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Case Law Library

Case Name: Bontempo vs. WCAB 04/30/2009
Summary: On April 14, 2003, Bontempo filed an Application for Adjudication of Claim with the Board, based on the knee injury (claim no. VNO 0471122). The hearing was taken off calendar when the parties decided to have Bontempo seen by an agreed medical examiner, Mason Hohl, M. D. , who examined and interviewed Bontempo and issued a report in November 2005. For claim no. VNO 0471122, the parties stipulated that on March 28, 2003, Bontempo, while employed by the City, "sustained industrial injury to his right knee. "Based on these findings, the hearing officer awarded Bontempo $49,256. 25 for the orthopedic claim (266. 25 times $185) and $39,600 for the pulmonary claim (180 times $220). G. Request for Reconsideration On January 18, 2008, Bontempo submitted a petition for reconsideration.
Note: Alleging issues of permanent disability and apportionment on the pre-trial conference statement is sufficient to raise the issue of 4658(d)(2) increase at trial and on review.
Citation: B207660
WCC Citation: WCC 35192009 CA
Case Name: Boughner v. Comp USA 06/02/2008
Summary: WORKERS' COMPENSATION APPEALS BOARD STATE OF CALIFORNIA OPINION AND DECISION AFTER RECONSIDERATION (EN BANC) SCOTT BOUGHNER, Applicant, vs. COMP USA, INC. ; and ZURICH NORTH AMERICA, Defendant. The APA specifically provides that "Article 8 (commencing with Section 11350) shall not apply to the Division of Workers' Compensation. "of Accountancy (1992) 2 Cal. 4th 999, 1014-1015; Life Care Centers of America v. CalOptima (2005) 133 Cal. App. 4th 1169, 1183. )v. Superior Court (1976) 16 Cal. 3d 392, 411] (internal citations and quotation marks omitted); see also Yamaha Corp. of America v. State Bd. 8, § 10341; Gee v. Workers' Comp.
Note: [En Banc] Applicant failed to carry his burden of demonstrating that the AD's adoption of the 2005 PDRS was arbitrary and capricious, or inconsistent with section 4660(b)(2).
Citation: SFO 0491230
WCC Citation: WCC 33782008 CA
Case Name: Bowen v. WCAB 06/24/1999
Summary: In 1992, the Marlins drafted [73 Cal. App. 4th 18] Bowen and Mack advised Bowen of this fact by telephone. Mack and Bowen entered into negotiations and eventually reached an oral agreement as to bonus, salary, the farm team Bowen would play for, and the term of employment. In reaching its decision, the WCAB failed to follow its own previous decisions and appellate workers' compensation law cases. It is noteworthy that neither the WCAB nor the Marlins contend that since the Marlins had not yet signed the contract there was no contract formed in California when Bowen signed it. [1b] Applying the reasoning of GATX-Fuller here, we conclude that the Marlins was the offeror when it sent contracts to Bowen in California, and Bowen was the offeree when he signed and returned them from California.
Note: Employee hired in CA is covered by CA work comp laws regardless of contract.
Citation: 73 Cal.App.4th 15, 64 CCC 745
WCC Citation: WCC 4201999 CA
Case Name: Boxer, Elkind and Gerson v. WCAB 09/01/1998
Summary: Boxer, Elkind and Gerson, Petitioner v. Workers' Compensation Appeals Board, Galaxy Lighting, Inc. , Northbrook Property and Casualty Insurance Company, St. Paul Fire & Marine Insurance Company, State of California/Subsequent Injuries Fund, Donna Cansino, Respondents. They claimed that the WCJ erred in relying on Goler v. W&J Sloane Co. (1979) 44 Cal. Cases 1065 (WCAB en banc), due to the fact that the present case was above average complexity, legitimating a higher award of attorney's fees. Cases 1065 (WCAB en banc), which the WCJ found was not overruled by Pilkenton and Tomlinson. The WCAB denied reconsideration of the matter, for the reasons proffered in the WCJ's report, which the WCAB adopted without further comment.
Note: No grossly disproportionate attorney's fees in disability cases of similar complexity.
Citation: 63 CCC 1156
WCC Citation: WCC 27121998 CA
Case Name: Boyle v. Certainteed Corp. 03/10/2006
Summary: Facts Plaintiffs are family members of Charles Edward Boyle who died in March 2002, allegedly from mesothelioma due to asbestos exposure. Plaintiffs filed a wrongful death action against CertainTeed Corporation (CertainTeed) and many other defendants. Plaintiffs also addressed the merits at length and submitted deposition transcripts, interrogatory responses, and documents as evidence allegedly showing decedent longshoreman's exposure to asbestos fibers imported by CertainTeed. Instead, CertainTeed insists that plaintiffs waived their challenge to General Order No. 157 by failing to raise the matter adequately in the trial court. Carlton v. Quint (2000) 77 Cal. App. 4th 690, upon which CertainTeed relies, is not to the contrary.
Note: Order for expedited summary judgment for asbestos injury cases based merely on attorney certification is invalid.
Citation: 137 Cal. App. 4th 645
WCC Citation: WCC 31472006 CA
Case Name: Bracken vs. WCAB 09/25/1989
Summary: THOMAS T. BRACKEN, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD, COMMERCIAL CARRIERS, INC. , et al. , Respondents (Opinion by Klein, P. J. , with Danielson and Croskey, JJ. , concurring. )We hold the Board's decision must be annulled because the Board erred in concluding the cardiovascular injuries were not industrial. Specifically, that heart attack progressed in degree later that month and then gave rise in April, 1986, to a stroke. Dr. Gillis stated he knew of no medical literature that says the worse the heart attack, the greater the likelihood of stroke. It is common knowledge in medical literature that massive heart attacks go on to develop cerebral strokes soon thereafter.
Note: Appellate court is not bound to accept the Board's factual findings where they are unreasonable or otherwise unsupported.
Citation: 214 Cal.App.3d 246
WCC Citation: WCC 29311989 CA
Case Name: Bradshaw v. Park 10/27/1994
Summary: VICTORIA BRADSHAW, as Labor Commissioner, etc. , et al. , Plaintiffs and Respondents, v. DONALD PARK, Defendant and Appellant. ), P. J. Donald Park, doing business as Century Auto Body & Painting, appeals from a special judgment (Lab. 1 assessing a penalty of $2,000 against him for failure to obtain workers' compensation insurance in violation of section 3700. We conclude that entry of judgment against him does not offend any constitutional principles and affirm the judgment. Attached to the request was a document from the Department of Industrial Relations Division of Labor Standards Enforcement entitled 'Stop Order - Penalty Assessment. '
Note: DIR's Stop Order not in violation of due process, separation of powers, or 'principle of check'.
Citation: 29 Cal.App.4th 1267
WCC Citation: WCC 24321994 CA
Case Name: Branco v. Race Street Fish & Poultry (WCAB En Banc) 01/31/1978
Summary: Reconsideration was granted in order to further study and research the application of the Board's en banc decision in Cabello v. NL Industries [(1976)] 41 CCC 605. A $ 200. 00 attorney's fee was awarded by the trial judge from the applicant's portion of the stipulated award. The Board in their en banc decision applied Quinn v. State of California [(1975)] 15 Cal. 1, 539 P. 2d 761] and apportioned the $ 200. 00 attorney's fee between the Employment Development Department and the applicant's portion of the award. Like the instant case, Quinn dealt with a claim by an employee for apportionment of the attorney's fee.
Note: Lien claimant responsible for 'fair share' of atty. fee award under certain circumstances.
Citation: 43 CCC 10
WCC Citation: WCC 27161978 CA
Case Name: Brannan v. Lathrop Construction Associates, Inc. 05/21/2012
Summary: BRANNAN v. LATHROP CONSTRUCTION ASSOCIATES, INC. BRIAN BRANNAN et al. , Plaintiffs and Appellants, v. LATHROP CONSTRUCTION ASSOCIATES, INC. , Defendant and Respondent. While working for a masonry subcontractor at a school construction site, Brian Brannan slipped on wet scaffolding and injured his back. He sued the general contractor, Lathrop Construction Associates, Inc. (Lathrop), alleging his injuries were caused by Lathrop's negligence in sequencing and coordinating construction work at the site, and failing to call a "rain day" to protect workers from dangerous conditions caused by slippery surfaces. Lathrop did not direct Garcia or Brannan on how the masonry was to be laid. In Ray, an employee of a bridge construction subcontractor was killed by construction debris blown by the wind from a bridge under construction onto a public roadway, as he was attempting to clear other debris from the roadway.
Note: An injured construction worker's negligence claim against the contractor directing the construction project where he was injured failed as a matter of law since he could not establish that the contractor's retained control over the jobsite affirmatively contributed to his injuries.
Citation: A129695
WCC Citation: WCC 38972012 CA
Case Name: Brasher v. Nationwide Studio Fund 09/05/2006
Summary: WORKERS' COMPENSATION APPEALS BOARD STATE OF CALIFORNIA Case No. OAK 0296709 DEANNA BRASHER, Applicant, vs. NATIONWIDE STUDIO FUND; and STATE COMPENSATION INSURANCE FUND, Defendant(s). Defendant referred this request for surgery to utilization review and, on February 17, 2006, denied Dr. Park's request, based on the utilization review report. Additionally, on February 21, 2006, defendant filed a DWC Form 233 Objection To Treating Physician's Recommendation For Spinal Surgery with the Administrative Director. You then have 10 days from receipt of the second request of treating physician's report containing the recommendation for spinal surgery. Whether the Division of Workers' Compensation Medical Unit appropriately followed procedures set forth in Labor Code Sections 4062(b) and 4610.
Note: Where statutory process has been followed for spinal surgery second opinion, and the delay is due solely to the DWC's failure to comply with its obligation under section 4062(b), there is no reasonable basis for terminating the second opinion process.
Citation: 71 Cal. Comp. Cases 1282
WCC Citation: WCC 31792006 CA
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