February 2015 Case Law Update

Thursday, February 5, 2015 | 0

JURISDICTION AND SUBROGATION

In White v. WCAB, 2014 Cal. Wrk. Comp. LEXIS 183 (writ denied), the WCAB affirmed a WCJ's decision that an employer was 5% negligent in causing the applicant's injuries, that 95% percent of the negligence was attributed to a third party and that, therefore, the employer was entitled to credit against the applicant's third-party settlement of $8 million, which resulted in a net recovery of $5,174,000.

BUSINESS OF INSURANCE

In McQueen v. Victor Valley Community Hospital, 2014 Cal. Wrk. Comp. P.D. LEXIS 618, the WCAB held that a defendant's settlement by way of C&R with an applicant did not preclude CIGA from seeking reimbursement from the defendant.

INJURY

In Schultz v. WCAB (2015) 232 Cal. App. 4th 1126, the 2nd District Court of Appeal held that the premises line rule applied to an employee injured in a single-car accident, and therefore the injury was compensable, because: (1) the employee was a civilian working on a secure U.S. Air Force base not generally open to the public; (2) the employee entered the base in his personal vehicle after passing a guard gate using a security pass issued by his employer with the approval of the Air Force; (3) the employee had traveled one mile inside the base when the accident occurred; and (4) the undisputed evidence established that although the employee worked out of a fixed location, the employer had multiple locations on the Air Force base and sometimes the employee traveled in his own vehicle throughout the base to perform work assigned by his employer.

In Ramirez v. County of Los Angeles, 2014 Cal. Wrk. Comp. P.D. LEXIS 657, the WCAB concluded that a deputy sheriff's claim for psychiatric injury was not barred by Rodriguez v. WCAB (1994) 59 CCC 14 when the injury arose from an investigation occurring outside of the workers' compensation litigation process.

MEDICAL TREATMENT

In Granados v. Tony Ranch Market, 2014 Cal. Wrk. Comp. P.D. LEXIS 650, the WCAB concluded that an applicant's spouse was not entitled to reimbursement for home health-care services from 1996 to May 31, 2005, when the applicant died of nonindustrial leukemia.

In Villareal v. Fresh Start Bakeries, 2014 Cal. Wrk. Comp. P.D. LEXIS 632, the WCAB rescinded an order awarding transportation services for an applicant's children to and from school, when he did not present substantial evidence to support that the services were medically necessary under LC 4610.5(c)(2).

In Witterman v. Henry Mayo Newhall Memorial Hospital, 2014 Cal. Wrk. Comp. P.D. LEXIS 633, the WCAB rescinded a WCJ's order that the defendant send documents to the AME regarding the appropriate lift for the applicant to enter and exit her previously provided van.

In Allen v. Providence Holy Cross Hospital, 2014 Cal. Wrk. Comp. P.D. LEXIS 635, the WCAB held that a UR decision was untimely when it was served on the applicant and the requesting physician, but was not served on the applicant's attorney as required by CCR 9792.9.1(e)(3) and CCR 9792.9.1(e)(5).

In Shanley v. Henry Mayo Newhall Memorial Hospital, 2014 Cal. Wrk. Comp. P.D. LEXIS 660, the WCAB held that a defendant's UR denial of a request for a lumbar MRI and an EMG of the lower extremities was untimely because the defendant could not prove that it was communicated to the requesting physician within 24 hours of the decision, as required by CCR 9792.9.1(e)(3).

In Stone v. AchieveKids, Caps-Sig, 2014 Cal. Wrk. Comp. P.D. LEXIS 663, the WCAB granted a defendant's appeal of an IMR determination that stated that the requested knee cartilage transplant surgery was "medically necessary and appropriate," but was plainly contradicted by the IMR rationale stating that the request was "not medically necessary."

In Morgado v. Powdercoat Services, Inc. 2014 Cal. Wrk. Comp. P.D. LEXIS 622, the WCAB granted reconsideration of a WCJ's decision that an employer did not have a properly noticed MPN when the WCJ failed to take judicial notice of the defendant's MPN as posted on the DWC website.

PERMANENT DISABILITY

In Reese v. Microdental Laboratories, 2014 Cal. Wrk. Comp. P.D. LEXIS 625, the WCAB rescinded a WCJ's award of 45% PD for injury to the applicant's lumbar spine, bilateral knees, right ankle and in the form of a sleep disorder when the award did not include impairment found by the QME for deconditioning.

In Rosales v. Emery Worldwide Freight Corp., 2014 Cal. Wrk. Comp. P.D. LEXIS 626, the WCAB denied removal of a WCJ's order allowing an applicant attorney to attend and record, but not interfere with, an examination by the defendant's vocational expert.

DEATH BENEFITS

In Williams v. State of California, CDCR  Pleasant Valley State Prison, 2014 Cal. Wrk. Comp. P.D. LEXIS 667, the WCAB affirmed its prior decision that workers' compensation death benefits awarded to three totally dependent sons should be offset by the widow's special death benefit from CalPERS.

PENALTIES AND SANCTIONS

In Medina v. Concreative Construction, 2014 Cal. Wrk. Comp. P.D. LEXIS 619, the WCAB held that it had no jurisdiction to order sanctions under LC 5813 against lien claimants who withdrew their liens.

DISCOVERY AND SETTLEMENT

In Babbar v. WCAB (2013) 79 CCC 1525 (writ denied), the WCAB affirmed a WCJ's order taking a case off calendar to allow for further development of the record based on sub rosa video obtained and served shortly before a mandatory settlement conference.

In Bahena v. Charles Virzi Construction, 2014 Cal. Wrk. Comp. P.D. LEXIS 638, the WCAB affirmed a WCJ's decision that an applicant could request a QME evaluation under LC 4060 and LC 4062.2 after waiting 10 days after the defendant issued a denial, even though the applicant did not send notification to the defendant of his intention to seek a panel before doing so.

In Castorena v. Mark One Corp., 2014 Cal. Wrk. Comp. P.D. LEXIS 643, the WCAB affirmed a WCJ's decision that an applicant's attorney was not permitted to withdraw from the agreement per LC 4062.2(f).

LITIGATION

In Vierra v. Babies N Tots dba Baby World, 2014 Cal. Wrk. Comp. P.D. LEXIS 631, the WCAB affirmed a WCJ's decision taking a case off calendar at a mandatory settlement conference to allow for further discovery regarding the applicant's claim for injury to her psyche and in the form of sleep disturbance as a compensable consequence of her specific low back injury.

In Pen v. The Ensign Group, 2014 Cal. Wrk. Comp. P.D. LEXIS 623, the WCAB granted reconsideration of a WCJ's order finding that the applicant sustained industrial injury to her psyche, uterus and urological system, because injury to those body parts was not raised as an issue for trial.

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

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.