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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 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

Case Law Updates for July 2017

Posted by Michael W. Sullivan on Jul 17, 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 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.

Topics: Case Law Updates

Sullivan on Comp Publishes “Special Report: SB 863 Five Years Later” E-book

Posted by Michael W. Sullivan on Jul 11, 2017 8:17:00 AM

New Sullivan on Comp publication provides comprehensive analysis of recent significant changes to the California workers’ compensation law and is available as a free, downloadable e-book.

Special Report: SB 863 Five Years Later

LOS ANGELES, CA (PRWEB) July 11, 2017— Sullivan on Comp, a California Workers’ Compensation legal treatise publisher, today announced the release of the new “Special Report: SB 863 Five Years Later” e-book. This comprehensive, 285-page book is available online as a free download at http://www.sullivanoncomp.com/sb-863-five-years-later.

"Every stakeholder in the California workers’ compensation system needs to have a firm grasp of SB 863,” said Michael Sullivan, lead author of Sullivan on Comp. “But its impact is ever-changing because the law evolves rapidly.”

There are over 500 persuasive cases and approximately 20 binding or significant cases interpreting the provisions of SB 863. Currently there are roughly 20 different sets of regulations implementing SB 863, with others still in development.

Senate Bill 863 (SB 863) was passed on August 1, 2012 and established significant changes to the California workers’ compensation system. Since this legislation passed, administrative regulations have been promulgated, case law has issued, and subsequent legislation has been advanced to clarify the reforms. Employees, employers, and their representatives need to constantly adjust to the new practices as they are adopted into law.

DOWNLOAD E-BOOK NOW

 

About Sullivan on Comp:

"Sullivan on Comp" is the most comprehensive treatise available on California workers' compensation law. The material is explained thoroughly and clearly, using jargon-free language. The publication is used by attorneys, claims adjusters, employers, and anyone else that needs current, complete, and easily accessible information on this body of law. Subscribers access “Sullivan on Comp” online or receive a multi-volume print edition that is updated annually.

To learn more about Sullivan on Comp, visit http://www.sullivanoncomp.com.

Topics: Press Releases

Sullivan on Comp Supports Save the Rhino

Posted by Michael W. Sullivan on Jun 27, 2017 4:58:08 PM

save-the-rhino.jpg

A portion of all sales of Sullivan on Comp are donated to Save the Rhino International, a charitable organization dedicated to stopping the poaching of rhinos worldwide.

In 1970, a rhino poaching epidemic began that was to hit black rhino populations severely. The crisis continued to deplete populations right through to the late 1980s and early 1990s, so much so that by 1993, there were only 2,475 black rhinos left in the world.

At the start of the 1990s, rhino enthusiasts Dave Stirling and Johnny Roberts took themselves on a 'Rhino Scramble' across Africa, raising money to help the fencing of the Aberdare Rhino Sanctuary and meeting a wide range of rhino conservationists along the way. While traveling, they met Rob Brett, Kenyan Rhino Coordinator at the time, and started to talk about what they could do for rhinos.

Filled with inspiration from their journey, the two returned to the UK and set about raising funds for rhinos in Africa. They started with the infamous and ever-growing London Marathon, roping in friends to run the 26.2 mile course around central London in 1992.

For more information please visit https://www.savetherhino.org.

Topics: Announcements

Case Law Updates for June 2017

Posted by Michael W. Sullivan on Jun 12, 2017 12:00:00 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 3: BUSINESS OF INSURANCE

In Southern Insurance. Co. v. WCAB (2017) B278412, the 2nd District Court of Appeal held that workers' compensation insurance policies could be rescinded under Insurance Code 650. In that case, a trucking company applied for workers' compensation insurance, declaring that its employees did not travel out of state and did not have a travel radius greater than 200 miles.


CHAPTER 5: INJURY

In Newberry v. San Francisco Forty Niners, 2017 Cal. Wrk. Comp. P.D. LEXIS 143, the WCAB held that a professional football player sustained a single cumulative trauma injury through Nov. 11, 2009, while employed by three different football teams.


CHAPTER 7: MEDICAL TREATMENT

In Zamudio v. Starco Enterprises, 2017 Cal. Wrk. Comp. P.D. LEXIS 151, the WCAB upheld a WCJ's order granting a defendant's petition to compel a home care assessment with a registered nurse, but rescinded an order allowing the defendant's attorney to be present in the applicant's home during the assessment.

In Mata v. Supermercado Mi Tierra, LLC, 2017 Cal. Wrk. Comp. P.D. LEXIS 166, the WCAB held that an applicant was entitled to cervical fusion surgery that was approved by UR, even though the defendant asserted it was contesting liability for treatment on grounds other than medical necessity.

In Ingle v. Department of Motor Vehicles, 2017 Cal. Wrk. Comp. P.D. LEXIS 137, the WCAB upheld a WCJ's decision that a defendant's UR decision was untimely based on an applicant attorney’s assertion that he received only the first 20 pages of the 25-page decision via fax from the defendant.

In Hacker v. County of San Bernardino-Public Health Department, 2017 Cal. Wrk. Comp. P.D. LEXIS 162, the WCAB reversed a WCJ's decision that an IMR determination to deny medication was plainly erroneous because the IMR was performed by a physician with a specialty in family practice rather than a specialist in chronic pain/pain management.

In Aguirre v. County of Los Angeles, 2017 Cal. Wrk. Comp. P.D. LEXIS 152, the WCAB rescinded an order staying all liens of Landmark Medical Management, LLC and PharmaFinance, LLC even though it was asserted that the individuals associated with the lien claimants had been criminally indicted for workers' compensation fraud.


CHAPTER 9: TEMPORARY DISABILITY

In Bounthon v. Safe Streets USA, LLC, 2017 Cal. Wrk. Comp. P.D. LEXIS 127, the WCAB upheld a WCJ's decision that an applicant was not entitled to temporary disability when he refused alternative modified work arranged by his employer at the Salvation Army.

In Venancio v. White Labs, Inc., 2017 Cal. Wrk. Comp. P.D. LEXIS 181, the WCAB upheld a WCJ's determination that an applicant, who was an undocumented worker, was not entitled to temporary partial disability benefits after federal agents notified the employer that the applicant was not authorized to work in the United States.


CHAPTER 10: PERMANENT DISABILITY

In Ricablanca v. California Department of Corrections and Rehabilitation, 2017 Cal. Wrk. Comp. P.D. LEXIS 147, the WCAB rescinded a WCJ's finding that an applicant was not entitled to an increase in permanent disability, per LC 4660.1, for any psychiatric disorder arising out of the coronary artery disease.

In Madson v. Michael J. Cavaletto Ranches, 2017 Cal. Wrk. Comp. P.D. LEXIS 165, the WCAB denied the defendant's petition for reconsideration and affirmed its prior decision that an applicant's psychiatric disability arose directly from the events of employment and was not subject to LC 4660.1(c).


CHAPTER 14: DISCOVERY AND SETTLEMENT

In Morgan v. National Steel and Shipbuilding Company, 2017 Cal. Wrk. Comp. P.D. LEXIS 141, the panel majority held that a defendant was not entitled to discovery of an employee's medical records pertaining to HIV/AIDS when the employee's widow alleged that his death was caused by industrial exposure to asbestos, not by industrial exposure to HIV/AIDS.

In Hasley v. Frito-Lay, Inc., 2017 Cal. Wrk. Comp. P.D. LEXIS 134, the WCAB granted removal of a WCJ's order denying an applicant's request for an additional QME panel, and remanded for the WCJ to determine whether and when claim forms were filed and if so, what was the nature of the injuries claimed.


CHAPTER 16: TRIAL AND APPEAL

In Page, Hansen. v. Acting Administrative Director of the Division of Workers’ Compensation, (2017) 82 CCC 352, the California Superior Court held that it lacked jurisdiction over the plaintiffs' allegations that the workers' compensation system unlawfully discriminates on the basis of sex in the calculation of permanent disability benefits.

In Garcia v. WCAB, 2017 Cal. Wrk. Comp. LEXIS 37 (writ denied), the 4th District Court of Appeal denied an applicant's petition for writ of review as untimely because it was not filed with the court within 45 days.

Topics: Case Law Updates