April 2013 Case Law Update

Wednesday, April 3, 2013 | 0

The following is a summary of important updates to California workers' compensation law.

JURISDICTION AND SUBROGATION

In Guzman v. Angelus Block Co., Inc., 2013 Cal. Wrk. Comp. P.D. LEXIS 2, per LC 3856(b), the WCAB held that it had jurisdiction to make a determination on an employer's lien for reimbursement in a third-party action filed by the dependents of a deceased employee.

INJURY

In Dayan v. BBSI, 2013 Cal. Wrk. Comp. P.D. LEXIS 10, the WCAB held that an applicant's injury was barred by LC 3600(a)(10) when he was retained by a payroll company that acted as the general employer, was assigned to work for a special employer and was terminated by the special employer before filing his workers' compensation claim.

In Wiacek v. WCAB, 2013 Cal. Wrk. Comp. LEXIS 30 (writ denied), the WCAB held that an applicant did not sustain a compensable injury when he worked in the Los Angeles area, but maintained a home in the San Francisco Bay Area and was exposed to Valley Fever during a weekend commute from Los Angeles to the Bay Area.

STATUTES OF LIMITATIONS

In Rainbow USA, Inc. v. WCAB (Raymond), 2013 Cal. Wrk. Comp. LEXIS 28 (writ denied), the WCAB upheld a decision that a defendant did not show good cause to reopen an award when, after a trial, it was found that the applicant suffered a cumulative trauma industrial cardiopulmonary injury in addition to depression, back injury and subsequent infection for which the parties obtained an AME opinion.

COMPENSATION RATE

In Bodnar v. WCAB, 2013 Cal. Wrk. Comp. LEXIS 21 (writ denied), the WCAB upheld a decision awarding the applicant temporary disability indemnity based on her post-injury earnings of $539.76 per week as a hair stylist, rather than her earnings on the date of injury of $1,013.49 per week as an area supervisor.

RETURN TO WORK

In Mayes v. City of Pasadena, 2013 Cal. Wrk. Comp. P.D. LEXIS 19, the WCAB held that an employer violated LC 132a when it terminated an applicant shortly after he returned to work from an industrial injury, that such action was evidence that he was "singled out" immediately after sustaining his injury.

PENALTIES AND SANCTIONS

In Ellefson v. County of Los Angeles, 2013 Cal. Wrk. Comp. P.D. LEXIS 13, the WCAB majority held that an applicant's injuries were caused by the serious and willful misconduct of her employer when she was injured because a drunk coworker fell on her.

DISCOVERY AND SETTLEMENT

In Brumm v. State of California, California Highway Patrol, 2013 Cal. Wrk. Comp. P.D. LEXIS 7, the WCAB denied removal of an order that witness statements taken in connection with a California Highway Patrol officer's death should be disclosed after the applicant/widow's deposition.

In Del Barco v. City of Los Angeles, 2013 Cal. Wrk. Comp. P.D. LEXIS 12, the WCAB refused to set aside a stipulated award when the defendant stipulated to paying temporary disability well beyond the 104-week limit defined in LC 4656, because the defendant made a unilateral mistake in stipulating to additional periods of TD that were contrary to LC 4656.

LITIGATION

In Ramirez v. Royalty Landscape, 2013 Cal. Wrk. Comp. P.D. LEXIS 25, the WCAB rescinded a WCJ's decision to exclude payroll records on the grounds that the defendant failed to lay a foundation, to properly authenticate the documents or to have a witness testify as to the records' trustworthiness.

In Meyer v. Target Corp. (2013) ADJ4146782 (panel decision), the WCAB held that, per LC 4903.06(a)(4), a WCJ was required to dismiss a lien with prejudice when a claimant filed its lien before Jan. 1, 2013. A lien conference was held Jan. 2, 2013, and the claimant did not pay the lien activation fee at that time and did not pay it until six days after the lien conference.

In Soto v. Marathon Industries, Inc. (2013) ADJ7407927, the WCAB held that liens were properly dismissed when a lien conference was scheduled for 8:30 a.m. on Jan. 10, 2013, but the lien claimants paid their activation fees between 10:56 a.m. and 11:06 a.m. that day.

In Mota v. Allgreen Landscape, 2013 Cal. Wrk. Comp. P.D. LEXIS 24, the WCAB, per LC 5801, awarded $2,500 in attorneys' fees rather than the $51,900 originally sought.

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

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