Jensen v. Krauss CA5

Filed 5/5/15 Jensen v. Krauss CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

MICHELLE JENSEN, F067851 Plaintiff and Appellant, (Super. Ct. No. CV273748) v.

KENNETH KRAUSS et al., OPINION Defendants and Respondents.

APPEAL from a judgment of the Superior Court of Kern County. Lorna H. Brumfield, Judge. Steven B. Stevens; Law Offices of William H. Newkirk and William H. Newkirk for Plaintiff and Appellant. Peterson Bradford Burkwitz, Thomas R. Bradford and Craig Marinho for Defendants and Respondents. -ooOoo- Appellant Michelle Jensen filed a dental malpractice action against her former employer, respondents Kenneth Krauss, D.D.S. and Kenneth W. Krauss, D.D.S., Inc. (collectively respondent). While appellant was employed by respondent, he provided

after hours dental treatment and extracted two of appellant’s teeth. As a result, appellant suffered a nerve injury. Following a bench trial, judgment was entered in respondent’s favor. The trial court concluded that workers’ compensation was the exclusive remedy for appellant’s recovery. Appellant contends respondent’s treatment was outside the course and scope of her employment and therefore, under the dual capacity doctrine, she can pursue her civil action for negligence. However, the trial court found that respondent was obligated to treat appellant at no charge as a benefit of her employment. Appellant has not challenged this factual finding as being unsupported by substantial evidence. Thus, there existed an employment related duty for respondent to provide dental treatment to appellant as one of the benefits of her employment. Therefore, such treatment became part of the employer- employee relationship and appellant’s injury during the treatment was an incident of employment. Accordingly, the trial court correctly concluded that appellant’s injury fell within the workers’ compensation scheme. BACKGROUND In December 2008, respondent hired appellant as a full-time employee to handle billing and accounts receivable and to serve as a receptionist for respondent’s dental practice. Appellant’s employment with respondent ended in May 2010. Respondent had an employee policy manual in effect during appellant’s employment. This manual states that dental benefits for full-time employees and their immediate family members will begin after six months of employment. In October 2009, appellant began experiencing discomfort in a lower molar. On February 22, 2010, respondent extracted two of appellant’s teeth. The procedure took place after regular office hours. The extractions caused nerve damage that is likely permanent.