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Sullivan: January 2017 Case Law Update

  • State: California

Jurisdiction and subrogation

In Lee v. West Kern Water District (2016) 81 CCC 966, the 5th District Court of Appeal held that an employee's civil claim for assault and intentional infliction of emotional distress was not barred by the exclusive remedy rule when she was injured during a mock robbery staged by the employer.  

Michael Sullivan

Michael Sullivan

Business of insurance

In Taylor v. DIR (2016) 81 CCC 1016, the 1st District Court of Appeal held that the term "calendar year," as used in LC 3722(b), means the 12-month period immediately preceding a determination by the Division of Labor Standards Enforcement that an employer has been uninsured for the requisite period.

In Nunez v. Mann Packing Company Inc., 2016 Cal. Wrk. Comp. P.D. LEXIS 568, the WCAB held that the State of California/In-Home Supportive Services, as a legally uninsured entity, does not constitute other insurance per IC 1063.1, and denied California Insurance Guarantee Association's petition for reimbursement and a petition for change of administrator.

Statutes of limitations

In Garza v. City of Fresno, 2016 Cal. Wrk. Comp. P.D. LEXIS 556, the WCAB held that an applicant's specific injury Sept. 20, 2005, was not barred by the statute of limitations when he received treatment for the injury in July 2011 and filed an application March 29, 2012.

Medical treatment

In Rivas v. North American Trailer, 2016 Cal. Wrk. Comp. P.D. LEXIS 572, the Workers' Compensation Appeals Board upheld a workers' compensation judge's decision allowing an applicant to designate a physician employed by Casa Colina Transitional Living Center (Casa Colina) to be his primary treating physician within the defendant's medical provider network.

Death benefits

In Duboise v. Black Road Auto & Tow, 2016 Cal. Wrk. Comp. P.D. LEXIS 552, the WCAB held that the Death Without Dependents Unit was not entitled to a death benefit under LC 4706.5(a) when it found that the decedent's 19-year-old daughter was a partial dependent.

Penalties and sanctions

In Gage v. WCAB, 2016 Cal. App. LEXIS 1120, the 1st District Court of Appeal held that the WCAB has jurisdiction to impose penalties under LC 5814 for the unreasonable delay or denial of advance disability pension payments available under LC 4850.4 to local peace officers who are disabled on the job because: (1) such payments qualify as compensation under LC 3207; (2) LC 5814 penalties are available for unreasonable delay or denial of the payment of compensation; and (3) no other provision of the Labor Code evinces a legislative intent to exclude such payments from the penalty provisions of LC 5814.

In Carter v. California Department of Corrections, 2016 Cal. Wrk. Comp. P.D. LEXIS 584, the WCAB rescinded imposition of an LC 5814 penalty in the amount of $12,875.86 when the WCJ's award was not sufficiently certain to permit enforcement.

Discovery and settlement

In De Silva v. Mission Hospital, 2016 Cal. Wrk. Comp. P.D. LEXIS 550, the WCAB granted removal of a WCJ's order requiring an employer hospital to produce all reports, policies and procedure manuals pertaining to infection prevention and control for operating rooms, including incident reports pertaining to patient infections, and all records pertaining to monthly infectious control department reports for operating rooms. 

In Granillo v. Southern Farmland and Cultivation, 2016 Cal. Wrk. Comp. P.D. LEXIS 590, the WCAB rescinded a WCJ's decision that an applicant was temporarily disabled (TD) from May 11, 2013, to June 27, 2013, based on the report of the applicant's primary treating physician (PTP), and held that he was TD through Nov. 13, 2014, based on the opinion of the qualified medical evaluator, even though the applicant did not object to the PTP's report.

In Salazar v. San Diego Personnel and Employment Agency Inc., 2016 Cal. Wrk. Comp. P.D. LEXIS 573, the WCAB held that a defendant was entitled to a replacement QME under CCR 31.5(a)(12) when the QME served the applicant with the initial report, but did not serve the defendant until after it had requested a replacement panel.

In Gonzales v. ABM Industries, 2016 Cal. Wrk. Comp. P.D. LEXIS 558, the WCAB adopted a WCJ's decision allowing a replacement QME when the original QME could evaluate the applicant only via telemedicine.

In Gallardo v. AT&T Mobility Services LLC, 2016 Cal. Wrk. Comp. P.D. LEXIS 554, the WCAB held that a QME violated LC 4628 when he failed to identify that another entity reviewed and summarized the records sent to the QME regarding the applicant's treatment history in preparing a supplemental report.

In Bombardly v. City of Fresno, 2016 Cal. Wrk. Comp. P.D. LEXIS 547, the WCAB upheld a WCJ's decision denying a defendant's request for another QME evaluation when the applicant filed claim forms for both claimed injuries prior to a QME evaluation.

In Arciniega v. Santa Monica Seafood Co., 2016 Cal. Wrk. Comp. P.D. LEXIS 545, the WCAB held that a defendant's failure to timely object to a medical-legal expense precluded it from disputing the bill on the grounds of reasonableness and necessity.

In Brook v. California Pizza Kitchen, 2016 Cal. Wrk. Comp. P.D. LEXIS 548, the WCAB rejected a defendant's effort to set aside a stipulation that provided that the applicant would be paid $36,570 for a 34% permanent disability award, even though she should have been paid $24,182.31 based on her earnings.

Complete discussion of these topics can be found in Sullivan On Comp available to subscribers at www.workcompcentral.com/soc.

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.

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John Miller Apr 4, 2017 a 1:04 pm PDT

This is a good job, Michael

John Miller

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