September 2015 Case Law Update

Friday, September 4, 2015 | 0

BUSINESS OF INSURANCE

In San Francisco Bay Area Rapid Transit District v. General Reinsurance Corp. (2015) 80 CCC 712, the U.S. District Court for the Northern District of California held that it had jurisdiction to make a factual determination regarding the date of injury in a breach of contract suit filed by the employer (BART) against its excess carrier, General Reinsurance (General), which provided an excess policy through July 1, 1992.

In American Zurich Insurance Co. v. Country Villa Service Corp. (2015) 80 CCC 687, the U.S. District Court for the Central District of California held that unfiled and unapproved side agreements between an insurer and employer are illegal under IC 11658 and CCR 2268 (Title 10), and therefore void as a matter of law.

INJURY

In Bell v. Los Angeles Raiders, 2015 Cal. Wrk. Comp. P.D. LEXIS 338, the WCAB held that a compromise and release (C&R) in 1996 that settled a cumulative trauma (CT) claim for injury from 1991 to 1994 to "multiple orthopaedic body parts as per medical report on file," did not preclude the applicant from later seeking compensation for traumatic brain injury and psychological injury during the same CT period.

In Salas v. Carter's Inc., 2015 Cal. Wrk. Comp. P.D. LEXIS 360, the WCAB held that an applicant was not entitled to the presumption of compensability per LC 5402(b) when she did not establish that she ever filed a claim form with the employer, even though the employer's denial was issued more than 90 days after she filed an application for adjudication.

In Joe v. County of Santa Clara-Probation Department, 2015 Cal. Wrk. Comp. P.D. LEXIS 352, the WCAB held that an applicant's psychiatric claim was not barred when 75 percent of the psychiatric injury was caused by her increased workload and stressful working conditions –– they were not a "personnel action" within the meaning of LC 3208.3(h).

STATUTES OF LIMITATION

In De Leon Lopez v. Raize Dough Enterprises, 2015 Cal. Wrk. Comp. P.D. LEXIS 344, the WCAB held that an applicant's claim was not barred by the statute of limitations under LC 5405 because it was tolled when the defendant had notice of an injury that required medical treatment beyond first aid, and failed to provide a claim form and notice of potential eligibility.

In Clara v. California Department of Social Services, 2015 Cal. Wrk. Comp. P.D. LEXIS 376, the WCAB rescinded a WCJ decision that a petition to reopen was not timely because it was not filed at the district office with venue.

PENALTIES AND SANCTIONS

In Matusevic v. Channel Technologies, 2015 Cal. Wrk. Comp. P.D. LEXIS 392, the WCAB rescinded a WCJ's order for sanctions per LC 5813 based on a claims adjuster's failure to comply with an order to appear at a lien trial when the matter was pending on removal.

DISCOVERY AND SETTLEMENT

In Hubbard v. United Parcel Service, 2015 Cal. Wrk. Comp. P.D. LEXIS 350, the WCAB rescinded its prior decision finding that a lien for medical-legal expenses was allowable per LC 4620, and issued a new decision disallowing the lien, per LC 4064(d).

In Martinez v. Friendly Franchisees Corp., 2015 Cal. Wrk. Comp. P.D. LEXIS 358, the WCAB rescinded an order dismissing an applicant's claim for failure to appear at multiple trials when she was represented by an attorney at each trial.

In Trinh v. Tseng Long USA, Inc. (2015) ADJ928027, the WCAB issued an en banc decision giving notice that the privilege of Professional Lien Services and its hearing representative, Mike Traw, to appear before the WCAB would be suspended for 90 days per LC 4907.

In Mendoza v. Oak Grove, 2015 Cal. Wrk. Comp. P.D. LEXIS 393, the WCAB dismissed a lien filed prior to 2013, when the lien claimant failed to provide proof of compliance with LC 4903.8(d). 

In Lopez v. The Edward Thomas Cos., 2015 Cal. Wrk. Comp. P.D. LEXIS 357, the WCAB dismissed a lien for failure to appear at a lien conference due to an insufficient notice of representation per CCR 10774.5.

In Cux v. The Cheesecake Factory, 2015 Cal. Wrk. Comp. P.D. LEXIS 343, the WCAB rescinded an order dismissing a lien claim for failure to appear at a lien trial based on a failure to produce a notice of representation per CCR 10774.5; then the notice of intention to dismiss was not properly served on the lien claimant.

In Noe v. Superior Court of Los Angeles County (2015) 80 CCC 534, the 2nd District Court of Appeal held that LC 226.8, which prohibits the willful misclassification of individuals as independent contractors, is not limited to employers who make the misclassification decision, but extends to any employer that is aware that a co-employer willfully misclassified their joint employees and fails to remedy the misclassification.

MEDICAL TREATMENT

In Apparicio v. State Farm Mutual Auto Insurance Co., 2015 Cal. Wrk. Comp. P.D. LEXIS 314, the WCAB held that it had no jurisdiction to decide an applicant's entitlement for ongoing prescription medications pursuant to a request for authorization Sept. 30, 2014, even though the defendant did not submit the request to UR.

In Southard v. Hallmark Cards (2015) ADJ218782 (panel decision), the panel majority held that if an IMR determination does not issue within the time periods mandated by LC 4610.6(d), the medical treatment dispute is no longer covered by the LC 4610.5 IMR process, and it may be heard and decided by a WCJ at an expedited hearing, per the WCAB's authority under LC 4604. 

RETURN TO WORK

In Silva v. LSG Sky Chefs (2015) ADJ7812017; ADJ7813152 (panel decision),  the WCAB held that an applicant who received two permanent disability awards for two different injuries was entitled, under LC 4658.5, to supplemental job displacement benefit vouchers for each injury. 

DEATH BENEFITS

In Department of Corrections and Rehabilitation v. WCAB (Thompson) (2015) C078345, the 3rd District Court of Appeal rescinded an award of workers' compensation death benefits when the WCAB failed to adjudicate a widow's petition to determine her entitlement to special death benefits under PERS, per GC 21530 et seq.

DISCOVERY AND SETTLEMENT

In Aguilar v. Harris Ranch Beef Co., 2015 Cal. Wrk. Comp. P.D. LEXIS 313, the WCAB rescinded an order allowing a defendant to depose an applicant on any history of sexual harassment, sexual assault or molestation, because the defendant had not shown good cause for such discovery under LC 3208.4.

LITIGATION

In McKenna v. City of Sacramento, 2015 Cal. Wrk. Comp. P.D. LEXIS 327,  the WCAB rescinded a WCJ's order disqualifying an entire defense firm just because an attorney from the firm representing the applicant went to work for the defense firm.

In Lopez v. Sheraton Park Hotel, 2015 Cal. Wrk. Comp. P.D. LEXIS 326, the WCAB rescinded a WCJ's order disallowing the liens of claimants for failure to appear based on CCR 10774.5(e)(4).

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 LLP, a workers' compensation defense firm with seven offices in California, and author of "Sullivan on Comp," a treatise on California workers' compensation law.