AOE-COE

Villacis v. County of Los Angeles Sheriff’s Department (BDP) (45 CWCR 95)  

Applicant was injured in a fall from a four-story building on August 6, 2014 sustaining injury to various body parts. The applicant claimed he had slipped, causing the fall. Defendant contended that applicant jumped off the roof in an apparent suicide attempt.

The applicant testified at trial that he did not attempt suicide and was injured when he slipped on loose gravel and fell off the roof and he did not hear or see anyone else on the roof when he fell.

Two defense witness testified that they saw applicant on the roof.  One of the witnesses described applicant’s face as expressionless and playing before he kind of like casually leapt over the side as if it was nonchalant type of thing. The second witness testified that applicant looked surprised and startled when he turned and saw them, went to the edge of the roof, and hopped down onto something and see if he knew something was on the other side of the ledge that he could land on. A third witness, the last person to exit from the stairs onto the roof, after ensuring that the door would not lock once close, then turned to see applicant’s head striking up over the edge of the roof before ducking down. He described looking over the edge of the roof, seeing applicant’s hands touching the legs and just falling away from the latch.

Defendant attempted to call applicant’s wife is an adverse witness. Applicant objected, citing marital privilege.  Defendant argued that the wife can wave that privilege when she responded to questions and deposition but conceded that she had invoked the privilege for many of the questions asked although answering others. The WCJ, citing Evidence Code 971, did not allow her to testify. Defendant did not offer deposition and evidence.

The WCJ found that the three defense witness’s testimony was credible, but was not consistent and not corroborated, but found applicant’s testimony credible and the defendant had not met its burden of proof that applicant’s fall had been intentional.

Defendant filed a petition for reconsideration.

The WCAB began by concluding that the record lacks medical evidence regarding whether the applicant was suicidal and if so whether the attempted suicide was industrial. There was no psychiatric assessment in the record and none of the medical studies cited by defendants was reviewed by any physician nor offered into evidence.

 

Citing the in bank decision in Hamilton v. Lockheed Corporation (66 CCC 473), the panel concluded that whether an act is suicidal is a medical question, which requires medical evidence.

Pursuant to the case of Searle v. Allstate Life Insurance Company (38 CA3d 425), the burden of proving intent is properly allocated to the party charge with proving suicide (here, intent to self-inflict injury) an applicant should be permitted to present evidence to navigate suicidal intent. According to that case, if the applicant did not understand the physical nature and consequences of the act, whether he was sane or insane, then he did not intentionally kill himself. The panel concluded without any evidence of mental capacity at the time of the fall, it could not determine whether applicant’s fall was attempted suicide.

The panel conceded that great weight is ordinarily ascribed to the WCJ’s determination on credibility of the witnesses, but concluded that applicant’s wife’s testimony should have been received. Under evidence code 970, 971 and 980 in the case of People v. Bradford (70 CA2d 333), there are two areas of marital privilege: first, a testifying spouse cannot be compelled to testify against another spouse, with certain exceptions. That privilege is vested solely in the testifying spouse. The second area, vested in either spouse if one spouse does testify, is that the testifying spouse cannot disclose confidential marital communications.

This case, applicant’s wife already waived her privilege by answering some questions in the deposition, while asserting the confidential communication privilege as to others. The WCJ should’ve allowed applicant’s wife to testify to the questions that did not contain confidential marital communications. Any further privilege assertions would’ve been analyzed by the WCJ as to whether the privilege would apply. Given the wife’s deposition testimony, defendant should have had the opportunity to cross-examine her at trial.

The panel rescinded the matter and returned it for a Status Conference to allow the parties how to best proceed.

In a footnote the panel remarked that the wife had apparently previously given recorded statements to an insurance investigator to support her husband’s claim. These were not transcribed or offered into evidence. The panel suggested, on remand, that the parties consider whether the wife’s recorded statements constitute a waiver of any confidential communication privilege she holds and, moreover, whether a complete waiver occurred under Evidence Code 973.

It should be noted that the WCAB is bound by the Evidence Code regarding the issue of privilege.

Zhu v. Workers’ Compensation Appeals Board (Court of Appeal) (  ____CCC_____):

The applicant, an in-home caregiver, was riding her bicycle from one private home where she worked to another home where we she was scheduled to work when she was struck and injured by a car. She was paid for working at both locations.

The WCAB concluded that the going and coming rule barred the applicant’s claim for worker’s compensation benefits.

 

The dissenting Commissioner and the WCJ found an exception to the going coming rule.

The Court of Appeal concluded that an applicant who was injured while riding her bicycle between the homes of disabled clients to care for them on behalf of her employer (the state) was within the course of employment.

The going and coming rule does not apply when the employee is in transit between points other than the home and the workplace.

In these cases, the real issue is not whether the going and coming applies, but whether transit is part of the employment or the employment relationship.

When it is clear that the transit is not a commute between home and work at a fixed time, the inquiry should be whether the transit was the employer’s choice or was for some benefit to the employer or the employment relationship.

The Court of Appeal ruled that under the facts of this case, the going and coming rule does not apply because the applicant was not commuting between her home and the workplace at a fixed time (Hinojosa v. Workers’ Comp. Appeals Bd. (1972) (8 Cal.3d. 150, 157]).   Zhu’s transit bestowed a direct benefit on the Department, as the Department knew that Zhu had to transit between homes to service more than one home a day, her transit was at the implied request of the Department and was thus a part of her employment relationship.

The applicant’s transit for the Department was for the benefit of the Department and was impliedly requested by the department.

In addition, the Court of Appeal agreed did not disagree with Commissioner Razo that the “required vehicle” exception to the going and coming rule applied if the case facts had come under the going and coming rule.

Carrillo v. Workers’ Compensation Appeals Board (W/D) 82 C.C.C. 372)

Applicant, on 4/17/2011, was sent home form his shift as a busboy because business was slow that night. Applicant returned to the restaurant later than evening and went to the patio and bar to socialize. The restaurant did not ask him to return and the manager/owner was not there.

Applicant remained at the restaurant consuming alcohol, until he was asked to leave due to his rowdy behavior. Applicant, after leaving the restaurant, drove his car to a gas station to attempt to buy cigarettes. The gas station refused to sell him cigarettes and he drove to another gas station. Applicant was involved in a single-car accident while driving shortly after midnight.

The WCJ found that applicant did not sustain injury AOE/COE. Applicant filed for reconsideration asserting that the employer condoned the use of alcohol by its employees such that the employer should be found liable for applicant’s intoxication and injury. Applicant cited McCarty v. WCAB. The WCJ in the R&R pointed out that the instant case was distinguishable from McCarty since applicant’s post-shift drinking was not hosted by the employer.

The WCAB denied reconsideration and adopted and incorporated the WCJ’s R&R. They also pointed out that under Labor Code § 3600(a)(9), injuries caused by “off duty” recreational social, or athletic activities are compensable only if the activities are a reasonable expectancy of employment or are expressly or impliedly required by the employment. Pointing out the “reasonable expectancy” test in Ezzy v. WCAB, the panel concluded that applicant did not establish that he had a reasonable belief that his conduct; returning to work to socialize and drink after his shift had ended, was expected or condoned by his employer.

Applicant’s petition for writ of review was denied.

Iniguez v. Workers’ Compensation Appeals Board (Court of Appeal, not published) 82 C.C.C. 310)

Applicant claimed an industrial injury on April 5, 2010 to his head, back, both shoulders and lower extremities. In March 2011, the applicant was evaluated by a panel Qualified Medical Evaluator in Orthopedic Surgery who found injury to applicant’s left knee, right shoulder and low back. The physician concluded the low back strain had basically resolved but found a 70% apportionment to the industrial back injury. When the Qualified Medical Evaluator prepared his report in 2011, he was not given electro-diagnostic evidence of the nerve damage from 2010. On re-evaluating the applicant in August 2013, the evaluator found radiculopathy in the neck and low back.

At a pretrial conference in November 2011, the issue of injury arising out of and occurring in the course of employment was raised, along with the ancillary issue regarding reporting and notice. Parts of the body injured were not specified, nor were they delineated at the trial on February 13, 2012, at which applicant testified to shoulder and knee problems.

The Workers’ Compensation Judge, on February 24, 2012, found the applicant sustained injury to his left shoulder and right knee, but there was no finding that they were the only parts of the body that were injured. The WCJ held the matter was not barred either by Labor Code §§ 3600 (a) (10) or 5400.

At further trial in May 2015, injury to other body parts was raised, including neck, back, and sleep disorder. The WCJ found injury to only the shoulder and knee, holding that although the neck and back had been claimed in 2011, those body parts were not mentioned at the initial trial. Because no petition for reconsideration had been filed, the 2012 findings had become final and the claim for back and neck injury was barred by collateral estoppel and was deemed to have been adversely decided pursuant to Labor Code § 5815. The applicant filed a petition for reconsideration and the WCJ recommended denying reconsideration and adding res judicata as a basis for precluding the neck and back claim.

The WCAB in a two-to-one decision adopted, incorporated and affirmed the judge’s decision, noting that by not seeking reconsideration of the 2012 findings, applicant waived his later claim of the neck and back injury. The dissenting commissioner would have rescinded the judge’s decision and remanded the case to revisit the body parts issue for two reasons: (1) that the 2012 decision violated Labor Code § 5313 by failing to resolve all body parts claimed, and (2) that by adding res judicata, a different theory, to her recommendation, the WCJ should have given applicant an opportunity to respond. The dissent also disagreed with the judge’s reasoning that it was up to the applicant to correct the 2012 decision by seeking reconsideration.

Applicant filed a petition for writ of review which was granted by the Court of Appeal. The Court of Appeal granted review and annulled the decision of the WCAB.

While the case was before the appellate court, the Board admitted that its decision on reconsideration had been erroneous. The court began by noting that the injury to specific body parts was not an issue listed for decision before the 2012 hearing, the purpose of which was to decide threshold issues, leaving for later proceedings the determination of the nature of the injuries. Nevertheless, the WCJ found in 2012 that industrial injuries to the shoulder and knee had been sustained.

Contrary to defendant’s contentions that this determination was a finding of no injury to the back and neck, the WCJ did not hold that the shoulder and knee were the only industrial injuries suffered. If so, the case would have ended, but it was clear to all that it was far from over in 2012, since parts of body injured was an issue at the 2015 hearing, without objection from defendant. The court expressed no doubt that the 2012 determination by the WCJ was not a final award, with preclusive effect by a collateral estoppel or res judicata. A decision that injuries to the right shoulder and left knee were the only industrial injuries was in fact never made in 2012; it is pointless to consider whether the court had authority to act.

The court strongly agreed with the Board’s present position that a finding of industrial injury to certain body parts did not bar applicant from presenting evidence of injury to other body parts at a subsequent proceeding. The court accepted the Board’s request to annul the decision and to remand for further proceedings.

County of Sacramento v. Workers’ Compensation Appeals Board (McCartney)(Court of Appeal, not published) 82 C.C.C. 672

The court majority concluded that the appeals Board erred in reversing the WCJ, who found that applicant, a deputy sheriff, did not sustain injury arising out of and occurring in the course of employment to his skin in the form of actinic keratosis. The Board had applied the “contributing cause” standard of South Coast Framing, Inc. v. Workers’ Comp. Appeals Bd. (Clark) (2015) 61 Cal.4th 291 (80 C.C.C. 489), while relying upon the PQME’s opinion that sun exposure was a contributing factor to the development of applicant’s actinic keratosis though she could not formulate the precise numerical percentage of the contributing effect.

According to the majority of the court, however, the PQME “never acknowledged that there was a causative role of unknown degree arising out of McCartney’s employment. Rather, she took great pains to explain (repeatedly) that it was not possible to attribute the cause of applicant’s condition to any particular period of exposure to the sun, and therefore it was nothing more than speculation to identify the work-related exposure as a contributing cause.” The Court of Appeal ruled on this evidence, they found the WCJ properly concluded that the applicant failed to establish that work-related sun exposure contributed to his condition by a reasonable probability.

The dissent countered, among other things, that the sun exposure McCartney received throughout his life, including his years on the police force, was cumulative and contributory, and that the sun exposure applicant received while employed as a law enforcement officer played some role in the development of actinic keratosis, but the PQME could not give a definitive percentage of how much it caused. The majority disagreed that the PQME’s testimony could be read as supporting the latter point.

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