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Sullivan: December 2016 Case Law Update

Monday, December 5, 2016 | 2827 | 0 | min read

Business of insurance

In Corona v. Koosharem, doing business as Select Staffing, 2016 Cal. Wrk. Comp. P.D. LEXIS 542, the Workers' Compensation Appeals Board granted reconsideration of an arbitrator's decision dismissing California Insurance Guarantee Association as a party defendant and remanded the case to consider whether two insurance policies were limited and restricted to exclude coverage for a special employee's injuries. 

Michael Sullivan

Michael Sullivan

Employment 

In Garcia v. Whitney, 2016 Cal. Wrk. Comp. P.D. LEXIS 526, the WCAB held that an applicant was not entitled to workers' compensation benefits for a power saw injury because there was no express or implied agreement for him to perform work in exchange for free rent. 

Injury

In Zhu v. Department of Social Services IHSS, 2016 Cal. Wrk. Comp. P.D. LEXIS 513, the panel majority held that injuries sustained by a caregiver who was employed by In-Home Supportive Services were barred by the going and coming rule when she was struck by a motor vehicle while traveling between clients on a bicycle. 

Statutes of limitations 

In De La Luz Garcia v. Morton Manufacturing, 2016 Cal. Wrk. Comp. P.D. LEXIS 480, the WCAB rescinded a workers' compensation judge's decision that a lien filed May 25, 2012, for services rendered between July 2, 2007, and Aug. 27, 2007, was barred by LC 4903.5(a). 

Medical treatment

In Lambert v. State of California Department of Forestry and Fire Protection/Cal Fire, 2016 Cal. Wrk. Comp. P.D. LEXIS 492, the WCAB held that it was improper for a claims adjuster to apply the medical treatment utilization schedule (MTUS) to deny treatment following the applicant's knee surgery. 

In De La Luz Garcia v. Morton Manufacturing, 2016 Cal. Wrk. Comp. P.D. LEXIS 480, the WCAB rescinded an order that a lien claimant take nothing for its services provided under LC 5402(c) during the delay period. 

In McKinney v. Enterprise Rent-A-Car of San Francisco, 2016 Cal. Wrk. Comp. P.D. LEXIS 495, the WCAB rescinded a WCJ's order that a defendant was liable for sanctions under LC 5813 for failing to provide medical reports and records germane to four requests for authorizations (RFAs) for medical treatment to its utilization review organization for consideration. 

In Garcia v. American Tire Distributors, 2016 Cal. Wrk. Comp. P.D. LEXIS 527, the WCAB held that the parties' prior agreement to use an agreed medical evaluator for a one-level spinal fusion surgery did not require them to use the AME to determine the medical necessity of a two-level surgery. 

In Hogenson v. Volkswagen of America, 2016 Cal. Wrk. Comp. P.D. LEXIS 488, the WCAB reversed a WCJ's decision and held that medical treatment proposed by a medical provider network physician is subject to utilization review and independent medical review because the Legislature did not exclude MPN treatment from those medical review processes. 

Discovery and settlement

In Portner v. Costco, 2016 Cal. Wrk. Comp. P.D. LEXIS 499, the WCAB rescinded a WCJ's order finding that a qualified medical examiner panel in orthopedic surgery was appropriate when the procedures of CCR 31.1(b) and CCR 31.5(a)(10) were not followed. The defendant requested the QME panel in orthopedic surgery, and the applicant simultaneously requested a QME panel in physical medicine and rehabilitation. 

In Tenorio v. Coachella Valley Unified School District, 2016 Cal. Wrk. Comp. P.D. LEXIS 507, the WCAB rescinded a WCJ's finding that a doctor was an AME when there was no evidence that the defendant entered into an agreement to that effect. 

In Hernandez v. Ramco Enterprises, 2016 Cal. Wrk. Comp. P.D. LEXIS 486, the WCAB held that an applicant was entitled to a new QME per Navarro v. City of Montebello (2014) 79 CCC 418 (WCAB en banc) when she filed four claim forms on or before Feb. 9, 2015, was evaluated by a QME for each of the claimed injuries on Dec. 2, 2015, then filed a claim form Feb. 12, 2016, for an injury Sept. 25, 2015. 

Litigation 

In Ventura v. The Cheesecake Factory, 2014 Cal. Wrk. Comp. P.D. LEXIS 417, the WCAB upheld a WCJ's order taking a case off calendar to obtain a QME in orthopedics per LC 4061(i) even though the applicant did not timely object to the defendant's declaration of readiness. It explained that the purpose of LC 4061(i) is to ensure that there is a complete medical record available to a WCJ before a final determination is made on the issue of permanent disability. 

In Torossian v. Fair Housing Council of Orange County, 2016 Cal. Wrk. Comp. P.D. LEXIS 525, the WCAB allowed an employer to admit an applicant's civil deposition transcripts after a mandatory settlement conference when the civil case depositions did not take place until after the MSC. 

In Gonzalez v. Imperial County Office of Education, 2016 Cal. Wrk. Comp. P.D. LEXIS 528, the WCAB rescinded a WCJ's order dismissing an applicant's case for failure to appear at hearings when she presented a note from a psychologist stating that she had a panic disorder with agoraphobia and was medically unable to appear in court. 

In Williams v. Department of Corrections & Rehabilitation-California Institute for Women, 2016 Cal. Wrk. Comp. P.D. LEXIS 511, the WCAB granted removal and rescinded a WCJ's order requiring the attendance of the applicant's former attorney at trial as a percipient witness on her allegation that his settlement was the product of fraud or mistake. 

Awards and appeals 

In Capital Builder Hardware Inc. v. WCAB (Goana) (2016) B271987, the 2nd District Court of Appeal held that the WCAB's decision regarding whether there was an ex parte communication with an AME in violation of LC 4062.3(g) was not a final order reviewable by the court. 

In Maciel v. RP Automotive Inc. d/b/a Penske Chevrolet, 2016 Cal. Wrk. Comp. P.D. LEXIS 532, the WCAB held that a petition for reconsideration, rather than a petition for removal, was the proper method for challenging a WCJ's order for a new QME panel based on a finding that the defendant engaged in an ex parte communication with the prior QME.

Complete discussion of these topics can be found in Sullivan On Comp available to subscribers at http://www.workcompcentral.com/soc

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

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