February Case Law Update

Thursday, February 6, 2014 | 0

JURISDICTION AND SUBROGATION

In KS Industries, LP v. WCAB (Brock), 2013 Cal. Wrk. Comp. LEXIS 192 (writ denied), the Workers' Compensation Appeals Board held that it had jurisdiction over an injury occurring in North Dakota even though the employer argued that the acceptance of the employment did not occur until the applicant arrived in North Dakota and underwent drug testing.

In House v. Moore Dry Dock Co., 2013 Cal. Wrk. Comp. P.D. LEXIS 556, the WCAB rescinded its earlier decision and held that an employee's carpentry work involving repair and reconstruction of ships tied to piers fell within the exclusive federal jurisdiction of the Longshore and Harbor Workers' Compensation Act.

INJURY

In Espinoza v. County of Contra Costa, 2013 Cal. Wrk. Comp. P.D. LEXIS 540, the WCAB held that an employee did not have a compensable temporary disability for the purposes of LC 5412 based on two days off work.

In Bigelow v. City of Paso Robles, 2013 Cal. Wrk. Comp. P.D. LEXIS 532, the WCAB concluded that a defendant failed to establish that, under LC 3212.1,  a peace officer's colon cancer was not reasonably linked to his exposure to carcinogens at work.

STATUTES OF LIMITATIONS

In Lenett v. City of Monterey Park, 2013 Cal. Wrk. Comp. P.D. LEXIS 561, the WCAB determined that it had jurisdiction to modify an award of $573 per month for pool maintenance and repair more than five years after the date of injury.

In Lane v. Sadler Electric, 2013 Cal. Wrk. Comp. P.D. LEXIS 560, the WCAB held that a claim for death benefits was barred by LC 5406.

MEDICAL TREATMENT

In Trejo v. Northrup Grumman Corp., 2013 Cal. Wrk. Comp. P.D. LEXIS 585, the WCAB rescinded a workers' compensation judge's award when the judge found that the applicant elected to self-procure treatment outside of the defendant's medical provider network with Dr. Sobol, received his reporting into evidence and relied on his report as the sole basis of an award, even though it was contrary to the opinion of the qualified medical evaluator.

TEMPORARY DISABILITY

In Porter v. Board of Retirement of The Orange County Employees Retirement System (2013) 78 CCC 1305, the 4th District Court of Appeal held that a bus driver for the Orange County Transportation Authority was entitled to disability retirement from the day following her last day of regular employment without any offset for sick leave or workers' compensation temporary disability payments.

PERMANENT DISABILITY

In Deuel v. City of Torrance, 2013 Cal. Wrk. Comp. P.D. LEXIS 539, the WCAB amended a WCJ's decision finding injury to the applicant's "sleep" to reflect that he sustained injury in the form of insomnia instead.

In Lotspike v. J Jill, 2013 Cal. Wrk. Comp. P.D. LEXIS 564, the WCAB rescinded a WCJ's determination that the Combined Values Chart need not be employed to combine the orthopedic permanent disability and the psychiatric permanent disability, based on her own assessment of the medical evidence.

In Burton v. Burke, dba Pride & Joy, 2013 Cal. Wrk. Comp. P.D. LEXIS 535, the WCAB affirmed a WCJ's award of 85 percent permanent disability.

In Jackson v. County of Los Angeles/DPSS, 2013 Cal. Wrk. Comp. P.D. LEXIS 558, the WCAB affirmed a WCJ's award of 53 percent permanent disability, and held that apportionment of an applicant's psychiatric disability is not required to follow the apportionment of the physical injury.

In Pedersen v. Sutter Medical Center of Santa Rosa, 2013 Cal. Wrk. Comp. P.D. LEXIS 571, the WCAB majority rescinded a WCJ's award that the applicant was entitled to permanent disability indemnity (PDI) dating to the last day temporary disability indemnity (TDI) was paid May 21, 2003, for compensable injuries in 2001 and 2002.

DISCOVERY AND SETTLEMENT

In Chavez v. Liz Claiborne, 2013 Cal. Wrk. Comp. P.D. LEXIS 536, the WCAB denied removal of a WCJ's decision that an applicant was entitled to a new panel of QMEs when the original QME could not schedule an evaluation within 60 days as required by CCR 31.3(e).

In Orellana v. Ameripride Services, Inc., 2013 Cal. Wrk. Comp. P.D. LEXIS 569, the WCAB denied removal of a WCJ's decision that an applicant was not required to be re-evaluated by a panel QME who evaluated her in a prior cumulative trauma claim while she was unrepresented for a subsequent cumulative trauma claim for which she was represented by an attorney, even though both injuries involved the same type of body part or body system, and the parties were the same.

LITIGATION

In Breshears v. The Kroger Co. dba Ralph's Grocery Co., 2013 Cal. Wrk. Comp. P.D. LEXIS 533, the WCAB concluded that a defendant's petition for reconsideration was not timely when it was filed electronically at 5:32 p.m. on the 25th day after service of a decision.

In Barnett v. County of Los Angeles, 2013 Cal. Wrk. Comp. P.D. LEXIS 530, the WCAB held that an applicant could proceed to an expedited hearing on a claim for reimbursement to home health care services.

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.