Workers' Compensation Case Law Updates

Friday, July 8, 2011 | 0

By Michael Sullivan
Michael Sullivan & Associates, P.C.

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

JURISDICTION AND SUBROGATION

In Lowery v. WCAB (2011) 76 CCC 517 (writ denied), the appeals board concluded that it had no jurisdiction over an applicant's injury when his job duties were primarily ship-based, not land-based, and his occasional land-based activities were not sufficient to bring him within the "twilight zone" for jurisdictional purposes.

In Vilarino v. WCAB (2011) 76 CCC 535 (writ denied), the appeals board concluded that an employer was not estopped to assert the right to credit based on ambiguous statements by the defense attorney that it did not intend to take the applicant's money; the employer expressly had reserved its right to credit as part of the third-party settlement.

INJURY

In California Department of Corrections and Rehabilitation v. WCAB (Shadden) (2011) 76 CCC 494 (writ denied), the appeals board concluded that the family of a peace officer who died of a heart attack was covered by the heart trouble presumption under LC 3212.2 and was entitled to benefits even though the decedent had cocaine in his system at the time of death. The employer failed to establish that the death was proximately caused by the cocaine use.

STATUTE OF LIMITATION

In Alhuniti v. Sears Holding Corp., 2010 Cal. Wrk. Comp. P.D. LEXIS 565, an appeals board panel held that an application for benefits filed within one year of the decedent's injury and death timely commenced proceedings for the collection of dependency benefits within the meaning of LC 5406 even if the application was not served on defendant until more than one year after the date of injury and death.

MEDICAL TREATMENT

In Alvizo v. State of California, DIR, 2010 Cal. Wrk. Comp. P.D. LEXIS 567, an appeals board panel found that an employer was liable for "24 hour per day, 7 day per week home health care" when it failed to submit the treating physician's requested authorization for such treatment to utilization review.

In Rodriguez v. Grimmway Enterprises, Inc. (2011) 39 CWCR 121 [2011 Cal. Wrk. Comp. P.D. LEXIS 93], an appeals board panel concluded that if an employer complies with all of the rules related to MPN notices, an applicant's illiteracy and inability to read them does not vitiate the employer's compliance with the notice requirements.

In Collins v. Coca Cola Enterprises, 2011 Cal. Wrk. Comp. P.D. LEXIS 63, an appeals board panel concluded that an applicant is not required to comply with the requirements of LC 4062(a), which covers a dispute over "a medical determination made by the treating physician concerning any medical issues," before selecting a new treating physician under LC 4616.3.

COMPENSATION RATE

In Peterson v. Santa Cruz City Schools, 2010 Cal. Wrk. Comp. P.D. LEXIS 605, an appeals board panel held that an applicant's actual post-injury earnings with a different employer may be considered in determining an applicant's earning capacity.

In Arreola v. Suntreat Packing, 2010 Cal. Wrk. Comp. P.D. LEXIS 568, an appeals board panel concluded that a seasonal employee's permanent disability rate could not be based only on in-season earnings when it was stipulated that the applicant did not have any off-season earnings.

TEMPORARY DISABILITY

In Hamilton v. Employers' Depot, 2010 Cal. Wrk. Comp. P.D. LEXIS 586, an appeals board panel concluded that an employer was not liable for an EDD lien when the applicant voluntarily resigned her employment before filing a workers' compensation claim, and the employer presented unrebutted evidence that the applicant's work restrictions would have been accommodated had she chosen not to resign. The panel stated, "When an injured worker's wage loss is not the result of industrial injury but is due to voluntary retirement, termination for cause, and by extension voluntary resignation as in this case, the injured worker is not entitled to receive workers' compensation temporary disability indemnity for the period following the separation from employment."

In a panel decision, Rebolar v. Specialty Restaurants (2011) ADJ1539297 (VNO 0559125), the appeals board concluded that for injuries occurring on or after Jan. 1, 2008, when an employer reimburses the EDD for benefits paid to an applicant for a period the applicant is TD, such payments constitute TD; there is nothing in LC 4656(c)(2) that precludes an employer from obtaining credit against the 104 compensable weeks limit when it reimburses the EDD for the benefits it has paid.

PERMANENT DISABILITY

In SCIF v. WCAB (Almaraz) (June 16, 2011, F058698), the 5th District Court of Appeal issued a summary denial of the petition for writ of review of Almaraz/Guzman II.

In Knippers-Davis v. UCD Medical Center, 2010 Cal. Wrk. Comp. P.D. LEXIS 136, an appeals board panel found that an AME's opinion rebutted the 2005 PD Schedule under Almaraz/Guzman II, when he reported that the applicant's WPI would be consistent with someone who had a knee replacement, even though the applicant had not had a knee replacement. The analogy approach, he said, was arrived at within the four corners of the AMA guides, and the AME was using his best clinical judgment to assess what was the applicants actual impairment.

In Hundemer v. County of Santa Cruz, 2011 Cal. Wrk. Comp. P.D. LEXIS 73, an appeals board panel concluded that a panel QME opinion rebutted the scheduled rating pursuant to Guzman III when he found a 12% WPI for each upper extremity based on a 20% loss of her pre-injury capacity for lifting, carrying, pushing, pulling, grasping or manipulation; he estimated the 20% loss of function to the upper extremities based on his "training and experience," applied his clinical judgment and considered the overall clinical findings, including the applicant's impaired activities of daily living.

In Leon v. RF Development & Busch Corp., 2011 Cal. Wrk. Comp. P.D. LEXIS 123, a panel majority concluded that a primary treating physician's opinion did not rebut a scheduled rating when he concluded that the applicant had lost 25%  of his pre-injury low back function and came up with a 23% WPI for the low back. But the doctor's opinion on pre-injury capacity was based on the applicant's subjective statement, and did not test his lifting capacity.

In Funez v. BOS Sheet Metal and Air Conditioning, Inc., 2011 Cal. Wrk. Comp. P.D. LEXIS 115, an appeals board panel ruled that an AME's opinion did not rebut the scheduled AMA guides WPI, when he reported that disability under the guides would be "inequitable, disproportionate, unfair, and an inaccurate measure of the employee's permanent disability." The appeals board concluded that the AME used a legal standard that had been rejected in Almaraz/Guzman II.

In Shipp v. Gottschalks, 2010 Cal. Wrk. Comp. P.D. LEXIS 607, an appeals board panel concluded that an AME's opinion that the applicant's WPI under the AMA guides was not appropriate because it did not take into account the applicant's lifting capacity, and her restriction from heavy lifting was not substantial evidence because the AME's approach was based indirectly on the old (1997) PD schedule with its rating of PD based on lifting capacity and work restrictions.

In Espinoza v. Southwest Airlines, 2011 Cal. Wrk. Comp. P.D. LEXIS 113, an appeals board panel concluded that a primary treating physician's opinion was not substantial evidence under Guzman III. He assigned a 3% WPI under DRE Cervical Category I and DRE Thoracic Category I even though those categories entailed zero impairment. The doctor's opinion was not based on the AMA guides, and was an unreasonable departure from strict application of them.

In Chung v. Kaiser Foundation Hospital, 2011 Cal. Wrk. Comp. P.D. LEXIS 62, an appeals board panel granted removal when a WCJ ordered further development of the medical record because the AME failed to adequately describe why one method under the AMA guides was preferable to another. The board found that it was an abuse of discretion to relieve the applicant from the mandates of LC 5502(e)(3) when the applicant had the opportunity before trial to request further evidence from the AME on the issues identified in Guzman III but did not do so. It explained that the WCJ was required to determine whether the reports of the AME constituted substantial evidence to support any rating under the AMA guides and the PD schedule, and if so, whether the applicant sustained her burden of proof in rebutting the rating.

In Darbinyan v. California Deluxe Window Industries, Inc., 2011 Cal. Wrk. Comp. P.D. LEXIS 15, an appeals board panel granted reconsideration and returned the matter to the trial level for further development of the record because the AME's report and deposition occurred before the publication of Almaraz/Guzman II. The parties should have solicited a report from the AME to clarify his deposition testimony, and he was not given the opportunity to do so.

In Garcia v. Cupertino Dental Group, 2010 Cal. Wrk. Comp. P.D. LEXIS 578, an appeals board panel concluded that an applicant did not rebut the PD schedule pursuant to Ogilvie because the applicant's post-injury status and loss of earning capacity was not substantially related to the injury/disability; instead, the applicant discontinued work due to personal and economic factors.

In Guajardo v. Kelly Services, 2010 Cal. Wrk. Comp. P.D. LEXIS 583, the panel majority found that applicant had met his burden of proof pursuant to Ogilvie when he presented evidence of his willingness, ability and opportunity to work, and the Ogilvie calculations were based on earnings after the applicant was P&S.

In Wong v. City of Los Angeles/LAPD, 2010 Cal. Wrk. Comp. P.D. LEXIS 612, an employer failed to rebut a scheduled rating under Ogilvie even though the applicant suffered no wage loss as a result of the injury. The applicant was retired but participated in the employer's Deferred Retirement Option Program (DROP). The panel found that DROP was unique to the employer and that there was nothing to suggest that such programs are available to "similarly situated employees" in the general working population. It also found that the employer failed to show that the applicant's individual earning capacity remained and that the employer presented no evidence that the applicant's education and job skills were such that his earning capacity was the same after his industrial impairments as before.

In Gordon v. County of Los Angeles, 2010 Cal. Wrk. Comp. P.D. LEXIS 581, an appeals board panel concluded that apportionment was proper under LC 4664(c)(1) even though the employer could not establish overlap between the injuries. The applicant previously had two injuries that combined for 80% PD. The prior 80% was added to the new award of 78% and would exceed the 100% cap. So pursuant to LC 4664(c)(1), apportionment was applied by subtracting the 80% from the total possible 100% for an award of 20%.

In Caldwell v. SCIF, 2010 Cal. Wrk. Comp. P.D. LEXIS 571, an appeals board panel concluded that LC 4664(c) could not be applied when the applicant previously received a stipulated award of 50% PD to the psyche and right upper extremity, and was later found to be 100% PD as a result of a subsequent psychiatric injury. The prior stipulated award did not expressly provide what part of the award was attributable to disability of a specific body part, and the board ruled that the employer could not utilize extrinsic evidence to make this showing.

RETURN TO WORK


In Sandoval v. WCAB (2011) 76 CCC 527 (writ denied), the appeals board concluded that the employer did not violate LC 132a when it terminated the applicant based on surveillance film prompting the employers sincere belief that the applicant was exaggerating his claim. Even if the belief was mistaken, the applicant had failed to show that he was terminated because of the injury.

In Gladden v. State of California, Department of Corrections (2011) ADJ6739541 (panel decision), an appeals board panel concluded that an unregistered domestic partner could not be entitled to the presumption of total dependency under LC 3501(b). The panel did not address whether a registered domestic partner under Family Code 297 could be entitled to presumption.

DISCOVERY AND SETTLEMENT

In Haile v. Fair Oaks Estates, 2010 Cal. Wrk. Comp. P.D. LEXIS 585, an appeals board panel granted removal when neither party attempted to contact the other about agreeing to a panel QME, and both parties failed to strike a doctor after allowing 10 days for agreement.

In re Marriage of Ruiz (2011) 76 CCC 421, the 4th District Court of Appeal held that when a lump sum workers' compensation settlement is partially community property and partially separate property, it is the trial court's obligation to make equitable apportionment, and the trial court's decision may be reversed only if there is an abuse of discretion.

CHAPTER 15: LITIGATION

In Williams v. Kazakoff Construction Co., 2010 Cal. Wrk. Comp. P.D. LEXIS 611, an appeals board panel concluded that if an application for adjudication is filed at a proper venue, a clerical error improperly transferring the case to another venue will not result in a change of venue. The venue will remain at the location where the application was originally filed.

In Nunez v. Mainstay Business Solutions, 2010 Cal. Wrk. Comp. P.D. LEXIS 597, an appeals board panel determined that "there is no denial of due process when a party obtains actual notice of an action notwithstanding the lack of proper service, and the time for responding to the action begins to run from the date actual notice is received." The panel also found that the doctrine of waiver applied when there is defective service and that a party loses the right to challenge an issue when it fails to take proper steps to timely raise it and when it fails to timely act to avoid or correct an error.

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.