The following is a summary of important updates to California workers' compensation law.

JURISDICTION AND SUBROGATION

In Jenkins v. Arizona Cardinals, Dallas Cowboys, Arizona Rattlers, 2011 Cal. Wrk. Comp. P.D. LEXIS 485, the appeals board held that it had no jurisdiction over a professional football playerís out-of-state injuries even though his agent could negotiate binding contracts on his behalf when: (1) the agent did not bind him to the contract by signing it on his behalf; (2) the applicant could have rejected the contract when his agent sent it to him in Arizona; and (3) the applicant did not accept the contract until he signed it in Arizona

INJURY

In Palacios v. Upside Management Co., Inc., 2011 Cal. Wrk. Comp. P.D. LEXIS 495, the appeals board reversed the WCJ and held that an applicant's claim was barred by LC 3600(a)(10) because the claim was filed after termination.

In Castro v. State of California, Department of Forestry and Fire Protection Coastal/North Region, 2011 Cal. Wrk. Comp. P.D. LEXIS 568, the appeals board held that a firefighter's car accident on the way to work was not barred by the going-and-coming rule because it was common for him to be required to move among fire stations to address staffing needs, which required the use of his own vehicle.

MEDICAL TREATMENT

In Ortega v. AWHS, Inc. (2011) ADJ2585403 (OAK 0302029) (panel decision), the Workers' Compensation Appeals Board held that a utilization review denial was invalid when the UR doctor initially reported that the treatment was reasonable and necessary, but later determined that it was not medically necessary after taking "a second look."

In Thomas v. Safeway Stores, Inc., 2011 Cal. Wrk. Comp. P.D. LEXIS 558, the appeals board held that an orthopedic surgeon in Seattle was within a reasonable geographic area under CCR 9780 to perform a total left shoulder replacement surgery on an applicant who resided in Redwood City, Calif.

In Marquez v. Marin General Hospital, 2011 Cal. Wrk. Comp. P.D. LEXIS 489, the appeals board held that an applicant was entitled to continue treating with his primary treating physician outside of the defendant's MPN when the MPN had only one physician within a reasonable geographic area as defined under CCR 9767.5, and he was not accepting new patients.

In Zarco v. Alldrin Orchards, Inc., 2012 Cal. Wrk. Comp. P.D. LEXIS 4, the appeals board held that an employer was liable for treatment outside of its medical provider network (MPN) when the employer gave notice that the applicant was treating outside of it but: (1) there was no evidence the defendant provided MPN notices at the time the the network was implemented, at the time of the applicant's hire or at the time of injury; (2) there was no evidence the applicant received notification of the MPN nor how it worked, and no notification of the employer's continuity of care policy nor the determination with regard to the applicant's injury; (3) there was no evidence the defendant arranged the initial medical evaluation within one day of the applicant's report of injury and began to provide treatment; and (4) there was no evidence the applicant was notified of his right to be treated by an MPN physician of his choice after the first visit nor of his right to a second or third opinion regarding diagnosis and treatment plan.

In Paris v. Savolt Enterprises, Inc., 2012 Cal. Wrk. Comp. P.D. LEXIS 3, the appeals board held that because the employer had a validly established and properly noticed MPN, the non-MPN doctor was not entitled to reimbursement for the accepted body parts because the applicant was receiving treatment for them within the MPN.

TEMPORARY DISABILITY

In Boylan v. New Covenant Care Group, 2011 Cal. Wrk. Comp. P.D. LEXIS 460, the appeals board explained that each defendant is jointly and severally liable for temporary disability benefits, and an applicant's temporary disability indemnity may not be reduced just because the temporary disability was caused by two injuries, and one of them is beyond the date for reopening.

PERMANENT DISABILITY

In Jones v. City of Long Beach (2011) ADJ6772869 (panel decision), the appeals board held that in order to rate a sleep disorder under Table 13-4 of the American Medical Association guides, the problem cannot be the result of pain from an underlying injury, which is included in the rating of that injury.

In Hernandez v. Viam Manufacturing, Inc. (2011) ADJ2284024 (panel decision), the appeals board upheld a separate rating for a sleep disorder when it found that a formal sleep study was not mandated by the AMA guides to support a sleep disorder, and that there was substantial evidence to support that disorder based on the medical reports of the treating physician and panel QME, and the credible testimony of the applicant.

RETURN TO WORK

In Anderson v. County of Los Angeles, 2011 Cal. Wrk. Comp. P.D. LEXIS 459, the appeals board held that an offer of regular work made within 60 days of the date the applicant's disability became permanent and stationary will trigger the 15 percent reduction in disability payments per LC 4658(d) even if the applicant returned to his or her usual and customary occupation before the permanent and stationary date.

DISCOVERY AND SETTLEMENT

In Denton v. Department of Forestry, 2011 Cal. Wrk. Comp. P.D. LEXIS 471, the appeals board upheld a workers' compensation judge's decision ordering the applicant to attend and give his deposition, and that the defendant was not required to produce statements from four witnesses until 10 days after the applicant signs the deposition or after signature is waived.

In Nelson v. Renaissance Hollywood Hotel, 2011 Cal. Wrk. Comp. P.D. LEXIS 547, the appeals board found good cause per CCP 2025.610 to allow a second deposition of the applicant regarding his employments and injuries subsequent to the first deposition. The board said that information might be relevant to the determination of permanent disability and apportionment.

In Ferrer v. Washington Mutual, 2011 Cal. Wrk. Comp. P.D. LEXIS 473 and 2011 Cal. Wrk. Comp. P.D. LEXIS 573, the panel majority concluded that the parties could not stipulate to circumventing the provisions of LC 4060 and LC 4062.2 and obtain their own QMEs employing the procedure for injuries before Jan. 1, 2005.

LITIGATION

In Sulek v. Waste Management, 2011 Cal. Wrk. Comp. P.D. LEXIS 508, the appeals board excluded a witness from testifying when a status conference was "turned into" a mandatory settlement conference, and the defendant failed to list the witness in the pretrial conference statement.

In Sis v. MGM Converters, Inc., 2011 Cal. Wrk. Comp. P.D. LEXIS 505, the appeals board held that per LC 5272, arbitrators generally have the same statutory and regulatory duties and responsibilities as WCJs, including the responsibility for ensuring that the record is complete when a case is submitted for decision on the record.

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

<i>Michael Sullivan is the founder of Michael Sullivan & Associates, a workers' compensation defense firm with four offices in Southern California, and author of "Sullivan on Comp," a treatise on California workers' compensation law.</i>