Case Law Updates for July 2017

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 2: JURISDICTION AND SUBROGATION

In Sywassink v. Pacific Gas and Electric Co., 2017 Cal. Wrk. Comp. P.D. LEXIS 205, the WCAB held that a defendant was not entitled to credit pursuant to LC 3852 et seq for its workers' compensation liability for an applicant's recovery from the National Vaccine Injury Compensation Program (NVICP).

CHAPTER 5: INJURY

In Bass v. State of California, Department of Corrections & Rehabilitation, 2017 Cal. Wrk. Comp. P.D. LEXIS 213, the WCAB upheld a WCJ's finding that an applicant sustained a single cumulative trauma injury to the end of his employment, even though he had two different dates of injury under LC 5412 for his heart and orthopedic injuries.

In Zhu v. WCAB (2017) B278696, the 2nd District Court of Appeal held that an injury suffered by an in-home caretaker for the Department of Social Services (Department) was compensable when she was struck by a car while riding her bike between two patients' houses. 

CHAPTER 7: MEDICAL TREATMENT

In Henry v. Superior Court of California, 2017 Cal. Wrk. Comp. P.D. LEXIS 217, the WCAB held that an applicant was not entitled to temporary partial disability on a wage-loss basis for the time she spent seeking medical treatment during working hours.

In McKenny v. Southern California Edison, 2017 Cal. Wrk. Comp. P.D. LEXIS 200, the WCAB concluded that a defendant could continue disputing the need for medical treatment on threshold issues following a UR denial of care.

In Marciel v. Atwater Elementary School District, 2017 Cal. Wrk. Comp. P.D. LEXIS 199, the WCAB found that an IMR determination was plainly erroneous, and the mistake was not a matter subject to expert opinion when the IMR reviewer denied medical treatment authorized by a defendant's UR.

In Stevens v. Outspoken Enterprises, Inc., 2017 Cal. Wrk. Comp. P.D. LEXIS 228, the WCAB on remittitur from the 1st District Court of Appeal concluded that the applicant's request for housekeeping and personal care services was denied without authority.

CHAPTER 8: COMPENSATION RATE

In Loyd v. Dolan Concrete Construction, 2017 Cal. Wrk. Comp. P.D. LEXIS 198, the WCAB rescinded a WCJ's award for a temporary disability rate of $764 per week because it did not adequately reflect the applicant's earning capacity.


CHAPTER 10: PERMANENT DISABILITY

In Torres v. Greenbrae Management, 2017 Cal. Wrk. Comp. P.D. LEXIS 230, the WCAB held that impairment for an applicant tree trimmer's psychiatric injury was compensable and that the mechanism of his injury constituted a "violent act" pursuant to LC 4660.1(c)(2)(A).

In Cann v. Desert View Auto Auction, 2017 Cal. Wrk. Comp. P.D. LEXIS 214, the WCAB granted removal and rescinded a WCJ's order allowing a court reporter to fully record a defendant's vocational evaluation.

In Hikida v. WCAB (2017) B279412, the 2nd District Court of Appeal held that an employer is responsible for both the medical treatment and any disability arising directly from unsuccessful medical intervention, without apportionment.


CHAPTER 14: DISCOVERY AND SETTLEMENT

In Nedjar v. Parsec, 2017 Cal. Wrk. Comp. P.D. LEXIS 224, the WCAB adopted a WCJ's decision denying a defendant's petition to compel an applicant's twin brother to appear at a mandatory settlement conference (MSC) and to produce certain documents including a Social Security card, and/or resident alien documents and/or documents to demonstrate legal residence.

In Lopez v. County of San Joaquin, 2017 Cal. Wrk. Comp. P.D. LEXIS 197, the WCAB held that an applicant was entitled to be re-evaluated by an AME and a QME in connection with her petition to reopen when she previously received an award based on the physicians' opinions.

In Maya v. All Commercial Industries, 2017 Cal. Wrk. Comp. P.D. LEXIS 223, the WCAB denied reimbursement to a copy service for work done at the request of the applicant's third attorney of record.


CHAPTER 16: TRIAL AND APPEAL

In Hikida v. WCAB (2017) B279412, the 2nd District Court of Appeal held that an applicant's petition for writ of review challenging the WCAB's opinion on apportionment was timely even though she did not appeal the WCAB's original opinion on the issue.