March Case Law Updates

Monday, March 10, 2014 | 0

JURISDICTION AND SUBROGATION

In Randle v. Seattle Seahawks, 2013 Cal. Wrk. Comp. P.D. LEXIS 621, the WCAB held that it had jurisdiction over a professional football player's workers' compensation claim even though the employment contract selected the state of Washington for all such claims.

THE BUSINESS OF INSURANCE

In Scalf v. Clay Rawlings Painting, Inc., 2013 Cal. Wrk. Comp. P.D. LEXIS 627, the WCAB affirmed a decision that a lien was not assigned even though the medical provider's business was sold.

MEDICAL TREATMENT

In Biggar v. Saks Inc., 2013 Cal. Wrk. Comp. P.D. LEXIS 592, the WCAB rescinded a finding that an applicant was entitled to temporary hotel lodging following foot surgery.

On Feb. 12, 2014, the DWC's final versions of the utilization review and independent medical review regulations were approved. They became effective immediately on adoption. Sections 7.32-7.42 were updated to incorporate the final regulations.

In Dubon v. World Restoration, Inc. (2014) ADJ4274323; ADJ1601669, the WCAB issued an en banc decision holding: (1) independent medical review solely resolves disputes over the medical necessity of treatment requests, while issues of timeliness and compliance with statutes and regulations governing utilization review are legal disputes within the jurisdiction of the WCAB; (2) a utilization review decision is invalid if it is untimely or suffers from material procedural defects that undermine the integrity of the UR decision, although minor technical or immaterial defects are insufficient to invalidate a defendant’s UR determination; (3) if a defendant’s utilization review determination is found invalid, the issue of medical necessity is not subject to independent medical review, but is to be determined by the WCAB based on substantial medical evidence, with the employee having the burden of proving the treatment is reasonably required; and (4) if there is a timely and valid utilization review, the issue of medical necessity must be resolved through the independent medical review process if requested by the employee.


COMPENSATION RATE

In Larkin v. WCAB (2014) 223 Cal. App. 4th 538, the 3rd District Court of Appeal held that, when considered in light of the legislative scheme of which it is a part and, in particular, LC 3362, the enhanced benefits provided under LC 4458.2 applied to a discrete group –– volunteer peace officers –– and could not be applied to enhance benefits for peace officers generally.

TEMPORARY DISABILITY

In Barajas v. Elite Medical Management, LLC,  2013 Cal. Wrk. Comp. P.D. LEXIS 590,  the WCAB rescinded a WCJ's order disallowing a defendant's claim for credit for its overpayment of $57,720.56 in TD benefits.

In County of Nevada v. WCAB (Lade) (2014) 223 Cal. App. 4th 579, the 3rd District Court of Appeal held that a person who has returned to work, even on modified duty, is not entitled to LC 4850 benefits.

PERMANENT DISABILITY

In City of Sacramento v. WCAB (Cannon) (2013) 79 CCC 1, the 3rd District Court of Appeal affirmed the WCAB's decision that an applicant's foot condition –– plantar fasciitis –– resulted in a 7 percent whole person impairment for the purposes of determining permanent disability.

DISCOVERY AND SETTLEMENT

In Reyes v. Western Memorial Service Corp., 2013 Cal. Wrk. Comp. P.D. LEXIS 622, the WCAB denied removal of a decision holding that an employer properly obtained medical records when: (1) the defendant subpoenaed records from a medical provider; (2) 10 days after service of the subpoena, the applicant filed a motion to quash; (3) the motion was served on the WCAB and the defendant, but not on the medical provider; and (4) the medical provider produced the documents before the WCJ found good cause to quash the subpoena because it was overbroad.

In Cramer v. Grossmont Union High School District, 2013 Cal. Wrk. Comp. P.D. LEXIS 599, the WCAB denied removal of a WCJ's decision requiring a defendant to produce an applicant's own statement prior to his deposition.

In Razo v. Las Posas Country Club (2014) ADJ8381652 (panel decision), the WCAB held that pursuant to the discussion of CCP 1013 in Messele v. Pitco Foods, Inc. (2011) 76 CCC 956 (appeals board en banc), LC 4062.2(c) allows a party 10 days from the administrative director's assignment of a QME panel, plus five days for U.S. mail, to strike a name from the panel.

In Navarro v. City of Montebello (2014) ADJ7472140; ADJ7964720 (appeals board en banc), the WCAB issued an en banc decision giving its intent to hold that: (1) the Labor Code does not require an employee to return to the same panel QME for an evaluation of a subsequent claim of injury; and (2) the requirement in CCR 35.5 that an employee return to the same evaluator when a new injury or illness is claimed involving the same parties and the same type of body parts is inconsistent with the Labor Code and therefore invalid.

In Cruz v. Pacific Ridge Farms, 2013 Cal. Wrk. Comp. P.D. LEXIS 600, the WCAB granted reconsideration of its earlier decision and disallowed a photocopy service's lien for medical-legal expenses.

LITIGATION

In Kim v. BCD Tofu House, Inc. (2014) ADJ9086333, the WCAB issued a significant panel decision holding that during the 90-day investigation period described in LC 5402(b), a party is entitled to an expedited hearing, per LC 5502(b), to address the provision of reasonable medical treatment through the employer's MPN.

In Ramirez v. Medway Plastic, 2013 Cal. Wrk. Comp. P.D. LEXIS 620, the WCAB dismissed a lien claimant's untimely petition for reconsideration of an order dismissing the lien claim for failure to pay the activation fee.

In Sumpter v. Cathedral City Police Department, 2013 Cal. Wrk. Comp. P.D. LEXIS 630, the WCAB awarded LC 5710 deposition fees to an applicant's attorney, notwithstanding stipulations that the applicant provided perjured testimony at her deposition, albeit without her attorney's knowledge.

In Arbizu v. Westac, Inc., 2013 Cal. Wrk. Comp. P.D. LEXIS 588, the WCAB affirmed a finding that a defendant was not obligated to prepay the services of a vocational expert.

In FirstComp Omaha v. WCAB (Martinez), 2014 Cal. Wrk. Comp. LEXIS 7 (writ denied), the WCAB affirmed an arbitrator's finding that an insurance policy issued by an insurer covered all employees, not just clerical employees.

In Millman v. Contra Costa County, 2013 Cal. Wrk. Comp. P.D. LEXIS 615, the WCAB had held that it does not have jurisdiction over a self-insured employer's dispute with an excess carrier regarding whether certain utilization and bill review expenses were covered by the excess insurance policy.

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

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