December Case Law Update

Tuesday, December 13, 2011 | 0

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

EMPLOYMENT

In County of Kern v. WCAB (Petersen) (2011) 76 CCC 1037, the Court of Appeal held that a volunteer firefighter with a local nonprofit fighting organization was a county employee for the purposes of LC 3361 because the organization received "official recognition" and "full or partial support." Originally, this cased was released as an unpublished opinion, but the publication status was changed Oct. 31, 2011.

STATUTE OF LIMITATION

In Trinidad v. Albertson's, 2011 Cal. Wrk. Comp. P.D. LEXIS 251, the appeals board found that there was an award of temporary disability and that it was not a continuing award.

MEDICAL TREATMENT

In Willis v. Waste Management (2011) ADJ7803213 (panel decision), the appeals board held that an injured worker who objects to a UR denial for requested medical treatment must obtain additional reporting pursuant to LC 4062.1 or LC 4062.2, and may not proceed directly to an expedited hearing to challenge the defendant's UR denial.

In Garcia v. Circle H Dairy Ranch, Inc. (2011) ADJ7710865 (panel decision), the appeals board upheld a WCJ's decision that a defendant's MPN list containing no chiropractors failed to comply with access standards defined in CCR 9767.5, which require that at least three physicians in each specialty be included in a defendant's MPN list.

TEMPORARY DISABILITY

In Cubedo v. Leemar Enterprises, Inc., 2011 Cal. Wrk. Comp. P.D. LEXIS 356, the appeals board rescinded a WCJ's decision that an applicant who was discovered to be an illegal immigrant was entitled to temporary disability indemnity during a period of temporary partial disability.

In City and County of San Francisco v. WCAB (Miller) (2011) 76 CCC 1088 (writ denied), the appeals board held that wages lost in submitting to a medical examination under LC 4600(e)(1) do not constitute temporary disability indemnity for the purposes of the two-year limitations in LC 4656(c)(1).

In  Fiorentino v. Allan Hancock College (2011) ADJ7527243 (panel decision), the appeals board concluded that a community college was not liable for penalties under LC 5814 when an applicant was awarded temporary disability benefits May 19, 2011, but did not receive payment on the award until June 30, 2011.

RETURN TO WORK

In Ostrander v. County of Los Angeles/Sheriff’s Department No. 770, 2011 Cal. Wrk. Comp. P.D. LEXIS 234, the appeals board held that neither party was entitled to a 15 percent adjustment under LC 4658(d) when the employer failed to offer the injured employee regular work, modified work or alternative work in the form and manner prescribed by the administrative director, but the employer returned the applicant to her regular work at the earliest opportunity.

In Siegert v. Cottage Health Systems, 2011 Cal. Wrk. Comp. P.D. LEXIS 300, the appeals board held that an applicant was not entitled to a 15 percent increase in PD benefits even though the employer did not offer the applicant regular work, modified work or alternative work –– the applicant had moved out of state and the employer terminated her employment.

DISCOVERY AND SETTLEMENT

In Schuler v. City of Menlo Park, 2011 Cal. Wrk. Comp. P.D. LEXIS 245, the appeals board upheld a WCJ's decision that a defendant was liable for the reasonable and necessary costs of a QME evaluation and that the QME's reports were admissible even though the applicant received advice from an attorney during the QME selection process.

In Messele v. Pitco Foods, Inc., 2011 Cal. Wrk. Comp. LEXIS 172 (Messele II), the appeals board en banc issued a notice of intent to modify its previous decision, Messele v. Pitco Foods, Inc. (2011) 76 CCC 956, to hold that the principles enumerated in the earlier decision regarding the time limits to seek a panel QME apply prospectively from the date of that decision, Sept. 26, 2011.

In Cienfuegos v. Fountain Valley School District, 2011 Cal. Wrk. Comp. P.D. LEXIS 206, the appeals board held that the 60-day time frame in CCR 31.5(a)(2) for scheduling an appointment with a panel QME applies only to initial requests for examination, not subsequent requests.

In Degen v. Bonita Unified School District, (2011) ADJ7271474 (panel decision), the appeals board concluded that a six-second voicemail left by the QME for a claims examiner requesting only that she return his call was so peripheral to the operative proceedings as to be insignificant, and was therefore not an ex parte communication.

LITIGATION

In Oyesanya v. County of San Bernardino-Arrowhead Regional Medical Center, 2011 Cal. Wrk. Comp. P.D. LEXIS 236, the appeals board concluded that an employer representative may be present during the course of trial, even if the employer representative is identified as a witness and ultimately is called to testify.

In Herrera v. Bistro Hermitage, 2011 Cal. Wrk. Comp. P.D. LEXIS 222, the appeals board disqualified both the applicant's counsel and the defendant's counsel from further legal representation when the applicant's former attorney applied for and was hired by counsel for the defendant before the conclusion of the case without obtaining the applicant's written consent.

In Ornelas v. Santa Ana Unified School District, 2011 Cal. Wrk. Comp. P.D. LEXIS 233, the appeals board explained that in order to recover a lien for the reasonable value of living expenses under LC 4903(c), the lien claimant first must show that an appropriate lien was filed and that the claimed expenses fall within the scope of LC 4903(c).

In TIG Insurance Co. v. WCAB (Latouf) (2011) 76 CCC 1109 (writ denied), the appeals board upheld an arbitrator's decision that the WCAB had jurisdiction over a union carpenter's injury covered by two insurance policies, a site-specific policy providing jurisdiction under the WCAB and another policy providing alternative dispute resolution or the "carve-out" program under LC 3201.5.
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>