Case Law Updates for February 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.

In Kesner v. Superior Court of Alameda County (2016) 81 CCC 1095, the California Supreme Court held that the duty of employers to exercise ordinary care in their use of asbestos includes preventing exposure to asbestos carried by the bodies and clothing of on-site workers.

CHAPTER 5: INJURY

In Davis v. State of California, Department of Forestry and Fire Protection, 2016 Cal. Wrk. Comp. P.D. LEXIS 611, the WCAB held that a firefighter was not entitled to the presumption under LC 3212.85 for an alleged injury to his "nervous system and respiratory" occurring as a result of his exposure to fire retardant.

In Rowe v. Road Dog Drivers, LLC, 2016 Cal. Wrk. Comp. P.D. LEXIS 622, the WCAB held that an applicant's claim was not barred by the going and coming rule when she was injured en route to the home of a supervisor so that the two of them could travel together to meet new clients.


CHAPTER 6: STATUTES OF LIMITATIONS

In Watkins v. Department of State Hospitals, Atascadero State Hospital, 2016 Cal. Wrk. Comp. P.D. LEXIS 627, the WCAB held that an applicant's claim was not barred by the statute of limitation under LC 5405 when the defendant failed to prove when it last provided benefits.


CHAPTER 7: MEDICAL TREATMENT

In Estrella v. National Express Corp., 2016 Cal. Wrk. Comp. P.D. LEXIS 614, the WCAB affirmed a WCJ's decision that a lien claimant outpatient surgical center was not entitled to payment when its services were barred by LC 139.3.


CHAPTER 9: TEMPORARY DISABILITY

In Guindon v. Robertson's Ready Mix, 2016 Cal. Wrk. Comp. P.D. LEXIS 615, the WCAB held that an applicant, who was injured Jan. 22, 1997, was entitled to temporary disability from Sept. 15, 2004 through July 6, 2012, payable at the rate of $1,128.43, less credit for previous payments made for those dates.

In Castellanos v. County of Kern, 2016 Cal. Wrk. Comp. P.D. LEXIS 632, the WCAB awarded the applicant temporary disability benefits following her retirement based on her testimony that the effects of her industrial injury prevented her from working any longer.

CHAPTER 12: DEATH BENEFITS

In Pantus v. Get'er Done Trucking, 2016 Cal. Wrk. Comp. P.D. LEXIS 619, the WCAB held that a 12-year-old son who became physically and mentally incapacitated from earning as a result of the same accident that caused his father's death was entitled to lifetime dependency benefits under LC 3501, LC 3202 and LC 3502.

CHAPTER 14: DISCOVERY AND SETTLEMENT

In Maxham v. California Department of Corrections and Rehabilitation (2017) ADJ3540065, the WCAB issued an en banc decision holding: (1) "information," per LC 4062.3, constitutes records prepared or maintained by the employee's treating physician or physicians, and/or medical and nonmedical records relevant to determination of medical issues; and (2) a "communication," per LC 4062.3, can constitute "information" if it contains, references or encloses records prepared or maintained by the employee's treating physician or physicians, and/or medical and nonmedical records relevant to determination of medical issues.

CHAPTER 15: PRETRIAL LITIGATION

In Gottlieb v. Kitchen for Exploring Foods, 2016 Cal. Wrk. Comp. P.D. LEXIS 635, the WCAB rescinded a WCJ's decision to exclude two exhibits submitted by a lien claimant, based solely on lack of compliance with CCR 10629(d), when excluding them prevented the claimant from proving entitlement to its lien.

CHAPTER 16: TRIAL AND APPEAL

In Curry-White v. Berkeley Unified School District, 2016 Cal. Wrk. Comp. P.D. LEXIS 610, the WCAB rescinded a WCJ's order requiring the defendant to provide an unrepresented applicant with a suitable form to obtain her own bank records by subpoena so that she could obtain evidence to support her claim that she paid substantial sums for medical care out of her own pocket.

In Moore v. Sun Health Care, 2016 Cal. Wrk. Comp. P.D. LEXIS 645, the WCAB found that a WCJ violated a lien claimant's due process rights when the judge refused to allow live testimony in court from the physician who treated the applicant.