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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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Case Law Updates for December 2017

Posted by Michael W. Sullivan on Dec 14, 2017 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 3: BUSINESS OF INSURANCE

In American Cargo Express, Inc. v. Superior Court (2017) 82 CCC 1115, the 3rd District Court of Appeal held that the Self-Insurers' Security Fund (SISF) could bring a civil action in Superior Court pursuant to LC 3744(c) to recover compensation it paid after a temporary staffing business defaulted on its obligations to self-insure, and that the claim was not subject to the exclusive jurisdiction of the WCAB.

In Pearson Ford v. WCAB (Hernandez) (2017) 82 CCC 1105, the 4th District Court of Appeal held that an applicant's conviction for violating IC 1871.4 did not bar his workers' compensation claim when there was evidence, independent of the applicant's fraud, that he suffered a compensable injury and was entitled to benefits. 

 

CHAPTER 6: STATUTES OF LIMITATIONS

In De La Torre v. County of San Luis Obispo, 2017 Cal. Wrk. Comp. P.D. LEXIS 438, the WCAB held that an applicant's alleged cumulative trauma claim was barred by the statute of limitations when the defendant established the date of injury under LC 5412 more than a year before the applicant filed his application for adjudication. 

In Williams v. Department of Corrections & Rehabilitation—California Institute for Women, 2017 Cal. Wrk. Comp. P.D. LEXIS 458, the WCAB set aside a stipulated award of 0 percent permanent disability nearly 16 years after the date of injury and 10 years after the date of an award issued in 2007 when the applicant was able to establish extrinsic fraud.  

 

CHAPTER 7: MEDICAL TREATMENT

In Power v. St. John's Regional Medical Center, 2017 Cal. Wrk. Comp. P.D. LEXIS 452, the WCAB rescinded a WCJ's order requiring a defendant to continue providing medication timely denied by the utilization review (UR) process. 

 

CHAPTER 9: TEMPORARY DISABILITY

In Cox v. State of California, Department of Alcoholic Beverage Control, 2017 Cal. Wrk. Comp. P.D. LEXIS 437, the WCAB awarded a penalty under LC 5814 for a defendant's unilateral termination of temporary disability benefits following an award, without filing a petition to terminate benefits per LC 4651.1.

In Favre v. Pasadena Unified School District, 2017 Cal. Wrk. Comp. P.D. LEXIS 467, the WCAB affirmed an arbitrator's order for AIG to reimburse Fireman's Fund Insurance Co. (FFIC) for its proportionate share of the applicant's treatment and temporary disability caused by multiple successive injuries. 

 

CHAPTER 10: PERMANENT DISABILITY

In Sobol v. State of California Department of Corrections and Rehabilitation, 2017 Cal. Wrk. Comp. P.D. LEXIS 454,  the WCAB determined that an AME's opinion on apportionment to genetic factors was not substantial evidence because it was conclusory and not substantiated with sufficient medical rationale.

In Nadey v. Pleasant Valley State Prison, 2017 Cal. Wrk. Comp. P.D. LEXIS 446, the WCAB granted removal of a WCJ's order denying a defendant's motion to compel disclosure of prior permanent disabilities pursuant to LC 4663 on the basis that defendant had other means of seeking the information.

 

CHAPTER 11: RETURN TO WORK

In Ly v. County of Fresno (2017) 82 CCC 1138, the 5th District Court of Appeal held that the WCAB's decisions in three cases finding psychiatric injuries were not compensable under LC 3208.2(h), were res judicata and barred discrimination claims under the FEHA.

 

CHAPTER 14: DISCOVERY AND SETTLEMENT

In Peluso v. Calgary Flames, 2017 Cal. Wrk. Comp. P.D. LEXIS 476, the WCAB granted removal of a WCJ's discovery plan requiring an applicant, who lived in Minnesota, to travel to California to participate in 14 medical and vocational evaluations and two days of deposition. 

In Ramos v. International Marine Industrial Applicators, 2017 Cal. Wrk. Comp. P.D. LEXIS 478, The WCAB rescinded a WCJ's order allowing a new QME on the basis that, in violation of CCR 35(e), the physician was provided medical records without submitting them to the WCJ for approval when the applicant didn’t object to the records being provided until the eve of trial. 

 

CHAPTER 15: PRETRIAL LITIGATION

In Kelley v. Loma Linda University Medical Center, 2017 Cal. Wrk. Comp. P.D. LEXIS 443, the WCAB rescinded a WCJ's order dismissing the liens of three claimants when they failed to appear at a noticed status conference on the issue of attorneys' fees.

In Coquillette v. Montreal Expos, 2017 Cal. Wrk. Comp. P.D. LEXIS 436, the WCAB upheld a WCJ's decision admitting reports of secondary treating physicians that were listed on the pretrial conference statement, but were not served until the day after. 

In Wright v. City of Huntington Beach, 2017 Cal. Wrk. Comp. P.D. LEXIS 465, the WCAB held that an applicant's former attorney was not entitled to any attorney's fee from a compromise and release settling the case for $240,246.00, and that allowable attorneys' fees should be split between the applicant's two subsequent attorneys. .

In Flores v. Chualar Canyon Ranch Supply, 2017 Cal. Wrk. Comp. P.D. LEXIS 440, the WCAB affirmed a WCJ's decision that a defendant was liable for two penalties under LC 5814 for unreasonable delay in paying a vocational expert's costs. 

 

CHAPTER 16: TRIAL AND APPEAL

In Zepeda v. Advanced Office Services, 2017 Cal. Wrk. Comp. P.D. LEXIS 459, the WCAB denied removal of a WCJ's order setting a case for trial over a defendant's objection, even though the applicant attached a vocational expert’s report to a declaration of readiness to proceed to a mandatory settlement conference. 

 

Topics: Case Law Updates

Case Law Updates for November 2017

Posted by Michael W. Sullivan on Nov 3, 2017 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 Light v. Department of Parks and Recreation (2017) 82 CCC 987, the 4th District Court of Appeal reversed the trial court and concluded triable issues of material fact precluded summary adjudication of the plaintiff's retaliation claim, but not her disability discrimination claim. 

 

CHAPTER 5: INJURY

In Gravlin v. City of Vista, 2017 Cal. Wrk. Comp. P.D. LEXIS 413, the WCAB granted reconsideration on its own motion of its prior decision and held that an applicant sustained a single cumulative trauma injury resulting in hypertension and skin cancer. 

In Anaya v. Kelly, 2017 Cal. Wrk. Comp. P.D. LEXIS 381, the WCAB held that a seasonal strawberry picker sustained a single cumulative trauma (CT) injury, and that the insurer at the end of his employment was solely liable for the injury even though the applicant received benefits for the injury nearly a year earlier.

In Kimber v. City of Los Angeles, 2017 Cal. Wrk. Comp. P.D. LEXIS 387, the WCAB held that a police officer's death from bronchiotracheopneumonitis was not covered by the presumption of industrial causation applicable to pneumonia under LC 3212. 

In Mueller v. Oakland Unified School District, 2017 Cal. Wrk. Comp. P.D. LEXIS 391, the WCAB held that a teacher's psychiatric injury was not barred by LC 3208.3(d), even though she was employed for fewer than six months, because the injury was caused by a "sudden and extraordinary employment condition" in the form of a physical assault by a high school student.

In Minarik v. Del Taco, 2017 Cal. Wrk. Comp. P.D. LEXIS 390, the WCAB held that an applicant's automobile accident while returning from a medical examination by an AME was a compensable consequence of her accepted 2012 injury to her back. 

 

CHAPTER 9: TEMPORARY DISABILITY

In Zakaryan v. Glendale Community College, 2017 Cal. Wrk. Comp. P.D. LEXIS 403, the WCAB found that a defendant and its adjusting agent unreasonably and in bad faith failed to pay compensation due the applicant under an award. 

 

CHAPTER 10: PERMANENT DISABILITY

In Southwell v. County of San Diego, 2017 Cal. Wrk. Comp. P.D. LEXIS 397, the WCAB held that an applicant was entitled to an award of permanent total disability based on the opinion of a vocational expert even though the applicant retired from his employment prior to onset of industrially related symptoms.

 

CHAPTER 14: DISCOVERY AND SETTLEMENT

In Go v. Sutter Solano Medical Center, 2017 Cal. Wrk. Comp. P.D. LEXIS 412, the WCAB held that an employee is entitled to indemnity for temporary and permanent disability resulting from reasonable medical treatment of an industrial injury self-procured under LC 4605. 

 

CHAPTER 15: PRETRIAL LITIGATION

In Rodriguez v. Garden Plating Co. (2017) ADJ8588344, the WCAB issued an en banc decision consolidating more than 1,200 nearly identical petitions for reconsideration, all seeking relief from the DWC's action dismissing their liens for allegedly failing to timely file declarations required by LC 4903.05(c) by July 1, 2017.

 

CHAPTER 16: TRIAL AND APPEAL

In Oranje v. Crestwood Behavior Health, 2017 Cal. Wrk. Comp. P.D. LEXIS 392, the WCAB affirmed a WCJ's order allowing an applicant, who had moved to Nevada, to testify remotely through video conferencing software called Lifesize, when the applicant presented a report from her treating physician detailing the reasons she should be excused from traveling to testify in person. 

In Viray v. Pacific Gas & Electric, 2017 Cal. Wrk. Comp. P.D. LEXIS 400, the WCAB rescinded a WCJ's award of 75 percent disability after apportionment that was based on the "range of evidence" between the opinion a psychiatric AME and an orthopedic QME. 

In Sanchez v. Unilever, 2017 Cal. Wrk. Comp. P.D. LEXIS 395, the WCAB held that a defendant's stipulation to employment during an alleged cumulative trauma period was invalid because it had no authority to stipulate on behalf of another employer. 

 

Topics: Case Law Updates

SOC Webinar 3rd Quarter Update - 2017

Posted by Michael W. Sullivan on Nov 1, 2017 7:30:00 AM

Join us for the live SOC Webinar 3rd Quarter Update - 2017

Breakthrough Thinking in Causation of Injury and the Rice Case - Part 2

Presented by Dr. Mark Hyman, internist and author, and Michael Sullivan, workers' compensation attorney and author of Sullivan on Comp.

Change forever the way you evaluate the issue of industrial injury, with this exciting new perspective. You’ve heard of the Rice case and the concept that genetic factors can be the proper subject of apportionment to permanent disability. In our last webinar, we presented the empirical evidence for environmental factors and their impact on the assessment of apportionment. Now hear Dr. Mark Hyman discuss with Michael Sullivan the in-depth research on the relationship between environmental factors and causation of injury. Learn about which physical mechanisms and other external influences cause injury — and which can’t.

Subscribers of Sullivan on Comp can click here to register

Live Quarterly Webinar Q3 2017 - Breakthrough Thinking in Causation of Injury and the Rice Case - Part 2

ABOUT THE SOC WEBINAR SERIES:

The Sullivan on Comp Webinar Series is comprised of:

  • 12 monthly case law update webinars
  • 4 quarterly webinars, each focusing on specific topics

Webinar attendance earns CE credits for attorneys, WC adjusters and WC bill reviewers. Monthly webinars are .5 hours of credit each; quarterly are 1.5 each. (Occasionally, additional webinars are also presented following significant changes in the industry.)

These webinars are an included benefit of subscribing to Sullivan on Comp online and are not available any other way.

Subscribe to Sullivan on Comp and gain access to the SOC Webinar Series via the online only or full subscription options.

 

Topics: Announcements

Case Law Updates for October 2017

Posted by Michael W. Sullivan on Oct 18, 2017 10:30:00 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 McIntosh v. Military Department of the State of California, 2017 Cal. Wrk. Comp. P.D. LEXIS 371, the WCAB held that it did not have jurisdiction over an applicant's claim for a latent injury to her psyche arising out of a sexual assault that occurred while training with the California Army National Guard. 

 

CHAPTER 5: INJURY

In Bellissimo v. Cast & Crew Entertainment Services, Inc., 2017 Cal. Wrk. Comp. P.D. LEXIS 333, the WCAB upheld an arbitrator's decision that liability under LC 5500.5 should be apportioned pro rata between the two employers based on the days worked for each employer during the liability period. 

In Illinois Midwest Insurance Agency, LLC v. WCAB (Casarotti), 2017 Cal. Wrk. Comp. LEXIS 83 (writ denied), the WCAB held that an applicant sustained a compensable injury when she fell from a bar stool and struck her head on the floor at work as a result of a nonindustrial alcohol withdrawal seizure.

 

CHAPTER 6: STATUTES OF LIMITATIONS

In Albano v. Cal Amp Corp., 2017 Cal. Wrk. Comp. P.D. LEXIS 356, the WCAB held that the claim of three dependent children for death benefits was not barred by the statute of limitations under LC 5406, even though it was filed more than a year after the decedent employee's death. 

It explained that per Arndt v. WCAB (1976) 41 CCC 151 and Berkebile v. WCAB (1983) 48 CCC 438, it was incumbent on the defendant to produce evidence related to the date the dependents knew, or in the exercise of reasonable diligence, should have known that the cause of their mother's lung cancer and resulting death were industrially related.

 

CHAPTER 7: MEDICAL TREATMENT

In Morales v. Herrick Corp., 2017 Cal. Wrk. Comp. P.D. LEXIS 372, the WCAB held that a utilization review authorization for a single level epidural injection at C6-7 was not invalidated by a subsequent request and UR denial for a two-level epidural injection at the C5-C6 and C6-C7 levels. 

In Moss v. State of California Department of Corrections, 2017 Cal. Wrk. Comp. P.D. LEXIS 374, the WCAB held that LC 4610(g)(6),which generally provides that a utilization review decision remains in effect for 12 months unless there is a change in the applicant's condition, was inapplicable when the UR decision was not issued in response to a valid RFA or alternative form that could be accepted by the defendant under CCR 9792.9.1(c)(2)(B).

In Jimenez v. Rose Hill Co., 2017 Cal. Wrk. Comp. P.D. LEXIS 342, the WCAB concluded that a defendant's utilization review determination denying authorization for knee surgery was timely, and rejected the applicant's claim that the defendant's service of the UR determination was defective.

 

CHAPTER 9: TEMPORARY DISABILITY

In Pribyl v. Acosta Sales and Marketing, 2017 Cal. Wrk. Comp. P.D. LEXIS 350, the WCAB found that an applicant was not permanent and stationary and was entitled to temporary disability benefits when all of the doctors reported she could not return to work until diagnostic testing was completed, even though the tests were timely denied by utilization review and independent medical review. 

 

CHAPTER 10: PERMANENT DISABILITY

In Hill v. State of California Department of Transportation, 2017 Cal. Wrk. Comp. P.D. LEXIS 340, the WCAB granted removal of a WCJ's decision to deny a defendant's petition to compel disclosure because the defendant sought a disclosure carefully modeled on the language of LC 4663(d).

 

CHAPTER 11: RETURN TO WORK

In Jackson v. California Prison Industry Authority, 2017 Cal. Wrk. Comp. P.D. LEXIS 368, the WCAB held that a former state prison inmate was entitled to the voucher when the state of California could not make a bona fide offer of work because the applicant had been released from prison.

 

CHAPTER 14: DISCOVERY AND SETTLEMENT

In Vasquez v. SNCH, Inc., 2017 Cal. Wrk. Comp. P.D. LEXIS 354, the WCAB held that a QME did not violate LC 139.3 and CCR 41.5 when he referred the applicant to his wife for EMG testing within his own office. It found that the QME disclosed this fact in his report and the EMG services were billed as part of the QME evaluation costs. 

In Villanueva v. El Rosal Restaurant, 2017 Cal. Wrk. Comp. P.D. LEXIS 379, the WCAB rescinded a WCJ's order for a defendant to reissue a $20,000.50 settlement check to the applicant, who claimed that her check was fraudulently cashed by someone else.

 

CHAPTER 16: TRIAL AND APPEAL

In Lin v. Automobile Club of Southern California, 2017 Cal. Wrk. Comp. P.D. LEXIS 346, the WCAB concluded that a WCJ acted properly when he ordered discovery for the limited purpose of assessing the applicant's alleged unavailability to testify at trial after the start of trial. 

Topics: Case Law Updates

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