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Summary:	This opinion has not been certified for publication or ordered published for purposes of rule 8. 1115(a).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