Misael Mendoza-Hernandez suffered a “non-catastrophic” injury in 2007 while working for his employer, Colosseum Athletics. State Fund was Colosseum’s workers’ compensation insurer.

In November 2008, a physician designated by State Fund injured Mendoza-Hernandez’s spine while giving him an epidural, rendering Mendoza-Hernandez “effectively quadriplegic.” As a result, he needs catheterization every four to six hours. He cannot use his hands to do this, so he needs skilled nursing care for the catheterization. He also needs rectal suppositories to be able to defecate and must rely on another person to insert the suppositories.

Mendoza-Hernandez and State Fund entered into a written stipulation that State Fund would pay for home health care for eight hours per day, seven days per week, “until such time” as the parties’ agreed medical examiner reviewed certain documents and issued a supplemental report on Mendoza-Hernandez’s home health care needs. State Fund was to “then abide by those recommendations.” State Fund was also to “restart rehab gym payments and authorizations until an AME report to [the] contrary.”

The AME his report, which recommended 24 hour home health care. State Fund did not abide by the AME recommendation, and did not pay for 24 hour home care or for the rehabilitative gym membership. Mendoza-Hernandez to engage in further litigation before the WCAB to enforce the order.

In 2014, the parties stipulated to 100 percent disability. The parties subsequently agreed on the amounts of attorney fees, penalties, and sanctions that State Fund should pay for its refusal to pay the prior order.

Mendoza-Hernandez’s filed a civil action against State Fund for a single cause of action for intentional infliction of emotional distress. State Fund demurred to the Complaint. The trial court sustained the demurrer without leave to amend. The Court of appeal affirmed the dismissal in the unpublished case of Misael Mendoza-Hernandez v State Compensation Insurance Fund.

In Unruh v. Truck Insurance Exchange (1972) 7 Cal.3d 616 (Unruh), our Supreme Court created an exception to exclusive jurisdiction “where an employer’s insurance carrier intentionally commits outrageous and extreme conduct totally unnecessary to and far beyond the bounds of normal investigation and defense of a worker’s claim.”

The trial court concluded that this exception did not apply to the facts that Mendoza-Hernandez alleged. The court cited Everfield v. State Compensation Insurance Fund (1981) 115 Cal.App.3d 15 (Everfield) for the proposition that an insurer’s “mere denial of payment, even if intentional, is still within the jurisdictional purview of the workers’ compensation scheme.”

The Court of Appeal agreed with this reasoning, adding “California courts have invariably barred statutory and tort claims alleging that an insurer unreasonably avoided or delayed payment of benefits even though the insurer committed fraud and other misdeeds in the course of doing so.”