme Court decision holding that the federal Controlled Substances Act preempted a state law requiring an employer to reimburse an injured employee for the cost of medical marijuana used to treat a work-related injury. The petition was denied on 062122. [USSC Docket 21-998] [see listing for companion case in Musta]

Musta v Mendota Heights Dental Center

Last Activity: 6/21/2022

The US Supreme Court is considering a request by the injured worker to grant review of a Minnesota Supreme Court decision holding that the federal Controlled Substances Act preempted a state law requiring an employer to reimburse an injured employee for the cost of medical marijuana used to treat a work-related injury. The petition was denied on 062122. [USSC Docket 21-676] [see listing for companion case in Bierbach]

See's Candies v. Superior Court (Ek)

Last Activity: 4/13/2022

The Court of Appeal 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. The California Supreme Court denied the employer's petition for review on 4/13/22. [B312241] [S272923]

CCPOA v. WCAB (Martin)

Last Activity: 1/28/2022

At the request of the WCAB, the Court of Appeal has published its decision finding, in part, that a DIR Newsline regarding pandemic appearances was adequate notice that a previously scheduled hearing would take place telephonically, and that lien claimant's due process rights were not violated when a hearing originally noticed as in-person was automatically converted to a telephonic hearing pursuant to DIR Newsline 2020-37. [C093293]

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.

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