Case Law Update

Monday, August 6, 2012 | 0

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

THE CALIFORNIA SYSTEM

In Garau v. WCAB, 2012 Cal. Wrk. Comp. LEXIS 74 (writ denied), the Workers' Compensation Appeals Board held that inactive members of the State Bar of California are nevertheless members of the Bar association, and a workers' compensation judge (WCJ) may adjudicate a case while on inactive status.

THE BUSINESS OF INSURANCE

In Samuel v. City and County of San Francisco, 2012 Cal. Wrk. Comp. P.D. LEXIS 156, the WCAB upheld a WCJ's decision that an applicant's conviction of fraud under IC 1871.4 did not bar the collection of temporary disability under IC 1871.5 because an injured worker is barred from receiving compensation only if it stems directly from the fraudulent misrepresentation.

INJURY

In Williams v. City of Pasadena, 2012 Cal. Wrk. Comp. P.D. LEXIS 216, the WCAB held that an applicant's claim for hypertensive heart disease was not barred by an earlier award for hypertension because even though they were caused by the same exposure, hypertension and hypertensive heart disease constitute distinct injuries.

In Rosas v. S&S Resort Management, 2012 Cal. Wrk. Comp. P.D. LEXIS 255, the WCAB held that the presumption of compensability under LC 5402 did not apply because it was raised for the first time on reconsideration.

In Thomas v. Los Angeles County Metropolitan Transit Authority, 2012 Cal. Wrk. Comp. P.D. LEXIS 158, the WCAB held that a bus driver's claim was not barred by LC 3600(a)(7) when got into an altercation with a passenger who refused to pay the entire fare and spat in his face.

In Navarro v. Allied Waste of Sacramento, 2012 Cal. Wrk. Comp. P.D. LEXIS 202, the WCAB held that an applicant's claims were not barred by LC 3600(a)(10) when the defendant had notice of the injuries before the applicant's termination because: (1) the injuries were witnessed by co-workers, and their reports were consistent with the applicant's account; (2) the injuries were reported promptly to supervisors and recognized as significant enough to merit treatment; and (3) medical treatment was offered, albeit declined.

In Arias v. Farmers Rice Cooperative, 2012 Cal. Wrk. Comp. P.D. LEXIS 222, the WCAB held that an applicant's claim was barred by LC 3208.3(d) because he was a seasonal or casual employee and worked for the defendant only for 154 days over a six-year period.

In Dove v. Production Framing Systems, 2012 Cal. Wrk. Comp. P.D. LEXIS 175, the WCAB held that a carpenter was injured in a sudden and extraordinary employment event when a balloon wall unexpectedly fell on him.

In Guadarrama v. Prometheus Management Group, 2012 Cal. Wrk. Comp. P.D. LEXIS 183, the WCAB majority held that an applicant's injury to her hand was not a result of an extraordinary event within the meaning of LC 3208.3(d) when she was struck by a basketball thrown by one of the children she was supervising.

STATUTES OF LIMITATIONS

In Rollins v. County of Solano, 2012 Cal. Wrk. Comp. P.D. LEXIS 155, the WCAB found no basis to set aside a compromise and release at an applicant's request when the evidence established that her attorney explained the settlement to her at the time she signed it, she failed to present substantial medical evidence on the issue of incompetency and she entered into the agreement based on a unilateral mistake of fact that is not grounds on which a C&R can be set aside.

COMPENSATION RATE

In Salcido v. California Department of Corrections and Rehabilitation, 2012 Cal. Wrk. Comp. P.D. LEXIS 257, the WCAB held that an applicant's earnings as a vocational teacher on the date of injury reflected his earning capacity and should be used to calculate his TD benefits rather than his subsequent lower earnings as a warehouse supervisor, even though he was notified that he would be transferred to the warehouse position before the injury.

TEMPORARY DISABILITY

In Brown v. Master Plumbing, 2012 Cal. Wrk. Comp. P.D. LEXIS 169, the WCAB rescinded a WCJ's order and concluded that an applicant was not entitled to temporary disability because he was terminated for cause while modified duty was available.

PERMANENT DISABILITY

In Rodrigues v. WCAB, 2012 Cal. Wrk. Comp. LEXIS 81 (writ denied), the WCAB concluded that an applicant failed to meet her burden of rebutting the 2005 Schedule pursuant to Ogilvie.

RETURN TO WORK

In Marincik v. City of Santa Rosa, 2012 Cal. Wrk. Comp. P.D. LEXIS 199, the WCAB held that when an employer makes a timely offer of work within 60 days of receiving notice that the employee's disability is permanent, the employer is entitled to a reduction of 15 percent in the permanent indemnity due per LC 4658(d)(3)(A), regardless of whether the employee has returned to work.

In Parker v. The Georgia Force, 2012 Cal. Wrk. Comp. P.D. LEXIS 250, the WCAB held that an applicant was entitled to a 15 percent increase in permanent disability benefits from the end of the employer's 60-day period to offer regular, modified or alternative work because the employer had not offered work within the 60-day period.

DEATH BENEFITS

In Will v. State of California, Department of Forestry and Fire Protection, 2012 Cal. Wrk. Comp. P.D. LEXIS 164, the panel majority affirmed an award of continuation benefits to a decedent's minor children pursuant to LC 4703.5(a), even though his widow was a surviving totally dependent parent.

In Zavala, Ochoa v. Sonoma Compost Co. LLC, 2012 Cal. Wrk. Comp. P.D. LEXIS 166, the WCAB held that a grandchild did not qualify for continuing or augmented benefits through age 18 pursuant to LC 4703.5 because a "grandchild" is not listed as a presumed total dependent in LC 3501(a) and the grandchild's mother was a "surviving totally dependent parent" as described in LC 3501(a).

DISCOVERY AND SETTLEMENT

In Loftin v. County of Sacramento, 2012 Cal. Wrk. Comp. P.D. LEXIS 245, the WCAB held that under LC 4062.1(b), a defendant was not entitled to submit a QME request form or designate the specialty of the QME because, although the defendant informed the applicant of her option to obtain a panel of QMEs, it did not "request" that she submit the form to obtain the panel.

In Charkchyan v. Glendale Unified School District, 2012 Cal. Wrk. Comp. P.D. LEXIS 171, the WCAB rescinded a WCJ's order granting an applicant's request for a new QME in psychiatry when she had been evaluated by a psychiatrist at the referral of the orthopedic QME and had failed to object before issuance of that report.

LITIGATION

In Sarmiento (Perez) v. Payroll Management Group, Inc., 2012 Cal. Wrk. Comp. P.D. LEXIS 258, the WCAB concluded that an employer is entitled to file a declaration of readiness to proceed to an expedited hearing to determine an applicant's entitlement to medical treatment, and that the determination on medical treatment may include, if appropriate, a decision on whether the defendant's MPN was validly established and properly noticed.

In Burton v. Long Beach Unified School District, 2012 Cal. Wrk. Comp. P.D. LEXIS 170, the WCAB granted removal of a WCJ's order taking a case off calendar to allow an applicant to obtain a new QME in psychiatry because the defendant was substantially prejudiced by the WCJ's order.

In Viale v. Lockheed Martin Corp. (2012) ADJ3845272, ADJ1335789 (panel decision), the WCAB awarded $90,000 in attorneys' fees, which was 14 percent of total funds for a compromise and release, including funds for a Medicare Set-Aside account.

In Johnston, Johnston-Martin v. City of El Monte, 2012 Cal. Wrk. Comp. P.D. LEXIS 241, the WCAB rescinded a 15 percent attorneyís fee award and awarded fees of 20 percent when the applicant's attorney met his burden to show that the higher fee is reasonable.

In Stambuk v. WCAB (Sanchez), 2012 Cal. Wrk. Comp. LEXIS 82 (writ denied), the WCAB upheld an order of $2,500 in sanctions under LC 5813 against an interpreter who approached an applicant at a status conference and offered him $40 to tell the WCJ that he had limited ability to speak and understand English and that he needed an interpreter, even though the applicant was able to communicate without the assistance of an interpreter.

AWARDS AND APPEALS

In Weitnauer v. Sacramento County Sheriff's Department, 2012 Cal. Wrk. Comp. P.D. LEXIS 215, the WCAB upheld a WCJ's decision denying an applicant's petition for commutation to purchase a motor home.

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>