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Table Of ContentsHyperlink TabsCaseLaw UpdateBy Richard Montarbo, Esq.Cumulative Trauma Injury&Apportionment of LiablityBy Arjuna Farnsworth, EsqGoxer GersionMichael Giachino, Esq.Hana, Brophy, et alApportionment RevisitedCity of Jackson v. WCAB (Rice)By Jake Jacobsmeyers, EsqHana, Brophy, et alJason Marcus, EsqMarcus, Regalado, & MarcusOrthopedic Medicine and the Med-Legal ProcessByMichael Charles, MDNewton Medical GroupTed Richards, Esq.Stander, Rueben, Thomas, et.alJoseph Cupurro, Esq.The Law Office of Joseph Cupurro
TABLE OF CONTENTSSEMINAR FLYER CERTIFICATION LETTERS SPONSOR/ADVERTISEMENTS CASE LAW UPDATEPageI.INJURY AOE/COE Garcia v. Whitney .Yu Qin Zhu v. Department of Social Services IHSS .Davis v. State of California, Department of Forestry and Fire Protection,State Compensation Insurance Fund .County of Riverside v. WCAB (Sylves) .33II.APPORTIONMENT .City of Jackson v. WCAB (Rice) Hikida v. WCAB, Costco 4-64-55-6III.COMPROMISE & RELEASE .Ferragamo v. St. Louis (Los Angeles) Rams .66IV.CUMULATIVE TRAUMA INJURY Roger Bass v. State of California, Dept. of Corrections &Rehabilitation .6-7DEATH DEPENDENCY BENEFITS Pantus v. Get’er Done Trucking, State CompensationInsurance Fund .7DISCOVERY .Cann v. Desert View Auto Auction, Insurance Company of theState of Pennsylvania .Abea v. Parco, Inc. PSI, Administered by ClaimQuest, Inc. .Ford v. Workers’ Comp. Appeals Bd .8-9LIEN CLAIMS Maria De La Luz Garcia v. Morton Manufacturing 10-1210V.VI.VII.www.MontarboLaw.com1-4126-778891
Duncan v. Walmart Stores .Williams v. First Student .1011VIII. MEDICAL-LEGAL PROCEDURES .Hernandez v. Ramco Enterprises, PSI .Catlin v. J.C Penney, Inc., American Home Assurance .121213IX.MEDICAL TREATMENT INCLUDING MPN, and UR/IMR Lambert v. State of California Department of Forestry, SCIF Federal Express Corporation v. WCAB (Paynes) 14-1614-1515-16X.PROCEDURE .Fassett v. Bruce K. Hall Construction .Ly v. County of Fresno 16-1816-1717-18XI.PENALTIES & SANCTIONS .Gage v. Workers’ Compensation Appeals Board andCounty of Sacramento .McFarland v. Redlands Unified School District .18-19PERMANENT DISABILITY Truesdell v. Von’s Grocery Company Torres v. Greenbrae Management/SCIF .CompWest Insurance Company v. WCAB 19-21192020-21XII.1819XIII. PSYCHIATRIC INJURY .Xerox Corporation v. WCAB (Schulke) 2121XIV. STATUE OF LIMITATIONS .Garza v. City of Fresno .21-2221-22XV.SUBSEQUENTLY INJURY BENEFITS .22-23Baker (as SIBTF administrator) v. WCAB (Guerrero) . 22-23XVI. TEMPORARY DISABILITY 23-24Castellanos v. County of Kern, County Counsel . 23Venancio v. White Labs Inc, Cypress Insurance Company administeredby Berkshire Hathaway. 24XVII. THIRD PARTY LIABILITY . 24-25Kesner v. The Superior Court of Alameda County . 24-25CASE LAW UPDATE 2017 . 26www.MontarboLaw.com2
I.INJURY AOE/COE . 26-28Hollie v. Workers’ Compensation Appeals Board, ManagementAnd Training Program . 26Mark Dominquez v. County of Orange .27Guerra v. WCAB (Porcini Inc) 27-28II.CALIFORNIA INSURANCE GUARANTEE ASSOCIATION . 28-29California Insurance Guarantee Association v.Sylvia Mathews Burwell; United States Dept of Health& Human Services . 28-29III.DISCRIMINATION-LC 132 (a) . 29Salazar v. Leprino Foods . 29IV.DISCOVERY . 29Weisskopf v. Chipotle Mexican Grill and Starbucks Coffee Company . 29V.LIEN CLAIMS. 30-31Cornejo v. Younique Café, Inc, Zenith Insurance Company .30Baladez v. Coast Plating . 30Chorn v. Workers’ Compensation Appeals Board (Harris). 30Ozuna v. Kern County Superintendent of Schools, PSI . 30Holder v. Christian dba Adventure Limousine . 30Senguiz v. City of Fremont, York Insurance . 31Varela v. Morley Group, National Union Fire Ins. Company . 31VI.MEDICAL LEGAL PROCEDURES. 31-35Gaona v. Capital Builders Hardware, Southern Insurance Company.31-32Crane v. State of California, High Desert State Prison . 33Lopez v. California Pizza Kitchen . 34-35VII.MEDICAL TREATMENT: UR/IMR, and MPN . 36-40Edilberto Cerna Romero v. Stones and Traditions, SCIF . 36Bissett-Garcia v. Peace and Joy Center, Virginia Surety Co . 36Favila v. Arcadia Health Care, Cypress Insurance Company .37King v. Comppartners, Inc. 37-38Arredondo v. Tri-Modal Distribution Services .38Morales v. Pro Armor . 38-39Luna v. The Home Depot . 39Farias v. Able Building Maintenance, Zurich North America . 39-40VIII. PERMANENT DISABILITY . 40-42Constantino v. Queenscare, Alea North America . 40Wright v. Michael’s . 40www.MontarboLaw.com3
Ortega v. Building Technologies, Inc . 41-42Montenegro v. City of Los Angeles, PSI . 42IX.PROCEDURE—WCAB. 42-44Rosenberg v. State of California Highway Patrol DisabilityAnd Retirement . 42-43Dunn v. Bright Pool Services . 43Rivas v. Oltman’s Construction Company Co, Travelers PropertyCasualty Co. of America . 43Orellana v. Pro Wash, Inc, SCIF . 43-44X.PSYCHIATRIC INJURY . 44- 45Traveler’s Casualty & Surety Company v. WCAB . 44-45Larsen v. Securitas Security Services . 45XI.STATUTE OF LIMITATIONS . 46Galland v. Los Angeles Unified School District . 46XII.SUBROGATION . 47-48Collazo v. Global Manufacturing, AIG claims . 47Hartzheim Dodge, Inc, et al v. WCAB, Juan Navarro .47XIII. TEMPORARY DISABILITY. 48Ortega v. City of Guadalupe, PSI . 48Rogers v. American Medical Response, Ace American Ins. Company .48WORK COMP INDEX UPDATES 2018. 49-75CUMULATIVE TRAUMA & APPORTIONMENT OF LIABILITYBy: Arjuna Farnsworth, Esq & Michael Giachino, Esq.The Statute of Limitations, Entitlement to Benefits, Apportionment of PD and LiabilityAs Between Co-Defendants 1-12I.Cumulative Trauma/Timeline II.Cumulative Trauma Defined 1A. What Constitutes “Disability” . 2B. “Knowledge or Reason To Know” . 2III.Cumulative Trauma & The Statute of Limitations,Entitlement to Benefits.Jack in the Box v. WCAB 3Delta Dental Plan of California v. WCAB 4Earthgrains Co. v. WCAB (Hansen) . 4Roger Bass v. State of California, Dept of Corrections & Rehabilitation. 5IV.Cumulative Trauama Injuries & Apportionment of Causation of Disability 9LC 4663)Best Buy Company v. WCAB (Nquyen) 6www.MontarboLaw.com4
Yellow Transportation v. WCAB 6Dufresne v. Sutter Maternity & Surgery Center of Santa Cruz .7-8V.Cumulative Trauma Injury and Apportionment of Liability Between Co-Defendants.A. Discussion with Examples 8-9B. Relevant Case Law Western Growers Ins Co v. Wkrs’ Comp App. Bd .10SCIF v. WCAB (Rodarte) .11SCIF v. WCAB (Dorsett) 11-12APPORTIONMENT RE-VISITED (CITY OF JACKSON V. WCAB (RICE)By: Jake Jacobsmeyer Esq & Jason Marcus, Esq.The Doctrine of Apportionment: Strict Legal Apportionment/Causation of Injury & Apportionment ofLiability as Between Co-Defendants.I.Summary of The Law Of Apportionment. .1-15A. Burden of Proof . 1C. Apportionment of Liability vs. Strict Legal ApportionmentOf Causation of Disability .1D. Strict Legal Apportionment 2E. Labor Code Section 4663-APPORTIONMENT TO CAUSATION 2F. Labor Code Section 4664-APPORTIONMENT TO PRIOR AWARDG. Cumulative Trauma Injury and Apportionment of Liability as BetweenCo-Defendants 2-3II.Apportionment Case Law . 3-11Escobedo v. WCAB 3Vargas v. Atascadero State Hospital, SCIF 4Acme Steel v. WCAB (Borman) 4Warner Bros. Studio v. WCAB (Crocker) . 4-5Hikida v. WCAB, Costco 5City of Jackson v. WCAB (Rice) 6-7Pacific Compensation Insurance v. WCAB (Nilsen) .7City of Cathedral City v.WCAB .7Kopping v. WCAB (CHP) .8Welcher v. WCAB 8Ramirez v. LA Sheriff’s Department 9Dufresne v. Sutter Maternity & Surgery Center of Santa Cruz 9Best Buy Company v. WCAB (Nquyen) 11Yellow Transportation v. WCAB 11III.Cumulative Trauma Injury and Apportionment of Liability as Between CoDefendants.A. Discussion with Examples .12B. Relevant Case Law .13SCIF v. WCAB (Rodarte) .13Roger Bass v. State of California, Dept. of Corrections& Rehabilitation.SCIF v. WCAB (Dorsett) 15www.MontarboLaw.com5
ORTHOPEDIC MEDICINE AND THE MED/LEGAL PROCESSBy: Michael Charles, M.D, Ted Richards, Esq & Joe Capurro, Esq.Understanding Shoulder Injury and Treatment . 1-48Summary of Shoulder Injuries and Treatment .2-5Tendonitis/Overuse .5-6Muscle Strain .7-8Shoulder Bursitis 9-11Impingement .12-14AC Arthritis .15-16Rotator Cuff .17-26Cervical Disc Disease 27-30Which Physical Examination Tests Provide Clinicians With MostValue When Examining Shoulder?.31-34How To Be A “Super AME” .35-37Substantial Evidence 38-44AOE/COE, “Lighting Up”, Causation of Injury.45-48View of the Knee from a QME Perspective. . .49Causes of Osteoarthritis and Spinal Arthritis .50Evaluation of the Injured Knee .Knee Conditions and Treatments Osteoarthritis of the Knee What Causes OA Knee.What Factors Increase the Risk of Developing OA Knee How is OA Knee Diagnosed How is OA Knee Treated Cumulative Joint Trauma Medical-Legal Procedures; Labor Code 4060, 4061, 4062, 4062.1, 4062.2 .1-18I.Admissible Evidence . 1-3A) Admissible Evidence to establish PD/TD .Batten v. WCAB Valdez v. WCAB B) Entitlement to Medical Treatment . 4-6Dubon v. World Restoration Inc Edilberto Cerna Romero v. Stones & Traditions Bissett-Garcia v. Peace and Joy Center .Favila v. Arcadia Health Care .II. The Obligation to Return to the Prior/Original QME/AME .7-10Navarro v. City of Montebello .Hernandez v. Ramco Enterprises, PSI .www.MontarboLaw.com6
United States Fire Insurance v. WCAB Fernando Martinez v. Santa Clarita Community College .III. Is Applicant Unrepresented or Represented?. 10-12Massele v. Pitco Foods, California Insurance Company .IV. What Is The Issue?.12-14V. AD Rules 30-38 14-16Overview of the UR/IMR and MPN/IMR Process A: Effective Dates .I.The UR Process A. Time periods and procedures for UR .Basis Timeline for URa) Checklist for Defects in UR denial.1-11b) Remedies for Defective UR Denial Dubon v. World Restoration Inc SCIF Torres v. Contra Costa Schools Insurance Group, SCIF Bodam v. San Bernardino County/Department of SocialServices McFarland v. The Permanente Medical Group. Inc Garraway-Jimenez v. Santa Barbara Medical Foundation Clinic,Zurich American Insurance .Stevens v. WCAB (Outspoken Enterprises et al) McBurney v. All That Glitters, Employers CompensationInsurance Company B.III.Miscellaneous UR Provisions Effective Period of UR Denial .Expedited Review .Jesus Rodriguez v. Air Eagle, Inc The UR/IMR Process 11-14A. Basic Timeline for UR/IMR .a)Documents to be provided by Employer Upon Request byEmployee for IMR b)Penalties for Employer’s Delay of IMR process .IV.The MPN/IMR Process 14V.Miscellaneous Case Decisions 14-21Edilberto Cerna Romero v. Stones and Traditions, SCIF Bissett-Garcia v. Peace and Joy Center, Virginia Surety Company Favila v. Arcadia Health Care, Cypress Insurance Company King v. Comppartners, Inc www.MontarboLaw.com7
Arredondo v. Tri-Modal Distribution Services Morales v. Pro Armor Luna v. The Home Depot Faris v. Able Building Maintenance, Zurich North America Lambert v. State of California Department of Forestry Federal Express Corporation v. WCAB (Paynes) www.MontarboLaw.com8
CASE LAW UPDATE 2018The following represents a summary of some of the most recent case decisions issued by the California Supreme Court,California Court of Appeal, and the Workers’ Compensation Appeals Board, which the Editor believes will havesignificance in connection with the practice of Workers' Compensation law. The summaries are only the Editor'sinterpretation, analysis, and legal opinion, and the reader is encouraged to review the original case decision in itsentirety.Practitioners should proceed with caution when citing to this panel decision and should also verify the subsequent history of the decision. WCAB paneldecisions are citable authority, particularly on issues of contemporaneous administrative construction of statutory language [see Griffith v. WCAB(1989) 209 Cal. App. 3d 1260, 1264, fn. 2, 54 Cal. Comp. Cases 145]. However, WCAB panel decisions are not binding precedent, as are en bancdecisions, on all other Appeals Board panels and Workers' Compensation Judges [see Gee v. Workers' Comp. Appeals Bd. (2002) 96 Cal. App. 4th1418, 1425 fn. 6, 67 Cal. Comp. Cases 236]. While WCAB panel decisions are not binding, the WCAB will consider these decisions to the extent that itfinds their reasoning persuasive [see Guitron v. Santa Fe Extruders (2011) 76 Cal. Comp. Cases 228, fn. 7 (Appeals Board En Banc Opinion)]. PanelDecisions which are designated as “Significant” by the WCAB, while not binding in Workers Compensation proceedings, are intended to augment thebody of binding appellate court and en banc decision and is limited to panel decisions involving (1) issue(s) of general interest to the workers’compensation community, especially a new or recurring issue about which there is little or no published case law; and (2) upon agreement en banc ofall commissioners on the significance and importance of the issues presented and resulting decisions. (See Elliot v. WCAB (2010) 182 Cal.App. 4th 355,361, fn. 3, 75 CCC 81; Larch v. WCAB (1999) 64 CCC 1098, 1099-1100 (writ denied).I.Injury AOE/COEGarcia v. Whitney, 2016 Cal.Wrk.Comp.P.D. LEXIS 526 (BPD)The applicant was temporarily living rent free at defendant house. During this stay the applicant performed“maintenance activities for the house". Applicant sustained injury at an alternate address owed by defendant and soughtworkers’ compensation benefits for that injury. The WCJ found applicant was not an employee at the time of the injury.The WCJ noted first that the applicant was injured at a different address altogether. Second, the WCJ held that askingsomeone staying rent free in yourSee also, Lee v. West Kern Water District, (5th Appellate District) 5 Cal. App. 5th 606; 210 Cal.home to perform activities is not,Rptr.3d 362; 81 Cal. Comp. Cases 966; 2016 Cal. App. LEXIS 985, where a civil claim in tort heldin this WCJ's opinion, an offer ornot barred by exclusive remedy defense where employer held mock robbery applying LC 3601/02creation of employment unlessassault exception to AOE/COE.; [Hanna, Cal. Law of Employee Injuries and Workers’ Compensationthere is evidence that declining toLaw (2016) ch. 11, § 11.02; Levy et al., Cal. Torts (2016) ch. 10, § 10.11; Cal. Forms of Pleading andPractice (2016) ch. 577, Workers' Compensation, § 577.356; Wilcox, Cal. Employment Law (2016) ch.perform said activities would result20, § 20.41. Sullivan on Comp, Section 2.19, Exceptions to Exclusive Remedy Rule for Conductin the "consideration" (free rent inOutside Compensation Bargain]this case) b
California Court of Appeal, and the Workers’ Compensation Appeals Board, which the Editor believes will have significance in connection with the practice of Workers' Compensation law. The summaries are only the Editor's interpretation, analysis, and legal opinion, and the reader is encoura
