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Michael W. Sullivan

Michael W. Sullivan
Michael Sullivan is the founder of Michael Sullivan & Associates LLP, a workers' compensation defense firm with offices throughout California, and author of Sullivan on Comp, a treatise on California workers' compensation law.
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Employer-Provided Vaccines and Workers' Compensation Liability

Posted by Michael W. Sullivan on Jan 14, 2021 2:19:17 PM

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Wednesday 1/20/2021 at 11 a.m. to 12 p.m.

Part 22: COVID-19 Update –
Vaccines: Employer Mandates and Compensability

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Employer-Provided Vaccines

An employer arranges vaccinations for its employees. A health-care employer provides its employees with vaccinations. An employer encourages its employees to get vaccinated. An employer tells employees that they may not return to work unless they are vaccinated.

Then something goes wrong. An employee has an allergic reaction to the vaccine, or is injured. A claim is filed. Is this a valid work-related injury?

The short answer probably is yes, in most cases. Special rules apply to health-care organizations that provide vaccinations to their employees. For all other employers, if the vaccination is caused at least in part by the employment, any resulting injury would be compensable.

Compensability For Health Care Organizations

The little-known rule for health-care organizations is discussed in depth in "Sullivan on Comp" (SOC) Section 5.2 Health-Care Worker –– Blood-Borne Disease. Per LC 3208.05, an "injury" includes a reaction to or a side effect of preventive health-care provided by an employer to a health-care worker who is one of its employees. So, if the employer is a health-care provider –– that is, the predominant business of the employer is health care –– and it provides the vaccine to its own employees, any injury resulting from it would be compensable under this law.

Compensability For All Other Employers

This rule is important, but has limited application. What about all other employers? "Sullivan on Comp" discusses the subject in Section 5.9 Occupational Disease. In California, there are only two cases of import on the subject.

In Roberts v. U.S.O. Camp Shows, Inc.,[1] an employee musician was directed by his employer to receive various inoculations, and as a result contracted encephalitis. The Court of Appeal held that "Incapacity caused by illness from vaccination or inoculation may properly be found to have arisen out of the employment where such treatment is submitted to pursuant to the direction or for the benefit of the employer." Likewise, in Maher v. WCAB,[2] a nurse applied to work at a hospital. A mandatory test for tuberculosis resulted in treatment that injured her. In justifying the industrial nature of that injury, the California Supreme Court explained that "The rule is well settled that where an employee submits to an inoculation or a vaccination at the direction of the employer and for the employer's benefit, any injury resulting from an adverse reaction is compensable under the Workers' Compensation Act."

Maher went on to tie compensability to a causal relationship between the testing and the requirements of employment. The Supreme Court explained that the employment need not be the sole cause of the test or inoculation stating, “It would be more correct to say that the employment need only be a concurring cause.” Maher pointed out that, "If the requirement of the test or inoculation applied to everyone regardless of his employment, for example, if everyone were required to have a smallpox vaccination during an epidemic, no special work-connection would exist. But if this particular test is a condition of holding this particular job, then the employment is a concurrent cause of the test; the employee undergoes the test both because the employment requires it and because the state requires it if he is to occupy that job. In other words, if it had not been for the exigencies of the employment, the employee would not have taken that test."

It is well established in workers' compensation law that when an employee’s action inures to the benefit of the employer, a resulting injury is work related. This certainly is true if there is a created, reasonable expectation of the action by the employer, the action occurs on the employer’s premises and/or if the employer requests or facilitates the action. In these instances, there might be a causal link between the action and the employment such that an injury might be due to the employment. Presumably, an inoculation benefits the employer, as it gets employees back to work on-site, although that might not always be true.

We conclude that:

  1. If an employer required a vaccination for continued employment, any resulting injury would be compensable.
  2. If an employer required a vaccination as a condition for physically returning to work, as opposed to continuing to work from home, a resulting injury would be compensable.
  3. If a health-care organization provides inoculations to its employees, a resulting injury would be compensable.
  4. If another kind of employer directly provided vaccinations to its employees, any resulting injury probably would be compensable. The issue would turn on whether the vaccination was undertaken at least in part due to the employment.
  5. If an employer facilitates vaccinations, such as paying for them, setting appointments and the like, a resulting injury probably would be considered compensable, but the issue might turn on whether the vaccination was undertaken at least in part due to the employment.
  6. If an employer merely facilitated society’s broad-based provision of vaccinations –– by providing, for example, information as to when and where they may be received –– a resulting injury probably would not be compensable.

The Exclusive Remedy Rule

Having a vaccination fall under the bailiwick of workers' compensation might not be such a bad thing for employers. The exclusive remedy rule (see SOC Section 2.16 Exclusive Remedy Rule et seq) limits an employee’s remedy in workers' compensation claims to workers' compensation benefits. The employee may not sue the employer in civil court, where damages may be much more severe. Thus if the employer was somehow negligent in administering the vaccine and an injury occurred, there would be only workers compensation liability.

Negligence on the part of a medical provider is a different story. Medical malpractice is not subject to the exclusive remedy rule, as it is not the employer being sued in civil court (see SOC Section 2.32 Civil Remedy Against Third Party). Thus a medical provider who is negligent will be subject to civil suit concurrent with the workers compensation action against the employer.

What about the situation where the nurse or physician providing the vaccine is also the employer, such as when a hospital inoculates its own employees? There is in workers compensation law the concept of "dual capacity" (discussed in depth in SOC Section 2.22 Exclusive Remedy –– Dual Capacity) which addresses this circumstance. The dual capacity doctrine in regards to medical malpractice may be stated as follows: if, after an injury occurs, the employer provides treatment to cure or relieve the condition, a civil negligence action may be allowed. If, however, an employer imposes a contractual duty on the employee to obtain treatment from it, or itself undertakes a duty to provide such treatment as one of the direct benefits of employment, any medical treatment provided to the employee becomes part of the employer-employee relationship.

Thus in the case of Alander v. VacaValley Hospital[3] an employee was exposed to hepatitis, and hospital protocol mandated a vaccination. The process of the vaccination resulted in an injury - nerve damage to the right arm - and a workers compensation case resulted. When the injured employee attempted a civil negligence suit against the hospital, his case was thrown out. The court found that the injury occurred while the hospital was fulfilling its obligation to provide the shots under its protocol as her employer, not as her medical-care provider.

Thus the dual capacity doctrine should not allow an injured employee to proceed in civil court where a provider-employer provides vaccinations to its employees.

Employer's Right To Mandate Vaccines

Does the employer have the legal ability to require vaccinations as a condition of employment? The answer at this writing seems to be yes, but it is not certain.

Guidance so far is only a cryptic series of "Technical Assistance Questions and Answers" recently distributed by the federal Equal Employment Opportunity Commission (EEOC)[4].

The language of the guidance noticeably lacks any concrete and specific statement that mandating the vaccine as a condition of employment is lawful. However, the EEOC cites various criteria that certainly must be adhered to in the event an employer does so mandate; thus, it is implied that the employer may indeed do so.

Most important, the employer must respond to employees who refuse the vaccination because of medical condition or religious belief in an interactive and reasonably accommodating fashion to avoid falling astray of federal protections. The most prevalent accommodation probably is telework for the requesting employee. The EEOC does suggest that if an accommodation poses an “undue hardship” (a significant hurdle to surmount), the employer may “exclude” the employee from the workplace. That does not, the EEOC cautions, necessarily mean termination.

In addition, the EEOC cautions employers who administer vaccines directly or via third-party that the prescreening process may elicit disability-related information and thereby implicate ADA compliance mandates. It further cautions that such prescreening unlawfully might elicit information protected under the Genetic Information Nondiscrimination Act (GINA). So the EEOC suggests that an employer ask the employee for written proof of vaccination by the employees’ own medical provider, advising as well that that no other medical or genetic information should be contained in that certification.

Also glaringly absent from the guidance is confirmation that all of the questions and answers apply to an vaccine that has only emergency application, and therefore limited FDA approval.

Finally, it is important to remember that the EEOC is only federal. Its California counterpart, the Department of Fair Employment and Housing (DFEH), so far is silent on the vaccine.

This is a bit of a minefield. In a perfect world, the employer should wait for further federal and state guidance on mandating/administering these vaccines. If an employer elects to mandate or facilitate the vaccine, it should consult with its employment counsel on creating a policy and strategizing the most compliant manner of implementing it.

 

More Information

For continuous updates on this and all COVID-related laws, visit:

Footnotes

  1. (1949) 91 Cal. App. 2d 884
  2. (1983) 33 Cal. 3d 729
  3. (1996) 61 CCC 1145
  4. You can review this material at https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws; scroll down the page to Section K. Vaccinations.

Case Law Updates for November 2018

Posted by Michael W. Sullivan on Nov 5, 2018 3:05:08 PM

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 Garcia v. Border Transportation Group (2018) D072521, the 4th District Court of Appeal held that the test adopted in Dynamex Operations West, Inc. v. Superior Court of Los Angeles County (Lee) (2018) 83 CCC 817 applied to the plaintiff’s wage order claims, but not to his nonwage order claims. 

 

Chapter 5: Injury

In Carrasco v. California Department of Corrections and Rehabilitation, 2018 Cal. Wrk. Comp. P.D. LEXIS 398, the WCAB held that when a psychiatric injury is presumed compensable under LC 5402, the defendant is not precluded from asserting and presenting evidence on the good-faith personnel action defense under LC 3208.3(h). 

In Perez v. Deardorff Jackson Co., 2018 Cal. Wrk. Comp. P.D. LEXIS 413, the WCAB held that the dependents of a harvester failed to meet their burden of proving that his death from a hypertensive stroke while working was compensable. 

 

Chapter 7: Medical Treatment

In Recano v. J Brand, Inc., 2018 Cal. Wrk. Comp. P.D. LEXIS 443, the WCAB granted an applicant’s appeal of an IMR determination upholding the defendant’s utilization review denial of home health-care services when the IMR reviewer failed to apply the 2016 Medical Treatment Utilization Schedule (MTUS) definition of the term “homebound.”

In Prado v. PCG Hospitality, 2018 Cal. Wrk. Comp. P.D. LEXIS 441, the panel majority held that a defendant’s failure to schedule an appointment with a physician within the MPN did not constitute a denial of care when the medical access assistant acted promptly in assisting the applicant in such scheduling. 

In Barri v. WCAB (2018) G054838, the 4th District Court of Appeal upheld the constitutionality of the lien fraud statutes. 

In Espinoza v. Baldwin Construction, 2018 Cal. Wrk. Comp. P.D. LEXIS 403, the WCAB held that a defendant bears the burden of proof to establish that a lien is subject to an LC 4615 stay.

 

Chapter 9: Temporary Disability

In Bedoya v. Ashley Furniture Industries, Inc., 2018 Cal. Wrk. Comp. P.D. LEXIS 396, the WCAB held that an applicant was entitled to temporary total disability benefits because the employer did not make an offer of work within his temporary work restrictions after he was laid off. 

 

Chapter 10: Permanent Disability

In Lindh v. City of Petaluma, 2018 Cal. Wrk. Comp. P.D. LEXIS 410, the WCAB awarded an applicant 40 percent permanent disability without apportionment when the QME improperly apportioned to risk factors for an injury.

In Hom v. City and County of San Francisco, 2018 Cal. Wrk. Comp. P.D. LEXIS 431, the WCAB upheld a WCJ’s decision that an applicant was entitled to 30 percent permanent disability for a 2013 injury to his lumbar spine, even though he received a prior award of 20 percent for a 2012 injury to the spine, because the defendant could not prove that the disabilities overlapped under LC 4664. 

 

Chapter 14: Discovery and Settlement

In Ramirez v. Jaguar Farm Labor Contracting, Inc., 2018 Cal. Wrk. Comp. P.D. LEXIS 442, the WCAB held that an applicant should be evaluated by a QME in chiropractic, even though the medical director issued a replacement panel in orthopedic medicine. 

In Suon v. California Dairies (2018) ADJ9013590; ADJ9014316; ADJ9489408, the WCAB issued an en banc decision holding: (1) disputes over what information to provide to the QME are to be presented to the WCAB if the parties cannot informally resolve them; (2) although LC 4062.3(b) does not give a specific timeline for the opposing party to object to the QME’s consideration of medical records, that party must object to the provision of medical records to the QME within a reasonable time in order to preserve the objection; (3) if the aggrieved party elects to terminate the evaluation and seek a new evaluation due to an ex parte communication, that party must do so within a reasonable time following discovery of the prohibited communication; (4) the trier of fact has wide discretion to determine the appropriate remedy for a violation of LC 4062.3(b); and (5) removal is the appropriate procedural avenue to challenge a decision regarding disputes over what information to provide to the QME and ex parte communication with the QME.

In Ocana v. Selah Gourmet Food, dba Country House, 2018 Cal. Wrk. Comp. P.D. LEXIS 440, the WCAB rescinded a WCJ’s decision and allowed a defendant to send vocational evidence to the QMEs under CCR 35(d), as the evidence could affect the permanent disability rating. 

In Rodriguez v. Waste Management Collection and Recycling, 2018 Cal. Wrk. Comp. P.D. LEXIS 408, the WCAB amended a WCJ’s decision allowing an applicant to record his QME evaluation through a court reporter to also permit him to make an audio recording with his phone.

In Casado v. Kaiser Permanente, 2018 Cal. Wrk. Comp. P.D. LEXIS 399, the WCAB held that a QME’s report was inadmissible when it stated that his medical assistants performed Jamar dynamometer measurements as part of his evaluation, but the QME, in the report or at deposition, was unable to clarify which assistant performed the measurements, in violation of LC 4628(b).

In Lopez v. Car Care, Inc., 2018 Cal. Wrk. Comp. P.D. LEXIS 411, the WCAB upheld a WCJ’s decision that an applicant’s request for a replacement panel in pain management was void, and ordered the applicant to be evaluated by a replacement panel in orthopedic surgery requested by the defendant.

In Davies v. Securitas Security Services USA, Inc., 2018 Cal. Wrk. Comp. P.D. LEXIS 423, the panel majority held that a primary treating physician was entitled to recover for his lien related to a psychiatric evaluation under LC 4060 on the issue of compensability, which was prepared after the defendant denied the claim. 

 

Chapter 15: Pretrial Litigation

In Dean v. HomeGrocer.com, 2018 Cal. Wrk. Comp. P.D. LEXIS 424, the WCAB held that a defendant did not establish good cause to set aside stipulations that an applicant sustained injury to various body parts even though the QME and the applicant’s primary treating physician were found guilty of crimes relating to workers’ compensation.

In Crook v. Santa Ynez Valley Presbyterian Preschool, 2018 Cal. Wrk. Comp. P.D. LEXIS 401, the appeals board held that when a party exercises a peremptory challenge of a WCJ for trial, but the same WCJ is conducting the MSC, the WCJ retains authority to issue orders such as discovery orders. 

 

Chapter 16: Trial and Appeal

In Alaeddin v. SCIF, 2018 Cal. Wrk. Comp. P.D. LEXIS 395, the WCAB upheld a WCJ’s decision that substantial evidence established that a claims adjuster sustained a cumulative trauma injury resulting in a stroke.

Topics: Case Law Updates

Case Law Updates for April 2018

Posted by Michael W. Sullivan on Apr 25, 2018 11:00:00 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 2: Jurisdiction and Subrogation

In Escamilla v. Cacique, Inc., 2018 Cal. Wrk. Comp. P.D. LEXIS 49, the WCAB held that a defendant was not entitled to credit pursuant to LC 3861 for an employee’s legal malpractice recovery against her civil attorney.

 

Chapter 3: the Business of Insurance

In San Diego County Schools Risk Management Joint Powers Authority v. Liberty Insurance Corp. (2018) 83 CCC 255, the U.S. District Court for the Southern District of California issued a tentative ruling in a case involving two excess insurers that the second excess insurer was fully liable for expenses exceeding $100,000 for two cumulative trauma injuries.

 

Chapter 5: Injury

In Molar v. State of California Department of Corrections and Rehabilitation, 2018 Cal. Wrk. Comp. P.D. LEXIS 35, the WCAB held that, per LC 3212.8, a correctional officer was entitled to the presumption of compensability regarding his herpes/Epstein-Barr virus exposure.

In SCIF v. WCAB (Guzman) (2018) 83 CCC 185, the 6th District Court of Appeal held that an employee’s psychiatric injury was not caused by a sudden and extraordinary employment condition for the purposes of LC 3208.3(d) when he was using a 95-pound compactor on a hillside with a 45-degree slope.

In Garcia v. Reynolds Packing Co., 2018 Cal. Wrk. Comp. P.D. LEXIS 29, the WCAB held that an applicant’s psychiatric claim was compensable when the defendant failed to produce evidence that her claim was barred by the six-month requirement in LC 3208.3(d).

 

Chapter 6: Statutes of Limitations

In Galland v. Los Angeles Unified School District, 2018 Cal. Wrk. Comp. P.D. LEXIS 28, the WCAB upheld an earlier decision that an applicant’s claim was barred by the statute of evidence when the defendant presented evidence that it provided him with a claim form and that he did not file an application for adjudication until more than four years later.

 

Chapter 7: Medical Treatment

In Visger v. San Francisco 49ers, 2018 Cal. Wrk. Comp. P.D. LEXIS 42, the WCAB upheld a WCJ’s award of 120 days of inpatient treatment and an additional one year post-inpatient treatment at an assisted living facility for a traumatic brain injury when the defendant did not timely act after receiving the RFA form.

In Villa v. Los Angeles Unified School District, 2018 Cal. Wrk. Comp. P.D. LEXIS 61, the WCAB rescinded a WCJ’s order requiring a provider to pay $18,559.15 to a defendant for overpaid treatment provided to an applicant.

 

Chapter 9: Temporary Disability

In County of San Diego v. WCAB (Pike), 2018 Cal. App. LEXIS 184, the 4th District Court of Appeal annulled the WCAB’s award finding that an applicant with an injury after Jan. 1, 2008, was entitled to temporary disability payment for periods occurring more than five years after the date of injury.

In Bautista v. Smith’s Group Services Corp., 2018 Cal. Wrk. Comp. P.D. LEXIS 44, the WCAB rescinded a WCJ’s finding that an applicant did not suffer a severe burn pursuant to LC 4656(c)(3)(D) when he focused solely on whether the burn itself was severe.

In Martinez v. Parco, Inc., 2018 Cal. Wrk. Comp. P.D. LEXIS 55, the WCAB held that removal of bone from the applicant’s thumb, combined with its shortening by 7 mm, was a result of the surgeries for the treatment of his industrial injury, and constituted an amputation for the purposes of applying the LC 4656(c)(3)(C) exception to the 104-week limit on temporary disability.

 

Chapter 14: Discovery and Settlement

In Rayo v. Certi-Fresh Foods, Inc., 2018 Cal. Wrk. Comp. P.D. LEXIS 58, the WCAB upheld a WCJ’s decision finding that an applicant’s procurement of a chiropractic panel per LC 4060 was premature and invalid, as the qualifying event for obtaining such a panel — the “mailing of a request for a medical evaluation pursuant to Section 4060” — had not taken place.

In Angel v. Able Engineering, 2018 Cal. Wrk. Comp. P.D. LEXIS 25, the WCAB held that an applicant was not entitled to a replacement panel QME in dentistry, based on his claim that the QME was not licensed to practice dentistry at the West Covina location where his medical-legal evaluation took place.

 

Chapter 15: Pretrial Litigation

In Marroquin v. County of Orange, 2018 Cal. Wrk. Comp. P.D. LEXIS 33, the WCAB upheld a WCJ’s order taking a case off calendar even though the applicant was evaluated by a QME and a treating physician. .

In Hernandez v. Henkel Loctite Corp. (2018) ADJ6726149, the WCAB en banc held that lien declarations under LC 4903.05(c)(1), for liens filed prior to Jan. 1, 2017, were timely if they were filed by 5 p.m. Monday, July 3, 2017.

Topics: Case Law Updates

Case Law Updates for March 2018

Posted by Michael W. Sullivan on Mar 5, 2018 8:00:00 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 Benitez, Quezada v. AG Force, LLC, 2017 Cal. Wrk. Comp. P.D. LEXIS 580, the WCAB relied on circumstantial evidence to find that an employee sustained a compensable injury from a spider bite that resulted in the development of cellulitis and ultimately caused his demise.

In Online Graphics and Finishing v. WCAB (Puccio) (2017) 83 CCC 113 (writ denied), the WCAB held that an applicant’s stroke was a compensable consequence of an industrial injury because treatment of his atrial fibrillation was withheld in order to treat the industrial injury. 

CHAPTER 6: STATUTES OF LIMITATIONS 

In Griffin v. County of San Bernardino, 2018 Cal. Wrk. Comp. P.D. LEXIS 13, the WCAB held that an applicant’s claim for a cumulative trauma injury to his ears while employed as a fire captain was not barred by the statute of limitations. 

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CHAPTER 7: MEDICAL TREATMENT

In Ghattas v. O'Reilly Auto Parts, 2018 Cal. Wrk. Comp. P.D. LEXIS 1, the WCAB held that that when an employer denies a claim within the 90-day period provided by LC 5402(b), its responsibility to provide medical treatment pursuant to LC 5402(c) ends, and it is not required to perform UR of any pending requests for authorization (RFAs).

In Hall v. Western Medical, 2017 Cal. Wrk. Comp. P.D. LEXIS 581, the WCAB held that an employer’s UR determination was untimely, and that it had jurisdiction to award companion home care requested by a treating physician when the defendant did not complete the UR within the 72-hour time frame for an expedited review under LC 4610. 

In Wyant v. American Medical Response, 2017 Cal. Wrk. Comp. P.D. LEXIS 587, the WCAB awarded an applicant spinal surgery that was denied earlier by utilization review (UR). After a second request for authorization, a subsequent UR determination found it medically necessary following a documented change in material facts under LC 4610(k). 

In Guerra v. Financial Statement Services, Inc., 2018 Cal. Wrk. Comp. P.D. LEXIS 2, the WCAB held that an applicant was entitled to temporary disability benefits based on the opinion of his new treating chiropractor, even though he was released from care without ratable disability or the need for future medical care by an earlier physician.

In Vargas v. Excel Staffing, 2017 Cal. Wrk. Comp. P.D. LEXIS 586, the WCAB vacated a WCJ’s notice of intent to dismiss a lien when: (1) the lien had already been dismissed by a prior judge, and there was no lien remaining to dismiss; and (2) the lien claimant asserted that the lien was subject to an automatic stay pursuant to LC 4615.

CHAPTER 12: DEATH BENEFITS

In Moon v. Southern California Edison, 2017 Cal. Wrk. Comp. P.D. LEXIS 590, the WCAB concluded that a minor son did not meet his burden of proving he was physically or mentally incapacitated from earning, which would have entitled him to lifetime death benefits pursuant to LC 4703.5, even though a physician reported that his autism spectrum disorder would require “continual medical and daily care assistance for life.” 

CHAPTER 14: DISCOVERY AND SETTLEMENT

In Shemet v. Perry, 2018 Cal. Wrk. Comp. P.D. LEXIS 22, the WCAB upheld a WCJ’s finding that an applicant suffered a compensable injury based on the QME’s report, and that the defendant was not denied due process, even though it could not cross-examine the applicant at trial because he claimed his Fifth Amendment rights.

In Gutierrez v. Molycorp Minerals, 2018 Cal. Wrk. Comp. P.D. LEXIS 3, the WCAB upheld a WCJ’s decision that the applicant was not entitled to a replacement panel based on the QME’s inability to make herself available for a deposition within 120 day as required by CCR 35.5(f).

CHAPTER 15: PRETRIAL LITIGATION

In Sequeira de Bustos v. WCAB, 2018 Cal. Wrk. Comp. LEXIS 4 (writ denied), the WCAB awarded an applicant 20 percent permanent disability based on the permanent and stationary report of a QME, even though the primary treating physician never issued reports addressing the applicant’s permanent disability. 

In Guerra v. Financial Statement Services, Inc., 2018 Cal. Wrk. Comp. P.D. LEXIS 2, the WCAB affirmed a WCJ’s order setting the matter for an expedited hearing on the applicant’s right to temporary disability benefits, even though the applicant’s attorney did not engage in a genuine, good-faith effort to resolve the dispute before filing the DOR.

In Torok v. County of San Diego, 2018 Cal. Wrk. Comp. P.D. LEXIS 6, the WCAB rescinded a WCJ’s order disallowing a lien for back surgery provided by a private health plan before an applicant filed a claim with the employer. 

In Torres v. American Building Janitorial, Inc., 2018 Cal. Wrk. Comp. P.D. LEXIS 11, the WCAB rescinded a WCJ’s finding that a lien was not properly and timely filed, and was invalid and barred by the statute of limitations when the WCJ misunderstood the requirements of LC 4903.8(d). 

CHAPTE R16: TRIAL AND APPEAL

In Sayre v. WCAB, 2018 Cal. Wrk. Comp. LEXIS 3 (writ denied), the WCAB concluded that an applicant did not meet his burden of proving his sarcoidosis and related erythema nodosum were related to his employment as a deputy sheriff. 

In Nowak v. Pacific Architectural Engineering, 2018 Cal. Wrk. Comp. P.D. LEXIS 18, the WCAB rescinded a WCJ’s award of continuing temporary disability when, after an expedited hearing Oct. 3, 2017, the parties received a report from the primary treating physician Oct. 13, 2017, stating that the applicant was permanent and stationary Aug. 23, 2017. 

Topics: Case Law Updates

Case Law Updates for February 2018

Posted by Michael W. Sullivan on Feb 9, 2018 9:56:04 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 2: JURISDICTION AND SUBROGATION

In Parker v. Indy Fuel Hockey, 2017 Cal. Wrk. Comp. P.D. LEXIS 547, the WCAB held that a defendant may waive personal jurisdiction by failing to timely raise the issue and by making a general appearance in the matter.

 

CHAPTER 3: BUSINESS OF INSURANCE 

In People ex rel. Alzayat v. Hebb (2017) 18 Cal. App. 5th 801, the 4th District Court of Appeal, reversing a trial court’s judgment, held that an employee’s qui tam lawsuit against his employer and supervisor alleging a violation of the Insurance Fraud Prevention Act (IFPA), was not barred by the litigation privilege under Civil Code 47 nor the exclusive remedy rule.

 

CHAPTER 5: INJURY

In Panapa v. County of Ventura Probation Agency, 2017 Cal. Wrk. Comp. P.D. LEXIS 544, the WCAB affirmed a WCJ’s decision that an applicant failed to meet the burden of proving that an employee’s death from lung cancer was due to asbestos exposure in the workplace. 

In Lee v. State of California, Department of Corrections and Rehabilitation, Pleasant Valley State Prison, 2017 Cal. Wrk. Comp. P.D. LEXIS 543, the WCAB held that a corrections officer was entitled to the presumption under LC 3212.10 for his valley fever, which the AME identified as pneumonia. 

In Salceda v. Direct Motion, Inc., 2017 Cal. Wrk. Comp. P.D. LEXIS 550, the WCAB held that a decedent’s fatal injury did not arise out of and in the course of his employment with an employer. 

 

CHAPTER 6: STATUTES OF LIMITATIONS

In Terry v. California Department of Corrections and Rehabilitation, 2017 Cal. Wrk. Comp. P.D. LEXIS 578, the WCAB held that a claim for death benefits, filed Nov. 3, 2016, was barred by LC 5406(b).

In Greene v. HCI Environmental Engineering, 2017 Cal. Wrk. Comp. P.D. LEXIS 537, the WCAB held that a copy services lien filed June 29, 2015 was barred by the statute of limitations under LC 4903.5(a) when the last date of service was Sept. 25, 2013, and the lien claim was not filed within 18 months of the last date services were rendered. 

 

CHAPTER 7: MEDICAL TREATMENT

In Maldonado v. Beverly Hilton Hotel, 2017 Cal. Wrk. Comp. P.D. LEXIS 566, the WCAB granted removal of a WCJ’s decision removing a person designated as the defendant’s nurse case manager from further participation in the case when the WCAB determined she did not perform nursing duties, but performed claims-handling duties. 

In Avila v. Payless Cashways, 2017 Cal. Wrk. Comp. P.D. LEXIS 554, the WCAB rescinded a WCJ’s order requiring a defendant to prepay mileage, room and medical expenses in relation to a back surgery. 

In Zuniga v. WCAB (2018) Cal. App. LEXIS 62, the 1st District Court of Appeal held that LC 4610.6(f), which requires the IMR organization to keep the names of reviewers confidential, prohibits the WCAB from ordering disclosure of the reviewer’s identities and does not violate due process.

 

CHAPTER 11: RETURN TO WORK

On Jan. 10, 2018, the California Supreme Court ordered depublication of Ly v. County of Fresno (2017) 82 CCC 1138, in which the 5th District Court of Appeal held that the doctrine of res judicata barred discrimination claims brought by three employees under the California Fair Employment and Housing Act (FEHA) when the WCAB barred their workers’ compensation claims under LC 3208.3(h).

 

CHAPTER 14: DISCOVERY AND SETTLEMENT

In Camacho v. Pirate Staffing, 2017 Cal. Wrk. Comp. P.D. LEXIS 531, the WCAB held that a WCJ erred when he drew an adverse inference because an applicant, following the advice of his attorney, asserted his Fifth Amendment privilege against self-incrimination with respect to questioning about his Social Security number. 

In Pineda v. Mission Foods, 2017 Cal. Wrk. Comp. P.D. LEXIS 572, the WCAB upheld a WCJ’s decision denying an applicant’s request for a replacement panel on the grounds that the deposition could not be scheduled within 120 days as required by CCR 35.5(f).

In Beecham v. Swift Transportation Services, LLC, 2017 Cal. Wrk. Comp. P.D. LEXIS 555, the WCAB upheld an order striking a QME’s report and ordering a new QME panel when there was evidence that the QME’s opinion may have been influenced by racial or ethnic bias.

 

CHAPTER 15: PRETRIAL LITIGATION

In Hensley v. Archdiocese of Los Angeles, 2017 Cal. Wrk. Comp. P.D. LEXIS 564, the panel majority held that an applicant’s move to San Francisco did not constitute good cause to transfer venue from Long Beach to San Francisco.

In Maldonado v. Beverly Hilton Hotel, 2017 Cal. Wrk. Comp. P.D. LEXIS 566, the WCAB held that if a WCJ’s oral decision at the conclusion of trial is followed by a written decision served by mail, the mailbox rule would apply from the date of the written decision for the purposes of appeal.

In Molina v. Lopez d/b/a Wilfred Management, 2017 Cal. Wrk. Comp. P.D. LEXIS 568, the WCAB found an order dismissing a case for lack of prosecution issued six years earlier was void on its face for lack of compliance with CCR 10582.

In Quan v. Barrett Business Services, 2017 Cal. Wrk. Comp. P.D. LEXIS 575, the WCAB held that an interpreter failed to establish the market rate for interpreting services even though she offered market rate studies that included recent jobs in which the interpreter was paid the full amount requested.

 

Topics: Case Law Updates