December 2013 Case Law Update

Wednesday, December 11, 2013 | 0

JURISDICTION AND SUBROGATION

In Connecticut Sun v. WCAB (Johnson) (2013) B249201, the 2nd District Court of Appeal held that California did not have sufficient interest to apply its workers' compensation law and to retain jurisdiction over a case involving a professional basketball player who was not employed by a California team, never resided in California, played one professional game in California out of 34 games played during the 2003 season and suffered no specific injury in California.

In Carrabello v. RGW Construction, 2013 Cal. Wrk. Comp. P.D. LEXIS 413, the WCAB held that it had jurisdiction to determine the proper distribution of third-party settlement proceeds between an applicant and an employer.

INJURY

In Brown v. Save Mart Supermarkets, 2013 Cal. Wrk. Comp. P.D. LEXIS 412, the WCAB majority concluded that an applicant's claim for the death of her husband was barred by the going and coming rule when he was killed driving home from work in a motor vehicle accident 0.6 mile from the work location. The applicant claimed that her husband was exposed to a quantitatively greater risk than the general public because he had no way to leave work at night except by traveling down a poorly lit road with significant truck traffic.

STATUTES OF LIMITATIONS

In Benavidez v. Sanchez, 2013 Cal. Wrk. Comp. P.D. LEXIS 410, the WCAB majority rescinded a WCJ's decision to reopen an award on the grounds of new and further disability when the applicant sustained an admitted injury in 2005, was evaluated in 2007 by an AME who issued a report, had an abnormal EMG May 9, 2008, and settled his claim in a stipulated award July 23, 2008.

In Verizon Communications v. WCAB (Head), 2013 Cal. Wrk. Comp. LEXIS 184 (writ denied), the WCAB held that it had jurisdiction to award an applicant 100 percent disability more than five years after the date of injury, because the parties, as part of a stipulated award, expressly deferred issues regarding validity and rebuttal of the 2005 PD schedule because Ogilvie was pending on appeal.

In Castro v. Eden Rose Farms, 2013 Cal. Wrk. Comp. P.D. LEXIS 415, the WCAB upheld a WCJ's decision that an applicant's claim for serious and willful misconduct under LC 4553 was barred by LC 5407.

MEDICAL TREATMENT

In Salguero v. Charles Gemeiner Cabinets, 2013 Cal. Wrk. Comp. P.D. LEXIS 450, the WCAB upheld a WCJ's decision that an applicant was not entitled to round-the-clock home care that was recommended by the applicant's psychiatric treater and his orthopedic primary treating physician even though the defendant failed to issue a UR denial.

In Valdez v. WCAB (2013) 78 CCC 1209, the California Supreme Court affirmed the Court of Appeal's decision that LC 4616.6 did not narrow employees' rights to seek treatment from doctors of their choice at their own expense under LC 4605, or bar those doctors' reports from admission in disability hearings.

In Martinez v. New French Bakery, 2013 Cal. Wrk. Comp. P.D. LEXIS 438, the WCAB rescinded a WCJ's decision ordering a defendant to authorize treatment outside of an MPN because the applicant failed to carry his burden to prove a "denial of medical care" under LC 4616.3(b).

In Robledo v. San Diego Unified School District, 2013 Cal. Wrk. Comp. P.D. LEXIS 448, the WCAB upheld a WCJ's decision awarding the applicant costs for treatment outside of the MPN through the date she was transferred back into the MPN.

PERMANENT DISABILITY

In Meza v. Perma Steel, 2013 Cal. Wrk. Comp. P.D. LEXIS 441, the WCAB affirmed a WCJ's decision that the applicant failed to sustain his burden of proof that he was 100 percent permanently totally disabled.

In Brewer v. California Department of Corrections High Desert State Prison, 2013 Cal. Wrk. Comp. P.D. LEXIS 411, the WCAB rescinded a WCJ's finding that an applicant had 100 percent PD based on a total loss of earning capacity because the decision failed to account for apportionment by the AMEs. The WCJ relied on a vocational expert's opinion that the applicant suffered a total loss of future earning capacity, even though the expert testified that he did not address apportionment.

DEATH BENEFITS

In MacDonald v. City of San Rafael, 2013 Cal. Wrk. Comp. P.D. LEXIS 433, the WCAB majority held that a decedent's adult sons were not partial dependents entitled to death benefits per LC 4702(a)(2) based on monthly student loan payments.

DISCOVERY AND SETTLEMENT

In Gramajo v. Cain's Tire, Inc., 2013 Cal. Wrk. Comp. P.D. LEXIS 423, the WCAB denied removal of a WCJ's order requiring the defendant to produce witness statements prior to the applicant's deposition.

In Snow v. Health Net, Inc., 2013 Cal. Wrk. Comp. P.D. LEXIS 452, the WCAB granted removal of an order requiring an applicant to release the records of a licensed clinical social worker (LCSW) even though the applicant alleged injury to her psyche.

LITIGATION

In Angelotti Chiropractic, Inc. v. Baker (2013) 78 CCC 1218, the U.S. District Court for the Central District of California issued an order for a preliminary injunction restraining the Department of Industrial Relations from enforcing the lien activation fee under LC 4903.06 against any lien claimant.

AWARDS AND APPEALS

In Martinelli v. County of Monterey JBWCP, 2013 Cal. Wrk. Comp. P.D. LEXIS 436, the WCAB held that an employer was liable for interest and penalties for an unreasonable delay in the payment of interest on a settlement.

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.