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Workers' Comp

[03/05] Rhine v. Stevedoring Servs. of Am.
In a petition for review of a decision of the Benefits Review Board under 33 U.S.C. section 921(c) of the Longshore and Harbor Workers' Compensation Act, the petition is denied where: 1) a reasonable mind could have concluded that the Pacific Maritime Association Average adequately represented petitioner's annual earning capacity; and 2) the availability of alternative employment was determined by reference to two criteria: the claimant's physical abilities and the economic availability of particular jobs in the market.

[03/03] City of Laguna Beach v. California Ins. Guarantee Ass'n
In a city's action against an insurance company seeking reimbursement for incurring workers' compensation liability that exceeded its self-insured retention, grant of insurance company's motion for summary judgment is affirmed where: 1) the addition of subdivision (c)(13) to Ins. Code section 1063.1 did not abrogate Denny's Inc. v. Workers' Comp. Appeals Bd., 104 Cal.App.4th 1433 (2003); 2) the trial court properly invoked the Denny's rule when it granted summary judgment and concluded that the city cannot obtain reimbursement from defendant under section 1063.1(c)(13) as, although this provision renders the obligation of an insolvent excess workers' compensation insurer a "covered claim" that defendant must ordinarily reimburse, defendant need not reimburse a permissibly self-insured employer for benefits paid to an employee for cumulative injury if the employer's liability is based in part on a period of time when the employer was self-insured and chose not to buy excess insurance for the particular risk.

[02/26] Lara v. Workers' Comp. Appeals Bd.
Workers' Compensation Appeals Board's decision against the petitioner and in favor of the defendant is affirmed as, the petitioner, hired twice in the space of 12 months to prune bushes for a diner, was not an employee of the diner at the time he sustained injury, but rather, he was an independent contractor exempt from workers' compensation coverage.

[02/26] Elliott v. Workers' Comp. Appeals Bd.
Decision of the WCAB that plaintiff's employer was not obligated to provide the requested spinal surgery is reversed and remanded as, in light of its en banc decision in Cervantes v. El Aguila Food Products, Inc. (2009) 74 Cal.Comp.Cases 1336 explicitly denouncing the Brasher holding relied on by the WCAB in this case, the employer is ordered to authorize the requested surgery or object to the treating physician's recommendation under 4062(b) within 10 days of receipt of this order, thereby commencing the spinal surgery second opinion process.

[02/12] Conley v. Nat'l Mines Corp.
Order of the Benefits Review Board reversing an Administrative Law Judge's award of black lung benefits on a widow's claim filed by petitioner under the Black Lung Benefits Act after her husband died of metastatic lung cancer is affirmed as the Board did not err in concluding that the decedent's treating physician's opinion was insufficient to carry the widow's burden of proof, based on the standard previously articulated in Eastover Mining Co. v. Williams, 338 F.3d 501 (6th Cir. 2003).

[01/29] Firemans' Fund Ins. Co. v. Workers' Comp. Appeals Bd.
An order of the Workers' Compensation Appeals Board (WCAB) denying Fireman's Fund Insurance Company's petition for reconsideration regarding a stipulation entered into by plaintiff and the California Insurance Guarantee Association in 2001 is annulled and the matter is remanded where: 1) CIGA's stipulations and a subsequently entered order on the stipulations were not a nullity and void; and 2) the WCAB improperly exercised its discretion under the Labor Code section 5803 to set aside the order entered on the stipulations on the ground of illegality and public policy.

[11/25] Duncan v. Workers' Comp. Appeals Bd.
Plaintiff's petition for review of a decision by the Workers' Compensation Appeals Board is granted and the Board's decision annulled as the cost of living adjustment pursuant to Labor Code section 4659(c) for life pensions and total disability indemnity are added to those payments, per the words of the statute, starting January 1, 2004, and every January 1 thereafter.

[11/13] Gelson's Markets, Inc. v. Workers' Comp. Appeals Bd.
Workers' Compensation Appeals Board's decision and award finding the employer liable for discrimination against an industrially injured employee because the employer did not accept a physician's release to allow the employee to return to work is annulled as the employee did not establish a prima facie showing of employer's liability for discrimination in violation of Labor Code section 132a, and as such, the burden did not shift to the employer to establish an affirmative defense.

[10/30] Ins. Co. of the State of Pennsylvania v. Lejeune
In plaintiff's worker's compensation case against his employer's insurance carrier, court of appeals' default judgment against the defendant is reversed and remanded as the clerk's endorsement of the return of citation did not satisfy Rules 16 and 105.

[09/28] Person-Gaines v. Pepco Holdings, Inc.
Decision of the Industrial Board denying claimant's petition for additional work-related injury compensation is affirmed as the record shows the IAB's findings of fact were bases on expert testimony it deemed reliable and those findings - that claimant's petition and the expert testimony failed to establish any additional permanent impairment related to her 1988 work injury - were supported by substantial evidence.

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