The Supreme Court Issued A Decision on The Admissibility of Non MPN Reports in the Valdez Case

The applicant suffered an injury at work. The applicant began treatment with a physician in the employer’s Medical Provider Network (MPN). The applicant was dissatisfied with that doctor. She did not change doctors within the network or seek a second or third opinion with an MPN doctor. Instead, the applicant sought treatment from a non MPN doctor.

The applicant sought temporary disability based on the reports of the non MPN doctor. The employer objected under Labor Code section 4616.6.

At a hearing, the Workers’ Compensation Judge (WCJ) ruled the reports of the non MPN doctor were admissible. The Workers’ Compensation Appeals Board (WCAB) on reconsideration rescinded the WCJ award and indicated section 4616.6 precluded admi ssion of the non MPN report. The Court of Appeal annulled the WCAB decision.

The Supreme Court indicated that section 4616.6 is not a rule of exclusion of other reports. The Board can consider medical reports generated outside the MPN when reviewing applications for disability benefits.

A Non Published Court of Appeal Case has reversed a finding of serious and wilful misconduct by the employer

The applicant was injured while working for a temporary agency at a job site assigned by the agency. The applicant was operating a table saw that was unsteady and lacked a guard over the blade. The applicant filed a Serious and Wilful claim against both the temporary agency and the site the applicant was working at when he was injured.

The applicant reported problems to the temporary agency at the working site prior to his injury. Cal-OSHA cited the site the applicant worked at for the table saw.

At trial the Workers’ Compensation Judge (WCJ) found the temporary agency committed Serious and Wilful Misconduct. The Workers’ Compensation Appeals Board (WCAB) affirmed the decision.

The appellate court indicated that there would be joint and several liability because the employers were exercising joint control.

Here they found there was no liability because there was no actual knowledge that serious injury was probable. In this instance they found it was negligence at best, which is insufficient to make a finding of a Serious and Wilful misconduct.

A published Court of Appeal case has really extended the concept of the going and coming rule without addressing it

The employee left the office at the end of the work day and began driving in the direction of home. She decided on the way to stop for a frozen yogurt and take a yoga class. She deviated from her home direction and made a left turn into the yogurt shop. She ran into a motorcycle injuring the driver. The driver brought an action against her and her employer. The trial court granted summary judgment releasing the employer from liability. The appellate court reversed.

The appellate court indicated the employer required the employee to use her personal vehicle to travel to and from the office and make other work-related trips throughout the day. They indicated that the planned stops for frozen yogurt and a yoga class did not change the incidental benefit to the employer of the employee using her personal vehicle to travel to and from the office and other destinations. The planned stops did not constitute an unforeseen, substantial departure from the employee’s commute. They indicated this was a foreseeable, minor deviation. Finally, the planned stops were not so unusual that it would be unfair to include the resulting loss among the other costs of the employers doing business.

In a non published decision the appellate court discusses apportionment between specific and cumulative trauma

The applicant sustained a specific injury on June 15, 2001. Three years later, she submitted a second claim for a cumulative trauma from 1998 to 2004. There was a stipulation to injury for the specific and cumulative trauma.

The case went to trial on nature and extent of disability. The Workers’ Compensation Judge (WCJ) found a 29% disability for the specific and a 100% disability for the cumulative trauma. There was no apportionment on the 100% award. The commuted award was for $2,005,089. Defendants petitioned for reconsideration and the Workers’ Compensation Appeals Board (WCAB) upheld the decision resulting in this appeal. There were numerous Amicus Curiae briefs.

The appellate court indicated that where an injured employee has a prior permanent disability they must apportion.

Apportionment is required for each distinct industrial injury. Each injury must stand on its own. Here it was determined there was overlap between the injuries and that apportionment must take place. The court questions whether a doctor can determine 100% without expert testimony.

In a published opinion the court of appeals upholds finding of Res Judicata

The applicant was injured in 1999 and 2000. In 2002, a Joint Stipulation with Request for Award was entered into. There were two insurance companies. Thereafter, one insurance company went into liquidation and CIGA assumed administration of the claim. State Farm was to reimburse CIGA 25 percent of all benefits paid.

In 2008, CIGA filed a petition for dismissal. The record reflects there was no action on this petition. Five years later CIGA sought to be relieved as administrator of the claim. The Workers’ Compensation Judge (WCJ) ruled that the Workers’ Compensation Appeals Board (WCAB) was without jurisdiction to rescind or alter the award. Two decisions were issued by the WCJ and WCAB in 2008 and 2009, and CIGA did not appeal those decisions. Therefore, the WCAB ruled they were now final and “law of the case.”

The appellate court looked at CIGA’s liability to only be liable for “covered claims.” In spite of the law governing covered claims, CIGA failed to seek judicial review of the WCAB decisions of 2008, 2009, and 2011. In that light, the court indicated the strong public policy of CIGA being liable for covered claims does not outweigh the policy of having finality to a decision. Therefore, the initial decisions against CIGA were deemed Res Judicata.

A key decision in football cases was decided by the Workers’ Compensation Appeals Board (WCAB)

The applicant was a professional football player. The applicant resided in Florida. He signed a professional football contract with New Orleans outside of the State of California. While employed with New Orleans he played 5 of his 32 games in the State of California. He also played for the Bengals and played 1 of 16 games in California. He filed a cumulative trauma case in California, after retirement.

The Workers’ Compensation Judge (WCJ) found the applicant suffered a cumulative trauma and awarded the applicant a 40 percent disability. The team appealed.

The WCAB found the applicant and the employer are exempt from California law where the applicant was hired outside the state and under the following conditions: The applicant temporarily works in California, the employer provided workers’ compensation coverage in another state (here it was Ohio), if the other state recognizes California’s extraterritorial provisions, if the other state exempts California from coverage of California’s workers’ compensation laws.

This was the case here, thus California did not have to pay benefits.

Civil case defines respondeat superior liability, the going and coming rule and its exceptions

An employee was on his way to a breakfast meeting with a former colleague. He made a left turn and hit two pedestrians, killing one and injuring the other. The plaintiff brought a law suit trying to sue the employer indicating the breakfast meeting was work related and fit an exception to the going and coming rule.

There is an excellent discussion of respondent superior liability. This dealt with whether the employer could be vicariously liable for the employee’s actions.

To analyze this the court looked at the “going and coming rule”. Employees are generally not within the scope and course of employment on the way to work.

The court then looked at the exceptions to this rule. The first exception was the “special errand rule”. This breakfast meeting was not considered a “special errand”.

The next exception was the “required vehicle exception”. This requires benefit to the employer.

The court then looked at substantial departures from the employers’ business. Here it was determined the breakfast meeting was not work related.

In a published decision the court discusses “good faith personnel action” under Labor Code section 3208.3(h)

The applicant was a supervising probation officer. The applicant counseled two officers which resulted in an internal affairs investigation. The applicant became upset and filed a psychiatric claim.

The parties went to an Agreed Medical Examiner (AME) who found the claim compensable. The Workers’ Compensation Judge (WCJ) and the Workers Compensation Appeals Board (WCAB) determined after multiple hearings that this was not a “good faith personnel action” under Labor Code section 3208.3(h).

The appellate court reversed and remanded for further hearings. There is a very good description of what constitutes a good faith personnel action on page five. Whether there has been a psychiatric injury must be established by expert medical opinion. Then the WCAB must decide that the actual events of employment were personnel actions that caused the injury. If the personnel actions were a “substantial cause” (35 to 40 percent) of the psychiatric injury it is not compensable. The medical expert has no authority to decide whether it is a personnel action. “Like a house built on sand, the expert’s opinion is no better than the facts on which it is based.”

In a panel decision the WCAB determined that a minor is entitled to the death benefit

The applicant was the minor son of a father who died in a work related motor vehicle accident. His mother was a total dependent. There was a minor daughter of a previous marriage.

A workers’ Compensation Judge (WCJ) found the minor son to be a total dependent and awarded him one third of the death benefit. The minor daughter of the previous marriage appealed contending she was entitled to the entire death benefit for minor children. The issue was that the minor son was excluded because his mother was a totally dependent spouse.

The panel decision was split with a dissenting opinion. The majority analyzed Labor Code sections 4703.5 and 3501. They also looked at legislative history and determined that there was nothing intended to deny the special benefit to a totally dependent child who lives with his totally dependent mother. Therefore, the minor son was entitled to the special death benefit.

The dissent would have excluded the minor son based on the statutes.

In an en banc decision the WCAB determined they do not have jurisdiction over an Arizona football player

This is an En Banc decision of the Workers’ Compensation Appeals Board (WCAB)

This is a very significant case for workers’ compensation principles.

The applicant suffered a cumulative trauma injury during four years as a football player with the Arizona Cardinals. He played in 80 games of which 40 were in Arizona. The other 40 games were in 16 different states, whereof 7 games were in California.

The applicant filed an application for adjudication in California. His contract of employment indicated that his principal place of employment was in Arizona and that claims for workers’ compensation shall be filed in Arizona.

The Workers’ Compensation Judge (WCJ) indicated that the WCAB does not have to exercise jurisdiction over the applicant’s case and issued a “take nothing”. Applicant petitioned for reconsideration.

The WCAB determined that it has jurisdiction to decide if California is the proper forum to decide applicant’s claim. The WCAB agreed with the WCJ that California was not the proper forum. Arizona has a materially greater interest in determining workers’ compensation benefits for an Arizona resident.

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