May Case Law Update
Friday, May 10, 2013 | 0
The following is a summary of important updates to California workers' compensation law.
JURISDICTION AND SUBROGATION
In Hyder v. St. Louis Rams, 2013 Cal. Wrk. Comp. P.D. LEXIS 56, the WCAB held that it did not have jurisdiction over a professional football player's claim for a cumulative trauma injury when he worked in California for only one day during that period.
In El Katan v. Barrett Business Services, Inc., 2013 Cal. Wrk. Comp. P.D. LEXIS 41, the WCAB held that an employer was not entitled to credit under LC 3861 for an applicant's civil recovery against his former civil attorneys in a legal malpractice action.
THE BUSINESS OF INSURANCE
In Ruiz v. O'Leary, 2013 Cal. Wrk. Comp. P.D. LEXIS 78, the WCAB rescinded a WCJ's finding that a solvent carrier was liable for an applicant's cumulative trauma claim; under IC 1063.1(c)(9), CIGA had no liability because of the existence of "other insurance," but the solvent insurer had settled its liability by way of compromise and release.
INJURY
In Thornton v. Oceanside Towing, 2013 Cal. Wrk. Comp. P.D. LEXIS 82, the WCAB upheld a decision that an employee's death following a motor vehicle accident was barred by LC 3600(a)(4) because: (1) an autopsy report showed that the employee had methamphetamine in his blood at the time of death; (2) an eyewitness testified that the employee was driving in an erratic and unsafe manner and that it appeared that the employee was drunk; (3) a QME toxicologist reported that the employee's methamphetamine level was very high and above the range associated with impairment; (4) the QME reported that the likelihood of an accident was higher because the employee was impaired; and (5) the medical evidence established that applicant's death was not the result of physical injuries or trauma from the accident, but of a methamphetamine-induced cardiac arrhythmia that occurred post-accident.
In County of Sacramento v. WCAB (Brooks) (2013) C067739, the 3rd District Court of Appeal annulled a WCAB's decision that a psychiatric injury was not substantially caused by personnel actions because the board blindly accepted an AME's opinion on what constituted a personnel action without considering the evidence.
MEDICAL TREATMENT
In Gomez v. Jostens, Inc., 2013 Cal. Wrk. Comp. P.D. LEXIS 46, the WCAB held that an applicant could continue treating with a physician outside of the defendant's MPN even though, per CCR 9767.5(c), it had several physicians within 60 minutes or 30 miles of the applicant's former workplace.
In Winter v. County of Riverside, 2013 Cal. Wrk. Comp. P.D. LEXIS 90, the WCAB allowed an applicant to choose treatment with an MPN facility more than 60 miles from her residence, even though it was farther than the accessibility standards established in CCR 9767.5(c).
In Gomez v. Fastenal, 2013 Cal. Wrk. Comp. P.D. LEXIS 47, the WCAB held that an applicant was required to treat within a defendant's MPN despite his assertion that the defendant did not arrange the initial medical evaluation with an MPN physician as required by CCR 9767.6(a), and that when he asked his treating doctor about a change of physician, he was told it was "too soon."
In Herrera v. Ameri-Cold Logistics, 2013 Cal. Wrk. Comp. P.D. LEXIS 51, the WCAB held that the failure to notify the applicant of his right to treat with a personal physician should entitle applicant to treat with his personal physician, assuming that all of the conditions regarding treatment by a personal physician under LC 4600(d) were met.
In Enriquez v. Couto Dairy (2013) 278 CCC 323, the WCAB held en banc that: (1) neither Article III, Section 3.5 of the California Constitution nor LC 5307.1 prevents it from finding preemption of CCR 9789.70, which contains the fee schedule for air ambulance services; (2) the ADA preempts CCR 9789.70 if the lien claimant for air ambulance services is "an air carrier that may provide air transportation" within the meaning of the preemption provision of the ADA; and (3) the air ambulance provider has the burden of showing it is "an air carrier that may provide air transportation" within the meaning of the preemption provision of the ADA, including showing that it is authorized to provide interstate air transportation.
TEMPORARY DISABILITY
In Lee v. Pulmoune Foods USA, Inc., 2013 Cal. Wrk. Comp. P.D. LEXIS 60, the WCAB held that the applicant's voluntary resignation did not preclude an award of TD when the applicant testified that his supervisor told him that he would have to resign if he wanted to be sent to the hospital for medical treatment.
PERMANENT DISABILITY
In Holz v. Gottchalks, 2013 Cal. Wrk. Comp. P.D. LEXIS 54, the WCAB rescinded a WCJ's order denying a defendant's motion to compel the applicant to attend an evaluation with its vocational expert, holding that per LC 5708 and CCR 10348, the WCJ and the appeals board may compel attendance if the applicant has placed rebuttal of the DFEC adjustment at issue.
PENALTIES AND SANCTIONS
In Cowart v. Jack In The Box, Inc., 2013 Cal. Wrk. Comp. P.D. LEXIS 40, the WCAB rescinded a WCJ's award of penalties under LC 5814 for delays in funding an annuity following a compromise and release.
In Romano v. Ralphs Grocery Co. (2013) ADJ1372133 (VNO 0488219) (panel decision), the WCAB upheld an award of multiple penalties under LC 5814 when a defendant unreasonably had delayed or denied medical treatment in 11 separate instances.
DISCOVERY AND SETTLEMENT
In Hoagland v. County of Yuba, 2013 Cal. Wrk. Comp. P.D. LEXIS 52, the WCAB held that an applicant could not be compelled to disclose her tax returns when the defendant failed to identify a greater public interest than that of confidentiality of tax returns.
In Lappi v. The Regents of the University of California Irvine, 2013 Cal. Wrk. Comp. P.D. LEXIS 59, the WCAB held that if a defendant disputes disclosure of documents on the grounds of attorney-client privilege, the WCJ may appoint a special master to conduct an in camera review of the disputed documents and provide a report to the parties of the WCJ.
In Foster v. City of Buenaventura, 2013 Cal. Wrk. Comp. P.D. LEXIS 43, the WCAB held that the 60-day time limit for a QME to issue a supplemental report pursuant to CCR 38(h) applies only to requests by the parties; it does not apply if a supplemental report is requested by a WCJ in accordance with his or her authority to develop the record pursuant to McDuffie v. Los Angeles County Metropolitan Transit Authority (2002) 67 CCC 138 (appeals board en banc).
LITIGATION
In Madison v. Lynwood Unified School District, 2013 Cal. Wrk. Comp. P.D. LEXIS 63, the WCAB invalidated an award for a cumulative trauma injury ending in 2005 that was based on the parties' stipulation to use the 1997 PD schedule rather than the 2005 PD schedule.
In Figueroa v. B.C. Doering Co. (2013) ADJ3274228, the WCAB issued an en banc decision holding that per LC 4903.06: (1) the lien-activation fee must be paid before the commencement of a lien conference, which is the time the conference is scheduled to begin, not the time when the case is called; (2) if the lien claimant fails to pay the lien-activation fee before the commencement of a lien conference and/or fails to provide proof of payment at the conference, its lien must be dismissed with prejudice; (3) a breach of the defendant's duty to serve required documents or to engage in settlement negotiations does not excuse a lien claimant's obligation to pay the lien-activation fee; and (4) a notice of intention is not required before dismissing a lien with prejudice for failure to pay the activation fee or failure to present proof of payment of the fee at a lien conference.
In Mendez v. Le Chef Bakery (2013) ADJ6509620; ADJ6509621, the WCAB issued a significant panel decision holding that if a lien claimant is subject to a lien-activation fee, LC 4903.06 contemplates that it must be paid by the earliest of: (1) the date the lien claimant files the DOR, if it is filed on or after Jan. 1, 2013; (2) before the scheduled starting time of the lien conference, if the lien conference occurs on or after Jan. 1, 2013, whether or not the lien claimant filed the DOR; or (3) Jan. 1, 2014. It held that a lien claimant is not required to pay a lien activation fee prior to a 2013 lien trial if: (1) the DOR is filed before Jan. 1, 2013; (2) the lien conference takes place before Jan. 1, 2013; and (3) the lien trial takes place in 2013, without any intervening 2013 lien conference.
In Beverly Hills Center for Arthroscopic and Outpatient Surgery, LLC v. WCAB (Cardozo) (2013) 78 CCC 340 (writ denied), the WCAB found no good cause to set aside a global settlement agreement between a defendant and a lien claimant settling 257 lien claims totaling $3,706,023.60 for $325,000, even though the lien claimant alleged that the settlement was a product of duress.
In Green v. T.J. and Deni Marrone, Inc., 2013 Cal. Wrk. Comp. P.D. LEXIS 49, the WCAB rescinded a WCJ's award of attorneys' fees that disallowed a portion of the requested fee that was based on MSA seed money.
Complete discussion of these topics can be found in Sullivan On Comp available to subscribers here.
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.
Comments