California Legal Updates

Thursday, November 3, 2011 | 0

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

INJURY

In Rawley v. Boston Red Sox, 2011 Cal. Wrk. Comp. P.D. LEXIS 184, the Workers' Compensation Appeals Board upheld a decision that the last employer over which the Appeals Board had jurisdiction was liable for a cumulative trauma injury under LC 5500.5. This was so even though the employer did not employ the applicant during the last year of injurious exposure, as the employee was working in a different state for a different employer.

In Saavedra v. JLG Harvesting, 2011 Cal. Wrk. Comp. P.D. LEXIS 189, the Appeals Board concluded that LC 3208.3(d) did not bar an applicantís psychiatric claim. The applicant felt a stinging sensation of unknown origin (possibly an insect or snake bite, or a metal puncture wound) in her left hand. She developed an infection, was taken to the emergency room and informed that it was necessary to amputate her arm. She underwent surgery. The arm was not amputated, but she later developed symptoms of depression and anxiety. The employer denied that the psychiatric injury was work-related. The panel found that this was the type of injury and circumstance that would be expected to cause psychiatric injury or psychological problems even in an honest and diligent employee.

STATUTES OF LIMITATIONS

In an unpublished opinion, Popovich v. WCAB, 2011 Cal. App. Unpub. Lexis 7392, the Court of Appeal annulled an order that the Appeals Board did not have jurisdiction to award temporary disability more than five years after the date of injury in cases of insidious, progressive diseases. The court declined to decide the issue, and found that the five-year limitations period did not begin to run until the applicant first suffered disability, which was in 2009, so the petition to reopen was timely.

MEDICAL TREATMENT

In Nguyen v. Network Appliance, Inc., 2011 Cal. Wrk. Comp. P.D. LEXIS 176, the Appeals Board held that a defendant's failure to give notice that it was contesting a lien did not entitle a medical lien claimant to reimbursement for medical treatment for a nonindustrial injury. A lien claimant has no right to payment of its claim unless the services provided were to cure or relieve the worker from the effects of an industrial injury.

TEMPORARY DISABILITY

In Moreno v. American Sunroof Corp., 2011 Cal. Wrk. Comp. P.D. LEXIS 175, the Appeals Board held that nothing in the language of LC 4656(c)(2) precludes a defendant from obtaining credit against the 104 compensable weeks limit when it reimburses EDD for the benefits it paid and also pays the injured worker any difference between the amount the worker received from EDD and the amount of temporary disability indemnity benefits due for that time period.

In Haring v. County of Los Angeles, 2010 Cal. Wrk. Comp. P.D. LEXIS 543, the Appeals Board held that an applicant who was a police trainee, and ineligible for LC 4850 benefits at the time of injury, was entitled to receive such benefits, based on the clear language of LC 4850, when he sustained a new period of disability for the same injury after becoming a full-time police officer.

PERMANENT DISABILITY

In Elliott v. Abbott, 2010 Cal. Wrk. Comp. P.D. LEXIS 545, the Appeals Board rescinded a WCJ's award of 34% PD following a petition to reopen because the WCJ apportioned 50% of the new and further disability based on a QME's opinion in the earlier award, and the QME found no apportionment for the increased disability. The Appeals Board, however, remanded the case for further development of the record because it found that the QME's opinion was not substantial evidence. 

RETURN TO WORK

In Clites-Porter v. County of Kern, 2011 Cal. Wrk. Comp. P.D. LEXIS 153, the Appeals Board held that a defendant was entitled to a 15% decrease in permanent disability when it provided an offer of regular work within a reasonable time (36 days) after receipt of the AME's permanent and stationary report, even though it was more than 60 days after the permanent and stationary date. The board explained that a ìhyper-literalî interpretation of LC 4658(d) should not be applied if the result is to require something impossible  ññ  response to a notice before receipt of the notice ññ and if the defendant would be penalized even though its actions have achieved precisely what the statute seeks to accomplish ññ  return of an injured employee to work.

In Henry v. City of Santa Monica, 2011 Cal. Wrk. Comp. P.D. LEXIS 164, the Appeals Board held that an applicant's permanent disability should be increased by 15% when an orthopedic QME declared an applicant P&S and the defendant offered regular work within 60 days of the report. But the applicant sustained internal as well as orthopedic injuries, and the internal medicine AME did not declare the applicant P&S until much later. So the defendant offered the applicant regular work at a time when he was not P&S, and the offer did not comply with LC 4658(d)(3)(A).

DEATH BENEFITS

In Bair v. State of California, Department of Corrections, 2010 Cal. Wrk. Comp. P.D. LEXIS 517, the Appeals Board concluded that although LC 4707 otherwise precludes the decedent's dependent children from receiving workers' compensation death benefits when a surviving spouse elects to receive the PERS death benefit, they may, under LC 4704, be entitled to such benefits on showing good cause.

PENALTIES AND SANCTIONS

In O'Keefe v. Surgical Staff North, Inc., 2011 Cal. Wrk. Comp. P.D. LEXIS 178, the Appeals Board rescinded a WCJ's award of LC 5814 penalties against one defendant for unreasonably delaying payment of an award of reimbursement to a co-defendant because LC 5814 does not apply to delays in payment from one defendant to another.

DISCOVERY AND SETTLEMENT

In Gomez v. Janco Industries, Inc., 2011 Cal. Wrk. Comp. P.D. LEXIS 161, the Appeals Board denied a petition for removal of a WCJ's order that the parties were to select from a panel of orthopedic surgeons, which was requested by the defendant. The applicant requested a panel of chiropractors. The Medical Unit received the defendant's request before it received the applicant's request, even though the Medical Unit issued the chiropractic panel before it issued the orthopedic panel. The WCJ found that the date the Medical Unit received the request, rather than the date the request was mailed, to be determinative.

In Giammona v. Fisher Development, 2011 Cal. Wrk. Comp. P.D. LEXIS 160, the Appeals Board held that in order to fall within one of the two exceptions to ex parte communications under LC 4062.3(h), the communication by the applicant must have occurred during the time he or she was in the doctor's office and be made during the examination, or provided at the request of the panel QME in connection with the examination.

LITIGATION

In Curiel v. Efren Reyes Pool and Plastering, Inc., 2010 Cal. Wrk. Comp. P.D. LEXIS 558, the Appeals Board declined to dismiss a claim for an attorney's failure to appear at a status conference, MSC and then trial. It returned the matter to the trial level for hearing on the merits of applicant's claim. The Appeals Board added, however, that discovery was closed, and any further failure to appear at a noticed hearing may result in dismissal of the applicant's claim after issuance of a notice of intention to dismiss. The Appeals Board also added that the WCJ may consider any further motions by defendant for costs and fees and should also evaluate the potential for sanctions against applicant and his counsel.

In In re: Daniel Escamilla (2011) 76 CCC 944, the Appeals Board, en banc, issued notice that it would suspend or remove a hearing representative's privilege to appear in any proceedings before the Appeals Board or a WCJ pursuant to LC 4907 unless good cause was shown why the privilege should not be suspended or removed. The hearing representative had been sanctioned repeatedly for engaging in bad-faith action or tactics that were frivolous or solely intended to cause unnecessary delay. They included willful failures to comply with statutory and regulatory obligations, disruptions and delay of proceedings for an improper motive, and presenting arguments that were indisputably without merit.

In Reed v. Trinity Hospice, 2011 Cal. Wrk. Comp. P.D. LEXIS 185, the Appeals Board held that attorney's fees are not considered costs under LC 5811 because the Labor Code enumerates very specific instances in which a party may be liable for another party's attorney's fees, and these provisions would have no meaning if LC 5811 gave the Appeals Board broad authority to award attorney's fees in any instance.

AWARDS AND APPEALS

In Collins v. Traylor Brothers, 2011 Cal. Wrk. Comp. P.D. LEXIS 155, the Appeals Board granted reconsideration of an order commuting $150,000 to purchase a house when it was not convinced that the applicant established by substantial evidence that commutation was necessary for his protection or in his best interest.

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

<i>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.</i>