Case Law Recap 2014

THE HON. PAIGE LEVY

Marina del Rey, California

This year has seen a significant number of cases issued on various subjects. Some pertain to the interpretation of SB 863, others to evidentiary issues, and still others deal with the applicability of the Ogilvie line of cases. Overall, it has been a fascinating and exciting year for those who follow case law closely. Here is a brief recap of my Top 10 for 2014. This list is in no way comprehensive, and while I note some of the issues addressed, these cases should be reviewed in full.

1. The Regents of the University of California v. WCAB (Lappi) (2014) 79 Cal.Comp.Cases 509. The court held that the attorney-client privilege and the work product doctrine do operate within workers’ compensation proceedings and that the WCAB cannot order an in-camera review of documents in order to determine whether the privilege exists.
2. City of Sacramento v. WCAB (Cannon) (2014) 79 Cal.Comp.Cases 1. In this case the court found that a rating by analogy was valid when the only complaints were subjective in nature. The court also defined the meaning of "complex and extraordinary."
3. Benavides v. WCAB (2014) 79 Cal.Comp.Cases 483. The court allowed a Petition to Reopen to be heard even though the "new and further" disability occurred prior to the stipulated award.
4. Navarro v. City of Montebello (2014) 79 Cal.Comp. Cases 418. The court invalidated Rule 35.5(e) (California Code of Regulations, Title 8) and found that an employee is not required to return to the same panel QME for an injury that occurred subsequent to the initial evaluation.
5. Neri Hernandez v. Geneva Staffing, Inc. (2014) 79 Cal. Comp.Cases 682. The court gave us the long-awaited guidance on home health care issues, essentially defining the parties’ rights and responsibilities.
6. Brower v. David Jones Construction (2014) 79 Cal. Comp.Cases 550. Here the court found that permanent total disability benefits begin after the last payment of temporary disability and not when the applicant is deemed permanent and stationary.
7. Jose Dubon v. World Restoration, Inc. (2014) 79 Cal. Comp.Cases 1298. In this case the court held that: (a) a utilization review (UR) decision is invalid and not subject to independent medical review (IMR) only if it is untimely; (b) the WCAB, not IMR, must resolve legal issues regarding timeliness of a UR decision; (c) IMR must resolve all other disputes regarding a UR decision; (d) if a UR decision is untimely the WCAB may make the determination of medical necessity based on substantial medical evidence.
8. Jennifer Patterson v. The Oaks Farm (2014) 79 Cal. Comp.Cases 910. The WCAB held that the services of a nurse case manager are deemed medical treatment under Labor Code section 4600 and that an employer may not terminate approved nurse case manager services when there is no evidence of a change in the applicant’s circumstances showing that the services are no longer required.
9. Christopher Torres v. Contra Costa Schools (2014) 79 Cal.Comp.Cases 1181. In this significant panel decision the court interpreted new rule 10450 (e), which now requires all pleadings be verified at the WCAB. Although the court enforced the verification requirement, it also allowed the petitioner to "fix" the lack of verification and gave petitioner reasonable time to do so.
10. Eun Jae Kim v. B.C.D. Tofu House, Inc. (2014) 79 Cal.Comp.Cases 140. The decision here was that parties were entitled to an expedited hearing regarding Medical Provider Network issues even though the carrier had not yet accepted the case.