Calif. Case Law Update
Tuesday, January 10, 2012 | 0
The following is a summary of important updates to California workers' compensation law.
THE BUSINESS OF INSURANCE
In Gonzalez v. Hamlin Development Corp., 2011 Cal. Wrk. Comp. P.D. LEXIS 366, the Workers' Compensation Appeals Board held that an insurers' attempt to cancel a workers' compensation policy was improper because it was financed through a third party, which was contrary to the insurer's internal underwriting standards.
INJURY
In Manzano v. County of Sacramento, 2011 Cal. Wrk. Comp. P.D. LEXIS 380, the Appeals Board concluded that a claim was not barred under Labor Code Section 3600(a)(1) when the applicant lost his job pursuant to a policy specifying that if an employee is absent for five consecutive unauthorized days, he or she is deemed to have resigned.
In Lopez v. Superior Forge, 2011 Cal. Wrk. Comp. P.D. LEXIS 327, the appeals board held that even though an applicant's psychiatric claim was barred by the six-month rule of LC 3208.3(d), treatment of his nonindustrial psychiatric condition was necessary to treat his complex regional pain syndrome and reflex sympathetic dystrophy; such treatment, therefore, must be provided as part of the applicant's award of further medical treatment.
In Enriquez v. Nouveur Design, Inc., 2011 Cal. Wrk. Comp. P.D. LEXIS 360, the appeals board concluded that LC 3208.3(d) barred an applicantís psychiatric claim when she injured her hand in a sewing machine one week after she commenced her employment.
In Culp v. United Health Group, 2011 Cal. Wrk. Comp. P.D. LEXIS 357, the appeals board concluded that a salaried employee who was involved in an automobile accident en route to a PTA meeting at her son's school during an extended break did not sustain a compensable injury.
STATUTE OF LIMITATIONS
In Palafox v. Textron Inc., 2011 Cal. Wrk. Comp. P.D. LEXIS 389, the appeals board concluded that the applicant's visits to the company nurse were sufficient to trigger the defendant's obligation to provide a claim form, even though the defendant argued that the applicant received only first aid.
In Young v. City of Ventura Fire Department, 2011 Cal. Wrk. Comp. P.D. LEXIS 408, the appeals board concluded that for a latent specific injury, the date of injury for purposes of the statute of limitations does not occur until the "consequences of which compensation is claimed" as described in LC 5411 manifested themselves, and the applicant reasonably became aware of the industrial causation.
In Clark v. Airborne Express/DHL, 2011 Cal. Wrk. Comp. P.D. LEXIS 308, the appeals board upheld a WCJ's decision that an application for death benefits for a drug overdose alleged to be a compensable consequence of an industrial injury was untimely when the employee's death occurred more than 240 weeks after the date of injury.
MEDICAL TREATMENT
In Hernandez v. Universal Protection Services, 2011 Cal. Wrk. Comp. P.D. LEXIS 375, the appeals board concluded that an interpreter lien claimant failed to meet the burden of proof under Guitron.
In Acosta v. Guildcraft Furniture Manufacturing Co., 2011 Cal. Wrk. Comp. P.D. LEXIS 351, the appeals board held that the lien claimant failed to establish that the interpreter's services were actually, reasonably and necessarily incurred under Guitron. There was no testimony from any of the lien claimant's interpreters, nor from any of the lien claimant's management personnel regarding its procedures and process for arranging the presence of an interpreter at an applicant's medical treatment appointments.
In Saldivar v. Glen Avon Foods, 2011 Cal. Wrk. Comp. P.D. LEXIS 503, the appeals board held that a lien claimant did not meet its burden of proof under Guitron even though the AME used an interpreter.
In Salinas v. Medway Plastics Corp., 2011 Cal. Wrk. Comp. P.D. LEXIS 504, the appeals board held that as long as a lien claimant meets the burden of proof under Guitron, there is no additional condition that the report by the treating physician must constitute substantial evidence as a precondition for reimbursement.
TEMPORARY DISABILITY
In Easterman v. Friedman, 2011 Cal. Wrk. Comp. P.D. LEXIS 359, the appeals board affirmed a WCJ's decision that an applicant was not entitled to TD beyond the limitations established in LC 4656(c) when she suffered a compensable consequence injury during treatment of her original injury ññ the subsequent injury was not a new and separate injury.
PERMANENT DISABILITY
In Edwards v. Caltrans, 2011 Cal. Wrk. Comp. P.D. LEXIS 429, the appeals board found that an applicant was entitled to 100 percent PD when the AME determined that she was permanently disabled from participation in the open labor market.
In Perez v. Orange Plastics, 2011 Cal. Wrk. Comp. P.D. LEXIS 444, the appeals board concluded that an applicant did not prove he was permanently totally disabled because under Ogilvie, nonindustrial factors could not be considered, and the applicant's inability to compete in the open labor market was attributable to his English and literacy skills.
In Cordova v. SCIF (2011) 39 CWCR 291 (panel decision), the appeals board upheld a finding that the applicant was permanently totally disabled even though he did not speak or understand English and even though the doctors reported that he was permanently partially disabled.
In SCIF v. WCAB (Dorsett) (2011) 76 CCC 1138, the 6th District Court of Appeal held that successive injuries to the same body part that become permanent and stationary at the same time no longer may be rated as a single injury; they must be rated separately, except when physicians cannot parcel out the causation of disability.
RETURN TO WORK
In Guerrero v. Costco Wholesale, 2011 Cal. Wrk. Comp. P.D. LEXIS 369, the appeals board ordered a defendant to pay attorney's fees withheld from previously paid VRMA.
DISCOVERY AND SETTLEMENT
In Clements v. George Reed, Inc. (2011) ADJ4227582 (STK0214496) (panel decision), the appeals board denied removal of an order requiring an applicant to disclose business records from a self-owned company.
In Mendoza v. Huntington Hospital, 2011 Cal. Wrk. Comp. P.D. LEXIS 330, the appeals board, following its earlier en banc decision holding that CCR 30(d)(3) was invalid as a matter of law, found that the applicant sustained an injury resulting in a minor abrasion to her arm, but that she did not sustain industrial injury to any other body part, and that the industrial injury did not result in her death.
In Tinoco v. R A Phillips Industries, 2011 Cal. Wrk. Comp. P.D. LEXIS 403, the appeals board found that a defendant engaged in an ex parte communication and upheld an order striking a supplemental report from an AME. The defendant had sent a letter to the AME requesting a supplemental report, but had failed to serve the request on any lien claimants after they became parties because the applicant had settled the underlying claim.
In Hironymous v. Central Anesthesia Service, 2011 Cal. Wrk. Comp. P.D. LEXIS 376, the appeals board rescinded an order for a replacement QME panel when the applicant alleged that the QME was rude, belligerent and hostile, and that he discriminated against her based on her gender and age. But the applicant did not complain of any problems with the examination until after she received and had an opportunity to review his report.
LITIGATION
In Orr v. County of Los Angeles, 2011 Cal. Wrk. Comp. P.D. LEXIS 336, the appeals board held that under CCR 10240(c), an applicant personally must appear at an MSC; it is not enough for the applicant to be represented by an attorney.
In Rodriguez v. Eberhard Roofing, 2011 Cal. Wrk. Comp. P.D. LEXIS 400, the appeals board noted that attorneys Section 3.9 Cancellation of Insurance. The discussion concerns the conditions under which a workers' compensation insurance policy may be canceled.
In Gonzalez v. Hamlin Development Corp., 2011 Cal. Wrk. Comp. P.D. LEXIS 366, the appeals board held that an insurerís attempt to cancel a workers' compensation policy was improper because it was financed through a third party, which was contrary to the insurer's internal underwriting standards.
INJURY
In Manzano v. County of Sacramento, 2011 Cal. Wrk. Comp. P.D. LEXIS 380, the appeals board concluded that a claim was not barred under LC 3600(a)(1) when the applicant lost his job pursuant to a policy specifying that if an employee is absent for five consecutive unauthorized days, he or she is deemed to have resigned.
In Lopez v. Superior Forge, 2011 Cal. Wrk. Comp. P.D. LEXIS 327, the appeals board held that even though an applicant's psychiatric claim was barred by the six-month rule of LC 3208.3(d), treatment of his nonindustrial psychiatric condition was necessary to treat his complex regional pain syndrome and reflex sympathetic dystrophy; such treatment, therefore, must be provided as part of the applicant's award of further medical treatment.
In Enriquez v. Nouveur Design, Inc., 2011 Cal. Wrk. Comp. P.D. LEXIS 360, the appeals board concluded that LC 3208.3(d) barred an applicantís psychiatric claim when she injured her hand in a sewing machine one week after she commenced her employment.
In Culp v. United Health Group, 2011 Cal. Wrk. Comp. P.D. LEXIS 357, the appeals board concluded that a salaried employee who was involved in an automobile accident en route to a PTA meeting at her son's school during an extended break did not sustain a compensable injury.
STATUTE OF LIMITATIONS
In Palafox v. Textron Inc., 2011 Cal. Wrk. Comp. P.D. LEXIS 389, the appeals board concluded that the applicant's visits to the company nurse were sufficient to trigger the defendant's obligation to provide a claim form, even though the defendant argued that the applicant received only first aid.
In Young v. City of Ventura Fire Department, 2011 Cal. Wrk. Comp. P.D. LEXIS 408, the appeals board concluded that for a latent specific injury, the date of injury for purposes of the statute of limitations does not occur until the "consequences of which compensation is claimed" as described in LC 5411 manifested themselves, and the applicant reasonably became aware of the industrial causation.
In Clark v. Airborne Express/DHL, 2011 Cal. Wrk. Comp. P.D. LEXIS 308, the appeals board upheld a WCJ's decision that an application for death benefits for a drug overdose alleged to be a compensable consequence of an industrial injury was untimely when the employee's death occurred more than 240 weeks after the date of injury.
MEDICAL TREATMENT
In Hernandez v. Universal Protection Services, 2011 Cal. Wrk. Comp. P.D. LEXIS 375, the appeals board concluded that an interpreter lien claimant failed to meet the burden of proof under Guitron.
In Acosta v. Guildcraft Furniture Manufacturing Co., 2011 Cal. Wrk. Comp. P.D. LEXIS 351, the appeals board held that the lien claimant failed to establish that the interpreter's services were actually, reasonably and necessarily incurred under Guitron.
In Saldivar v. Glen Avon Foods, 2011 Cal. Wrk. Comp. P.D. LEXIS 503, the appeals board held that a lien claimant did not meet its burden of proof under Guitron even though the AME used an interpreter.
In Salinas v. Medway Plastics Corp., 2011 Cal. Wrk. Comp. P.D. LEXIS 504, the appeals board held that as long as a lien claimant meets the burden of proof under Guitron, there is no additional condition that the report by the treating physician must constitute substantial evidence as a precondition for reimbursement.
TEMPORARY DISABILITY
In Easterman v. Friedman, 2011 Cal. Wrk. Comp. P.D. LEXIS 359, the appeals board affirmed a WCJ's decision that an applicant was not entitled to TD beyond the limitations established in LC 4656(c) when she suffered a compensable consequence injury during treatment of her original injury ññ the subsequent injury was not a new and separate injury.
PERMANENT DISABILITY
In Edwards v. Caltrans, 2011 Cal. Wrk. Comp. P.D. LEXIS 429, the appeals board found that an applicant was entitled to 100 percent PD when the AME determined that she was permanently disabled from participation in the open labor market.
In Perez v. Orange Plastics, 2011 Cal. Wrk. Comp. P.D. LEXIS 444, the appeals board concluded that an applicant did not prove he was permanently totally disabled because under Ogilvie, nonindustrial factors could not be considered, and the applicant's inability to compete in the open labor market was attributable to his English and literacy skills.
In Cordova v. SCIF (2011) 39 CWCR 291 (panel decision), the appeals board upheld a finding that the applicant was permanently totally disabled even though he did not speak or understand English and even though the doctors reported that he was permanently partially disabled.
In SCIF v. WCAB (Dorsett) (2011) 76 CCC 1138, the 6th District Court of Appeal held that successive injuries to the same body part that become permanent and stationary at the same time no longer may be rated as a single injury; they must be rated separately, except when physicians cannot parcel out the causation of disability.
RETURN TO WORK
In Guerrero v. Costco Wholesale, 2011 Cal. Wrk. Comp. P.D. LEXIS 369, the appeals board ordered a defendant to pay attorney's fees withheld from previously paid VRMA.
DISCOVERY AND SETTLEMENT
In Clements v. George Reed, Inc. (2011) ADJ4227582 (STK0214496) (panel decision), the appeals board denied removal of an order requiring an applicant to disclose business records from a self-owned company.
In Mendoza v. Huntington Hospital, 2011 Cal. Wrk. Comp. P.D. LEXIS 330, the appeals board, following its earlier en banc decision holding that CCR 30(d)(3) was invalid as a matter of law, found that the applicant sustained an injury resulting in a minor abrasion to her arm, but that she did not sustain industrial injury to any other body part, and that the industrial injury did not result in her death.
In Tinoco v. R A Phillips Industries, 2011 Cal. Wrk. Comp. P.D. LEXIS 403, the appeals board found that a defendant engaged in an ex parte communication and upheld an order striking a supplemental report from an AME.
In Hironymous v. Central Anesthesia Service, 2011 Cal. Wrk. Comp. P.D. LEXIS 376, the appeals board rescinded an order for a replacement QME panel when the applicant alleged that the QME was rude, belligerent and hostile, and that he discriminated against her based on her gender and age.
LITIGATION
In Orr v. County of Los Angeles, 2011 Cal. Wrk. Comp. P.D. LEXIS 336, the appeals board held that under CCR 10240(c), an applicant personally must appear at an MSC; it is not enough for the applicant to be represented by an attorney.
In Rodriguez v. Eberhard Roofing, 2011 Cal. Wrk. Comp. P.D. LEXIS 400, the appeals board noted that attorneys do not have an absolute right to withdraw from representation at any time, and that an attorney's withdrawal without consent of the client, without court approval and without taking reasonable steps to avoid prejudice to the client could constitute abandonment and subject the attorney to disciplinary proceedings.
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>
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