Case Name:	Diamond International Corp. v. WCAB		07/30/1984
Summary:	Diamond International Corporation, Petitioner v. Workers' Compensation Appeals Board of the State of California, Kenton Wills, Respondents. COUNSEL: For respondent employee--Leep, Asbill, & Tescher, by M. K. Tescher, Jr. OPINION BY: Puglia, P. J. OPINION: I Petitioner Diamond International Corporation (Diamond) seeks review of an order of respondent Workers' Compensation Appeals Board (Board) denying reconsideration. The conference was called at the request of Wills' attorney after Diamond filed a 'request for closure. 'At the time of the conference, Andreasen told Skamser that he did not have any information about Wills' employment and seniority status with Diamond. Diamond advances two more arguments which require only brief consideration. D Our attention is directed to certain orders entered in Edith Whitley v. Diamond International, WCAB No. 80 FRE 43947.
Note:	Amendments made to conform pleading to proof allowed at any time if opposing party would not be surprised by evidence.
Citation:	49 CCC 592
WCC Citation:	WCC 27751984 CA

Case Name:	Diaz v. Carcamo		06/23/2011
Summary:	DIAZ v. CARCAMO DAWN RENAE DIAZ, Plaintiff and Respondent, v. JOSE CARCAMO et al. , Defendants and Appellants. But another driver, who was the only nonparty witness to the collision between Carcamo and Tagliaferri, testified that Carcamo had not accelerated. The jury found that defendants Tagliaferri and Carcamo had driven negligently, that defendant Sugar Transport had been negligent in hiring and retaining Carcamo as a driver, and that the retention was a cause of plaintiff's injuries. Accordingly, had the trial court not made the errors noted above, it is reasonably probable that the jury would have reached a result more favorable to both Carcamo and Sugar Transport on the question of whether Carcamo drove negligently. Second, both Carcamo and the only nonparty witness to the accident testified that Tagliaferri pulled into Carcamo's lane without signaling, and that Carcamo never changed speed.
Note:	The Supreme Court of California clarified what type of claims a plaintiff may pursue when that plaintiff has been injured by someone driving a car in the course of employment.
Citation:	S181627
WCC Citation:	WCC 37772011 CA

Case Name:	Diaz v. S & R Farm Labor Contractor, Inc.		05/23/2018
Summary:	This opinion has not been certified for publication or ordered published for purposes of rule 8. 1115(a).   COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA .             MAURA CABRERA DIAZ et al. , Plaintiffs and Appellants, .             v. .             S & R FARM LABOR CONTRACTOR, INC. , Defendant and Respondent. .             D073115 .             (Super. .             Horton, Oberrecht, Kirkpatrick & Martha, Kimberly S. Oberrecht for Defendant and Respondent. BACKGROUND .           Decedent worked with multiple farm labor contracting companies, which hire employees to pick fruit in fields. .           WE CONCUR: .           HALLER, J.
Note:	A California appellate court ruled that an employer that loaned a supervisory employee to another company could not be held vicariously liable for the electrocution of an agricultural worker who was following the supervisor’s instructions to pick fruit from a tree near a live power line.
Citation:	D073115
WCC Citation:	Super. Ct. No. RIC1209850

Case Name:	Diaz v. West Coast Laboratories, Inc.		10/15/2007
Summary:	IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SEVEN MARIA DIAZ, Plaintiff and Respondent, v. WEST COAST LABORATORIES, INC. , et. Maria Diaz sued West Coast Laboratories ("WCL") and Charles Shad for disability discrimination and wrongful termination. WCL allegedly fired Diaz for improperly weighing capsules and misrepresenting her time; however, Diaz claims that WCL concocted this reason to fire her when she continued to require medical attention and accommodations for her injury. According to Diaz, Shad repeatedly pressured her to sign the Receipt and Acknowledgment form included within the employee handbook as a condition of her continued employment. On January 26, Diaz turned in a signed copy of the Receipt and Acknowledgment form.
Note:	[Unpublished] Because the contract at issue has both procedurally and substantively unconscionable elements, the trial court did not err in denying the motion to compel arbitration.
Citation:	B195232, BC356498
WCC Citation:	WCC 32682007 CA

Case Name:	Dickey v. WCAB		11/05/1990
Summary:	WILLIAM H. DICKEY, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD, CITY OF MORRO BAY et al. , Respondents. About two months after that injury, applicant was hired as a fire extinguisher serviceman by defendant Wayco Fire Extinguishers (Wayco). Applicant claimed workers' compensation benefits, including temporary disability indemnity for the three industrial injuries. They also stipulated applicant was an active fire fighter as defined in Labor Code section 4458 'at the time of his claimed injuries. 'If temporary disability indemnity were awarded at the maximum rate here, the rate would be $224 a week, rather than $120. 68 a week.
Note:	Firefighter entitled to max TD rate despite multiple injuries.
Citation:	224 Cal.App.3d 1460, 55 CCC 410
WCC Citation:	WCC 23801990 CA

Case Name:	Dickinson v. Allstate Insurance Co.		04/19/2013
Summary:	DICKINSON v. ALLSTATE INSURANCE COMPANY ERIC DICKINSON, Plaintiff and Appellant, v. ALLSTATE INSURANCE COMPANY et al. , Defendants and Respondents. Ballard Spahr, Naomi Young, Lawrence J. Gartner and John R. Carrigan, Jr. , for Defendant and Appellant Allstate Insurance Company and Defendants and Respondents Allstate Insurance Company and Eric Jentgen. Dickinson was "grandfathered" into the Allstate workforce when Allstate bought the auto insurance lines of CNA Insurance. *fn15 At a posttrial hearing, Allstate asked to have the judgment entered only against Allstate on the ground that Allstate, not Jentgen personally, was responsible for firing Dickinson, and so only Allstate, not Jentgen personally, could be responsible for self-publication regarding the reason Dickinson was fired. Dickinson appealed this ruling, arguing that Jentgen should be personally liable, along with Allstate, for the $2,000 in damages Dickinson obtained on the self-publication claim.
Note:	A former field claims adjuster's failure to introduce into evidence a right-to-sue letter from the Department of Fair Employment and Housing was fatal to his Fair Employment and Housing Act claims.
Citation:	G045033
WCC Citation:	WCC 40052013 CA

Case Name:	Dietz v. Meisenheimer & Herron		09/17/2009
Summary:	I INTRODUCTION In January 2004, Attorney William K. Dietz filed this action against Meisenheimer & Herron and Meisenheimer, Herron & Steele (Meisenheimer). Dietz further alleged that Meisenheimer breached an agreement between Meisenheimer and Dietz to pay Dietz 25 percent of any contingency fee that Meisenheimer might receive in the Vital matter. Dietz claimed that Meisenheimer paid Dietz only $50,000 rather than the $310,000 that Dietz alleged Meisenheimer owed him. Dietz claimed that as a result of these actions, Meisenheimer had breached a contract with Dietz. In December 2006, Dietz filed the operative first amended complaint in which he alleged that Meisenheimer had breached an oral contract with Dietz to pay Dietz 25 percent of any contingency fee Meisenheimer might receive in the Vital matter.
Note:	It was not improper for the trial court to balance the competing interests of the parties in determining whether to dismiss appellant's action in its entirety. Dismissal of a plaintiff's claim based on the due process concerns espoused in General Dynamics and its progeny is reserved for the rarest of cases.
Citation:	D052463
WCC Citation:	WCC 35672009 CA

Case Name:	Diggle v. Sierra Sands Unified Sch. Dist.		10/07/2005
Summary:	WORKERS' COMPENSATION APPEALS BOARD STATE OF CALIFORNIA Case No. BAK 0138299 WILMA DIGGLE, Applicant, vs. SIERRA SANDS UNIFIED SCHOOL DISTRICT, Permissibly Self-Insured; and SELF-INSURED SCHOOLS OF CALIFORNIA (Adjusting Agent), Defendant(s). An en banc decision of the Appeals Board is binding precedent on all Appeals Board panels and WCJs. On August 21, 1997, a stipulated Award issued which determined, among other things, that this injury caused permanent disability of 12%. Applicant was awarded permanent disability indemnity in the total sum of $3,994. 45 (payable at the rate of $104. 43 per week for 38. 25 weeks). At trial, the parties stipulated that applicant's overall spinal permanent disability is now 70%, after adjustment for age and occupation, but before apportionment.
Note:	En banc decision is binding precedent on all Appeals Board Panels and WCJs.
Citation:	70 CCC 1480
WCC Citation:	WCC 31262005 CA

Case Name:	Dimmig v. WCAB		03/31/1972
Summary:	MARTHA R. DIMMIG et al. , Petitioners, v. WORKMEN'S COMPENSATION APPEALS BOARD and CALIFORNIA CASUALTY INDEMNITY EXCHANGE, Respondents In Bank. There is some dispute, however, over petitioners' claim that Dimmig was "required" to obtain his bachelor's degree as a condition of his employment. The executives indicated that Dimmig was hired because of his previous job experience in contract administration and because he was considered promotable. Respondents did not contradict, however, the substantial testimony that Dimmig believed a bachelor's degree was required for his continued employment with Memorex. Keith D. Chapel, a friend of Dimmig's, testified that Dimmig had indicated to him that "he [Dimmig] had been hired on the premise that he would finish his degree, because the job required a degree. "
Note:	Going and coming: commuting to and from work not in scope of employment.
Citation:	6 Cal. 3d 860
WCC Citation:	WCC 28511972 CA

Case Name:	DIR v. California State Personnel Board		10/05/2011
Summary:	CALIFORNIA DEPARTMENT OF INDUSTRIAL RELATIONS, Plaintiff and Appellant, v. CALIFORNIA STATE PERSONNEL BOARD, Defendant and Respondent; OLGA H. GARAU, Real Party in Interest and Respondent. Proc. , §§ 1094, 1094. 5. )*fn1 The petition seeks to set aside the decision of the California State Personnel Board (the Board) reinstating respondent Olga H. Garau to her former position with the Department. In our decision Garau v. California State Personnel Board (Oct. 14, 2009, B210335 [nonpub. (California Department of Industrial Relations v. California State Personnel Board (B230790). )In her respondent's brief and at oral argument, Garau made repeated references to documents included in the record of her pending appeal (California Department of Industrial Relations v. California State Personnel Board (B230790)), without identifying them as such or requesting that we take judicial notice of them.
Note:	The Department of Industrial Relations is not procedurally barred from challenging a decision ordering it to reinstate a Division of Occupational Safety and Health attorney, the 2nd District Court of Appeal ruled in an unpublished decision.
Citation:	B228794
WCC Citation:	WCC 38092011 CA

Case Name:	Ditler v. WCAB		05/18/1982
Summary:	TERRY DITLER, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD, SAN JUAN UNIFIED SCHOOL DISTRICT et al. , Respondents. Ditler contends that the Workers' Compensation Appeals Board erred in apportioning 50 percent of his overall disability to preexisting nonindustrial causes. On October 3, 1977, Ditler filed an application for adjudication of claim before the Workers' Compensation Appeals Board. But, because of the intervention of job problems this was up--the pattern was upset . . . . ' Dr. Groesbeck opined that Ditler was carrying a partial permanent disability. These facts do not constitute substantial evidence that Ditler suffered from a 'labor disabling' preexisting disability.
Note:	Doctor's testimony that worker would ultimately suffer disability was too speculative.
Citation:	131 Cal.App.3d 803, 47 CCC 492
WCC Citation:	WCC 25511982 CA

Case Name:	DMS Services, Inc. v. Superior Court of LA County		05/15/2012
Summary:	DMS SERVICES, INC. v. SUPERIOR COURT OF LOS ANGELES COUNTY DMS SERVICES, INC. et al. , Petitioners, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; ZURICH SERVICES CORP. et al. , Real Parties in Interest. The court ordered arbitration of each of those claims based on an arbitration clause in DMS's workers' compensation insurance agreements with Zurich Insurance. However, Zurich Insurance also required DMS to sign annual deductible agreements, which purported to supersede any deductible endorsement to the workers' compensation policies. Zurich sought more than $3. 5 million in payment from DMS for premiums and reimbursement of workers' compensation insurance claim deductibles. DMS alleged ZSC had breached its obligations as a third party administrator by mishandling claims made against the policies, causing DMS to overpay several claims.
Note:	A third-party workers' compensation claims administrator could not compel arbitration of a client's breach-of-contract action pursuant to an agreement between the client and its insurance carrier.
Citation:	B235819
WCC Citation:	WCC 38952012 CA

Case Name:	DMV v. IAC		02/16/1948
Summary:	DEPARTMENT OF MOTOR VEHICLES, CALIFORNIA HIGHWAY PATROL, Petitioner, v. INDUSTRIAL ACCIDENT COMMISSION and JOHN M. REED, Respondents. The California Highway Patrol is subject to the special provisions contained in Labor Code, section 4800. However, there are provisions for special payments to policemen and firemen who are members of the State Employees' Retirement Systems. [3] The rights of applicants for compensation are governed by the provisions of the section in force at the time of the injury. [83 Cal. App. 2d 677] [4] In construing a statute liberally courts are not permitted to pervert its purpose.
Note:	Indemnity, whether temporary or permanent, is not paid concurrently with salary.
Citation:	83 Cal.App.2d 671, 13 CCC 23
WCC Citation:	WCC 26851948 CA

Case Name:	Doerflinger v. WCAB		10/25/1994
Summary:	David Doerflinger, Petitioner v. Workers' Compensation Appeals Board, United Parcel Service et al. , Respondents. The compromise and release further provided: 'Sums to include claims for interest if paid within 20 days of service of order approving. ''In general, the [Board] has broad equitable powers with respect to matters within its jurisdiction [Citation. ]'Given that the Board declined to determine this question, ordinarily we would remand the cause to the Board for further proceedings. Because the facts are undisputed in the interests of judicial economy we shall decide the question as matter of law.
Note:	Payments on a C&R and 'compensation' under the Code; Penalty may be based on failure to pay interest.
Citation:	59 CCC 834
WCC Citation:	WCC 3921994 CA

Case Name:	Domino's Pizza v. WCAB		11/20/2006
Summary:	Filed 11/20/06 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SIX DOMINO'S PIZZA; STATE COMPENSATION INSURANCE FUND, Petitioners, v. WORKERS' COMPENSATION APPEALS BOARD, DON KERR, Respondents. For good cause it now appears that the opinion should be published in the Official Reports and it is so ordered. **** IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SIX DOMINO'S PIZZA et al. , Petitioners, v. WORKERS' COMPENSATION APPEALS BOARD, DON KERR, Respondents. We conclude that Labor Code section 5501. 5, subdivision (c) mandates that venue be changed from San Luis Obispo County to Santa Barbara County. SCIF filed an informal petition to transfer venue to the Goleta district office, which is located in Santa Barbara County.
Note:	The 2nd District Court of Appeal certified its opinion dated Oct. 23, 2006, for publication.
Citation:	144 Cal. App. 4th 1316
WCC Citation:	WCC 31922006 CA

Case Name:	Donaldson vs. Nat'l Marine, Inc.		03/14/2005
Summary:	RICHARD DONALDSON, Plaintiff and Respondent, v. NATIONAL MARINE, INC. , Defendant and Appellant. COUNSEL Rushford & Bonotto, Phillip R. Bonotto, Brian M. Taylor, John P. Carty III and Carla L. Johansen for Defendant and Appellant. It defended on the theory that the cancer was unrelated to his exposure to asbestos, and resulted from his history of smoking. Defendant also theorized that even if exposure to asbestos was a factor in decedent's lung cancer, tobacco was a greater factor. VI, § 10), we see no fundamental jurisdictional impediment to allowing plaintiff to bring his Jones Act claim in California courts.
Note:	California courts have concurrent jurisdiction over Jones Act injured maritime worker claims.
Citation:	35 Cal.4th 503
WCC Citation:	WCC 30832005 CA

Case Name:	Dorman v. Dept. of Justice		10/23/2008
Summary:	IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FIVE CHRISTINE DORMAN, Plaintiff and Appellant, v. STATE OF CALIFORNIA DEPARTMENT OF JUSTICE et al. , Defendants and Respondents. Dorman and L. A. Impact's Chief Financial Officer Rea Pfeiffer worked together to identify benefits for civilian employees within L. A. Impact's budget, which Dorman negotiated with L. A. Impact Executive Director Jerry Hunter. Dorman Initiates Legal Action On August 29, 2006, Dorman filed a new complaint with the DFEH. The DOJ did not provide compensation to Dorman or L. A. Impact for any services that Dorman rendered in the dispatch office. The State of California Department of Justice is awarded its costs on appeal from plaintiff and appellant Christine Dorman.
Note:	[Unpublished] A simple pleading of personnel management activity is insufficient to support a claim of intentional infliction of emotional distress, even if improper motivation is alleged. If personnel management decisions are improperly motivated, the remedy is a suit against the employer for discrimination.
Citation:	B204217
WCC Citation:	WCC 34382008 CA

Case Name:	Doty Bros. Equipment Co. v. Palp, Inc.		09/20/2010
Summary:	Doty added Palp to its policy as an additional insured, but the policy had a $500,000 self insured retention (SIR). It subcontracted with Doty Bros. Equipment Co. for installation of Department of Water and Power underground conduit and vaults. (Palp v. Doty Brothers Equipment Co. (Super. Ct. L. A. County, 2007, No. EC045359 (case No. A subcontract was sent by Palp to Doty, but Doty made changes, notably to delete Palp's right to indemnification for its active negligence. Doty argues there was an enforceable contract which included the indemnification clause as modified by Doty.
Note:	A general contractor for a Los Angeles roadway improvement contract cannot recoup its settlement with a subcontractor's employee from the subcontractor, because the general contractor did not pursue a breach of contract claim against the subcontractor.
Citation:	B219706
WCC Citation:	WCC 36712010 CA

Case Name:	Douglas Ross Construction, Inc. v. Narver Insurance Agency		10/31/2011
Summary:	DOUGLAS ROSS CONSTRUCTION, INC. v. NARVER INSURANCE AGENCY DOUGLAS ROSS CONSTRUCTION, INC. , Cross-Complainant and Appellant, v. NARVER INSURANCE AGENCY, Cross-Defendant and Respondent. NOT TO BE PUBLISHED IN OFFICIAL REPORTS PREMO, J. Douglas Ross Construction, Inc. (Ross) sued Narver Insurance Agency (Narver) for negligence on the theory that Narver failed to obtain liability insurance for Ross's subcontractor that covered Ross for construction-job injuries suffered by an employee of the subcontractor's subcontractor. Narver obtained from Admiral Insurance Company (Admiral) a commercial general liability insurance policy for Northstate that named Ross as an additional insured. Thus, even supposing that Northstate told Narver that Ross was to be a third party beneficiary of the insurance policy, Narver complied with Northstate's request. Here, however, Ross had no contact with Northstate's insurance broker, Narver, and Narver did not know that the policy must have coverage against Northstate's subcontractors.
Note:	A general contractor has no cause of action against an insurance broker who sold one of its subcontractors a policy that did not cover a workplace injury to an employee of his subcontractor's subcontractor, the California 6th District Court of Appeals ruled.
Citation:	H036119
WCC Citation:	WCC 38182011 CA

Case Name:	Draper v. Aceto		11/01/2001
Summary:	PEGGY M. DRAPER, Plaintiff and Appellant, v. BYRON A. ACETO et al, Defendants and Respondents. FACTS On January 26, 1995, while driving a vehicle in the course and scope of her employment for the Compton Unified School District (CUSD), Peggy M. Draper (Draper) was injured in an automobile accident. To obtain further compensation for the same injury, Draper also brought a personal injury action in superior court against Byron A. Aceto and Ben Aceto (defendants), respectively the driver and owner of the other vehicle involved in the accident. Because the settlement amount was insufficient to fully reimburse CUSD, none of the settlement proceeds were payable to Draper. And because Draper received no benefit from the settlement, her attorney could not recover his fees from the settlement proceeds.
Note:	Subrogation: contingency fee attorney gets nothing if net result to client is zero.
Citation:	26 Cal.4th 1086, 66 CCC 1297
WCC Citation:	WCC 28242001 CA

Case Name:	Drasin & Assoc. v. WCAB		02/28/1992
Summary:	On June 13, 1984, based on stipulations of the parties, applicant was awarded $9,105 in retroactive temporary disability indemnity and applicant's counsel, Kessler & Drasin, was awarded a fee of $1,300. 71. Lawrence Drasin and other attorneys from Kessler & Drasin and its successor firms fn. The WCJ awarded attorney fees of $500 to Ms. Itatani and $3,500 to Mr. Drasin, payable from permanent disability indemnity. Mr. Drasin also argued that, even if the permanent disability indemnity were not increased on reconsideration, $10,000 in attorney fees would be appropriate. Kessler & Drasin became Drasin, Sparagna, Polan, Kessler & McNulty, and then Drasin, Sparagna, Polan & Sparagna. The firm later became Drasin & Polan and is now Lawrence Drasin & Associates.
Note:	WCAB should request counsel for info to determine fee if record lacks basis to value services.
Citation:	3 Cal.App.4th 1564, 57 CCC 142
WCC Citation:	WCC 26841992 CA

Case Name:	Draus v. WCAB		02/21/1995
Summary:	Peter Draus, Horizon Medical Group, Petitioners v. Workers' Compensation Appeals Board, Pasadena Scottish Rite Temple et al. , Respondents. He sustained an industrial hip injury on June 15, 1990, and medical treatment was provided by defendants. Applicant filed two workers' compensation claims, alleging both specific and cumulative orthopedic industrial injuries, as well as injury from work-related stress and strain. 'Prior to filing the claims, applicant became a patient at the Horizon Medical Group (Horizon), which provided evaluation in orthopedic and internal medicine. On June 17, 1991, defendants' orthopedic surgeon, Richard M. Siebold, M. D. , reported that applicant was permanent and stationary,' with certain work restrictions.
Note:	Lien claimant's failure to timely object to C&R clause settling lien does not waive right to hearing when clause is ambiguous.
Citation:	60 CCC 79
WCC Citation:	WCC 27511995 CA

Case Name:	DuBois v. WCAB		06/28/1993
Summary:	When Rohrer Trucking failed to make such payments, DuBois requested a supplemental hearing before the WCAB, seeking, pursuant to section 3716, subdivision (a), to collect from the UEF the award DuBois had received against Rohrer Trucking, and seeking, pursuant to section 5814, an additional amount in penalties for the unreasonable delay on the part of Rohrer Trucking in paying the benefits. On the same date, this stipulation was entered by a WCJ as an award in favor of DuBois against the UEF. At that proceeding, DuBois stated he had received no payments under the December 14, 1989, award, and a UEF representative stated that the UEF had been unable to determine whether payments to DuBois had been made. Thereafter, the Court of Appeal summarily denied DuBois's petition for a writ of review, and DuBois petitioned for our review. Subsequent enactments pertaining to the UEF add no support to the foregoing assertion by DuBois and amicus curiae.
Note:	UEF not liable for penalties from unreasonable delay in payment of award.
Citation:	5 Cal.4th 382, 58 CCC 286
WCC Citation:	WCC 24391993 CA

Case Name:	Duenas v. WCAB		08/19/2010
Summary:	The Workers' Compensation Appeals Board (Board) found Juan Jose Ayala was an employee of Guillermo Duenas, while performing landscaping work at Duenas's private residence. We find there was no dispute Ayala was hired by Duenas, and thus was presumptively an employee. After the work at the home sites was completed, Duenas then hired Ayala to work at Duenas's private residence in Chino Hills. Duenas testified that he did not pay Ayala for the work done at the job assignment at his residence in Chino Hills. The Board found Ayala was presumed to be an employee pursuant to section 3357, since he rendered service for Duenas.
Note:	A homeowner who hired a landscaper to replant some flower beds at his home was not an employer for workers' compensation purposes because there was no evidence the applicant had worked long enough to waive the statutory exclusion for casual labor.
Citation:	B215894
WCC Citation:	WCC 36582010 CA

Case Name:	Duffy v. Technicolor Entertainment Services		01/29/2009
Summary:	[U] Duffy v. Technicolor Entertainment Services, Inc. , No. B196126 (Cal. App. Dist. 2 01/29/2009) IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION THREE No. B196126 January 29, 2009 EUGENE DUFFY, PLAINTIFF AND APPELLANT, v. TECHNICOLOR ENTERTAINMENT SERVICES, INC. Loeb & Loeb, Scott M. Lidman; Dreier Stein & Kahan, Fred B. Griffin; Greines, Martin, Stein & Richland, Timothy T. Coates and Lillie Hsu for Defendant and Appellant Technicolor Entertainment Services, Inc. This opinion has not been certified for publication or ordered published for purposes of rule 8. 1115. INTRODUCTION Defendant Technicolor Entertainment Services, Inc. (Technicolor) appeals from an order denying its motion for judgment notwithstanding the verdict (JNOV) as to causes of action for negligent retention and supervision and for assault brought by plaintiff Eugene Duffy and from the subsequently entered judgment for Duffy. After the trial as to liability, the jury found by special verdict that Duffy's injury was not caused or contributed to by events which arose out of or occurred within the course and scope of his employment with Technicolor; that Technicolor negligently retained and/or supervised Streng; that Technicolor's negligence was a substantial factor in causing harm to Duffy; that Streng's conduct occurred after the conduct of Technicolor; that a reasonable person would not consider Streng's conduct as a highly unusual or an extraordinary response to the situation; that Streng committed one or more acts of willful physical aggression before Duffy left work at Technicolor on August 18, 2004; that Duffy had reasonable fear of bodily harm caused by Streng's conduct; that Duffy did not consent to Streng's conduct; that Technicolor later learned of Streng's conduct toward Duffy which occurred before Duffy left work on August 18, 2004; and that after learning of Streng's conduct directed at Duffy and which occurred before Duffy left work at Technicolor on August 18, 2004, Technicolor ratified Streng's conduct. Duffy then said that as he walked away, Streng told Duffy he had better be careful because Streng knew where Duffy lived.
Note:	Exclusive remedy does not apply to an employer that failed to protect a supervisor from an off-premises assault by a workplace bully.
Citation:	B196126
WCC Citation:	WCC 34862009 CA

Case Name:	DuFour v. WCAB		08/09/2007
Summary:	IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT RACHAEL DUFOUR et al. , Petitioners, v. WORKERS' COMPENSATION APPEALS BOARD and CITY OF MODESTO, Respondents. BACKGROUND Modesto Police Officer Michael DuFour (DuFour) passed away in his home on December 13, 2003, after having experienced two days of flu-like symptoms. Referring to DuFour's autopsy reports, the WCJ found insufficient evidence that DuFour was infected with a blood-borne infectious disease. The WCAB found the suggestion DuFour died of a blood-borne infectious disease "speculation, not evidence" and noted Petitioner repeatedly mischaracterized the burden of proof by insisting the statutory presumption applies any time a police officer becomes ill from an unknown source. Dr. Blau's opinion here is not based on a medical finding that DuFour died from a blood-borne infectious disease.
Note:	[Unpublished] The WCAB properly declined to presume [decedent's] death arose out of and in the course of his employment.
Citation:	F052954
WCC Citation:	WCC 32472007 CA

Case Name:	Dufresne v. City of Hayward		03/25/2009
Summary:	IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION THREE No. A116737 MARGARET DUFRESNE, Plaintiff and Respondent, v. CITY OF HAYWARD, Defendant and Appellant. Ct. No. 2002-067063) Defendant City of Hayward (the city) appeals from a judgment entered in favor of plaintiff Margaret Dufresne, a former building inspector for the city, on her complaint for sexual harassment. The city also argues that the court erred in admitting evidence that the city accepted liability in workers' compensation proceedings arising out of the same alleged harassment. Hulse continued to assign her more work than the other inspectors until she stopped working for the city in 2001. Had the city wished to settle plaintiff's workers' compensation claim and at the same time avoid making such an admission, the city could have drafted such an agreement.
Note:	[Unpublished] The Superior Court did not err by admitting a plaintiff's evidence of her workers' compensation claim for psychiatric injury that allegedly resulted from years of sexual harassment.
Citation:	A116737
WCC Citation:	WCC 35072009 CA

Case Name:	Duncan v. Wal-Mart Stores Inc.		12/31/1969
Summary:	This opinion has not been certified for publication or ordered published for purposes of rule 8. 1115.   IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE .             DENISE MICHELLE DUNCAN, Plaintiff and Respondent, .             v. .             WAL-MART STORES, INC. , Defendant; .             HARTFORD ACCIDENT & INDEMNITY CO. , Claimant and Appellant. .             G054220 .             (Super. .             England Ponticello & St. Clair, Barry W. Ponticello, Renee C. St. Clair and Kristina M. Pfeifer for Claimant and Appellant. .           Respondent Denise Michelle Duncan sued Wal-Mart Stores, Inc. (Wal-Mart) for personal injuries she sustained at one of Wal-Mart’s stores while acting within the course and scope of her employment with Acosta, Inc. (Acosta). .           Hartford filed a notice and application for a lien on the judgment based on the workers’ compensation benefits it paid Duncan.
Note:	Outlines why insurance companies have the right to recoup their workers’ compensation expenses from an applicant's third-party award before the worker can touch the money, and why judges can’t make any deductions from the recoupment other than attorney’s fees.
Citation:	G054220
WCC Citation:	Super. Ct. No. 30-2014-00735595

Case Name:	Duncan v. Walmart Stores (Hartford Accident & Indemnity Co.)		12/31/1969
Summary:	Filed 11/14/17; Certified for Publication 12/13/17 (order attached) IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA  FOURTH APPELLATE DISTRICT  DIVISION THREE .             DENISE MICHELLE DUNCAN, Plaintiff and Respondent, .             v. .             WAL-MART STORES, INC. , Defendant; HARTFORD ACCIDENT & INDEMNITY CO. , Claimant and Appellant. .             G054220 .             (Super. .             England Ponticello & St. Clair, Barry W. Ponticello, Renee C. St. Clair and Kristina M. Pfeifer for Claimant and Appellant. .           Respondent Denise Michelle Duncan sued Wal-Mart Stores, Inc. (Wal-Mart) for personal injuries she sustained at one of Wal-Mart’s stores while acting within the course and scope of her employment with Acosta, Inc. (Acosta). Filed 12/13/17  CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA  FOURTH APPELLATE DISTRICT  DIVISION THREE  .           DENISE MICHELLE DUNCAN, Plaintiff and Respondent, .           v. .           WAL-MART STORES, INC. , Defendant; HARTFORD ACCIDENT & INDEMNITY CO. , Claimant and Appellant.
Note:	An insurance carrier has the right to reimbursement of the benefits it paid to an injured worker from her recovery from a third party.
Citation:	G054220
WCC Citation:	Super. Ct. No. 30-2014-00735595

Case Name:	Duncan v. WCAB		08/26/2008
Summary:	Concluding that a sanction against the UEBTF for bad faith action is not prohibited by section 3716. 2, the WCJ ordered the UEBTF to pay a sanction of $100 to the Workers' Compensation Appeals Board (WCAB). Accordingly, the WCAB held: "When a sanction is warranted under section 5813 and Rule 10561 [Cal. However, appellate review of WCAB decisions is limited to "final" orders that determine a substantial right or liability of a party. Therefore, Solorio has misused, and the WCJ and the WCAB have misapplied, section 5813 for that purpose. DISPOSITION The WCAB decision is annulled, and the cause is remanded to the WCAB for further proceedings consistent with this opinion.
Note:	A sanction is not a workers' compensation 'benefit' within the meaning of section 3716.2, which limits the Uninsured Employers Benefits Trust Fund's (UEBTF) liability 'only' to 'benefits' that would be paid by an employer properly insured for worker's compensation.
Citation:	C056727
WCC Citation:	WCC 34152008 CA

Case Name:	Duncan v. WCAB (X.S.)		11/25/2009
Summary:	After the SIBTF appealed to the Workers' Compensation Appeals Board (WCAB), the WCAB issued its OPINION AND DECISION. *fn4 Appellate Review All judicial powers under the workers' compensation system are vested in the WCAB, subject only to the review by the appellate courts of this state. )*fn5 WCJs hear and decide compensation claims as trial judges, and the WCAB functions as an appellate body. The WCAB has extensive expertise in interpreting and applying the workers' compensation scheme. Accordingly, the Decision of the Worker's Compensation Appeals Board is annulled and the case is remanded to the WCAB for further proceedings.
Note:	The cost of living adjustments pursuant to Labor Code section 4659, subdivision (c), for life pensions and total permanent disability indemnity, are added to those payments, per the words of the statute, starting January 1, 2004, and every January 1 thereafter.
Citation:	H034040
WCC Citation:	WCC 35832009 CA

Case Name:	Duthie v. WCAB, McDonnell Douglas Co.		11/27/1978
Summary:	JOHN H. DUTHIE, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD, McDONNELL DOUGLAS COMPANY et al. , Respondents. OPINION TAMURA, Acting P. J. Petitioner filed a workers' compensation claim for a heart disability suffered while in the employment of McDonnell Douglas Company. He had been employed as an administrator by McDonnell Douglas for nine years, and had just received a notice of imminent layoff. His opinion was that petitioner's condition stemmed from aggravation of his hypertension by the stress and harassment of his job. Prior to the nine-year span of present employment with McDonnell Douglas, petitioner had worked for McDonnell Douglas' predecessor Douglas Aircraft from 1962 to 1963, when he was laid off because of cancellation of a missile project.
Note:	Preexisting disability must occur at a definite, ascertainable time prior to industrial injury becoming P&S for legal apportionment.
Citation:	86 CA 3d 721, 43 CCC 1214
WCC Citation:	WCC 28441978 CA

Case Name:	Dutra v. Mercy Medical Center Mt. Shasta		09/26/2012
Summary:	MICHELLE DUTRA, Plaintiff and Appellant, v. MERCY MEDICAL CENTER MT. Plaintiff Michelle Dutra sued her former employer, defendant Mercy Medical Center Mt. Shasta (Mercy), for defamation and wrongful termination in violation of public policy. Plaintiff alleged Mercy committed libel per se by communicating to her and others in a private meeting its grounds for terminating her employment. Mercy informed plaintiff the grounds for her termination in a confidential meeting attended by plaintiff, a union steward, and Mercy supervisors.
Note:	Workers' compensation exclusivity barred a hospital housekeeper from suing her former employer in tort for allegedly terminating her in retaliation for her pursuit of benefits for an industrial injury.
Citation:	C067169
WCC Citation:	WCC 39352012 CA

Case Name:	Dykes v. WCAB		11/04/2008
Summary:	Perplexed by the WCAB's actions, Dykes asks whether the WCAB exceeded its powers by reopening and reconsidering his award which already had been exhaustively litigated and affirmed through the appellate process. "Gallo timely petitioned the Workers' Compensation Appeals Board (WCAB) for reconsideration, contending that the Labor Code mandated subtracting the percentage, not dollar amount, of the prior award from Dyke's disability award. Dykes argues that more than a simple change in the law is required to trigger good cause to reopen a WCAB decision. Dykes believes the WCAB was instead required to find our prior decision presented "exceptional circumstances of hardship and injustice. "Dykes lastly contends that permitting the WCAB to reopen a disability award based on a change in the law will cast doubt on all final WCAB awards and create "a recipe for mass relitigation," particularly when future disability tables are revised.
Note:	[Unpublished] The Supreme Court's decision in Brodie constituted good cause to reopen Dykes's prior disability award, even after it had been affirmed by this court and denied review by the Supreme Court.
Citation:	F055891
WCC Citation:	WCC 34592008 CA

Case Name:	Dynamex Operations West, Inc. v. The Superior Court of Los Angeles County Part 1/3		04/30/2018
Summary:	Filed 4/30/18 IN THE SUPREME COURT OF CALIFORNIA  .             DYNAMEX OPERATIONS WEST, INC. , Petitioner, .             v. .             THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; .             CHARLES LEE et al. , Real Parties in Interest. .           Accordingly, we conclude that the judgment of the Court of Appeal should be affirmed. .           Dynamex is a nationwide same-day courier and delivery service that operates a number of business centers in California. .           Drivers are generally free to set their own schedule but must notify Dynamex of the days they intend to work for Dynamex. .           Drivers hired by Dynamex are permitted to hire other persons to make deliveries assigned by Dynamex.
Note:	California’s Supreme Court on Monday laid down a simple, three-part test to determine whether a person is an employee of an independent contractor, in a ruling that could have implications for workers’ compensation and the gig economy.
Citation:	S222732
WCC Citation:	Ct.App. 2/7 B249546, Los Angeles County Super

Case Name:	Dynamex Operations West, Inc. v. The Superior Court of Los Angeles County Part 2/3		04/30/2018
Summary:	.           In addressing these largely unexplored issues, the Martinez court turned initially to the language and legislative history of section 1194. .           The court in Martinez then considered how the IWC, utilizing its broad legislative authority (see Cal. The court explained in this regard: “The verbs ‘to suffer’ and ‘to permit,’ as we have seen, are terms of art in employment law. .           The Martinez court summarized its conclusion on this point as follows: “To employ, then, under the IWC’s definition, has three alternative definitions. 74-77), the court concluded that the record did not indicate “the field representatives ever supervised or exercised control over [Munoz’s] employees” (id.
Note:	California’s Supreme Court on Monday laid down a simple, three-part test to determine whether a person is an employee of an independent contractor, in a ruling that could have implications for workers’ compensation and the gig economy.
Citation:	S222732
WCC Citation:	Ct.App. 2/7 B249546, Los Angeles County Super

Case Name:	Dynamex Operations West, Inc. v. The Superior Court of Los Angeles County Part 3/3		04/30/2018
Summary:	(See Brinker Restaurant Corp. v. Superior Court, supra, 53 Cal. 4th at p. 1032 [class certification is not an abuse of discretion if certification is proper under any theory]. )Here the class of drivers certified by the trial court is limited to drivers who, during the relevant time periods, performed delivery services only for Dynamex. V. CONCLUSION .         For the reasons discussed above, the judgment of the Court of Appeal is affirmed. Superior Court (2004) 34 Cal. 4th 319, 326; Linder v. Thrifty Oil Co. (2000) 23 Cal. 4th 429, 435-436. )Defendant is only liable to those drivers with whom it entered into an agreement (i. e. , knew were providing delivery services to Dynamex customers).
Note:	California’s Supreme Court on Monday laid down a simple, three-part test to determine whether a person is an employee of an independent contractor, in a ruling that could have implications for workers’ compensation and the gig economy.
Citation:	S222732
WCC Citation:	Ct.App. 2/7 B249546, Los Angeles County Super

Case Name:	E & J Gallo Winery v. WCAB		05/20/2010
Summary:	IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT E & J GALLO WINERY, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD and CARMELA GARCIA, Respondents. -ooOoo- *Before Levy, Acting P. J. , Cornell, J. , and Gomes, J. E & J Gallo (Gallo) petitions this court for a writ of review from a decision of the Workers' Compensation Appeals Board (WCAB). Gallo subsequently terminated Garcia either for not working overtime on October 17, 2006, or for misleading Gallo about the medical appointment. *fn3 On February 6, 2007, Garcia petitioned the WCAB to reopen for new and further disability based on medical reporting from Drs. Gallo also contends the WCAB inappropriately placed the burden of proof as to temporary disability on the defense rather than on Garcia.
Note:	[Unpublished] Having found the record inadequate, the WCAB appropriately exercised its power to defer making a permanent disability award and seek additional medical evidence.
Citation:	F058643
WCC Citation:	WCC 36282010 CA

Case Name:	E & J Gallo Winery v. WCAB		07/31/2008
Summary:	IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT E. & J. GALLO WINERY, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD and JOE RUBIO, Respondents. -ooOoo- *Before Vartabedian, Acting P. J. , Gomes, J. , and Hill, J. E. & J. Gallo Winery (Gallo) petitions for a writ of review from a decision of the Workers' Compensation Appeals Board (WCAB). Gallo petitioned the WCAB for reconsideration, arguing the WCJ's denial of apportionment lacked any basis in law or fact. Gallo contends the WCAB should have reduced Rubio's permanent disability award because it met its burden of proving a prior industrial injury. As the WCAB concluded, it was Gallo that failed to meet its burden of proving apportionment due to overlapping injuries.
Note:	[Unpublished] In apportioning permanent disability, the employer carries the burden of proving that some or all of an injured worker's current level of permanent disability overlaps with a prior permanent disability.
Citation:	F055156
WCC Citation:	WCC 34052008 CA

Case Name:	E&J Gallo Winery v. WCAB (Dykes)		12/20/2005
Summary:	FACTUAL HISTORY David Dykes injured his back while working as a winery worker for E & J Gallo Winery (Gallo) in September 1996. Dykes returned to work with Gallo with a lighter duty and a medical restriction of lifting up to 50 pounds. Gallo timely petitioned the Workers' Compensation Appeals Board (WCAB) for reconsideration, contending that the Labor Code mandated subtracting the percentage, not dollar amount, of the prior award from Dyke's disability award. Gallo and the WCAB, however, contend that Dykes is not entitled to the life pension because his level of disability, after apportionment, is only 52. 5 percent. Gallo and the WCAB declined our invitation to demonstrate how this figure would be calculated for Dykes assuming a 73 percent level of disability.
Note:	Employee sustaining multiple disabling injuries while working for the same selfinsured employer is entitled to compensation for the total disability above any percentage of permanent disability previously awarded.
Citation:	134 Cal. App. 4th 1536
WCC Citation:	WCC 31342005 CA

Case Name:	Early Calif. Foods v. WCAB		02/21/1991
Summary:	Early California Foods, Petitioner v. Workers' Compensation Appeals Board of the State of California and Mike Ellis, Respondents Mike Ellis filed an application for adjudication of claim on December 17, 1987, claiming max earnings. Early California, by Argonaut Insurance Co. , filed an amended answer on December 23, 1988 but never contested earnings. Argonaut, Early California's comp carrier, was not allowed at trial to present any evidence on the issue of credit for overpayment of temporary disability at an incorrect rate. Early California sought Reconsideration, which was denied by the WCAB because the employer should know what its employees earnings were. You are counseled to consult the full case for an accurate citation.
Note:	Issues not raised in defendant's Answer may be deemed waived.
Citation:	56 CCC 137
WCC Citation:	WCC 3541991 CA

Case Name:	Eby v. Idustrial Accident Comm'n		11/20/2011
Summary:	KATHERINE EBY et al. , Petitioners, v. INDUSTRIAL ACCIDENT COMMISSION et al. , Respondents. After the accident two hammers and a wrecking bar about three feet in length were found in the automobile of the deceased. There is nothing in the record to show whether these tools belonged to the deceased or belonged to his employer. In the instant case it does not appear that the accident happened while the deceased was on any errand in the course of his employment. The question is wholly one of whether or not the evidence supports the finding of the Commission.
Note:	Evidence supports determination that injury was not in course and scope of employment despite presence of tools in employee's car.
Citation:	75 Cal.App. 280
WCC Citation:	WCC 30442025 CA

Case Name:	Edgar v. WCAB		11/28/1966
Summary:	DUANE EDGAR, Petitioner, v. WORKMEN'S COMPENSATION APPEALS BOARD, NAVAJO FREIGHT LINES et al. , Respondents. Petitioner, a truck driver, sustained an admitted industrial injury to his left knee and back on July 14, 1964. On March 29, 1965, he filed a claim asserting that temporary disability continued and that he was in need of medical treatment. From that time to the date of the final hearing of the matter on March 15, 1966, he did not work. The minutes of the hearing show that petitioner was the only witness and that certain medical records were received in evidence.
Note:	Applicant has right to produce evidence to explain or rebut medical reports.
Citation:	246 Cal.App.2d 660, 31 CCC 376
WCC Citation:	WCC 25741966 CA

Case Name:	Edgar v. WCAB		11/28/1966
Summary:	DUANE EDGAR, Petitioner, v. WORKMEN'S COMPENSATION APPEALS BOARD, NAVAJO FREIGHT LINES et al. , Respondents. Petitioner, a truck driver, sustained an admitted industrial injury to his left knee and back on July 14, 1964. On March 29, 1965, he filed a claim asserting that temporary disability continued and that he was in need of medical treatment. From that time to the date of the final hearing of the matter on March 15, 1966, he did not work. The minutes of the hearing show that petitioner was the only witness and that certain medical records were received in evidence.
Note:	Applicant has right to produce evidence to explain or rebut medical reports.
Citation:	246 Cal.App.2d 660
WCC Citation:	WCC 25771966 CA

Case Name:	Edgar v. WCAB (CHP)		06/24/1998
Summary:	OPINION NARES, J. - Petitioner Douglas Edgar (Edgar) seeks review of a decision of respondent Workers' Compensation Appeals Board (WCAB). Edgar was placed on leave of absence with one year of full salary under former section 4800, fn. In July 1997, WCAB issued its opinion and decision after reconsideration, rescinding the decision of the WCJ. WCAB found that CHP, in calculating the vocational rehabilitation benefits it was required to provide to Edgar, was entitled to include the weekly sum of $246 for the weeks Edgar was both receiving full leave of absence salary under former section 4800, and participating in vocational rehabilitation. WCAB concluded that CHP paid a portion of the salary benefits to Edgar in lieu of VRMA, and thus a portion of the salary 'must be included in the amounts used to calculate the cap on vocational rehabilitation benefits. '
Note:	Full leave of absence salary for 1 yr. was not in lieu of vocational rehabilation.
Citation:	65 Cal.App.4th 1, 63 CCC 703
WCC Citation:	WCC 26731998 CA

Case Name:	Edward Carey Construction Co. v. State Fund		03/25/2011
Summary:	EDWARD CAREY CONSTRUCTION COMPANY, Plaintiff and Appellant, v. STATE COMPENSATION INSURANCE FUND, Defendant and Respondent. INTRODUCTION Appellant Edward Carey Construction Co. (CCC) appeals from a judgment of dismissal, entered after the trial court sustained the demurrer of State Compensation Insurance Fund (SCIF) without leave to amend. CCC relies on Security Officers Service, Inc. v. State Compensation Insurance Fund (1993) 17 Cal. App. 4th 887 (Security Officers), and its progeny, including MacGregor Yacht Corporation v. State Compensation Insurance Fund (1998) 63 Cal. App. 4th 448 (MacGregor Yacht). "First, and most importantly, State Fund ha[d] not denied Tilbury any benefits due to Tilbury under the insurance policy. SCIF's reliance on Charles J. Vacanti, M. D. , Inc. v. State Compensation Insurance Fund (2001) 24 Cal. 4th 800 (Vacanti), is misplaced.
Note:	A corporation may sue State Fund for a bad faith denial of benefits, despite the fact that the alleged bad faith damages arose from a claim filed by the employee/owner of the corporation.
Citation:	A128047
WCC Citation:	WCC 37372011 CA

Case Name:	Elayne Valdez v. Warehouse Demo Services		04/20/2011
Summary:	WORKERS' COMPENSATION APPEALS BOARD STATE OF CALIFORNIA Case No. ADJ7048296 ELAYNE VALDEZ, Applicant, vs. OPINION AND DECISION AFTER RECONSIDERATION (EN BANC) WAREHOUSE DEMO SERVICES; ZURICH NORTH AMERICA, Adjusted by ESIS, Defendant(s). BACKGROUND Applicant Elayne Valdez filed a claim for industrial injury to her back, right hip, neck, right ankle, right foot, right lower extremity, lumbar spine and both knees, while employed as a demonstrator for Warehouse Demo Services on October 7, 2009. While the WCJ deferred the issue of MPN, he nevertheless rejected defendants argument that reports of non-MPN doctors are inadmissible. An MPN is established by an employer or insurer subject to the approval of the administrative director (AD). 8, 9762. 1 through 9762. 3. ) The statutory and regulatory scheme also imposes several other obligations upon both the insurer/employer and the injured worker.
Note:	California workers' compensation judges may not admit as evidence reports from doctors who are not a part of the employer's medical provider network if that MPN was validly established and properly noticed.
Citation:	ADJ7048296
WCC Citation:	WCC 37512011 CA

Case Name:	Eliapo v. SCI California Funeral Services		07/17/2009
Summary:	IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT ESTHER ELIAPO, Plaintiff and Appellant, v. SCI CALIFORNIA FUNERAL SERVICES, INC. , et al. , Defendants and Respondents. INTRODUCTION On September 9, 2002, plaintiff Esther Eliapo drove across town on an errand for her employer, defendant Oak Hill Improvement Company (Oak Hill). G. The Motion to Tax Costs The trial court awarded costs to Oak Hill and the related entity, SCI California Funeral Services, Inc. , both of which were represented by one attorney and were treated as a single defendant during trial. Rules of Court, rule 3. 1700(a)(1)), and since the caption on the memorandum of costs filed in this case lists only SCI California Funeral Services, Inc. , Oak Hill is not entitled to costs. SCI California Funeral Services, Inc. , is a related entity.
Note:	[Unpublished] Since plaintiff obtained no recovery in this case, the trial court had discretion to award expert fees as allowed under Code of Civil Procedure section 998.
Citation:	H031761
WCC Citation:	WCC 35442009 CA

Case Name:	Elijahjuan et al. v. the Superior Court of Los Angeles County		10/17/2012
Summary:	Hireem Elijahjuan et al. v. the Superior Court of Los Angeles County No. B234794 /17/2012 IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION EIGHT HIREEM ELIJAHJUAN ET AL. , PETITIONERS, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, RESPONDENT; MIKE CAMPBELL & ASSOCIATES, LTD. , ET AL. , REAL PARTIES IN INTEREST. In contrast, here the court stayed litigation on the alleged violations of the Unfair Business Practices Act. "An appellate court has discretion to treat a purported appeal from a non-appealable order as a petition for writ of mandate. "(Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal. 4th 83, 97; Truly Nolen of America v. Superior Court (2012) 208 Cal. App. 4th 487, 498. )If the trial court were to conclude that the arbitration provision is not unconscionable, then I would order the trial court to reinstate the order compelling arbitration.
Note:	A trial court judge erred in directing a dispute between four workers and their employer based on their alleged misclassification as independent contractors to arbitration, since the terms of the agreement that some of the workers had signed only compelled arbitration for disputes regarding the application or interpretation of that agreement.
Citation:	B234794
WCC Citation:	WCC 39432012 CA

Case Name:	Elliot v. WCAB		02/25/2010
Summary:	After this matter became fully briefed, the WCAB issued its en banc decision in Cervantes v. El Aguila Food Products, Inc. (2009) 74 Cal. Comp. Cases 1336 (Cervantes), explicitly denouncing the Brasher holding relied on by the WCAB in this case. The WCAB agreed with respondents, granted reconsideration and rescinded the workers' compensation judge's order directing respondents to authorize the spinal surgery. Pointedly, the Cervantes court acknowledges that in the present case, the WCAB panel had followed the repudiated Brasher holding which the entire board, including the panelists deciding Elliott's case, now rejects. Unlike en banc decisions of the WCAB, significant panel decisions are not binding precedent in workers' compensation proceedings. However, the WCAB does deem them to be of "significant interest and importance to the workers' compensation community. "
Note:	The spinal surgery second opinion process commences after utilization review has denied the requested spinal surgery.
Citation:	A125585
WCC Citation:	WCC 36022010 CA