October Case Law Update

Monday, October 8, 2012 | 0

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

JURISDICTION AND SUBROGATION

In Matthew v. National Football League Management Council; Tennessee Titans (2012) 77 CCC 711, the 9th U.S. Circuit Court of Appeals held that an ex-football player did not establish that an arbitration award prohibiting him from pursuing workers' compensation benefits in California violated federal labor law or the full faith and credit clause of the U.S. Constitution.

In LeFiell Manufacturing Co. v. The Superior Court of Los Angeles County (Watrous) (2012) 77 CCC 700, the California Supreme Court held that under LC 4558, the spouse of an injured worker may not claim damages for loss of consortium in an action brought by the injured worker.

INJURY

In Olive v. County of Butte, 2012 Cal. Wrk. Comp. P.D. LEXIS 376, the WCAB upheld a decision that an employer sufficiently rebutted the cancer presumption under LC 3212.1 when the panel QME reported that the chemicals to which a deputy sheriff was exposed were risk factors and not causes of the type of cancer he had; that the  latency period for his cancer is more than 20 years; and the applicant had not worked as a deputy sheriff for 20 years before the cancer arose.

In Pesko v. City of Westminster, 2012 Cal. Wrk. Comp. P.D. LEXIS 378, the WCAB majority upheld a decision that the defendant rebutted the presumption under LC 3212.1 when a police officer developed throat cancer; the AME reported that the latency period for this type of cancer was more than the four years the applicant had worked; and that it developed strictly as a result of a nonwork-related HPV infection the applicant had before he began his employment.

STATUTES OF LIMITATIONS

In Battle v. Gulfstream Aerospace, 2012 Cal. Wrk. Comp. P.D. LEXIS 332, the WCAB upheld a decision that an applicant's claim was barred by the statute of limitations under LC 5405.

In Saldana v. Mike Thompson's RV Superstore, 2012 Cal. Wrk. Comp. P.D. LEXIS 384, the WCAB granted reconsideration of a decision finding that an award for new and further disability was barred by LC 5410 and LC 5804.

In Horton v. Crown Cork and Seal American Protection Insurance Co., 2012 Cal. Wrk. Comp. P.D. LEXIS 352, the WCAB rescinded an arbitrator's decision denying a defendant's petition for contribution against a co-defendant.

MEDICAL TREATMENT

In Barcenas v. In Home Support Services, 2012 Cal. Wrk. Comp. P.D. LEXIS 330, the WCAB, per LC 4061.5, rescinded a WCJ's finding that an applicant sustained injury to her psyche when the treating psychologist's reports were never reviewed or incorporated by the primary treating physician, an orthopedist.

In White v. Taco Bell Corp., 2012 Cal. Wrk. Comp. P.D. LEXIS 395, the WCAB upheld an order awarding assisted living to an applicant when the defendant failed to refer the request for treatment to utilization review.

In Clark v. Sacramento Regional Transit, 2012 Cal. Wrk. Comp. P.D. LEXIS 336, the WCAB held that an employer was liable for transportation costs from the state of Washington to Sacramento so that an applicant could treat with his treating physician.

In Reynoso v. Terrazas Contracting, 2012 Cal. Wrk. Comp. P.D. LEXIS 382, the WCAB concluded that an applicant was required to treat within the defendant's MPN because it was a validly established and properly noticed network.

TEMPORARY DISABILITY

In Haile v. WCAB, 2012 Cal. Wrk. Comp. LEXIS 113 (writ denied), the WCAB held that an applicant was not entitled to temporary disability benefits when she returned to modified duty after an injury, but left work to care for her ailing father in Ethiopia.

PERMANENT DISABILITY

In Phillips v. United Health Care Services, 2012 Cal. Wrk. Comp. P.D. LEXIS 379, the WCAB upheld a WCJ's decision that the applicant had a separately rateable sleep disorder that resulted in 30 percent impairment.

DISCOVERY AND SETTLEMENT

In Garcia v. Pepsi Bottling Group, 2012 Cal. Wrk. Comp. P.D. LEXIS 344, the WCAB majority granted removal of an order directing a replacement QME panel based on a panel QME's failure to issue a supplemental report within 60 days of a request.

In Dankin v. Huntington Nissan, 2012 Cal. Wrk. Comp. P.D. LEXIS 339, the WCAB determined that medical-legal charges may not be denied just because the report did not constitute substantial evidence.

LITIGATION

In Flores v. United California Bank aka Sanwa Bank, 2012 Cal. Wrk. Comp. P.D. LEXIS 341, the WCAB upheld an order dismissing a lien for failure to appear at a lien conference even though the case was venued at the Los Angeles district office and the lien conference was noticed for the Oxnard district office of the appeals board.

In MacDowell v. My Contractor.Com, Inc., 2012 Cal. Wrk. Comp. P.D. LEXIS 363 the WCAB denied a defendant's petition for removal from a WCJ's order setting a case for trial at a status conference.

In Kotlarchick v. General Motors Corp., 2012 Cal. Wrk. Comp. P.D. LEXIS 358, the WCAB upheld a WCJ's citation for direct contempt and a $500 fine when the defendantís attorney argued with the WCJ after he had made a decision, and the WCJ advised him that if he continued to argue he would be found in contempt.

In Malvesti v. Round Valley Unified School District, 2012 Cal. Wrk. Comp. P.D. LEXIS 366, the WCAB rescinded a WCJ's award of attorneys' fees that did not include funds used to establish a Medicare Set-Aside.

In Schlater v. North Coast Drivers, 2012 Cal. Wrk. Comp. P.D. LEXIS 387, the WCAB rescinded an order denying request for voluntary arbitration, and concluded that per LC 5275(b), CCR 10296(a) and CCR 10997, voluntary arbitration is barred only if testimony has been taken in relation to issues submitted for trial and if an award about them has not issued or become final.

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>