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October 2015 Case Law Update

By Michael W. Sullivan

Monday, October 5, 2015 | 1889 | 0 | min read

JURISDICTION AND SUBROGATION

In Melendrez v. Ameron International Corp. (2015) B256928, B259423, the 2nd District Court of Appeal held that exclusive remedy applied to an employee's injury, which was caused in part by nonwork-related activities, because the applicant's employment was a substantial contributor to the injury.

In City of Torrance (Police Department) v. WCAB (Nazir), 2015 Cal. Wrk. Comp. LEXIS 100 (writ denied), the WCAB held that it had no authority to compel an applicant to sign a compromise and release (C&R).

MEDICAL TREATMENT

In Garcia v. Sierra View Memorial Park, 2015 Cal. Wrk. Comp. P.D. LEXIS 432, the WCAB majority affirmed a WCJ's order summarily denying an applicant's request for attorneys’ fees from the administrative director in connection with his appeal from the IMR determination.

In Matute v. Los Angeles Unified School District, 2015 Cal. Wrk. Comp. LEXIS 126, the WCAB issued an en banc holding that the 30-day period to file a timely appeal from an IMR determination under LC 4610.6(h) is extended by five days pursuant to LC 5316 and CCP 1013(a).

In McAtee v. Briggs & Pearson Construction, 2015 Cal. Wrk. Comp. P.D. LEXIS 475, the WCAB overturned an IMR determination denying Duragesic patches when the reviewer incorrectly found that there was no indication that the medication was improving the applicant's pain or function, and that there was no documentation concerning side effects and potential aberrant use of the medication.

In Hacker v. County of San Bernardino-Public Health Department, 2015 Cal. Wrk. Comp. P.D. LEXIS 415, the WCAB majority reversed a WCJ when she decided that IMR determinations were not substantial evidence because they did not specifically identify the date and author of each report reviewed as part of the IMR process.

In Bryant v. Pomona Unified School District, 2015 Cal. Wrk. Comp. P.D. LEXIS 409, the WCAB held that an applicant was entitled to treat outside of a defendant's MPN because the defendant failed to issue written authorization for treatment with a doctor within the MPN. 

TEMPORARY DISABILITY

In Tuivai v. Links Electrical Service, 2015 Cal. Wrk. Comp. P.D. LEXIS 483, the WCAB held that an applicant was not entitled to temporary disability benefits during the period he declined to accept modified work that was 82.6 miles from his home. The applicant claimed he declined the work because it was beyond his qualifications and was not within a reasonable commuting distance as required by LC 4658.1. The WCAB explained that if an applicant is released to modified duty and the employer offers the applicant a job within his work restrictions, the applicant no longer is entitled to total temporary disability benefits, even if he does not accept the modified duty. The applicant testified that his job required him to travel to projects, and he was working a distance of 119.3 miles from his home at the time of injury. The applicant also testified that he wanted a higher salary to do the modified work he was offered, and declined to work when this demand was not met. The WCAB found the applicant was unwilling to take jobs at a significant distance from his residence for reasons other than physical inability to work. It also found that the modified work was a reasonable commuting distance under LC 4658.1 because the nature of the applicant's work required that he travel to job sites that are a fairly significant distance from his residence.

CHAPTER 10: PERMANENT DISABILITY

Section 10.16 Use of 2013 Permanent Disability Schedule. The discussion concerns the permanent disability schedule for injuries occurring on or after Jan. 1, 2013.

In Hernandez v. Fremont Bank, 2015 Cal. Wrk. Comp. P.D. LEXIS 470, the WCAB upheld a WCJ's decision that an applicant was entitled to a panel QME in the specialty of psychiatry for two injuries in occurring in 2014, which she amended in 2015 to include a claim of injury to the psyche.

In Contra Costa County v. WCAB (Dahl) (2015) A141046, the 1st District Court of Appeal annulled the WCAB's decision that the applicant rebutted a scheduled permanent disability rating under Ogilvie v. WCAB (2011) 76 CCC 624, and concluded that the applicant failed to rebut her scheduled rating because she failed to show that her injury precluded vocational rehabilitation. 

DISCOVERY AND SETTLEMENT

In Smith v. Walter Claudio Salon & Spa, Inc., 2015 Cal. Wrk. Comp. P.D. LEXIS 450, the WCAB upheld an order allowing a defendant to submit surveillance evidence, taken at the applicant's gym, to the AME.

In Harding v. ABM Industries, 2015 Cal. Wrk. Comp. P.D. LEXIS 434, the WCAB affirmed a WCJ's order directing the parties to use a chiropractic QME panel, even though a doctor from the Medical Unit determined that an orthopedic panel would be in the applicant's best interest.

LITIGATION

In Groth v. Coastland, Inc., 2015 Cal. Wrk. Comp. P.D. LEXIS 467, the WCAB granted removal, rescinded an order closing discovery and allowed a defendant to supplement the record with a report from its vocational expert when the applicant served a report from his vocational expert only five days before filing a declaration of readiness to proceed (DOR).

In Galvez v. Fatburger Corp., 2015 Cal. Wrk. Comp. P.D. LEXIS 431, the WCAB rescinded a WCJ's order denying a petition for dismissal per CCR 10582 and ordered the WCJ to issue a 10-day notice of intention to dismiss.

In Chavez v. ABM Janitorial Services, 2015 Cal. Wrk. Comp. P.D. LEXIS 462, the WCAB upheld an award of $180 for two hours of interpreter services provided to an applicant in conjunction with her deposition.

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

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

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