November 2010

Noteworthy Cases Are Being Reviewed by the Court of Appeal

The First District Court of Appeal, Division Three has granted writs of review in Ogilvie v. Workers’ Compensation Appeals Bd. and City and County of San Francisco v. Workers’ Compensation Appeals Bd., with the petitions in each consolidated, on the issues of the interpretation and application of Labor Code Section 4660.
The Court is considering what threshold a party must pass in order to begin to rebut the presumption of Labor Code Section 4660, subdivision (c), which would the allow the parties to present evidence to rebut the PD ratings under the California Permanent Disability Schedule as amended by Senate Bill No. 899. In addition, the court may determine exactly what evidence is necessary to then rebut the presumption and whether or not a showing of a claimant’s diminished earning capacity is different from the claimant’s scheduled rating reflected in the PDRS. Stay tuned…
Also of note, the Third District Court of Appeal granted a writ in Meeks Building Centers v. Workers’ Compensation Appeals Board (Salem Najjar), which addresses the question of whether payment of a single day of TTD for applicant’s attendance at a medical appointment is sufficient to trigger the “commencement” of the 104-week limitation under LC 4656. Such a holding would have a significant impact on the exposure to TTD benefits, particularly in cases where applicant’s need for TTD does not arise until long after the date of injury, such as when light duty becomes no longer available or conservative treatment fails.

The Personal Comfort Doctrine is Revisited

A recent case dealing with injuries that occur during compensated breaks, especially when they occur on company property, found injury to have occurred in the course of employment or “COE.” In the case of Bank of America v. WCAB (Christine Esclavea) (Michael Quijano, deceased) the decedent’s death was found to have resulted from ingesting a nut substance in food he ate while attending a “pot luck” held on the employer’s premises for a departing colleague. The case was appealed based upon the employer’s contention that the “pot luck” was neither sponsored nor specifically authorized by the employer.
The trial judge relied on the Personal Comfort Doctrine to find that the decedent’s death was compensable based upon a co-worker’s testimony that such parties at work were a fairly common practice and a supervisor’s testimony that while the employer did not “endorse” the event, it was allowed to occur because it was good for morale. It was also noted that the decedent was being paid while he attended the party.
This case shows that even an employer’s benign effort to promote morale among employees can lead to liability under this doctrine.

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