Case Law Updates for February 2018

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 Parker v. Indy Fuel Hockey, 2017 Cal. Wrk. Comp. P.D. LEXIS 547, the WCAB held that a defendant may waive personal jurisdiction by failing to timely raise the issue and by making a general appearance in the matter.

CHAPTER 3: BUSINESS OF INSURANCE 

In People ex rel. Alzayat v. Hebb (2017) 18 Cal. App. 5th 801, the 4th District Court of Appeal, reversing a trial court’s judgment, held that an employee’s qui tam lawsuit against his employer and supervisor alleging a violation of the Insurance Fraud Prevention Act (IFPA), was not barred by the litigation privilege under Civil Code 47 nor the exclusive remedy rule.

CHAPTER 5: INJURY

In Panapa v. County of Ventura Probation Agency, 2017 Cal. Wrk. Comp. P.D. LEXIS 544, the WCAB affirmed a WCJ’s decision that an applicant failed to meet the burden of proving that an employee’s death from lung cancer was due to asbestos exposure in the workplace. 

In Lee v. State of California, Department of Corrections and Rehabilitation, Pleasant Valley State Prison, 2017 Cal. Wrk. Comp. P.D. LEXIS 543, the WCAB held that a corrections officer was entitled to the presumption under LC 3212.10 for his valley fever, which the AME identified as pneumonia. 

In Salceda v. Direct Motion, Inc., 2017 Cal. Wrk. Comp. P.D. LEXIS 550, the WCAB held that a decedent’s fatal injury did not arise out of and in the course of his employment with an employer. 

CHAPTER 6: STATUTES OF LIMITATIONS

In Terry v. California Department of Corrections and Rehabilitation, 2017 Cal. Wrk. Comp. P.D. LEXIS 578, the WCAB held that a claim for death benefits, filed Nov. 3, 2016, was barred by LC 5406(b).

In Greene v. HCI Environmental Engineering, 2017 Cal. Wrk. Comp. P.D. LEXIS 537, the WCAB held that a copy services lien filed June 29, 2015 was barred by the statute of limitations under LC 4903.5(a) when the last date of service was Sept. 25, 2013, and the lien claim was not filed within 18 months of the last date services were rendered. 

CHAPTER 7: MEDICAL TREATMENT

In Maldonado v. Beverly Hilton Hotel, 2017 Cal. Wrk. Comp. P.D. LEXIS 566, the WCAB granted removal of a WCJ’s decision removing a person designated as the defendant’s nurse case manager from further participation in the case when the WCAB determined she did not perform nursing duties, but performed claims-handling duties. 

In Avila v. Payless Cashways, 2017 Cal. Wrk. Comp. P.D. LEXIS 554, the WCAB rescinded a WCJ’s order requiring a defendant to prepay mileage, room and medical expenses in relation to a back surgery. 

In Zuniga v. WCAB (2018) Cal. App. LEXIS 62, the 1st District Court of Appeal held that LC 4610.6(f), which requires the IMR organization to keep the names of reviewers confidential, prohibits the WCAB from ordering disclosure of the reviewer’s identities and does not violate due process.

CHAPTER 11: RETURN TO WORK

On Jan. 10, 2018, the California Supreme Court ordered depublication of Ly v. County of Fresno (2017) 82 CCC 1138, in which the 5th District Court of Appeal held that the doctrine of res judicata barred discrimination claims brought by three employees under the California Fair Employment and Housing Act (FEHA) when the WCAB barred their workers’ compensation claims under LC 3208.3(h).

CHAPTER 14: DISCOVERY AND SETTLEMENT

In Camacho v. Pirate Staffing, 2017 Cal. Wrk. Comp. P.D. LEXIS 531, the WCAB held that a WCJ erred when he drew an adverse inference because an applicant, following the advice of his attorney, asserted his Fifth Amendment privilege against self-incrimination with respect to questioning about his Social Security number. 

In Pineda v. Mission Foods, 2017 Cal. Wrk. Comp. P.D. LEXIS 572, the WCAB upheld a WCJ’s decision denying an applicant’s request for a replacement panel on the grounds that the deposition could not be scheduled within 120 days as required by CCR 35.5(f).

In Beecham v. Swift Transportation Services, LLC, 2017 Cal. Wrk. Comp. P.D. LEXIS 555, the WCAB upheld an order striking a QME’s report and ordering a new QME panel when there was evidence that the QME’s opinion may have been influenced by racial or ethnic bias.

CHAPTER 15: PRETRIAL LITIGATION

In Hensley v. Archdiocese of Los Angeles, 2017 Cal. Wrk. Comp. P.D. LEXIS 564, the panel majority held that an applicant’s move to San Francisco did not constitute good cause to transfer venue from Long Beach to San Francisco.

In Maldonado v. Beverly Hilton Hotel, 2017 Cal. Wrk. Comp. P.D. LEXIS 566, the WCAB held that if a WCJ’s oral decision at the conclusion of trial is followed by a written decision served by mail, the mailbox rule would apply from the date of the written decision for the purposes of appeal.

In Molina v. Lopez d/b/a Wilfred Management, 2017 Cal. Wrk. Comp. P.D. LEXIS 568, the WCAB found an order dismissing a case for lack of prosecution issued six years earlier was void on its face for lack of compliance with CCR 10582.

In Quan v. Barrett Business Services, 2017 Cal. Wrk. Comp. P.D. LEXIS 575, the WCAB held that an interpreter failed to establish the market rate for interpreting services even though she offered market rate studies that included recent jobs in which the interpreter was paid the full amount requested.