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Case Law Updates for March 2018

Posted by Michael W. Sullivan on Mar 5, 2018 8:00:00 AM
Michael W. Sullivan

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 5: INJURY

In Benitez, Quezada v. AG Force, LLC, 2017 Cal. Wrk. Comp. P.D. LEXIS 580, the WCAB relied on circumstantial evidence to find that an employee sustained a compensable injury from a spider bite that resulted in the development of cellulitis and ultimately caused his demise.

In Online Graphics and Finishing v. WCAB (Puccio) (2017) 83 CCC 113 (writ denied), the WCAB held that an applicant’s stroke was a compensable consequence of an industrial injury because treatment of his atrial fibrillation was withheld in order to treat the industrial injury. 

CHAPTER 6: STATUTES OF LIMITATIONS 

In Griffin v. County of San Bernardino, 2018 Cal. Wrk. Comp. P.D. LEXIS 13, the WCAB held that an applicant’s claim for a cumulative trauma injury to his ears while employed as a fire captain was not barred by the statute of limitations. 

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CHAPTER 7: MEDICAL TREATMENT

In Ghattas v. O'Reilly Auto Parts, 2018 Cal. Wrk. Comp. P.D. LEXIS 1, the WCAB held that that when an employer denies a claim within the 90-day period provided by LC 5402(b), its responsibility to provide medical treatment pursuant to LC 5402(c) ends, and it is not required to perform UR of any pending requests for authorization (RFAs).

In Hall v. Western Medical, 2017 Cal. Wrk. Comp. P.D. LEXIS 581, the WCAB held that an employer’s UR determination was untimely, and that it had jurisdiction to award companion home care requested by a treating physician when the defendant did not complete the UR within the 72-hour time frame for an expedited review under LC 4610. 

In Wyant v. American Medical Response, 2017 Cal. Wrk. Comp. P.D. LEXIS 587, the WCAB awarded an applicant spinal surgery that was denied earlier by utilization review (UR). After a second request for authorization, a subsequent UR determination found it medically necessary following a documented change in material facts under LC 4610(k). 

In Guerra v. Financial Statement Services, Inc., 2018 Cal. Wrk. Comp. P.D. LEXIS 2, the WCAB held that an applicant was entitled to temporary disability benefits based on the opinion of his new treating chiropractor, even though he was released from care without ratable disability or the need for future medical care by an earlier physician.

In Vargas v. Excel Staffing, 2017 Cal. Wrk. Comp. P.D. LEXIS 586, the WCAB vacated a WCJ’s notice of intent to dismiss a lien when: (1) the lien had already been dismissed by a prior judge, and there was no lien remaining to dismiss; and (2) the lien claimant asserted that the lien was subject to an automatic stay pursuant to LC 4615.

CHAPTER 12: DEATH BENEFITS

In Moon v. Southern California Edison, 2017 Cal. Wrk. Comp. P.D. LEXIS 590, the WCAB concluded that a minor son did not meet his burden of proving he was physically or mentally incapacitated from earning, which would have entitled him to lifetime death benefits pursuant to LC 4703.5, even though a physician reported that his autism spectrum disorder would require “continual medical and daily care assistance for life.” 

CHAPTER 14: DISCOVERY AND SETTLEMENT

In Shemet v. Perry, 2018 Cal. Wrk. Comp. P.D. LEXIS 22, the WCAB upheld a WCJ’s finding that an applicant suffered a compensable injury based on the QME’s report, and that the defendant was not denied due process, even though it could not cross-examine the applicant at trial because he claimed his Fifth Amendment rights.

In Gutierrez v. Molycorp Minerals, 2018 Cal. Wrk. Comp. P.D. LEXIS 3, the WCAB upheld a WCJ’s decision that the applicant was not entitled to a replacement panel based on the QME’s inability to make herself available for a deposition within 120 day as required by CCR 35.5(f).

CHAPTER 15: PRETRIAL LITIGATION

In Sequeira de Bustos v. WCAB, 2018 Cal. Wrk. Comp. LEXIS 4 (writ denied), the WCAB awarded an applicant 20 percent permanent disability based on the permanent and stationary report of a QME, even though the primary treating physician never issued reports addressing the applicant’s permanent disability. 

In Guerra v. Financial Statement Services, Inc., 2018 Cal. Wrk. Comp. P.D. LEXIS 2, the WCAB affirmed a WCJ’s order setting the matter for an expedited hearing on the applicant’s right to temporary disability benefits, even though the applicant’s attorney did not engage in a genuine, good-faith effort to resolve the dispute before filing the DOR.

In Torok v. County of San Diego, 2018 Cal. Wrk. Comp. P.D. LEXIS 6, the WCAB rescinded a WCJ’s order disallowing a lien for back surgery provided by a private health plan before an applicant filed a claim with the employer. 

In Torres v. American Building Janitorial, Inc., 2018 Cal. Wrk. Comp. P.D. LEXIS 11, the WCAB rescinded a WCJ’s finding that a lien was not properly and timely filed, and was invalid and barred by the statute of limitations when the WCJ misunderstood the requirements of LC 4903.8(d). 

CHAPTE R16: TRIAL AND APPEAL

In Sayre v. WCAB, 2018 Cal. Wrk. Comp. LEXIS 3 (writ denied), the WCAB concluded that an applicant did not meet his burden of proving his sarcoidosis and related erythema nodosum were related to his employment as a deputy sheriff. 

In Nowak v. Pacific Architectural Engineering, 2018 Cal. Wrk. Comp. P.D. LEXIS 18, the WCAB rescinded a WCJ’s award of continuing temporary disability when, after an expedited hearing Oct. 3, 2017, the parties received a report from the primary treating physician Oct. 13, 2017, stating that the applicant was permanent and stationary Aug. 23, 2017. 

Topics: Case Law Updates