September Case Law Update

Friday, September 12, 2014 | 0

BUSINESS OF INSURANCE

In Green-Steininger v. Image Support Systems, 2014 Cal. Wrk. Comp. P.D. LEXIS 377, the WCAB affirmed a WCJ's decision that CIGA was not entitled to any further reimbursement from a special employer when it established by a preponderance of substantial evidence that moneys distributed to CIGA by the California insurance commissioner's Conservation and Liquidation Office (CLO) specifically exceeded the payments CIGA made administering this case.

In State of California ex rel. Wilson v. Superior Court (2014) 79 CCC 874, the 2nd District Court of Appeal reversed the trial court, which held that IC 1871.7, which makes it unlawful to knowingly employ runners, cappers or steerers, imposed penalties only on proof that a prescription would not have been written but for the unlawful conduct.

INJURY

In Yarde v. EIU of California, 2014 Cal. Wrk. Comp. P.D. LEXIS 399, the WCAB adopted a WCJ's decision that an employee could elect against an insurer even though it was not joined by written order or specifically listed on the application for adjudication when the insurer appeared at three hearings and did not object to the election at the last one.

In Torres v. Cardenas Market, 2014 Cal. Wrk. Comp. P.D. LEXIS 352, the WCAB held that an applicant may not raise the issue of the LC 5402 presumption of compensability for the first time on reconsideration.

In Stone v. City of Pomona, 2014 Cal. Wrk. Comp. P.D. LEXIS 366, the WCAB affirmed a WCJ's decision that a police officer's injury while participating in the Police Olympics was not compensable.

In Koscki v. Consolidated Freightways, Inc., 2014 Cal. Wrk. Comp. P.D. LEXIS 323, the WCAB rescinded an award of 84% permanent disability when it did not apportion to the applicant's litigation stress.

STATUTES OF LIMITATIONS

In Nieblas v. Ruiz Foods, 2014 Cal. Wrk. Comp. P.D. LEXIS 385, the WCAB reversed a WCJ and concluded that an applicant's claim was barred by the statute of limitations under LC 5405 because it was not filed within one year of the date of injury or the last date on which medical benefits were furnished, even though the employer had notice of a slip-and-fall accident, received first aid with a company nurse and later missed some work.

In Araujo v. Centimark Corp., 2014 Cal. Wrk. Comp. P.D. LEXIS 359, the WCAB concluded that there was no good cause to reopen an applicant's injury to include injury to the left lower extremity and the left upper extremity because earlier findings and an award determined that he did not sustain injury to these body parts.

In Richard v. Houston Astros, 2014 Cal. Wrk. Comp. P.D. LEXIS 332, the WCAB affirmed a WCJ's decision that an applicant's claim for a cumulative trauma injury from Feb. 2, 1971, to April 27, 1984, was not barred by the statute of limitations even though an application for adjudication was filed Aug. 1, 2007, dismissed 23 days later at the applicant's request and another application was filed for the same injury Oct. 12, 2008.

MEDICAL TREATMENT

In Gonzalez v. Consolidated Disposal Services/Republic Services, 2014 Cal. Wrk. Comp. P.D. LEXIS 348, the WCAB concluded that the applicant presented substantial evidence supporting the need for home health-care services.

In Lobo v. County of San Bernardino, 2014 Cal. Wrk. Comp. P.D. LEXIS 353, the WCAB concluded that an applicant was entitled to home health-care services under LC 4600(h).

In Otten v. Cardinal Newman High School, 2014 Cal. Wrk. Comp. P.D. LEXIS 358, the WCAB rescinded a WCJ's decision awarding a L4-5 sacral radio frequency rhizotomy injection when the applicant did not meet his burden of proving that the defendant's UR determination suffered from a material defect that undermined the integrity of the UR process and did not present substantial evidence proving that the requested treatment was reasonable medical treatment.

In Bertrand v. County of Orange, 2014 Cal. Wrk. Comp. P.D. LEXIS 342, the WCAB concluded that a July 20, 2004, stipulations with request for award, in which the parties stipulated that all future disputes regarding medical treatment would be referred to the AME, did not nullify the employer's right to send a request for treatment to utilization review, but did result in a bypass of the independent medical review process if the applicant objected to the UR determination.

In Smith v. Plant Construction, 2014 Cal. Wrk. Comp. P.D. LEXIS 391, the WCAB rescinded a WCJ's decision awarding medical treatment based on a materially defective UR determination when the treating physician's request for treatment did not include reports, studies or other information substantiating the need for the requested treatment, and the UR physician documented attempts to obtain the information before denying the requested treatment.

In Torres v. Contra Costa Schools Insurance Group, 2014 Cal. Wrk. Comp. LEXIS 111, the WCAB issued a significant panel decision holding that, per LC 4610.6(h) and CCR 10450(e), an appeal of an IMR determination must include a verification completed under penalty of perjury.

In Figueroa v. Los Angeles Airport Marriott/Marriott Hotel Services, Inc., 2014 Cal. Wrk. Comp. P.D. LEXIS 376, the WCAB affirmed a WCJ's decision that an employer's one-month delay in providing MPN access information and scheduling evaluations within the network did not entitle an applicant to treat outside of the MPN when her attorney's form letters were confusing as to whether the applicant was seeking to change physicians within the MPN or select a physician outside of it.

RETURN TO WORK

In Salas v. IDS USA West, Inc., 2014 Cal. Wrk. Comp. P.D. LEXIS 364, the WCAB concluded that an undocumented worker's claim was not barred by the post-termination defense under LC 3600(a)(10) because the date of injury under LC 5412 was after the date of termination, and that she was entitled to temporary disability indemnity during the period she could not perform her usual and customary duties.

In Lacheta v. Olympic Security Services, 2014 Cal. Wrk. Comp. P.D. LEXIS 324, the WCAB held that an applicant did not meet her burden of proof and failed to establish a prima-facie case of lost wages under LC 132a.

In Salas v. Sierra Chemical Co. (2014) 79 CCC 782, the California Supreme Court held that an employee's undocumented status did not preclude a claim under the FEHA.

DEATH BENEFITS

In Partida, Haro v. Go Native, 2014 Cal. Wrk. Comp. P.D. LEXIS 341, the WCAB affirmed a WCJ's award of death benefits at $600 per week, but amended the weekly amount of the additional minors' periodic death benefit under LC 4703.5 from $600 per week to the stipulated TTD rate of $313.23 per week.

DISCOVERY AND SETTLEMENT

In County of San Bernardino v. WCAB (Foroughi), 2014 Cal. Wrk. Comp. LEXIS 107 (writ denied), the WCAB granted removal of a WCJ's order denying an applicant's petition for a protective order and excluded a supervisor from attending her deposition because his attendance would result in oppression within the meaning of CCP 2025.420.

LITIGATION

In Bank of America v. WCAB (Chand), 2014 Cal. Wrk. Comp. LEXIS 105 (writ denied), the WCAB affirmed a WCJ's decision that relied on the report of a vocational expert listed as a defense exhibit on the pretrial conference statement, even though the defendant objected to it at the time of trial.

In Martinez v. Mainstay Business Solutions, 2014 Cal. Wrk. Comp. P.D. LEXIS 355, the WCAB affirmed an order dismissing three lien claimants' liens for failure to appear at a lien trial, per CCR 10562, even though a hearing representative was physically present at the lien trial.

In Solano v. WCAB, 2014 Cal. Wrk. Comp. LEXIS 102 (writ denied), the WCAB upheld a WCJ's decision that because the defendant scheduled the applicant's deposition, it had the right to select the interpreter for it.

AWARDS AND APPEALS

In Pineda v. Pepsi Beverage Co., 2014 Cal. Wrk. Comp. P.D. LEXIS 330, the WCAB held that a lien claimant's petition for reconsideration was denied by operation of law when it did not act on the petition within 60 days as required by LC 5909.

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 LLP, a workers' compensation defense firm with six offices in California, and author of "Sullivan on Comp," a treatise on California workers' compensation law.