Presentation on theme: "Jennifer Callan Callan Law Firm 1100 Lincoln Avenue, Suite 261 San Jose, CA 95125 T: 408.337.0200 F: 408.337.0400"— Presentation transcript:
Jennifer Callan Callan Law Firm 1100 Lincoln Avenue, Suite 261 San Jose, CA T: F:
SB 863 Independent Medical Review (IMR): As of 7/1/13 for all DOIs, Independent Medical Review (IMR) will be used to decide all disputes regarding medical treatment. IMR can be requested by I.W. following a denial, modification, or delay of a treatment request through the UR process. IMR not available if there is a dispute regarding causation.
INJURY AOE/COE – Going & Coming Schultz v. WCAB and Joint Test Tactics and Training (JT3) (January 6, 2015) ADJ [Court of Appeal, 2nd Appellate District] Applicant filed a claim after suffering injuries in a traffic accident while driving his personal vehicle on the premises of Edwards Air Force Base, where he worked for JT3. Per the record, the accident scene was located about 3-5 miles from applicant’s work building. Defendant, JT3, argued the going and coming rule as a bar to applicant’s claim. The WCJ ruled in favor of applicant, which was reversed by the WCAB. Following the filing of a writ of review, the Court of Appeal annulled the decision of the WCAB, finding in favor of applicant.
INJURY AOE/COE – Going & Coming Schultz v. WCAB and Joint Test Tactics and Training (JT3) (January 6, 2015) ADJ [Court of Appeal, 2nd Appellate District] Background of Going and Coming Rule and the Premises Line Rule: The CA Supreme Ct. adopted the “going and coming rule” as an aid in determining whether an injury occurred in the course of employment. Santa Rosa Junior College v. WCAB (1985) 40 Cal.3d 345. The going and coming rule precludes compensation for injury suffered during the course of a local commute to a fixed place of business at fixed hours in the absence of exceptional circumstances. Hinojosa v. WCAB, (1972) 8 Cal.3d The Supreme Court has rejected application of the going and coming rule when an employee is injured while driving a vehicle into the employer’s premises. Greydanus v. Industrial Acc. Com. (1965) 63 Cal.2d 490, Pacific Indem. Co. v. Industrial Acc. Com. (1946) 28 Cal.2d 329. These cases recognize that where an employee is required to access the employer’s property by a specific means, an injury occurring during the course of entry into the property, even if on a public highway, is considered to have occurred in the course of employment under the premises line rule. The liability of an employer for injuries sustained by his employees on the employment premises is exceedingly broad. Extending his liability to the total premises is somewhat arbitrary but as a practical measure is well-established. North American Rockwell Corp. v. WCAB, (1970), 9 Cal. App.3d 154.
INJURY AOE/COE – Going & Coming Schultz v. WCAB and Joint Test Tactics and Training (JT3) (January 6, 2015) ADJ [Court of Appeal, 2nd Appellate District] Holding: The “premises line rule” applies to an employee injured in a single-car traffic accident where: The employee was a civilian working on a secure US Air Force based not generally open to the public; The employee entered the base in his personal vehicle after passing a guard gate using a security pass issued by his employer with the approval of the Air Force; The employee had travelled one mile inside the base when the accident occurred; and The undisputed evidence established that although the employee worked out of a fixed location, the employer had multiple locations on the Air Force base and the employee travelled sometimes in his own vehicle, as needed, throughout the base to perform work assigned by his employer.
INJURY AOE/COE – Going & Coming Schultz v. WCAB and Joint Test Tactics and Training (JT3) (January 6, 2015) ADJ [Court of Appeal, 2nd Appellate District] Analysis: Because JT3 controlled applicant’s access to Edwards, and applicant worked throughout the base on assignments, he was on the premises of his employer once he entered Edwards, and his injury, therefore, occurred during the course of that employment for purposes of workers’ compensation law. The fact that applicant was driving his personal vehicle at the time of the accident is irrelevant to the analysis of the application of the premises line rule, because regardless of his means of travel to Building No [applicant’s work building], applicant would have been on the secure premises of Edwards, owing only to his status as a JT3 employee.
MEDICAL TREATMENT Jose Dubon v. World Restoration, Inc.; and State Compensation Insurance Fund, (October 6, 2014) ADJ , ADJ [En banc] In 2003 and 2004, applicant sustained injuries to his spine and other body parts while employed by defendant. Applicant’s PTP was Dr. Mark Brown. His consulting orthopedic surgeon was Dr. Albert Simpkins. The AME was Dr. Israel Rotterman. Spinal surgery had been recommended for approximately three years based on several factors including, applicant’s persistent symptoms, EMG/NCV studies which indicated left L4-5 radiculopathy and a lumbar MRI which showed applicant had disc protrusions at L1-2 and L4-5. Per a report dated 7/1/13, Dr. Simpkins requested authorization for surgery. On 7/19/13, defendant’s UR agent sent Dr. Simpkins a letter denying authorization for surgery as not medically necessary. The letter was based on the 7/19/13 report of UR physician, Donald A. deGrange, M.D., a board-certified orthopedic surgeon. The UR report did not identify all of the records that were reviewed and there were also several records that were not reviewed.
MEDICAL TREATMENT Jose Dubon v. World Restoration, Inc.; and SCIF, (October 6, 2014) ADJ , ADJ [En banc] On 8/12/13, applicant submitted an application for Independent Medical Review (IMR). On 8/14/13, applicant filed a DOR for an Expedited Hearing regarding his entitlement to spinal surgery. Despite the procedural defects that were identified by the WCJ in her Opinion on Decision, the WCJ concluded that any alleged procedural defects must be resolved through IMR. The WCJ further concluded that the WCAB cannot allow the surgery recommended because the issue of medical necessity must be determined by IMR.
MEDICAL TREATMENT Jose Dubon v. World Restoration, Inc.; and SCIF (October 6, 2014) ADJ , ADJ [En banc] Holding: UR decision is invalid and not subject to independent medical review (IMR) only if it is untimely. Legal issues regarding the timeliness of a UR decision must be resolved by the WCAB and not IMR. All other disputes regarding a UR decision must be resolved by IMR. If a UR decision is untimely, the determination of medical necessity may be made by the WCAB based on substantial medical evidence consistent with Labor Code §
MEDICAL TREATMENT Bodam v. San Bernadino County/Dept. of Social Services (November 20, 2014) ADJ , 79 CCC ___ [Significant Panel Decision] Applicant injured his low back on 3/24/11 and was found to be in need of further medical treatment. Applicant’s PTP Dr. Stokes referred Applicant to Dr. Cheng for a surgical consultation. On 10/28/13, Dr. Cheng faxed a Request for Authorization of Treatment to SCIF, requesting authorization to perform a three-level cervical spine surgery. On 10/31/13 SCIF’s UR provider made its decision to deny the treatment request. On 11/5/13, UR mailed written denial letters to Applicant and to Dr. Cheng, with copies to Applicant’s attorney. The 10/31/13 UR decision was not communicated to Dr. Cheng by fax, phone, or within 24 hours after the UR decision was made. Written notice of the 10/31/13 decision was not provided to Applicant, Dr. Cheng, or Applicant’s attorney within two business days after the UR decision was made.
MEDICAL TREATMENT Bodam v. San Bernadino County/Dept. of Social Services (November 20, 2014) ADJ , 79 CCC __ [Significant Panel Decision] Here, the UR decision was timely, but was not communicated timely. Holding: As per Labor Code §4610(g)(1) and (g)(3)(A) and A.D. Rule (e)(3): A defendant is obligated to comply with all time requirements in conducting UR, including the timeframes for communicating the UR decision. A UR decision that is timely made but is not timely communicated is untimely. When a UR decision is untimely and, therefore, invalid, the necessity of the medical treatment at issue may be determined by the WCAB based upon substantial evidence.
MEDICAL TREATMENT Stevens v. WCAB, Outspoken Enterprises, Inc., SCIF (June 17, 2014), ADJ , 79 CCC 741 [Writ Denied] Following an Award of 100% PD with need for FMC, applicant’s treating physician, Dr. Jamasbi, requested authorization for pain medication mgmt. and home health care. SCIF denied authorization for this medical treatment after submitting the requests to UR. In response to the UR denials, applicant filed an IMR application with Maximus. Maximus upheld the treatment denials and applicant filed an appeal of the IMR decision with the WCAB. Prior to any action taking place on the appeal, applicant then filed a Petition for Writ of Mandate and Writ of Review, contending that (1) the L.C. § IMR process violates due process and (2) it is appropriate for the Court of Appeal to grant a writ to determine the constitutional validity of L.C. § since the WCAB has no jurisdiction to rule on the constitutionality of statutes. The AD filed an Answer, contending in relevant respects that (1) the Petition for Writ of Mandate and Writ of Review should be dismissed as premature because applicant’s appeal is still pending below, and applicant still has an adequate remedy before the WCAB; (2) the Legislature properly exercised its authority in developing a procedure that utilizes IMR for determination of medical necessity; (3) L.C. § does not violate applicant’s right to due process; (4) the dispute over medical necessity is not a legally cognizable dispute within the meaning of California Constitution, Article XIV, Section 4; and (5) applicant failed to show that the IMR process for resolving medical treatment disputes denies substantial justice. Writ denied.
STATUTE OF LIMITATIONS Krause v. Wal-Mart Associates, Inc. Insured by American Home Assurance, adj. by York Risk Services Group, Inc. (October 1, 2014) ADJ [WCAB panel decision] Applicant had a 7/12/00 (ADJ ) knee injury claim while employed with Wal-Mart. She filed a claim on 8/12/08, alleging she sustained a cumulative trauma injury to her right eye over the period ending 9/27/07, as a complication of the medical treatment for her industrial injury in ADJ The medical record indicated that applicant lost vision in her right eye in 2007, due to a blood infection following complications from a 2006 gastric bypass surgery. Applicant claimed the gastric bypass surgery was related to her industrial knee injury by virtue of her need for weight loss in order to proceed with total knee replacement which occurred on 7/6/07.
STATUTE OF LIMITATIONS Krause v. Wal-Mart Associates, Inc. Insured by American Home Assurance, adj. by York Risk Services Group, Inc. (October 1, 2014) ADJ [WCAB panel decision] Issue: Whether the claim for a compensable consequence injury may be raised in a claim of new injury filed more than five years after the date of the original injury? Applicant argued the fact that her original claim had been closed does not prevent her from filing a new injury claim based upon the theory of compensable consequences, relying upon Rodgers v. WCAB (1985) 168 Cal. App.3d 567, 50 CCC 299.
STATUTE OF LIMITATIONS Krause v. Wal-Mart Associates, Inc., American Home Assurance, adj. by York Risk Services Group, Inc. (October 1, 2014) ADJ [WCAB panel decision] Holding: A consequential injury is not a new injury and in the absence of a timely petition to reopen, the Appeals Board lacks jurisdiction to award benefits more than five years after date of original industrial injury. The Appeals Board, in consideration of claims for compensable consequence injuries arising more than 5 yrs. from the date of injury, have limited the holdings in Rodgers and other cases to injuries caused by participation in vocational rehabilitation. They have not been extended to permit a new claim based upon a new date of injury where a petition to reopen has not been filed within five years of the date of injury. Compensable consequence claims, made more than five years after the date of injury, do not constitute a separate new injury and do not justify an award of additional benefits. Petition for Reconsideration is Denied.
TEMPORARY DISABILITY Lee v. Pulmoune Foods USA, Inc Cal. Wrk. Comp. PD Lexis 60 (WCAB Panel 2013) Applicant, a truck driver, injured his low back and right shoulder on 4/24/12 while working for Pulmoune Foods. There was a dispute as to whether applicant, who voluntarily resigned his employment, was entitled to TD benefits after the time that he resigned his employment. The matter proceeded to Trial and the WCJ issued a F&A on 10/29/12 concluding that applicant was entitled to TD benefits for the period of 7/9/12 and continuing. Defendant appealed. Holding: WCAB upheld WCJ’s award of TD benefits, finding that applicant’s voluntary resignation from his employment did not preclude an award of TD benefits because there was no evidence that defendant offered applicant modified work within his restrictions prior to accepting his resignation. Testimony of defendant’s H.R. representative that there was modified work available was insufficient to establish that an offer of work [within applicant’s restrictions] had in fact been made before applicant’s resignation was effective.
TEMPORARY DISABILITY Jones v. Tulare District Hospital, PSI (October 27, 2014) ADJ ; ADJ , [WCAB panel decision] Defendant sought reconsideration of WCJ’s Findings of Fact, Award and Order dated 8/8/14, wherein it was found that, while employed as a registered nurse during a cumulative period ending on 2/13/08, applicant sustained industrial injury to her right wrist, right hand, and in the forms of sleep disorder and depression, causing temporary disability from 12/11/08 to 11/12/10. Applicant was evaluated by AME Dr. Gilbert Kucera. In a report dated 8/19/08, Dr. Kucera opined that applicant’s right wrist and right hand condition was P&S with a permanent work restriction consisting of a “preclusion from repetitive grasping.” In a supplemental report dated 4/26/10, issued at the response of applicant’s counsel, Dr. Kucera advised that applicant is TPD and able to do modified work until she undergoes EMG of the right upper extremity. Pursuant to a report dated 3/14/11, Dr. Kucera found applicant to be P&S on 8/19/08. However, in a supplemental report dated 4/26/11, Dr. Kucera, again, stated that applicant was TPD until 11/12/10 and “continues permanent and stationary after her EMG.”
TEMPORARY DISABILITY Jones v. Tulare District Hospital, PSI (October 27, 2014) ADJ ; ADJ , [WCAB panel decision] Holding: Applicant was entitled to TPD benefits from 4/26/10 when Dr. Kucera found applicant TPD until the date of the EMG. Although Dr. Kucera did not outline applicant’s temporary work restrictions listed in his 8/19/08 P&S report, given the public policy to quickly resolve any issues regarding temporary disability benefits, it was defendant’s burden to clarify Dr. Kucera’s findings. When an AME makes a determination in the first instance that an injured worker is temporarily disabled, defendant has the obligation to object to the determination by seeking clarification from the AME.
DISMISSAL Anguiano v. Nick’s Cabinet Doors, Zurich North American Ins., admin. by Patriot Risk Services, (October 24, 2014), ADJ [WCAB panel decision] Applicant filed an Application for Adjudication of Claim on 3/11/13. On 3/26/14, defendant filed a Petition to Dismiss under Rule On 4/25/14, the WCJ issued the Notice of Intention to Dismiss (NIT). On 5/9/14, applicant’s attorney filed an Objection to Notice of Intent to Dismiss on the sole basis that applicant could not be located. On 5/22/14, defendant filed a DOR, requesting a Mandatory Settlement Conference (MSC) on the issue of “intent to dismiss.” The MSC took place on 8/28/14, at which time the WCJ issued an Order denying defendant’s petition to dismiss, on the grounds that defendant had filed a DOR, thus activating the case.
DISMISSAL Anguiano v. Nick’s Cabinet Doors, Zurich North American Ins., admin. by Patriot Risk Services, (October 24, 2014), ADJ [WCAB panel decision] Holding: Applicant’s attorney’s objection to the Notice of Intent to Dismiss, wherein applicant’s attorney merely acknowledged that their office had lost contact with applicant, did not constitute activation of applicant’s claim. Nor did defendant’s DOR constitute an activation of applicant’s case because it merely requested a hearing on the issue of “intent to dismiss.” The WCAB found that defendant was simply continuing to pursue its petition to dismiss for lack of prosecution. Order of WCJ was rescinded and matter was returned back to the trial level for further proceedings and decision by the WCJ consistent with this decision. [In a footnote, the WCAB noted defendant may have been better served by just waiting until the WCJ had ruled on applicant’s attorney’s objection to the Notice of Intent to Dismiss].
PSYCHIATRIC CLAIMS Aguirre v. Ekim Painting North, Inc. Redwood Fire & Casualty Ins. Co., (August 25, 2014) ADJ [split WCAB panel decision] On 12/1/08, applicant sustained an industrial injury when he fell two stories from the roof of a building which he was preparing for painting. He alleged injuries to his back, neck, jaw, chest, left upper extremity, left elbow and psyche. The matter proceeded to trial on the issues of (1) six months of employment and (2) sudden and extraordinary employment condition. The parties stipulated that applicant worked for the employer from 9/16/08 through the date of injury of 12/1/08 (77 days). Applicant was then temporarily disabled until he returned to work from 9/15/09 through 10/26/09 (42 days). Applicant sought reconsideration of the WCJ’s finding that determined his alleged psychiatric injury was non-compensable based upon the “Six Month Rule,” and that the injury was not caused by a sudden and extraordinary employment condition.
PSYCHIATRIC CLAIMS Aguirre v. Ekim Painting North, Inc. Redwood Fire & Casualty Ins. Co., (August 25, 2014) ADJ [split WCAB panel decision] Holding re: Six Months Employment Pursuant to Wal-Mart Stores v. WCAB, (2003) 68 CCC 575, applicant is not entitled to credit for the time he was off work from 12/2/08 through 9/14/09 [while he was TTD]. Applicant did not perform actual service for the employer for six months as required by L.C. §3208.3(d), and therefore, he was not employed for six months by this employer.
PSYCHIATRIC CLAIMS Aguirre v. Ekim Painting North, Inc. Redwood Fire & Casualty Ins. Co., (August 25, 2014) ADJ [split WCAB panel decision] Holding re: Sudden & Extraordinary Per Matea v. WCAB (2006) 71 CCC 1522, the Sixth District Court of Appeal held that if an employee carries his/her burden of showing by a preponderance of evidence that the event or occurrence that caused the alleged psychiatric injury was something other than a regular and routine employment event or condition, that is, that the event was uncommon, unusual, and occurred unexpectedly, the injury may be compensable even if the employee was employed for less than six months. Here, applicant met burden of showing that alleged psychiatric injury resulted from an incident that was unusual, uncommon and unexpected or “sudden and extraordinary” based upon his unrebutted testimony that in his 8-9 years working as a painter at similar heights he never before fell or lost footing, coupled with the traumatic nature of his injury and defendant’s failure to produce any evidence indicating that applicant’s fall was routine or ordinary employment condition.
PSYCHIATRIC CLAIMS Aguirre v. Ekim Painting North, Inc. Redwood Fire & Casualty Ins. Co., (August 25, 2014) ADJ [split WCAB panel decision] Dissenting Opinion of Commissioner Lowe re: Sudden & Extraordinary To allow applicant to satisfy the “sudden and extraordinary” exception simply by testifying that he was not aware of any other painters failing off of ladders or scaffolding represents an unreasonably broad interpretation and an unwarranted expansion of the exception. Applicant’s accident, though terrible, is part of the hazards of performing work above ground level and cannot be said to be extraordinary within the meaning of L.C. §3208.3(d).
PSYCHIATRIC CLAIMS Martinez v. Mass Precision, Comp West Ins. Co., Balance Staffing Service, Zurich North America (October 21, 2014) ADJ , ADJ [WCAB panel decision] Defendant, Balance Staffing Service (general employer) sought reconsideration of WCJ’s decision finding applicant sustained both a specific injury on 11/30/09 and a cumulative trauma injury over the period ending 11/30/09 to her lumbar spine, right shoulder and psyche while employed as a part maker by Mass Precision (special employer) and the Balance Staffing Service (general employer). Applicant was employed directly by Mass Precision from 3/17/08 to 3/12/09, and later worked at Mass Precision, employed by the defendant, general employer, from 6/19/09 to 11/30/09. Defendant, general employer, contends applicant’s claim for psyche is barred under L.C. §3208.3(d), since applicant was employed for Balance Staffing Service for less than the requisite minimum six month period under the statute.
PSYCHIATRIC CLAIMS Martinez v. Mass Precision, Comp West Ins. Co., Balance Staffing Service, Zurich North America (October 21, 2014) ADJ , ADJ [WCAB panel decision] Issue: Whether, when there is dual employment, the general employer may be liable for a claim of injury to the psyche while working at the special employer if the general employer employed the injured worker for less than six months? Holding: In Martinez v. Tarrant Apparel dba Fashion Resource, 2010 Cal. Wrk. Comp. PD. Lexis 192, it was held that an applicant’s claim of injury to her psyche was not barred by the six month requirement, though the special employer held liable had employed the injured worker for less than six months.
PSYCHIATRIC CLAIMS Martinez v. Mass Precision, Comp West Ins. Co., Balance Staffing Service, Zurich (October 21, 2014) ADJ , ADJ [WCAB panel decision] Holding [cont’d]: Per Martinez, the plain language of section (d) supports the conclusion that applicant was “employed” by the special employer for more than six months on the date of injury. Moreover, it has long been held that an employee may have more than one employer at the same time. The characteristics of such dual employment are 1) that the employee is sent by one employer (the general employer) to perform labor for another employer (the special employer); 2) rendition of the work yields a benefit to each employer; and 3) each employer has some direction and control over the details of the work. Applying Martinez, the WCAB found that where section (d) requires that “the employee has been employed by that employer for at least six months,” it extends the requisite employment period in situations of dual employment to the entire period of employment by both the general and special employers. Dissent distinguishes Martinez case – Applicant was employed as a special employee and as a regular employee. However, here, applicant was only employed by Balance Staffing Service as a general employee, and SCI no relationship with applicant other than for the period from 6/19/09 to 11/30/09.
PERMANENT DISABILITY Seymour-Jackson v. WCAB 78 Cal. Comp. Cases 352 (Ct. App writ denied) Applicant sustained industrial injuries to various body parts in 1993, 1997, and At trial, she was found to have PD of 44.75% for the knee and 40% for back and psyche injuries. Applicant filed a Petition for Reconsideration, contending that the WCJ should have found the PD to be at 100%. At trial, the WCJ found defendant’s vocational expert to be more persuasive. The WCJ noted that applicant’s expert failed to explain why applicant’s need to stand for eight minutes after sitting for 15 minutes could not be accommodated by utilizing a “sit-stand station.” Defendant’s expert emphasized that applicant had extensive experience doing various clerical and office-type tasks, which were particularly amenable to, and within, applicant’s work restrictions. WCAB denied reconsideration and adopted and incorporated the WCJ’s report. Applicant’s Petition for Writ of Review was denied.
APPORTIONMENT Acme Steel v. WCAB 218 Cal. App. 4th 1137 (Ct. App. 2013) Applicant sustained a CT injury to multiple body parts, including hearing loss, on October 16, Dr. Schindler performed an AME and apportioned hearing loss based on both nonindustrial causes and a prior injury, concluding that applicant had 100% hearing loss that was 40% apportioned to non-industrial factors and 60% apportioned to occupational factors, including an industrial injury for which there was a prior award for hearing loss. At trial, the WCJ found that applicant effectively rebutted any DFEC, instead showing 100% loss of earning capacity entitling him to 100% permanent and total disability. The WCJ based the latter finding on vocational expert testimony that there was no job in the open labor market that could accommodate App’s limitations, need for medications and rests, etc. The WCJ also found that Labor Code § 4664 is not pertinent because prior to the injury in question there was no earning loss due to the prior award of PD for hearing loss, reasoning that Applicant continued to work after the prior award for hearing loss.
APPORTIONMENT Acme Steel v. WCAB 218 Cal. App. 4th 1137 (Ct. App. 2013) Defendant Acme sought reconsideration of the award, contending that the WCJ exceeded her powers by failing to apportion the disability pursuant to Labor Code § 4663, because there was evidence showing applicant’s hearing loss was 40% non-industrial. In response, the WCJ stated that she was not bound by the AME’s findings, given that there was convincing vocational testimony regarding loss of earning capacity. The WCAB denied defendant’s petition for reconsideration. Holding: The WCAB ignored substantial medical evidence presented by AME Dr. Schindler showing that applicant’s 100% loss of hearing could not be attributed solely to the current cumulative trauma. The WCAB should have parceled out the causative sources— nonindustrial, prior industrial, current industrial—and decided the amount directly caused by the current industrial source. Remanded back to the WCAB with directions to the WCJ to make an award consistent with this opinion.
PETITIONS TO REOPEN Bolanos v. Inland Valley Saw Services, The Hartford (June 30, 2014) ADJ ) 2014 Cal. Wrk. Comp. P.D. Lexis 371 [WCAB panel decision] Applicant claimed an injury of 4/9/09 to the respiratory system. On 7/2/10, Edward Giaquinto, Ph.D., as a referral from a treating physician, issued a report finding a compensable psyche injury with a GAF of 53 and a need for further psychotherapy sessions. On 4/13/11, the claim was resolved via a Stipulated Award for 44% to the lungs and respiratory. On 12/7/11, a Petition for New and Further was filed via a skeletal petition not alleging any new body parts. A second Stipulated Award for 66% was issued on 4/25/12 with the additional body part of sleep disorder. On 5/17/13, another Petition to Reopen for New and Further for a claim of psyche was filed for the first time.
PETITIONS TO REOPEN Bolanos v. Inland Valley Saw Services, The Hartford (June 30, 2014) ADJ ) 2014 Cal. Wrk. Comp. P.D. Lexis 371 [WCAB panel decision] Holding: The WCAB found that applicant knew or should have known of existence of psyche injury in 2010, before the Stipulated Awards were issued, based upon the treating physician’s report dated 7/2/10, but failed to pursue a claim for psyche injury. Because the psyche injury was known to exist prior to the issuance of Stipulated Awards, it was not “new” and further injury for purposes of reopening a claim under L.C. §5410. It was not defendant’s burden to pursue additional body parts on applicant’s behalf, but rather applicant’s burden to pursue claims that are known to exist, and that “doctrine of invited error” would seem to apply under these circumstances.
DISCOVERY Lappi v. Regents of U.C. Irvine 2013 Cal. Wrk. Comp. P.D. Lexis 59 (WCAB Panel 2013) Applicant filed a claim for injury to her back, psyche, right knee, etc. During the course of discovery, Applicant sought to depose Defendant’s claims adjuster and obtained an Order that the adjuster was to produce all non-privileged portions of the claims file. Defendant produced some claims file documents but did not produce any documents created after the date that it retained an attorney. Following additional hearings, Defendant eventually produced a privilege log identifying 205 documents for which attorney-client privilege and attorney work product doctrine were claimed.
DISCOVERY Lappi v. Regents of U.C. Irvine 2013 Cal. Wrk. Comp. P.D. Lexis 59 (WCAB Panel 2013) Applicant disputed Defendant’s claims of privilege in regard to 47 of the documents on the privilege log. A trial on this discovery issue was held and the WCJ issued a Findings and Order finding that communications between claims personnel were not privileged unless the communications specifically documented or summarized communications that had been made by counsel. Defendant filed a Petition for Reconsideration, asserting that per Defendant’s trial witness, claims communications including action plans and supervisor reviews contained confidential information including legal opinions as well as discussion and advice provided by counsel.
DISCOVERY Lappi v. Regents of U.C. Irvine 2013 Cal. Wrk. Comp. P.D. Lexis 59 (WCAB Panel 2013) The WCAB concluded that “[i]f the notes only contain an internal action plan for defendant’s claims employees and do not refer to an attorney’s communication, they may not be protected by the attorney-client privilege,” and “if a note with an action plan does not refer to an attorney’s impressions, it is difficult to see how the action plan would fall within the work product doctrine.” The WCAB, therefore, concluded that a Special Master may be appointed by the WCJ in order to assess the actual substance of the communications at issue through an in camera review of the disputed documents. Defendant filed a Petition for Writ of Review in the Fourth Appellate District Court of Appeal, Division 3, on 3/28/13. A Writ of Review was issued on 8/1/13.
DISCOVERY Lappi v. Regents of U.C. Irvine 2013 Cal. Wrk. Comp. P.D. Lexis 59 (WCAB Panel 2013) The Court of Appeal held that: Evidence Code statutes governing privilege are applicable in workers’ compensation proceedings. Evidence Code §915 expressly prohibits a tribunal from ordering a party to produce documents for review as a means of determining the validity of a claimed privilege. The WCAB erred in ordering documents to be produced to a Special Master which the Regents and Sedgwick contend are privileged. Remanded to WCAB with directions to resolve the privilege dispute without any requirement that the documents be subject to a preliminary review.
DISCOVERY Yera v. J.C. Penney 2013 Cal. Wrk. Comp. P.D. Lexis 189 (WCAB Panel 2013) Applicant claimed work injury to her neck, upper extremities, chest, nervous system, and other body parts while employed as a sales assistant by J.C. Penney. Defendant noticed Applicant’s deposition. Applicant appeared at the noticed time and location but refused to go forward with the deposition in the presence of the store manager, who was designated as the employer’s representative. Defendant petitioned to compel the deposition to proceed in the store manager’s presence, and the WCJ denied the petition. Applicant had not sought any kind of protective order prior to the deposition.
DISCOVERY Yera v. J.C. Penney 2013 Cal. Wrk. Comp. P.D. Lexis 189 (WCAB Panel 2013) No evidence from Applicant identifying any right to privacy that would or could be affected if the store manager was present during the deposition. The only reason given by Applicant for not proceeding at the deposition was that Applicant would feel intimidated by the store manager’s presence. Holding: “[s]uch a summary assertion of subjective feelings is not sufficient reason to exclude the store manager from the deposition, particularly in light of the fact that Applicant is represented by counsel and has remedies available to address any improper behavior that may occur at the deposition.” WCJ’s decision denying defendant’s petition to compel is rescinded.