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 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 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.


A published decision of the Court of Appeal addresses Almaraz/Guzman-II issue of rating with no objective findings

This is a published court of Appeal case

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

The applicant was a police officer. He injured his left foot and heel. This was an admitted injury. He was diagnosed with plantar fasciitis.

An Agreed Medical Examiner (AME) wrote a report offering no impairment under the AMA Guides. In a supplemental report the doctor gave a 7 percent impairment using Almaraz-Guzman-II, because other than tenderness, no objective findings were identifiable.

At trial the Workers’ Compensation Judge (WCJ) found no impairment because the condition was not “ complex or extraordinary”. On petition for reconsideration the Workers’ Compensation Appeals Board (WCAB) reversed indicating that the doctor by analogy provided an accurate assessment which met the requirements of Almaraz/Guzman-II.

The appellate court reviewed Almaraz/Guzman-II and indicated that even though the plantar fasciitis was only manifested by subjective experiences of pain a 7 percent permanent disability was warranted. This was equivalent to an analogy of a limp with arthritis.


A non published Court of Appeal case has indicated a professional athlete is not entitled to benefits in California

The applicant was a professional basketball player in the Women’s National Basketball Association (WNBA). The applicant did not reside in California during her career in professional basketball.

She played one game in California on July 20, 2003.

She did not have a specific injury on that date. She filed a cumulative trauma for her multiple basketball injuries with the Workers’ Compensation Appeals Board (WCAB).

A Workers’ Compensation Judge (WCJ) awarded disability benefits and the defendant filed a petition for reconsideration. The WCAB rescinded the award and returned it to the WCJ for apportionment purposes. The defendant filed a writ with the Court of Appeals.

The Court of Appeal issued this decision even though there was no final decision or order from the WCAB.

The appellate court indicated California does not have sufficient interest to apply its workers’ compensation law or to retain jurisdiction over the case. As a matter of due process, California has no obligation to the applicant.


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.


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.


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