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Case Law Updates for September 2017

Posted by Michael W. Sullivan on Sep 12, 2017 6:00:00 AM

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 5: INJURY

In Abea v. Parco, Inc., 2017 Cal. Wrk. Comp. P.D. LEXIS 302, the WCAB granted removal of a WCJ's order setting the matter for trial, even though the defendant objected on the grounds it had not completed discovery. The WCJ believed the case was ripe for trial because the "defendant has already denied the case without need for the discovery at issue." 

In Marroquin v. WCAB, 2017 Cal. Wrk. Comp. LEXIS 65 (writ denied), the WCAB found that an applicant's back injury was barred by LC 3600(a)(10), even though it believed he sustained injury AOE/COE.

In Miller v. O'Reilly Auto Parts, 2017 Cal. Wrk. Comp. P.D. LEXIS 319, the WCAB affirmed a WCJ's decision that an applicant's devastating injury while traveling to work was compensable under the special mission exception to the going and coming rule. 

 

CHAPTER 7: MEDICAL TREATMENT

Section 7.36 Utilization Review –– Procedures. The discussion concerns the procedures to be used when referring a request for medical treatment through the utilization review process.

In Sephers v. Stanislaus County Fairgrounds, 2017 Cal. Wrk. Comp. P.D. LEXIS 297, the WCAB held that a defendant's utilization review decision was untimely when the UR provider notified the requesting physician that additional information was needed, but on the same day, the UR physician prepared a UR denial stating that the medical records received were sufficient to make a medical determination and no additional medical information was necessary. 

In Maxton v. Lefiell Manufacturing, 2017 Cal. Wrk. Comp. P.D. LEXIS 316, the WCAB upheld a WCJ's decision that a defendant was liable for a handicap-adapted vehicle to assist an applicant in his use of a motorized scooter, and that the issue was not subject to the UR/IMR process. 

In Mancillas v. County of Los Angeles, 2017 Cal. Wrk. Comp. P.D. LEXIS 293, the WCAB affirmed a WCJ's finding that she was empowered to adjudicate the liens of Dr. Sobol because no order of consolidation had issued per LC 139.21.

In Lugo v. County of Los Angeles, 2017 Cal. Wrk. Comp. P.D. LEXIS 306, the WCAB upheld an award that relied on the opinion of Dr. Sobol even though he was suspended from the workers' compensation system based on a fraud conviction pursuant to LC 139.21. 

 

CHAPTER 9: TEMPORARY DISABILITY

In Pike v. County of San Diego, 2017 Cal. Wrk. Comp. P.D. LEXIS 321, the panel majority held that when acting on a timely petition to reopen, the WCAB may award temporary disability benefits more than five years from the date of injury for injuries on or after Jan. 1, 2008, provided that the applicant is limited to an aggregate of 104 weeks of benefits. 

 

CHAPTER 10: PERMANENT DISABILITY

In Guerrero v. Ramcast Steel Fabrication, 2017 Cal. Wrk. Comp. P.D. LEXIS 285, the WCAB held that an applicant was entitled to psychiatric permanent disability as a result of the violent act and catastrophic injury exceptions defined in LC 4660.1(c)(2). 

In Lopez v. General Wax Co., Inc., 2017 Cal. Wrk. Comp. P.D. LEXIS 291, the WCAB upheld an award of 100 percent permanent total disability when the applicant was injured when her index finger became stuck in a machine and was partially amputated. 

In Baker v. WCAB (Guerrero) (2017) 13 Cal. App. 5th 1040, the 6th District Court of Appeal held that the SIBTF must begin payment of benefits at the time the employer's obligation to pay permanent disability benefits begins. 

 

CHAPTER 11: RETURN TO WORK

In Sesena v. Residence Inn By Marriott, LLC, 2017 Cal. Wrk. Comp. P.D. LEXIS 320, the WCAB reversed a WCJ and held that an employee may be awarded separate vouchers for separate injuries even though they became permanent and stationary at the same time. 

In Espinoza v. Avis Rent A Car, 2017 Cal. Wrk. Comp. P.D. LEXIS 309, the WCAB upheld a WCJ's decision that an employer did not violate LC 132a when it terminated an employee pursuant to a compromise and release agreement with a voluntary resignation approved eight years earlier. 

 

CHAPTER 14: DISCOVERY AND SETTLEMENT

In Vargas, Gonzalez v. Barrett Business Services, Inc., 2017 Cal. Wrk. Comp. P.D. LEXIS 317, the WCAB concluded that an applicant was entitled to additional QME panels in gastroenterology and otorhinolaryngology when the additional panels were requested by the original QME and the primary treating physician. 

 

CHAPTER 15: PRETRIAL LITIGATION

In Staudt v. University of California Los Angeles, 2017 Cal. Wrk. Comp. P.D. LEXIS 324, the WCAB rescinded a WCJ's order dismissing an applicant's case after she did not personally appear at a mandatory settlement conference. 

In Thompkins v. Citizens Telecom, 2017 Cal. Wrk. Comp. P.D. LEXIS 300, the WCAB granted an applicant attorney's petition for dismissal as the attorney of record after he had secured two awards of compensation, including for future medical treatment. 

 

Topics: Case Law Updates

Psychiatric Impairment Under Labor Code § 4660.1(c)

Posted by Sure S. Log on Sep 11, 2017 8:51:35 AM

 

      Labor Code § 4660.1 was enacted as a part of SB 863 to further the Legislature's effort to reduce workers' compensation costs. Under § 4660.1(c), "[T]here shall be no increases in impairment ratings for sleep dysfunction, sexual dysfunction, or psychiatric disorder, or any combination thereof, arising out of a compensable physical injury." Section 1 of SB 863 explains that "in enacting subdivision (c) of Section 4660.1 of the Labor Code, the Legislature intends to eliminate questionable claims of disability when alleged to be caused by a disabling physical injury arising out of and in the course of employment …"     

As a result, in the years after SB 863 took effect in 2013, practitioners saw fewer filings of add-on claims for psychiatric disability. SB 863, however, did not eliminate add-on psychiatric claims entirely. It was intended only to "eliminate questionable claims of disability." The WCAB has increasingly limited the psychiatric claims barred by § 4660.1(c).

      First, the WCAB has held that § 4660.1(c) bars add-on claims of permanent impairment only when they arise out of a compensable physical injury. That is, a psychiatric impairment is barred by § 4660.1(c) only if it is a compensable consequence of a physical injury. If the psychiatric impairment arises directly from an accident, as opposed to physical injuries from the accident, § 4660.1(c) is inapplicable. (See Allen v. Carmax, 2017 Cal. Wrk. Comp. P.D. LEXIS 303.)

      Second, even if a psychiatric impairment flows from a physical injury, under § 4660.1(c)(2), the impairment may be compensable if it resulted from either: (A) being a victim of a violent act or being directly exposed to a significant violent act within the meaning of § 3208.3; or (B) a catastrophic injury, including, but not limited to, loss of limb, paralysis, severe burn or severe head injury.

      With respect to the violent act exception, the WCAB has adopted a broad definition of the term. It has held that a violent act is not limited to criminal or quasi-criminal activity, and may include other acts characterized by strong physical force, extreme or intense force or are vehemently or passionately threatening. So the WCAB has applied the exception to motor vehicle accidents (Larsen v. Securitas Security Services (2016) 81 CCC 770; Madson v. Michael J. Cavaletto Ranches, 2017 Cal. Wrk. Comp. P.D. LEXIS 165) and a tree trimmer's fall from a 20-foot tree (Torres v. Greenbrae Management, 2017 Cal. Wrk. Comp. P.D. LEXIS 230).

      As for a catastrophic injury, the WCAB has recognized that there is no easy definition of the term. But it will apply the exception on a case-by-case basis when appropriate. In one case, a worker’s hand was crushed in a hydraulic press, causing a “severe, mangling injury” that resulted in partial amputation. The WCAB found that the accident qualified as a catastrophic injury (Guerrero v. Ramcast Steel Fabrication, 2017 Cal. Wrk. Comp. P.D. LEXIS 285).

      An injured employee, then, has two paths toward obtaining permanent disability for a psychiatric injury. Psychiatric impairment may be compensable either because it arises directly from an injury or employment events, or because it satisfies the WCAB's broad definitions of a violent act or catastrophic injury.

      In addition, the WCAB has explained that § 4660.1(c) governs only the collection of permanent disability benefits. That section expressly allows injured workers to receive medical treatment for psychiatric injury that flows from a physical injury. It does not preclude an employee from collecting temporary disability benefits from an add-on psychiatric injury (Lopez v. General Wax Co., Inc., 2017 Cal. Wrk. Comp. P.D. LEXIS 291). Also, it does not preclude an employee from requesting a psychiatric QME panel to assess whether he or she requires medical care or temporary disability indemnity on a psychiatric basis (Hernandez v. Fremont Bank, 2015 Cal. Wrk. Comp. P.D. LEXIS 470).

      So, although § 4660.1(c) has and will continue to limit the number and types of psychiatric claims that may be filed, it was never intended to eliminate psychiatric claims entirely. The WCAB retains significant authority to determine whether an employee is entitled to disability benefits and medical treatment as a result of a psychiatric condition. 

Topics: Case Law Updates

Case Law Updates for August 2017

Posted by Michael W. Sullivan on Aug 22, 2017 9:30:00 AM

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 Chappin v. Peninsula Sports, Inc., 2017 Cal. Wrk. Comp. P.D. LEXIS 258, the WCAB held that a teacher, who was injured while officiating a high school football game, was an employee of Peninsula Sports, which supplied sports officials to local entities. 

 

CHAPTER 5: INJURY

In Lapesarde v. California Department of Corrections and Rehabilitation, 2017 Cal. Wrk. Comp. P.D. LEXIS 269, the WCAB held that a licensed vocational nurse's injury was not compensable under the special mission exception to the going and coming rule when he was not credible as to whether the extra hours he worked were undertaken at the request of or for the benefit of the employer. 

In Steil v. Santa Barbara Community College District, 2017 Cal. Wrk. Comp. P.D. LEXIS 275, the WCAB held that a college tutor sustained a compensable injury when he was injured while skateboarding to an unscheduled and unauthorized tutoring session. 

 

CHAPTER 7: MEDICAL TREATMENT

In Payne v. Federal Express, 2017 Cal. Wrk. Comp. P.D. LEXIS 243,  the WCAB held that a 2003 compromise and release, which included a specific agreement to use an AME to determine medical treatment disputes, precluded the use of the IMR process to resolve a treatment dispute. 

In Barragan v. T&T Marketing Services, Inc., 2017 Cal. Wrk. Comp. P.D. LEXIS 233, the WCAB upheld an IMR determination that a prescription for Norco was not medically necessary and appropriate, based on the 2016 MTUS Chronic Pain Medical Treatment (CPMT) Guidelines and the 2016 MTUS Opioids Treatment Guidelines. 

In Callejo v. Trinity Building Maintenance, 2017 Cal. Wrk. Comp. P.D. LEXIS 234, the WCAB upheld a WCJ's determination that a defendant's failure to comply with an applicant's request for a medical access assistant to set up an appointment for him with an MPN physician resulted in a denial of care. 

In Enciso v. Toys "R" Us, 2017 Cal. Wrk. Comp. P.D. LEXIS 262, the WCAB held that a WCJ erroneously found that a lien by First Line Health Los Angeles was stayed by operation of LC 4615 based on an indictment of one of the lien claimant's owners, Dr. David Johnson.

 

CHAPTER 10: PERMANENT DISABILITY

In Nowlin v. City of Pacific Grove, 2017 Cal. Wrk. Comp. P.D. LEXIS 274, the WCAB rescinded a 100 percent permanent total disability award based on LC 4662(a)(2) when the evidence did not support the WCJ's finding that applicant lost the use of both hands.

In Jansen v. FolgerGraphics, 2017 Cal. Wrk. Comp. P.D. LEXIS 241, the WCAB rejected an applicant's contention that, pursuant to LC 4661.15, he was entitled to payment of retroactive permanent total disability (PTD) benefits at the current permanent total disability rate, and held that LC 4661.5 does not affect the rate of PTD payments paid beyond two years from the applicant's permanent and stationary date.

 

CHAPTER 14: DISCOVERY AND SETTLEMENT

In Perez v. Roman Catholic Bishop of San Jose, 2017 Cal. Wrk. Comp. P.D. LEXIS 270, the WCAB upheld a WCJ's decision ordering disclosure of investigators' reports regarding surveillance. 

In Chavez v. Frank Fiala Roofing, 2017 Cal. Wrk. Comp. P.D. LEXIS 235, the WCAB quashed a defendant's subpoena for deposition of the applicant's wife on the grounds that the subpoena was procedurally deficient and on the grounds of the marital privilege under Evidence Code 970 and Evidence Code 980.

In Camberos v. Lyon, et al., dba Taco Bell, 2017 Cal. Wrk. Comp. P.D. LEXIS 256, the WCAB held that if an unrepresented applicant was evaluated by a panel QME but the evaluator was replaced after the applicant gained representation, the procedures for selecting a QME under LC 4062.2 would apply.

In Chand v. Macy's, 2017 Cal. Wrk. Comp. P.D. LEXIS 257, the WCAB denied a defendant's petition for removal challenging a WCJ's order denying the defendant's request to quash the applicant's subpoena duces tecum

 

CHAPTER 15: PRETRIAL LITIGATION

In Vargas v. Becker, Becker Construction, 2017 Cal. Wrk. Comp. P.D. LEXIS 276, the WCAB allowed an applicant's wife to testify at trial even though she was not disclosed at the MSC when her testimony was needed to confirm the applicant's identity.

 

CHAPTER 16: TRIAL AND APPEAL

 In Vargas v. Becker, Becker Construction, 2017 Cal. Wrk. Comp. P.D. LEXIS 276, the WCAB held that a WCJ did not err in allowing an applicant to testify remotely, from Mexico, on an iPhone and/or iPad using Apple's FaceTime application. 

 

Topics: Case Law Updates

Can the Deposition of an Injured Worker's Spouse be Compelled in Workers' Compensation Proceedings?

Posted by Sure S. Log on Aug 21, 2017 9:00:00 AM

The law establishes a marital privilege protecting a person from testifying against his or her spouse. Although this privilege is commonly used in criminal proceedings, it applies to more than that.

 Evidence Code § 970 states that "a married person has a privilege not to testify against his spouse in any proceeding." Evidence Code § 971 states that "a married person whose spouse is a party to a proceeding has a privilege not to be called as a witness by an adverse party." Additionally, Evidence Code § 980 states that "a spouse ...  whether or not a party, has a privilege during the marital or domestic partnership relationship." Accordingly, this privilege also applies in workers' compensation proceedings.

 The marital privilege, however, is not absolute. The privilege may be waived if a person chooses to testify against his or her spouse. If a spouse testifies against an injured worker in a case, the spouse may not claim the marital privilege in those proceedings. (Evid. Code, § 973(a).)

 The non-party spouse may also be compelled to testify in certain situations. The privilege does not apply if the communication was made to enable or aid anyone to commit or plan to commit a crime or a fraud. (Evid. Code, § 981.) Also, Evidence Code § 973(b) states, "There is no privilege under this article in a civil proceeding brought or defended by a married person for the immediate benefit of his spouse or of himself and his spouse."

 The question then is whether workers' compensation benefits are for the "the immediate benefit" of a spouse under Evidence Code § 973(b) allowing the spouse to be deposed in the workers' compensation proceedings. Unfortunately, the question has not been affirmatively answered. The courts have disagreed on when civil damages are for the immediate benefit of a non-party spouse.

 In Duggan v. Superior Court of Napa County (1981) 127 Cal. App. 3d 267, the First District Court of Appeal held a spouse was not a person for whose immediate benefit an action was brought solely because she had a potential community property interest in civil recovery. The court believed any claim to a community property interest in would be against party spouse, rather than the opposing party in the civil suit.

 The following year, however, in Hand v. Superior Court of San Joaquin County (Boles) (1982) 134 Cal. App. 3d 436, the Third District Court of Appeal reached a different conclusion. It held that personal injury damages are community property for the "immediate benefit" of the noninjured spouse, subjecting the noninjured spouse to a deposition.

Because workers' compensation benefits received during the marriage also constitute community property (see Raphael v. Bloomfield (2003) 113 Cal. App. 4th 617), it is arguable that workers' compensation benefits are for the immediate benefit of the noninjured spouse for the purposes of Evidence Code § 973(b).

 It has been over 25 years since these cases were decided, and the issue remains unresolved. No other appellate level decisions have addressed the issue. However, in Chavez v. Frank Fiala Roofing (2017) 2017 Cal. Wrk. Comp. P.D. LEXIS 235, the WCAB addressed the Evidence Code § 973(b) exception to the marital privilege as it applied to workers' compensation proceedings. The WCAB noted that the defendant cited Hand to support its argument that workers' compensation benefits were for the immediate benefit of the non-party spouse, but relied on Duggan to support its opinion that the non-party spouse could not be compelled to testify under Evidence Code § 973(b).

  Because there was a split in authority, the WCAB in Chavez had authority to choose between the conflicting decisions. Because there is no binding authority, it remains an open issue as to whether a non-party spouse can be compelled to testify under Evidence Code § 973(b).

 Nevertheless, employers seeking to depose an injured worker's spouse will likely face a significant hurdle. Without addressing the exception in Evidence Code § 973(b), the WCAB has demonstrated that it is reluctant to allow employers to depose an injured workers' spouse. (See Hershewe v. WCAB (Clabaugh) (2002) 67 CCC 1198 (writ denied); Zenith Insurance Co. v. WCAB (Mota) (2012) 77 CCC 200 (writ denied).)

 Unless further case law develops, it is likely that the WCAB will continue to rely on Duggan to find that workers' compensation benefits are not for the immediate benefit of the non-injured spouse under Evidence Code § 973(b) and deny employers' efforts to depose the non-injured spouse.

Topics: Case Law Updates

Case Law Updates for July 2017

Posted by Michael W. Sullivan on Jul 17, 2017 11:00:00 AM

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 2: JURISDICTION AND SUBROGATION

In Sywassink v. Pacific Gas and Electric Co., 2017 Cal. Wrk. Comp. P.D. LEXIS 205, the WCAB held that a defendant was not entitled to credit pursuant to LC 3852 et seq for its workers' compensation liability for an applicant's recovery from the National Vaccine Injury Compensation Program (NVICP).

 

CHAPTER 5: INJURY

In Bass v. State of California, Department of Corrections & Rehabilitation, 2017 Cal. Wrk. Comp. P.D. LEXIS 213, the WCAB upheld a WCJ's finding that an applicant sustained a single cumulative trauma injury to the end of his employment, even though he had two different dates of injury under LC 5412 for his heart and orthopedic injuries.

In Zhu v. WCAB (2017) B278696, the 2nd District Court of Appeal held that an injury suffered by an in-home caretaker for the Department of Social Services (Department) was compensable when she was struck by a car while riding her bike between two patients' houses. 

 

CHAPTER 7: MEDICAL TREATMENT

In Henry v. Superior Court of California, 2017 Cal. Wrk. Comp. P.D. LEXIS 217, the WCAB held that an applicant was not entitled to temporary partial disability on a wage-loss basis for the time she spent seeking medical treatment during working hours.

In McKenny v. Southern California Edison, 2017 Cal. Wrk. Comp. P.D. LEXIS 200, the WCAB concluded that a defendant could continue disputing the need for medical treatment on threshold issues following a UR denial of care.

In Marciel v. Atwater Elementary School District, 2017 Cal. Wrk. Comp. P.D. LEXIS 199, the WCAB found that an IMR determination was plainly erroneous, and the mistake was not a matter subject to expert opinion when the IMR reviewer denied medical treatment authorized by a defendant's UR.

In Stevens v. Outspoken Enterprises, Inc., 2017 Cal. Wrk. Comp. P.D. LEXIS 228, the WCAB on remittitur from the 1st District Court of Appeal concluded that the applicant's request for housekeeping and personal care services was denied without authority.


CHAPTER 8: COMPENSATION RATE

In Loyd v. Dolan Concrete Construction, 2017 Cal. Wrk. Comp. P.D. LEXIS 198, the WCAB rescinded a WCJ's award for a temporary disability rate of $764 per week because it did not adequately reflect the applicant's earning capacity.


CHAPTER 10: PERMANENT DISABILITY

In Torres v. Greenbrae Management, 2017 Cal. Wrk. Comp. P.D. LEXIS 230, the WCAB held that impairment for an applicant tree trimmer's psychiatric injury was compensable and that the mechanism of his injury constituted a "violent act" pursuant to LC 4660.1(c)(2)(A).

In Cann v. Desert View Auto Auction, 2017 Cal. Wrk. Comp. P.D. LEXIS 214, the WCAB granted removal and rescinded a WCJ's order allowing a court reporter to fully record a defendant's vocational evaluation.

In Hikida v. WCAB (2017) B279412, the 2nd District Court of Appeal held that an employer is responsible for both the medical treatment and any disability arising directly from unsuccessful medical intervention, without apportionment.


CHAPTER 14: DISCOVERY AND SETTLEMENT

In Nedjar v. Parsec, 2017 Cal. Wrk. Comp. P.D. LEXIS 224, the WCAB adopted a WCJ's decision denying a defendant's petition to compel an applicant's twin brother to appear at a mandatory settlement conference (MSC) and to produce certain documents including a Social Security card, and/or resident alien documents and/or documents to demonstrate legal residence.

In Lopez v. County of San Joaquin, 2017 Cal. Wrk. Comp. P.D. LEXIS 197, the WCAB held that an applicant was entitled to be re-evaluated by an AME and a QME in connection with her petition to reopen when she previously received an award based on the physicians' opinions.

In Maya v. All Commercial Industries, 2017 Cal. Wrk. Comp. P.D. LEXIS 223, the WCAB denied reimbursement to a copy service for work done at the request of the applicant's third attorney of record.


CHAPTER 16: TRIAL AND APPEAL

In Hikida v. WCAB (2017) B279412, the 2nd District Court of Appeal held that an applicant's petition for writ of review challenging the WCAB's opinion on apportionment was timely even though she did not appeal the WCAB's original opinion on the issue.

Topics: Case Law Updates