Case Law Updates for November 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 4: Employment

In Garcia v. Border Transportation Group (2018) D072521, the 4th District Court of Appeal held that the test adopted in Dynamex Operations West, Inc. v. Superior Court of Los Angeles County (Lee) (2018) 83 CCC 817 applied to the plaintiff’s wage order claims, but not to his nonwage order claims. 

Chapter 5: Injury

In Carrasco v. California Department of Corrections and Rehabilitation, 2018 Cal. Wrk. Comp. P.D. LEXIS 398, the WCAB held that when a psychiatric injury is presumed compensable under LC 5402, the defendant is not precluded from asserting and presenting evidence on the good-faith personnel action defense under LC 3208.3(h). 

In Perez v. Deardorff Jackson Co., 2018 Cal. Wrk. Comp. P.D. LEXIS 413, the WCAB held that the dependents of a harvester failed to meet their burden of proving that his death from a hypertensive stroke while working was compensable. 

Chapter 7: Medical Treatment

In Recano v. J Brand, Inc., 2018 Cal. Wrk. Comp. P.D. LEXIS 443, the WCAB granted an applicant’s appeal of an IMR determination upholding the defendant’s utilization review denial of home health-care services when the IMR reviewer failed to apply the 2016 Medical Treatment Utilization Schedule (MTUS) definition of the term “homebound.”

In Prado v. PCG Hospitality, 2018 Cal. Wrk. Comp. P.D. LEXIS 441, the panel majority held that a defendant’s failure to schedule an appointment with a physician within the MPN did not constitute a denial of care when the medical access assistant acted promptly in assisting the applicant in such scheduling. 

In Barri v. WCAB (2018) G054838, the 4th District Court of Appeal upheld the constitutionality of the lien fraud statutes. 

In Espinoza v. Baldwin Construction, 2018 Cal. Wrk. Comp. P.D. LEXIS 403, the WCAB held that a defendant bears the burden of proof to establish that a lien is subject to an LC 4615 stay.

Chapter 9: Temporary Disability

In Bedoya v. Ashley Furniture Industries, Inc., 2018 Cal. Wrk. Comp. P.D. LEXIS 396, the WCAB held that an applicant was entitled to temporary total disability benefits because the employer did not make an offer of work within his temporary work restrictions after he was laid off. 

Chapter 10: Permanent Disability

In Lindh v. City of Petaluma, 2018 Cal. Wrk. Comp. P.D. LEXIS 410, the WCAB awarded an applicant 40 percent permanent disability without apportionment when the QME improperly apportioned to risk factors for an injury.

In Hom v. City and County of San Francisco, 2018 Cal. Wrk. Comp. P.D. LEXIS 431, the WCAB upheld a WCJ’s decision that an applicant was entitled to 30 percent permanent disability for a 2013 injury to his lumbar spine, even though he received a prior award of 20 percent for a 2012 injury to the spine, because the defendant could not prove that the disabilities overlapped under LC 4664. 

Chapter 14: Discovery and Settlement

In Ramirez v. Jaguar Farm Labor Contracting, Inc., 2018 Cal. Wrk. Comp. P.D. LEXIS 442, the WCAB held that an applicant should be evaluated by a QME in chiropractic, even though the medical director issued a replacement panel in orthopedic medicine. 

In Suon v. California Dairies (2018) ADJ9013590; ADJ9014316; ADJ9489408, the WCAB issued an en banc decision holding: (1) disputes over what information to provide to the QME are to be presented to the WCAB if the parties cannot informally resolve them; (2) although LC 4062.3(b) does not give a specific timeline for the opposing party to object to the QME’s consideration of medical records, that party must object to the provision of medical records to the QME within a reasonable time in order to preserve the objection; (3) if the aggrieved party elects to terminate the evaluation and seek a new evaluation due to an ex parte communication, that party must do so within a reasonable time following discovery of the prohibited communication; (4) the trier of fact has wide discretion to determine the appropriate remedy for a violation of LC 4062.3(b); and (5) removal is the appropriate procedural avenue to challenge a decision regarding disputes over what information to provide to the QME and ex parte communication with the QME.

In Ocana v. Selah Gourmet Food, dba Country House, 2018 Cal. Wrk. Comp. P.D. LEXIS 440, the WCAB rescinded a WCJ’s decision and allowed a defendant to send vocational evidence to the QMEs under CCR 35(d), as the evidence could affect the permanent disability rating. 

In Rodriguez v. Waste Management Collection and Recycling, 2018 Cal. Wrk. Comp. P.D. LEXIS 408, the WCAB amended a WCJ’s decision allowing an applicant to record his QME evaluation through a court reporter to also permit him to make an audio recording with his phone.

In Casado v. Kaiser Permanente, 2018 Cal. Wrk. Comp. P.D. LEXIS 399, the WCAB held that a QME’s report was inadmissible when it stated that his medical assistants performed Jamar dynamometer measurements as part of his evaluation, but the QME, in the report or at deposition, was unable to clarify which assistant performed the measurements, in violation of LC 4628(b).

In Lopez v. Car Care, Inc., 2018 Cal. Wrk. Comp. P.D. LEXIS 411, the WCAB upheld a WCJ’s decision that an applicant’s request for a replacement panel in pain management was void, and ordered the applicant to be evaluated by a replacement panel in orthopedic surgery requested by the defendant.

In Davies v. Securitas Security Services USA, Inc., 2018 Cal. Wrk. Comp. P.D. LEXIS 423, the panel majority held that a primary treating physician was entitled to recover for his lien related to a psychiatric evaluation under LC 4060 on the issue of compensability, which was prepared after the defendant denied the claim. 

Chapter 15: Pretrial Litigation

In Dean v. HomeGrocer.com, 2018 Cal. Wrk. Comp. P.D. LEXIS 424, the WCAB held that a defendant did not establish good cause to set aside stipulations that an applicant sustained injury to various body parts even though the QME and the applicant’s primary treating physician were found guilty of crimes relating to workers’ compensation.

In Crook v. Santa Ynez Valley Presbyterian Preschool, 2018 Cal. Wrk. Comp. P.D. LEXIS 401, the appeals board held that when a party exercises a peremptory challenge of a WCJ for trial, but the same WCJ is conducting the MSC, the WCJ retains authority to issue orders such as discovery orders. 

Chapter 16: Trial and Appeal

In Alaeddin v. SCIF, 2018 Cal. Wrk. Comp. P.D. LEXIS 395, the WCAB upheld a WCJ’s decision that substantial evidence established that a claims adjuster sustained a cumulative trauma injury resulting in a stroke.