Case Law Updates for December 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 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 P.D. LEXIS 452, the WCAB rescinded a WCJ's order requiring a defendant to continue providing medication timely denied by the utilization review (UR) process.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.