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Case Law Updates for October 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.


In McIntosh v. Military Department of the State of California, 2017 Cal. Wrk. Comp. P.D. LEXIS 371, the WCAB held that it did not have jurisdiction over an applicant's claim for a latent injury to her psyche arising out of a sexual assault that occurred while training with the California Army National Guard. 



In Bellissimo v. Cast & Crew Entertainment Services, Inc., 2017 Cal. Wrk. Comp. P.D. LEXIS 333, the WCAB upheld an arbitrator's decision that liability under LC 5500.5 should be apportioned pro rata between the two employers based on the days worked for each employer during the liability period. 

In Illinois Midwest Insurance Agency, LLC v. WCAB (Casarotti), 2017 Cal. Wrk. Comp. LEXIS 83 (writ denied), the WCAB held that an applicant sustained a compensable injury when she fell from a bar stool and struck her head on the floor at work as a result of a nonindustrial alcohol withdrawal seizure.



In Albano v. Cal Amp Corp., 2017 Cal. Wrk. Comp. P.D. LEXIS 356, the WCAB held that the claim of three dependent children for death benefits was not barred by the statute of limitations under LC 5406, even though it was filed more than a year after the decedent employee's death. 

It explained that per Arndt v. WCAB (1976) 41 CCC 151 and Berkebile v. WCAB (1983) 48 CCC 438, it was incumbent on the defendant to produce evidence related to the date the dependents knew, or in the exercise of reasonable diligence, should have known that the cause of their mother's lung cancer and resulting death were industrially related.



In Morales v. Herrick Corp., 2017 Cal. Wrk. Comp. P.D. LEXIS 372, the WCAB held that a utilization review authorization for a single level epidural injection at C6-7 was not invalidated by a subsequent request and UR denial for a two-level epidural injection at the C5-C6 and C6-C7 levels. 

In Moss v. State of California Department of Corrections, 2017 Cal. Wrk. Comp. P.D. LEXIS 374, the WCAB held that LC 4610(g)(6),which generally provides that a utilization review decision remains in effect for 12 months unless there is a change in the applicant's condition, was inapplicable when the UR decision was not issued in response to a valid RFA or alternative form that could be accepted by the defendant under CCR 9792.9.1(c)(2)(B).

In Jimenez v. Rose Hill Co., 2017 Cal. Wrk. Comp. P.D. LEXIS 342, the WCAB concluded that a defendant's utilization review determination denying authorization for knee surgery was timely, and rejected the applicant's claim that the defendant's service of the UR determination was defective.



In Pribyl v. Acosta Sales and Marketing, 2017 Cal. Wrk. Comp. P.D. LEXIS 350, the WCAB found that an applicant was not permanent and stationary and was entitled to temporary disability benefits when all of the doctors reported she could not return to work until diagnostic testing was completed, even though the tests were timely denied by utilization review and independent medical review. 



In Hill v. State of California Department of Transportation, 2017 Cal. Wrk. Comp. P.D. LEXIS 340, the WCAB granted removal of a WCJ's decision to deny a defendant's petition to compel disclosure because the defendant sought a disclosure carefully modeled on the language of LC 4663(d).



In Jackson v. California Prison Industry Authority, 2017 Cal. Wrk. Comp. P.D. LEXIS 368, the WCAB held that a former state prison inmate was entitled to the voucher when the state of California could not make a bona fide offer of work because the applicant had been released from prison.



In Vasquez v. SNCH, Inc., 2017 Cal. Wrk. Comp. P.D. LEXIS 354, the WCAB held that a QME did not violate LC 139.3 and CCR 41.5 when he referred the applicant to his wife for EMG testing within his own office. It found that the QME disclosed this fact in his report and the EMG services were billed as part of the QME evaluation costs. 

In Villanueva v. El Rosal Restaurant, 2017 Cal. Wrk. Comp. P.D. LEXIS 379, the WCAB rescinded a WCJ's order for a defendant to reissue a $20,000.50 settlement check to the applicant, who claimed that her check was fraudulently cashed by someone else.



In Lin v. Automobile Club of Southern California, 2017 Cal. Wrk. Comp. P.D. LEXIS 346, the WCAB concluded that a WCJ acted properly when he ordered discovery for the limited purpose of assessing the applicant's alleged unavailability to testify at trial after the start of trial. 

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