The Unpublished Cases Review Committee Continues to Successfully Petition for Publication of Appellate Decisions

The Unpublished Cases Review Committee reviews unpublished opinions of the Court of Appeal which are of importance to the workers’ compensation community and decides whether a petition seeking an order to publish the opinion is appropriate.  A panel of retired judges and practitioners who serve on the Unpublished Cases Review Committee reviews the Court’s opinion and then votes whether to petition the Court for publication and provides an explanation in support of their vote.  Committee co-chairs, Kenneth Sheppard and Scott Silberman, then petition the Court explaining how the opinion satisfies various sections of California Rules of Court, Rule 8.1105, which sets forth the requirements for publication.  

Recently, petitions were filed and granted in the following decisions: 

1. United Indian Health Svcs. v. Workers’ Comp. Appeals Bd. (Hemstead)

The Indian Health Board is a tribal entity which is immune from suit in state and federal court.  United Indian Health Services is a subcontractor of the Indian Health Board, created by several tribes to provide healthcare services to groups of Indian people.  Respondent Hemstead was injured while working for United Indian Health Services and filed an application with the WCAB.  United Indian Health Services argued that because it was closely affiliated with the Indian Health Board, it was entitled to the tribe’s immunity, and therefore California’s workers’ compensation system lacked jurisdiction. 

The WCJ considered the five factors set forth in the California Supreme Court case People v. Miami Nations Enterprises to determine whether or not a tribal affiliate should be considered an “arm of the tribe” and therefore entitled to the tribe’s immunity.  On the whole, the WCJ determined that the five factors weighed against sovereign immunity, and ruled that Hemstead’s case could proceed at the WCAB.  On review, the Court of Appeal weighed the same five factors.  It agreed with the WCJ’s rationale in some respects and disagreed in others, but overall, the Court found that after considering the five factors set forth in Miami Nations, United Indian Health Services did establish that it is entitled to tribal sovereign immunity. 

2. DPR Construction v. Workers’ Compensation Appeals Bd. (McClanahan)

Respondent Alonzo McClanahan alleged a right shoulder injury while working for Petitioner DPR Construction.  DPR initially denied liability for the claim.  Dr. Hanley was the original QME and wrote two reports, but was later replaced by subsequent QMEs.  At the MSC, Dr. Hanley’s reports were not listed as exhibits on the pretrial conference statement.  The case proceeded to trial, where McClanahan’s credibility was at issue due to evidence containing conflicting statements regarding the history of the injury.  Nonetheless, the trial judge found a compensable injury, specifically relying on McClanahan’s “credible testimony.”  The trial judge also admitted the two medical reports from Dr. Hanley into evidence.  On reconsideration, the WCAB affirmed the trial judge’s determination in a two-to-one split panel decision.  DPR Construction then filed a petition for writ of review, contending that the WCAB acted in excess of its powers by (1) failing to state the reasons for finding McClanahan credible, and (2) admitting reports that were not listed on the pretrial conference statement.

The Court of Appeal disagreed that the WCAB needed to state the reasons for finding McClanahan credible.  Specifically, the Court reasoned that the trial judge’s finding of an industrial injury was based on McClanahan’s testimony, the treatment records, and the QME’s findings, all of which were described in detail.  The Court rejected the view that additional detail regarding credibility findings was required.  However, the Court of Appeal agreed that admitting the two reports from Dr. Hanley into evidence when they were not listed on the pretrial conference statement was reversible error.  In doing so, the Court specifically rejected the WCAB’s contention that admission of the reports was harmless error because Dr. Hanley’s reports did not form the basis of the trial judge’s decision.  Applying longstanding precedent, the Court found that the error in admitting the reports could not be reviewed for harmlessness.  For this reason, the Court annulled he Board’s decision and remanded the case for reconsideration without reference to Dr. Hanley’s reports.