What the panel ordered
The WCAB affirmed the arbitrator's decision as amended, clarifying that the sole issue determined was insurance coverage, amending findings to clarify insufficient evidence of a valid limiting endorsement, and dismissing the Uninsured Employers Benefits Trust Fund as a party defendant. The matter is returned to the trial level for further proceedings.
Defendant American Casualty Insurance Company sought reconsideration of the arbitrator's December 9, 2020 Findings and Order regarding insurance coverage for an alleged cumulative trauma injury. The WCAB granted reconsideration and now issues its decision after reconsideration.
What was disputed, and how it came out
Each issue the panel decided, with the reasoning it gave. An outcome is what this panel did on this record — not a rule, and not a prediction.
The arbitrator found, and the WCAB affirmed as amended, that there was insufficient evidence of a valid limiting and restricting endorsement in the insurance policies covering the alleged cumulative trauma period. The WCAB clarified that the sole issue determined was insurance coverage and that rescission was not at issue.
From the decision · page 5For the foregoing reasons, IT IS ORDERED, as the Decision After Reconsideration of the Workers' Compensation Appeals Board, that the December 9, 2020 Findings and Order is AFFIRMED, EXCEPT Findings of Fact 5, 6, 7, 8 and the Order are AMENDED as follows:
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
There was no evidence that a valid limiting and restricting endorsement was included in a policy covering American Choice Van Lines or Go East Movers during the alleged cumulative trauma period.
Favours Applicant prevailed
Without such an endorsement, the insurance policy could not be construed to only cover clerical employees, and thus coverage could not be limited as American contended.
From the decision · page 5FINDINGS OF FACTS 5. There is no evidence that a valid limiting and restricting endorsement was
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Ins. Code §§ 11651, 11660; Travelers Property Casualty Co. v. Workers' Comp. Appeals Bd. (Mastache) 40 Cal.App.5th 728; Fyne v. Industrial Acci. Com. (1956) 138 Cal.App.2d 467
All workers' compensation policies must contain a clause making the insurer directly and primarily liable to any proper claimant for payment of compensation. Policies provide coverage to all employees unless explicitly excluded by a limiting and restricting endorsement in accordance with regulations adopted by the Insurance Commissioner.
American could not limit coverage to only clerical employees without a valid endorsement; no such endorsement was proven.
From the decision · page 3In its Petition, American contends, in essence, that it was not required to exclude non- clerical employees because the policy only covered clerical employees. Workers' compensation insurance policies in California are subject to regulation by the Department of Insurance. (Ins. Code, § 11651, 11657, 11658.) All workers' compensation policies must "contain a clause to the effect that the insurer will be directly and primarily liable to any proper claimant for payment of...compensation." (Ins. Code, § 11651.) Workers' compensation policies provide coverage to all employees of an employer unless employees are explicitly excluded in the insurance contract with a limiting and restricting endorsement in accordance with regulations adopted by the Insurance Commissioner. (Ins. Code, § 11660; in Travelers Property Casualty Co. v. Workers' Comp. Appeals Bd. (Mastache) 40 Cal.App.5th 728 [84 Cal.Comp.Cases 883], Fyne v.
What proof carried it
The evidence the panel weighed, by kind.
Defendants did not provide sufficient evidence to find that the insurance policies at issue were limited by a valid limiting and restricting endorsement.
From the decision · page 4The arbitrator's findings regarding whether the policies were limited (Findings of Fact 5, 6, and 7), are unnecessarily complex. It appears the findings reference a potential limiting and restricting endorsement (or endorsements), but the arbitrator does not identify the endorsement or specify a particular policy or policies. If an insurer contends that it has issued a limited policy, the insurer must provide evidence in the form of policy documents. The arbitrator is tasked with determining whether the policy is limited or not. Accordingly, we will amend the findings to clarify that defendants did not provide sufficient evidence to find that the policies at issue are limited.
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About this page
- A published decision of the California Workers' Compensation Appeals Board, taken apart by what it turned on. The Board publishes the decision itself; this page adds the extraction and quotes the passage behind every claim.
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