Case Law Updates for March 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 CIGA v. Burwell (2017) 82 CCC 47, the U.S. District Court for the Central District of California held that CMS' policy of seeking full reimbursement for a conditional payment as long as one diagnosis code was covered by CIGA was invalid.

In Riddle v. Las Flores Convalescent Hospital, 2017 Cal. Wrk. Comp. P.D. LEXIS 20, the WCAB held that if a defendant completely settled its liability by way of compromise and release (C&R) prior to an injury covered by CIGA, there would be no "other insurance" under IC 1063.1(c)(9).


CHAPTER 5: INJURY

In Carrillo v. LLG Corp., dba Fresco II, 2016 Cal. Wrk. Comp. P.D. LEXIS 658, the WCAB held that an applicant's injuries in a motor vehicle accident were not compensable and rejected his argument that alcohol use by employees was a "customary incident of employment" sufficient to impose liability on the employer for an applicant's post-shift intoxication.

In Hansen v. Par Electrical Contractors, Inc., 2016 Cal. Wrk. Comp. P.D. LEXIS 661, the WCAB held that an applicant linesman's injuries falling from an electrical tower were barred by his intoxication under LC 3600(a)(4).


CHAPTER 6: STATUTES OF LIMITATIONS

In Arce v. Phillips-Van Heusen Corp., 2016 Cal. Wrk. Comp. P.D. LEXIS 656, the WCAB held that an applicant's claim was barred by the statute of limitations when the parties stipulated that her injury date was Jan. 7, 2011, the defendant paid no benefits and the application was not filed until Feb. 12, 2014.

In Mitchell v. City of Los Angeles, 2017 Cal. Wrk. Comp. P.D. LEXIS 15, the WCAB held that a defendant's unilateral error in settling an applicant's dependency claim for $255,000 was not good cause to set aside the C&R.


CHAPTER 7: MEDICAL TREATMENT

In Swengel v. Cambridge, 2017 Cal. Wrk. Comp. P.D. LEXIS 23, the WCAB held that because a defendant timely submitted to utilization review a request for authorization (RFA) for a continued gym membership, the determination is not subject to review by the board.

In Rodriguez v. Simi Valley Unified School District, 2016 Cal. Wrk. Comp. P.D. LEXIS 671, the WCAB held that UR was applicable to a request for a home health-care evaluation, and to a request for home health-care services.

In Nungaray v. Remediation Constructors, Inc., 2017 Cal. Wrk. Comp. P.D. LEXIS 16, the WCAB granted the applicant's appeal of an IMR determination upholding a utilization review denial when the treating physician requested authorization for an epidural injection of the lumbar spine in the left L5-S1 region, but the UR physician found that an epidural injection on the right side was not medically appropriate.


CHAPTER 9: TEMPORARY DISABILITY

In Romero v. Plantel Nurseries, Inc., 2016 Cal. Wrk. Comp. P.D. LEXIS 672, the WCAB held that when a temporarily partially disabled employee could not be returned to modified duty solely because of his undocumented status, he is entitled to temporary partial disability benefits as to the proportion chargeable to the industrial injury.


CHAPTER 13: PENALTIES AND SANCTIONS

In Shoaib v. Campbell Soup Co., 2016 Cal. Wrk. Comp. P.D. LEXIS 673, the WCAB held that a defendant was liable for a 25 percent penalty for improperly withholding money from a stipulated award that settled an applicant's LC 132a claim.


CHAPTER 14: DISCOVERY AND SETTLEMENT

In Garza v. O'Reilly Auto Parts, 2017 Cal. Wrk. Comp. P.D. LEXIS 3, the WCAB upheld a WCJ's decision that a panel in orthopedics was appropriate for an applicant who claimed injury to his left foot, low back, bilateral knees and sleep disorder, even though he submitted a request for a chiropractic panel.

In Feige v. State of California Department of Corrections, 2017 Cal. Wrk. Comp. P.D. LEXIS 10, the WCAB held that an applicant was entitled to another QME per Navarro v. City of Montebello (2014) 79 CCC 418 (appeals board en banc) for his cumulative trauma injury ending Dec. 18, 2013, which was filed after the applicant had been evaluated by a QME for a specific injury on that date.

In Alvirde v. Barrett Business Services, 2017 Cal. Wrk. Comp. P.D. LEXIS 5, the WCAB held that the WCJ erred when, after the parties submitted a compromise and release agreement for approval, he refused to set the matter for an MSC because the defendant refused to obtain a job analysis to determine the applicant's occupational group.


CHAPTER 15: PRETRIAL LITIGATION

In Fassett v. Bruce K. Hall Construction, 2017 Cal. Wrk. Comp. P.D. LEXIS 9, the WCAB disqualified a WCJ from further proceedings pursuant to LC 5311 and CCR 10452 when he: (1) ruled on the defendant's petition for credit without hearing testimony or receiving evidence; (2) adopted the defendant's answer into his report and recommendation, hence adopting the defendant's unqualified opinions and beliefs as to the merits of the action (3) made a statement that the applicant was a vexatious litigant when no such finding had been
made; and (4) described the applicant's petitions as "nearly incomprehensible," contrary to the WCAB's finding that the applicant presented cogent arguments in opposition to the defendant's petition for credit.

In Flores v. Epic Management, 2017 Cal. Wrk. Comp. P.D. LEXIS 11, the WCAB rescinded a WCJ's order denying the applicant's petition for
automatic reassignment under CCR 10453 when she was not given notice and an opportunity to be heard on the issue.