September 2013 Case Law Update

Wednesday, September 11, 2013 | 0

JURISDICTION AND SUBROGATION

In Cherry v. County of Los Angeles/DCFS AIMS Santa Clarita, 2013 Cal. Wrk. Comp. P.D. LEXIS 249, the WCAB held that an employer was not collaterally estopped from litigating an applicant's claim that he sustained an injury arising out of and in the course of his employment, even though a civil court, in a premises liability claim, determined that the applicant contracted Legionnaire's disease due to the property owner's negligence in the maintenance of the building.

INJURY

In Azbill v. Fators Motorcycles, 2013 Cal. Wrk. Comp. P.D. LEXIS 240, the WCAB rescinded a WCJ's order finding the filing of an application for adjudication was the equivalent of the filing of a claim form under LC 5402(b).

MEDICAL TREATMENT

In Neri-Hernandez v. Workforce Staffing (2013) AJD7995806 (panel decision), the WCAB held that LC 4600(h), which requires home health care services to be prescribed by a physician and surgeon, applies to all cases prospectively from the effective date of Jan. 1, 2013.

TEMPORARY DISABILITY

In Guidry v. Highland Palms Healthcare Center, 2013 Cal. Wrk. Comp. P.D. LEXIS 257, the WCAB affirmed a WCJ's decision that an employer was not required to file a petition to terminate a continuing award of temporary disability when an applicant's entitlement to temporary total disability terminated by operation of law because the 104 weeks of benefits under LC 4656(c)(2) had elapsed.

PERMANENT DISABILITY

In Lopes v. Hilton Construction, Inc., 2013 Cal. Wrk. Comp. P.D. LEXIS 263, the WCAB rescinded a finding that the applicant was 100% disabled based on the opinions of vocational experts from both parties.

In Charon v. WCAB, 2013 Cal. Wrk. Comp. LEXIS 126 (writ denied), the WCAB awarded the applicant 90% permanent disability, after apportionment, after she had received an award of 48% permanent disability, filed a petition for new and further disability and the AME reported that the injury caused her to be permanently totally disabled.

In Acme Steel v. WCAB (Borman) (2013) 78 CCC 751, the 1st District Court of Appeal annulled an award finding that an applicant was 100% disabled based on a vocational expert's opinion that the applicant could not return to the open labor market.

RETURN TO WORK

In Morehart v. Celite Corp., 2013 Cal. Wrk. Comp. P.D. LEXIS 270, the WCAB upheld a WCJ's decision that an employer was entitled to a 15% decrease in permanent disability per LC 4658(d).

DISCOVERY AND SETTLEMENT

In McMillin v. Monsanto Co./Seminis, 2013 Cal. Wrk. Comp. P.D. LEXIS 267, the WCAB denied a defendant's petition for removal from a WCJ's order excluding surveillance films from evidence and setting a case for trial.

In Bernal v. Rincon Taurino Restaurant, Inc., 2013 Cal. Wrk. Comp. P.D. LEXIS 246, the WCAB rescinded a WCJ's order that an applicant was within her right to refuse to participate in a QME evaluation when the doctor refused to allow the applicant to record the evaluation.

In Geiger v. Brayton Purcell, 2013 Cal. Wrk. Comp. P.D. LEXIS 256, the WCAB affirmed a WCJ's decision that an applicant engaged in ex parte communications with a panel QME when she: (1) sent the panel QME a copy of his own report with 56 separate items of her corrections or elaborations; (2) telephoned the panel QME directly to voice her concerns; and (3) sent the panel QME treatment reports from a marriage and family therapist.

In Torres v. Pacific Coast Products, 2013 Cal. Wrk. Comp. P.D. LEXIS 287, the WCAB affirmed a WCJ's decision denying a defendant's petition to strike a psychiatric QME based on the QME's communications with the applicant's daughter.

In Ramirez v. 3 Day Blinds Corp., 2013 Cal. Wrk. Comp. P.D. LEXIS 277, the WCAB denied removal and adopted a WCJ's decision declining to issue a replacement QME panel based on a late supplemental report when the panel QME had issued four reports.

In Rayas v. Sodexo, Inc., 2013 Cal. Wrk. Comp. P.D. LEXIS 280, the WCAB adopted a WCJ's determination that he was not required to remove an AME from a case based on the AME's offer to provide a medical device in violation of CCR 41(a)(4).

LITIGATION

In Garcia v. Liz Claiborne, 2013 Cal. Wrk. Comp. P.D. LEXIS 254, the WCAB granted removal of a WCJ's order taking the matter off calendar when an AME in orthopedics and QMEs in psychiatry and rheumatology had declared the applicant permanent and stationary.

In Aguilar v. Sawers, 2013 Cal. Wrk. Comp. P.D. LEXIS 235, the WCAB upheld a WCJ's order dismissing a lien filed Jan. 28, 2013, because the lien claimant failed to submit a lien-filing fee per LC 4903.05.

In Arballo v. Nature's Best, 2013 Cal. Wrk. Comp. P.D. LEXIS 238, the WCAB rescinded a WCJ's order dismissing a claimant's liens filed for both an applicant's specific injury and cumulative trauma injury claims.

In Marshall v. Santa Maria Joint Union High School District, 2013 Cal. Wrk. Comp. P.D. LEXIS 247, the WCAB affirmed a WCJ's decision that lien claimants were not required to comply with the activation fee under LC 4903.06, or appear at the inappropriately scheduled lien conference.

In Garibay v. Federated Logistics, dba Macy's, 2013 Cal. Wrk. Comp. P.D. LEXIS 255, the WCAB affirmed a WCJ's decision that a lien claimant's failure to appear at a lien conference set before the underlying case was resolved did not excuse the lien claimant from paying the lien-activation fee.

In Ovando v. 99 Cent Only Store, 2013 Cal. Wrk. Comp. P.D. LEXIS 275, the WCAB rescinded a WCJ's order dismissing a lien for failure to submit proof of payment of the lien-activation fee.

In Barrientos v. Alamo Motor Lodge, 2013 Cal. Wrk. Comp. P.D. LEXIS 245, the WCAB affirmed an order finding that a lien was barred per LC 4903.8, which requires that any order or award for payment of a lien for medical treatment be made only to the person who was entitled to it for the expenses at the time they were incurred, and not an assignee, unless the person originally entitled has ceased doing business in the capacity held at the time the expenses were incurred and has assigned all right, title and interest in the remaining accounts receivable to the assignee.

Complete discussion of these topics can be found in Sullivan On Comp for subscribers.

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