July 2012 Case Law Update

Tuesday, July 10, 2012 | 0

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

JURISDICTION AND SUBROGATION

In Booker v. Cincinnati Bengals, 2012 Cal. Wrk. Comp. P.D. LEXIS 113 and 2012 Cal. Wrk. Comp. P.D. LEXIS 114, the WCAB concluded that California did not have subject matter over a football player's injuries while he played for the Cincinnati Bengals in California.

In Collins v. Crowley Technical Services, 2012 Cal. Wrk. Comp. P.D. LEXIS 61, the WCAB held that the Jones Act covers seamen injured in the course of their employment on board a private vessel, and that a civilian merchant seaman injured while working aboard a ship owned, operate or managed by any agency of the U.S. government is subject to the exclusive remedy provisions of the Suits in Admiralty Act (46 U.S.C. Section 30901 et seq) and/or the Public Vessels Act (46 U.S.C. Section 31101 et seq).

In California State University-Fullerton v. WCAB (Miranda), 2012 Cal. Wrk. Comp. LEXIS 54 (writ denied), the WCAB held that an applicant's workers' compensation claim was not barred by the doctrine of collateral estoppel just because summary judgment was entered on his civil claim against a third party.

INJURY

In Music v. MJR Electric, 2012 Cal. Wrk. Comp. P.D. LEXIS 93, the WCAB upheld a WCJ's decision that an applicant's injury during a soccer game was compensable pursuant to Ezzy.

In Gutierrez v. Viking Co., 2012 Cal. Wrk. Comp. P.D. LEXIS 130, the WCAB held that an applicant's claim was barred by LC 3208.3(d) when he did not have six months of "actual service for the employer," and this was not negated by the fact that he presented work restrictions to the employer but was not given modified work.

In Parvool v. Tony's Food Service, 2012 Cal. Wrk. Comp. P.D. LEXIS 151, the WCAB held that an applicant's dive into the pool at the employer-provided hotel was clearly an act in the course of employment per the commercial traveler rule.

In Shaw v. Cast & Crew Entertainment Services, Inc., 2012 Cal. Wrk. Comp. P.D. LEXIS 157, the WCAB held that an applicant injured while walking to a church bookstore three miles from her hotel was covered by the commercial traveler rule.

MEDICAL TREATMENT
 
In Medina v. Robinsons May, 2012 Cal. Wrk. Comp. P.D. LEXIS 89, the WCAB upheld a WCJ's decision that a husband could recover on a lien for home care services filed June 14, 2011, only for services from June 14, 2010, forward.

In Neilan v. Vons Cos., Inc., 2012 Cal. Wrk. Comp. P.D. LEXIS 94, the WCAB granted removal of an order directing the parties to a panel QME to develop the medical record on an applicant's self-procured medical expenses.

In Thomas v. Safeway Stores, Inc., 2012 Cal. Wrk. Comp. P.D. LEXIS 159, the WCAB rescinded its earlier decision finding that, under CCR 9780(h), a surgeon in Seattle was located within a reasonable geographic area based on a treating physician's report that the doctors offered by the defendant were not as competent to perform the surgery as the Seattle doctor.

On June 18, 2012, the 2nd District Court of Appeal ordered that the decision of Valdez v. WCAB, 2012 Cal. App. LEXIS 712, would be published in the official reports. So the court's opinion that non-MPN reports are admissible in workers' compensation proceedings is citable and is binding on the appeals board and its judges.

In King v. Garland Construction, 2012 Cal. Wrk. Comp. P.D. LEXIS 140, the WCAB upheld a WCJ decision allowing an applicant to self-procure outside an employer's MPN when he credibly testified that he contacted or saw all the chiropractors in a list provided to him.

TEMPORARY DISABILITY

In Meeks Building Center v. WCAB (Najjar), 2012 Cal. App. LEXIS 744, the 3rd District Court of Appeal held that a single payment of benefits required by LC 4600(e)(1) for attending a defense requested qualified medical evaluation did not commence the limitation period for payment of temporary disability benefits under LC 4656(c)(1).

In Boyd v. State of California/Department of Corrections, 2012 Cal. Wrk. Comp. P.D. LEXIS 55, the WCAB affirmed a decision that an applicant/parole agent II was not entitled to any additional TTD benefits when she had been paid 104 weeks of IDL and TTD benefits, and: (1) she had the burden of proving an exception to LC 4656(c)(2) and failed to prove that she was entitled to have her IDL earnings classified as LC 4850 benefits for the purpose of entitlement to additional periods of TTD benefits; and (2) for injuries on or after Jan. 1, 2008, the date of commencement of the 104 weeks was the first date that TTD was owed, and not the date it was first paid.

PERMANENT DISABILITY

In Dahl v. Contra Costa County, 2012 Cal. Wrk. Comp. P.D. LEXIS 173, the WCAB rescinded a WCJ's decision that a LeBoeuf analysis could not be applied when an applicant's diminished future earning capacity (DFEC) is less than total.

In Slagle v. WCAB (2012) 77 CCC 467 (writ denied), the WCAB affirmed a WCJ's decision apportioning 20 percent of an applicant's disability to degenerative changes in the knee, even though the applicant argued that such apportionment constituted unlawful age discrimination under GC 11135.

DEATH BENEFITS

In Davis v. Harrison & Nichols Trucking, 2012 Cal. Wrk. Comp. P.D. LEXIS 120, the WCAB upheld a WCJ's finding that a partial dependent was entitled only to a $25,000 death benefit when a totally dependent son was entitled to $250,000.

DISCOVERY AND SETTLEMENT

In Coito v. The Superior Court of Stanislaus County, 2012 Cal. LEXIS 5823, the California Supreme Court held that witness statements obtained as a result of an interview conducted by an attorney, or by an attorney's agent at the attorney's behest, constitute work product protected by CCP 2018.030.

In Weilmann v. United Temporary Services, 2012 Cal. Wrk. Comp. P.D. LEXIS 163, the WCAB gave notice of intention to issue sanctions pursuant to LC 5813 when a defendant  attempted to take an applicant's subsequent deposition without substantial justification.

In Canepa v. Golden Gate Canyon Construction, 2012 Cal. Wrk. Comp. P.D. LEXIS 58, the WCAB upheld a WCJ's decision denying a second deposition of an AME when the defendant failed to establish good cause for it under CCP 2025.610.

In Espedal v. Grass Valley Police Department, 2012 Cal. Wrk. Comp. P.D. LEXIS 123, the WCAB affirmed a WCJ's order excluding surveillance film from evidence at trial and review by a panel QME when the films were not produced until after the QME prepared his report.

In Salazar v. Consolidated Disposal Service, 2012 Cal. Wrk. Comp. P.D. LEXIS 208, the WCAB rescinded a WCJ's order setting a hearing on sanctions against a defendant for failure to produce surveillance films before an expedited hearing.

In Coito v. The Superior Court of Stanislaus County, 2012 Cal. LEXIS 5823, the California Supreme Court held that witness statements obtained as a result of an interview conducted by an attorney, or by an attorney's agent at the attorney's behest, constitute work product protected by CCP 2018.030.

In Krause v. State of California, Secretary for Resources Agency, 2012 Cal. Wrk. Comp. P.D. LEXIS 141, the panel majority rescinded an order requiring a defendant to provide cervical spine surgery until, per LC 4062(b), a second opinion physician issued a final report on the spinal surgery issue, even though the second opinion physician had not timely decided the issue within 45 days.

In Berke v. Bloomingdales, Macys Corporate Services, 2012 Cal. Wrk. Comp. P.D. LEXIS 112, the WCAB held that the right, under LC 4062.3(f) and CCR 35(k), to terminate the medical evaluation and seek a new evaluation from another QME based on an ex parte communication, is expressly for the protection of the aggrieved party; that is, the party who did not have the ex parte communication. 

In Casarez v. United Food Group, LLC, 2012 Cal. Wrk. Comp. P.D. LEXIS 116, the WCAB affirmed a WCJ's order denying a defendant's petition to compel attendance with a new panel QME when the applicant previously had been evaluated by a panel QME even though the panel QME was selected by the applicant and a co-defendant who was later dismissed from the claim.

In Chavez v. Green Thumb Produce, 2012 Cal. Wrk. Comp. P.D. LEXIS 59, the WCAB concluded that an applicant's petition for reconsideration did not establish sufficient grounds for setting aside an order approving compromise and release. The applicant claimed she had a "change of heart," but there was no allegation or showing that the settlement was not otherwise reasonable in light of all the circumstances surrounding the claim.

LITIGATION

In Doi v. City of Tulare, 2012 Cal. Wrk. Comp. P.D. LEXIS 121, the WCAB denied a defendant's petition for removal and upheld a decision that a WCJ may select a record-developing physician from physicians who previously were stricken as part of the partiesí LC 4062.2 panel QME process.

In Miller v. Cupertino Electric, Inc., 2012 Cal. Wrk. Comp. P.D. LEXIS 90, the WCAB upheld  an arbitrator's award based on a QME report even though the defendant argued that the report was obtained improperly through an invalid panel QME.


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>