Case Name:	Mathews v. WCAB		02/29/1972
Summary:	Cedillo struck Mathews in the forehead with the second rock; Mathews fell and lay unconscious. In this case, the record contains ample evidence to support the Board's finding that Mathews' injuries arose out of an altercation. Since Mathews was several inches taller and 30 pounds heavier than Cedillo, a reasonable man in Cedillo's position might have considered Mathews' acts to be a real, present and apparent threat of bodily harm. Applicant argues that Mathews could not have been the "initial physical aggressor" because he did not "throw the first punch. "Consequently, even if Cedillo used excessive force in repelling Mathews' attack, Mathews was, and remained, the initial physical aggressor.
Note:	Initial physical aggressor cannot recover workers' compensation benefits.
Citation:	6 Cal. 3d 719
WCC Citation:	WCC 31131972 CA

Case Name:	Mathies v. Buhrer		02/28/2013
Summary:	MATHIES v. BUHRER EUGENE MATHIES, Plaintiff and Appellant, v. ROBERT BUHRER, Defendant and Respondent. On appeal, Mathies makes a new argumentthat the moment Caldwell's license was suspended he (Mathies) no longer was the employee of an independent contractor, but rather under section 2750. 5, was a "statutory" employee of Buhrer and therefore Privette does not apply. Another time, Mathies told Buhrer the gutter contractor needed to get the gutters up for the work to proceed. According to Mathies, Buhrer said the workers could use any of his tools, although Mathies specifically recalled use of only several ladders and perhaps a vise. Further dispositive motions may be appropriate upon a more developed record, including with respect to the workers' compensation claim Mathies has filed against Buhrer.
Note:	A trial court must decide whether an uninsured contractor's decision to hire several employees could result in a homeowner's liability for a work-related injury.
Citation:	A133832
WCC Citation:	WCC 39892013 CA

Case Name:	Maureen DeSaulles v. Community Hospital of the Monterey Peninsula		06/29/2011
Summary:	IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT MAUREEN DESAULLES, PLAINTIFF AND APPELLANT, v. COMMUNITY HOSPITAL OF THE MONTEREY PENINSULA, DEFENDANT AND RESPONDENT. Consistently with that ruling, at trial, the court granted Hospital's in limine motion excluding evidence and argument that Hospital had failed to accommodate deSaulles. Hospital Facility, The Registrar Position, and Patient Contact In early 2005, deSaulles interviewed with Hospital for a per diem*fn3 position as a night inpatient registrar within Hospital's Patient Business Services department. Present at the meeting were deSaulles, her husband, Zehm, and Mary Goodby, a Hospital human resource representative. deSaulles believed that rather than "taking away [her] shifts," Hospital should be "trying to work with [her]. "
Note:	The Superior Court did not err in dismissing a FEHA lawsuit filed by a disabled worker whose employer placed her on unpaid leave while awaiting more information on her medical restrictions and offered her an alternative position that the worker found unsuitable.
Citation:	H033906
WCC Citation:	WCC 37782011 CA

Case Name:	Maxham v. California Department of Corrections and Rehabilitation		01/27/2017
Summary:	WORKERS’ COMPENSATION APPEALS BOARD STATE OF CALIFORNIA .             BRADLEY MAXHAM, Applicant, .             vs. .             CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION; STATE COMPENSATION INSURANCE FUND, Defendants. .             Case No. ADJ3540065 (SAC 0361552) .             OPINION AND ORDER GRANTING PETITION FOR REMOVAL AND DECISION AFTER REMOVAL (En Banc) .             Defendants California Department of Corrections and Rehabilitation and State Compensation Insurance Fund seek removal in response to an Order (Order) issued by the workers’ compensation administrative law judge (WCJ) on June 2, 2016. .             We received an Answer from applicant. .           Defendants filed a Petition for Removal seeking review of the Order on June 27, 2016. .           WORKERS’ COMPENSATION APPEALS BOARD (EN BANC) .           /s/ Frank M. Brass______________________ FRANK M. BRASS, Commissioner .           /s/ Deidra E. Lowe______________________ DEIDRA E. LOWE, Commissioner .           /s/ Marguerite Sweeney__________________ MARGUERITE SWEENEY, Commissioner .           _/s/ Katherine A. Zalewski_________________ KATHERINE A. ZALEWSKI, Commissioner .           _/s/ Jose H. Razo______________________ JOSÉ H. RAZO, Commissioner .           DATED AND FILED AT SAN FRANCISCO, CALIFORNIA .           1/23/2017 Unless otherwise stated, all further statutory references are to the Labor Code.
Note:
Citation:	ADJ3540065 (SAC 0361552)
WCC Citation:	ADJ3540065 (SAC 0361552)

Case Name:	Maxim Crane Works v. Tilbury Constructors		08/08/2012
Summary:	CERTIFIED FOR PUBLICATION DUARTE, J. Appellant Maxim Crane Works (Maxim) was hoist by its own petard when the trial court enforced an unfavorable choice-of-law provision in a form contract written by Maxim. Maxim cross-complained against Tilbury Constructors (Tilbury), Gorski's employer, seeking indemnity. Maxim had provided Tilbury a crane and operator pursuant to a contract signed that day. Maxim cross-complained against Tilbury for breach of contract and indemnity, and in part alleged Tilbury had a duty to defend Maxim, and that Tilbury had been negligent. Tilbury also contends that once Gorski and Maxim settled, Maxim still had to show the amount of the settlement was fair, before recouping that amount from Tilbury.
Note:	Pennsylvania law applied to a California construction worker's injury at a job site in Stockton.
Citation:	C067054
WCC Citation:	WCC 39182012 CA

Case Name:	McCarthy v. WCAB (Best Sanitizer's, Inc.)		01/25/2006
Summary:	Law Offices of Jeffrey R. Toff and Richard V. DeGruccio for Petitioner, Ann McCarthy. McCarthy filed petitions seeking relief under section 5814 on May 6, 2002, and May 14, . On January 5, 2005, before the WCAB acted on the petition for reconsideration, the WCJ issued its new findings, award, and order based on Abney. McCarthy was still "litigating" her legal claims when she petitioned the WCAB for reconsideration of the WCJ's findings in January 2005, and petitioned this court for a writ of review. McCarthy complains that when construing SB 899 in Abney, the WCAB ignored the amendment to former section 5814.
Note:	New Labor Code section 5814 applies to penalty claims pending as of 06/01/04.
Citation:	135 Cal. App. 4th 1230
WCC Citation:	WCC 31352006 CA

Case Name:	McCarty v. State of California Department of Transportation.		07/10/2008
Summary:	Filed 7/10/08 CERTIFIED FOR PARTIAL PUBLICATION* IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO STEPHEN McCARTY, Plaintiff and Appellant, v. STATE OF CALIFORNIA DEPARTMENT OF TRANSPORTATION, Defendant and Appellant. In Hooker, as here, the defendant was the State of California, Department of Transportation (Caltrans) -- a public entity. McCarty was left a near-quadriplegic, with complete paralysis from the chest down and weakness in his arms and hands. Finally, it apportioned fault 31 percent to Caltrans, 42 percent to FCI, zero percent to Edison, and 27 percent to McCarty. In opposition, counsel for McCarty testified that, upon receiving the motion, they "undertook to identify various witnesses that provided testimony to support the verdict.
Note:	A public entity can be held liable under the retained control doctrine, provided all the other prerequisites of public entity liability under Government Code section 815.4 are also present.
Citation:	E040627
WCC Citation:	WCC 33962008 CA

Case Name:	McCarty v. WCAB		10/30/1974
Summary:	McCarty was an employee of Apartment Plumbers, Inc. , a corporation owned and managed by Alan McGowan and Robert Schlossberg. Employees stored beer in the refrigerator at the office; McCarty, who preferred bourbon, kept a half pint of Jack Daniels on a shelf. Schlossberg, one of the owner-managers, testified that he, McCarty, and a few other employees remained on the premises talking, drinking, and playing poker. Later in the evening McCarty drank from the bottle, chased it with vodka (which he thought was water) and became ill. As we have noted, while driving home, McCarty lost his life when he collided with a railroad signal pole.
Note:	Intoxication not a defense where employer permits consumption of alcohol.
Citation:	12 Cal.3d 677, 33 CCC 712
WCC Citation:	WCC 3411974 CA

Case Name:	McClune v. WCAB		04/02/1998
Summary:	OPINION SONENSHINE, J. - Steve McClune contests the Workers' Compensation Appeals Board's (the WCAB) denial of his petition for reconsideration of his workers' compensation claim. McClune's expert witness testified the injury was caused by cumulative and repetitive trauma while McClune was employed by AMS. He explained McClune had no symptoms prior to his AMS employment and passed a pre-employment physical. He supported his testimony with McClune's medical records indicating McClune reported severe left hip degenerative arthritis pain in 1993. The WCAB denied the petition for reconsideration, holding McClune failed to establish by a preponderance of the evidence his injury was industrial in nature.
Note:	WCJ and WCAB can order taking new evidence when record lacks substantial evidence to find industrial causation, such duty imposed by due process.
Citation:	62 Cal.App.4th 1117, 63 CCC 261
WCC Citation:	WCC 26811998 CA

Case Name:	McClure v. Dept of Corrections and Rehabilitation		05/18/2011
Summary:	McCLURE v. DEPT. OF CORRECTIONS AND REHABILITATION ELIZABETH McCLURE, Plaintiff and Respondent, v. DEPARTMENT OF CORRECTIONS AND REHABILITATION, Defendant and Appellant. In this sexual harassment action, defendant California's Department of Corrections and Rehabilitation (the Department) (formerly California Department of Corrections) has found itself on the wrong side of a jury verdict in favor of plaintiff Elizabeth McClure. (Bradley v. Department of Corrections & Rehabilitation (2008) 158 Cal. App. 4th 1612, 1623 (Bradley). )On September 13, 2002, Snoddy informed McClure that she (Snoddy) would no longer be assigning McClure shifts at CCC. [¶] [McClure] was subsequently terminated by the prison [staff] notifying [Staffing]" that "they no longer wanted [McClure]. "
Note:	An employee of a temporary staffing firm assigned to work at the California Department of Corrections was a special employee of the department under the Fair Employment and Housing Act, the 3rd District Court of Appeals ruled in affirming a jury award in a sexual-harassment lawsuit.
Citation:	C062601, C063431
WCC Citation:	WCC 37662011 CA

Case Name:	McCormick v. San Pedro Bait Co.		12/15/2009
Summary:	Plaintiff and appellant Jack McCormick filed a complaint for damages against defendant and respondent San Pedro Bait Company (San Pedro) alleging negligence. He did not ask anyone from San Pedro to provide him with tools, equipment, or gear, and San Pedro did not do so. McCormick asserted that San Pedro's negligent failure to cover or barricade deck openings affirmatively contributed to his accident and that San Pedro supplied McCormick with an unsafe and defective bait barge. The court sustained objections to Stoller's statements that he had reviewed relevant safety standards, San Pedro rendered the barge unsafe for McCormick, the unsafe conditions caused the accident, and San Pedro violated safety regulations. Because San Pedro did not affirmatively contribute to McCormick's injuries, the safety regulations do not expand San Pedro's duty to McCormick.
Note:	The Privette doctrine barred an injured worker's negligence suit against the owner of a bait barge.
Citation:	B215111
WCC Citation:	WCC 35862009 CA

Case Name:	McDonnell Douglas Aircraft Co. v. WCAB		06/09/1993
Summary:	McDonnell Douglas Aircraft Company, Petitioner v. Workers' Compensation Appeals Board of the State of California, Xerox Corporation, et al. , Respondents. On October 27, 1988, applicant, McDonnell Douglas, and Industrial Indemnity entered into a compromise and release in which they settled all issues in applicant's case against McDonnell Douglas, including the right to vocational rehabilitation, for the gross amount of $ 10,000. In their answer to Xerox's petition for reconsideration, McDonnell Douglas and its insurer asserted that the WCJ reasonably relied on Dr. Ravin's October 14, 1986 report in support of his order approving the McDonnell Douglas compromise and release and his finding that there was a serious, bona fide dispute as to whether any industrial injury occurred during the McDonnell Douglas employment, because in that report Dr. Ravin discussed applicant's employment by McDonnell Douglas and that report was closest in time to the McDonnell Douglas employment. He granted that petition, ordering McDonnell Douglas to pay Xerox $ 4,000 as McDonnell Douglas's share of Xerox's settlement of vocational rehabilitation temporary disability indemnity. )II McDonnell Douglas further contends that the order approving McDonnell Douglas's compromise and release precludes an order requiring contribution by McDonnell Douglas to Xerox.
Note:	Settling employer not liable for contribution to another employer absent evidence that settlement was in bad faith.
Citation:	58 CCC 305
WCC Citation:	WCC 26031993 CA

Case Name:	McDuffie v. LA Co. Metropolitan Transit Authority		02/25/2002
Summary:	Finally, if none of these options succeeds or is possible, the WCJ or the Board may then appoint a medical examiner. We agree, however, with defendant's first contention as to further development of the medical record. BACKGROUND Applicant was hired by defendant as a bus operator on March 4, 1976, and worked in that capacity until his retirement on June 30,1999. On September 22,1999, he filed a claim for cumulative injury to both knees and in the form of hypertension. Applicant submitted the reports of Dr. Sobol for the injury to his knees and that of Dr. Burstein for his hypertension.
Note:	Proper procedure for supplementing medical record at trial.
Citation:	67 CCC 138
WCC Citation:	WCC 28402002 CA

Case Name:	McGee Street Productions vs. WCAB		05/12/2003
Summary:	The special employer was the production company, McGee Street Productions (McGee Street). On April 19, 2001, more than one year after Peterson's death, an amended petition naming both McGee Street and Entertainment was served on McGee Street. An order joining McGee Street Productions issued on December 10, 2001. McGee Street also contended that Entertainment not McGee Street was the responsible party. Not until April 16, 2002, in its opposition to joinder did McGee Street, for the first time, admit Entertainment was the general employer and McGee Street was the special employer.
Note:	Statute of limitations for serious & willful claims strictly construed.
Citation:	108 Cal.App.4th 707
WCC Citation:	WCC 29342003 CA

Case Name:	McKinnon v. Otis Elevator Company		04/18/2007
Summary:	Ct. No. 04AS02043) DEBORAH MCKINNON, Plaintiff and Appellant, v. OTIS ELEVATOR COMPANY, Defendant and Respondent. Landmark Healthcare's workers' compensation insurer, Everest National Insurance Company, and its claims administrator, American Commercial Claims Administrators (collectively, Employer), paid and became obligated to pay workers' compensation benefits to Employee, and, on May 23, 2003, filed a negligence-based subrogation complaint against Otis Elevator Company (Otis) to recoup these benefits. "At the current time ACCA is in the process of settling its case against Otis Elevator Company for the workers' compensation benefits paid on your behalf. Consequently, the settlement and dismissal of Employer's subrogation lawsuit against Otis does not bar Employee's lawsuit against Otis. As to Employee's lawsuit against Otis, Employee will not be allowed double recovery and Otis will not be subjected to double liability.
Note:	When an employer fails to adequately notify its employee of its subrogation lawsuit and proposed settlement involving the alleged third-party tortfeasor and fails to obtain the employee's consent to the settlement of that suit, and when the settling alleged third-party tortfeasor, prior to settlement, was or reasonably should have been aware of the possibility of the employee's claim for damages against the tortfeasor, the alleged tortfeasor cannot use the mere settlement and dismissal of the employer's subrogation action to bar the employee from maintaining her own action for damages against the alleged tortfeasor.
Citation:	149 Cal. App. 4th 1125
WCC Citation:	WCC 32162007 CA

Case Name:	McNally v. Holzman		04/18/2011
Summary:	McNALLY v. HOLZMAN PATRICIA A. McNALLY, Plaintiff and Appellant, v. DAVID T. HOLZMAN et al. , Defendants and Respondents. Respondents David T. Holzman and the law firm Hourigan, Holzman & Sprague negotiated a settlement which included a $395,000 special needs trust. Respondents signed the guardian ad litem petition on appellant's behalf, naming appellant's brother as guardian ad litem and trustee. We have attached a copy of the guardian ad litem petition which is a WCAB preprinted form. It states: "The minor(s)/incompetent(s) require a Guardian ad Litem and Trustee to prosecute the claim and to receive .
Note:	An applicant may not do an end run around the one-year statute of limitations by morphing her malpractice suit against her former attorneys into a defamation suit.
Citation:	B225645
WCC Citation:	WCC 37472011 CA

Case Name:	Meadows v. Farrell		11/22/2010
Summary:	Meadows eventually filed an action alleging intentional infliction of emotional distress and other tort claims based on statements allegedly made by Farrell. Sentry Insurance told Meadows that a "case nurse," defendant Barbara Farrell, would meet with her and any doctors to "manage [her] care. "According to Meadows, Farrell did not "publish Dr. Huffer's retraction to the extent that the original false and/or misleading information had been published. "She also denied disseminating false, misleading, or private medical information about Meadows, or communicating to anyone that Meadows was addicted to and/or abusing drugs. Meadows's declaration did not include any reference to the alleged comments by Farrell about Meadows potentially getting fired and/or not getting chiropractic care.
Note:	A nurse case manager's motion to strike an applicant's lawsuit failed because the nurse failed to show that her allegedly injurious comments were protected speech.
Citation:	H035309
WCC Citation:	WCC 36822010 CA

Case Name:	Medrano v. WCAB		09/25/2008
Summary:	The letter advised Medrano that he was not eligible for vocational rehabilitation services based on his employer's offer of modified or alternative work. The WCJ determined that Medrano was entitled to full vocational rehabilitation services, as the offer of modified/alternative work was not appropriate because it was made while Medrano was still medically temporarily disabled, which meant he was completely unable to work. The termination date of the VRMA awarded was when Medrano returned to the labor market. The Board granted review and issued an Opinion and Decision agreeing with the WCJ's decision that Medrano was entitled to full vocational rehabilitation services. And State Fund should not be the beneficiary of the work Medrano undertook, because it was State Fund's denial of services that resulted in Medrano needing the work for compensation.
Note:	Vocational rehabilitation maintenance allowance (VRMA) is not a wage replacement benefit, and thus it is not subject to wage-loss credit.
Citation:	B202828
WCC Citation:	WCC 34292008 CA

Case Name:	Meeks Building Center v. WCAB (Najjar)		06/26/2012
Summary:	MEEKS BUILDING CENTER v. WORKERS' COMPENSATION APPEALS BOARD MEEKS BUILDING CENTER et al. , Petitioners, v. WORKERS' COMPENSATION APPEALS BOARD and SALEM NAJJAR, Respondents. RELEVANT FACTUAL BACKGROUND AND PROCEDURAL HISTORY Applicant and respondent Salem Najjar worked as a paint sales associate at Meeks Building Center through June 12, 2007. The WCAB concluded that "the mandated payment for attending a [qualified medical evaluation] exam is not the equivalent of commencing temporary disability payments. "The WCAB granted Najjar's petition for reconsideration and rescinded the findings of fact and order of the WCJ. Because the WCAB could not determine on the record before it when temporary disability payments had in fact commenced, the matter was remanded.
Note:	A single payment of benefits to an injured worker for attending a defense-requested medical evaluation is a reimbursement of a medical-legal expense, not a payment of temporary disability benefits.
Citation:	C065944
WCC Citation:	WCC 39102012 CA

Case Name:	Mehta v. Activor Corp.		03/20/2018
Summary:	.             B276151 .             (Los Angeles County Super. Plaintiff initiated workers’ compensation proceedings (Mehta WCAB) 1 and sued Activor and Zaveri for damages pursuant to Labor Code section 3706 (Mehta v. Zaveri et al. , Los Angeles Superior Court Case No. YC057627 (Mehta I). Sufficiency of the Evidence to Support Fraudulent Transfers .           Defendants next argue that “even if Mehta was a creditor and Activor was a debtor . V. Money Judgment as Remedy for Fraudulent Transfers  .           The Mehta I judgment against Activor included Mehta’s attorney fees for successfully prosecuting that action. There is no authority for the damages award in Mehta II against Activor, however, because those damages were already awarded to plaintiff in Mehta I.
Note:
Citation:	B276151
WCC Citation:	Los Angeles County Super. Ct. No. BC 488531