Gomez v. Casa Sandoval, 052703 CAWC, OAK 234515

• Case Date: May 27, 2003
• Court: California

VICTORIA GOMEZ, Applicant, v. CASA SANDOVAL; GOLDEN EAGLE INSURANCE COMPANY; CALIFORNIA COMPENSATION (in liquidation); CALIFORNIA INSURANCE GUARANTEE ASSOCIATION; RISK ENTERPRISE MANAGEMENT, Defendants. CAROL NOKES, Applicant, v. PLACER SAVINGS BANK; FREMONT COMPENSATION INSURANCE COMPANY; PAULA INSURANCE COMPANY (in liquidation); CALIFORNIA COMPENSATION (in liquidation); CALIFORNIA INSURANCE GUARANTEE ASSOCIATION; Defendants. Nos. OAK 234515, OAK 239085, OAK 240882 Nos. SAC 289506, SAC 289507 California Workers Compensation Decisions Workers Compensation Appeals Board State of California May 27, 2003           OPINION AND DECISION AFTER RECONSIDERATION (EN BANC)           MERLE C. RABINE, CHAIRMAN.          The Workers' Compensation Appeals Board (Appeals Board) granted reconsideration to further study the record in these two cases. Because of the important legal issues presented, as well as to assure uniformity of decision in the future, the Chairman of the Appeals Board, upon a majority vote of its members, consolidated the two cases and reassigned them to the Appeals Board as a whole for an en banc decision. (Labor Code, §115.) 1 Having completed our deliberations, we hold as follows:

(1) In a single cumulative injury or occupational disease case involving the California Insurance Guarantee Association (CIGA) and another solvent carrier or carriers, CIGA will be relieved of liability pursuant to Insurance Code section 1063.1(c)(9) and Industrial Indemnity v. Workers' Comp. Appeals Bd. (Garcia) (1997) 60 Cal.App.4th 548 [62 Cal.Comp.Cases 1661] ("Garcia"), unless there is a prior approved stipulation, settlement or decision by a workers' compensation administrative law judge (WCJ) or the Appeals Board setting the apportionment of liability, which is binding on the now-insolvent carrier and becomes CIGA's liability;

(2) In successive injury cases, an apportionment of liability must be made by the WCJ or Appeals Board, setting the specific percentage of liability of all carriers, which will likewise set CIGA's liability for any now-insolvent carrier.

(3) Absent extraordinary circumstances, where CIGA is or has become liable for administering an award on behalf of a now-insolvent carrier, CIGA will be relieved of administering that award.

         I. BACKGROUND          Gomez v. Casa Sandoval (OAK 234515, 239085, 240882)          On August 18, 1997, the WCJ approved Stipulations with Request for Award and Award, in which it was stipulated that the applicant, while employed by Casa Sandoval, insured by Golden Eagle Insurance Company (Golden Eagle) and California Compensation (Cal Comp), sustained successive injuries, resulting in permanent disability and the need for further medical treatment. The stipulations apportioned liability for permanent disability between the two carriers, but there was no apportionment of liability for the medical treatment award, for which Cal Comp was designated the "banker" with right of contribution against Golden Eagle.          In September 2000, Cal Comp became insolvent and CIGA began adjusting its "covered claims." In January 2001, CIGA requested dismissal, asserting that its liability for medical treatment was not a "covered claim" because Golden Eagle provided "other insurance" under Insurance Code section 1063.1(c)(9). Golden Eagle objected, and a hearing was held on March 18, 2002. The Minutes of Hearing (MOH) listed the three cases involving further medical treatment, and the insurance coverage for each injury, as follows:

"Case OAK 239085 for a specific injury of June 1, 1995. Wherein California Compensation/CIGA is the only defendant.

"Case OAK 234515 for cumulative trauma period from August 1988 to December 8, 1995, wherein California Compensation/CIGA is the only defendant.

"Case OAK 240882 for cumulative trauma from December 11, 1995 to December 11, 1996 where in California Compensation/CIGA is the defendant from December 11, 1995 until April 30, 1996 and defendant Golden Eagle is the carrier from May 1, 1996 to December 11, 1996."

         The matter was submitted on the record. Thereafter, the WCJ issued a decision finding that CIGA, on behalf of the now-insolvent carrier Cal Comp, had a duty to administer the award of medical treatment, and that CIGA's duty took precedence over its right to be dismissed where another solvent carrier, Golden Eagle, was still present in the case.          CIGA sought reconsideration of the WCJ's decision, contending in substance that while Cal Comp was designated the "banker," the approved Stipulations and Award did not apportion liability for medical treatment but reserved Cal Comp's right of contribution against Golden Eagle, who therefore provided "other insurance" under Insurance Code section 1063.1(c)(9), and consequently CIGA had no "covered claim."          Golden Eagle filed an answer, responding that it would violate due process to allow CIGA to be dismissed, and that CIGA remained liable for Cal Comp's stipulation to administer the medical treatment award.          Nokes v. Placer Savings Bank (SAC 289506, 289507)          In this case, it was stipulated that the applicant sustained injury during the period February 19, 1991 through May 18, 1997, with Fremont Compensation Insurance Company (Fremont) the sole responsible carrier (SAC 289507), and during the period July 28, 1997 through October 6, 1998, with Paula Insurance Company (Paula, now insolvent with its "covered claims" adjusted by CIGA) the sole responsible carrier (SAC 289506). The issue of permanent disability was disputed, and on July 24, 2002, the WCJ issued Findings, Award and Order, finding that the two cumulative trauma injuries became permanent and stationary (P&S) at the same time and resulted in combined permanent disability of 32%, pursuant to Wilkinson v. Workers' Comp. Appeals Bd. (1977) 19 Cal.3d 491 [42 Cal.Comp.Cases 406] ("Wilkinson"). The WCJ also awarded further medical treatment, ordered Fremont to administer the award, reserved jurisdiction over apportionment of liability, re-joined CIGA, and found that Paula was bound by an earlier stipulation of injury. 2          Fremont sought reconsideration of the WCJ's decision, contending in substance that the two injuries required separate determinations, that the two injuries did not become P&S at the same time, and that the WCJ erred in applying Wilkinson rather than Fuentes v. Workers' Comp. Appeals Bd. (1976) 16 Cal.3d 1 [41 Cal.Comp.Cases 42] ("Fuentes").          Applicant filed an answer.          II. DISCUSSION ...