May 2015 Case Law Update

Tuesday, May 5, 2015 | 0

In Byars v. New York Jets, 2015 Cal. Wrk. Comp. P.D. LEXIS 125, the Workers' Compensation Appeals Board held that California did not have jurisdiction over a professional football player's cumulative trauma claim when he played nine games in California out of approximately 250 games over 13 seasons, and there was no other connection to the state.

The appeals board stated that the factors relevant to that analysis appear to include, but are not necessarily limited to: (1) how long the injurious employment in California was in relation to the overall injurious employment (that is, a quantitative factor); and (2) the extent to which the microtrauma in California causally contributed to the cumulative injury, for example, whether the microtrauma sustained in the state was relatively long, intense or severe in relation to the out-of-state work activities that also contributed to the cumulative trauma (that is, a qualitative factor).

In Burt v. Carolina Hurricanes, 2015 Cal. Wrk. Comp. P.D. LEXIS 124, the panel majority held that California had jurisdiction over a professional hockey player's cumulative trauma injury when he played 27 of 737 games in California.

In Macklin v. Los Angeles Clippers, 2015 Cal. Wrk. Comp. P.D. LEXIS 77, the WCAB held that it had jurisdiction over a professional basketball player's cumulative trauma injury when he worked the last month of his three-year career for the Los Angeles Clippers.

BUSINESS OF INSURANCE

In Martinez v. 2K Fabrication, Inc., 2015 Cal. Wrk. Comp. P.D. LEXIS 78, the WCAB upheld an arbitrator's decision that an insurer was not liable for an injury July 8, 2013, when it properly canceled a policy for nonpayment of premium and failure to provide timely payroll reports as of March 18, 2003.

In Qadri v. Special Devices, 2015 Cal. Wrk. Comp. P.D. LEXIS 111, the WCAB held that a lien claimant was entitled to payment from the California Insurance Guarantee Association for medical services provided, and that payment was not barred by IC 1063.1(c)(9), which provides that CIGA is not liable for any claim asserted by an assignee.

In Davis v. San Diego Chargers, 2015 Cal. Wrk. Comp. P.D. LEXIS 127, the appeals board held that in order to apply the requirement of IC 1063.2(c)(1), CIGA had the initial burden to show that the applicant was within the class of injured employees covered by the section.

INJURY

In Banuelos v. Acorn Engineering Co., 2015 Cal. Wrk. Comp. P.D. LEXIS 121, the WCAB held that an injured worker's stroke was compensable when the QME and primary treating physician attributed it to work-related stress.

MEDICAL TREATMENT

In Cockrell v. Farmers Insurance, 2015 Cal. Wrk. Comp. P.D. LEXIS 95, the WCAB rescinded a workers' compensation judge's order finding that the applicant was entitled to reimbursement for self-procured medically recommended marijuana.

In Aguayo v. Grossmont Union High School District, 2015 Cal. Wrk. Comp. P.D. LEXIS 89, the WCAB held that reports from chiropractors after the 24th chiropractic visit are admissible.

Administrative regulations created by the Division of Workers' Compensation became effective April 20, 2015.

In O'Neal v. Hale Aloha/Mark One Corp., 2015 Cal. Wrk. Comp. P.D. LEXIS 80, the WCAB rejected a defendant's argument that only a primary treating physician's report must be referred to utilization review, and held that a request for authorization from a secondary treating physician could trigger the utilization review process.

In Takafua v. FP International, 2015 Cal. Wrk. Comp. P.D. LEXIS 86, the WCAB set aside an IMR determination when it addressed the wrong medical treatment being requested.

In Garibay-Jimenez v. Santa Barbara Medical Foundation Clinic, 2015 Cal. Wrk. Comp. P.D. LEXIS 130,  the WCAB held that a defendant's failure to provide relevant medical records to the IMR organization constituted grounds for appeal of the IMR determination under LC 4610.6(g)(h).

In Everett v. Santa Clara Valley Transportation Authority, 2015 Cal. Wrk. Comp. P.D. LEXIS 100, the WCAB held that an applicant's medical treatment within a medical provider network was not limited to reasonable geographic distance.

In Torres Tavera v. T and P Farms, 2015 Cal. Wrk. Comp. P.D. LEXIS 117, the WCAB held that the extraordinary circumstances exception to the OMFS was deleted in 2004, and that the regulations referencing the exception apply to injuries before Jan. 1, 2004.

TEMPORARY DISABILITY

In Bucio v. County of Merced, 2015 Cal. Wrk. Comp. P.D. LEXIS 123, the WCAB held that an injured worker is entitled to temporary disability indemnity regardless of whether the temporary disability resulted from reasonable medical treatment provided by the defendant or reasonable medical treatment self-procured.

PERMANENT DISABILITY

In Kirkwood v. Verizon California, Inc., 2015 Cal. Wrk. Comp. P.D. LEXIS 134, the WCAB held that an applicant was not entitled to the conclusive presumption of total disability under Labor Code 4662(a) even though she lost use of both hands.

Administrative regulations created by the Department of Industrial Relations regarding the return-to-work program established in LC 139.48 became effective April 13, 2015.

RETURN TO WORK

In Barcenas v. Ramco Enterprises, 2015 Cal. Wrk. Comp. P.D. LEXIS 91, the WCAB held that an applicant was not entitled to a supplemental job displacement benefit under LC 4658.5 when he was terminated for cause (threatening violence to a co-worker) while on modified duty.

DISCOVERY AND SETTLEMENT

In Jackson v. Alia Corp., 2015 Cal. Wrk. Comp. P.D. LEXIS 73, the WCAB held that an applicant engaged in ex parte communications with an agreed medical examiner when she sent various records to the AME that were not served on the defendant or its counsel.

In Terzoli Ramirez v. American Career College, Inc., 2015 Cal. Wrk. Comp. P.D. LEXIS 87, the WCAB affirmed a WCJ's order for a new QME panel when the parties received a QME report co-authored by Dr. Friedman and Dr. Zakin.

In Vanderdoes v. County of Kern, 2015 Cal. Wrk. Comp. P.D. LEXIS 118, the WCAB held that a copy service was not entitled to payment on its lien when it did not meet its burden to show that its services were actual, reasonable and/or necessary to prove or disprove a contested claim.

In Sanchez v. The Regents of the University of California, 2015 Cal. Wrk. Comp. P.D. LEXIS 145, the WCAB affirmed an order allowing payment of medical-legal expenses to a QME even though the applicant was criminally charged, pleaded guilty to insurance fraud and her workers' compensation claim was dismissed.

Complete discussion of these topics can be found in Sullivan On Comp available to subscribers here.

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.