September Case Law Update

Friday, September 7, 2012 | 0

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

JURISDICTION AND SUBROGATION

In Collins v. Union Pacific Railroad Co. (2012) 77 CCC 622, the California 4th District Court of Appeal held that when a plaintiff is found to be a special employee of a railroad, he or she may bring an action under FELA to recover for his or her injuries from the railroad company, notwithstanding the fact that the plaintiff sought workers' compensation benefits from his general employer.

THE BUSINESS OF INSURANCE

In Guzman v. Acu-Air Cargo, LLC, 2012 Cal. Wrk. Comp. P.D. LEXIS 289, the WCAB held that a bankruptcy discharge injunction is not a bar to completing a WCAB proceeding and no bankruptcy court order is necessary when the purpose of the WCAB proceeding is to collect from a collateral source, and the injured worker makes it clear that he or she is naming the discharged bankrupt employer as a party solely for formal reasons.

STATUTES OF LIMITATIONS

In Insurance Co. of the State of Pennsylvania v. WCAB (Sepulveda), 2012 Cal. Wrk. Comp. LEXIS 104 (writ denied), the WCAB held that it had jurisdiction to make an award of temporary disability for a period incurred more than five years from the date of injury even though the applicant previously received a stipulated award more than five years after the date of injury.

In Poor v. Dynacraft Industries, 2012 Cal. Wrk. Comp. P.D. LEXIS 308, the WCAB upheld an arbitrator's decision that a defendant's claim for contribution was barred by LC 5500.5, and that a DOR filed by a co-defendant against whom contribution was being sought did not constitute initiation of proceedings for purposes of statute of limitations.

MEDICAL TREATMENT

In Gomez v. Premium Roof Services, Inc., 2012 Cal. Wrk. Comp. P.D. LEXIS 284, the WCAB held that an applicant had a right to choose his wife as his home care provider, even though the parties had stipulated that the defendant would choose a third-party agency.

In Dunnigan v. WCAB, 2012 Cal. Wrk. Comp. LEXIS 93 (writ denied), the WCAB held that an applicant failed to sustain her burden of proving that housekeeping services were reasonable and necessary to cure or relieve from the effects of the industrial injury.

In Arteaga v. Marshalls Industries, 2012 Cal. Wrk. Comp. P.D. LEXIS 264, the WCAB disallowed a lien for treatment provided by a secondary treating physician when the primary treating physician made only a passing reference to the secondary treating physicianís reporting.

In Zuniga v. Barrett Business Services, Inc., 2012 Cal. Wrk. Comp. P.D. LEXIS 325, the appeals board reversed a WCJ and ordered that a lien claimant take nothing by way of his lien.

In Gross v. State of California, 2012 Cal. Wrk. Comp. P.D. LEXIS 287, the WCAB upheld an order appointing an independent bill reviewer when there was a disparity between the defendant's bill reviewer and a lien claimant's bill reviewer regarding the reasonable value of medical services.

PERMANENT DISABILITY

In Hanson v. WCAB (2012) 77 CCC 652 (writ denied), the WCAB majority concluded that an LC 4061 notice issued erroneously before Jan. 1, 2005, was insufficient to mandate the use of the old schedule when the employer did not stop paying temporary disability benefits.

In Quiroz v. Louis Vuitton U.S. Manufacturing, Inc., 2012 Cal. Wrk. Comp. P.D. LEXIS 310, the WCAB upheld a decision that the applicant did not suffer a separate and distinct sleep disorder when her sleep issues were due to her orthopedic pain.

In Giroux Glass Inc. v. WCAB (Hatley), 2012 Cal. Wrk. Comp. LEXIS 105 (writ denied), the WCAB upheld a decision that an applicant sustained 100% permanent disability based on a vocational expert's testimony that he was unable to work because of his physical impairments combined with the side effects of his medication.

In Jones v. Los Angeles Unified School District, 2012 Cal. Wrk. Comp. P.D. LEXIS 296, the WCAB upheld a decision rejecting a vocational expert's opinion that the applicant was 100% disabled due to the effects of her medications.

RETURN TO WORK

In City of Sebastopol v. WCAB (Braga) (2012) A134803 (ADJ7702084), the 1st District Court of Appeal held that the 15% decrease of LC 4658(d)(3)(A) does not apply to an applicant who lost no time from work and continues to perform his or her regular work following an industrial injury.

DISCOVERY AND SETTLEMENT

In Guillen v. Adir International, LLC dba LA Curacao, 2012 Cal. Wrk. Comp. P.D. LEXIS 288, the WCAB concluded that if a party strikes a name during the 10-day period, it is not automatically rendered a nullity pursuant to LC 4062.2(c).

In Odom v. Century Lighting, Inc., 2012 Cal. Wrk. Comp. P.D. LEXIS 304, the WCAB upheld a decision that a defendant could not withdraw unilaterally from an AME agreement.

In Flores v. United Domestic Workers of America, 2012 Cal. Wrk. Comp. P.D. LEXIS 282, the WCAB concluded that a party that objects to a QME report on the basis of timeliness must unequivocally object and request a replacement panel before the date the report is served.

In Lopez v. WCAB, 2012 Cal. Wrk. Comp. LEXIS 101 (writ denied), the WCAB denied removal of an order directing the medical director to issue a replacement QME or a replacement QME panel when a panel QME failed to timely issue a supplemental report.

LITIGATION

In Anaya v. Port Hueneme Unified School District, 2012 Cal. Wrk. Comp. P.D. LEXIS 220, the WCAB denied an attorney's petition for disqualification of a WCJ.

In Nava v. Barrett Business Services, Inc., 2012 Cal. Wrk. Comp. P.D. LEXIS 303, the WCAB amended a WCJ's award to find that lien claimants were not entitled to reimbursement for services performed outside of an MPN to the date the parties stipulated at deposition that the applicant would select a physician from the within the defendant's MPN.

In Avila v. Department of Motor Vehicle, 2012 Cal. Wrk. Comp. P.D. LEXIS 266, the WCAB upheld an order dismissing a claim for lack of prosecution, per CCR 10582, even though the applicant's attorney filed an objection to the notice of intent to dismiss.

In Moelleken v. WCAB (Brock), 2012 Cal. Wrk. Comp. LEXIS 94 (writ denied), the appeals board held that a lien claimant was collaterally estopped from litigating a lien for medical treatment when the injured worker failed at trial to prove injury arising out of and in the course of employment.

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