March 2013 Case Law Update

Friday, March 8, 2013 | 0

The following is a summary of important updates to California workers' compensation law.

INJURY

In Mendoza (Villanueva) v. Redwood Empire Sawmill, 2012 Cal. Wrk. Comp. P.D. LEXIS 649, the WCAB found a sudden and extraordinary employment event for the purposes of LC 3208.3(d).

In Santillan v. Outsource Telecom, 2012 Cal. Wrk. Comp. P.D. LEXIS 666, the WCAB held that an audio-visual installer's accident while driving his own vehicle was not barred by the going and coming rule.

STATUTE OF LIMITATION

In Jaszewski v. The Regents of the University of California, 2012 Cal. Wrk. Comp. P.D. LEXIS 637, the WCAB held that an applicant's cumulative trauma claim was barred by LC 5405, and that her employer's provision of short-term disability benefits did not extend her period to file a claim to five years. The defendant's denial provided the applicant with the specific notice that she had one year from the date of the denial to pursue her claim by filing an application for adjudication of claim, and she did not.

TEMPORARY DISABILITY

In County of Alameda v. WCAB (Knittel) (2013) 213 Cal. App. 4th 278, the 1st District Court of Appeal held that per LC 4656(c)(2), salary continuation benefits paid to an injured public safety officer under LC 4850 count toward the 104-week limit on payments for an injury causing temporary disability.

In Despres v. Pacific Titan, Inc., 2012 Cal. Wrk. Comp. P.D. LEXIS 684, the WCAB held that an applicant was not entitled to temporary disability benefits when he was released to work by his primary treating physician with restrictions; the employer offered three modified work positions and the applicant rejected them because he did not agree with the restrictions imposed by his physician.

In Wycinsky v. City of Citrus Heights, 2012 Cal. Wrk. Comp. P.D. LEXIS 676, the WCAB held that a police officer was not entitled to benefits under LC 4850 when he resigned to take a position with a different employer for financial reasons unrelated to his industrial injury.

PERMANENT DISABILITY

In Kite v. East Bay Municipality Utility District, 2012 Cal. Wrk. Comp. P.D. LEXIS 640, the WCAB upheld a WCJ's decision to combine the permanent disability stemming from an applicant's injuries to his hips by simple addition, rather than by using the Combined Values Chart or the reduction formula.

In Fowler v. Wolfgang Puck Catering Events, 2012 Cal. Wrk. Comp. P.D. LEXIS 622, the WCAB rescinded a WCJ's determination that an applicant was permanently totally disabled pursuant to LeBoeuf based on a vocational expert's opinion that relied on matters outside of his expertise.

In Maloney v. City of Berkeley Police Department, 2012 Cal. Wrk. Comp. P.D. LEXIS 645, the WCAB upheld a WCJ's determination that permanent disability indemnity payments should commence within 14 days of the last temporary disability payment (May 6, 2011), even though the payments covered temporary disability from Sept. 1, 2000, to Sept. 7, 2000.

RETURN TO WORK

In Kite v. East Bay Municipality Utility District, 2012 Cal. Wrk. Comp. P.D. LEXIS 640, the WCAB upheld a WCJ's decision that an employer was liable for a 15 percent increase in PD for failing to timely send an offer of work to an applicant who sustained a brief period of temporary disability and had returned to his regular duties before becoming permanent and stationary.

In Moreno v. WCAB, 2013 Cal. Wrk. Comp. LEXIS 4 (writ denied), the WCAB held that an applicant failed to make a prima-facie case for discrimination under LC 132a, even though she was terminated after filing a workers' compensation claim.

DEATH BENEFITS

In M E Construction Co. v. WCAB (Sturgeon), 2013 Cal. Wrk. Comp. LEXIS 9 (writ denied), the WCAB held that an 18-year-old daughter was considered a total dependent under LC 3502 even though she worked four hours a week, earning $8 per hour.

DISCOVERY AND SETTLEMENT

In Avila v. Residence Inn/Marriott Hot Springs, 2012 Cal. Wrk. Comp. P.D. LEXIS 682, the WCAB granted removal of a WCJ's order that the defendants provide the applicant "all claims records pertaining to applicant."

In Estrada v. Foothill Packing, Inc., 2012 Cal. Wrk. Comp. P.D. LEXIS 621, the WCAB majority denied a defendant's petition for removal of a WCJ's order that the applicant be examined by a Spanish-speaking neuropsychologist as a panel QME absent an AME agreement.

In Catlin v. JC Penney, Inc., 2012 Cal. Wrk. Comp. P.D. LEXIS 616, the WCAB held that an AME's report was not inadmissible when the applicants' attorney unilaterally sent a PTP's report to the AME without having served it on the defendant 20 days in advance and without obtaining the defendant's agreement to send it.

In Frost v. East Bay Municipal Utility District, 2012 Cal. Wrk. Comp. P.D. LEXIS 623, the WCAB upheld a WCJ's decision that a psychiatric QME's telephone call to an applicant's wife during an evaluation was not a prohibited ex parte communication requiring a replacement panel.

In Nicknig v. Safe Credit Union, 2012 Cal. Wrk. Comp. P.D. LEXIS 655, the WCAB upheld a WCJ's order denying defendant's request for a replacement panel of QMEs, even though the panel QME did not prepare a supplemental report requested by the defendant when its own action contributed to the delay in obtaining supplemental reports.

In Coffer v. Robla School District, 2012 Cal. Wrk. Comp. P.D. LEXIS 617, the WCAB, per LC 4067, allowed an applicant to be evaluated by a different QME in connection with a petition to reopen when the original QME was not readily available.

In Diaz v. County of Stanislaus, 2012 Cal. Wrk. Comp. P.D. LEXIS 685, the WCAB upheld a WCJ's order imposing $500 in sanctions on a defendant for failing to file the permanent and stationary report of a primary treating physician with a compromise and release agreement per CCR 10233(d)(1), even though it filed a panel QME report.

LITIGATION

In Hern v. Mattingly, 2012 Cal. Wrk. Comp. P.D. LEXIS 636, the WCAB denied removal of a WCJ's order closing discovery at a status conference absent a petition establishing good cause.

In In re Daniel Escamilla, 2013 Cal. Wrk. Comp. LEXIS 20, the appeals board issued an en banc decision finding good cause to suspend a nonattorney hearing representative from appearing before it on behalf of any party or lien claimant for 90 days.

AWARDS AND APPEALS

In Allen v. San Bernardino County Superintendent of Schools, 2012 Cal. Wrk. Comp. P.D. LEXIS 679, the WCAB granted reconsideration and returned the matter to the trial level to admit the employer's newly discovered evidence that the applicant's claim was barred by the initial physical aggressor defense under LC 3600(a)(7).

Complete discussion of these topics can be found in Sullivan On Comp available to subscribers here.

Michael Sullivan is the founder of Michael Sullivan Associates, a workers' compensation defense firm with four offices in Southern California, and author of "Sullivan on Comp," a treatise on California workers' compensation law.