An employee of an uninsured independent contractor can collect Workers’ Compensation

This is a non published appellate court case

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

A homeowner hired a Tree Care service to remove a tree and trim four other trees. The owner of the tree service was not licensed. He advertised on Yelp that he was bonded and insured. He did not have workers’ compensation insurance.

The owner of the tree service showed up at the homeowners property with a worker to do the work. The homeowner did not know the tree service owner brought a worker to assist.

The worker fell 10 feet off a ladder injuring himself. The injured worker brought a civil suit. The homeowner moved for summary judgment claiming the injured worker was not his employee but an independent contractor.

The summary judgment was granted. The superior court indicated that the homeowner was vicariously liable because the tree service owner did not secure workers’ compensation insurance. They ruled an employee of a negligent contractor can recover under the workers’ compensation system even if the contractor is uninsured. The injured worker can recover against the homeowner.

The court looked at Labor Code section 2750.5 and still ruled the injured worker was an employee of an uninsured independent contractor. Therefore, the homeowner was liable under the workers’ compensation system.


Alleging Psychiatric injury for first time on Petition for New and Further Disability

This is an Opinion and Order Granting Reconsideration

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

The applicant had an admitted injury. The applicant entered into a Stipulated Award for orthopedic body parts in 2011. Thereafter, the applicant filed a timely Petition to Reopen. The applicant alleged new and further disability, including the need for psychiatric care. This was the first time psychiatric care was alleged.

The case went to trial. The defendant alleged the claim was barred by the doctrine of res judicata. They also alleged that the injury is not a new and further disability. Defendant claimed the applicant knew of the psychiatric injury at the time of the original stipulation and there was not good cause to reopen.

The Workers’ Compensation Judge (WCJ) found the psychiatric injury compensable. Defendant filed a petition for reconsideration. This opinion is in response to that. The Workers” Compensation Appeals Board indicated that a psychiatric condition does not fall within the workers compensation system until it causes either disability or a need for treatment and it is diagnosed. It was error for the WCJ to find the psychiatric injury AOE-COE. Instead the psychiatric injury is a compensable consequence of the original injury. It was not a new and independent injury.


A non published case ruling that there was no 132 (a) violation and the decision was res judicata

This is a non-published case of the Court of Appeal

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

The applicant had an admitted injury. The applicant was on temporary disability and then returned to work. The applicant then went off work again. The employer disputed whether this was industrial. The applicant returned to work and was suspended from work pending an investigation as to her absence.

The applicant was eventually terminated and filed a claim for discrimination under Labor Code section 132(a).

There was a Compromise and Release. The applicant went to trial on the 132(a) claim and the Workers’ Compensation Judge (WCJ) found in the applicant’s favor and ordered the defendant to reinstate the applicant.

The employer filed a petition for reconsideration and the WCJ reversed his prior ruling. The applicant filed for reconsideration but the Workers’ Compensation Appeals Board (WCAB) agreed with the WCJ and denied the petition. The applicant did not file for review with the Court of Appeal within 45 days.

The applicant made a request for reinstatement when she had already been terminated. Therefore, no employment relationship existed.

They discuss the Lauher case and the reason she did not file timely for writ. They indicate that just because the applicant was unrepresented they cannot violate jurisdictional rules and the case was res judicata. Therefore, there was no 132(a) claim.


Appellate Court reviews Going and Coming rule and Special Mission Exception

This is a published case of the Court of Appeal

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

The applicant was a correctional officer and was killed in an automobile accident while driving home from work. The applicant had finished his normal shift of work and was required by his watch commander to also work the next shift.

An Application for Workers’ Compensation death benefits was filed. The issue was whether the applicant was acting within the course and scope of his employment under Labor Code section 3600, (a)(2). The Workers’ Compensation Appeals Board (WCAB) denied benefits.

The appellate court examined the “Going and Coming Rule” and the “Special Mission” exception. They evaluated whether this was an extraordinary event for the applicant to be held over for an extra shift. They determined it was not, because there were official procedures for hold over shifts. There were also established procedures and these were similar to the usual responsibilities.

The court reviewed cases on the “Going and Coming Rule”. They also reviewed cases on the “Special Mission rule”. They then reviewed the rationale underlying the rule.

This is a very long and well reasoned case to review when confronted with this type of case.


A Published case on Petition to Reopen for New and Further Disability

This is a published case of the Court of Appeal

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

The applicant had an admitted injury when he fell off a roof fracturing his right ankle and injuring his back. The applicant was evaluated by an Agreed Medical Examiner (AME). A stipulated award was entered into for 51 percent permanent disability.
 
Thereafter, the applicant filed a petition to reopen for new and further disability. The AME evaluated the applicant again after the filing of the petition  and raised the percent of disability based on an EMG. 
 
The EMG was actually performed prior to the first stipulated award. The case proceeded to  trial. The Workers’ Compensation Judge (WCJ) issued a decision finding the applicant did not sustain a new and further disability. The applicant filed a petition for reconsideration.  The WCJ vacated his original finding and raised the applicant’s disability.
 
The Workers’ Compensation Appeals Board (WCAB) disagreed and indicated the applicant did not sustain new and further disability.
 
The appeals court reviewed Labor Code section 5803 and reversed. The stipulated award did not adequately reflect the disability of the applicant. Whether the original stipulation was the result of inadvertence, excusable neglect, or mistake of fact, the error justifies reopening the resulting award.


Another non published case validating the Valdez v WCAB decision in regards to non MPN reports admissibility

This is a non published case of the Court of Appeal

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

The applicant had an admitted injury. The applicant claimed additional body parts that were not admitted. The applicant sought treatment from numerous physicians.

The case went to trial. The Workers’ Compensation Judge (WCJ) awarded the applicant two percent disability. The WCJ excluded reports of seven physicians because the applicant failed to follow procedures in Labor Code section 4062. The WCJ cited the en banc decision of the WCAB in Valdez that barred medical reports generated by medical treatment outside the medical provider network (MPN).

On petition for reconsideration the WCAB affirmed the WCJ decision. On the same day as the WCAB decision the Court of Appeal issued an opinion that non MPN reports were admissible. This case was stayed pending review by the Supreme Court. The Supreme Court affirmed the court of Appeal decision.

After the decision by the Supreme Court this case is referred back to the WCAB to rule on admissibility of medical reports following the ruling in the Valdez case.


An Unpublished Court of Appeal case deals with the Evidence Code in Workers’ Compensation proceedings

This is an unpublished case of the Court of Appeal

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

The applicant had an industrial injury. The applicant also had a subsequent aggravation of the original industrial injury. The applicant noticed the deposition of the claims examiner and sought production of claims notes from the defendant. The defendant moved to quash the subpoena.

The claims examiner appeared at the deposition and produced a privileged log for the requested documents. The applicant made a further claim for the documents on the privilege log.

A trial was held on the issue of the documents in the privilege log. The Workers’ Compensation Judge (WCJ) after hearings eventually determined some documents were not privileged. Defendant filed for reconsideration and the Workers’ Compensation Appeals Board (WCAB) returned the matter to the WCJ with instructions to appoint a Special Master to review the documents.

The defendant filed a writ. The appellate court never reached the final decision of whether the documents were privileged but indicated that the WCAB could not appoint a Special Master. They also indicated that Evidence Code section 915 applies to workers’ compensation.


A writ denied case on lien claimant’s failure to appear results in dismissal of claim

This is a writ denied case of the court of Appeal

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

The applicant had an industrial injury. The applicant was treated by Lien Claimant. The case-in-chief settled and a lien conference was set. When the lien conference notice came in, the Lien Claimant sent the notice and the file to their general counsel. They did not include instructions for the general counsel to appear at the lien conference.

Lien Claimant believed their general counsel would appear at the lien conference. Neither Lien Claimant nor their general counsel appeared.

The Workers’ Compensation Judge (WCJ) issued a Notice of Intention to Dismiss the lien of $166,399.28 for non-appearance. The Notice was served on Lien Claimant and no timely objection was filed.

The WCJ issued the Dismissal of the lien. The Lien Claimant filed a Petition for Reconsideration. The Workers’ Compensation Appeals Board (WCAB) denied the petition stating the Lien Claimant did not show good cause for their non-appearance.

The Lien Claimant then filed a Writ, which was denied, thus the lien was dismissed.


An En Banc decision of the Workers’ Compensation Appeals Board (WCAB) on return to Qualified Medical Evaluator

This is an En Banc decision of the WCAB

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

The applicant was a police officer. The applicant filed a cumulative trauma. The applicant was referred to a Qualified Medical Evaluator (QME) for this injury.

Thereafter, the applicant had two subsequent claims of injury. These involved the same parts of the body as the original injury.

The defendant petitioned to have the original QME evaluate the two subsequent injuries but did not seek to have the applicant reevaluated for the original injury.

The case went to trial on the sole issue of whether the applicant had to return to the original QME for the two subsequent dates of injury. The Workers’ Compensation Judge (WCJ) ruled that the applicant was entitled to a new panel QME for the two subsequent injuries. The defendant filed a Petition For Removal and The WCAB issued this En Banc decision.

The WCAB reviewed rule 35(c). They also reviewed Labor Code Sections 4060, 4062.2, 4062.3 and 4064. Because the two specific claims were reported after the original QME evaluation and before a reevaluation the WCAB determined the applicant was entitled to a new QME. HB


A published decision of the appellate court on whether 4850 time covers a return to modified duty

This is a published court of Appeal case

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

The applicant was a deputy sheriff. The applicant had a work related injury. The applicant worked the night shift and was given an extra 5% for working the night shift. When the applicant returned to work the applicant was returned to modified duty by his physician. He was not allowed to work the night shift on modified duty. He was still given full salary but not the extra 5%.

The applicant filed for a hearing contending under Labor Code section 4850 he was entitled to the shift differential. A Workers’ Compensation Judge (WCJ) agreed with the applicant and awarded the applicant the extra 5%. On petition for reconsideration the Workers’ Compensation Appeals Board (WCAB) agreed with the WCJ.

The applicant contended before the appellate court that because he was on modified duty he was on a leave of absence from full duty and thus entitled to the extra 5%.

The appellate court determined that because the applicant was back at work he was not on a leave of absence and therefore, not entitled to 4850 time. Thus, there was no 4850 time while on modified duty.


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