Appellate Oral Arguments in Workers’ Compensation Cases

The California Lawyers Association Workers’ Compensation Executive Committee, subcommittee on Technology and Social Media, offers access to our section members to listen to the following oral arguments made in Workers’ Compensation cases at various Districts of the California Court of Appeals.

County of Santa Clara v. Workers’ Compensation Appeals Board (Justice), 49 Cal. App. 5th 605. Oral Argument 4/15/20 by telephonic appearance only

Whether the Board erred in rejecting non-industrial apportionment to applicant’s pre-existing, degenerative bilateral knee arthritis, where bilateral knee replacement surgery improved her ability to walk and engage in weight-bearing activities but resulted in higher permanent impairment compared with her pre-surgery condition; the Board cited Hikida v. Workers’ Comp. Appeals Bd. (2017) 12 Cal.App.5th 1249 [82 Cal.Comp.Cases 679] in support of its decision.

HOLDINGS: Apportionment between industrial and nonindustrial causes was required under Lab. Code, §§ 4663 and 4664, because a workers’ compensation claimant’s permanent disability was caused, in part, by an extensive preexisting knee pathology, given that the agreed medical examiner’s initial report, five supplemental reports, and two depositions were unrebutted and constituted substantial medical evidence that the claimant’s preexisting knee pathology was a significant causal factor in producing her permanent disability following total knee replacement surgery.

Outcome

The WCAB’s decision annulled, and the matter remanded to the Board with directions to make an award apportioning Justice’s permanent disability 50 percent to nonindustrial factors and 50 percent to her industrial injury.

Rodriguez v. Workers’ Compensation Appeals Board 39 Cal. App. 5th 195. Oral Argument: 6/18/19

Whether the Board erred in concluding that a petition for industrial disability retirement and a petition for finding of fact, filed by a police officer who sustained a work injury in a cumulative trauma ending in 2007, are barred by the statute of limitations, though the officer’s disability was found to be industrial in nature under Govt. Code section 21166.

HOLDINGS: [1]-A municipal employee timely asserted an industrial disability claim within two years after retirement, but more than five years after the injury, because the two-year period for a California Public Employees’ Retirement System member claiming an industrial disability to apply for a determination under Gov. Code, § 21174, governed the timeliness of the initial determination and the five-year period to rescind, alter, or amend a determination under Gov. Code, § 21171, was inapplicable when no initial finding had been made as to industrial disability; [2]-The requirement to file an application within two years of retirement for a determination of industrial disability referenced the authority of the California Workers’ Compensation Appeals Board to make a determination of industrial injury under Gov. Code, § 21166, when such a claim was disputed.

Outcome: Annulled and remanded.

Skelton v. Workers’ Comp. Appeals Bd., 39 Cal. App. 5th 1098. Oral Argument: 8/20/19

Whether the Board erred in denying temporary disability indemnity for time lost from work by an injured employee to attend medical treatment appointments, where she returned to work after her industrial injuries but her medical condition resulting from those injuries had not become permanent and stationary.

HOLDINGS: [1]-Petitioner was not entitled to temporary disability indemnity (TDI) for wage loss arising from her time off from work to attend appointments for medical treatment. The employer’s obligation to pay temporary disability benefits was tied to petitioner’s actual incapacity to perform the tasks usually encountered in her employment and the wage loss resulting therefrom. Petitioner took time off from work because she could not schedule medical treatment during nonwork hours. Neither petitioner’s time off from work nor her wage loss was due to an incapacity to work. Rather, these circumstances were due to scheduling issues and her employer’s leave policy. Because petitioner’s injuries did not render her incapable of working during the time she took off from work and suffered wage loss, she was not entitled to TDI for that time off or wage loss.

Outcome: Decision affirmed.

Zuniga v. Workers’ Comp. Appeals Bd., 19 Cal. App. 5th 981. Oral Argument: 12/19/2017.

Holding: [1]-In a case in which a workers’ compensation claimant filed a petition requesting the California Workers’ Compensation Appeals Board (WCAB) to order an independent medical review (IMR) organization to disclose the identities of the first and second IMR reviewers to the parties or to the administrative law judge, the appellate court concluded that Lab. Code, § 4610.6, subd. (f), prevented the WCAB from ordering the IMR organization to disclose the names of the reviewers; [2]-Cal. Const., art. XIV, §4, supersedes the California Constitution’s due process clause with respect to legislation passed under the legislature’s plenary power over the workers’ compensation system; [3]-The claimant did not demonstrate that his due process rights were violated by the statutory provision that the identity of IMR reviewers must remain confidential.

City of South San Francisco v. Workers’ Comp. Appeals Bd., 20 Cal. App. 5th 881. Oral Argument 2/15/18.

HOLDINGS: [1]-In denying an employer’s petition to allocate responsibility to a subsequent employer of a workers’ compensation claimant under Lab. Code, § 5500.5, subd. (a), an arbitrator found that the claimant had injurious exposure to carcinogens while working for both employers and that the date of injury was during the earlier employment; [2]-Because the Lab. Code, § 3212.1, presumption that the claimant’s cancer arose out of employment as a firefighter did not govern the allocation of responsibility, the arbitrator correctly made no finding that the subsequent employer had rebutted the presumption; [3]-Substantial evidence supported the decision because the arbitrator reasonably found expert medical testimony regarding the latency period for the claimant’s cancer to be credible and persuasive.

Dynamex Operations West, Inc. v. Superior Court, 4 Cal. 5th 903  Court of Appeal Oral Argument: 10/03/2014.

California Court of Appeal Clarifies Application of the ABC Test for Independent Contractors.

HOLDINGS: [1]-In determining whether to classify workers as employees or as independent contractors for purposes of California’s wage orders enacted under the authority of Cal. Const., art. XIV, § 1, and Lab. Code, §§ 1173, 1178, 1178.5, 1182, 1185, the “suffer or permit to work” standard set forth in the wage orders required a hiring entity asserting independent contractor status to establish each of the three factors of the ABC test and show that a worker was free from its control, performing work outside the usual course of its business, and customarily engaged in independent work; [2]-A sufficient commonality of interest under part of the ABC test adequately supported the trial court’s certification of a class of drivers who worked for a delivery service company, performed delivery services only for the company, and alleged that they had been misclassified as independent contractors.

The Dynamex decision drastically altered the applicable standard used for the past three decades to evaluate a worker’s proper classification as an employee or independent contractor.

The new and more stringent classification test, commonly called the “ABC Test,” presumes workers are employees as opposed to independent contractors, unless the employer can prove that the following three factors are met: (1) the worker is free from the control and direction of the presumed employer in connection with the work performed, both under the contract and in fact, and (2) the worker performs work outside the usual course of the presumed employer’s business, and (3) the worker is “customarily engaged” in an independently established trade, occupation, or business as the work he or she is performing for the presumed employer.

The Dynamex decision raised many questions regarding the applicability and scope of the ABC Test. In Garcia v. Border Transportation Group, LLP, the California Court of Appeal clarified that the ABC Test only replaced the Borello Test as applied to wage and hour claims brought under the Industrial Welfare Commission (IWC) Wage Order. The more forgiving multi-factor Borello Test is still the applicable standard in non-wage and hour claims to determine whether a worker is an independent contractor or employee. Furthermore, the Garcia court clarified that the third prong of the ABC Test is only satisfied if the worker is actively engaged in an independent business, not if the worker could have engaged in an independent business or was permitted to engage in an independent business.

Impact of the Decision

The Garcia court’s decision that the ABC Test is only applicable to wage order claims may help with pending litigation, as classification will be evaluated under a less strict standard for non-wage order claims, thus easing the magnitude of liability to employers. Moving forward, however, employers should still reclassify workers as employees who do not undoubtedly meet all three requirements of the ABC Test.

The ABC Test still creates the presumption of an employer-employee relationship for wage and hour claims, for which employers want to avoid liability. Continued litigation regarding scope and applicability of the ABC Test is expected.

County of San Diego v. Workers’ Comp. Appeals Bd., 21 Cal. App. 5th 1. Filed March 6, 2018.  (Pike) Oral Argument: date not indicated.

Whether the board erred in determining that for a date of injury on or after January 1, 2008, Labor Code § 4656 (c)(2) permits an award of total temporary disability for periods beyond 5 years from the date of injury, where applicant timely reopened his case and temporary total disability commenced prior to 5 years from the date of injury.

HOLDINGS: [1]-Because Lab. Code, § 4656, subd. (c)(2), imposed a five-year time limitation on temporary disability awards, a worker could not be awarded temporary disability benefits for periods of disability occurring more than five years after the injury; [2]-Whether or not jurisdiction existed to rule on the worker’s petition to reopen, no award could be made in contravention of the five-year time limitation because the jurisdictional limitations in Lab. Code, §§ 5410, 5803, 5804, were separate and distinct from the substantive time limitations; [3]-The rule of liberal construction under Lab. Code, § 3202, could not justify an erroneous construction of a statute and thus provided no support for the award; [4]-No deference could be given to the California Workers’ Compensation Board’s conclusion that it could award the benefits because that conclusion was clearly erroneous.

City of Petaluma v. Workers’ Comp. Appeals Bd., 29 Cal. App. 5th 1175 (Lindh). Oral Argument: 11/16/18.

First DCA (Div. 1) found the Board erred in rejecting non-industrial apportionment of permanent disability caused by an industrial injury to applicant’s left eye, where he had preexisting, non-industrial conditions of hyperreactive personality and systemic hypertension/vasospasm that were asymptomatic but made him susceptible to blindness upon injury.

HOLDINGS: [1]-In apportioning permanent disability under Lab. Code, §§ 4663, 4664, apportionment to an asymptomatic preexisting condition was required based on substantial medical evidence that the condition was a contributing cause of the disability, although the condition had caused no disability prior to the work-related injury and might not have become symptomatic without the work-related injury; [2]-A qualified medical examiner’s opinion attributing the disability to both the preexisting condition and the work-related injury provided substantial medical evidence because the apportionment was based not only on risk factors, but on an actual cause of the permanent disability, and the examiner did not fail to distinguish between the causes of an injury and the causes of a disability.

Department of Corrections & Rehabilitation v. Workers’ Comp. Appeals Bd., 27 Cal. App. 5th  607, 238 Ca;. Rptr. 3d 224, 83 Cal. Comp. Cases 1680, 2018 Cal. App. LEXIS 859 (Fitzpatrick). Oral Argument:  9/17/18.  

Third DCA found Board erred in determining that a cumulative trauma injury to a correctional officer’s heart and psyche resulted in permanent and total disability, “in accordance with the fact” under Labor Code section 4662, subd. (b).

HOLDINGS: [1]-The court annulled a finding that a correctional officer was 100 percent permanently totally disabled; contrary to the interpretation of the Workers’ Compensation Appeals Board, Lab. Code, § 4660, governs how the finding and award of permanent total disability shall be made “in accordance with the fact,” as provided in Lab. Code, § 4662, subd. (b). The court disapproved to the extent inconsistent Coca-Cola Enterprises, Inc. v. Workers’ Comp. Appeals Bd. (2012) 77 Cal. Comp. Cases 445.

Hikida v. Workers’ Comp. Appeals Bd., 12 Cal. App. 5th 1249. Oral Argument: 6/15/17.

Audio unavailable at this time

Whether the WCAB correctly found that applicant’s industrial injury resulted in 98% permanent partial disability after apportionment and not 100% permanent total disability, where applicant contended that the WCAB improperly apportioned the disability caused by applicant’s Complex Regional Pain Syndrome based on causation of injury and not causation of disability.

HOLDINGS: [1]-The appellate court concluded that an employee’s petition for review of a decision of the California Workers’ Compensation Appeals Board (WCAB) was timely filed; [2]-The appellate court further concluded that despite significant changes in the law governing workers’ compensation in 2004, disability resulting from medical treatment for which the employer is responsible is not subject to apportionment; [3]-Nothing in the 2004 legislation had any impact on the reasoning that has long supported the employer’s responsibility to compensate for medical treatment and the consequences of medical treatment without apportionment; [4]-Accordingly, the WCJ erred in relying on the 2004 amendment to support apportioning the employee’s award, and the WCAB erred in upholding his decision.

Barri v. Workers’ Comp. Appeals Bd., 28 Cal. App. 5th 428.  Oral Argument: 07/18/2018

Audio unavailable at this time

The constitutional guarantee of substantive due process extends to fundamental rights; appellant’s right to ‘timely process untainted liens’ affecting his practice not such a right.

HOLDINGS: [1]-In a writ proceeding brought by workers’ compensation medical provider (a criminally accused/convicted chiropractor), the court found that although the government had been slow to implement procedures and protocols, the new anti-fraud system in Lab. Code, §§ 4615, 139.21 did not violate the Ex Post Facto Clause or the constitutional rights to counsel, to petition, or to substantive or procedural due process; [2]-No violation of the Sixth Amendment right to counsel of choice resulted from pretrial restraint of property under the new anti-fraud because a workers’ compensation lien is not a personal asset of an accused/convicted medical provider.

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