Case Law Updates for April 2017

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 Harris v. Trendwest Resorts, Inc./Cendant Corp., 2017 Cal. Wrk. Comp. P.D. LEXIS 31, the WCAB held that an applicant did not settle his right to workers' compensation benefits when he settled his civil case against his employer for discrimination, harassment and related issues, and further denied the defendant's petition for credit of the civil case recovery against the applicant's workers' compensation benefits. 

CHAPTER 4: EMPLOYMENT

In Washington v. Pacific Hospice Anchor Medical Group/Illinois Midwest Insurance Agency, LLC, 2017 Cal. Wrk. Comp. P.D. LEXIS 77, the WCAB held that a volunteer for a medical facility was not entitled to workers' compensation benefits even though she was injured while undergoing a TB test that was required before she could commence her services.

CHAPTER 5: INJURY

In County of Riverside v. WCAB (Sylves) (2017) E065688, the 4th District Court of Appeal held that the county of Riverside was liable for a deputy sheriff's cumulative trauma injury even though it was undisputed that he worked the last four years of his employment with the Pauma Police Department, which is on a reservation belonging to the Pauma Band of Luiseno Indians, a federally recognized Indian tribe. 

CHAPTER 6: STATUTES OF LIMITATIONS

In County of Riverside v. WCAB (Sylves) (2017) E065688, the 4th District Court of Appeal upheld a WCAB's decision that an applicant's cumulative trauma claim was not barred by the statute of limitations when he filed his application for adjudication within one year of when doctors first told him his medical conditions were related to his employment. 

CHAPTER 7: MEDICAL TREATMENT

In Bonilla v. San Diego Personnel and Employment dba Good People Employment Services, 2017 Cal. Wrk. Comp. P.D. LEXIS 56, the WCAB held that a second opinion MPN doctor's request for treatment did not trigger the UR process when he did not issue an RFA in the manner required by CCR 9792.6.1(t)(1). 

In De La Garza v. Roll Global/Del Rey Juice Plant dba POM Wonderful, 2017 Cal. Wrk. Comp. P.D. LEXIS 61, the WCAB awarded an applicant hand surgery requested by his treating physician when it was approved by UR, even though the surgery previously was denied by UR and IMR on the ground that the purpose of the procedure was cosmetic in nature. 

In Ramirez v. WCAB (2017) C078440, the 3rd District Court of Appeal upheld Dubon v. World Restoration, Inc. (2014) 79 CCC 1298 (Dubon II) to the extent that the WCAB does not have jurisdiction to resolve a treatment issue for a materially defective utilization review.

In Rios v. Bryan Jones dba The KB Group, 2017 Cal. Wrk. Comp. P.D. LEXIS 70, the WCAB rescinded a WCJ's decision that, in light of SCIF v. WCAB (Margaris) (2016) 81 CCC 561, an applicant must follow the UR/IMR track to obtain a final determination on the need for treatment even following an untimely UR. 

In Ramirez v. WCAB (2017) C078440, the 3rd District Court of Appeal rejected an applicant's argument that the independent medical review process violates federal due process. 

In Parrent v. WCAB (2017) 82 CCC 155 (writ denied), the Court of Appeal denied an applicant's petition for writ of review asserting that employers participating in the medical provider network program are precluded from challenging an MPN physician's treatment recommendation through utilization review. 

In Bonilla v. San Diego Personnel and Employment dba Good People Employment Services, 2017 Cal. Wrk. Comp. P.D. LEXIS 56, the WCAB held that the existence of the MPN second opinion process does not preclude an employer from using the UR process mandated by LC 4610 et seq to review an MPN physician's recommended medical treatment. 

In Barri v. WCAB, 2017 Cal. Wrk. Comp. LEXIS 16 (writ denied), the 1st District Court of Appeal denied a lien claimant’s petition for writ of mandate and request for stay challenging the provisions of SB 1160 and AB 1244, including provisions involving provider suspension and stay of liens. 

CHAPTER 9: TEMPORARY DISABILITY

In Padron v. Frito Lay, 2017 Cal. Wrk. Comp. P.D. LEXIS 69, the WCAB rescinded a WCJ's finding that a defendant was entitled to $37,700.35 credit as a result of short-term disability and long-term disability payments made to an applicant pursuant to the defendant's disability plans. 

CHAPTER 10: PERMANENT DISABILITY

In Castillo v. City of Los Angeles, 2017 Cal. Wrk. Comp. P.D. LEXIS 58, the WCAB held that an applicant's sleep apnea disability was not compensable per LC 4660.1(c) when it was caused by the applicant's obesity. 

In Lehman v. Walgreens, 2017 Cal. Wrk. Comp. P.D. LEXIS 66, the WCAB upheld an award finding an applicant 100 percent disabled when it was supported by the opinions of two AMEs and the applicant's vocational evaluator. 

CHAPTER 13: PENALTIES AND SANCTIONS

In Van Dyk v. California Men's Colony, 2017 Cal. Wrk. Comp. P.D. LEXIS 51, the WCAB held that a lien claimant, the CCPOA Benefit Trust Fund, was not entitled to interest, penalties, costs, sanctions or attorneys' fees for a defendant's delay in payment of its lien following an award. 

CHAPTER 14: DISCOVERY AND SETTLEMENT

In City of Santa Maria v. WCAB (Gowing), 2017 Cal. Wrk. Comp. LEXIS 20 (writ denied), the WCAB denied a defendant's petition to reopen to reduce permanent disability based primarily on sub rosa video of the applicant undertaken shortly after the stipulated awards, even though the AME reviewed the video and issued a supplemental report concluding that the applicant had no back disability. 

In Gonzalez v. 3M Co., 2017 Cal. Wrk. Comp. P.D. LEXIS 64, the WCAB held that a defendant did not waive its right to utilize the original QME when it struck a name from a replacement panel obtained by the applicant after the QME issued a late supplemental report.

In Saldana v. Color Spot Nurseries, 2017 Cal. Wrk. Comp. P.D. LEXIS 46, the WCAB upheld a WCJ's decision that a QME violated LC 4628 when he refused to identify the person who helped a Spanish-speaking applicant complete the pre-examination questionnaire the QME reviewed in conjunction with his evaluation. 

CHAPTER 15: PRETRIAL LITIGATION

In Hernandez v. Mason Hill, Inc., 2017 Cal. Wrk. Comp. P.D. LEXIS 32, the WCAB rescinded a WCJ's order allowing a defendant to prepare the pretrial conference statement and setting a matter for trial when the applicant appeared for a priority conference but her attorney did not. 

In Ramos v. Troy CSL Lighting, Inc., 2017 Cal. Wrk. Comp. P.D. LEXIS 44, the WCAB, per CCR 10582,  rescinded orders dismissing an applicant's claims for lack of prosecution more than five years after the date of injury when the petition for dismissal, orders of dismissal and other filings were served on the applicant at an incorrect address. 

In Birtwell v. Oakland Athletics, 2017 Cal. Wrk. Comp. P.D. LEXIS 26, the WCAB rescinded a WCJ's order dismissing a lien even though the lien claimant's legal representative failed to file a notice of representation as required by LC 4903.6(b) and CCR 10774.5(a). 

CHAPTER 16: TRIAL AND APPEAL

In Simmons v. Just Wingin' It, Inc., 2017 Cal. Wrk. Comp. P.D. LEXIS 48, the WCAB rescinded a WCJ's order requiring an out-of-state adjuster based in Illinois to physically appear at trial when the defendant offered to provide the adjuster's testimony through alternative means, such as CourtCall or video conferencing.