Case Law Update

Monday, May 7, 2012 | 0

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

JURISDICTION AND SUBROGATION

In Cash v. Detroit Lions, Atlanta Falcons, 2011 Cal. Wrk. Comp. P.D. LEXIS 567, the Workers' Compensation Appeals Board held that it had jurisdiction over a professional football player's injuries with the Atlanta Falcons.

In Sanchez v. Brooke (2012) 77 CCC 261, the 2nd District Court of Appeal held that when an employer is required under workers' compensation law to pay in full an injured employee's medical expenses, the employee may not recover, as economic damages from a third-party tortfeasor, medical fees that the provider is precluded from collecting from the employer, either by agreement or by law (including the statutory fee schedule).

STATUTE OF LIMITATION

In Tanksley v. City of Santa Ana (2012) 40 CWCR 72 [2012 Cal. Wrk. Comp. P.D. LEXIS 105], the WCAB upheld a decision that LC 5405 did not bar an applicant's cumulative trauma claim filed in 2005 for his heart and associated injuries, even though he did not act after a 2003 claim for hypertension was denied.

In Duncan v. Town of Scotia Pacific Lumber, 2011 Cal. Wrk. Comp. P.D. LEXIS 571, the WCAB rescinded an award of temporary disability.

MEDICAL TREATMENT

In Gonia v. SCIF (2012) 40 CWCR 70 [Gonia v. Robin, Carmack & Gonia LLP, 2012 Cal. Wrk. Comp. P.D. LEXIS 70], the WCAB reversed a decision awarding an applicant housekeeping services.

In Arana v. Hawthorne School District, 2011 Cal. Wrk. Comp. P.D. LEXIS 562, the WCAB affirmed a decision that an applicant was not entitled to home care services from July 2002 to June 1, 2007, based on a May 31, 2007, report of a primary treating physician stating that the applicant had required home care since July 2002.

In Oseguera v. Nakamura, 2012 Cal. Wrk. Comp. P.D. LEXIS 2, the WCAB reversed a WCJ's decision and held that a defendant's MPN notice, given three weeks after the date of injury, was timely regarding the applicant’s rights within the MPN.

TEMPORARY DISABILITY

In Flores v. Wal-Mart Associates, Inc., 2012 Cal. Wrk. Comp. P.D. LEXIS 24, the WCAB held that an applicant was not entitled to temporary disability when he was terminated for cause (violating company policy); later was released to modified duty; and the employer would have offered him modified work within his restrictions but for the termination with cause.

In Esparza v. Barrett Business Services, Inc., 2012 Cal. Wrk. Comp. P.D. LEXIS 21, the WCAB held that an applicant was not entitled to temporary disability benefits during a period when he was released to modified duty, per Del Taco v. WCAB (Gutierrez) (2000) 65 CCC 342.

RETURN TO WORK

In Tipton v. County of Mendocino, 2011 Cal. Wrk. Comp. P.D. LEXIS 591, the WCAB held that when an employee has not lost work due to an industrial injury, he or she is not entitled to a 15 percent increase in permanent disability, and the defendant is not entitled to a 15 percent decrease. LC 4658(d) is applicable only when the employee has not worked due to the industrial injury.

In Braga v. City of Sebastopol, 2012 Cal. Wrk. Comp. P.D. LEXIS 56, the panel majority upheld a decision that an employer was not entitled to a 15 percent reduction, even though it timely made an offer of regular work and the employee had lost no time from work as a result of the injury.

In Kesecker v. Marin Community College District, 2011 Cal. Wrk. Comp. P.D. LEXIS 577, the WCAB concluded that a defendant did not violate LC 132a by requiring a police officer to undergo a psychological fitness for duty evaluation after receiving a stipulated award, even though he had returned to work for two years after previously undergoing such an evaluation.

DISCOVERY AND SETTLEMENT

In Copus v. North Sacramento Elementary School District, 2011 Cal. Wrk. Comp. P.D. LEXIS 569, the WCAB rescinded an award of spinal surgery and, per LC 4062(b), appointed a "regular physician" to decide the issue when the applicant's treating physician and the second opinion physician reviewed the same MRI but disagreed on whether the applicant had nerve root compression.

In Tobar Industries v. WCAB (Phan) (2012) 77 CCC 300 (writ denied), the WCAB reversed a WCJ and held that an applicant did not waive his LC 132a claim when the parties executed a C&R but failed to initial the issue of LC 132a in paragraph nine of form DWC-CA 10214(c).

LITIGATION

In Ponce de Leon v. Barrett Business Services, Inc. (2012) 40 CWCR 73 (panel decision), the WCAB rescinded a WCJ's order allowing treatment outside an MPN when the applicant argued that he was entitled to outside treatment because there were not enough doctors within it willing to treat his condition.

In Whelden v. Golden Empire Transit District, 2011 Cal. Wrk. Comp. P.D. LEXIS 595, the WCAB upheld a decision that a defendant must reimburse the EDD during a period in which duplicate payments were made by the defendant and the EDD.

AWARDS AND APPEALS

In Menjivar v. Forest River, Inc., 2011 Cal. Wrk. Comp. P.D. LEXIS 584, the WCAB dismissed a petition for reconsideration that, in violation of CCR 10842 and CCR 10846, was skeletal because there was no citation to the record or citation to the law.

Complete discussion of these topics can be found in Sullivan On Comp available to subscribers at http://www.workcompcentral.com/sullivan.

<i>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.</i>