Sullivan: June 2016 Case Law Update

Thursday, June 2, 2016 | 0

In Hartzheim Dodge Inc. v. WCAB (Navarro) (2016) 81 CCC 362 (writ denied), the WCAB held that an employer was not entitled to credit against its workers’ compensation liability for a discrepancy between an applicant’s civil settlement and the amount reserved as payment for damages resulting from physical injuries and emotional distress.

Michael Sullivan

Business of insurance

In CIGA v. Burwell (2016) 81 CCC 349, the U.S. District Court for the Central District of California rejected CIGA’s assertion that it was not required to reimburse the United States for Medicare benefits paid to individuals whose losses also may be covered by CIGA.

Employment

In Dominguez v. County of Orange, 2016 Cal. Wrk. Comp. P.D. LEXIS 180, the WCAB held that an applicant who was injured while working at The Salvation Army as part of a live-in drug rehabilitation program was an employee of neither The Salvation Army nor the County of Orange.

Chapter 5: Injury

In State of California, Department of Corrections and Rehabilitation (California Men’s Colony) v. WCAB (Van Dyk), 2016 Cal. Wrk. Comp. LEXIS 51 (writ denied), the WCAB concluded that an applicant’s psychiatric injury was compensable when it was predominantly caused by two specific injuries.

In Hollie v. WCAB (2016) 81 CCC 368 (writ denied), the WCAB held that an employer was not liable for an applicant’s injuries incurred while taking classes for continuing education credits to maintain his medical license.

Medical treatment

In Romero v. Stones and Traditions, 2016 Cal. Wrk. Comp. P.D. LEXIS 142, the WCAB rescinded a WCJ’s decision finding that a request for additional information from a physician under CCR 9792.9.1(f) extended the UR time limit only for the treatment modalities for which additional information was requested.

In Favila v. Arcadia Health Care, 2016 Cal. Wrk. Comp. P.D. LEXIS 181, the WCAB held that a UR determination was timely when the defendant requested additional information within five business days of receiving the RFA form and then issued a decision within 14 days following receipt of the form.

In Bissett-Garcia v. Peace and Joy Center, 2016 Cal. Wrk. Comp. P.D. LEXIS 174, the WCAB held that it lacked jurisdiction to decide whether the applicant required home assistance for cooking, cleaning, self-grooming and transportation when the defendant’s UR denial was timely.

In Gonzalez-Ornelas v. County of Riverside, 2016 Cal. Wrk. Comp. P.D. LEXIS 151, the WCAB held that an IMR determination incorrectly denied authorization for Synvisc knee injections based on the mistaken conclusion that there was no documentation that the applicant was suffering from osteoarthrosis in her knees and that she had not responded to conservative treatment.

Temporary disability

In Ortega v. City of Guadalupe, 2016 Cal. Wrk. Comp. P.D. LEXIS 163, the WCAB held that a defendant was not required to pay temporary disability benefits during a period in which it paid full wages to an applicant. 

Discovery and settlement

In Gaona v. Capital Builders Hardware, 2016 Cal. Wrk. Comp. P.D. LEXIS 148, the WCAB held that a defendant waived an applicant’s ex parte communication with an AME by forwarding the disputed communication and report to another AME. The applicant hand delivered a self-procured report and cover letter to a psychiatric AME on the date of a re-evaluation.

In Crane v. State of California, High Desert State Prison, 2016 Cal. Wrk. Comp. P.D. LEXIS 179, the WCAB upheld an order for a new QME panel when the applicant alleged that the QME had a sexual bias against her, and the QME failed to give her the proper admonitions, as required by CCR 40(a)(2).

In Cornejo v. Younique Café Inc., 81 CCC 451, the WCAB en banc upheld its prior decision that BPC 22451(b) exempts a member of the state Bar or his or her employees, agents or independent contractors from the registration and bonding provisions of BPC 22450 and BPC 22455.

In Chaides v. The Kroger Co. dba Ralphs Grocery Co., 2016 Cal. Wrk. Comp. P.D. LEXIS 143, the WCAB majority granted removal and concluded that the QME’s policy that he receive a deposition fee of $1,000 at least 11 business days in advance of any scheduled deposition violated the administrative rules.

In Giron v. Ari Thane Foam Products Inc., 2016 Cal. Wrk. Comp. P.D. LEXIS 150, the WCAB denied an applicant’s petition to strike a QME when he requested payment at $250 per hour for one hour of deposition time and three hours of record review, for a total of $1,000.

Litigation

In California Lien Professionals Association Inc. v. California Department of Industrial Relations (2016) 81 CCC 395 (writ denied), the 2nd District Court of Appeal denied a petition for a writ of mandate filed by lien claimants seeking stay or injunctive relief against the Division of Workers’ Compensation from enforcing LC 4903.06.

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

Michael Sullivan is the founder of Michael Sullivan & Associates LLP, a workers' compensation defense firm with offices throughout California, and author of "Sullivan on Comp," a treatise on California workers' compensation law.