Case Law Updates for May 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 4: EMPLOYMENT

In Marinwood Community Services v. WCAB (Romo) (2017) 10 Cal. App. 5th 231, the 1st District Court of Appeal held that a "volunteer fire department" for the purposes of LC 3361 includes a fire department composed predominantly, but not exclusively, of volunteers.

CHAPTER 5: INJURY

In Marinwood Community Services v. WCAB (Romo) (2017) 10 Cal. App. 5th 231, the 1st District Court of Appeal held that, under LC 3212.1, a volunteer firefighter was entitled to the cancer presumption against an employer even though he had not worked for that employer in more than 20 years.

CHAPTER 7: MEDICAL TREATMENT

In Garas v. RXI Plastics, Inc., 2017 Cal. Wrk. Comp. P.D. LEXIS 90, the WCAB rescinded a WCJ's order requiring a defendant to continue providing round-the-clock home health-care services "subject to a change in applicant's condition warranting reduction."

In Weimer v. Hillyard, Inc., 2017 Cal. Wrk. Comp. P.D. LEXIS 104, the WCAB held that an RFA form triggered an employer's UR obligations even though it did not contain the correct claim number. 

In Voelker v. D. Frey Plastering Co., 2017 Cal. Wrk. Comp. P.D. LEXIS 103, the WCAB concluded that an IMR determination denying a left shoulder arthroscopic surgery based on the result of a plainly erroneous finding of fact that was a matter of ordinary knowledge for the purposes of LC 4610.6(h).

In Puente v Napa Valley Unified School District, 2017 Cal. Wrk. Comp. P.D. LEXIS 100, the WCAB rescinded a WCJ's decision that a defendant's MPN was inadequate because there were only two pain management doctors within 30 minutes or 15 miles of the applicant's residence or workplace. 

CHAPTER 9: TEMPORARY DISABILITY

In Keltner v. California Guest Services, Inc., 2017 Cal. Wrk. Comp. P.D. LEXIS 94, the panel majority held that an applicant was permanent and stationary following a UR denial of lumbar surgery.

CHAPTER 10: PERMANENT DISABILITY

In Irving v. JP Morgan Chase, 2017 Cal. Wrk. Comp. P.D. LEXIS 93, the panel majority held that an applicant's sleep disability was not compensable when a physician's report was insubstantial, even though a sleep study was performed. The applicant alleged injury to multiple body parts as a result of an injury occurring in 2010, including a sleep disorder. 

In Madson v. Michael J. Cavaletto Ranches, 2017 Cal. Wrk. Comp. P.D. LEXIS 95, the WCAB held that an applicant was entitled to permanent disability for injury to his psyche as a result of a 2013 motor vehicle accident. 

In City of Jackson v. WCAB (Rice) (2017) C078706, the 3rd District Court of Appeal held that apportionment pursuant to LC 4663 could be made to heredity or genetic factors. 

CHAPTER 13: PENALTIES AND SANCTIONS

In White v. WCAB, 2017 Cal. Wrk. Comp. LEXIS 33 (writ denied), the WCAB held that although a defendant was liable for LC 5814 penalties for its unreasonable delay in providing awarded assisted-living services, the defendant was not liable for the value of the accrued benefits. 

CHAPTER 14: DISCOVERY AND SETTLEMENT

In Koran v. City & County of San Francisco, 2017 Cal. Wrk. Comp. P.D. LEXIS 118, the WCAB upheld a WCJ's order excluding a defense counsel's law student intern from attending an applicant's deposition when the applicant objected to the student's presence. 

In Freitas v. Visalia Unified School District, 2017 Cal. Wrk. Comp. P.D. LEXIS 87, the WCAB upheld a WCJ's decision replacing a QME in podiatry with a panel in orthopedics when the applicant filed an application alleging injury to the bilateral feet, low back, bilateral knees and left hip. 

In Davis v. WCAB (2017) 82 CCC 187, the 5th District Court of Appeal issued an unpublished opinion vacating the WCAB's decision that an applicant's self-procured report pursuant to LC 4605 was not reviewable by a QME.

CHAPTER 15: PRETRIAL LITIGATION

In Galindo v. American Medical Response, 2017 Cal. Wrk. Comp. P.D. LEXIS 88, the WCAB affirmed a WCJ's order closing discovery and setting a matter for trial even though the defendant asserted that discovery was not completed because it had not deposed the panel QME. 

In Flores v. Chualar Canyon Ranch Supply, 2017 Cal. Wrk. Comp. P.D. LEXIS 110, the WCAB awarded reimbursement of a vocational rehabilitation expert's costs, even though his opinion that the applicant was permanently totally disabled was rejected because the psychiatric aspects of her claim were barred by the six-month rule in LC 3208.3.