Sullivan: March 2016 Case Law Update
Wednesday, March 2, 2016 | 0
JURISDICTION AND SUBROGATION
In Moore v. William Jessup University (2015) 81 CCC 31, the 3rd District Court of Appeal held that a delivery driver's negligence claim against a third party for inaccurately stating the weight of a box was barred under the assumption of risk doctrine.
INJURY
In City of Stockton v. WCAB (Prouty), 2016 Cal. Wrk. Comp. LEXIS 8 (writ denied), the WCAB held that an applicant's death by acute alcoholism was not barred by the intoxication defense per LC 3600(a)(4) when the applicant's industrial injury caused a relapse of his alcoholism.
In Olden v. State of California, Department of Corrections, 2016 Cal. Wrk. Comp. P.D. LEXIS 3, the WCAB held that an applicant's claim for industrially related hypertension was not barred pursuant to the holding in County of San Bernardino v. WCAB (McCoy) (2012) 77 CCC 219, even though the applicant's psychiatric claim was found noncompensable per the good-faith personnel action defense in LC 3208.3(h).
MEDICAL TREATMENT
In Belling v. United Parcel Service, Inc., 2015 Cal. Wrk. Comp. P.D. LEXIS 738, the WCAB held that a defendant's UR determination was untimely when, initially, it had denied compensable injury, had performed UR more than six months after the board found compensable injury and the WCAB found that the services reviewed were subject to retrospective rather than prospective review.
In Soto v. Sambrailo Packaging, 2016 Cal. Wrk. Comp. P.D. LEXIS 26, the WCAB rescinded a WCJ's decision that an applicant was entitled to obtain medical treatment outside of a defendant's MPN just because it did not have three orthopedic specialists willing to treat her.
In Fernandez v. Kmart, 2016 Cal. Wrk. Comp. P.D. LEXIS 18, the WCAB held that an applicant's dispute over her MPN treating physician's release from care could be resolved pursuant to the procedures in LC 4616.3 and LC 4616.4 when there was not an effective release from care.
PERMANENT DISABILITY
In Weaver v. Los Angeles Unified School District, 2015 Cal. Wrk. Comp. P.D. LEXIS 766, the WCAB held that the applicant was properly awarded permanent disability based on sensory and motor loss, rather than the AMEís alternative rating under Almaraz/Guzman.
In Dawson v. San Diego Transit, 2015 Cal. Wrk. Comp. P.D. LEXIS 745, the WCAB held that an applicant was entitled to a permanent disability award of 100 percent under LC 4662(a) when, while en route to receive treatment for two industrial injuries, she was injured in a motor vehicle accident, resulting in a severe spinal cord injury and practically total paralysis.
In Rodriguez v. North East Valley Health Corp/Quality Comp, 2016 Cal. Wrk. Comp. P.D. LEXIS 5, the WCAB held that an in pro per applicant timely appealed a decision regarding her application for the return-to-work supplement under LC 139.48.
DISCOVERY AND SETTLEMENT
In Garcia v. Sweetwater Union High School District, 2015 Cal. Wrk. Comp. P.D. LEXIS 750, the WCAB affirmed a decision that a defendant engaged in an impermissible ex parte communication with a QME when it attached and requested that the QME address a letter by the applicant's counsel alleging that the doctor had engaged in misconduct during the evaluation.
In Belling v. United Parcel Service, Inc., 2015 Cal. Wrk. Comp. P.D. LEXIS 738, the WCAB held that a QME did not engage in an impermissible ex parte communication with an applicant's wife during an evaluation when the applicant could not communicate with the QME due to his severe disability.
In Geiger v. Geiger, 2015 Cal. Wrk. Comp. P.D. LEXIS 751, the WCAB held that there was no improper ex parte communication between the applicant or the applicant's spouse and the AME when the applicant could not effectively attend any medical evaluation by himself.
LITIGATION
In Owens v. Department of Parks and Recreation, 2015 Cal. Wrk. Comp. P.D. LEXIS 767, the WCAB held that a WCJ did not deny a defendant due process by allowing only one attorney to speak at trial and ordering that if the two attorneys wished to conference, they would need to request a break and step outside so as not to disrupt the courtroom proceedings.
In Burford v. Cook Concrete Products, 2016 Cal. Wrk. Comp. P.D. LEXIS 1, the WCAB rescinded a WCJ's order requiring the defendant's claims adjuster personally to appear at all future hearings unless otherwise excused by the WCJ in advance.
In Castanon v. International Paper Co., 2015 Cal. Wrk. Comp. P.D. LEXIS 742, the WCAB held that an applicant's agreement to dismiss his claim without prejudice did not dismiss the claims of third-party lien claimants.
In Forest v. County of Monterey, 2015 Cal. Wrk. Comp. P.D. LEXIS 748, the WCAB affirmed a WCJ's decision that a deceased employee's surviving spouse could present a medical report prepared on behalf of a lien claimant to an AME for his review and comments.
AWARDS AND APPEALS
In Dehaan v. Stater Brothers Market, 2015 Cal. Wrk. Comp. P.D. LEXIS 746, the WCAB granted reconsideration based on newly submitted evidence obtained after trial.
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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