Legal Brief Bank


Calif Depart of Corrections and Rehabilitation v WCAB (Ayala)

Last Activity: 3/21/2024

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. [E079076, S282013]

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]

Castellanos v State of California

Last Activity: 2/01/2024

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. [A163655] [S279622]

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.

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. [E076291]

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]

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