June 2014 Case Law Update

Wednesday, June 18, 2014 | 0

THE BUSINESS OF INSURANCE

In Martinez v. Koga Colorscape & Maintenance, 2014 Cal. Wrk. Comp. P.D. LEXIS 173, the WCAB held that an insurer was not allowed argue that it did not provide coverage for an injury solely because the employer made material misrepresentations on its application and the insurer would not have written the policy had it been aware of them.

MEDICAL TREATMENT

In Torres-Ramos v. Marquez, 2014 Cal. Wrk. Comp. P.D. LEXIS 208, the WCAB held that it could not find against a defendant based on a tardy utilization review decision when the request for authorization was made on a PR-2 form, and not the appropriate RFA form.

In Dubon v. World Restoration, Inc., 2014 Cal. Wrk. Comp. LEXIS 70, the WCAB issued an en banc decision granting reconsideration of its earlier decision in order to allow for further study of the factual and legal issues of the case and for further proceedings as the board may deem to be appropriate.

In Page v. Barman Transport, Inc., 2014 Cal. Wrk. Comp. P.D. LEXIS 177, the WCAB determined that the WCJ properly awarded medical treatment when the UR process was materially defective pursuant to Dubon v. World Restoration, Inc. (2014) 79 CCC 313 (appeals board en banc).

In Tabaracci v. Waste Management, 2014 Cal. Wrk. Comp. P.D. LEXIS 182, the WCAB awarded spinal surgery based on the opinion of a treating physician.

In Morales v. Ross Stores, 2014 Cal. Wrk. Comp. P.D. LEXIS 175, the WCAB majority held that a defendant did not deny reasonable medical treatment to an applicant when it provided MPN notices to her informing her of the right to change doctors within the MPN, to seek second or third opinions within the MPN and to call an MPN coordinator if she disagreed with a treatment decision.

In Vasquez v. Target Corp., 2014 Cal. Wrk. Comp. P.D. LEXIS 183, the WCAB affirmed a WCJ's decision that a defendant's failure to timely issue MPN notices did not allow an applicant to treat outside of the network when the failure to notice did not result in a denial of care.

TEMPORARY DISABILITY

In King v. Anaheim Police Department, 2014 Cal. Wrk. Comp. P.D. LEXIS 153, the WCAB held that an applicant was not entitled to temporary disability indemnity when she chose to retire even though the employer provided modified work.

PERMANENT DISABILITY

In Hines v. 3T 3C Transportation, 2014 Cal. Wrk. Comp. P.D. LEXIS 150, the WCAB held that a vocational expert's opinion did not constitute substantial evidence to rebut the scheduled rating when he impermissibly relied on nonindustrial conditions to reach his conclusions.

In Brower v. David Jones Construction, 2014 Cal. Wrk. Comp. LEXIS 69, the WCAB issued an en banc decision holding: (1) per LC 4656(c), when a defendant stops paying temporary disability indemnity before an injured worker is determined to be permanent and stationary, the defendant must commence paying permanent disability indemnity based on a reasonable estimate of the injured worker's ultimate level of permanent disability; (2) per LC 4650(b)(1), when an injured worker who is receiving permanent partial disability payments becomes permanent and stationary and is determined to be permanently totally disabled, the defendant must pay permanent total disability indemnity retroactive to the date its statutory obligation to pay temporary disability indemnity terminated; and (3) per LC 4650(b)(1) or LC 4650 (b)(2), COLAs begin on the first day in January after an injured worker becomes entitled to receive permanent disability indemnity.


RETURN TO WORK

In King v. Anaheim Police Department, 2014 Cal. Wrk. Comp. P.D. LEXIS 153, the WCAB held that a defendant is not obligated to offer regular, modified or alternative work when an applicant voluntarily has retired and no longer is an employee.

PENALTIES AND SANCTIONS

In Salem v. County of Riverside, 2014 Cal. Wrk. Comp. P.D. LEXIS 206, the WCAB majority held that a defendant was liable for penalties under LC 5814 when it terminated authorization for an applicant's narcotic medications based on a UR physician's opinion that did not constitute substantial evidence to establish genuine doubt from a medical or legal standpoint.

DISCOVERY AND SETTLEMENT

In Franco v. Clougherty Packing, LLC, dba Farmer John, 2014 Cal. Wrk. Comp. P.D. LEXIS 194, the WCAB held that a defendant did not waive its right to a QME evaluation when it timely objected to a treating physician's permanent and stationary report, even though it did not schedule a QME evaluation.

In Weaver v. University of California, Los Angeles, 2014 Cal. Wrk. Comp. P.D. LEXIS 162, the WCAB affirmed a WCJ's decision that a defendant was not entitled to a new QME on the grounds that the QME failed to make himself available for deposition within 120 days as required by CCR 35.5(f).

In Jarostchuk v. San Francisco 49ers, 2014 Cal. Wrk. Comp. P.D. LEXIS 152, the WCAB affirmed a WCJ's order disallowing a copy service's lien for costs related to mileage, field charges, phone calls, secretarial fees and record reviews.

LITIGATION

In Blackburn v. French Hospital, 2014 Cal. Wrk. Comp. P.D. LEXIS 186, the WCAB denied an applicant's petition for change of venue to the Santa Barbara office because, as a satellite office, it did not constitute an office within the meaning of LC 5501.5.

In  Arends v. URS Federal Support Services, Inc., 2014 Cal. Wrk. Comp. P.D. LEXIS 143, the WCAB granted removal and ordered that defense counsel Seyfarth Shaw was disqualified from representing the employer in a workers' compensation action because the firm previously defended the applicant in civil employment discrimination suits while he was working for the employer.

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.