November 2014 Case Law Update

Wednesday, November 19, 2014 | 0

JURISDICTION AND SUBROGATION

In Jackson v. Northrup Grumman Corp., 2014 Cal. Wrk. Comp. P.D. LEXIS 460, the WCAB concluded that it did not have jurisdiction over an applicant's cumulative trauma claim when he worked in Georgia and Florida because there was no contract of hire between him and the employer, per LC 3600.5 and LC 5305, made in California.

INJURY

In Barillas v. Cellar Masters, Inc., 2014 Cal. Wrk. Comp. P.D. LEXIS 452, the WCAB rescinded a WCJ's order requiring an end carrier during the continuous trauma period to administer benefits when it had only 9% of the liability.

In Judd v. City of Desert Hot Springs, 2014 Cal. Wrk. Comp. P.D. LEXIS 463, the WCAB held that a peace officer was entitled to the cancer presumption under LC 3212.1, even though he was last employed as a sworn peace officer in 2004 and his kidney cancer did not manifest until 2011.

STATUTES OF LIMITATIONS

In Woodward v. Tricorp Construction (2014) ADJ6872063 (panel decision), the WCAB found that the applicant sustained new and further disability under LC 5410 and that he sustained a psychiatric injury as a compensable consequence of his orthopedic injuries even though the defendant argued that he knew of the psychiatric injury at the time of the original settlement and did not assert that injury at that time.

MEDICAL TREATMENT

In Dubon v. World Restoration, Inc., 2014 Cal. Wrk. Comp. LEXIS 131 (Dubon II), the WCAB en banc amended its prior decision and held: (1) a UR decision is invalid and not subject to independent medical review only if it is untimely; (2) legal issues regarding the timeliness of a UR decision must be resolved by the WCAB, not IMR; (3) all other disputes regarding a UR decision must be resolved by IMR; (4) if a UR decision is untimely, the determination of medical necessity may be made by the WCAB based on substantial medical evidence consistent with LC 4604.5.

In Korn v. Entertainment Partners (2014) ADJ7329727 (panel decision), the WCAB affirmed a WCJ's decision that an applicant was entitled to an L4-5 and L5-S1 anterior lumbar interbody fusion recommended by her primary treating physician when the defendant's utilization-review determination was untimely and the WCJ's decision comported with the holding of Dubon II.

In Stock v. Camarillo State Hospital, 2014 Cal. Wrk. Comp. P.D. LEXIS 471, the WCAB held that an applicant's participation within the employer's MPN does not prohibit the employer from referring the MPN physician's request for authorization of medical treatment to utilization review and independent medical review.

PERMANENT DISABILITY

In Turley v. County of Riverside, 2014 Cal. Wrk. Comp. P.D. LEXIS 474, the WCAB held that pursuant to Brower v. David Jones Construction (2014) 79 CCC 550 (appeals board en banc), permanent disability benefits should be paid 14 days from the last payment of LC 4850 benefits, not when the applicant became permanent and stationary.

DISCOVERY AND SETTLEMENT
 
In Tapia v. Conroy's Flowers, 2014 Cal. Wrk. Comp. P.D. LEXIS 472, the WCAB affirmed a WCJ's order denying a defendant's petition to compel deposition questions when the applicant declined on 5th Amendment grounds to answer questions regarding whether she had ever used a different name or Social Security number.

In Coleman v. AC Transit, 2014 Cal. Wrk. Comp. P.D. LEXIS 454, the WCAB concluded that an applicant's dependents' claim for death benefits was not a new claim of injury for the purposes of Navarro v. City of Montebello (2014) 79 CCC 418 (appeals board en banc).

LITIGATION

In Alvarez v. Crefitta, Inc., dba Bay Collision Repair, 2014 Cal. Wrk. Comp. P.D. LEXIS 449, the WCAB affirmed a WCJ's decision allowing an applicant to testify at trial remotely via Skype as long as he could make the arrangements at his own expense.

In Hamilton v. WCAB, 2014 Cal. Wrk. Comp. LEXIS 133 (writ denied), the WCAB found an applicant to be a vexatious litigant when he made multiple attempts to reopen his claim without merit, repeatedly attempted to relitigate issues for which final determinations had been made and persisted in filing motions and pleadings that were found to be frivolous, unnecessary and burdensome to the defendant and the appeals board.

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 six offices in California, and author of "Sullivan on Comp," a treatise on California workers' compensation law.