To keep Sullivan on Comp up to date on a monthly basis, our team dives into each panel decision and new laws to include an explanation of how each case fits within the workers' compensation scheme. Below is a sampling of this month's updates. Complete discussions of these topics can be found on Sullivan on Comp.
CHAPTER 5: INJURY
Section 5.16 Presumption of Injury –– 90-Day Rule. The discussion concerns the presumption that an injury is compensable under LC 5402 if the employer does not deny liability within 90 days of the date the claim form is filed under LC 5401.
In Abea v. Parco, Inc., 2017 Cal. Wrk. Comp. P.D. LEXIS 302, the WCAB granted removal of a WCJ's order setting the matter for trial, even though the defendant objected on the grounds it had not completed discovery. The WCJ believed the case was ripe for trial because the "defendant has already denied the case without need for the discovery at issue." The WCAB rejected the WCJ's order to the extent that it interpreted LC 5402 as placing a limit on the defendant's right to discovery once a claim is denied. It explained that the fact that a defendant denies a claim within 90 days does not mean it should be deemed ready to proceed to trial on the issue of injury at the expiration of the 90-day period. It concluded that the defendant should be allowed to complete the depositions of the applicant and the QME, which had been set before the pretrial conference.
Section 5.28 Post-Termination Defense. The discussion concerns LC 3600(a)(10), which bars claims for compensation filed after notice of termination or layoff, subject to specified exceptions.
In Marroquin v. WCAB, 2017 Cal. Wrk. Comp. LEXIS 65 (writ denied), the WCAB found that an applicant's back injury was barred by LC 3600(a)(10), even though it believed he sustained injury AOE/COE. The claim was filed after he was terminated and the applicant failed to prove that an exception to the statutory bar to post-termination claims applied. The WCAB rejected the applicant's argument that a back brace purchased two days after the injury constituted a pretermination "medical record" that would except the applicant's claim from exclusion to post-termination claims. It did not believe the medical records exception encompassed the purchase of over-the-counter medication or devices. The WCAB also did not find credible the applicant’s allegation that he reported the injury to the defendant. The Court of Appeal denied the applicant's petition for writ of review on the grounds that the WCAB's credibility determinations were entitled to great weight and rejected his claim that the statutory bar to post-termination claims violated his constitutional right to due process.
Section 5.48 Special Mission –– Special Errand. The discussion concerns the "special mission" or "special errand" exception to the going and coming rule.
In Miller v. O'Reilly Auto Parts, 2017 Cal. Wrk. Comp. P.D. LEXIS 319, the WCAB affirmed a WCJ's decision that an applicant's devastating injury while traveling to work was compensable under the special mission exception to the going and coming rule. The applicant worked as a delivery driver/sales clerk and was asked to pick up an ignition switch for a customer from another store on his way home from work, and bring it back to his regular place of work the next morning. The applicant picked up the ignition switch and went home without incident. The next morning, while driving the usual course to his normal place of work, he was involved in a motor vehicle accident that resulted in a severed spine and the loss of use of his lower extremities.
The WCAB concluded that the injury was compensable because the special mission to pick up and deliver the ignition switch was contemplated to be completed over a two-day period — one day to pick up the ignition switch, and one day to deliver it to his normal place of work. The WCAB remanded the case for further development on the applicant's need for home health care.
CHAPTER 7: MEDICAL TREATMENT
Section 7.36 Utilization Review –– Procedures. The discussion concerns the procedures to be used when referring a request for medical treatment through the utilization review process.
In Sephers v. Stanislaus County Fairgrounds, 2017 Cal. Wrk. Comp. P.D. LEXIS 297, the WCAB held that a defendant's utilization review decision was untimely when the UR provider notified the requesting physician that additional information was needed, but on the same day, the UR physician prepared a UR denial stating that the medical records received were sufficient to make a medical determination and no additional medical information was necessary. The WCAB found that because no additional information was required by the UR physician, the defendant was obligated to comply with the five-working-day time limit in LC 4610(g)(1). Because the UR determination was not timely issued and was not timely communicated to the requesting physician within 24 hours of decision, the WCAB concluded that it had jurisdiction over the medical dispute.
In Maxton v. Lefiell Manufacturing, 2017 Cal. Wrk. Comp. P.D. LEXIS 316, the WCAB upheld a WCJ's decision that a defendant was liable for a handicap-adapted vehicle to assist an applicant in his use of a motorized scooter, and that the issue was not subject to the UR/IMR process. The parties agreed that a motorized scooter was medically necessary, but disagreed on how it should be transported.
At trial, the defendant stipulated that it would "come to some form of agreement with [applicant] outside of this trial within the next two months with WCAB jurisdiction reserved over the issue." When the issue was not resolved by the parties, the WCJ awarded the applicant a handicap-adapted vehicle to assist in his use of the scooter. The WCAB rejected the defendant's argument that the issue of how the scooter should be transported was subject to the UR/IMR process. It found that jurisdiction over the issue was exercised pursuant to the parties' stipulation that the issue was to be determined by the WCAB in the absence of their further agreement, and found no good cause to set aside the stipulation.
Section 7.77 Medical Expense –– Illegal Conduct. The discussion concerns the conduct prohibited by medical providers and the consequences of such illegal conduct.
In Mancillas v. County of Los Angeles, 2017 Cal. Wrk. Comp. P.D. LEXIS 293, the WCAB affirmed a WCJ's finding that she was empowered to adjudicate the liens of Dr. Sobol because no order of consolidation had issued per LC 139.21. It explained that eventually Dr. Sobol's liens would be consolidated and heard in a special adjudication unit, but until then, the district offices of the WCAB had jurisdiction to hear the liens in question. The judges also could determine whether or not the liens were associated with the charged criminal conduct and therefore subject to dismissal with prejudice, or were not associated with that conduct, in which case the liens could be litigated and negotiated on their merits. The WCAB concluded that the WCJ properly proceeded to trial on the relevant issues. (Since the WCAB's decision in this case June 30, 2017, Dr. Sobol's liens were consolidated for adjudication and disposition in a special lien proceeding under LC 139.21.)
In Lugo v. County of Los Angeles, 2017 Cal. Wrk. Comp. P.D. LEXIS 306, the WCAB upheld an award that relied on the opinion of Dr. Sobol even though he was suspended from the workers' compensation system based on a fraud conviction pursuant to LC 139.21. The WCAB found that LC 139.21 does not make reports prepared by suspended physicians prior to suspension inadmissible. It believed that if the Legislature wished to make reports prepared by suspended doctors prior to suspension inadmissible, it would have explicitly done so. The WCAB found that no proof was introduced at trial connecting Dr. Sobol's conviction with his treatment in the case or the preparation of the report, such that reliance on the report would be improper.
CHAPTER 9: TEMPORARY DISABILITY
Section 9.14 Time Limits on Payments on or After April 19, 2004. The discussion concerns the limitations on temporary disability indemnity under LC 4656(c).
In Pike v. County of San Diego, 2017 Cal. Wrk. Comp. P.D. LEXIS 321, the panel majority held that when acting on a timely petition to reopen, the WCAB may award temporary disability benefits more than five years from the date of injury for injuries on or after Jan. 1, 2008, provided that the applicant is limited to an aggregate of 104 weeks of benefits. It explained that because the statutory language of LC 4656(c)(2) does not provide that temporary disability benefits may not be paid more than five years from the date of injury, it was reasonable to conclude that the Legislature did not intend to prohibit otherwise temporarily disabled injured workers from receiving the full 104 weeks of benefits if such temporary disability occurs within five years of the date of injury. The dissenting commissioner believed that LC 4656(c)(2) limited TD awards to five years from the date of injury for injuries occurring on or after Jan. 1, 2008. (Note: The defendant filed a petition for writ of review Aug. 18, 2017.)
CHAPTER 10: PERMANENT DISABILITY
Section 10.16 Use of 2013 Permanent Disability Schedule. The discussion concerns the permanent disability schedule for injuries occurring on or after Jan. 1, 2013.
In Guerrero v. Ramcast Steel Fabrication, 2017 Cal. Wrk. Comp. P.D. LEXIS 285, the WCAB held that an applicant was entitled to psychiatric permanent disability as a result of the violent act and catastrophic injury exceptions defined in LC 4660.1(c)(2). His hand was severely crushed in a hydraulic punch press, resulting in amputation of his fingers. The board explained that the mechanism of injury was a violent act as applied in other cases and that a violent act was not limited solely to criminal or quasi-criminal behavior. It then explained that although there was no easy definition of catastrophic injury, the applicant's "severe, mangling injury," which resulted in three-quarters of his hand being amputated, qualified.
In Lopez v. General Wax Co., Inc., 2017 Cal. Wrk. Comp. P.D. LEXIS 291, the WCAB upheld an award of 100 percent permanent total disability when the applicant was injured when her index finger became stuck in a machine and was partially amputated. That resulted in compensable injuries to her psyche and gastrointestinal system, and hypertension. The WCAB found that the applicant's psychiatric impairment was compensable because the injury resulted from a "violent act" for the purposes of LC 4660.1(c). It explained that even if the exception did not apply, any temporary disability would be compensable because LC 4660.1(c) governs collection of permanent disability benefits and does not preclude the collection of temporary disability benefits. The WCAB concluded that vocational rehabilitation evidence supported the finding of permanent total disability.
Section 10.70 Subsequent Injuries Benefits Trust Fund. The discussion concerns the payment of benefits from the Subsequent Injuries Benefits Trust Fund.
In Baker v. WCAB (Guerrero) (2017) 13 Cal. App. 5th 1040, the 6th District Court of Appeal held that the SIBTF must begin payment of benefits at the time the employer's obligation to pay permanent disability benefits begins. The court interpreted the mandate in LC 4751 that SIBTF benefits "shall be paid in addition to" permanent disability benefits to mean that the SIBTF is required to commence payments at the same time as an employer’s obligation to make permanent disability payments begins. The court stated that once permanent disability payments are required for an employee who also qualifies for SIBTF benefits, the SIBTF is obligated to pay benefits “in addition to” the permanent disability benefits.
The court found the SIBTF's argument that it had always commenced payment on the date when the injured worker was declared permanent and stationary was not compelling because of the intervening change in law. It explained that in 2004, the Legislature amended LC 4650 to provide that permanent disability payments commence when temporary disability stops, even if the injury is not deemed P&S. It explained that as a result, the timing for the start of SIBTF benefits necessarily also changed. It also rejected the SIBTF's argument that benefits should begin when the worker is permanent and stationary because the worker's eligibility for benefits cannot be determined until that time. The court explained that whether a worker qualifies for SIBTF benefits was a separate issue from the date when those benefits start. Once it is determined that a worker’s injury qualifies for SIBTF benefits, the proper accrual date for them is the date the employer’s obligation to pay permanent disability began.
CHAPTER 11: RETURN TO WORK
Section 11.4 Supplemental Job Displacement Benefit –– Injuries on or After Jan. 1, 2013. The discussion concerns an employer's liability for the supplemental job displacement benefit under LC 4658.7 for injuries on or after Jan. 1, 2013.
In Sesena v. Residence Inn By Marriott, LLC, 2017 Cal. Wrk. Comp. P.D. LEXIS 320, the WCAB reversed a WCJ and held that an employee may be awarded separate vouchers for separate injuries even though they became permanent and stationary at the same time. It found that LC 4658.7 unambiguously lists an "injury" causing permanent disability as the triggering condition for the availability of a benefit. It found this to be clear statutory language that an injured worker is entitled to a separate voucher for each qualifying injury. The WCAB found that the WCJ erroneously determined the issue by analogy to cases interpreting LC 4656(c) (which relates to temporary disability benefits) and LC 4062.3(j) (which relates to medical-legal evaluations).
Section 11.15 Settlement of LC 132a Claims. The discussion concerns the ability to settle 132a claims as part of a C&R, and how a C&R in which the applicant agreed to resign and not seek further employment does not violate LC 132a.
In Espinoza v. Avis Rent A Car, 2017 Cal. Wrk. Comp. P.D. LEXIS 309, the WCAB upheld a WCJ's decision that an employer did not violate LC 132a when it terminated an employee pursuant to a compromise and release agreement with a voluntary resignation approved eight years earlier. The applicant settled his claim by way of C&R in 2006 with an agreement not to seek re-employment. In 2014, he was rehired and he worked for five months before he was terminated for violating the terms of the C&R. The WCJ concluded that the applicant's termination did not violate LC 132a because the employer intended to correct an erroneous hiring, and the applicant failed to prove that he was discharged or suffered any discrimination by the employer. The WCAB deferred to the WCJ's credibility findings in denying reconsideration.
CHAPTER 14: DISCOVERY AND SETTLEMENT
Section 14.52 Subsequent Evaluations and Additional Qualified Medical Evaluator Panels in Different Specialties. The discussion concerns the process by which the parties may obtain re-evaluations with an AME or panel QME, and evaluations by a physician in a different specialty once a panel QME has been selected for a case.
In Vargas, Gonzalez v. Barrett Business Services, Inc., 2017 Cal. Wrk. Comp. P.D. LEXIS 317, the WCAB concluded that an applicant was entitled to additional QME panels in gastroenterology and otorhinolaryngology when the additional panels were requested by the original QME and the primary treating physician. The WCAB determined that because the referrals were referenced by the QME to determine whether the applicant sustained industrial injuries to additional body parts, the request was not a treatment referral, but was a medical-legal referral. It rejected the WCJ's opinion that the primary treating physician needed to produce a comprehensive medical-legal report prior to recommending a course of action for obtaining additional referrals.
The WCAB explained there are at least two tracks for an applicant to obtain medical-legal evaluations of disputed body parts, the PQME track and the treating physician track. The parties may pursue either or both. If the QME recommends additional evaluations and the treating physician also recommends them, there is a direct and efficient path to obtain additional panels in the recommended specialties under CCR 31.7(b). If the primary treating physician issues a comprehensive medical-legal report, the additional evaluations also may be considered medical-legal expenses if they are incorporated by the primary treating physician in a comprehensive medical-legal report.
CHAPTER 15: PRETRIAL LITIGATION
Section 15.50 Requirement to Appear at Hearings. The discussion concerns the parties and lien claimants who are required to appear at all hearings as well as the penalties for failing to do so.
In Staudt v. University of California Los Angeles, 2017 Cal. Wrk. Comp. P.D. LEXIS 324, the WCAB rescinded a WCJ's order dismissing an applicant's case after she did not personally appear at a mandatory settlement conference. It noted that LC 5700 states that "[e]ither party may be present at any hearing, in person, by attorney, or by any other agent." It found that CCR 10301(u) defined a "hearing" to mean "any trial, mandatory settlement conference, rating mandatory settlement conference, status conference, lien conference, or priority conference at a district office or before the Appeals Board." The WCAB concluded that because the applicant was represented by her attorney at the MSC, she did "appear" for the hearing under LC 5700.
Section 15.71 Legal Representation Before Appeals Board. The discussion concerns a party's right to legal representation in workers' compensation proceedings.
In Thompkins v. Citizens Telecom, 2017 Cal. Wrk. Comp. P.D. LEXIS 300, the WCAB granted an applicant attorney's petition for dismissal as the attorney of record after he had secured two awards of compensation, including for future medical treatment. He asked to be dismissed because the law firm was downsizing and could not continue to represent the applicant in enforcing her medical treatment award. The WCAB found that the attorney diligently and responsibly informed the applicant of the withdrawal, and offered to help transfer enforcement of the award to her, or to another attorney. It also noted that the case was not at a critical stage of the proceedings, such that withdrawal would unduly prejudice the applicant. It concluded that the attorney had a right to withdraw from the case, and informed the applicant that she could contact the information and assistance officer for further assistance.