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Legal Brief Bank

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Dept. of Corrections v. WCAB (Fitzpatrick)

Last Activity: 11/02/2018

The Court of Appeal reversed a longstanding practice of the Appeals Board, and held that WCAB exceeded its jurisdiction when it relied upon Labor Code 4662(b) to find 100% permanent total disability, where the scheduled permanent disability rating of 99% under section 4660 was unrebutted. Thus, even in cases falling under section 4662(b) "in accordance with the fact," applicant must still provide substantial evidence rebutting the scheduled rating pursuant to section 4660. [C085850] [S252184]

City of Petaluma v. WCAB (Lindh)

Last Activity: 10/29/2018

The 1st District has granted writ in a case involving a police officer who, prior to his injury, had migraine headaches that were not labor disabling. During a training exercise, he sustained repeated blows to his head and developed severe headaches; weeks later, he lost all vision in his left eye. The QME apportioned 85% of the PD to a pre-existing disease process. Apportionment was denied on the basis that the QME apportioned to injury rather than to disability. The case represents an important turning point in the continuing question of whether apportionment to pathology/congenital defect is valid. CWCI has filed a joint amicus brief with CAJPA, and oral argument is set for 11/16/18 in San Francisco. [A153811]

Suon v. California Dairies

Last Activity: 10/23/2018

In an en banc decision, the WCAB has provided instructions for the application of its prior en banc decision in Maxham v. California Dept. of Corrections, applying a reasonableness standard for the time to object to provision of certain records to a QME and to terminate the evaluation upon discovery of a prohibited communication.

Barri v. WCAB

Last Activity: 10/19/2018

The Institute obtained an order publishing a Court of Appeal decision denying a request from a convicted provider who sought to enjoin the WCAB from suspending providers from the workers' compensation system, and from staying their liens. Chiropractor Michael Barri contended that the lien stay provisions interfered with his right to counsel and violated prohibitions against ex post facto laws. While acknowledging that the Division had been slow to implement procedures, the court held that a workers' compensation lien represents only a statutory remedy, and merely an unreliable expectancy in a payment. As such, it is not entitled to broad constitutional protections. Furthermore, because the WCAB has exclusive jurisdiction over the creation, adjudication, and payment of liens, a lien claimant has no other remedies available to recover payment for services. [G054838]

Black v. Corvel

Last Activity: 10/04/2018

A group of police officers and firefighters in Rialto and Stockton have claimed RICO violations and fraud for bad-faith case handling. After four amended complaints, the trial judge found that the plaintiffs could not state a viable cause of action, and dismissed the case. The plaintiffs have appealed the dismissals to the Ninth Circuit Court of Appeals, and the case has been set for Oral Argument on December 4 at 9:30 a.m. in Pasadena. CWCI has filed an amicus brief. [17-55956]

First Foursquare Church v. WCAB (Austin)

Last Activity: 9/26/2018

The 2d District Court of Appeal has denied a defendant's appeal of a ruling that applicant's cumulative trauma injury ended at the time applicant changed from one employer to the next. Because she had no disability during the first employment, that employer contended that a DOI cannot be applied unless there is both knowledge and disability under section 5412. In denying the writ, the COA refused to consider whether a change in employment alone constitutes a basis for the assignment of a CT DOI. [B291548]

Page v. Parisotto

Last Activity: 9/05/2018

In a class action lawsuit alleging systemic gender bias in the workers' comp system, plaintiffs contended that benefits were being awarded on the basis of stereotypes in violation of equal opportunity protections. Plaintiffs have appealed the original dismissal of the action, and extensive briefing continues. [BC625992] [B282643]

Vanguard v. Baker (Anguizola)

Last Activity: 8/30/2018

An indicted provider has filed a federal lawsuit alleging that new anti-fraud provisions of SB 1160 and AB 1244 violate his due process rights. US District Court Judge George Wu has issued a ruling finding that LC section 4615 deprives a subset of lien claimants of a protectable interest without affording meaningful due process. The DWC complied with this ruling by posting additional names to its website. The court has denied a request to add new allegations to the complaint. [Case 5:17-cv-00965]

King v. CompPartners

Last Activity: 8/23/2018

In a unanimous decision, the California Supreme Court held that allegations of medical negligence by a UR physician for failure to warn of the dangers of sudden cessation of a medication, or to provide a weaning plan, fall within the exclusive remedy protections of the Workers' Compensation Act, which preempts the employee's tort claims. The case reaffirms that injuries derivative of a compensable workplace injury fall within the scope of the workers' compensation bargain and are therefore compensable within the workers' compensation system. [S232197]

County of San Diego v. WCAB (Pike)

Last Activity: 6/20/2018

The Court of Appeal reversed the WCAB, and held that L.C. section 4656(c)(2) prohibits TD awards for periods after five years from a post-1/1/2008 DOI, even where the case has been timely reopened and the TD started within 5 years from DOI. The plain language of the statute states that payments cannot be ordered past five years from DOI. CWCI filed an amicus brief at the Court of Appeal in support of the defendants. Applicant's appeal to the Supreme Court was denied on 6/20/18. [S248235] [D072648]

Dynamex v. Superior Court

Last Activity: 6/20/2018

In a wage and hour dispute, the Supreme Court overturned 30 years of precedent under Borello, and implemented a new standard to determine whether a worker is an employee or an independent contractor. Under the new "ABC" test, the business must show (a) that the worker is free from the control and direction of the hirer in connection with the performance of the work, both under the contract for the performance of the work and in fact; and (b) that the worker performs work that is outside the usual course of the hiring entity's business; and (c) that the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as that involved in the work performed. Failure to satisfy any one of the ABC elements compels a finding that the worker is an employee. A request to apply the new rule prospectively only was denied on June 20, 2018. [S222732]

Howard et al. v. Baker

Last Activity: 4/04/2018

Superior Court dismissed plaintiffs' claims that the DIR improperly denied them reappointment as QMEs based on its new interpretation of ML-104, used that interpretation as justification for refusing to renew their QME certifications, and failed to provide due process hearings; in dismissing the case for lack of jurisdiction, the court noted that the DWC probably erred in relying on underground regulations in denying reappointment. In a settlement agreement, the DWC agreed to reinstate the providers, enforce the regulations "as written," and remove contrary training materials from its website. [LA Superior Court BS171032]

The Lien Cases (Rodriguez)

Last Activity: 3/23/2018

In an en banc decision, the Appeals Board suspended CCR 10859, consolidated and then dismissed as moot more than 1,234 Petitions for Reconsideration, and held that the issue of whether lien Declarations were timely filed must be adjudicated in each case in the first instance at the trial level. In 2018, the Appeals Board followed up with another en banc decision, confirming that declarations filed at or before 5:00 p.m. on Monday, July 3, 2017, are timely filed.

SCIF v. WCAB (Guzman)

Last Activity: 2/23/2018

In a published opinion, the Court of Appeal ruled in favor of the defense where the injured worker had less than six months of employment but claimed entitlement to compensation for a psychiatric injury based on a "sudden and extraordinary employment condition" exception under L.C. section 3208.3(d). The only evidence presented was applicant's subjective testimony that he was surprised at the accident. The court remanded to the WCAB with directions to deny the claim for psychiatric injury. CWCI acted as amicus in the case, and helped to obtain publication of the court's decision. [H044300]

Botros et al. v. Baker

Last Activity: 2/21/2018

Six medical-legal providers claim that they were denied reappointment to serve as QMEs, and have filed a 66-page lawsuit seeking an order compelling the DWC to schedule administrative hearings that would allow them to challenge the non-renewal of their QME certifications. As in Howard v. Baker, the plaintiffs accuse the DWC of improperly relying on underground regulations to deny their re-appointments. [LA Superior Court BS171974]

Eroshevich v. Parisotto

Last Activity: 2/09/2018

Having had her federal complaint dismissed, a provider has now filed a lawsuit in LA Superior Court, seeking an injunction against her pending suspension from the workers' comp system. She claims that her convictions have been dismissed, and that her suspension from the MediCal system was based on the now-dismissed convictions. The provider also contends that L.C. section 139.21 cannot be retroactively applied to conduct prior to its enactment in 2016. [Case BS171864]

Zuniga v. WCAB

Last Activity: 1/25/2018

In a published opinion, the Court of Appeal held that applicant's due process rights are not violated by the anonymity provisions of IMR review in L.C. section 4610.6(f), and that permitting cross-examination for the purpose of uncovering additional grounds to challenge a determination would undermine the Legislature's intent to reduce litigation, costs, and delays. CWCI requested and obtained an order of publication in this case, rendering it as binding authority. [A143290]

Stevens v. WCAB

Last Activity: 12/20/2017

In 2015, the Court of Appeal found that the statutory review processes for medical treatment, utilization review, and independent medical review are a constitutional exercise of the Legislature's plenary authority to create a complete workers' compensation system. In 2017, the Appeals Board issued two new Decisions After Remittitur/Reconsideration, invalidating the 2009 MTUS. The Court of Appeal initially granted a new Writ of Review but, after all briefing had been completed, dismissed the writ on 12/20/17. [A152027]

Waveform Lab v. EK Health

Last Activity: 11/06/2017

Waveform has alleged that EK Health and others conspired to defame Waveform and consistently denied authorization for H-Wave device in treatment of individual patients, in violation of the Cartwright Act. In a 2015 unpublished decision from the Court of Appeal, it was held that the UR process was not an official proceeding subject to anti-SLAPP [strategic lawsuit against public participation] procedures. The underlying litigation was transferred to federal court where the parties settled, and the case has been dismissed. [Case 2:15-cv-08061]

Greenbrae v. WCAB (Torres)

Last Activity: 11/02/2017

The Court of Appeal denied review of an Appeals Board panel decision that expanded the definition of "violent act" for purposes of Labor Code section 4660.1 to include acts "characterized by strong physical force, extreme or intense force, or an act that is vehemently or passionately threatening."

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