Calif Edition Banner March 2010
Vol 1, Issue 30

Find Solutions & Strategies                                   July 6, 2010

Can a Risk Factor Become Causative?
The role of risk factors in determining apportionment of permanent disability under LC 4663 and 4664
In This Issue
* FEATURED ARTICLE: Risk factors
* PANEL DECISIONS: UR, spinal surgery
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* CALIFORNIA TOP CASES: Tverberg v. Fillner Const.
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Robin Kobayashi
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Risk FactorsCan a Risk Factor Become Causative? During a break out session on apportionment at the California Society of Industrial Medicine and Surgery (CSIMS) annual summer educational program, the number one question on the minds of all physicians is what is the role of risk factors on the question of apportionment of permanent disability as required under Labor Code sections 4663 and 4664. > Read more.

Robert Rassp Article by Robert G. Rassp. Esq.
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Medical Treatment; Utilization Review. WCAB held that (1) pursuant to Simmons v. State of California (en banc), defendant may only contest issue of causation of need for medical treatment requested by treating physician if utilization review physician identifies causation as an issue in UR report, (2) here, UR physician raised no question regarding causation of applicant's need for requested surgery, and (3) there was no other evidence in record raising issue about industrial causation of need for shoulder surgery.  Read the Zamora panel decision.


Medical-Legal Procedure; Spinal Surgery. WCAB found that it was improper for WCJ to rely on Labor Code § 4062.3(j) and supplemental AME report to authorize spinal surgery, that proper procedures governing objections to a treating physician's recommendation for spinal surgery are set forth in LC 4610 and 4062, as explained in Cervantes v. El Aguila Food Products, Inc. (en banc), and that, in keeping with proper procedures, WCJ was required to rely either on treating physician's report or second opinion report obtained by defendant pursuant to LC 4062(b). Read the Vervalin panel decision.

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Tverberg v. Fillner Construction 
Supreme Court of California
2010 Cal. LEXIS 5968 ( subscribers only)
June 28, 2010

© Copyrighted 2010 by LexisNexis. All rights reserved.

PROCEDURAL POSTURE: After getting injured at a jobsite, plaintiff independent contractor, who was hired by a subcontractor, sued defendant general contractor. The trial court entered summary judgment for the general contractor, concluding that the general contractor could not be held vicariously liable on a theory of peculiar risk. The California Court of Appeal, First Appellate District, Division Four, reversed. The general contractor petitioned for review.

OVERVIEW: The independent contractor, who had been hired to erect a metal canopy, was injured when he fell into a bollard hole. The court concluded that the doctrine of peculiar risk did not apply. Because the bollard holes were located next to the area where the independent contractor was to erect the metal canopy, the possibility of falling into one of those holes constituted an inherent risk of the canopy work. Unlike a mere employee, the independent contractor, by virtue of the contract, had authority to determine the manner in which inherently dangerous construction work was to be performed, and thus assumed legal responsibility for carrying out the contracted work, including the taking of workplace safety precautions. Having assumed responsibility for workplace safety, the independent contractor could not hold a hiring party vicariously liable for injuries resulting from his own failure to effectively guard against risks inherent in the contracted work.

OUTCOME: The judgment of the appellate court was reversed, and the case was remanded to that court.
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