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Case Law Updates for August 2017

Posted by Michael W. Sullivan on Aug 22, 2017 9:30:00 AM

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 4: EMPLOYMENT

In Chappin v. Peninsula Sports, Inc., 2017 Cal. Wrk. Comp. P.D. LEXIS 258, the WCAB held that a teacher, who was injured while officiating a high school football game, was an employee of Peninsula Sports, which supplied sports officials to local entities. 

 

CHAPTER 5: INJURY

In Lapesarde v. California Department of Corrections and Rehabilitation, 2017 Cal. Wrk. Comp. P.D. LEXIS 269, the WCAB held that a licensed vocational nurse's injury was not compensable under the special mission exception to the going and coming rule when he was not credible as to whether the extra hours he worked were undertaken at the request of or for the benefit of the employer. 

In Steil v. Santa Barbara Community College District, 2017 Cal. Wrk. Comp. P.D. LEXIS 275, the WCAB held that a college tutor sustained a compensable injury when he was injured while skateboarding to an unscheduled and unauthorized tutoring session. 

 

CHAPTER 7: MEDICAL TREATMENT

In Payne v. Federal Express, 2017 Cal. Wrk. Comp. P.D. LEXIS 243,  the WCAB held that a 2003 compromise and release, which included a specific agreement to use an AME to determine medical treatment disputes, precluded the use of the IMR process to resolve a treatment dispute. 

In Barragan v. T&T Marketing Services, Inc., 2017 Cal. Wrk. Comp. P.D. LEXIS 233, the WCAB upheld an IMR determination that a prescription for Norco was not medically necessary and appropriate, based on the 2016 MTUS Chronic Pain Medical Treatment (CPMT) Guidelines and the 2016 MTUS Opioids Treatment Guidelines. 

In Callejo v. Trinity Building Maintenance, 2017 Cal. Wrk. Comp. P.D. LEXIS 234, the WCAB upheld a WCJ's determination that a defendant's failure to comply with an applicant's request for a medical access assistant to set up an appointment for him with an MPN physician resulted in a denial of care. 

In Enciso v. Toys "R" Us, 2017 Cal. Wrk. Comp. P.D. LEXIS 262, the WCAB held that a WCJ erroneously found that a lien by First Line Health Los Angeles was stayed by operation of LC 4615 based on an indictment of one of the lien claimant's owners, Dr. David Johnson.

 

CHAPTER 10: PERMANENT DISABILITY

In Nowlin v. City of Pacific Grove, 2017 Cal. Wrk. Comp. P.D. LEXIS 274, the WCAB rescinded a 100 percent permanent total disability award based on LC 4662(a)(2) when the evidence did not support the WCJ's finding that applicant lost the use of both hands.

In Jansen v. FolgerGraphics, 2017 Cal. Wrk. Comp. P.D. LEXIS 241, the WCAB rejected an applicant's contention that, pursuant to LC 4661.15, he was entitled to payment of retroactive permanent total disability (PTD) benefits at the current permanent total disability rate, and held that LC 4661.5 does not affect the rate of PTD payments paid beyond two years from the applicant's permanent and stationary date.

 

CHAPTER 14: DISCOVERY AND SETTLEMENT

In Perez v. Roman Catholic Bishop of San Jose, 2017 Cal. Wrk. Comp. P.D. LEXIS 270, the WCAB upheld a WCJ's decision ordering disclosure of investigators' reports regarding surveillance. 

In Chavez v. Frank Fiala Roofing, 2017 Cal. Wrk. Comp. P.D. LEXIS 235, the WCAB quashed a defendant's subpoena for deposition of the applicant's wife on the grounds that the subpoena was procedurally deficient and on the grounds of the marital privilege under Evidence Code 970 and Evidence Code 980.

In Camberos v. Lyon, et al., dba Taco Bell, 2017 Cal. Wrk. Comp. P.D. LEXIS 256, the WCAB held that if an unrepresented applicant was evaluated by a panel QME but the evaluator was replaced after the applicant gained representation, the procedures for selecting a QME under LC 4062.2 would apply.

In Chand v. Macy's, 2017 Cal. Wrk. Comp. P.D. LEXIS 257, the WCAB denied a defendant's petition for removal challenging a WCJ's order denying the defendant's request to quash the applicant's subpoena duces tecum

 

CHAPTER 15: PRETRIAL LITIGATION

In Vargas v. Becker, Becker Construction, 2017 Cal. Wrk. Comp. P.D. LEXIS 276, the WCAB allowed an applicant's wife to testify at trial even though she was not disclosed at the MSC when her testimony was needed to confirm the applicant's identity.

 

CHAPTER 16: TRIAL AND APPEAL

 In Vargas v. Becker, Becker Construction, 2017 Cal. Wrk. Comp. P.D. LEXIS 276, the WCAB held that a WCJ did not err in allowing an applicant to testify remotely, from Mexico, on an iPhone and/or iPad using Apple's FaceTime application. 

 

Topics: Case Law Updates

Can the Deposition of an Injured Worker's Spouse be Compelled in Workers' Compensation Proceedings?

Posted by Sure S. Log on Aug 21, 2017 9:00:00 AM

The law establishes a marital privilege protecting a person from testifying against his or her spouse. Although this privilege is commonly used in criminal proceedings, it applies to more than that.

 Evidence Code § 970 states that "a married person has a privilege not to testify against his spouse in any proceeding." Evidence Code § 971 states that "a married person whose spouse is a party to a proceeding has a privilege not to be called as a witness by an adverse party." Additionally, Evidence Code § 980 states that "a spouse ...  whether or not a party, has a privilege during the marital or domestic partnership relationship." Accordingly, this privilege also applies in workers' compensation proceedings.

 The marital privilege, however, is not absolute. The privilege may be waived if a person chooses to testify against his or her spouse. If a spouse testifies against an injured worker in a case, the spouse may not claim the marital privilege in those proceedings. (Evid. Code, § 973(a).)

 The non-party spouse may also be compelled to testify in certain situations. The privilege does not apply if the communication was made to enable or aid anyone to commit or plan to commit a crime or a fraud. (Evid. Code, § 981.) Also, Evidence Code § 973(b) states, "There is no privilege under this article in a civil proceeding brought or defended by a married person for the immediate benefit of his spouse or of himself and his spouse."

 The question then is whether workers' compensation benefits are for the "the immediate benefit" of a spouse under Evidence Code § 973(b) allowing the spouse to be deposed in the workers' compensation proceedings. Unfortunately, the question has not been affirmatively answered. The courts have disagreed on when civil damages are for the immediate benefit of a non-party spouse.

 In Duggan v. Superior Court of Napa County (1981) 127 Cal. App. 3d 267, the First District Court of Appeal held a spouse was not a person for whose immediate benefit an action was brought solely because she had a potential community property interest in civil recovery. The court believed any claim to a community property interest in would be against party spouse, rather than the opposing party in the civil suit.

 The following year, however, in Hand v. Superior Court of San Joaquin County (Boles) (1982) 134 Cal. App. 3d 436, the Third District Court of Appeal reached a different conclusion. It held that personal injury damages are community property for the "immediate benefit" of the noninjured spouse, subjecting the noninjured spouse to a deposition.

Because workers' compensation benefits received during the marriage also constitute community property (see Raphael v. Bloomfield (2003) 113 Cal. App. 4th 617), it is arguable that workers' compensation benefits are for the immediate benefit of the noninjured spouse for the purposes of Evidence Code § 973(b).

 It has been over 25 years since these cases were decided, and the issue remains unresolved. No other appellate level decisions have addressed the issue. However, in Chavez v. Frank Fiala Roofing (2017) 2017 Cal. Wrk. Comp. P.D. LEXIS 235, the WCAB addressed the Evidence Code § 973(b) exception to the marital privilege as it applied to workers' compensation proceedings. The WCAB noted that the defendant cited Hand to support its argument that workers' compensation benefits were for the immediate benefit of the non-party spouse, but relied on Duggan to support its opinion that the non-party spouse could not be compelled to testify under Evidence Code § 973(b).

  Because there was a split in authority, the WCAB in Chavez had authority to choose between the conflicting decisions. Because there is no binding authority, it remains an open issue as to whether a non-party spouse can be compelled to testify under Evidence Code § 973(b).

 Nevertheless, employers seeking to depose an injured worker's spouse will likely face a significant hurdle. Without addressing the exception in Evidence Code § 973(b), the WCAB has demonstrated that it is reluctant to allow employers to depose an injured workers' spouse. (See Hershewe v. WCAB (Clabaugh) (2002) 67 CCC 1198 (writ denied); Zenith Insurance Co. v. WCAB (Mota) (2012) 77 CCC 200 (writ denied).)

 Unless further case law develops, it is likely that the WCAB will continue to rely on Duggan to find that workers' compensation benefits are not for the immediate benefit of the non-injured spouse under Evidence Code § 973(b) and deny employers' efforts to depose the non-injured spouse.

Topics: Case Law Updates

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