Case Law Updates for October 2016

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 WorkCompCentral.com.

In Prajapati v. Vesta Intermediate Funding, Inc., 2016 Cal. Wrk. Comp. P.D. LEXIS 382, the WCAB upheld an arbitrator's decision holding that an applicant's deposition transcript and an AME's reports were admissible in contribution proceedings even though they were obtained before the co-defendant was joined.

In Docena v. Layne Christensen Co., 2016 Cal. Wrk. Comp. P.D. LEXIS 393, the WCAB held that an applicant's injury was sudden and extraordinary under LC 3208.3(d) when he had to jump to avoid a large wrecking ball suspended from a crane directly above his head that fell when the cable holding it snapped.

CHAPTER 7: MEDICAL TREATMENT

In McAtee v. Briggs & Pearson Construction, 2016 Cal. Wrk. Comp. P.D. LEXIS 375, the WCAB reversed an IMR determination that Duragesic patches used by a 100 percent disabled employee were not medically necessary and appropriate when it found that the IMR reviewer applied the wrong part of the chronic pain medical treatment guidelines.

In Luna v. The Home Depot, 2016 Cal. Wrk. Comp. P.D. LEXIS 405, the panel majority upheld a WCJ's decision that an applicant was not entitled to treat outside of the defendant's MPN when he wanted to be treated by an orthopedic surgeon, and the parties stipulated that there was only one orthopedic surgeon within 15 miles, but 17 within 30 miles.

In Morales v. Pro Armor, 2016 Cal. Wrk. Comp. P.D. LEXIS 378, the WCAB held that a defendant was not liable for the liens of a medical provider or for translation services provided in conjunction with that treatment when the services were not authorized and were provided outside defendant's MPN.

CHAPTER 9: TEMPORARY DISABILITY

In Yonemitsu v. Pacific Bell Telephone Co., 2016 Cal Wrk. Comp. P.D. LEXIS 363, the WCAB denied a defendant "excess credit" in the amount of $12,244.19 for payments from the defendant's disability plan.

CHAPTER 11: RETURN TO WORK

In Tillman v. State of California, Corrections & Rehabilitation Parole, 2016 Cal. Wrk. Comp. P.D. LEXIS 386, the WCAB held that neither the 15 percent increase nor the 15 percent decrease under LC 4658(d) applied when, after a period of temporary disability, the applicant returned to full duty for four months before being found permanent and stationary.


CHAPTER 14: DISCOVERY AND SETTLEMENT

In Lopez v. California Pizza Kitchen, 2016 Cal. Wrk. Comp. P.D. LEXIS 399, the WCAB held that an applicant was entitled to a chiropractic QME panel, despite the fact that the primary treating physician was in family practice, when the defendant failed to timely object to the chiropractic panel in the manner provided by CCR 31.1.

In Parker v. DSC Logistics, 2016 Cal. Wrk. Comp. P.D. LEXIS 402, the WCAB rescinded a WCJ's decision that an applicant, who was evaluated by an orthopedic QME, was entitled to two additional QME panels to evaluate two additional other injuries when the original QME evaluated the applicant after all three of his claims were filed.

In Vera v. Monsanto Co., 2016 Cal. Wrk. Comp. P.D. LEXIS 360, the WCAB upheld a WCJ's order allowing an applicant who sustained an admitted back injury to obtain additional QME panels to evaluate her sexual dysfunction and neurologic complaints under CCR 31.7(b), even though they were not evaluated by the primary treating physician.

In Pineda v. Vegland, Inc., 2016 Cal. Wrk. Comp. P.D. LEXIS 380, the WCAB affirmed a decision holding that a defendant was not liable for the lien of a copy service in connection with subpoenas for employment and medical records when the copy service failed to meet its burden of proof to establish all elements to establish its claim.


CHAPTER 15: LITIGATION

In Orellana v. Pro Wash, Inc., 2016 Cal. Wrk. Comp. P.D. LEXIS 401, the WCAB upheld a WCJ's order setting a case for trial, even though the parties had not yet obtained a panel QME report as required by LC 4061(i), because the defendant failed to timely object to the declaration of readiness to proceed as required by CCR 10416.

In Martinez v. MK Roofing, Inc., 2016 Cal. Wrk. Comp. P.D. LEXIS 374, the WCAB rescinded an order dismissing an applicant's claims for failure to prosecute pursuant to CCR 10582 when the defendant sent a 30-day letter 507 days before filing a petition for dismissal.

In Barrera v. Golden State Foods Corp., 2016 Cal. Wrk. Comp. P.D. LEXIS 390, the WCAB awarded an applicant's attorney a $10,000 fee for a $50,000 settlement of her serious and willful misconduct claim even though the compromise and release provided for a 40 percent fee.