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Access over workers' compensation decisions, including En Banc, Significant Panel Decisions, and writ-denied cases.

Case No. ADJ3133261 (VNO 0400017)
Regular
Aug 17, 2010

FELIPE TOLENTINO vs. CONCO CEMENT, CALIFORNIA INSURANCE GUARANTEE ASSOCIATION, XCHANGING INC., FREMONT COMPENSATION

The Workers' Compensation Appeals Board (WCAB) dismissed the lien claimant's petition for reconsideration as premature. The WCAB granted the defendant's petition for reconsideration regarding the temporary disability overpayment issue, deferring it for further proceedings. The Board affirmed the WCJ's findings on injury causation and permanent disability but amended the decision to clarify the overpayment issue. Finally, the WCAB issued a notice of intention to sanction defendant's counsel for attaching and citing unadmitted evidence.

Workers' Compensation Appeals BoardFELIPE TOLENTINOCONCO CEMENTCALIFORNIA INSURANCE GUARANTEE ASSOCIATIONXCHANGING INC.FREMONT COMPENSATIONliquidationADJ3133261VNO 0400017OPINION AND ORDERS DISMISSING PETITION FOR RECONSIDERATION AND GRANTING PETITION FOR RECONSIDERATION
References
Case No. ADJ8577392, ADJ8577393
Regular
Dec 26, 2014

TERESA MARTINEZ vs. CHELO'S HAIR FASHION

The Workers' Compensation Appeals Board affirmed a judge's finding that Teresa Martinez was an employee of Chelo's Hair Fashion, not an independent contractor. The defendant sought reconsideration, arguing the judge erred in this determination. The Board found that the applicant established a prima facie case of employment, and the defendant failed to present evidence to rebut this presumption. Therefore, the initial finding of employment was upheld.

Independent ContractorEmployee StatusBorello FactorsRight of ControlPrima Facie CaseReconsiderationFindings of FactWorkers' Compensation Appeals BoardHairdresserSalon
References
Case No. ADJ10817975
Regular
Nov 18, 2019

ALISON MARQUEZ vs. EL PESCADOR, EMPLOYERS PREFERRED

This case involved a worker claiming unlawful discrimination under Labor Code section 132a. The applicant argued that the defendant's witness testimony lacked credibility and was presented without an interpreter. The Workers' Compensation Appeals Board (WCAB) affirmed the initial decision finding no discrimination. The WCAB adopted the judge's report, concluding the applicant failed to demonstrate a prima facie case of discrimination because the evidence did not support claims of witness incredibility or lack of interpreter causing confusion.

Labor Code section 132aDiscriminationRetaliationWorkers' Compensation Appeals BoardReconsiderationFindings and OrderWCJPrima Facie CaseLegal RightDetriment
References
Case No. ADJ4265919
Regular
Mar 02, 2009

F. GAITAN vs. K&S FARMS, COMP WEST INSURANCE

This case involves an applicant who sustained an industrial injury and was subsequently terminated by his employer, K&S Farms, while on temporary disability. The applicant filed a claim alleging discrimination under Labor Code section 132a, arguing the termination was a penalty for his injury. The Workers' Compensation Appeals Board granted the employer's petition for reconsideration, rescinded the prior award, and found no violation of section 132a. The Board determined the applicant failed to establish a prima facie case that his termination was "because of" his industrial injury, as required by law.

Labor Code section 132adiscriminationprima facie caseindustrial injurydetrimentdisparate treatmenteconomic justificationbusiness necessitytemporary disabilityreinstatement
References
Case No. ADJ7009322
Regular
Nov 17, 2015

PENNY VERDIN vs. HEALDSBURG SENIOR LIVING, LLC, dba, HEALDSBURG SENIOR LIVING COMMUNITY, CARE WEST INSURANCE

This case involved an applicant who alleged her termination constituted discrimination under Labor Code section 132a. The applicant argued her employer terminated her due to her permanent and stationary industrial injury, especially after withdrawing a modified duty position without an interactive process. While a prima facie case was established, the defendant successfully rebutted the claim by demonstrating no available permanent positions accommodated the applicant's work restrictions. The Appeals Board denied reconsideration, affirming the employer had a legitimate business reason for termination and the applicant failed to provide contradictory evidence.

Workers' Compensation Appeals BoardPenny VerdinHealdsburg Senior LivingLLCCare West InsuranceLabor Code Section 132aDiscriminationPermanent and Stationary InjuryModified DutyTemporary Disability
References
Case No. ADJ7271031
Regular
Sep 21, 2012

THOMAS DACK vs. CEMEX, COMMERCE & INDUSTRY INSURANCE COMPANY administered by CHARTIS CLAIMS INC.

This case involves the defendant's Petition for Removal after the WCJ denied their request to compel the applicant's attendance at a QME examination. The applicant's attorney's office had previously stated the applicant would not attend QME evaluations until litigation was resolved and attempted to strike a QME. The Appeals Board is giving notice of its intention to grant the defendant's petition and compel the applicant's attendance, unless the applicant shows good cause within ten days. The Board finds the defendant has presented a prima facie case for compelling the examination, noting a lack of formal objection from the applicant.

Petition to CompelPanel QMELabor Code section 4062.2WCJPetition for RemovalApplicant objectionGood causeWorkers' Compensation Appeals BoardQualified Medical EvaluatorIndustrial injury
References
Case No. ADJ9293237
Regular
Dec 12, 2017

MIGUEL GARCIA vs. AMERICAN WEST WORLDWIDE EXPRESS, INC., BLUE STAR CLAIMS MANAGEMENT

The Workers' Compensation Appeals Board (WCAB) granted reconsideration of a decision finding applicant Miguel Garcia an independent contractor. The WCAB found that the applicant established a prima facie case of employment, shifting the burden to the employer to prove independent contractor status. The Board determined that the employer exercised significant control over the applicant's work, despite the written agreement, but found insufficient evidence regarding the right to control and differences between employee and owner-operator drivers. Consequently, the WCAB rescinded the prior order and returned the case for further development of the record and a new decision.

Independent contractorEmployee statusBorello testRight to controlTruck driverOwner-operatorLabor Code section 2750.5WCABReconsiderationFindings and Order
References
Case No. ADJ8833300, ADJ8833298
Regular
Oct 20, 2019

RICHARD FEIGEL PEREZ vs. CITY OF OAKLAND, JT-2 INTEGRATED RESOURCES

The Workers' Compensation Appeals Board rescinded a prior decision and returned the case to the trial level for further proceedings. The applicant alleged the defendant City of Oakland violated Labor Code section 132a by discriminating against him when returning to work after an industrial injury. The Board found the record unclear as to whether the defendant deviated from its own return-to-work procedures as outlined in the Memorandum of Understanding, specifically regarding the review of treating physician reports and the scheduling of fitness-for-duty tests. Further development of the record is needed to determine if a prima facie case of discrimination was established and if the defendant had legitimate business reasons for its actions.

Labor Code 132aRetaliationDiscriminationFitness for Duty TestReturn to WorkMemorandum of Understanding (MOU)Treating PhysicianAgreed Medical Evaluator (AME)Qualified Medical Evaluator (QME)WCAB
References
Case No. WCK 0069591
Regular
Apr 24, 2008

JIM WESTON vs. SAN RAMON VALLEY FIRE PROTECTION DISTRICT, INNOVATIVE CLAIMS SOLUTIONS, INC.

The applicant, a firefighter trainee, sought reconsideration of the denial of his discrimination claim under Labor Code section 132a. The Board upheld the WCJ's finding that the employer did not violate section 132a, as the applicant's termination was due to performance issues and not his industrial knee injury. The applicant failed to establish a prima facie case of discrimination by showing he was singled out for disadvantageous treatment due to his injury, as required by the *Lauher* decision.

Labor Code section 132aprima facie casediscriminationindustrial injuryfirefighterparamedicprobationary firefighteracademy trainingmodified dutyperformance evaluation
References
Case No. AHM 0117948
Regular
Dec 04, 2007

LISA M. WOLFE vs. STATE FARM INSURANCE COMPANY

The Workers' Compensation Appeals Board granted reconsideration and reversed a prior decision, finding that the applicant failed to prove her termination violated Labor Code section 132a. The Board determined the applicant did not show she was singled out for disadvantageous treatment due to her industrial injury. Even if a prima facie case were established, the employer's business necessity defense, based on the applicant's extended absence and uncertain return to work, would have prevailed.

Labor Code section 132adiscriminatory terminationbusiness necessity defenseprima facie casereinstatementlost wagespermanent disabilityqualified medical examinationvoice activated softwarerepetitive keyboarding
References
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