October 2013 Case Law Update

Monday, October 7, 2013 | 0

INJURY

In McLaughlin v. City of Foster City, 2013 Cal. Wrk. Comp. P.D. LEXIS 322, the Workers' Compensation Appeals Board held that an employee's death from an accidental Vicodin overdose was proximately caused by his employment.

In Camacho v. Adecco Employment Services, 2013 Cal. Wrk. Comp. P.D. LEXIS 296, the WCAB upheld a workers' compensation judge's decision finding that an applicant's claim was not barred when it was filed after the applicant was terminated by a special employer, not the general employer.

In Porter v. Tarzana Treatment Centers, 2013 Cal. Wrk. Comp. P.D. LEXIS 328, the WCAB held that a WCJ erred in finding that criticism by the applicant's direct supervisor during counseling sessions did not constitute a personnel action for the purposes of LC 3208.3(h).

MEDICAL TREATMENT

In Hernandez v. Aramark, 2013 Cal. Wrk. Comp. P.D. LEXIS 310, the WCAB held that LC 4616.3(b), which provides that failure to provide notice "shall not be a basis for the employee to treat outside the network unless it is shown that the failure to provide notice resulted in a denial of medical care (emphasis added), became effective Jan. 1, 2013.

PERMANENT DISABILITY

In Gonzales v. Coca Cola Enterprises, 2013 Cal. Wrk. Comp. P.D. LEXIS 305, the WCAB rescinded a finding that an applicant sustained an industrial sleep disorder when the doctor's opinion supporting the award was not substantial evidence.

RETURN TO WORK

In Estrada v. City of Los Angeles (2013) 78 CCC 840, the 2nd District Court of Appeal held that a former police reserve officer for the city of Los Angeles was not an employee for purposes of maintaining a claim under the FEHA because he was appointed to a volunteer position, rather than to a position in the classified civil service.

LITIGATION

In Ramsey v. Interstate Sweeping Service, 2013 Cal. Wrk. Comp. P.D. LEXIS 333, the WCAB held that CIGA has standing to file an application for adjudication against an applicant's subsequent employer over the applicant's objection.

In United Parcel Service v. WCAB (Zirkle), 2013 Cal. Wrk. Comp. LEXIS 143 (writ denied), the WCAB denied a petition to disqualify a WCJ.

In Faulkner v. City of Lompoc, 2013 Cal. Wrk. Comp. P.D. LEXIS 302, the WCAB rejected a defendant's petition, per LC 4907, to remove a nonattorney hearing representative's privilege to appear before the WCAB based on the representative's failure to pay LC 5813 sanctions ordered by the WCJ.
 
In Swain v. Green, 2013 Cal. Wrk. Comp. P.D. LEXIS 341, the WCAB found that an award of additional attorneys' fees was appropriate under LC 4555.

In Hernandez v. Spiess Construction, 2013 Cal. Wrk. Comp. P.D. LEXIS 308, the WCAB held that a vocational expert's fee was allowable under LC 5811 even though the expert's opinion was not found to be substantial evidence.

In Lepe-Duarte v. Fidelity National Title Insurance Co., 2013 Cal. Wrk. Comp. P.D. LEXIS 321, the WCAB upheld a decision that an applicant's expert witness costs totaling $17,747.60 were reasonable and necessary under LC 5811, and were to be paid by the defendant.

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 LLP, a workers' compensation defense firm with five offices in Southern California and author of "Sullivan on Comp," a treatise on California workers' compensation law.