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December 2014 Case Law Update

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JURISDICTION AND SUBROGATION

In Booth v. Chicago Bulls, 2014 Cal. Wrk. Comp. P.D. LEXIS 487, the WCAB reversed a WCJ and held that it did not have jurisdiction over a professional basketball player's claim for injury when he participated in practices only three times in California during his two years of employment.

INJURY

In Carillo v. Hampton Inn and Suites, 2014 Cal. Wrk. Comp. P.D. LEXIS 488, the WCAB rescinded a WCJ's order denying a defendant's petition for joinder of a co-defendant filed after the applicant settled her claims by compromise and release.

In Krause v. Wal-Mart Associates, Inc., 2014 Cal. Wrk. Comp. P.D. LEXIS 529, pursuant to LC 5804 and LC 5410, the WCAB held it could not award additional benefits for a 2007 right eye injury that allegedly resulted from complications of medical treatment for a left lower extremity injury July 12, 2000.

MEDICAL TREATMENT

In Kumar v. Sears Holding Corp., 2014 Cal. Wrk. Comp. P.D. LEXIS 502, the WCAB held that there was no good cause to terminate a defendant's liability to reimburse the applicant for as many as 10 hours per week of home health-care services at $15 per hour based on an earlier order and the parties' stipulation.

In Joksch v. Sutter Delta Medical Center, 2014 Cal. Wrk. Comp. P.D. LEXIS 500, the WCAB affirmed a WCJ's decision that the applicant was entitled to 3.01 hours of home health care (including housework, food preparation, cleanup, lawn and garden care and household management) per day twice a week, and 1.74 hours per day five days per week.

In Mercado v. Park West Enterprises, Inc., dba Co-West Commodities, 2014 Cal. Wrk. Comp. P.D. LEXIS 532, the WCAB affirmed an award to the applicant's wife for payment of attendant care she provided while he was in the hospital, even though there was no prescription for her services per LC 4600(h).

In Bodam v. San Bernardino/Department of Social Services (2014) ADJ8120989, the WCAB issued a significant panel decision holding that even though a UR decision was timely made, it was untimely and therefore invalid because it was not timely communicated.

In Acosta v. Balance Staffing Services, 2014 Cal. Wrk. Comp. P.D. LEXIS 480, the WCAB concluded that an MPN physician's determination that an injured worker no longer needs medical care was a dispute over a medical determination subject to the QME process under LC 4061 and LC 4062, and not a dispute over the diagnosis or recommendation for medical treatment subject to the dispute resolution process in LC 4616.3 and LC 4616.4.

In Shin v. B.C.D. Tofu House, Inc., 2014 Cal. Wrk. Comp. P.D. LEXIS 545, the WCAB affirmed a decision that an applicant could treat outside of the defendant's MPN at the defendant's expense when treatment was not authorized until eight days after the claim form was filed in violation of LC 5402(c), and for several months the defendant failed to arrange for the initial evaluation as required by LC 4616.3(a).

In Miranda v. Aramark, 2014 Cal. Wrk. Comp. P.D. LEXIS 533, the WCAB reversed a WCJ and held that an applicant was not allowed to treat outside of the defendant's MPN for an industrial left shoulder injury because there was no evidence that the defendant denied treatment for the shoulder.

In Sayed v. Giorgio Armani, 2014 Cal. Wrk. Comp. P.D. LEXIS 543, the WCAB dismissed as premature the defendant's petition for reconsideration filed directly following an independent bill review determination.

PERMANENT DISABILITY

In Kenzy v. Flour Creations, 2014 Cal. Wrk. Comp. P.D. LEXIS 527, the panel majority held that an applicant was entitled to an award of 100% total disability even though she received $500 per month from the state to care for her disabled adult son.

In Sweetman v. Bank of America, 2014 Cal. Wrk. Comp. P.D. LEXIS 510, the WCAB affirmed a WCJ's decision finding 40% PD by combining an applicant's low back and right wrist disability using simple addition, and then using the Combined Values Chart to add the orthopedic disabilities to a sleep disability.

In Sineath v. Wells Fargo Bank, 2014 Cal. Wrk. Comp. P.D. LEXIS 508, the WCAB affirmed a WCJ's decision replacing a panel QME when the QME reported that he would never apply Almaraz/Guzman under any circumstances.

DEATH BENEFITS

In Locey v. State of California Department of Corrections & Rehabilitation, 2014 Cal. Wrk. Comp. P.D. LEXIS 530, the WCAB found good cause to reopen the earlier stipulated award and that an employer was liable for any accrued and unpaid compensation prior to the employee's death.

DISCOVERY AND SETTLEMENT

In Duong v. Automobile Club of Southern California, 2014 Cal. Wrk. Comp. P.D. LEXIS 492, the WCAB granted removal of a WCJ's order and held that surveillance video taken by the defendant inside a parking lot of a mobile home park (which was not the applicant's residence) and inside an Albertson's grocery store was admissible and could be provided to any medical-legal evaluator or the primary treating physician, despite signs at the locations precluding trespassing and videotaping without permission.

LITIGATION

In Gonzalez v. County of Kern, 2014 Cal. Wrk. Comp. P.D. LEXIS 525, the WCAB denied a defendant's petition for change of venue when it was untimely under LC 5501.5(c).

In Antonio v. L'Oreal, 2014 Cal. Wrk. Comp. P.D. LEXIS 483, the WCAB rescinded an order requiring an AME to review a lien issue and concluded that a lien claimant did not have the right to require an AME to comment on lien issues after the case-in-chief was resolved.

In Garcia v. Antelope Valley Union High School District, 2014 Cal. Wrk. Comp. P.D. LEXIS 523, the WCAB rescinded a WCJ's order awarding fees per LC 5710 for an applicant's counsel's attendance at the deposition of a QME.

In Lemus v. Aero Electric Connector, 2014 Cal. Wrk. Comp. P.D. LEXIS 503, the WCAB held that a defendant should be sanctioned per LC 5813 for failing to respond to the interpreter's invoices, pay in full for interpreter services and provide a timely objection to full payment within 60 days of their receipt in violation of LC 4622 and CCR 9795.4.

AWARDS AND APPEALS

In Adams v. State of California, California Department of Corrections and Rehabilitation, 2014 Cal. Wrk. Comp. P.D. LEXIS 515, the WCAB dismissed a defendant's petition for reconsideration as untimely when: (1) the WCJ originally issued an award June 16, 2014, awarding new and further disability for a specific injury; (2) the WCJ issued an amended award July 30, 2014, addressing permanent disability for a different cumulative trauma injury; (3) and the defendant filed a petition for reconsideration July 25, 2014, challenging the permanent disability award for the specific injury.

Complete discussion of these topics can be found in Sullivan On Comp available to subscribers.

Michael Sullivan is the founder of Michael Sullivan & Associates LLP, a workers' compensation defense firm with six offices in California, and author of "Sullivan on Comp," a treatise on California workers' compensation law.

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