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June 2015 Case Law Update

By Michael Sullivan

Wednesday, June 3, 2015 | 901 | 0 | min read

JURISDICTION AND SUBROGATION

In Clark v. Green Bay Packers, 2015 Cal. Wrk. Comp. P.D. LEXIS 180, the WCAB held that it had jurisdiction over, and that the Green Bay Packers were liable for, a professional football player's cumulative trauma injury even though the employment contract designated that workers' compensation would be provided under Wisconsin law.

THE BUSINESS OF INSURANCE

In Lopez v. Superior Center Concepts, Inc., 2015 Cal. Wrk. Comp. P.D. LEXIS 197, the WCAB held that CIGA, on behalf of an insolvent insurer, was liable for 48 percent of medical treatment charges and 50 percent of medical-legal expenses based on a pre-liquidation settlement between the insolvent insurer and another insurer.

INJURY

In Lozano v. WCAB (2015) B258000, the 2nd District Court of Appeal held that the amendments by SB 1271, which became effective Jan. 1, 2009, and extended the cancer presumption in LC 3212.1 to active firefighting members of a fire department that serves a U.S. Department of Defense installation, applied retroactively and covered an employee who died before the effective date of the amendment.

In South Coast Framing, Inc. v. WCAB (Clark) (2015) S215637, the California Supreme Court held that an applicant's death from an overdose of medication was compensable because the medications prescribed for his industrial injury contributed to his death.

MEDICAL TREATMENT

In Escobar v. PRN Ambulance, 2015 Cal. Wrk. Comp. P.D. LEXIS 186, the WCAB held that, per CCR 9767.5(a)(1), an employer must have three chiropractors available as primary treating physicians within 30 minutes or 15 miles of the applicant's residence or workplace.

In Lescallett v. Wal-Mart, 2015 Cal. Wrk. Comp. P.D. LEXIS 196, the panel majority held that an applicant was entitled to select a pain management specialist as her primary treating physician outside of the MPN when the defendant's MPN had no pain management physicians within 30 minutes or 15 miles of her residence or workplace.

In Hanker v. City of Stockton, 2015 Cal. Wrk. Comp. P.D. LEXIS 192, the WCAB held that an applicant, who sustained an industrial heart injury, was not entitled to any permanent disability as a result of the injury when the defendant established that, under LC 4056, she unreasonably refused to undergo medical treatment.

PERMANENT DISABILITY

In Madrid v. Stater Brothers, 2015 Cal. Wrk. Comp. P.D. LEXIS 198, the WCAB found that a QME's opinion constituted substantial evidence to apportion an applicant's disability to a prior injury, even though the QME had not reviewed records related to the prior injury, because he properly explained his opinion.

DISCOVERY AND SETTLEMENT

In Gonzalez v. LaserCard Corp., 2015 Cal. Wrk. Comp. P.D. LEXIS 191, the WCAB upheld a WCJ's order allowing the defendant to videotape the applicant's attorney at deposition, but not the applicant.

In Morales v. Robert Half International, Inc., 2015 Cal. Wrk. Comp. P.D. LEXIS 200, the WCAB held that in an accepted claim, before an applicant may request assignment of multiple QME panels, there must be a determination by a treating physician substantiating injury to an alleged body part and an objection to same.

LITIGATION

In Davtyan v. The Vons Cos., Inc., 2015 Cal. Wrk. Comp. P.D. LEXIS 181, the WCAB disqualified a WCJ under LC 5311 when it previously rescinded his notice of intention to impose sanctions, and directed that he could issue a new notice of intention after trial, but the judge simply deferred the issues of costs and sanctions and retained jurisdiction before the matter was heard at trial.

In Etter v. Cast & Crew Entertainment Services, Inc., 2015 Cal. Wrk. Comp. P.D. LEXIS 187, the WCAB held that when the right of contribution under LC 5500.5 was subject to mandatory arbitration per LC 5275(a), the WCJ had no power to compel an applicant to attend a medical-legal evaluation under LC 4062.2, but that the arbitrator could determine whether a co-defendant had the right to such an evaluation and whether the applicant must attend the evaluation.

Michael Sullivan is a founding partner of Michael Sullivan & Associates, a workers' compensation defense law firm with seven locations in California. He is the author of Sullivan on Comp, a treatise on California workers' compensation law.

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