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Case Law Updates for September 2017

Posted by Michael W. Sullivan on Sep 12, 2017 6:00:00 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 5: INJURY

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." 

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.

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. 

 

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. 

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. 

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.

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. 

 

CHAPTER 9: TEMPORARY DISABILITY

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. 

 

CHAPTER 10: PERMANENT DISABILITY

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). 

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. 

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. 

 

CHAPTER 11: RETURN TO WORK

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. 

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. 

 

CHAPTER 14: DISCOVERY AND SETTLEMENT

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. 

 

CHAPTER 15: PRETRIAL LITIGATION

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. 

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. 

 

Topics: Case Law Updates

Psychiatric Impairment Under Labor Code § 4660.1(c)

Posted by Sure S. Log on Sep 11, 2017 8:51:35 AM

 

      Labor Code § 4660.1 was enacted as a part of SB 863 to further the Legislature's effort to reduce workers' compensation costs. Under § 4660.1(c), "[T]here shall be no increases in impairment ratings for sleep dysfunction, sexual dysfunction, or psychiatric disorder, or any combination thereof, arising out of a compensable physical injury." Section 1 of SB 863 explains that "in enacting subdivision (c) of Section 4660.1 of the Labor Code, the Legislature intends to eliminate questionable claims of disability when alleged to be caused by a disabling physical injury arising out of and in the course of employment …"     

As a result, in the years after SB 863 took effect in 2013, practitioners saw fewer filings of add-on claims for psychiatric disability. SB 863, however, did not eliminate add-on psychiatric claims entirely. It was intended only to "eliminate questionable claims of disability." The WCAB has increasingly limited the psychiatric claims barred by § 4660.1(c).

      First, the WCAB has held that § 4660.1(c) bars add-on claims of permanent impairment only when they arise out of a compensable physical injury. That is, a psychiatric impairment is barred by § 4660.1(c) only if it is a compensable consequence of a physical injury. If the psychiatric impairment arises directly from an accident, as opposed to physical injuries from the accident, § 4660.1(c) is inapplicable. (See Allen v. Carmax, 2017 Cal. Wrk. Comp. P.D. LEXIS 303.)

      Second, even if a psychiatric impairment flows from a physical injury, under § 4660.1(c)(2), the impairment may be compensable if it resulted from either: (A) being a victim of a violent act or being directly exposed to a significant violent act within the meaning of § 3208.3; or (B) a catastrophic injury, including, but not limited to, loss of limb, paralysis, severe burn or severe head injury.

      With respect to the violent act exception, the WCAB has adopted a broad definition of the term. It has held that a violent act is not limited to criminal or quasi-criminal activity, and may include other acts characterized by strong physical force, extreme or intense force or are vehemently or passionately threatening. So the WCAB has applied the exception to motor vehicle accidents (Larsen v. Securitas Security Services (2016) 81 CCC 770; Madson v. Michael J. Cavaletto Ranches, 2017 Cal. Wrk. Comp. P.D. LEXIS 165) and a tree trimmer's fall from a 20-foot tree (Torres v. Greenbrae Management, 2017 Cal. Wrk. Comp. P.D. LEXIS 230).

      As for a catastrophic injury, the WCAB has recognized that there is no easy definition of the term. But it will apply the exception on a case-by-case basis when appropriate. In one case, a worker’s hand was crushed in a hydraulic press, causing a “severe, mangling injury” that resulted in partial amputation. The WCAB found that the accident qualified as a catastrophic injury (Guerrero v. Ramcast Steel Fabrication, 2017 Cal. Wrk. Comp. P.D. LEXIS 285).

      An injured employee, then, has two paths toward obtaining permanent disability for a psychiatric injury. Psychiatric impairment may be compensable either because it arises directly from an injury or employment events, or because it satisfies the WCAB's broad definitions of a violent act or catastrophic injury.

      In addition, the WCAB has explained that § 4660.1(c) governs only the collection of permanent disability benefits. That section expressly allows injured workers to receive medical treatment for psychiatric injury that flows from a physical injury. It does not preclude an employee from collecting temporary disability benefits from an add-on psychiatric injury (Lopez v. General Wax Co., Inc., 2017 Cal. Wrk. Comp. P.D. LEXIS 291). Also, it does not preclude an employee from requesting a psychiatric QME panel to assess whether he or she requires medical care or temporary disability indemnity on a psychiatric basis (Hernandez v. Fremont Bank, 2015 Cal. Wrk. Comp. P.D. LEXIS 470).

      So, although § 4660.1(c) has and will continue to limit the number and types of psychiatric claims that may be filed, it was never intended to eliminate psychiatric claims entirely. The WCAB retains significant authority to determine whether an employee is entitled to disability benefits and medical treatment as a result of a psychiatric condition. 

Topics: Case Law Updates

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