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Case Law Updates for November 2016

Posted by Michael W. Sullivan on Nov 3, 2016 10:00:00 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 in Sullivan on Comp available to subscribers at


In Farias v. Able Building Maintenance, 2016 Cal. Wrk. Comp. P.D. LEXIS 440, the panel majority upheld an arbitrator's decision that an applicant was entitled to self-procure treatment at the employer's expense from the date the claim was denied until the claim was accepted, and that when the claim was accepted, medical control transferred to the exclusive provider network under a carve-out agreement.

In Berrios v. EJ Distribution Corp., 2016 Cal. Wrk. Comp. P.D. LEXIS 416, the WCAB upheld an arbitrator's decision that an insurer could not unilaterally and retroactively rescind a workers' compensation insurance policy based on an allegation that the policy was procured by fraud.


In County of Riverside v. WCAB (Sanchez), 2016 Cal. Wrk. Comp. LEXIS 108 (writ denied), the WCAB held that under Arriaga v. County of Alameda (1995) 60 CCC 316, an applicant who pleaded guilty of illegal possession of a gun was an employee of the County of Riverside when he was injured while serving his sentence through a work release program, rather than through electronic confinement with the use of an ankle bracelet.


In Simmons v. County of Riverside, 2016 Cal. Wrk. Comp. P.D. LEXIS 442, the WCAB held that a deputy sheriff was entitled to the heart trouble presumption under LC 3212.5, even though he had heart trouble before his employment.


In Miranda v. El Super Market, 2016 Cal. Wrk. Comp. P.D. LEXIS 434, the WCAB held that a lien was barred by the 18-month statute of limitations under LC 4903.5(a) when a lien claimant provided services from June 19, 2013, through Oct. 28, 2013, but did not file its lien until Sept. 24, 2015. T


In Naus v. Central Coast Village Center, 2016 Cal. Wrk. Comp. P.D. LEXIS 462, the WCAB held that a physician's request for a spinal cord stimulator was medically necessary, despite an earlier utilization review denial, because a subsequent request was supported by a documented change in the facts pursuant to LC 4610(g)(6).

In Flores de Lopez v. Facey Medical Foundation, 2016 Cal. Wrk. Comp. P.D. LEXIS 423, the WCAB held that a defendant waived its rights to submit a request for transportation to medical appointments to utilization review and independent medical review, but that other transportation requests were subjected to those processes.

In Parrent v. SBC-Pacific Bell Telephone Co., 2016 Cal. Wrk. Comp. P.D. LEXIS 437, the WCAB affirmed the WCJ's determination that following the UR denial of the MPN treating physician's treatment recommendation, the issue must proceed through independent medical review, as the board lacks jurisdiction to determine the medical necessity of the recommended treatment.


In Leo v. Greenspan Adjusters International, Inc., 2016 Cal. Wrk. Comp. P.D. LEXIS 431, the WCAB rescinded an award of 54 percent permanent disability PD when it found that a WCJ improperly added an applicant's impairment and instead awarded 46 percent PD by combining his impairment using the Combined Values Chart (CVC).

In Kubeck v. Caletti Jungsten Construction, 2016 Cal. Wrk. Comp. P.D. LEXIS 430, the WCAB rescinded a WCJ's finding that a psychiatric AME's opinion was not substantial evidence, and issued an amended award after apportioning the psychiatric disability to nonindustrial factors.


In Von Ritzhoff v. Ogden Entertainment Food Services, 2016 Cal. Wrk. Comp. P.D. LEXIS 471, the WCAB rescinded a WCJ's order appointing an applicant's attorney to be a special master to monitor depositions in an applicant's workers' compensation case when the defendant argued that the appointment of the applicant's attorney was prejudicial because she frequently made appearances opposite defendants at the Van Nuys office of the appeals board.

In Shadmehr v. Staples, 2016 Cal. Wrk. Comp. P.D. LEXIS 467, the WCAB upheld a WCJ's order for a replacement QME when the QME had a disqualifying conflict of interest under CCR 41.5(d)(4).

In Hubbard v. United Parcel Service, 2016 Cal. Wrk. Comp. P.D. LEXIS 459, the WCAB granted reconsideration on its own motion, rescinded its earlier decision (Hubbard v. United Parcel Service, 2015 Cal. Wrk. Comp. P.D. LEXIS 350) and held that a lien claimant's lien was allowable as a medical-legal expense pursuant to LC 4620 incidental to the production of the primary treating physician's medical-legal report.


In Moreno v. RTJ Home Sweet Home, Inc., 2016 Cal. Wrk. Comp. P.D. LEXIS 436, the WCAB rescinded a WCJ's opinion that an applicant suffered a compensable injury when it found that the WCJ violated the defendants' due process right by excluding the employer from the courtroom.

In Jimenez v. Steel Tech Industrial Corp., 2016 Cal. Wrk. Comp. P.D. LEXIS 429, the WCAB upheld an order dismissing a lien when the lien claimant failed to file a fully executed notice of representation as required under CCR 10774.5 or a copy of the assignment of the lien as required by LC 4903.8.


In Keillor v. County of Sacramento, 2016 Cal. Wrk. Comp. P.D. LEXIS 460, the WCAB held that a jury verdict in a civil case that the applicant's stroke was caused by job stress did not constitute material, newly discovered evidence under LC 5903(d) so as to warrant reversal of its decision that the applicant did not sustained injury arising out of an in the course of employment.

Complete discussion of these topics can be found in Sullivan On Comp available to subscribers at

Michael Sullivan is the founder of Michael Sullivan & Associates LLP, a workers' compensation defense firm with offices throughout California, and author of "Sullivan on Comp," a treatise on California workers' compensation law.

Topics: Case Law Updates