CALIFORNIA COMPENSATION CASES

Vol. 81 No. 11 Nov 2016

A Report of En Banc and Significant Panel Decisions of the WCAB and Selected Court Opinions of Related Interest, With a Digest of WCAB Decisions Denied Judicial Review

CONTENTS OF THIS ISSUE

© Copyright 2016 LexisNexis. All rights reserved. 

LexisNexis Online Subscribers: You can link to your account on Lexis.com or Lexis Advance to read the complete headnotes and court decisions, en banc decisions, and writ denied summaries.

Appellate Court Cases Not Originating With Appeals Board

Cameron (Paul) v. Sacramento County Employees’ Retirement System, lexis.com, Lexis Advance

Service-Connected Disability Retirement—Timeliness of Application— Court of Appeal, affirming trial court’s judgment, held that substantial evidence supported finding that plaintiff’s application for service-connected disability retirement was not timely, when Court of Appeal found that…

Lee (Kathy) v. West Kern Water Dist., lexis.com, Lexis Advance

Civil Actions Against Employers—Exclusive Remedy Rule—Court of Appeal reversed trial court and held that plaintiff’s (applicant) civil action against defendant employer was not barred by exclusive remedy rule, Labor Code §§ 3600, 3601, and 3602, for psychiatric injury that occurred 7/29/2011, when Court of Appeal found that plaintiff worked for employer as cashier at front counter providing customer service, that on 7/29/2011 plaintiff was involved in robbery and handed over money to person she believed was robber, that plaintiff later learned that robbery was mock robbery conducted by three co-employees, that plaintiff had no notice of mock robbery, that plaintiff was subsequently treated for psychiatric injury, that plaintiff applied…

Pierson v. Helmerich & Payne International Drilling Co., lexis.com, Lexis Advance

Third Party Actions—Respondeat Superior—Going and Coming Rule— Court of Appeal held that defendant Helmerich & Payne International Drilling Co., employer of Mr. Mooney (oil drilling crew member/floorhand/driver), could not be held vicariously liable under respondeat superior theory for injuries to Mr. Pierson, plaintiff/driver of other vehicle involved in motor vehicle accident with Mr. Mooney on 12/12/2011, during Mr. Mooney’s commute between job site and hotel, when Court of Appeal found that…

Taylor v. Department of Industrial Relations/Division of Labor Standards and Enforcement/State of California, lexis.com, Lexis Advance

Workers’ Compensation Insurance—Illegally Uninsured Employers—Penalties—Court of Appeal, affirming trial court’s judgment, in published portion of opinion held that, as used in Labor Code § 3722(b), “calendar year” means “one year back from the date that the director determines an employer has been uninsured on the date the citation is issued,” and in unpublished portion of opinion rejected employer’s constitutional challenges to statute, when Court of Appeal found that…

Digests of WCAB Decisions Denied Judicial Review

Editorial Board members David Hettick, Robert G. Heywood, Richard M. Jacobsmeyer, Kenneth B. Peterson, and Robert G. Rassp recommended the following writ denied cases for summarization in this issue.

Allegis Group v. W.C.A.B. (Brodie, Roly), lexis.com, Lexis Advance

Permanent Total Disability—Substantial Evidence—WCAB, affirming decision of WCJ, held that sufficient evidence supported WCJ’s finding that applicant incurred permanent total disability as result of cumulative trauma injury to her bilateral wrists, back, bilateral shoulders, digestive system, bilateral arms, neck, psyche (including inability to sleep), and bilateral hands, while employed by defendant as production operator during 2/25/2009 to 2/25/2010, when WCAB found that…

County of Riverside v. W.C.A.B. (Simmons, Alex), lexis.com, Lexis Advance

Presumption of Industrial Causation—Heart Trouble—Peace Officers—WCAB rescinded WCJ’s finding that applicant deputy sheriff suffered industrial heart/cardiovascular injury and hypertension from 7/1/2004 to 2/9/2015 causing 46 percent permanent disability after apportionment, and concluded that WCJ erred...

Edwards (Charles) v. W.C.A.B., lexis.com, Lexis Advance

Permanent Disability—Rating—Vocational Expert Evidence—WCAB affirmed WCJ’s findings that applicant security guard suffered 30 percent permanent disability from injuries to his cervical spine and left upper extremity on 9/15/2011, and that applicant’s vocational expert’s opinion did not support finding that applicant was 100 percent permanently disabled under standards set forth in Ogilvie v. W.C.A.B. (2011) 197 Cal. App. 4th 1262, 129 Cal. Rptr. 3d 704, 76 Cal. Comp. Cases 624, when WCAB found…

Hanford Community Medical Center v. W.C.A.B. (Skubitz, Douglas, Dec’d), lexis.com, Lexis Advance

Injury AOE/COE—Going and Coming Rule—Deviations from Course of Employment—WCAB affirmed WCJ’s finding that decedent suffered fatal injury AOE/COE in car accident on 12/7/2009 while traveling from his home in Fresno to attend second day of two-day leadership training conference in Pismo Beach after having returned home to Fresno with employer’s permission following completion of first day of conference to be with his daughter who had just given birth, when WCAB determined that…

Death Benefits—Dependency—WCAB, reversing WCJ in split panel decision, held that decedent’s infant granddaughter, born approximately 12 hours prior to decedent’s fatal accident on 12/7/2009, qualified as decedent’s dependent for purposes of recovering death benefits, when WCAB panel majority reasoned that…

Pearl (James) v. W.C.A.B., lexis.com, Lexis Advance

Petitions for Writ of Review—Final Orders—Good Faith Personnel Actions—Court of Appeal dismissed petition for writ of review because petitioner was not appealing final order, decision, or award of WCAB, as required by Labor Code §§ 5900, 5901, 5950, when WCAB found that applicant claimed industrial injury from 8/2010 to 12/26/2013 to multiple body parts, including psyche, while applicant worked for defendant as wastewater control supervisor, that defendant had admitted and found…

Tyni (Christopher) v. W.C.A.B., lexis.com, Lexis Advance

Medical Treatment—Independent Medical Review—Time Deadlines—WCAB, affirming WCJ, held that WCAB had no authority to determine dispute regarding medical treatment recommended for applicant police officer’s 8/26/2014 right knee injury, when WCAB concluded that…

Wilson (Michael) v. W.C.A.B., lexis.com, Lexis Advance

WCAB Jurisdiction—Professional Athletes—WCAB rescinded WCJ’s finding that California had jurisdiction over applicant’s claim for industrial injury while working as professional basketball player/entertainer for Defendant Harlem Globetrotters International during period 1/1/96 to 12/31/2006, when WCAB found that, pursuant to analysis in Carroll v. Cincinnati Bengals (2013) 78 Cal. Comp. Cases 655 (Appeals Board en banc opinion), applicant was temporarily in state while working for defendant and Labor Code § 3600.5(a) did not apply, that fact that defendant did not have “home” state where majority of its games were played was not factor in analyzing whether California had “sufficient connection to the matter” to hold defendant subject to its workers’ compensation law without depriving it of due process…

Other WCAB Decisions Denied Judicial Review

Williams (LeRhone) v. W.C.A.B., lexis.com, Lexis Advance

Workers’ Compensation Claims—Dismissal—Employment Relationship—WCAB granted defendant’s petition to dismiss applicant’s claim of new industrial injury on 12/5/2013 during medical evaluation by panel qualified medical evaluator evaluating applicant for 4/22/2011 industrial injury, when WCAB found that…

Appeals Board Panel Decisions

Anaya, Guillermo) v. Bay Area Carbide, lexis.com, Lexis Advance

Permanent Disability—Rating—Permanent Total Disability—WCAB, in split panel opinion, affirmed WCJ's finding that applicant who suffered industrial injury to his lungs, respiratory system, psyche, and in form of diabetes while employed as tool handler from 7/8/2009 through 7/8/2010, was entitled to unapportioned award of 100 percent permanent disability “in accordance with the fact” pursuant to Labor Code § 4662(b) based on opinions of examining physicians indicating that applicant was unable to return to labor market due to his physical and psychiatric limitations; however, WCAB disagreed…

Swinton (Reginald) v. Arizona Cardinals, lexis.com, Lexis Advance

WCAB Jurisdiction—Professional Athletes—WCAB, affirming WCJ, held that WCAB had subject matter jurisdiction over applicant's claim against defendant Arizona Cardinals for cumulative industrial injury during period 2/2000 through 3/11/2006, while playing professional football (wide receiver, kick/punt returner) for multiple football teams, when WCAB concluded that contrary to defendant's contention, Court of Appeal in Federal Insurance Co. v. Workers' Comp. Appeals Bd. (Johnson) (2013) 221 Cal. App. 4th 1116, 165 Cal. Rptr. 3d 288, 78 Cal. Comp. Cases 1257, did not hold that WCAB lacks subject matter jurisdiction over injury claim when there is limited connection between injury and state of California, but rather addressed issues of conflicts of law and due process regarding defendant's participation in case, that there was no question here that WCAB…

CALIFORNIA COMPENSATION CASES

Vol. 81 No. 12 Dececember 2016

A Report of En Banc and Significant Panel Decisions of the WCAB and Selected Court Opinions of Related Interest, With a Digest of WCAB Decisions Denied Judicial Review

CONTENTS OF THIS ISSUE

© Copyright 2016 LexisNexis. All rights reserved. 

LexisNexis Online Subscribers for LEXIS ADVANCE ONLY.  You can link to your account on Lexis Advance to read the complete headnotes and court decisions, en banc decisions, and writ denied summaries.

Supreme Court Case Not Originating With Appeals Board

Kesner v. The Superior Court of Alameda County; Kesner v. Pneumo Abex, LLC; Haver v. BNSF Railway Co., Lexis Advance

Negligence—Duty of Care—Asbestos—Take-Home Exposure—California Supreme Court, reversing judgment of Court of Appeal in one case before it, vacating judgment of Court of Appeal in other case before it, and remanding both cases, held that duty of employers and premises owners to exercise ordinary care in use of asbestos includes preventing exposure to asbestos carried by bodies and clothing of on-site workers, that, when it is reasonably foreseeable that workers, their clothing, or personal effects will act as vectors carrying asbestos from premises to household members, employers have duty to take reasonable care to prevent this means of transmission, and that this duty’s applicability to premises owners who use asbestos on their property is subject to any exceptions and affirmative defenses generally applicable to premises owners, such as rules of contractor liability, when California Supreme Court found that each plaintiff who brought present two actions (now consolidated), and who subsequently died from effects of mesothelioma, caused by inhalation of asbestos fibers, was member of household in which another member was exposed to asbestos at work, that Supreme Court was tasked solely with deciding whether defendant employers had legal duty to…

Appellate Court Compensation Cases

Capital Builders Hardware, Inc. v. W.C.A.B. (Gaona, Robert), Lexis Advance

Petitions for Writ of Review—WCAB Decisions—Finality—Court of Appeal held that WCAB decisions being appealed, namely, WCJ’s denial “without prejudice” of defendant’s motion to strike medical report, followed by WCAB’s dismissal and denial of defendant’s petitions for removal and reconsideration, did not constitute final decision and, thus, was not appealable, when Court of Appeal found that…

Gage (Rebecca) v. W.C.A.B., Lexis Advance

WCAB Jurisdiction—Advance Disability Pension Payments—Penalties—Court of Appeal, annulling WCAB decision and remanding to WCAB for determination of whether Labor Code § 5814 penalties are appropriate in this case, held that WCAB has jurisdiction to impose penalties under Labor Code § 5814 for unreasonable delay or denial of advance disability pension payments, available under Labor Code § 4850.4 to local peace officers disabled on job, when Court of Appeal found that…

Appellate Court Cases Not Originating With Appeals Board

Advent, Inc. v. National Union Fire Insurance Co. of Pittsburgh, PA, Lexis Advance

Liability Insurance—Equitable Contribution—Motions for Summary Judgment—Burdens of Proof—Court of Appeal, affirming trial court’s denial of one insurer’s motion for summary judgment and granting second insurer’s motion for summary judgment, held that trial court correctly allocated burdens of proof between insurers’ opposing motions for summary judgment, when Court of Appeal found that…

Khosh v. Staples Construction Co., Inc., Lexis Advance

Injury AOE/COE—Subcontractor’s Employee—Hirer’s Liability—Court of Appeal, affirming trial court’s grant of summary judgment against injured employee, held that, because injured employee, plaintiff, failed to present evidence that his employer’s hirer, defendant, affirmatively contributed to plaintiff’s injuries, there were no triable issues of material fact on plaintiff’s theory that one of two exceptions applied, retained control exception or nondelegable duty exception, to avoid general rule that employee of independent contractor may not recover tort damages for work-related injuries from contractor’s hirer, when Court of Appeal found that…

Rolfes v. Mei, Lexis Advance

Civil Actions Against Employers—Uninsured Employers—Presumption of Negligence— Court of Appeal held that defendant did not rebut presumption of negligence of Labor Code § 3708, when Court of Appeal found that defendant owned 33-unit apartment complex, that plaintiff worked for employer as assistant manager and later manager and also lived in complex, that employer made deductions from plaintiff’s monthly rent in exchange for his duties, that in 9/2010 plaintiff was working as manager and received deduction for entire rent in exchange for his duties pursuant to…

Civil Actions Against Employers—Employment Relationships— Apartment Managers—Wages in Lieu of Rent—Failure to Pay Minimum Wages—Court of Appeal held that defendant employer did not pay plaintiff minimum wages, and that exception from Industrial Welfare Commission, wage order no. 5-2001, 8 Cal. Code Reg. § 11050, permitting employers to deduct part of rent in exchange for apartment manager duties, did not apply because written agreement to make such deduction was required and there was no such written agreement between employer and plaintiff, when Court of Appeal found that…

Civil Actions Against Employers—Pay Stubs—Court of Appeal held that employer violated requirement of Labor Code § 226(a) to give plaintiff pay stubs that indicated hours worked, gross earnings, deductions, and net earnings, and that exception of Labor Code § 226(d) did not apply…

Digests of WCAB Decisions Denied Judicial Review

Editorial Board members Francis V. Clifford, Hon. Jacqueline C. Duncan, Susan Hamilton, and James Pettibone recommended the following writ denied cases for summarization in this issue.

California Insurance Guarantee Association v. W.C.A.B. (Claiborne, Dorothy), Lexis Advance

Petitions for Writ of Review—Final Orders—Court of Appeal dismissed Petition for Writ of Review filed by California Insurance Guarantee Association challenging WCAB’s order rescinding WCJ’s finding that…

Grossman Medical Group v. W.C.A.B. (Rus, Ioan), Lexis Advance

Medical Liens—Official Medical Fee Schedule—WCAB affirmed its prior decision, Rus v. California Facilities & Equipment Maintenance Company, Inc., 2016 Cal. Wrk. Comp. P.D. LEXIS 249 (Appeals Board noteworthy panel decision), that lien claimant...

Target Corp. v. W.C.A.B. (Estrada, Fidel), Lexis Advance

Permanent Disability—Apportionment—WCAB affirmed WCJ’s finding that applicant team leader/laborer’s industrial injury to his low back, neck, left knee, shoulders, lower extremities, thoracic spine, left elbow, left forearm, left wrist, stomach, psyche, and in forms of sleep disturbance, diabetes, and hypertension from 1989 through 5/17/2010, caused 100 percent permanent disability “in accordance with the fact” pursuant to Labor Code § 4662(b), and that there was no substantial evidence to justify apportionment of applicant’s permanent disability to nonindustrial factors under Labor Code § 4663, when WCAB reasoned that…

Other WCAB Decisions Denied Judicial Review

Clorox Products Manufacturing v. W.C.A.B. (Romero, Emilio, Dec’d), Lexis Advance

Petitions for Writ of Mandate—Dismissal at Request of WCAB—Issues Resolved by New WCAB Decision—Petitions for Removal—Court of Appeal dismissed petition for writ of mandate at request of WCAB, when petitioner filed petition for removal related to WCJ’s 4/15/2016 order allowing parties to take second deposition of panel qualified medical evaluator, WCAB dismissed petition…

Escamilla v. W.C.A.B. (Johnson, Rubie), Lexis Advance

Petitions for Reconsideration—Dismissal—Successive Petitions—Sanctions—WCAB dismissed petition for reconsideration as successive petition under Navarro v. A & A Farming (2002) 67 Cal. Comp. Cases 296 (Appeals Board en banc opinion), in which petitioner Escamilla was seeking reconsideration of previous WCAB decision after reconsideration imposing sanctions on petitioner and ordering petitioner to pay attorney’s fees, after WCAB found that...

Glendale Adventist Medical Center v. W.C.A.B. (Abramian, Jackie), Lexis Advance

Permanent Disability—Rating—Application of 1997 Schedule for Rating Permanent Disabilities—WCAB awarded applicant 83 percent permanent disability, after apportionment, among other benefits, for applicant certified nursing assistant’s 7/28/2004 industrial injury to right forearm, right wrist, both knees, gastrointestinal/GERD, headaches, psyche, and left and right shoulders, with WCAB’s permanent disability rating based on applicant’s credible testimony, medical opinions from four physicians, rating instructions, recommended rating from Disability Evaluation Unit, cross-examination of Disability Evaluation Unit rater, and 1997 Schedule for Rating Permanent Disabilities, when WCAB found that…

Grainger v. W.C.A.B. (Powers, Franklin and O’Donnell, Lawrence), Lexis Advance

Petitions for Reconsideration—Non-Final Orders—Withdrawal of Attorney in Multiple Defendant Claims—WCAB dismissed petition for reconsideration of WCJ’s order at 12/16/2015 mandatory settlement conference denying petitioner’s request to be relieved as attorney of record for Claims Reserve Management in industrial injury claims of two applicants (Powers and O’Donnell), because (1) petition was successive petition, and (2) WCJ’s order…

Rockford Corp. v. W.C.A.B. (Morgan, Paul), Lexis Advance

Permanent Total Disability—Apportionment—WCAB awarded applicant laborer 100 percent permanent disability, without apportionment, based on opinions from panel qualified medical evaluator and vocational rehabilitation counselor, for applicant’s 3/30/2009 industrial injury to his low back and lower extremities, which occurred from lifting heavy piece of concrete weighing approximately 150 pounds, when WCAB found that…

Appeals Board Panel Decisions

Azoulay (Avi) v. City of Orange, Lexis Advance

Presumption of Industrial Causation—Blood-Borne—Infectious Diseases—Peace Officers—WCAB, reversing WCJ, held that applicant suffered presumptively compensable injury AOE/COE in form of blood-borne infectious disease while employed as juvenile correction officer during period 7/1/2001 through 6/11/2012, when agreed medical examiner, Dr. Green, testified that applicant's blood infection was caused by bacteria that traveled to applicant's bloodstream from ruptured diverticula (caused by non-industrial diverticulitis) in applicant's colon, and WCAB concluded that…

Beltran (Juan) v. Structural Steel Fabricators, Lexis Advance

Supplemental Job Displacement Benefits——Settlement—Thomas Findings—WCAB rescinded WCJ's Order Approving Compromise and Release which disallowed parties' agreement to settle any claim applicant laborer may have to Supplemental Job Displacement Benefit voucher under Labor Code § 4658.7, in connection with applicant's industrial cumulative trauma to his head and back over period 10/20/2013 to 10/20/2014, when WCAB found that…

CALIFORNIA COMPENSATION CASES

Vol. 82 No. 1 Jan 2017

A Report of En Banc and Significant Panel Decisions of the WCAB and Selected Court Opinions of Related Interest, With a Digest of WCAB Decisions Denied Judicial Review

CONTENTS OF THIS ISSUE

© Copyright 2017 LexisNexis. All rights reserved. 

LexisNexis Online Subscribers: You can link to your account on Lexis.com or Lexis Advance to read the complete headnotes and court decisions, en banc decisions, and writ denied summaries.

Appellate Court Cases Not Originating With Appeals Board

Cady v. Cooper, Lexis Advance

Confidential Information—Disclosure—Litigation Privilege—Court of Appeal, affirming trial court’s grant of summary judgment in favor of defendant, held that disclosure of confidential information was absolutely protected by litigation privilege of Civil Code § 47(b), when Court of Appeal found that during dissolution proceedings of plaintiff mother’s second marriage, family law court appointed evaluator to render assessment about custody and visitation of couple’s minor children, that plaintiff mother signed authorization allowing for defendant, from whom she had received counseling or therapy during first marriage, to disclose…

Hancock (Patricia) v. Time Warner Cable Services, LLC, Lexis Advance

Disability Discrimination—Failure to Accommodate—Failure to Engage in Interactive Process—Court of Appeal, reversing trial court’s judgment in favor of plaintiff, held that evidence showed that defendant did not know that plaintiff was disabled or that plaintiff had ever asked for any accommodation, as required by law, when Court of Appeal found that plaintiff…

Healthsmart Pacific, Inc. v. Kabateck, Lexis Advance

Anti-SLAPP Suit—Protected Activity—Fair Report Privilege—Court of Appeal, affirming trial court order in defendants’ favor, held that statements made by attorney defendants to news media constituted protected activity under anti-SLAPP statute, Code of Civil Procedure § 425.16(e)(4), and were covered by fair report privilege, Civil Code § 47(d), and that plaintiffs had not established probability of success on merits of their claims, when Court of Appeal found that...

Public Service Mutual Insurance Co. v. Svetli, Lexis Advance

Workers’ Compensation Insurer—Third Party Tortfeasor—Reimbursement—Court of Appeal, affirming trial court’s dismissal of insurer’s complaint in intervention, held that settlement between applicant and third party tortfeasor, pursuant to which applicant dismissed complaint against third party tortfeasor in exchange for mutual waiver of costs, resulted in no monetary recovery by applicant from which insurer could obtain reimbursement for benefits paid to applicant, when Court of Appeal found that…

Federal District Court Opinions of Related Interest

California Insurance Guarantee Association v. Burwell, Lexis Advance

California Insurance Guarantee Association—Medicare—Reimbursement—U.S. District Court, Central District of California, denying defendant Center for Medicare & Medicaid Services’ motion to dismiss and motion for summary judgment, and granting plaintiff California Insurance Guarantee Association’s motion for partial summary judgment, held that defendant’s interpretations of Medicare Secondary Payer statute, 42 U.S.C.S. § 1395y, and relevant regulations were contrary to law and not entitled to deference, when court found that...

Latham (Robert) v. Cambria Company LLC, Lexis Advance

Fair Employment and Housing Act—Discrimination—Failure to Accommodate—Retaliation—Wrongful Termination—U.S. District Court, Central District of California, Southern Division, granting in part defendant’s motion for summary judgment and striking plaintiff’s cross-motion for summary judgment, granted defendant’s motion for summary judgment on plaintiff’s actual and perceived discrimination claims as they related to plaintiff’s employment by defendant as regional account representative, denied defendant’s motion…

Digests of WCAB Decisions Denied Judicial Review

Editorial Board members Melissa C. Brown, Hon. Joel K. Harter, James T. Ponzio, and Hon. Ralph Zamudio recommended the following writ denied cases for summarization in this issue.

Enstar (US) Inc. v. W.C.A.B. (Rodriguez, Alex), Lexis Advance

Medical-Legal Procedure—Medical Evaluator Reporting Timeframes— WCAB rescinded WCJ’s finding that defendant was not obligated to pay bills of panel qualified medical evaluator in pain management, Anuj Gupta, M.D., for two medical-legal reports, based on Dr. Gupta’s failure to timely issue reports pursuant to Labor Code § 4062.5, when WCAB concluded that…

Tri-County Medical Group, Inc. v. W.C.A.B. (Paz, Gladys), Lexis Advance

Liens—Procedural Rights and Duties—Statute of Limitations—WCAB affirmed WCJ’s finding that 18-month statute of limitations in Labor Code § 4903.5(a), not three-year limitations period, applied to lien claim filed by lien claimant Tri-County Medical Group on 10/19/2015 for services lien claimant continuously provided to applicant from 1/21/2013 to 12/23/2013, and that lien claimant’s lien was barred for failure to timely file lien within requisite 18-month period, when WCAB found that…

Von Ritzhoff (Kristian) v. W.C.A.B., Lexis Advance

Discovery—Appointment of Special Master— WCAB, denying removal, held that it was necessary to appoint special master to facilitate completion of discovery in this case, and referred matter to Associate Chief Judge for South, Ellen Flynn, to select special master to oversee all discovery, including deposition of applicant’s ex-wife, by utilizing selection procedure for arbitrators in Labor Code § 5270.5 and 8 Cal. Code Reg. § 10995(d), when WCAB found that...

Other WCAB Decisions Denied Judicial Review

Burbank Unified School District v. W.C.A.B. (Kline, Robert), Lexis Advance

Permanent Disability—Apportionment—Substantial Evidence— WCAB, in panel split decision, affirmed WCJ’s finding that applicant food service driver suffered 57 percent permanent disability as result of industrial injury to his right knee, right shoulder, right elbow, and low back incurred on 8/4/2011, and found that reporting of orthopedic qualified medical evaluator, Antoine Roberts, M.D., did not constitute substantial evidence to support apportionment of permanent disability because Dr. Roberts did not adequately explain his opinions regarding apportionment; Commissioner Razo, dissenting, found that…

Freeman (Anja) v. W.C.A.B., Lexis Advance

Writ of Review—Court of Appeal denied pro per applicant’s petition for writ of review, when Court of Appeal found applicant’s petition defective in that it did not include copy of decision to be reviewed or copies of minutes of hearing or summary of evidence, as required by California Rules of Court, rule 8.495(a)(1), nor did petition include proof of service on Secretary of Board, as required by rule 8.495(a)(3), and, additionally, Court of Appeal found that...

State Compensation Insurance Fund v. W.C.A.B. (Devereux, Christopher), Lexis Advance

Evidence—Medical Evidence—Substantial Evidence—WCAB affirmed WCJ’s finding that applicant suffered industrial injury in form of hypertension and diabetes during period 3/25/2012 through 3/25/2014 and that he was entitled to temporary disability from 3/26/2014 to date and continuing, based on reporting of panel qualified medical evaluator Raye L. Bellinger, M.D., when WCAB concluded…

Tulare Regional Medical Center v. W.C.A.B. (Rios, Sofia), Lexis Advance

Petitions for Reconsideration—Time for WCAB to Act on Petition—Court of Appeal denied defendant’s Petition for Writ of Review in which defendant claimed denial of due process by WCAB’s failure to act on defendant’s timely Petition for Reconsideration within 60 days of its filing, as required under Labor Code § 5909, when WCAB…

Wagner (Joshua, Dec’d), Wagner (Laura, Dependent) v. W.C.A.B., Lexis Advance

Injury AOE/COE—Evidence—Medical Reports—WCAB affirmed WCJ’s finding that decedent driver/warehouseman did not suffer injury AOE/COE to his neck and mid-back during period ending 2/22/2001 and that decedent’s widow, applicant, was, therefore, not entitled to death benefits following decedent’s death, when WCAB concluded…

Appeals Board Panel Decisions

Parker (Rick) v. DSC Logistics, Lexis Advance

Medical—Legal Procedure—Qualified Medical Evaluators—New Injuries—WCAB rescinding WCJ's finding, held that applicant forklift driver who filed separate claims for 10/30/2009 injury to his back, 3/31/2014 injury to his back and neck, and cumulative injury to his back and neck during period ending on 5/14/2014, and underwent Labor Code § 4060 medical evaluation on 1/9/2015 by panel qualified medical evaluator John Steinmann, M.D., regarding 3/31/2014 claimed injury, was not entitled to new qualified medical evaluator panels to address 10/30/2009 specific injury or cumulative injury, but rather was required to return to Dr. Steinmann for evaluation of disputed medical issues in those cases pursuant to Labor Code §§ 4060, 4062.2 and 4062.3, 8 Cal. Code Reg. § 35.5 and WCAB's decision in Navarro v. City of Montebello (2014) 79 Cal. Comp. Cases 418 (Appeals Board en banc opinion), when all three of applicant's claimed injuries were reported by way of claim form prior to date of applicant's initial evaluation by Dr. Steinmann, and WCAB found that…

Sandoval (Etelvina) v. La Quinta Inn & Suites, Lexis Advance

Supplemental Job Displacement Benefits—Penalties—WCAB rescinded WCJ's award of 25 percent penalty under Labor Code § 5814 on total value of applicant's supplemental job displacement voucher for defendant's failure to timely provide voucher, and held that defendant was liable for 25 percent penalty only on amount of voucher actually used by applicant, when WCAB, relying on reasoning in Stonebraker v. Master Cooling Corp., 2007 Cal. Wrk. Comp. P.D. LEXIS 90 (Appeals Board noteworthy panel decision), and Portugal v. Mikasa, Inc., 2009 Cal. Wrk. Comp. P.D. LEXIS 143 (Appeals Board noteworthy panel decision), found that…

CALIFORNIA COMPENSATION CASES

Vol. 82 No. 2 Feb 2017

A Report of En Banc and Significant Panel Decisions of the WCAB and Selected Court Opinions of Related Interest, With a Digest of WCAB Decisions Denied Judicial Review

CONTENTS OF THIS ISSUE

© Copyright 2017 LexisNexis. All rights reserved. 

LexisNexis Online Subscribers: You can link to your account on Lexis Advance to read the complete headnotes and court decisions, en banc decisions, and writ denied summaries.

Federal District Court Opinions of Related Interest

County of Sacramento v. Henrikson (Eric), Lexis Advance

Federal Court Jurisdiction—Motion for Preliminary Injunction—Collateral Estoppel—U.S. District Court, Eastern District of California, granting plaintiff’s motion to enjoin defendant from attempting to relitigate scope of stipulation and order signed by judge in same U.S. District Court in prior proceedings, held that, because stipulation and order had already been conclusively determined to have no effect on plaintiff’s credit rights, collateral estoppel barred that issue’s relitigation, when federal court found that…

Vanderhule v. Amerisource Bergen Drug Corp., Lexis Advance

Federal Diversity Jurisdiction—Intentional Infliction of Emotional Distress—Exclusive Remedy Rule—U.S. District Court, Central District of California, granting plaintiff’s motion to remand case to state court, held that, although complete diversity of state citizenship existed between plaintiff and defendant employer, such diversity of citizenship did not exist between plaintiff and individual defendant, who was defendant employer’s senior human resources advisor, and that there was non-fanciful possibility that plaintiff could maintain her intentional infliction of emotional distress claim despite exclusive remedy rule of California Workers’ Compensation Act, when court found…

Appeals Board En Banc Decision

Maxham (Bradley) v. California Department of Corrections and Rehabilitation, Lexis Advance

Medical Evaluators—Information—Communication—WCAB en banc, granting defendant’s petition for removal, rescinding WCJ’s order, and returning matter to trial level, held that “information,” as used in Labor Code § 4062.3, constitutes (1) records prepared or maintained by employee’s treating physician or physicians, and/or (2) medical and nonmedical records relevant to determination of medical issues, and that “communication,” as used in Labor Code § 4062.3, may constitute “information” if it contains, references, or encloses (1) records prepared or maintained by employee’s treating physician or physicians, and/or (2) medical and nonmedical records relevant to determination of medical issues, when WCAB en banc found that…

Digests of WCAB Decisions Denied Judicial Review

Editorial Board members David Hettick, Robert G. Heywood, Richard M. Jacobsmeyer, Kenneth B. Peterson, and Robert G. Rassp recommended the following writ denied cases for summarization in this issue.

Aguilera (Maria) v. W.C.A.B., Lexis Advance

Permanent Disability—Rating—Permanent Total Disability—WCAB, in split panel decision, affirmed its prior decision [see Aguilera v. Collins Chiropractic Group, 2016 Cal. Wrk. Comp. P.D. LEXIS 336 (Appeals Board noteworthy panel decision)] that applicant chiropractic assistant’s 8/24/2007 industrial injury to her gastrointestinal system, cervical spine, lumbar spine, shoulders, elbows, wrists, hands, knees, psyche, and in forms of irritable bowel syndrome, hypertension, fibromyalgia, and affective spectrum disorder, caused 88 percent permanent disability after apportionment, rather than 100 percent permanent total disability as determined by WCJ, when WCAB panel majority…

Parrent (Gregory) v. W.C.A.B., Lexis Advance

Medical Provider Networks—Utilization Review—WCAB affirmed WCJ’s finding that WCAB had no jurisdiction to consider medical treatment recommended by medical provider network treating physician, to treat applicant telephone service representative’s upper extremities injured during period 5/10/99 through 11/17/2002, and found that dispute must proceed through utilization review/independent medical review process pursuant to Labor Code §§ 4610, 4610.5, and 4610.6, when WCAB reasoned that…

White Memorial Medical Center v. W.C.A.B. (Morfin, Jose), Lexis Advance

Petitions for Writ of Review—Dismissal—Non-Final Orders—Court of Appeal dismissed defendant’s petition for writ of review challenging WCAB’s finding that applicant was entitled to referral to liver specialist for treatment for his nonindustrial hepatitis C as precondition to treatment of his industrial psychiatric and hernia injuries, and awarded attorney’s fees under Labor Code § 5801, when Court of Appeal found…

Other WCAB Decisions Denied Judicial Review

Centeno (Walter, Dec’d) v. W.C.A.B., Lexis Advance

Petitions for Writ of Review—Dismissal—Untimely Petitions—Court of Appeal dismissed applicants’ petition for writ of review as untimely, when petition, which challenged WCAB’s finding...

Diehl (Robert) v. W.C.A.B., Lexis Advance

Injury AOE/COE—Burden of Proof—Substantial Evidence—WCAB affirmed WCJ’s finding that applicant failed to meet burden of proving that he suffered injury AOE/COE to his psyche and in form of headaches due to pain medication Suboxone necessitated by admitted industrial back injury on 7/22/2003, when WCAB concluded...

Garcia (Armando) v. W.C.A.B., Lexis Advance

Employment Relationships—Existence of Employment Contract—Consideration—WCAB affirmed WCJ’s finding that applicant, who suffered injury on 4/28/2009, was not employee of defendant on date of injury and was not entitled to recovery, when WCAB concluded...

Rayford (Cleveland) v. W.C.A.B., Lexis Advance

Petitions for Writ of Review—Dismissal—Premature—Court of Appeal dismissed applicant’s Petition for Writ of Review as premature pursuant to Labor Code §§ 5900 and 5901 because no final order was issued by WCAB…

Appeals Board Panel Decisions

Cervantes (Isidro) v. Quality Farms Labor, Lexis Advance

Medical-Legal Procedure—Non-Medical Records Provided to Qualified Medical Evaluator—WCAB, in split panel opinion, held that applicant tractor operator who suffered industrial injury to left shoulder, left upper extremity, neck, back, and psyche on 4/24/2007, could provide qualified medical evaluator with medical study abstracts and relevant citations to AMA Guides but that applicant did not show good cause to provide any other non-medical information to qualified medical evaluator, when WCAB reasoned that…

Woolever (Lee, Dec’d) v. City of Long Beach, Lexis Advance

Death Benefits—Death Without Dependents—WCAB affirmed WCJ's decision awarding $ 250,000.00 in death benefits to Death Without Dependents Unit and denying decedent's ex-wife's claim as dependent, when ex-wife divorced decedent in 1998 but claimed that, in addition to court ordered spousal support, decedent provided financial support in form of forgiven loan and paying for gas, tires and other necessities, but WCAB reasoned…

CALIFORNIA COMPENSATION CASES

Vol. 82 No. 3 Mar 2017

A Report of En Banc and Significant Panel Decisions of the WCAB and Selected Court Opinions of Related Interest, With a Digest of WCAB Decisions Denied Judicial Review

CONTENTS OF THIS ISSUE

© Copyright 2017 LexisNexis. All rights reserved. 

LexisNexis Online Subscribers: You can link to your account on Lexis Advance to read the complete headnotes and court decisions, en banc decisions, and writ denied summaries.

Appellate Court Compensation Case

Davis (Theodore) v. W.C.A.B., Lexis Advance

WCAB Admissions—Failure to Consider Relevant Labor Code Provision—Court of Appeal, vacating WCAB decision, held that WCAB’s admission of its failure in its decision on reconsideration to consider Labor Code § 4605, which provides that qualified medical evaluator is required to address any report by physician hired at employee’s own expense, constituted failure to “state the evidence relied upon and specify in detail the reasons for the decision,” as required by Labor Code § 5908.5, when Court of Appeal found that injured employee hired at own expense physician to review qualified medical evaluator’s reports, that WCJ concluded…

Appellate Court Case Not Originating With Appeals Board

Secci v. United Independent Taxi Drivers, Inc., Lexis Advance

Employment Relationships—Agency—Court of Appeal, reversing trial court’s judgment notwithstanding verdict granted in favor of defendant on grounds that evidence was insufficient to support jury finding that taxi driver was defendant’s agent, held that there was sufficient evidence to support jury’s verdict that taxi driver was defendant’s agent, making defendant vicariously liable for taxi driver’s acts, when Court of Appeal found…

Federal Circuit Court Opinion of Related Interest

Del Gallego (John) v. Wells Fargo & Co. Long Term Disability Plan, Lexis Advance

Long-Term Disability Plans—Offsets Against Workers’ Compensation Permanent Disability Benefits—U.S. Court of Appeals, Ninth Circuit, affirming trial court’s summary judgment in favor of employer’s long-term disability plan, held that long-term disability plan properly offset employee’s permanent partial disability workers’ compensation benefits, when Ninth Circuit found…

Federal District Court Opinions of Related Interest

Contreras v. Mi Tierra Mercado y Carniceri, Lexis Advance

Diversity Jurisdiction—Fraudulent Joining of Non-Diverse Defendant—Exclusive Remedy Rule—Power Press Exception—U.S. District Court, Northern District of California, granting plaintiff’s motion to remand and remanding case to California Superior Court, held that diverse defendant failed to prove that there was absolutely no possibility that plaintiff could establish cause of action against non-diverse defendant in state court, citing Thompson v. 3M Co., 2017 U.S. Dist. LEXIS 30571, when U.S. District Court found that…

Ferrer v. Host International, Inc., Lexis Advance

Diversity Juisdiction—Fraudulent Joining of Non-Diverse Defendant—Exclusive Remedy Rule—Intentional Infliction of Emotional Distress—Defamation—U.S. District Court, Central District of California, denying plaintiff’s motion to remand and granting defendant’s motion to dismiss, held that plaintiff could not show “non-fanciful possibility” that she could state intentional infliction of emotional distress claim against non-diverse defendant under California law, meaning that this claim was preempted by exclusive remedy rule of workers’ compensation law, and that plaintiff had “failed to state a cause of action” against non-diverse defendant for defamation, with that failure “obvious according to the settled rules” of California, making joinder against non-diverse defendant fraudulent, when U.S. District Court found that…

Martinovsky v. County of Alameda, Lexis Advance

Workers’ Compensation Insurance Fraud—U.S. District Court, Northern District of California, granting in part and denying in part defendants’ motions to dismiss, held that facts established probable cause for search of plaintiff’s clinic as part of defendants’ investigation into alleged fraudulent filing of workers’ compensation insurance claims for health care benefits in violation of Penal Code § 550, that sufficient facts did not exist to establish probable cause for arrest of plaintiff for alleged violation of that statute, and that alleged facts did not establish violation of 42 U.S.C.S. § 1983 for deprivation of plaintiff’s civil rights based on entity liability, when U.S. District Court found that…

Thompson (Kim) v. 3M Co., Lexis Advance

Diversity Jurisdiction—Fraudulent Joining of Non-Diverse Defendant—U.S. District Court, Central District of California, granting plaintiff’s motion to remand and remanding case to California Superior Court, held that diverse defendant had not overcome heavy burden to show fraudulent joinder of non-diverse defendant, when U.S. District Court found that plaintiff initiated present action against diverse and non-diverse defendants in California Superior Court, alleging that she…

Digests of WCAB Decisions Denied Judicial Review

Editorial Board members Francis V. Clifford, Hon. Jacqueline C. Duncan, Susan Hamilton, and James Pettibone recommended the following writ denied cases for summarization in this issue.

Hughes Aircraft Co. v. W.C.A.B. (Billik, Bernard), Lexis Advance

Injury AOE/COE—Substantial Evidence—Compensable Consequence Injury—WCAB affirmed WCJ’s finding that applicant’s 5/23/2016 fall at his home was compensable consequence of 1977 industrial cumulative trauma to his immune system while employed as engineer for Hughes Aircraft, and WCAB ordered defendant to continue making payments into applicant’s medical payment account, when WCAB found that…

Jacobs (Justin) v. W.C.A.B., Lexis Advance

Average Weekly Wages—Actual Earnings—WCAB, affirming WCJ, concluded that WCJ properly relied on pay stubs and wage statement submitted into evidence, rather than on applicant in-home care giver’s less reliable testimony, to calculate applicant’s average weekly wage based on his actual pre-injury earnings pursuant to Labor Code § 4453(c)(3), and found no merit to applicant’s assertion that WCJ should have determined average weekly wage based on earning capacity under Labor Code § 4453(c)(4), when WCAB reasoned that...

Santa Monica UCLA Medical Center v. W.C.A.B. (Fam, Girgis), Lexis Advance

Petitions for Writ of Review—Dismissal—Premature Petitions—Court of Appeal dismissed defendant’s Petition for Writ of Review challenging WCAB’s decision affirming WCJ’s unapportioned award of 100 percent permanent disability to applicant custodial supervisor based on urinary incontinence caused by 3/2/2002 spine injury resulting in cauda equine syndrome, when WCAB…

Serrano (Maria) v. W.C.A.B., Lexis Advance

Subsequent Injuries Benefits Trust Fund—Threshold Requirements for Liability—Preexisting Disability—WCAB affirmed WCJ’s finding that applicant, who suffered industrial injury to her head/headaches, jaw, neck, shoulders, and psyche while employed as collector by defendant bank during period 6/25/2001 to 5/4/2004, was not entitled to benefits from Subsequent Injuries Benefits Trust Fund because, contrary to applicant’s assertion, evidence did not establish that applicant had psychiatric condition that was actually disabling prior to her work injury, as is required under Labor Code § 4751 to recover Subsequent Injuries Benefits Trust Fund benefits, when reports…

Xerox Corp. v. W.C.A.B. (Schulke, Ryan, Dec’d), Lexis Advance

Injury AOE/COE—Injury From Work Stress—Physical vs. Psychiatric Injury—WCAB, reversing WCJ in split panel decision, held that decedent suffered fatal heart injury on 1/5/2012 arising out of his employment as copy repair technician for defendant and that his dependents were entitled to death benefits, when agreed medical evaluator opined that work stress was contributing cause (10 percent) of decedent’s heart attack, and, rejecting defendant’s assertion that stress causing decedent’s heart attack was psychiatric injury that did not meet threshold of compensability under Labor Code § 3208.3, WCAB reasoned that…

Other WCAB Decisions Denied Judicial Review

Barri v. W.C.A.B., Lexis Advance

Petitions for Writ of Mandate—Dismissal—Premature Petitions—WCAB denied lien claimant’s petition for writ of mandate challenging order of Division of Workers' Compensation (DWC) about constitutionality of certain provisions of SB 1160 and AB 1244, including provisions involving provider suspension and stay of liens, when WCAB found that…

Chevez (Maria) v. W.C.A.B., Lexis Advance

Petitions for Writ of Review—Repetitive Petitions—Court of Appeal denied applicant’s Petition for Writ of Review as repetitive of earlier Petition for Writ of Review filed by applicant on 8/19/2016, which WCAB...

Heidary (Payam) v. W.C.A.B., Lexis Advance

Psychiatric Injury—Good Faith Personnel Actions—WCAB affirmed WCJ’s finding that applicant’s claim for psychiatric injury while employed as college professor during period 8/22/2005 to 6/5/2009 was barred by good faith personnel action defense in Labor Code § 3208.3(h), based on opinion of psychiatric panel qualified medical evaluator, who concluded that...

Hingada (Marie) v. W.C.A.B., Lexis Advance

Psychiatric Injury—Good Faith Personnel Actions—WCAB affirmed WCJ’s finding that applicant’s claim for psychiatric injury while employed as senior underwriting assistant during period 5/11/2011 to 8/22/2012 was barred by good faith personnel action defense in Labor Code § 3208.3(h), when substantial medical evidence established that actual events of applicant’s employment were predominant cause of applicant’s psychiatric injury, and, based upon credible testimony of applicant’s supervisor and employer’s vice president of human resources, WCAB concluded that…

Trinidad (Guillermo) v. W.C.A.B., Lexis Advance

Petitions for Writ of Review—Dismissal—Premature Petitions—Court of Appeal dismissed pro per applicant’s Petition for Writ of Review as premature pursuant to Labor Code § 5901 because applicant...

Waddell (Shirley) v. W.C.A.B., Lexis Advance

Sanctions—WCAB affirmed WCJ’s order that applicant appear for, and cooperate in, her deposition and cautioned applicant that her conduct in repeatedly re-litigating issues of fact and law already determined, repeatedly filing repetitious and/or frivolous pleadings, and making accusations against defense counsel and WCJ…

Appeals Board Panel Decisions

Davis (William, III) v. State of California, Department of Forestry and Fire Protection, Lexis Advance

Presumption of Industrial Causation—Firefighters—Exposure to Biochemical Substances—WCAB, affirming WCJ, held that WCJ properly concluded that presumption of industrial causation for injury from exposure to biochemical substances in Labor Code § 3212.85 did not apply to applicant's claim for cumulative injury to his nervous and respiratory systems allegedly from regular exposure to fire retardant during his seven years of employment as firefighter with Department of Forestry and Fire Protection ending on 6/1/2008, when WCAB reasoned that…

Mason (Kimberly) v. S.E.I.U. Local 721, Lexis Advance

Employment Relationships—Union Members—WCAB, reversing WCJ in split panel opinion, held that applicant who worked for County of Los Angeles, Department of Children and Family Services and was member of S.E.I.U. Local 721 was acting as employee of S.E.I.U. Local 721 at time she suffered injury to her left upper extremity, when applicant's injury occurred during her participation in union rally on 12/10/2013, and, relying on holding in Jones v. W.C.A.B. (1971) 20 Cal. App. 3d 124, 97 Cal. Rptr. 554, 36 Cal. Comp. Cases 563, WCAB panel majority concluded that…

CALIFORNIA COMPENSATION CASES

Vol. 82 No. 4 Apr 2017

A Report of En Banc and Significant Panel Decisions of the WCAB and Selected Court Opinions of Related Interest, With a Digest of WCAB Decisions Denied Judicial Review

CONTENTS OF THIS ISSUE

© Copyright 2017 LexisNexis. All rights reserved. 

LexisNexis Online Subscribers: You can link to your account on Lexis Advance to read the complete headnotes and court decisions, en banc decisions, and writ denied summaries.

Appellate Court Compensation Cases

County of Riverside v. W.C.A.B. (Sylves, Peter), Lexis Advance

Cumulative Trauma Injuries—Application for Adjudication—Time to File—Court of Appeal, affirming WCAB order, held that injured employee timely filed application for adjudication of claim within one year of date of injury, as required by Labor Code § 5405(a), when Court of Appeal found that…

Cumulative Trauma Injuries—Employers’ Liability—Indian Tribes—Court of Appeal, affirming WCAB order, held that Labor Code § 5500.5(a) did not bar liability of defendant County, when Court of Appeal found that...

Iniguez (Enrique) v. W.C.A.B., Lexis Advance

Injury AOE/COE—Body Parts Injured—Finality of Findings—Court of Appeal, annulling and remanding decision of WCAB, held that 2012 WCJ decision was not final judgment entitled to preclusive effect under either collateral estoppel or res judicata, when Court of Appeal found that applicant claimed to have sustained injury AOE/COE to his head, neck, back, both shoulders, and lower extremities while employed by defendant, that WCJ’s 2012 decision...

Marinwood Community Services, Inc. v. W.C.A.B., Lexis Advance

Employment Relationships—Volunteer Firefighter—Court of Appeal, affirming WCAB decision, held that WCAB’s decision that applicant was employee of fire department was based on reasonable interpretation of  relevant statutes, when Court of Appeal found that...

Firefighters—Cancer Presumption—Extension of Presumption—Court of Appeal, affirming WCAB decision, held that WCAB’s decision that extension of cancer presumption ran from date firefighter last worked for any agency was based on reasonable interpretation of relevant statutes, when Court of Appeal found that…

Ramirez (Daniel) v. W.C.A.B., Lexis Advance

Utilization Review—Independent Medical Review—WCAB Jurisdiction—Medical Treatment Utilization Schedule—Court of Appeal, reversing WCAB order taking matter off calendar and ordering WCAB to enter order consistent with views expressed by Court of Appeal, held that WCAB correctly concluded that it had no jurisdiction over present dispute as to whether utilization review and independent medical review had used correct standard, i.e., medical treatment utilization schedule, to deny acupuncture treatment requested by applicant’s treating physician, when Court of Appeal found…

Appellate Court Case Not Originating With Appeals Board

People, The v. Riddles, Lexis Advance

Insurance Fraud—Restitution—Court of Appeal, affirming trial court’s judgment of conviction, held that trial court did not abuse its discretion when ordering defendant to pay restitution in amount of premium loss suffered by workers’ compensation insurer, when Court of Appeal found that defendant pled guilty to one count of workers’ compensation insurance fraud in violation of Insurance Code § 11760(a), that defendant’s conviction...

Superior Court Opinion of Related Interest

Page (Janice), Hansen (Dorene), Gonzalez (Leticia) v. Acting Administrative Director, Division of Workers’ Compensation, Lexis Advance

Superior Court Jurisdiction—Workers’ Compensation System—Permanent Disability Benefits—Discrimination Based on Gender—California Superior Court, sustaining defendants’ demurrer without leave to amend against plaintiffs’ class action complaint, held that it lacked subject matter jurisdiction over allegations in complaint, when California Superior Court found that plaintiffs...

Federal District Court Opinion of Related Interest

Jankins v. Wells Fargo Bank, N.A., Lexis Advance

Federal Court Jurisdiction—Diversity Jurisdiction—Fraudulent Joinder of Defendants—U.S. District Court, Central District of California, granting plaintiff’s motion to remand to state court, held that defendant failed to sufficiently establish fraudulent joinder, so that complete diversity requirement was not satisfied, when U.S. District Court found that plaintiff was employed by defendant as customer service banker, that plaintiff was denied requested medical leave of absence by defendant, that plaintiff’s employment was terminated by defendant, that plaintiff filed administrative complaint under California Fair Employment and Housing Act with Department of Fair Employment and Housing and received right to sue letter, that plaintiff filed present action in California Superior Court…

Digests of WCAB Decisions Denied Judicial Review

Editorial Board members Frederick W. Bray, Hon. Colleen S. Casey, William A. Herreras, and John W. Millerrecommended the following writ denied cases for summarization in this issue.

Beverly Hills Center for Arthroscopic and Outpatient Surgery v. W.C.A.B. (Estrella, Maria), Lexis Advance

Liens—Outpatient Surgery Centers—Illegal Referrals—WCAB affirmed WCJ’s finding that lien claimant Beverly Hills Center for Arthroscopic & Outpatient Surgery was not entitled to reimbursement for services provided to applicant in connection with 3/22/2005 specific injury, when WCAB found that...

Carrillo (Aaron) v. W.C.A.B., Lexis Advance

Injury AOE/COE—Off-Duty Social Activities—Intoxication—WCAB affirmed WCJ’s order that applicant busboy take nothing on his claim for 4/18/2011 industrial injuries to his head, brain, upper and lower extremities, and psyche, when applicant’s injuries were sustained in motor vehicle accident that occurred after applicant returned to his workplace following end of his shift and consumed alcohol, and WCAB…

City of Santa Maria v. W.C.A.B. (Gowing, Sean), Lexis Advance

Discovery—Sub Rosa Video—WCAB affirmed WCJ’s decision denying defendant’s petition to reopen applicant police officer’s stipulated awards of permanent disability to reduce permanent disability awarded for industrial back and knee injuries, based primarily on sub rosa surveillance of applicant undertaken by defendant shortly after stipulated awards were issued that showed applicant engaged in activities that defendant alleged were not consistent with level of permanent disability awarded, when WCAB found that...

County of Orange v. W.C.A.B. (Azoulay, Avi), Lexis Advance

Presumption of Industrial Causation—Blood-Borne Infectious Disease—Police Officers—WCAB affirmed its prior decision [see Azoulay v. City of Orange, 2016 Cal. Wrk. Comp. P.D. LEXIS 338 (Appeals Board noteworthy panel decision)] that applicant was entitled to presumption of industrial causation afforded by Labor Code § 3212.8, when WCAB found that…

Petitions for Reconsideration—Time for WCAB to Act on Petition—WCAB noted in footnote that WCAB has 60 days from filing of petition for reconsideration to act on petition; however, if WCAB fails to act...

Presumption of Industrial Causation—Blood-Borne Infectious Disease—Police Officers—WCAB, reversing WCJ, held that applicant suffered presumptively compensable injury AOE/COE in form of blood-borne infectious disease while employed as juvenile correction officer during period 7/1/2001 through 6/11/2012, when agreed medical examiner, Dr. Green, testified that applicant’s blood infection was caused by bacteria that traveled to applicant’s bloodstream from ruptured diverticula (caused by non-industrial diverticulitis) in applicant’s colon, and WCAB concluded that…

Entertainment by J & J, Inc. v. W.C.A.B. (Bernstein, Brian), Lexis Advance

Petitions for Reconsideration—Time for WCAB to Act on Petition—Court of Appeal denied defendant’s petition for writ of review requesting that Court of Appeal confirm that defendant had due process right to decision on merits of its petition for reconsideration by WCAB, despite provisions of Labor Code § 5909 stating that reconsideration is denied by operation of law if petition is not acted upon within 60 days, when, through no fault of defendant in this case, WCAB…

Estrada (Juventino) v. W.C.A.B., Lexis Advance

Writ of Review—Scope of Review—Court of Appeal denied applicant’s petition for writ of review challenging WCAB’s findings that applicant did not suffer injury AOE/COE to his head, skull, back, circulatory system, and nervous system on 6/30/2010, as alleged, and that presumption of compensable injury in Labor Code § 5402 did not apply, when WCJ determined that applicant was not credible regarding his alleged injury and that he did not meet burden of proving with substantial evidence that he suffered injury AOE/COE, and Court of Appeal determined that…

Mission Builders Home Improvement v. W.C.A.B. (Barragan, Augustine), Lexis Advance

Employment Relationships—Employees vs. Independent Contractors—WCAB, reversing WCJ, found that applicant, who alleged that he sustained industrial injuries to his right hip, right leg, left knee, low back, internal system/sleep, and psyche on 8/17/2005, while working as roofing salesperson and estimator for defendants was employee rather than independent contractor, based on “right of control” test and secondary factors described in S. G. Borello & Sons, Inc. v. Dept. of Industrial Relations (1989) 48 Cal. 3d 341, 769 P.2d 399, 256 Cal. Rptr. 543, 54 Cal. Comp. Cases 80, and Court of Appeal, denying writ of review, opined that, while WCJ expressly found that applicant was not credible witness, WCAB could reasonably have found that…

Padilla (Maria) v. W.C.A.B., Lexis Advance

Permanent Disability—Apportionment—WCAB rescinded WCJ’s unapportioned award of 100 percent permanent disability to applicant who suffered industrial injuries to her back, left shoulder, urinary system, gastrointestinal system, and psyche while working as a housekeeper on 1/1/2000 and from 1/1/2000 through 9/2/2003, and returned matter to trial level for further development of record on issues of permanent disability and apportionment, when WCAB found that…

PT Gaming, LLC v. W.C.A.B. (Pecoraro, Roger), Lexis Advance

Medical-Legal Procedure—Non-Medical Records Provided to Qualified Medical Evaluator—WCAB, reversing WCJ, held that defendant improperly sent panel qualified medical evaluator Robert Fenton, M.D., non-medical records and information, namely, copy of applicant’s Facebook page and advocacy letter, over applicant’s timely objection and without order from WCJ, in violation of 8 Cal. Code Reg. § 35(d), and WCAB found that...

Settlements—Compromise and Release Agreements—Setting Aside—WCAB rescinded WCJ’s 6/8/2016 Order Approving Compromise and Release, when WCAB found that WCJ may have lacked authority to enter Order Approving Compromise and Release because Order Approving Compromise and Release issued after filing of Petition for Reconsideration, that WCJ should have…

San Francisco Chronicle v. W.C.A.B. (Paez, Tony), Lexis Advance

Injury AOE/COE—Substantial Evidence—WCAB, reversing WCJ, held that opinion of agreed medical examiner in internal medicine, Matthew W. Duncan, M.D., that applicant’s bladder cancer was, with medical probability, caused by his long history of exposure to newspaper ink and dyes during his employment as newspaper carrier/driver for defendant, constituted substantial evidence to support finding that applicant suffered bladder cancer AOE/COE, when Dr. Duncan’s opinion was supported by several scientific studies demonstrating increased risk of bladder cancer resulting from exposure to printing inks, material safety data sheets pertaining to chemicals in printing ink used by defendant, several of which were identified by OSHA as possible carcinogens, and literature indicating that particular pigment in black ink used in newspapers was potentially carcinogenic and linked to bladder cancer, as were other chemicals in printing ink, and WCAB reasoned that...

State Compensation Insurance Fund v. W.C.A.B. (Hosey, Steve), Lexis Advance

Permanent Disability—Rate of Indemnity Payments—WCAB amended its prior decision [see Hosey v. Salinas Peppers, 2016 Cal. Wrk. Comp. P.D. LEXIS 428 (Appeals Board noteworthy panel decision)] to reflect that $230 per week was correct rate of permanent disability owed to applicant...

White (Jean) v. W.C.A.B., Lexis Advance

Findings and Awards—Accrued Damages—Court of Appeal denied applicant’s petition for writ of review challenging WCAB’s finding that applicant, who was permanently totally disabled as result of industrial injury to multiple body parts on 6/19/95, was not entitled to recover accrued value of assisted living services delayed by defendant for almost two years after award of assisted living was issued, when there was no statutory or case law authority to support such award, and WCAB determined that...

Other WCAB Decisions Denied Judicial Review

Entertainment by J & J, Inc. v. W.C.A.B. (Bernstein, Brian), Lexis Advance

Injury AOE/COE—Substantial Evidence—Specific vs. Cumulative Injury—Court of Appeal denied defendant’s petition for writ of review challenging WCAB’s finding that applicant suffered specific industrial injury to his back on 1/17/99, rather than cumulative injury during period 1/18/99 through 10/28/99, when WCAB found that...

Jackson (Cynthia) v. W.C.A.B., Lexis Advance

Temporary Disability—Wage Loss—Concurrent Employment—WCAB affirmed WCJ’s finding that applicant school security guard who suffered industrial injury to her spine and psyche on 11/1/2011 was not entitled to wage loss under Labor Code § 4453(c)(2), when WCAB found that...

Medical-Legal Procedure—Replacement Qualified Medical Evaluators—WCAB affirmed WCJ’s finding that applicant was not entitled to replacement qualified medical evaluator to evaluate her vision on basis that reports of qualified medical evaluator…

Credit—Overpayment of Temporary Disability—WCAB affirmed WCJ’s finding that defendant was entitled to credit against permanent disability for duplicate payment of full salary and temporary disability for period 1/12/2013 through 3/22/2013, when applicant did not provide any support for her assertion that credit should have been denied, and WCAB found...

Appeals Board Panel Decisions

Garza (James) v. O’Reilly Auto Parts, Lexis Advance

Medical—Legal Procedure—Assignment and Selection of Panel Qualified Medical Evaluators—Specialty Designation—WCAB, denying removal, affirmed WCJ's finding that qualified medical evaluator panel in specialty of orthopedics was correct panel to evaluate applicant's alleged 5/6/2015 industrial injury to his left foot, low back, knees, and sleep, notwithstanding applicant's request for chiropractic panel, when WCAB reasoned that…

Rodriguez (Vivian) v. Simi Valley Unified School District, Lexis Advance

Medical Treatment—Utilization Review—Home Health Care Evaluations—WCAB rescinded WCJ's order requiring defendant to complete applicant's home health care evaluation after determining that utilization review (UR) was inapplicable to applicant's request for authorization (RFA) because request for evaluation did not involve medical treatment issue, when WCAB concluded that...

CALIFORNIA COMPENSATION CASES

Vol. 82 No. 5 May 2017

A Report of En Banc and Significant Panel Decisions of the WCAB and Selected Court Opinions of Related Interest, With a Digest of WCAB Decisions Denied Judicial Review

CONTENTS OF THIS ISSUE

© Copyright 2017 LexisNexis. All rights reserved. 

LexisNexis Online Subscribers: You can link to your account on Lexis Advance to read the complete headnotes and court decisions, en banc decisions, and writ denied summaries.

Appellate Court Compensation Cases

City of Jackson v. W.C.A.B. (Rice, Christopher), Lexis Advance

Permanent Disability—Apportionment—Substantial Medical Evidence—Genetics—Court of Appeal, annulling WCAB’s decision after reconsideration and remanding matter to WCAB with instructions to deny reconsideration, held that apportionment may be properly based on genetics/hereditability, that qualified medical evaluator properly apportioned applicant’s permanent disability, and that her opinion was based on substantial medical evidence, when Court of Appeal found that applicant, while employed by defendant, incurred cumulative trauma injury AOE/COE to his neck, that qualified medical evaluator opined that…

Southern Insurance Co. v. W.C.A.B. (Berrios-Segovia, David), Lexis Advance

Workers’ Compensation Insurance Policies—Rescission—Employer’s Misrepresentations—Court of Appeal, annulling WCAB decision and remanding with directions, held that workers’ compensation insurance policy may be rescinded (Insurance Code § 650), that rescission is enforced by civil action for relief based on rescission (Civil Code § 1692) or by asserting rescission as defense, and that, because Arbitrator and WCAB did not address and determine whether rescission was meritorious defense to employee’s claim, case must be remanded with directions to hear and determine whether insurer was entitled to rescind, and did rescind, policy, when Court of Appeal found that…

Appellate Court Case Not Originating With Appeals Board

Go (Arnold) v. Zimpel, Lexis Advance

Third Party Actions—Summary Judgment—Triable Issues of Material Fact—Court of Appeal, affirming trial court’s order granting summary judgment in favor of employer of third-party tortfeasor, held that workers’ compensation insurer failed to raise triable issue of material fact as to whether injured employee’s second accident increased insurer’s payments to employee, when Court of Appeal found that…

Federal District Court Opinions of Related Interest

California Insurance Guarantee Association v. Price, Lexis Advance

Medicare Secondary Payer Statute—Reimbursement—U.S. District Court, Central District of California, vacated and set aside disputed portions of three reimbursement demands at issue in present lawsuit, and entered judicial declaration that Center for Medicare and Medicaid Services’ (CMS) interpretation of Medicare Secondary Payer (MSP) statute, 42 U.S.C.S. § 1395y(b)(2)(A)(ii), (B)(ii), is unlawful with respect to reimbursement of conditional payments, when U.S. District Court, Central District of California, found that CIGA…

Dawson v. National Collegiate Athletic Association, Lexis Advance

Employment Relationships—Fair Labor Standards Act—California Labor Code—College Athletes—U.S. District Court, Northern District of California, granting defendants’ motion to dismiss plaintiff’s complaint without leave to amend, held that there was no legal basis for finding that college athletes were “employees” under Fair Labor Standards Act (FLSA), 29 U.S.C.S. § 203, and that California Labor Code § 3352 excludes student athletes from term “employees” for purposes of workers’ compensation, when U.S. District Court, Northern District of California, found that plaintiff...

Flores v. Velocity Express, LLC, Lexis Advance

Willful Misclassificaton of Workers—Federal Fair Labor Standards Act— California Law—U.S. District Court, Northern District of California, granting plaintiffs’ motion for partial summary judgment in its entirety, held that all three plaintiffs were entitled to partial summary judgment on issue of misclassification of workers under federal Fair Labor Standards Act and California law, when U.S. District Court, Northern District of California, found that plaintiffs had worked as drivers for defendant’s regional package delivery service, that, to determine whether individual is employee or independent contractor under Fair Labor Standards Act, courts apply “economic reality test,” i.e., “[E]mployees are those who as a matter of economic reality are dependent upon the business to which they render service,” that courts consider following non-exhaustive factors to guide their application of economic reality test: “1) the degree of the alleged employer’s right to control the manner in which the work is to be performed; 2) the alleged employee’s opportunity for profit or loss depending upon his managerial skill; 3) the alleged employee’s investment in equipment or materials required for his task, or his employment of helpers; 4) whether the service rendered requires a special skill; 5) the degree of permanence of the working relationship; and 6) whether the service rendered is an integral part of the alleged employer’s business,” that courts apply similar test to determine whether individual is employee or independent contractor under California law…

Rafieh v. Safeway Inc., Lexis Advance

Exclusive Remedy Rule—Intentional and Negligent Infliction of Emotional Distress—U.S. District Court, Northern District of California, holding that plaintiff’s claims for intentional infliction of emotional distress, negligent infliction of emotional distress, and negligence are barred by exclusive remedy rule of workers’ compensation statutes, granted defendant’s motion to dismiss these three claims, when U.S. District Court, Northern District of California, found that plaintiff…

Digests of WCAB Decisions Denied Judicial Review

Campbell Soup Supply Co., L.L.C. v. W.C.A.B. (Shoaib, Ahmed), Lexis Advance

Penalties—Delay in Payment of Stipulated Award—Tax Withholdings—WCAB affirmed WCJ’s finding that defendant was liable for 25 percent penalty under Labor Code § 5814 for withholding monies owed to applicant under stipulated award settling applicant’s Labor Code § 132a claim allegedly to satisfy income and payroll taxes for back wages, which defendant paid to Internal Revenue Service and Franchise Tax Board, respectively, when WCAB found that...

Other WCAB Decisions Denied Judicial Review

California Insurance Guarantee Association v. W.C.A.B. (Zito, Sandra), Lexis Advance

Permanent Disability—Apportionment—Court of Appeal denied defendant California Insurance Guarantee Association’s petition for writ of review challenging WCAB’s findings that applicant suffered 28 percent permanent disability solely as result of 1998 back injury incurred in motor vehicle accident and that there was no substantial medical evidence in record to support apportionment of applicant’s permanent disability to 2003 industrial injury, for which another insurer had liability, or to applicant’s preexisting scoliosis, when apportionment opinion...

Garcia (Raul) v. W.C.A.B., Lexis Advance

Petitions for Writ of Review—Untimely Petitions—Court of Appeal denied applicant’s petition for writ of review as untimely when petition challenging WCAB’s decision was not filed with Court of Appeal within 45-day time limit in Labor Code § 5950, but Court of Appeal noted that...

Martinez (Candace) v. W.C.A.B., Lexis Advance

Injury AOE/COE—Substantial Evidence—Court of Appeal denied applicant’s petition for writ of review challenging WCAB’s finding that she did not sustain cumulative injury AOE/COE to her neck and back while employed as office technician from 8/13/2007 through 11/5/2014, when WCAB determined that WCJ...

State of California/Department of Justice v. W.C.A.B. (Galvan, Frank), Lexis Advance

Cumulative Injury—Date of Injury—Injurious Exposure—Court of appeal denied defendant’s petition for writ of review challenging WCAB’s finding that applicant suffered single cumulative injury, rather than three separate periods of cumulative trauma, to his cardiovascular/respiratory systems, spine, and in form of leukemia while employed as police agent from 1/1/73 through 4/20/2005, causing 100 percent permanent disability, when applicant...

Appeals Board Panel Decisions

De La Garza (Tony) v. Roll Global, Lexis Advance

Medical Treatment—Utilization Review—WCAB affirmed WCJ's order directing defendant to authorize surgical treatment recommended by applicant supervisor's primary treating physician, Randi Galli, M.D., to treat applicant's 10/22/2012 industrial burn injury to his left arm, wrist and hand, when surgical treatment was certified by 6/3/2016 utilization review (UR) decision, and WCAB found no justification for defendant's withdrawal of UR certification on basis that same treatment had been denied by UR/independent medical review (IMR) on 5/20/2016 and that such denial was effective for 12 months pursuant to Labor Code § 4610(g)(6) and 8 Cal. Code Reg. § 9792.9(o) absent change in material facts relating to applicant's condition, where earlier denial of treatment by UR physician Gerard Pennington, M.D., was based upon Dr. Pennington's…

Kraft (Judith) v. Correy Jamestown, Lexis Advance

California Insurance Guarantee Association—Other Insurance—Administration of Medical Benefits—WCAB, in split panel opinion, affirmed WCJ's order transferring administration of applicant district manager's medical award for all body parts from California Insurance Guarantee Association (CIGA), which was entity responsible for applicant's 3/20/87 alleged injuries to her neck, low back and left ankle, to Hartford Insurance Company (Hartford), defendant's workers' compensation carrier at time of applicant's 8/31/85 industrial low back and left ankle injuries, notwithstanding that liability for applicant's neck injury had not yet been adjudicated, when WCAB panel majority reasoned that…

CALIFORNIA COMPENSATION CASES

Vol. 82 No. 7 July 2017

A Report of En Banc and Significant Panel Decisions of the WCAB and Selected Court Opinions of Related Interest, With a Digest of WCAB Decisions Denied Judicial Review

CONTENTS OF THIS ISSUE

© Copyright 2017 LexisNexis. All rights reserved.

LexisNexis Online Subscribers: You can link to your account on Lexis Advance to read the complete headnotes and court decisions, en banc decisions, and writ denied summaries.

Appellate Court Compensation Cases

Baker (Jack) v. W.C.A.B, Lexis Advance

WCAB Jurisdiction—Utilization Review—Independent Medical Review—Timeframes—Court of Appeal, affirming WCAB decision and following State Compensation Insurance Fund v. W.C.A.B. (Margaris) (2016) 248 Cal. App. 4th 349, 207 Cal. Rptr. 3d 875, 81 Cal. Comp. Cases 561, held that time limit in Labor Code § 4610.6(d), providing that…

County of Sacramento v. W.C.A.B. (McCartney, Jonathon Scott), Lexis Advance

Injury AOE/COE—Actinic Keratosis—Causal Connection—Court of Appeal, annulling WCAB’s opinion on reconsideration and remanding matter to WCAB with directions to deny applicant’s petition for reconsideration, held that WCJ properly concluded that applicant failed to establish that work-related sun exposure contributed to…

Hikida (Maureen) v. W.C.A.B., Lexis Advance

Petitions for Writ of Review—Time to File—Final Awards—Court of Appeal, annulling decision of WCAB and remanding matter, held that applicant’s petition for writ of review was timely filed, when Court of Appeal found that WCAB opinion of February 8, 2016, was not, contrary to defendant’s assertion, “final decision” with respect to apportionment issue since it...

Medical Treatment—Permanent Disability Arising from Medical Treatment—Apportionment—Court of Appeal, annulling decision of WCAB and remanding matter, held that disability resulting from medical treatment for which defendant was responsible was not subject to apportionment…

Zhu (Yu Qin) v. W.C.A.B., Lexis Advance

Injury AOE/COE—Going and Coming Rule—Transit for Benefit of Employer or Employment—Court of Appeal, annulling WCAB decision and remanding matter, held that applicant’s transit bestowed direct benefit on employer, was at implied request of employer, and was, therefore, “part and parcel” of…

Appellate Court Cases Not Originating With Appeals Board

Fernandez (Brayan) v. Spayde, Lexis Advance

Summary Judgment—Liability of Premises Owner—Concealed Hazard—Court of Appeal, reversing trial court’s summary judgment in favor of defendants, held that evidence showed triable issues of fact about whether there was hidden dangerous condition that homeowners should have disclosed and whether contractor and contractor’s employees acted reasonably, when…

Maldonado (Carlos) v. Medivators, Inc., Lexis Advance

Injury Caused by Wrongful Act or Neglect—Statute of Limitations— Discovery Rule—Court of Appeal, reversing trial court’s summary judgment in favor of defendant, held that triable issue of fact existed regarding when plaintiff first suspected he suffered appreciable and actual harm and that it was result of wrongdoing, when Court of Appeal found that plaintiff alleged…

People v. Snow (Sara), Lexis Advance

Workers’ Compensation Fraud—Attempted Perjury—Court of Appeal, affirming trial court’s judgment of conviction of defendant, held that defendant’s false statements and material matters associated with each attempted perjury count were sufficiently distinct to support two separate counts, so that defendant’s convictions on two counts did not constitute…

Schueneman (Regina) v. Lively, Lexis Advance

Statute of Limitations—Delayed Discovery Rule—Separate and Distinct Injuries—Court of Appeal, reversing trial court’s summary judgment in favor of defendant, held that plaintiff’s complaint sufficiently alleged facts triggering potential application of latent-disease exception to Code of Civil Procedure Section 340.8 statute of limitations, as set forth by California Supreme Court in Pooshs v. Philip Morris USA, Inc. (2011) 51 Cal. 4th 788, 250 P.3d 181, 123 Cal. Rptr. 3d 578…

Federal District Court Opinion of Related Interest

Paleg v. Kmart Corp., Lexis Advance

Diversity Jurisdiction—Exclusive Remedy Rule—Intentional Infliction of Emotional Distress—U.S. District Court, Central District of California, granting plaintiff’s motion to remand case to California Superior Court, held that defendant’s argument that plaintiff cannot meet intentional infliction of emotional distress pleading standard does not justify finding that non-diverse defendant was fraudulently joined, when court found…

Digests of WCAB Decisions Denied Judicial Review

Editorial Board members Francis V. Clifford, Hon. Jacqueline C. Duncan, Susan Hamilton, and James Pettibone recommended the following writ denied cases for summarization in this issue.

Churnside (Edward) v. W.C.A.B., Lexis Advance

Medical Treatment—Independent Medical Review—Appeals—Court of Appeal denied applicant’s Petition for Writ of Review challenging WCAB’s finding that WCJ properly remanded case to Administrative Director pursuant to Labor Code § 4610.6(i) to assign parties’ medical treatment dispute to different independent medical review organization after WCJ…

Culver City Unified School District v. W.C.A.B. (Grawe, Virginia), Lexis Advance

Injury AOE/COE—Non-Occupational Diseases—Special Risk—Court of Appeal denied defendant’s Petition for Writ of Review challenging WCAB’s finding that applicant met burden of proving that she suffered injury AOE/COE in form of hypertension while employed as schoolteacher during…

Great Divide Insurance Co. v. W.C.A.B. (Newberry, Jeremy), Lexis Advance

Cumulative Injury—Single Period of Cumulative Injury—Court of Appeal upheld WCAB’s finding that applicant suffered single period of cumulative injury to multiple body parts over his entire professional football career ending on 1/11/2009 in accordance with Western Growers Ins. Co. v. W.C.A.B. (Austin) (1993) 16 Cal. App. 4th 227, 20 Cal. Rptr. 2d 26, 58 Cal. Comp. Cases 323, rather than two separate periods of cumulative trauma as found…

Injury AOE/COE—Substantial Medical Evidence—Court of Appeal upheld WCAB’s finding that applicant suffered cumulative injury to his kidneys and in form of hypertension, in addition to orthopedic and head injuries…

Highlands Insurance Co. v. W.C.A.B. (Soto, Patricia), Lexis Advance

California Insurance Guarantee Association—Stay of Proceedings—WCAB rescinded WCJ’s order staying California Insurance Guarantee Association’s Petition for Contribution from defendant Highlands Insurance Co. (Highlands), in receivership in Texas, and returned matter to WCJ for further proceedings, when WCAB found that, in staying contribution proceedings…

JLJ Trucking, Inc. v. W.C.A.B. (Lopez, Charles), Lexis Advance

Permanent Disability—Substantial Evidence—Permanent Total Disability—WCAB, in split panel decision, affirmed WCJ’s finding that applicant suffered 100 percent permanent disability, without basis for apportionment, from injuries to his neck, psyche, and in forms of headaches and sleep disorder incurred while he was employed as truck driver on 3/13/2011, when WCAB panel majority found that there was substantial evidence to support...

Other WCAB Decisions Denied Judicial Review

N & N Windbreak Services, Inc. v. W.C.A.B. (Reynoso, Jose), Lexis Advance

Discovery—Closure—Due Process—Court of Appeal denied defendant’s Petition for Writ of Review challenging WCAB’s decision that upheld WCJ’s order closing discovery and setting matter for trial, when defendant failed to identify evidence in record to establish that documents it demanded from applicant were in existence and were...

Von Ritzhoff (Kristian) v. W.C.A.B., Lexis Advance

Petition for Writ for Review—Premature—Court of Appeal dismissed applicant’s Petition for Writ of Review as premature pursuant to Labor Code §§ 5900 and 5901 because no final order was issued by WCAB on findings challenged by applicant regarding deposition of applicant’s former wife and medical expert.

Appeals Board Panel Decisions

CAUTION: These WCAB panel decisions have not been designated a “significant panel decision” by the Workers’ Compensation Appeals Board. Practitioners should proceed with caution when citing to these board panel decisions and should also verify the subsequent history of the decisions. WCAB panel decisions are citeable authority, particularly on issues of contemporaneous administrative construction of statutory language. However, WCAB panel decisions are not binding precedent, as are en banc decisions, on all other Appeals Board panels and workers’ compensation judges. While WCAB panel decisions are not binding, the WCAB will consider these decisions to the extent that it finds their reasoning persuasive.

Garcia (Maria) v. Child Development, Inc., Lexis Advance

Medical—Legal Procedure—Medical Examiner Reporting Timeframes—Replacement Panels—WCAB, denying removal, affirmed WCJ’s finding that defendant was not entitled to new qualified medical evaluator panel based on original panel qualified medical evaluator’s failure to issue timely supplemental report pursuant to 8 Cal. Code Reg. § 38(i), when WCAB concluded…

Ponce (Don) v. Barrett Business Services, Inc., Lexis Advance

Injury AOE/COE—Compensable Consequence Injuries—WCAB affirmed WCJ’s finding that applicant truck driver suffered cumulative industrial injury to his left wrist during period ending on 3/4/2015 and, while issue of whether wrist injury was compensable consequence…

Skaff (John) v. City of Stockton, Lexis Advance

Injury AOE/COE—Burden of Proof—Adverse Inferences—WCAB rescinded WCJ’s finding that applicant police officer did not suffer injury AOE/COE in form of prostate cancer based on opinion of panel qualified medical evaluator Juan Cesar Larach, M.D., that applicant’s exposure to methamphetamine during his employment did not contribute…

Sywassink (Beatrice) v. Pacific Gas and Electric Co., Lexis Advance

Third-Party Actions—Employer’s Claim for Credit—Vaccine Injury Compensation Program—WCAB affirmed WCJ’s finding that defendant was not entitled to credit pursuant to Labor Code §§ 3852–3862 against its workers’ compensation liability for applicant’s recovery from National Vaccine Injury Compensation Program (NVICP) (42 U.S.C.S. § 300aa-10 et seq.) for injury…

Independent Medical Review Decisions

CAUTION: The Publisher’s Staff has reviewed both overturned and upheld independent medical review (IMR) decisions beginning in 2017. Criteria for selection include discussion of relevant medical topics, including but not limited to prescription medicine, home health care, orthopedic issues, physical therapy, opioid prescriptions, etc. The Publisher’s selection is not meant to be reflective of the proportion of all IMR decisions that overturn utilization review (UR) denials.

CM17-0043712, Lexis Advance

Physical Therapy—Post Shoulder Surgery—IMR expert reviewer overturned UR denial of treating physician’s request for 12 physical therapy sessions to applicant’s left shoulder, twice per week for 6 weeks, based on 2009 MTUS guidelines addressing post-surgical treatment…

CM17-0045766, Lexis Advance

Acupuncture Treatments—Cervical/Thoracic Spine Injury—IMR expert reviewer overturned UR denial of 6 acupuncture sessions, twice per week, for neck/back pain associated with applicant’s cervical disc disorder and cervical-thoracic spondylosis…

CM17-0063196, Lexis Advance

Total Knee Replacement—Custom Fit Total Knee (CFTK) Replacement—IMR expert reviewer upheld denial of total knee replacement using Custom Fit Total Knee (CFTK) Replacement, basing their decision on recommendations outside of the MTUS Guidelines, specifically…

CALIFORNIA COMPENSATION CASES

Vol. 82 No. 8 August 2017

A Report of En Banc and Significant Panel Decisions of the WCAB and Selected Court Opinions of Related Interest, With a Digest of WCAB Decisions Denied Judicial Review

CONTENTS OF THIS ISSUE

© Copyright 2017 LexisNexis. All rights reserved.

LexisNexis Online Subscribers: You can link to your account on Lexis Advance to read the complete headnotes and court decisions, en banc decisions, and writ denied summaries.

Appellate Court Compensation Case

Baker v. W.C.A.B. (Guerrero, Jim), Lexis Advance

Subsequent Injuries Benefits Trust Fund—Commencement of Benefits—Court of Appeal, affirming WCAB decision, held that Subsequent Injuries Benefits Trust Fund benefits commence at time employer’s obligation to pay permanent disability benefits begins, when…

Appellate Court Cases Not Originating With Appeals Board

Alvarez v. Seaside Transportation Services LLC, Lexis Advance

Summary Judgment—Privette Doctrine—Retained Control—Burden of Proof—Court of Appeal, affirming trial court’s grant of summary judgment in favor of defendants, held that defendants met their burden as moving parties on summary judgment and that plaintiff did not raise triable issues of material fact as to...

CSAC Excess Insurance Authority v. California Insurance Guarantee Association, Lexis Advance

California Insurance Guarantee Association—Covered Claims—Excess Insurance—Court of Appeal, affirming judgment of trial court, held that obligation for excess insurance is incurred on date of injury, not on date of exhaustion of retention, and that…

Espejo v. The Copley Press, Inc., Lexis Advance

Employment Relationships—Misclassification of Workers—Court of Appeal, affirming in part, reversing in part and remanding with directions to redetermine class award, attorney fees, and prejudgment interest, held that…

Digests of WCAB Decisions Denied Judicial Review

CompWest Insurance Co. v. W.C.A.B. (Gonzalez, Theodoro), Lexis Advance

Permanent Disability—Rating—Rebuttal of Scheduled Rating—Court of Appeal denied defendant’s Petition for Writ of Review challenging WCAB’s finding that applicant die setter/punch press operator suffered 100 percent permanent disability as result of 11/4/2008 industrial injury to his right upper...

Liberty Mutual Insurance Co. v. W.C.A.B. (Schnore, James, Dec’d), Lexis Advance

Employment Relationships—Employees vs. Independent Contractors—Court of Appeal denied defendant’s Petition for Writ of Review challenging WCAB’s findings that applicant truck driver was defendant’s employee, rather than independent contractor, at time he …

Marroquin (Joel) v. W.C.A.B., Lexis Advance

Post-Termination Claims—Court of Appeal denied applicant’s Petition for Writ of Review challenging WCAB’s finding that applicant’s claim for 11/18/2015 industrial back injury was barred by post-termination defense in Labor Code § 3600(a)(10) because he did not file claim for compensation until after…

Other WCAB Decisions Denied Judicial Review

Fabian (Sharon) v. W.C.A.B., Lexis Advance

Petitions for Writ of Review—Dismissal—Premature—Court of Appeal dismissed applicant’s Petition for Writ of Review as premature pursuant to Labor Code §§ 5900 and 5950, when applicant challenged...

Hartzheim Dodge, Inc. v. W.C.A.B. (Navarro, Juan), Lexis Advance

Petitions for Writ of Review—Dismissal—Premature—Court of Appeal dismissed defendant’s Petition for Writ of Review as premature, when Court of Appeal concluded that decision challenged by defendant, in which WCAB found that issue of...

Machado (Cindy) v. W.C.A.B., Lexis Advance

Psychiatric Injury—Substantial Evidence—Court of Appeal denied applicant’s Petition for Writ of Review challenging WCAB’s finding that applicant did not suffer psychiatric injury AOE/COE as compensable consequence of industrial injuries to her head, neck, and jaw, when WCAB determined...

Macy’s Inc. v. W.C.A.B. (Alaei-Nia, Fereshteh), Lexis Advance

Psychiatric Injury—Actual Events of Employment as Predominant Cause—Stipulations—Court of Appeal denied defendant’s Petition for Writ of Review challenging WCAB’s finding that applicant suffered compensable psychiatric injury on 6/29/2013 as result of stressful interrogation/ interview at work, which WCAB determined…

Pomona Unified School District v. W.C.A.B. (Kosinski, Kristina), Lexis Advance

Medical Treatment—Mileage Reimbursement—Court of Appeal denied defendant’s Petition for Writ of Review challenging WCAB’s finding that defendant was liable for medical mileage reimbursement for expenses incurred by applicant after her 2/19/2008 permanent and stationary date, when WCAB found that...

Tokio Marine and Nichido Fire Insurance Co. v. W.C.A.B. (Valenzuela, Sergio), Lexis Advance

California Insurance Guarantee Association—Reimbursement—Other Insurance—Court of Appeal denied Petition for Writ of Review filed by Tokio Marine and Nichido Fire Insurance Co. (Tokio Marine) challenging WCAB’s finding that California Insurance Guarantee Association was entitled to reimbursement from …

Appeals Board Panel Decisions

CAUTION: These WCAB panel decisions have not been designated a “significant panel decision” by the Workers’ Compensation Appeals Board. Practitioners should proceed with caution when citing to these board panel decisions and should also verify the subsequent history of the decisions. WCAB panel decisions are citeable authority, particularly on issues of contemporaneous administrative construction of statutory language. However, WCAB panel decisions are not binding precedent, as are en banc decisions, on all other Appeals Board panels and workers’ compensation judges. While WCAB panel decisions are not binding, the WCAB will consider these decisions to the extent that it finds their reasoning persuasive.

Hernandez Orozco (Antonio) v. Ronald McDonald Farms, Lexis Advance

Third-Party Actions—Employer’s Claim for Credit—Waiver of Credit Rights—WCAB held that defendant Zenith Insurance Company (Zenith) did not expressly waive or settle its right to seek credit pursuant to Labor Code § 3861 for future benefits due to...

Langdon (Darren) v. New Jersey Devils, Lexis Advance

WCAB Jurisdiction—Professional Athletes—Subject Matter Jurisdiction—WCAB, affirming WCJ, held that it had jurisdiction pursuant to Labor Code §§ 3600.5(a) and 5305 over applicant’s claim that he suffered cumulative injury while employed as …

Morales (Maria) v. Montebello Unified School District, Lexis Advance

Liens—Medical—Reasonableness of Charges—Burden of Proof—WCAB affirmed WCJ‘s finding that lien claimant Monrovia Memorial Hospital (Monrovia) was entitled to $45,825.62, and nothing more, as reasonable cost for services...

Torres (Jesus) v. Greenbrae Management, Lexis Advance

Psychiatric Injury—Violent Acts—Increased Permanent Disability—WCAB rescinded WCJ’s award of 57 percent permanent disability and instead awarded applicant 78 percent permanent disability for injuries incurred on 1/8/2014 when …

Permanent Disability—Rating—Sleep and Sexual Dysfunction—WCAB held that applicant who was awarded permanent disability for 1/8/2014 industrial injuries to his head, neck, back, ears, and psyche, was precluded by Labor Code § 4660.1(c)(1) from receiving increased permanent disability for sleep disorder and sexual dysfunction, when …

Independent Medical Review Decisions

CAUTION: The Publisher’s Staff has reviewed both overturned and upheld independent medical review (IMR) decisions beginning in 2017. Criteria for selection include discussion of relevant medical topics, including but not limited to prescription medicine, home health care, orthopedic issues, physical therapy, opioid prescriptions, etc. The Publisher’s selection is not meant to be reflective of the proportion of all IMR decisions that overturn utilization review (UR) denials.

CM17-0047373, Lexis Advance

Radiofrequency Ablation—Low Back Pain—IMR expert reviewer overturned UR denial of repeat lumbar radiofrequency ablation bilaterally at L4-5 and L5-S1, based on the 2004 MTUS guidelines regarding...

CM17-0047578, Lexis Advance

Laminectomy—Hospital Stay—Low Back Injury—IMR expert reviewer overturned UR determination denying physician’s request for authorization for left L3-4 interlaminar laminectomy surgery with 1 day inpatient hospital stay, based on...

CM17-0059089, Lexis Advance

Opioid Medications—Bilateral Knee Injury—IMR expert reviewer overturned UR determination modifying treating physician’s request for opioid medication, based on Section 3 of the 2016 MTUS opioid treatment guidelines, addressing opioid treatment for chronic pain....

CM17-0061627, Lexis Advance

Total Knee Replacement—Bilateral Degenerative Knee Joint Disease—IMR expert reviewer upheld UR determination denying physician’s request for bilateral total knee replacement, based on non-MTUS Citation Official Disability Guidelines (ODG) knee & leg/knee joint replacement.…

CALIFORNIA COMPENSATION CASES

Vol. 82, No. 9 September 2017

A Report of En Banc and Significant Panel Decisions of the WCAB and Selected Court Opinions of Related Interest, With a Digest of WCAB Decisions Denied Judicial Review

CONTENTS OF THIS ISSUE

© Copyright 2017 LexisNexis. All rights reserved.

LexisNexis Online Subscribers: You can link to your account on Lexis Advance to read the complete headnotes and court decisions, en banc decisions, and writ denied summaries.

Appellate Court Compensation Case

Singh (Ravinderjit) v. W.C.A.B., Lexis Advance

Temporary Disability Benefits—Modified Work—Court of Appeal vacated the WCAB’s decision and remanded for further proceedings, when Court of Appeals found that WCAB admitted error in failing to consider whether the employer provided modified work in assessing injured worker’s entitlement...

Appellate Court Case Not Originating With Appeals Board

Light (Melony) v. California Department of Parks and Recreation, Lexis Advance

Exclusive Remedy Rule—Fair Employment and Housing Act—Retaliation—Disability Discrimination—Intentional Infliction of Emotional Distress—Assault—Court of Appeal, affirming in part and reversing in part trial court’s judgment, held that, as to defendant California Department of Parks and Recreation, triable issues of material fact precluded...

Federal District Court Opinion of Related Interest

Camacho v. JLG Industries, Inc., Lexis Advance

Federal Court Jurisdiction—Removal—In third-party suit originally filed in Superior Court of California, County of Orange, by injured worker and spouse against manufacturer of scissor lift equipment, seeking recovery in tort for injuries sustained by worker on or about 12/8/2015...

Digests of WCAB Decisions Denied Judicial Review

Editorial Board members Melissa C. Brown, Hon. Joel K. Harter, Richard M. Jacobsmeyer, and Hon. Ralph Zamudio recommended the following writ denied cases for summarization in this issue.

Federal Express Corp. v. W.C.A.B. (Payne, Janice), Lexis Advance

Medical Treatment—Utilization Review and Independent Medical Review—Binding Agreement to Utilize Agreed Medical Evaluator—Court of Appeal denied defendant’s Petition for Writ of Review challenging WCAB’s findings that WCAB had jurisdiction to award medical treatment to applicant in form of extension of weight loss program pursuant to 2003 compromise and release agreement in which parties stipulated…

Illinois Midwest Insurance Agency, LLC v. W.C.A.B. (Casarotti, Danielle), Lexis Advance

Injury AOE/COE—Intoxication—Seizures—Court of Appeal denied defendant’s Petition for Writ of Review challenging WCAB’s findings that applicant, while working as bartender on 1/28/2012, suffered compensable injury to her brain, neck, back, head, psyche, sleep, and eyes after falling off bar stool…

Southwest Airlines v. W.C.A.B. (Hargreaves, Francis), Lexis Advance

Permanent Disability—Rating—Chronic Regional Pain Syndrome—Court of Appeal denied defendant’s Petition for Writ of Review challenging WCAB’s determination that opinions of agreed medical examiners David B. Pechman, M.D., and Timothy Reynolds, M.D., constituted substantial evidence to support finding that applicant who sustained multiple orthopedic and internal injuries…

Willoughby (Pamela) v. W.C.A.B.,Lexis Advance

Medical Treatment—Utilization Review—Medical Provider Networks—Court of Appeal denied applicant’s Petition for Writ of Review challenging WCAB’s finding that request for authorization to provide medical treatment in form of prescription medications and pain program by applicant’s…

Other WCAB Decisions Denied Judicial Review

Chubb & Son v. W.C.A.B. (Gunchick, Jeffrey), Lexis Advance

Petition for Writ of Review—Dismissal of Premature Petition—Court of Appeal dismissed defendant’s Petition for Writ of Review as premature pursuant to Labor Code §§ 5900 and 5901 because no final order...

County of Ventura v. W.C.A.B. (Reynoso, Esmeralda), Lexis Advance

Psychiatric Injury—Substantial Medical Evidence—Court of Appeal denied defendant’s Petition for Writ of Review challenging WCAB’s determination that reporting of panel qualified medical evaluator Karen S. Snyder, Ph.D., constituted substantial evidence to support finding that applicant suffered injury AOE/COE…

Martin (Edith) v. W.C.A.B.,Lexis Advance

Petition for Writ of Review—Dismissal of Untimely Petition—Court of Appeal dismissed applicant’s Petition for Writ of Review as untimely, when Petition, which challenged WCAB’s denial of applicant’s Petition to Reopen, was filed one day...

Appeals Board Panel Decisions

CAUTION: These WCAB panel decisions have not been designated a “significant panel decision” by the Workers’ Compensation Appeals Board. Practitioners should proceed with caution when citing to these board panel decisions and should also verify the subsequent history of the decisions. WCAB panel decisions are citeable authority, particularly on issues of contemporaneous administrative construction of statutory language. However, WCAB panel decisions are not binding precedent, as are en banc decisions, on all other Appeals Board panels and workers’ compensation judges. While WCAB panel decisions are not binding, the WCAB will consider these decisions to the extent that it finds their reasoning persuasive.

Bass (Roger) v. State of California, Department of Corrections and Rehabilitation, Lexis Advance

Cumulative Injury—Single Cumulative Trauma Period—Injurious Exposure—WCAB affirmed WCJ’s finding that applicant suffered single cumulative trauma to his heart, neck, low back, right knee, and left foot while working as correctional officer during period ending 7/15/2014, and rejected defendant’s assertion that…

Permanent Disability—Rating—Combined Values Chart—WCAB rescinded WCJ’s finding that applicant suffered 66 percent permanent disability as result of heart and orthopedic injuries he incurred while working...

Blanco Ayala (Elmer) v. Fruit Harvest, Inc.,Lexis Advance

Injury AOE/COE—Lunch Breaks—WCAB, affirming WCJ, held that applicant field worker suffered injury AOE/COE to his right arm and upper extremity on 6/1/2015 when his arm was run over by truck while he was taking lunch break in orchard adjacent to employer’s premises…

Enciso (Sergio) v. Toys “R” Us, Lexis Advance

Liens—Medical—Automatic Stay—WCAB, granting removal, held that WCJ erroneously found that medical treatment lien of lien claimant Firstline Health was stayed pursuant to Labor Code § 4615, which applies to any lien filings made “by or on behalf of” indicted physician...

Vargas (Antonio) v. Becker, Lexis Advance

Hearings—Electronic Testimony—WCAB held that WCJ did not err in allowing applicant painter/helper, who was living in Mexico, to testify at trial remotely via cellphone using FaceTime application regarding claim for 9/13/2012 industrial injury, when WCAB found no merit to defendant’s assertion that applicant’s cellphone…

Evidence—Admissibility—WCAB held that WCJ did not err by allowing mother of applicant’s children, Aida Higuera, to testify at trial regarding applicant’s 9/13/2012 alleged industrial injury, notwithstanding applicant’s failure to disclose Ms. Higuera as witness...

Injury AOE/COE—Substantial Evidence—WCAB affirmed WCJ’s finding that applicant painter/helper suffered injury AOE/COE to his wrists on 9/13/2012 but deferred issue of injury to other alleged body parts pending further development of record…

Independent Medical Review Decisions

CAUTION: The Publisher’s Staff has reviewed both overturned and upheld independent medical review (IMR) decisions beginning in 2017. Criteria for selection include discussion of relevant medical topics, including but not limited to prescription medicine, home health care, orthopedic issues, physical therapy, opioid prescriptions, etc. The Publisher’s selection is not meant to be reflective of the proportion of all IMR decisions that overturn utilization review (UR) denials.

CM17-0058715, Lexis Advance

Epidural Steroid Injections—Sciatica—IMR expert reviewer overturned UR denial of request for bilateral S1 epidural steroid injections to treat applicant’s sciatica pain, based on Non-MTUS Citation Official Disability Guidelines...

CM17-0059399, Lexis Advance

Steroid Injections—Right Knee Osteoarthritis—IMR expert reviewer overturned UR denial of request for right knee steroid injection to alleviate applicant’s osteoarthritis pain following industrial injury resulting in multiple amputations. Expert reviewer’s determination…

CM17-0059510, Lexis Advance

Bilateral Facet Block and Neurotomy—Lumbar Spine—IMR expert reviewer overturned UR denial of provider’s request to administer bilateral lumbar facet block for applicant’s chronic facet pain due to osteoarthritis of the lumbar spine with radiculopathy. Applicant complained…

CM17-0059626, Lexis Advance

Epidural Steroid Injections—Low Back Pain and Radiculopathy—IMR expert reviewer overturned UR denial of treating physician’s request for 1 epidural steroid injection at the left L5-S1 level, based on MTUS Low Back Complaints 2004…

CM17-0060109, Lexis Advance

Epidural Steroid Injections—Cervical Disc Disorder and Radiculopathy—IMR expert reviewer overturned UR denial of 1 epidural steroid injection to treat applicant’s cervical pain with radiculopathy affecting both upper extremities…

CALIFORNIA COMPENSATION CASES

Vol. 82 No. 10 Oct 2017

A Report of En Banc and Significant Panel Decisions of the WCAB and Selected Court Opinions of Related Interest, With a Digest of WCAB Decisions Denied Judicial Review

CONTENTS OF THIS ISSUE

© Copyright 2017 LexisNexis. All rights reserved. 

LexisNexis Online Subscribers: You can link to your account on Lexis Advance to read the complete headnotes and court decisions, en banc decisions, writ denied summaries, panel decisions, and IMR decisions.

Appellate Court Compensation Cases

Bolanos v. W.C.A.B. (Zapata Jimenez, Ramiro), Lexis Advance

Statute of Limitations—Tolling—Court of Appeal annulled WCAB decision and held statute of limitations to file workers’ compensation claim against petitioner Bolanos ran one year after 5/19/2003, statute was not tolled, and claim was barred by one-year statute of limitations of Labor Code § 5401, when Court of Appeal found applicant Zapata Jimenez claimed industrial injury to his head, brain, right knee, internal system, and in form of urinary incontinence from motor vehicle accident which occurred on 5/19/2003 while applicant was working as mason for uninsured employer Aragon at property owned by Bolanos, applicant filed claim for workers’ compensation benefits on 8/1/2003 against Aragon, did not file claim against Bolanos within one year after 5/19/2003, WCAB...

Pearson Ford v. W.C.A.B. (Hernandez, Leopoldo), Lexis Advance

Insurance Fraud—Benefits Awarded Despite Fraud—Court of Appeal, denying defendant’s petition to vacate WCAB’s award, held that there was no error in WCAB’s determination that applicant’s claim was not barred by his misdemeanor conviction for workers’ compensation fraud and in WCAB’s adoption of expert’s finding of permanent disability, when Court of Appeal found that…

Appellate Court Cases Not Originating With Appeals Board

American Cargo Express, Inc. v. The Superior Court of Sacramento County, Lexis Advance

California Self-Insurers’ Security Fund—Actions Against Clients of Insolvent Self-Insurer—Court of Appeal, affirming trial court’s grant of motion for judgment on pleadings in favor of Self-Insurers’ Security Fund, denied insolvent self-insurer’s clients’ petition for writ of mandate and/or prohibition, when Court of Appeal found that…

Cheathem v. Los Angeles Unified School District, Lexis Advance

Back Pay Awards—Mitigation of Damages—Interest—Court of Appeal, affirming trial court’s judgment, held that trial court correctly awarded plaintiff, inter alia, $690,130 in back pay, interest in amount of $257,217, representing pre-judgment interest at rate of seven percent simple interest from date each pay check was missed until date back pay was paid, and post-judgment interest at rate of seven percent per year, when Court of Appeal found that...

Ly (Va) v. County of Fresno, Lexis Advance

Claims for Discrimination, Harassment, and Retaliation—Workers’ Compensation Proceedings—Fair Employment and Housing Act Proceedings—Res Judicata

Court of Appeal, affirming trial court summary judgment in defendant’s favor, held that res judicata barred plaintiffs’ claims in present action, when Court of Appeal found that plaintiffs, three Laotian correctional officers, alleged that they were subjected to racial and national origin discrimination, harassment, and retaliation by their employer and its employees, that plaintiffs filed suit against employer pursuant to Fair Employment and Housing Act, Government Code § 12900 et seq., while simultaneously pursuing their workers’ compensation remedies, that WCJs in workers’ compensation proceedings…

Morales-Simental v. Genentech, Inc., Lexis Advance

Going and Coming Rule—Special Errand Exception—Court of Appeal, affirming trial court’s grant of summary judgment in defendant’s favor, held that plaintiffs failed to establish triable issues of material fact supporting special errand exception sufficient to overcome summary judgment, when Court of Appeal found that…

Federal District Court Opinions of Related Interest

Barajas (Adelberto) v. Consolidated Disposal Service, L.L.C., Lexis Advance

Summary Judgment—Fair Employment and Housing Act—U.S. District Court, Central District of California, granting defendant’s motion for summary judgment, held that there was no genuine dispute as to any material fact regarding plaintiff’s claims for relief, when court found that in 2010 plaintiff, employed by defendant as truck driver, accidentally killed pedestrian, which resulted in psychological trauma that disabled plaintiff from ever again driving defendant’s truck, that defendant attempted to accommodate plaintiff in alternative positions with defendant, that, after four years, defendant believed it could no longer continue…

Schulte (Mary) v. Aramark Services, Inc., Lexis Advance

Federal Court Jurisdiction—Settlements—Dismissal of Case—Intervention—U.S. District Court, Northern District of California, denying defendant’s motion for relief to set aside order of dismissal pursuant to Federal Rule of Civil Procedure 60 and motion to intervene pursuant to Federal Rule of Civil Procedure 24, held that plaintiff/applicant had settled her claims against third party tortfeasor and court had then entered order dismissing plaintiff’s action with prejudice, thereby divesting court of jurisdiction over case, when court found that…

Digests of WCAB Decisions Denied Judicial Review

Editorial Board members David Hettick, Robert G. Heywood, Kenneth B. Peterson, and Robert G. Rassp recommended the following writ denied cases for summarization in this issue.

ACE American Insurance Co. v. W.C.A.B. (Quinonez, Juan), Lexis Advance

Liens—Procedural Rights and Duties—Statute of Limitations—WCAB rescinded WCJ’s finding that lien of lien claimant was barred by statute of limitations in Labor Code § 4903.5(a), when WCJ erroneously found that last date lien claimant provided services to applicant was 7/2/2012, but WCAB found…

ACE USA Insurance Co. v. W.C.A.B. (Sena, Ernest), Lexis Advance

Permanent Disability—Apportionment—Anti-Merger Doctrine—Court of Appeal denied defendant’s Petition for Writ of Review challenging WCAB’s finding that applicant, while employed as machinist by defendant during period 3/1/95 through 3/31/2000, suffered single cumulative trauma to his cervical spine, lumbosacral spine, shoulders, elbows, wrists, knees, psyche, and internal system, causing 100 percent permanent disability based on opinion of orthopedic agreed medical examiner Alexander Angerman, M.D., which was supported by reports of vocational experts indicating that applicant had no transferable skills, and WCAB rejected defendant’s assertion that WCJ…

EDW Apffels Co., Inc. v. W.C.A.B. (Goodwin, Lance), Lexis Advance

Evidence—WCAB's Duty to Develop Medical Record—Due Process—Court of Appeal denied defendant’s Petition for Writ of Review challenging WCAB’s finding that WCJ properly ordered further development of medical record pursuant to McDuffie v. Los Angeles County Metropolitan Transit Authority (2002) 67 Cal. Comp. Cases 138 (Appeal Board en banc opinion), and Tyler v. W.C.A.B. (1997) 56 Cal. App. 4th 389, 65 Cal. Rptr. 2d 431, 62 Cal. Comp. Cases 924, by requesting agreed medical examiner Andrew Rah, M.D., to submit supplemental report addressing issue of apportionment, when WCJ found, after trial, that existing medical reports prepared by Dr. Rah did not adequately address apportionment, and WCAB concluded…

Permanent Total Disability—Rating—Apportionment—Court of Appeal denied defendant’s Petition for Writ of Review challenging WCAB’s finding that applicant suffered 100 percent permanent disability without apportionment pursuant to Labor Code § 4662(b) as result of industrial back injury incurred while employed as route driver/salesman on 8/17/2016, and that supplemental medical report of orthopedic agreed medical examiner Andrew Rah M.D., obtained by WCJ…

Foxworthy (Margaret) v. W.C.A.B., Lexis Advance

Permanent Disability—Rating—Combining Disabilities Using Combined Values Chart—Court of Appeal denied applicant’s Petition for Writ of Review challenging WCAB panel majority’s findings that Combined Values Chart in 2005 Permanent Disability Rating Schedule, rather than addition method, was correct method of combining applicant park ranger’s disabilities caused by 6/11/2010 industrial injuries to her low back, psyche, internal system, and in form of sexual dysfunction, and that applicant’s permanent disability rated at 67 percent based on Combined Values Chart, as opposed to 92 percent permanent disability obtained by adding disabilities as suggested by WCJ due to his finding that there was no overlap between applicant’s disabilities, when WCAB recognized that…

Mid-State Steel Erectors, Inc. v. W.C.A.B. (Esquivel, Rene), Lexis Advance

Serious and Willful Misconduct by Employer—Violation of Safety Order—Court of Appeal denied defendant’s Petition for Writ of Review challenging WCAB’s finding that defendant’s failure to utilize “tag line” (nylon rope attached to beam that allows workers to control beam) on steel beam that struck and injured applicant ironworker’s leg on 7/9/2014 while beam was being lowered by tower crane, constituted serious and willful misconduct, when WCAB found that...

San Mateo County Transit District v. W.C.A.B. (Owens, Sterling), Lexis Advance

Credit—Overpayment of Permanent Disability—Court of Appeal denied defendant’s Petition for Writ of Review challenging WCAB’s award of only limited credit of $586.50 for overpayment of permanent disability indemnity in applicant’s 3/23/2009 case involving right shoulder injury, in which no permanent disability was awarded, against defendant’s liability for permanent disability awarded in applicant’s 2011 case involving neck and right shoulder injuries, when WCAB rejected…

Travelers Indemnity Co., The v. W.C.A.B. (Clemons, Crance), Lexis Advance

WCAB Jurisdiction—Professional Athletes—Contracts for Hire—WCAB, reversing WCJ in split panel decision, held that WCAB had jurisdiction pursuant to Labor Code §§ 3600.5(a) and 5305 over applicant’s claim for industrial injury sustained while employed as professional football player by defendant Indianapolis Colts (Colts) during period 1/5/2004 through 10/12/2004, when WCAB panel majority concluded that…

Appeals Board Panel Decisions

Carrera Lugo (Ruth) v. County of Los Angeles, Lexis Advance

Evidence—Medical Reports—Suspended Physicians—WCAB, affirming WCJ's finding that applicant nursing aid suffered 44 percent permanent disability as result of 8/25/2009 industrial injury to her right elbow and wrist, held that WCJ did not err in relying on report of Philip Sobol, M.D., to determine extent of applicant's orthopedic impairment, notwithstanding that Dr. Sobol was ultimately suspended from workers' compensation system based on fraud conviction pursuant to Labor Code § 139.21, when WCAB reasoned that Labor Code § 139.21 does not make reports prepared prior to suspension inadmissible and declined to read Labor Code § 139.21 as blanket prohibition on use of reports from suspended doctors, and WCAB found that...

Escovedo (Johnny) v. California Community News, Lexis Advance

Medical Treatment—Independent Medical Review—Appeals—WCAB, granting removal, held that WCJ erred by concluding that he had no jurisdiction to rule on 8/25/2016 independent medical review (IMR) determination which upheld defendant's utilization review (UR) denial of home health care services prescribed by applicant's treating physician to treat 10/12/2005 industrial injury, when WCJ believed he lacked jurisdiction to decide appeal of IMR reviewing timely UR decision pursuant to Dubon v. World Restoration, Inc. (2014) 79 Cal. Comp. Cases 1298 (Appeals Board en banc opinion) (Dubon II), but WCAB, citing Stevens v. W.C.A.B. (2015) 241 Cal. App. 4th 1074, 194 Cal. Rptr. 3d 469, 80 Cal. Comp. Cases 1262, noted that WCAB…

Guerrero (Daniel) v. Ramcast Steel Fabrication, Lexis Advance

Psychiatric Injury—Violent Acts and Catastrophic Injury—Increased Permanent Disability—WCAB, amending WCJ's decision, held that applicant machine repairer suffered industrial injury to his psyche in addition to admitted injuries to his left hand, left upper extremity, left fingers, and left forearm on 1/24/2013 when his fingers were amputated by hydraulic punch press, and that applicant was entitled to additional permanent disability award for his psychiatric injury pursuant to “violent act” and “catastrophic injury” exceptions to provision in Labor Code § 4660.1(c)(1) precluding increased permanent disability for psychiatric injuries arising out of compensable physical injuries, when WCAB found that…

Megalla (Hanan) v. County of San Bernardino, Lexis Advance

Medical Treatment—Utilization Review—Time Deadlines—WCAB, affirming WCJ, held that WCAB had authority to determine medical necessity of treatment consisting of physical therapy and acupuncture requested by secondary treating physician to treat applicant's upper extremity injury resulting from gunshot wound received during 12/2/2015 terrorist attack at San Bernardino County Department of Public Health, when defendant's service of utilization review (UR) determination onapplicant's attorney was incomplete as signature page of determination, which included identification of UR physician's specialty and UR physician's signature, was omitted from fax transmission, and WCAB concluded that…

Medical Treatment—Physical Therapy—Postsurgical Visits—WCAB affirmed WCJ's finding that applicant who was injured from gunshot wound received during 12/2/2015 terrorist attack at San Bernardino County Department of Public Health and received 24 physical therapy visits within six month period following left humerus open reduction surgery, met burden of proving that she was entitled to 12 additional physical therapy visits for wrist and hand after conclusion of six-month postsurgical period, notwithstanding 24-visit cap on physical therapy visits under Labor Code § 4604.5(c)(1) and MTUS guidelines in 8 Cal. Code Reg. § 9792.24.3 limiting 24-visit cap exception to six-month postsurgical period, when WCAB found that…

Independent Medical Review Decisions

CM17-0015943, Lexis Advance

Nonsteroidal Aniti-Inflammatory Drugs—Shoulder Injury—IMR expert reviewer overturned UR denial of primary treating physician’s request for authorization to treat applicant’s shoulder condition with NSAID Voltaren XR 100 mg, #30, with 2 refills. Applicant was diagnosed as having osteoarthritis of left AC joint, impingement syndrome and left rotator cuff tendonitis. Her treatment included Tylenol and left shoulder surgery, but she continued to complain of shoulder pain, weakness and limited motion. The IMR expert reviewer pointed out that defendant’s claims administrator did not cite any evidence for its denial of the NSAID, and the reviewer found that…

CM17-0017640, Lexis Advance

Opioid Medication—Thoracic/Lumbar Spine Injury—IMR reviewer overturned UR decision authorizing only 90 of the 120 Oxycontin 30 mg pills requested by applicant’s treating physician. In finding that the additional 30 pills were supported by the 2016 MTUS opioid treatment guidelines and were medically necessary, the IMR reviewer noted that applicant…

CM17-0019979, Lexis Advance

Opioid Medication—Thoracic/Lumbar Spine Injury—IMR expert reviewer overturned UR determination limiting treating physician’s request for 90 days of Norco 10/325mg by authorizing Norco prescription for weaning purposes only. In this case applicant was deemed permanent and stationary following treatment for thoracolumbar neuritis/radiculitis and lumbosacral disease, but continued to experience periods of significant pain, ranging from 2 to 9 on a scale of 10, and functional limitations. Prior treatment included…

CM17-0020048, Lexis Advance

Opioid Medication—Lumbar/Cervial Spine Injury—IMR expert reviewer overturned UR denial of treating physician’s request for Norco 10/325 mg for 120 days to treat applicant’s lumbar spine, cervical spine and shoulder pain. Applicant’s previous treatments included surgery, medications and injections. His pain rated at 9 out of 10. Applicant’s treating physician reported…

CM17-0020236, Lexis Advance

Muscle Relaxant—Back Injury—IMR expert reviewer overturned UR denial of muscle relaxant Flexeril (cyclobenzaprine) 10 mg for 30 days as recommended by treating physician to treat applicant’s back pain following industrial injury. The treating physician reported that applicant suffered from low back pain rated at 5 out of 10 with medication and 7 out of 10 without, radiating neck pain and insomnia. Objective findings included…

Sleep Medication—Pain-Related Insomnia—IMR expert reviewer upheld UR determination authorizing Ambien 5mg for 20 days rather than the requested 30 days to treat applicant’s pain-related insomnia, based on 2016 MTUS guidelines for insomnia related to chronic pain which approve medication on short-term basis for 2-6 weeks. In this case, the medical records did not discuss cognitive behavior therapy and other non-pharmacologic treatment options such as education regarding sleep hygiene, which are typical first lines of treatment as outlined in MTUS guidelines. Moreover, the medical records…

CM17-0022009, Lexis Advance

Opioid Medications—Back Injury—IMR expert reviewer overturned UR denial of treating physician’s request for Norco 10/325 mg #90 and MS Contin 30 mg #60, based on the 2016 MTUS guidelines for opioid treatment of chronic pain. In this case, applicant reported pain in his low back and right buttocks with burning in his right thigh that was reduced from 10 out of 10, to 9 out of 10 with use of medication. He had been taking Norco and MS Contin for approximately 6 or 7 months at time of UR denial. The IMR reviewer noted that…

CALIFORNIA COMPENSATION CASES

Vol. 82 No. 12 Dec 2017

A Report of En Banc and Significant Panel Decisions of the WCAB and Selected Court Opinions of Related Interest, With a Digest of WCAB Decisions Denied Judicial Review

CONTENTS OF THIS ISSUE

© Copyright 2018  LexisNexis. All rights reserved. 

LexisNexis Online Subscribers: You can link to your account on Lexis Advance to read the complete headnotes and court decisions, en banc decisions, writ denied summaries, panel decisions and IMR decisions.

Appellate Court Case Not Originating With Appeals Board

Maynes v. Western Christian School, Lexis Advance

Fair Employment and Housing Act—Pleading—Demurrers—Court of Appeal, reversing in part and affirming in part trial court’s dismissal of plaintiff’s lawsuit after sustaining defendants’ demurrer without leave to amend, held that, inter alia, with respect to plaintiff’s Fair Employment and Housing Act and wrongful termination in violation of public policy claims, trial court erred by finding that defendants were exempt from liability based on truth of factual statements contained in judicially noticed documents, and, with respect to plaintiff’s claim for intentional infliction of emotional distress, plaintiff failed to meet his burden to demonstrate error on appeal, when Court of Appeal found that plaintiff…

Federal District Court Opinion of Related Interest

Camacho v. JLG Industries, Inc., Lexis Advance

Federal Diversity Jurisdiction—Remand to State Court—U.S. District Court, Central District of California, remanding matter to state court, granted leave for plaintiffs to amend complaint by adding claim of negligence per se against existing defendants based on their alleged violations of state safety regulations and by adding additional defendant whose presence would destroy diversity jurisdiction, when federal court found that plaintiff was injured AOE/COE when he fell from scissor lift he was using to install glass in hotel building, that plaintiffs filed suit against manufacturer of scissor lift, JLG Industries, and company from which it was rented, Sunbelt Rentals, Inc., that plaintiffs subsequently retained new counsel, who discovered that Cal/OSHA had identified…

Digests of WCAB Decisions Denied Judicial Review

Editorial Board members Frederick W. Bray, William A. Herreras, and John W. Miller recommended the following writ denied cases for summarization in this issue.

City of Monterey v. W.C.A.B. (Holley, Douglas), Lexis Advance

Presumption of Industrial Causation—Cancer—Peace Officers—Rebuttal of Presumption—WCAB held that applicant, while employed as police officer by City of Stockton from 3/15/95 to 9/3/2012 and by City of Monterey from 9/4/2012 to 6/4/2015, suffered injurious exposure to known carcinogens causing him to incur industrial injury in form of colorectal cancer, and that City of Monterey was liable for applicant’s injury pursuant to Labor Code § 5500.5, when WCAB found…

Greenbrae Management, Inc. v. W.C.A.B. (Torres, Jesus), Lexis Advance

Permanent Disability—Increases for Psychiatric Injury—Violent Acts—Court of Appeal denied defendant’s Petition for Writ of Review challenging WCAB’s decision rescinding WCJ’s award of 57 percent permanent disability and awarding applicant 78 percent permanent disability for injuries incurred on 1/8/2014 when he fell approximately 20 feet from tree he was trimming after branch he was standing on snapped, causing applicant to fall, hit his head several times and lose consciousness, when WCJ’s permanent disability award did not include permanent disability resulting from applicant’s psychiatric injury, presumably based on WCJ’s finding that applicant’s psychiatric injury did not result directly from his fall or from “violent act” in accordance with Labor Code § 4660.1(c)(2)(A) and that separate permanent disability for psychiatric injury was, therefore, precluded under Labor Code § 4660.1(c)(1), but WCAB found that…

JC Resorts v. W.C.A.B. (Wences, Maria), Lexis Advance

Medical Treatment—Nonindustrial Conditions—Court of Appeal denied defendant’s Petition for Writ of Review challenging WCAB’s finding that applicant, who suffered industrial injury to her lower extremities while employed as housekeeper during period 9/1/98 through 2/18/2000, was entitled to medical treatment for her nonindustrial diabetes and related wounds and ulcerations, when WCAB found…

Doctrine of Res Judicata—Court of Appeal denied defendant’s Petition for Reconsideration challenging WCAB’s determination that doctrine of res judicata did not preclude finding that defendant Arrowhead Indemnity Co. was obligated to reimburse California Insurance Guarantee Association for medical treatment costs paid by California Insurance Guarantee Association to treat applicant’s nonindustrial diabetes and related wounds and ulcerations, despite prior award of medical care for applicant’s orthopedic injury and prior order of reimbursement, when WCAB…

Jokar Enterprises v. W.C.A.B. (Solorio, Maria), Lexis Advance

Medical Provider Networks—Liability for Self-Procured Treatment—Court of Appeal denied defendant’s Petition for Reconsideration challenging WCAB’s finding that defendant was liable for reimbursement to lien claimants Psychological Assessment Services and Professional Translation Services for medical treatment and interpreting services provided to applicant by lien claimants outside defendant’s Medical Provider Network between 5/8/2012 and 8/12/2014, when WCAB reasoned…

McGowan (Benny) v. W.C.A.B., Lexis Advance

Medical Treatment—Independent Medical Review—Lack of Necessary Information—WCAB upheld three independent medical review determinations appealed by applicant in which Administrative Director refused to submit utilization review denials to independent medical review when denials were based on treating physician’s failure to submit additional information as requested by utilization review physician, when WCAB found...

Medical Treatment—Independent Medical Review—Qualifications of Reviewing Physician—WCAB upheld three independent medical review determinations appealed by applicant on basis that independent medical review physicians were not qualified under Labor Code § 139.5(d)(4)(A) to review utilization review determinations regarding medical necessity of requested treatment because they were in specialties different from those of physicians who requested treatment, when WCAB found…

New York Marine and General Insurance Co. v. W.C.A.B. (Young, Andrew), Lexis Advance

Injury AOE/COE—Going and Coming Rule—Home as Second Jobsite—Substantial Deviation—In split panel opinion, WCAB held that applicant, while employed as director of animation for defendant Splash Studio, suffered injury AOE/COE on 8/17/2016 when he became involved in road rage incident and was stabbed while traveling home after work at defendant’s studio, when WCAB panel majority found...

Santa Clara Valley Transportation Authority v. W.C.A.B. (Tidwell, Debora), Lexis Advance

Injury AOE/COE—Home as Workplace—Personal Comfort Doctrine—Court of Appeal denied defendant’s Petition for Writ of Review challenging WCAB’s holding that applicant suffered injury AOE/COE to her right thigh on 3/1/2016 while working from her home as management analyst, when WCAB found that...

Other WCAB Decisions Denied Judicial Review

Benitez (Gloria) v. W.C.A.B., Lexis Advance

Injury AOE/COE—New and Further Disability—Medical Evidence—WCAB held that applicant, while employed as housekeeper on 4/8/2010, suffered industrial injury to her cervical spine and psyche but did not sustain injury to any other body parts and did not suffer new and further disability, based on reporting of court-appointed physician…

Borbon, Inc. v. W.C.A.B. (Vences, Jorge), Lexis Advance

Injury AOE/COE—Substantial Evidence—Court of Appeal denied defendant’s Petition for Writ of Review challenging WCAB’s finding that applicant suffered cumulative injury to his low back during period 5/22/2009 through 5/22/2010, when orthopedic agreed medical examiner George S. Watkin, M.D., opined that applicant’s work subsequent to incurring specific back and leg injuries on 8/29/2009 and through end of his employment was contributing cause of his back injury, and WCAB concluded...

Kwasigroch (James) v. W.C.A.B., Lexis Advance

Petitions for Writ of Review—Dismissed as Premature—Court of Appeal dismissed applicant’s Petition for Writ of Review pursuant to Labor Code §§ 5900 and 5901 because WCAB granted reconsideration...

Appeals Board Panel Decisions

Bolanos Zacarias (Tsitziri) v. Marz Farms, Lexis Advance

Sanctions—WCAB, in split panel opinion, affirmed WCJ's order imposing $250.00 sanction under Labor Code § 5813 on defendant and its counsel, jointly and severally, for failure to appear at status conference after having received proper notice of conference, notwithstanding defendant's assertion that it should not be sanctioned because its failure to appear was due to inadvertent calendaring error and there was no evidence that defendant or its attorneys demonstrated pattern of such conduct, when WCAB panel majority found that…

Gomez (Miguel) v. Bay Ship and Yacht Co., Lexis Advance

Liens—Procedural Rights and Duties—Collateral Estoppel—Consolidation of Lien Cases—WCAB rescinded WCJ's finding that lien claimant Enstar Group/SeaBright (Enstar) was estopped from litigating its lien filed in applicant's specific injury case because same lien was ordered to mandatory arbitration in applicant's cumulative injury case, and remanded matter to presiding workers' compensation judge to consider whether to consolidate Enstar's lien cases, when issue of whether Enstar was entitled to lien recovery in specific injury case (where Enstar was required show that it paid benefits to which applicant was entitled) was different, albeit related, to issue of whether Enstar was entitled to contribution in cumulative injury case (where Enstar was required to establish right to contribution under Labor Code § 5500.5), and WCAB concluded that…

Kimber (Sandra, Dec’d) v. City of Los Angeles, Lexis Advance

Presumption of Industrial Causation—Pneumonia—Peace Officers—WCAB rescinded WCJ's finding that decedent, while employed as Los Angeles police officer on 8/28/2013, suffered industrially-related bronchiotracheopneumonitis resulting in her death, based on presumption of industrial causation applicable to pneumonia under Labor Code § 3212, when WCAB found that WCJ erred in concluding that…

Minarik (Artemecia) v. Del Taco, Lexis Advance

Injury AOE/COE—Injury En Route To or From Doctor's Office—WCAB affirmed WCJ's finding that injury suffered by applicant in automobile accident on 12/16/2016 while returning from medical examination by agreed medical examiner for 9/1/2012 admitted industrial back injury, was compensable consequence of 2012 injury, when WCAB concluded that applicant's participation in agreed medical examination was akin to medical treatment in that parties were not obtaining evidence to dispute whether or not applicant sustained industrial injury, but were seeking medical opinion on nature and extent of applicant's disability and her need for medical treatment, and WCAB rejected…

Santana (Rose) v. Stanford University, Lexis Advance

California Insurance Guarantee Association—Reimbursement and Contribution—Stipulations—Judicial Estoppel—WCAB affirmed Arbitrator's decision denying CIGA's claim for reimbursement/contribution from Zurich American Insurance Company (Zurich) for benefits owed to applicant prior to 3/1/2006, when CIGA stipulated at 2014 trial that applicant suffered two distinct periods of cumulative trauma to her neck, back and upper extremities, and that Reliance Insurance Company (Reliance), whose covered claims CIGA assumed after Reliance became insolvent, provided coverage during first period and Zurich had coverage for second period, and WCAB found that…

Independent Medical Review Decisions

CM16-0240412, Lexis Advance

Home Health Care—Post-Surgery for Cervical Injury—IMR expert overturned UR decision allowing only one month of personal care attendant services for 4 hours per day, 5 days per week, and found that 3 months of personal care attendant services as originally requested was medically necessary for applicant following cervical surgery based on the 2016 MTUS chronic pain treatment guidelines. The MTUS guidelines on home health care recommend short-term care following major surgical procedures or in-patient hospitalizations to prevent hospitalization, or provision of longer term nursing care and supportive services for individuals whose condition…

CM16-0242053, Lexis Advance

Home Health Care—Orthopedic and Head Injury/Vestibular Injury—IMR expert overturned UR decision denying request for home assistance for 4 hours per day, 5 days per week, for applicant who suffered multiple orthopedic injuries and head injury resulting in vestibular disorder after falling from a 6-foot ladder. Following the injury, applicant required use of a cane and was at great risk of falling due to vestibular dysfunction. Applying the 2016 MTUS chronic pain guidelines, the IMR expert…

CM17-0063035, Lexis Advance

Medical Transportation—Bilateral Wrist Strain/Tenosynovitis—IMR expert reviewer overturned UR denial of transportation for 30 days to and from medical appointments for applicant who was undergoing treatment for bilateral wrist strain and flexor-extensor tenosynovitis. Because the MTUS guidelines are silent regarding the issue of transportation needs, the IMR expert reviewer relied upon the ODG guidelines, which recommend medical transportation to appointments in the same community for patients with disabilities preventing them from self-transport. Here, the medical documentation indicated that...

CM17-0093320, Lexis Advance

Home Health Care—Post-Surgery for Lumbar Injury—IMR expert reviewer overturned UR denial of request for home health care services for 4 hours per day for 2 weeks following applicant’s lumbar surgery with subsequent complications, based on 2016 MTUS chronic pain guidelines recommending short-term care following major surgical procedures or in-patient hospitalizations, to prevent hospitalization, or provision of longer term nursing care and supportive services for individuals whose condition would otherwise require in-patient care. According to the guidelines…

Durable Medical Equipment—Hospital Bed—IMR expert reviewer upheld UR denial of request for hospital bed for 1 month following applicant’s lumbar spine surgery, when the IMR reviewer found that the hospital bed was not medically necessary based on the ODG durable medical equipment guidelines. The ODG guidelines recommend...

CM17-0102257, Lexis Advance

Home Health Care—Total Knee Replacement—IMR expert reviewer overturned UR denial of request for caregiver services for 24 hours per day, for 14 days following applicant’s total left knee replacement, based on 2016 MTUS chronic pain guidelines. The MTUS guidelines on home health care recommend short-term care following major surgical procedures or in-patient hospitalizations, to prevent hospitalization, or provision of longer term nursing care and supportive services for individuals whose condition would otherwise require in-patient care. According to the guidelines…

CALIFORNIA COMPENSATION CASES

Vol. 83 No. 1 January 2018

A Report of En Banc and Significant Panel Decisions of the WCAB and Selected Court Opinions of Related Interest, With a Digest of WCAB Decisions Denied Judicial Review

CONTENTS OF THIS ISSUE

© Copyright 2018 LexisNexis. All rights reserved. 

LexisNexis Online Subscribers: You can link to your account on Lexis Advance to read the complete headnotes and court decisions, en banc decisions, writ denied summaries, panel decisions and IMR decisions.    

Appellate Court Compensation Case

Zuniga (Saul) v. W.C.A.B.,Lexis Advance

Utilization Review—Independent Medical Review—Confidentiality of Independent Reviewers’ Identities—Court of Appeal, affirming WCAB’s orders, held that WCAB has no authority to order disclosure of independent medical review reviewers’ identities, and that keeping reviewers’ identities confidential does not violate due process, when Court of Appeal found...

Appellate Court Cases Not Originating With Appeals Board

Camp v. Estate of Patterson,Lexis Advance

Duty of Care—Primary Assumption of Risk—Home Caregiving—Court of Appeal, reversing trial court’s summary judgment in favor of defendant and remanding matter, held that, while primary assumption of risk doctrine provides complete defense against acts plaintiff was hired to prevent, plaintiff’s injury in present case did not occur as result of such act, when Court of Appeal found...

Delgado v. County of Santa Barbara; Flath v. County of Santa Barbara,Lexis Advance

Going and Coming Rule—Special Errand Exception—Court of appeal, reversing trial court’s judgment, held that evidence, when considered as a whole, did not so clearly show abandonment of employee’s special errand that trial court could determine as matter of law that he was outside scope of his employment at time of accident giving rise to present cause of action, when Court of Appeal found...

Duncan (Denise) v. Wal-Mart Stores, Inc.,Lexis Advance

Liens—Insurers Lien—Temporary Disability Payments—Court of Appeal, affirming with modification trial court’s order granting defendant employer’s workers’ compensation insurer’s lien for reimbursement of amounts it paid to plaintiff/applicant for medical expenses, held...

Merritt (David) v. Equinox Fitness Woodland Hills, Inc., Lexis Advance

Fair Employment and Housing Act—Disability Discrimination—Summary Adjudication—Court of Appeal, reversing in part and affirming in part trial court’s summary adjudication in favor of defendant, held that plaintiff presented evidence of triable issues of material fact on elements of his case for disability discrimination, when Court of Appeal found...

People, The v. Lias (Michelle), Lexis Advance

Workers’ Compensation Fraud—Restitution—Court of Appeal, affirming trial court’s order of restitution, held that trial court did not abuse its discretion in ordering restitution for amounts incurred prior to November 11, 2013, since factual basis of defendant’s guilty plea for workers’ compensation fraud consisted of defendant’s admission that she had “got some money by faking an injury and getting some Workers’ Comp money” on or about November 11, 2013, when Court of Appeal found...

People, The, ex rel. Alzayat (Mahmoud) v. Hebb, Lexis Advance

Qui Tam Action—Insurance Frauds Prevention Act—Litigation Privilege—Exclusive Remedy Rule—Court of Appeal, reversing trial court’s grant of judgment on pleadings for defendants, held that neither litigation privilege nor exclusive remedy rule bars plaintiff’s qui tam action, when Court of Appeal found...

Digests of WCAB Decisions Denied Judicial Review

Editorial Board members Melissa C. Brown, Hon. Joel K. Harter, Richard M. Jacobsmeyer, John W. Miller, and Hon. Ralph Zamudio recommended some of the following writ denied cases for summarization in this issue.

City of Vista v. W.C.A.B. (Gravlin, Robert), Lexis Advance

Cumulative Injury—Single Period of Cumulative Injury—WCAB affirmed WCJ’s findings that applicant suffered single cumulative trauma while employed as firefighter from 1/6/75 through 4/25/2002, causing skin cancer and heart condition/hypertension, and that applicant was entitled to combined award of 74 percent permanent disability for both body parts…

Penalties—Automatic Increase for Late Payment of Permanent Disability—WCAB affirmed WCJ’s award of 10 percent automatic increase on unpaid permanent disability benefits pursuant to Labor Code § 4650(d) for defendant’s failure to timely pay permanent disability advances from applicant’s permanent and stationary date…

County of San Diego v. W.C.A.B. (Southwell, Bill), Lexis Advance

Medical Treatment—Home Health Care—WCAB affirmed WCJ’s finding that defendant was liable for applicant’s home health care from 6/30/2009 to present and continuing, and found no merit to defendant’s assertion that applicant was not entitled to home health care for period awarded because defendant did not have notice of applicant’s need for home health care until 9/20/2012 deposition of agreed medical examiner Thomas C. Bluff, M.D., when WCAB found...

National American Insurance Co. of California v. W.C.A.B. (Herrera, Fraterno); Herrera (Fraterno) v. W.C.A.B., Lexis Advance

Injury AOE/COE–Substantial Medical Evidence—WCAB, affirming WCJ, held that reporting of qualified medical evaluator David Kim, M.D., obtained by California Insurance Guarantee Association, constituted substantial evidence to support finding that applicant did not suffer cumulative trauma to his low back, right shoulder, and neck throughout his period of employment with defendant as alleged, and that all of applicant’s permanent disability was attributable to specific injury incurred on 12/20/91, when WCAB, adopting WCJ’s report, determined...

Online Graphics and Finishing v. W.C.A.B. (Puccio, Salvatore), Lexis Advance

Injury AOE/COE—Compensable Consequence Injuries—Medical Treatment—WCAB, reversing WCJ, held that stroke applicant maintenance worker suffered in hospital while being treated for 4/20/2012 admitted orthopedic injury was compensable consequence of his industrial injury, when agreed medical evaluator in cardiology…

Other WCAB Decisions Denied Judicial Review

Barrett Business Services, Inc. v. W.C.A.B. (Cummins, John), Lexis Advance

Petition for Writ of Review—Dismissed as Premature—Court of Appeal dismissed defendant’s Petition for Writ of Review as premature pursuant to Labor Code §§ 5900 and 5901, when WCAB order was not final because applicant’s date of injury was not resolved…

City and County of San Francisco v. W.C.A.B. (Kircher, James), Lexis Advance

Injury AOE/COE—Substantial Evidence—WCAB affirmed WCJ’s finding that applicant firefighter sustained injury AOE/COE, as defined in Labor Code §§ 3208 and 3208.1, to his heart and circulatory system on 9/17/2014 when he suffered asymptomatic atrial arrhythmia during treadmill test at employment-mandated health check-up…

Nguyen v. W.C.A.B. (Guzman, Salvador), Lexis Advance

Sanctions—WCAB affirmed WCJ’s imposition of sanctions against applicant’s former attorney, Thomas C. Nguyen, in amount of $1,001 pursuant to Labor Code § 5813 and 8 Cal. Code Reg. § 10561, based on…

Parco, Inc. v. W.C.A.B. (Martinez, Ricardo), Lexis Advance

Petition for Writ of Review—Dismissed as Premature—WCAB dismissed defendant’s Petition for Writ of Review as premature pursuant to Labor Code §§ 5900 and 5901 because WCAB order denying Petition for Removal is not final order subject to review…

Puerto (Helcias) v. W.C.A.B., Lexis Advance

WCAB Procedure—Suspension of Proceedings—Mental Competency—WCAB, treating applicant’s Petition for Reconsideration as Petition for Removal, denied removal and affirmed WCJ’s Minute Order taking case off calendar and suspending proceedings in applicant’s Labor Code § 132a claim, including discovery, until such time as applicant is found mentally competent, when WCAB found...

Voller (Barbara) v. W.C.A.B., Lexis Advance

Petition for Writ of Review—Dismissed as Premature—Court of Appeal dismissed applicant’s Petition for Writ of Review as premature pursuant to Labor Code §§ 5900 and 5901, when WCAB’s decision that applicant was not entitled to second period of temporary total disability payments was not final award or order and, therefore, was not subject to review by Court of Appeal...

Appeals Board Panel Decisions

Drummer (Olivia) v. Oak Valley Hospital District, Lexis Advance

Medical—Legal Procedure—Medical Examiner Reporting Time Frames—Replacement Panels—WCAB, granting removal in split panel opinion, rescinded WCJ’s order finding that report of qualified medical evaluator Eduardo Lin, M.D., was untimely and that replacement qualified medical evaluator panel should be issued on that basis, when WCAB reasoned...

Huscroft (James) v. Calgary Flames, Lexis Advance

WCAB Jurisdiction—Professional Athletes—Subject Matter Jurisdiction—WCAB, denying defendant’s Petition for Reconsideration, affirmed its prior decision… in which it found that it had jurisdiction pursuant to Labor Code §§ 3600.5(a) and 5305 over applicant’s claim that he suffered cumulative injury while employed as professional hockey player by several teams from 1/17/88 to 1/12/2000, when WCAB found...

Vargas (Constanza Medina) v. Barrett Business Services, Inc., Lexis Advance

Medical Treatment—Assignment of Qualified Medical Evaluator Panels—Requests For Different Specialties—WCAB, granting removal and reversing WCJ, held that referral referenced in report of panel qualified medical evaluator Nim Alvaro, M.D., recommending additional panels to determine whether applicant sustained industrial injuries to additional body parts, was not medical treatment referral as determined by WCJ but rather was medical-legal referral because…

Washington (Sonia) v. Department of Social Services HISS, Lexis Advance

Stipulations—WCAB, affirming WCJ, held that defendant was bound by its stipulation in pre-trial conference statement that it paid applicant permanent disability advances in amount of $2,343.00, and that defendant was not entitled to credit for all permanent disability advances, including $16,879.75 payment it made in 2013 prior to negotiating 2015 stipulated award for permanent disability in sum of $18,050.00 “less credit for such payments previously made,” when WCAB found…

Independent Medical Review Decisions

CM17-0133923, Lexis Advance

Cervical Spine Discectomy and Fusion Surgery—Neck and Back Pain—Postoperative Brace/Cervical Collar—IMR expert reviewer overturned UR decision denying treating physician’s request for C5-7 anterior cervical discectomy and fusion for decompression to treat applicant’s neck pain with cervical spondylosis and radiculopathy... [LexisNexis Commentary: This IMR decision provides guidance for individuals seeking cervical surgery and contains a helpful summary of the guidelines applicable to the requested treatment. The decision also provides an example of a case in which the UR reviewer and IMR reviewer relied on the same guidelines but reached different conclusions as to the medical necessity of the requested treatment.]…

CM17-0134944, Lexis Advance

Lumbar Spine Decompression Surgery—Postoperative Physical Therapy—IMR expert reviewer overturned UR decision denying treating physician’s request for L5-S1 decompression surgery… [LexisNexis Commentary: This IMR decision provides an excellent discussion of why two-level disc surgery was appropriate in this case and provides an example of a case in which the UR reviewer and IMR reviewer relied on the same guidelines but reached different conclusions as to the medical necessity of the requested treatment.]…

CM17-0136316, Lexis Advance

Physical Therapy—Neurosurgery Referral—Lumbar/Cervical Spine Injury—IMR expert reviewer upheld UR denial of physical therapy evaluation and treatment for applicant’s lumbar spine injury, based on the MTUS chronic pain 2016 guidelines for physical medicine…[LexisNexis Commentary: This IMR decision provides a helpful discussion regarding active and passive modes of therapy and illustrates the importance of specifying the number of sessions when requesting physical therapy. The decision also clearly explains the criteria for referral to a specialist for consultation.]…

CM17-0140549, Lexis Advance

Lumbar Spine Laminoforaminotomy and Microdiscectomy—IMR expert reviewer overturned UR denial of treating physician’s request for revision bilateral L4-5 and L5-S1 laminoforaminotomy and microdiscectomy based on the MTUS 2004 guidelines for low back surgery and the non-MTUS Official Disability Guidelines for the low back. The IMR expert described the applicable guidelines for surgical recommendation and observed... [LexisNexis Commentary: This IMR decision provides an example of a case in which the UR reviewer and IMR reviewer relied on the same guidelines but reached different conclusions as to the medical necessity of the requested treatment. The decision is also helpful to put practitioners on notice regarding the importance of having the requesting physician scrutinize the UR denial to see if the requested treatment, when reviewed by IMR, may be found to be compliant with the MTUS guidelines and/or ODG applied by the UR reviewer.]…

CM17-0140638, Lexis Advance

Physical Therapy—TENS Unit—Neck and Knee Pain—IMR expert reviewer overturned UR decision denying 4 sessions of physical therapy and a TENS unit for applicant’s bilateral neck and right knee, based on the MTUS 2016 guidelines for chronic pain.... [LexisNexis Commentary: This IMR decision illustrates the premise that reasonable medical treatment is treatment that produces a functional benefit.]…

CM17-0140665, Lexis Advance

Cellsaver Machine Rental—Intraoperative Red Blood Cell Salvage and Transfusion—Spine Surgery—IMR expert overturned UR denial of treating physician’s request for Cellsaver machine rental and other supplies for transfusion of autologous red blood cells following applicant’s very extensive elective spine surgery, based on non-MTUS references (Cochran Database Syst Rev 2010 and Transfusion 2016)… [LexisNexis Commentary: This IMR decision illustrates a situation in which the IMR reviewer used medical studies to justify a procedure that is not covered by the MTUS or ODG.]…

CALIFORNIA COMPENSATION CASES

Vol. 83 No. 3 Mar 2018

A Report of En Banc and Significant Panel Decisions of the WCAB and Selected Court Opinions of Related Interest, With a Digest of WCAB Decisions Denied Judicial Review

CONTENTS OF THIS ISSUE

© Copyright 2018 LexisNexis. All rights reserved. 

LexisNexis Online Subscribers: You can link to your account on Lexis Advance to read the complete headnotes and court decisions, en banc decisions, writ denied summaries, panel decisions and IMR decisions.    

Appellate Court Compensation Cases

City of South San Francisco v. W.C.A.B. (Johnson, Richard),Lexis Advance
Statutory Presumptions of Industrial Injury—Allocation of Liability Between Employers—Burdens of Proof Standards—Court of Appeal, affirming WCAB order denying petition for reconsideration, held that, while Labor Code § 3212.1 creates heavy burden for employer to rebut presumption that cancer manifesting during, and for specified period following, employment in certain public safety positions, including firefighters, arose out of and in course of employment, for Labor Code § 5500.5(a), allocating potential liability between employers, applicable standard of proof is preponderance of evidence, when Court of Appeal found that…

County of San Diego v. W.C.A.B. (Pike, Kyle),Lexis Advance

Temporary Disability—Periods of Disability—Five Years After Date of Injury—Court of Appeal, annulling WCAB’s order denying defendant’s petition for reconsideration and remanding matter to WCAB with directions to grant defendant’s petition for reconsideration, held that “plain language” of Labor Code § 4656(c)(2) precludes WCAB from awarding temporary disability payments for periods of disability occurring more than five years after date of underlying injury, when Court of Appeal found that…

Federal District Court Opinions of Related Interest

De Peralta v. Fox Restaurant Concepts, LLC,Lexis Advance

Federal Diversity Jurisdiction—Intentional Infliction of Emotional Distress Claims—Workers’ Compensation Act Preemption—U.S. District Court for Central District of California granted plaintiff’s motion to remand matter to state court based on its finding that complete diversity of citizenship between parties did not exist for purposes of federal jurisdiction, where plaintiff, a citizen of California, filed suit against multiple defendants, including his supervisor Andrew Vratil, also a California citizen, asserting violations of Fair Employment and Housing Act and California Labor Code in addition to cause of action for intentional infliction of emotional distress (IIED), after he was denied work accommodation and was terminated from his employment…

King (Deborah) v. C&K Market, Inc.,Lexis Advance

Federal Court Civil Actions Against Employers—Fair Employment and Housing Act—Americans With Disabilities Act—Dismissal under Rule 12(b)(6) —U.S. District Court for the Eastern District of California granted employer’s motion to dismiss plaintiff’s thirteen causes of action under FEHA and ADA (Fair Employment and Housing Act, Gov. Code § 12900 et seq. and Americans with Disabilities Act, 42 U.S.C.S. § 12101, et seq.), for failure to state claims under Federal Rules of Court, Rule 12(b)(6), when court found…

Federal Court Civil Actions Against Employers—Labor Code § 132a Claims—WCAB Exclusive Jurisdiction—U.S. District Court for the Eastern District of California held WCAB has exclusive jurisdiction to resolve plaintiff’s claims under Labor Code § 132a, citing City of Moorpark v. Superior Court, 18 Cal. 4th 1143, 77 Cal. Rptr. 2d 445, 959 P.2d 752, 63 Cal. Comp. Cases 994 (1998) and court noted that…

Lawson v. Grubhub, Inc.,Lexis Advance

Employment Relationships—Employee vs. Independent Contractor—Wage and Hour and Expense Claims—U.S. District Court for the Northern District of California held defendant met burden of proving it properly classified plaintiff as independent contractor, not employee, during plaintiff’s four months of work for employer as restaurant delivery driver in late 2015/early 2016, based on entire record and application of factors of S.G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal. 3d 341, 769 P.2d 399, 256 Cal. Rptr. 543, 54 Cal. Comp. Cases 80, when district court found…

Rios v. Wells Fargo Bank,Lexis Advance

Federal Diversity Jurisdiction—Intentional Infliction of Emotional Distress Claims—Workers’ Compensation Act Preemption—U.S. District Court for Central District of California granted plaintiff’s motion to remand matter to state court based on its finding that complete diversity of citizenship between parties did not exist for purposes of federal jurisdiction, where plaintiff, a citizen of California, filed suit against defendants Wells Fargo under multiple theories of liability and against his former supervisor Hassan Reheem, also a California citizen, for intentional infliction of emotional distress (IIED) based on allegations that Reheem pressured him to force employees to work overtime without compensation, and, although defendants argued that Reheem was fraudulently joined to defeat complete diversity and that plaintiff’s IIED claim against Reheem must fail on basis that Reheem’s conduct constituted “personnel management activity” and was preempted by Workers’ Compensation Act, District Court found that...

Digests of WCAB Decisions Denied Judicial Review

Editorial Board members Hon. Jacqueline C. Duncan, Susan Hamilton, James Pettibone, and Kenneth M. Sheppard recommended some of the following writ denied cases for summarization in this issue.

California Department of Corrections and Rehabilitation Parole and Community Services v. W.C.A.B. (Gomez, Jose), Lexis Advance

Medical Treatment—Utilization Review—Time Deadlines—WCAB affirmed WCJ’s finding that defendant’s utilization review denial of treating physician Kamshad Raiszedeh, M.D.’s Request for Authorization to perform cervical injection to treat applicant parole officer’s 4/6/2001 industrial orthopedic injury was untimely under former Labor Code § 4610(g)(1) (operative prior to 1/1/2018) and 8 Cal. Code Reg. § 9792.9.1(c)(3), which allow five “working days” or “business days” from receipt of necessary information, but not more than 14 days from receipt of Request for Authorization, to make utilization review determination, when defendant received Request for Authorization on 11/23/2016, which was day before Thanksgiving, and requested additional information on 12/2/2016, and WCAB determined that…

Catheline (Teresa) v. W.C.A.B., Lexis Advance

Medical Treatment—Independent Medical Review Process—Retroactive Application—WCAB affirmed WCJ’s finding that, pursuant to express provisions of Labor Code § 4610.5(a)(2), independent medical review process applies to all disputes over utilization review decisions communicated to physician requesting authorization for treatment on or after 7/1/2013, regardless of date of injury, and that, therefore, 2016 utilization review determination denying authorization for medical treatment related to applicant’s 10/17/2000 orthopedic injuries was subject to independent medical review; WCAB rejected applicant’s assertions that...

Lopez (Francisco) v. W.C.A.B., Lexis Advance

Subsequent Injuries Benefits Trust Fund—Threshold Requirements for Liability—WCAB, reversing WCJ, held that applicant, who suffered industrial injury to his low back, left hip, and left knee on 6/27/2010, resulting in stipulated award of 48 percent permanent disability, was not entitled to Subsequent Injuries Benefits Trust Fund benefits under Labor Code § 4751 based on prior injury to “equal and opposite member” as determined by WCJ in reliance on opinion of agreed medical examiner Sova Khuong, D.C., when WCAB found that...

Star Insurance Co. v. W.C.A.B. (Sanchez, Irma), Lexis Advance

Petitions to Reopen—New and Further Disability—Extrinsic vs. Intrinsic Fraud—WCAB affirmed WCJ’s finding that there was good cause to reopen applicant’s award of 20 percent permanent disability for her admitted 4/16/2012 industrial psychiatric injury and award applicant 100 percent permanent disability based on substantial medical evidence, when WCAB determined that (1) applicant’s failure to affirmatively state in her Petition to Reopen that she suffered new and further disability did not deprive WCAB…

Other WCAB Decisions Denied Judicial Review

Bradley (Ruby) v. W.C.A.B., Lexis Advance

Discovery—Close of Discovery—WCAB affirmed WCJ’s order excluding from evidence medical-legal report obtained by applicant after close of discovery to rebut panel qualified medical evaluator’s report indicating that applicant’s psychiatric injury was nonindustrial, when applicant made no attempt to obtain rebuttal report prior to close of discovery at mandatory settlement conference on issue of injury AOE/COE or attempt to cross-examine panel qualified medical evaluator, and WCAB concluded that, under these circumstances, applicant was not denied due process by WCJ’s order.

Rose International Group v. W.C.A.B. (Carter, Donna), Lexis Advance

Injury AOE/COE—Causation—Substantial Evidence—WCAB affirmed WCJ’s finding that applicant suffered injury AOE/COE to her right knee and left wrist in slip-and-fall accident on 5/18/2016, when WCAB found that, although there were inconsistencies in applicant’s testimony and written statement regarding precise events surrounding her fall in employer’s restroom, inconsistencies were not material enough to defeat her claim of industrial causation, especially given that applicant’s testimony was essentially corroborated by co-worker who witnessed aftermath of injurious fall, that applicant’s claim of injury at work…

Salazar (Teresa) v. W.C.A.B., Lexis Advance

Penalties and Sanctions—Physician Pre-Authorization—WCAB affirmed WCJ’s finding that applicant, who alleged that she suffered cumulative industrial injury to her neck, back, and psyche while employed as welding inspector for defendant, was not entitled to Labor Code § 5814 penalties and/or sanctions under Labor Code § 5813 based on defendant’s alleged failure to provide written pre-authorization to physician Philip H. Conwisar, M.D., whom applicant selected as her primary treating physician and claimed would not schedule initial appointment with her, absent written authorization, when WCAB found...

Siller (James, Jr.) v. Contra Costa County, Lexis Advance

Discrimination—Labor Code § 132a—WCAB affirmed WCJ’s finding that defendant did not discriminate against applicant in violation of Labor Code § 132a by counseling applicant and docking his pay based on applicant’s unpermitted absences from work, when WCAB found that credible testimony at trial established that defendant had long-standing office policy requiring all leaves and/or vacation requests aside from sick days to be approved by management in advance, that applicant…

Supplemental Job Displacement Benefits—WCAB affirmed WCJ’s finding that applicant, who suffered admitted industrial orthopedic injury while working as senior auditor-appraiser for County assessor on 5/14/2014, was not entitled to supplemental job displacement benefit voucher, when WCAB found that...

Silver v. W.C.A.B. (Clink, Michael), Lexis Advance

Sanctions—WCAB, amending WCJ’s decision, reduced WCJ’s award of Labor Code § 5813 sanctions against lien claimant David Silver, M.D., and his hearing representative, Daniel Escamilla, from $2,500.00 each to $950.00 each, and rescinded WCJ’s award of attorney’s fees against Dr. Silver and Mr. Escamilla, when WCAB found that...

Appeals Board Panel Decisions

Camacho (Marcos) v. Pirate Staffing, Lexis Advance

WCAB Procedure—Disclosure of Social Security Number—WCAB rescinded WCJ's finding that applicant, while working as welder on 5/13/2011, suffered injury AOE/COE to his back but not to his hips, lower extremities or psyche, and remanded matter for further proceedings, when WCAB determined that…

De La Cerda (Joel) v. Martin Selko & Co., Lexis Advance

Permanent Disability-Rating—Combining Multiple Disabilities—WCAB rescinded WCJ's finding that applicant suffered 93 percent permanent disability, after apportionment, as result of industrial injuries to his neck, low back, right shoulder, cardiovascular system (hypertension), gastrointestinal system (GERD), pulmonary system (RAD), central nervous system (sleep disorder), neurological system (headaches), and psyche, while employed as laborer on 6/27/2003, and remanded matter to trial level for further proceedings on issue of permanent disability, when WCJ used Combined Values Chart (CVC) to combine applicant's impairments despite opinion of agreed medical evaluator Timothy Reynolds, M.D., that additive method should be used instead to most accurately calculate extent of applicant's disability, and WCAB found that…

Hobson (Deric) v. Bechtel Group, Inc., Lexis Advance

Permanent Disability Rating—AMA Guides—Rebuttal of Scheduled Rating—WCAB rescinded WCJ's finding that applicant suffered 88 percent permanent disability as result of internal injury in form of Valley Fever incurred while he was employed as laborer over period 8/29/2011 through 7/23/2012, based on impairment findings of agreed medical examiner Todd Fearer, M.D., and instead awarded applicant 100 percent permanent disability based on vocational expert opinion of David Van Winkle, which WCAB found...

Val (Tony) v. Southern California Edison, Lexis Advance

Presumption of Compensability—Time to Act on Claim—WCAB affirmed WCJ's finding that Labor Code § 5402(b) presumption of compensability did not apply to applicant's alleged psychiatric injury, notwithstanding applicant's assertion that Labor Code § 5402(b) was applicable because defendant failed to deny his claimed orthopedic and psyche injuries within 90 days of original Application for Adjudication alleging orthopedic injury or Amended Application for Adjudication adding psychiatric injury, and, although WCAB found that...

Psychiatric Injury—Good Faith Personnel Actions—WCAB rescinded WCJ's finding that applicant did not suffer injury AOE/COE to his psyche, and returned matter to trial level for further proceedings on that issue, when psychiatric panel qualified medical evaluator Ara Anspikian, M.D., concluded that applicant's psychiatric injury was predominantly related to industrial factors for purposes of establishing compensable psychiatric injury under Labor Code § 3208.3(b), and WCAB concluded that…

Whitson (Sonya) v. Dept. of Social Services-In Home Supportive Services, Lexis Advance

Settlements—Compromise and Release Agreements—Scope of Settlement—WCAB, in split panel opinion, affirmed WCJ's order denying defendant's Petition for Dismissal of applicant's claim for 4/10/2015 specific injury to her shoulders, neck, hand, head, arm, and back filed on 11/25/2016 on basis that specific injury claim was resolved as part of 12/14/2015 Compromise and Release settling applicant's claim for cumulative injury during period from 8/6/2011 through 6/15/2014, when paragraph 1 of pre-printed DWC Compromise and Release form used in this case only identified applicant's cumulative injury claim and did not mention her specific injury, and WCAB reasoned that...

Independent Medical Review Decisions

CM17-0105931, Lexis Advance

Home Health Care—Unskilled Caregivers—Spine Injury—IMR expert reviewer overturned UR decision denying applicant’s request for home health care by an unskilled caregiver (rather than trained medical professional) for 7 hours per day, 7 days per week. In finding that home health care was medically necessary and appropriate, the IMR expert relied on the 2016 MTUS chronic pain treatment guidelines, which do not require skilled care by a licensed medical professional… [LexisNexis Commentary: This IMR decision provides guidance for individuals seeking home health care services from non-medical, “unskilled” caregivers such as family members. Applicant in this case lived with his brother’s family members, who will likely be providing the requisite care for applicant and will benefit from receiving reimbursement for the care they provide.]…

CM17-0108704, Lexis Advance

Home Health Care—Post-Shoulder Surgery—IMR expert reviewer overturned UR decision denying treating physician’s request for home health care at rate of 8 hours per day for 21 days in conjunction with applicant’s right shoulder arthroscopic rotator cuff repair and subacromial decompression surgery. The IMR expert observed that although the MTUS addressed post-surgery home health care services, UR denied the request for home health care in this case based on the non-MTUS ODG guidelines. In finding the treating physician’s request for post-operative home health care medically necessary, appropriate, and in-line with applicant’s needs, the IMR reviewer relied upon the 2016 MTUS chronic pain guidelines allowing home health care visits commensurate with a patient’s needs following major surgical procedures, such as the procedure planned for applicant. The IMR expert concluded that... [LexisNexis Commentary: This IMR decision is helpful as an example of a decision in which UR used incorrect non-MTUS guidelines to determine that home health care was not medically appropriate. The IMR reviewer, however, relied on the MTUS to find that home health care was medically necessary and appropriate for applicant post-shoulder surgery, especially given that the surgery affected applicant’s dominant arm.]…

CM17-0109730, Lexis Advance

Home Health Care—Domestic Services—Evaluations—IMR expert reviewer overturned UR denial of treating physician’s request for home health care evaluation, but upheld UR’s noncertification of home health care in the form of housekeeping services 4 hours per day, 2 days per week, based on the 2016 MTUS chronic pain guidelines. The IMR expert noted... [LexisNexis Commentary: This IMR decision is helpful because it illustrates the need for a home health care evaluation before a determination is made regarding the specific home health care services required on an indefinite as opposed to a short-term basis. The decision also provides a detailed explanation as to why an in-home evaluation should occur in this case and indicates that applicant may be entitled to the requested home health aide after the requisite evaluation occurs.]…

CM17-0113066, Lexis Advance

Board and Care—Thoracic Spine Injury/Paraplegia—IMR expert reviewer overturned UR denial of applicant’s request for board and care with available 24-hour assistance, when expert found that requested treatment was medically necessary and appropriate based on the non-MTUS ODG for lumbar and thoracic spine conditions. The applicable non-MTUS ODG allows... [LexisNexis Commentary: This IMR decision is helpful because it illustrates a situation in which the IMR reviewer did not apply the guidelines mechanically but rather resolved the dispute more expeditiously by finding that if a caregiver was not adequate, board and care would be medically necessary.]…

CM17-0131370, Lexis Advance

Home Health Care—IMR expert reviewer overturned UR denial of treating physician’s request for home health care for 8 hours per day, 7 days per week based on 2016 MTUS chronic pain guidelines. Applicant in this case suffers from... [LexisNexis Commentary: This IMR decision is helpful because it provides a detailed discussion of the criteria that must be met for entitlement to home health care services. It also serves as a guide to practitioners/medical providers with respect to what they should include in an RFA to meet the MTUS criteria for home health care services.]

CM17-0133927, Lexis Advance

Home Health Care—Domestic Services—IMR expert reviewer upheld UR denial of treating physician’s request for 3 months of home care assistance for 4 hours per day, 7 days per week, based on the 2016 MTUS chronic pain guidelines. Under the applicable guidelines, home health care services are recommended on a short-term basis following major surgery or in-patient hospitalization, to prevent hospitalization, or to provide longer-term nursing care and support services for those whose condition is such that they would otherwise require in-patient care. Home health care services... [LexisNexis Commentary: This IMR decision is helpful in that it alerts practitioners/providers to the necessity of providing detailed documentation regarding why an injured worker is homebound and requires domestic services to comply with the MTUS guidelines and illustrates that failure to provide adequate explanation could result in denial of the services requested.]…

Medical Transportation—IMR expert reviewer upheld UR denial of treating physician’s request for transportation for applicant to and from medical appointments, based on non-MTUS ODG for knee and leg injuries. The applicable guidelines recommend... [LexisNexis Commentary: This IMR decision is helpful in that it describes the requirements for entitlement to medical transportation.]…

CALIFORNIA COMPENSATION CASES

Vol. 83 No. 5 May 2018

A Report of En Banc and Significant Panel Decisions of the WCAB and Selected Court Opinions of Related Interest, With a Digest of WCAB Decisions Denied Judicial Review

CONTENTS OF THIS ISSUE

© Copyright 2018 LexisNexis. All rights reserved. 

LexisNexis Online Subscribers: You can link to your account on Lexis Advance to read the complete headnotes and court decisions, en banc decisions, writ denied summaries, panel decisions and IMR decisions.    

Supreme Court Case Not Originating With Appeals Board

Dynamex Operations West, Inc. v. The Superior Court of Los Angeles County,Lexis Advance

Employment Relationships—Employees vs. Independent Contractors—Wage and Hour Class Action—Supreme Court affirmed Court of Appeal’s finding that in wage and hour class action alleging that plaintiffs had been misclassified as independent contractors when they should have been classified as employees, class may be certified based on wage order definitions of “employ” and “employer” as construed in Martinez v. Combs (2010) 49 Cal. 4th 35, 231 P.3d 259, 109 Cal. Rptr. 3d 514, 75 Cal. Comp. Cases 430, and that test for distinguishing between employees and independent contractors discussed in S. G. Borello & Sons, Inc. v. Dept. of Industrial Relations (1989) 48 Cal. 3d 341, 769 P.2d 399, 256 Cal. Rptr. 543, 54 Cal. Comp. Cases 80, is not exclusive standard that applies in this setting; in affirming Court of Appeal, Supreme Court concluded that...

Appellate Court Cases Not Originating With Appeals Board

Hernandez (Marisa) v. Rancho Santiago Community College District,Lexis Advance

Fair Employment and Housing Act—Reasonable Accommodation and Interactive Process—Probationary Employees—Court of Appeal affirmed trial court’s ruling that defendant college district violated Government Code § 12940(m) and (n) by failing to make reasonable accommodation for plaintiff’s disability and failing to engage in good faith interactive process as required by Fair Employment and Housing Act (FEHA), when plaintiff went off work on temporary total disability during her 12-month probationary period to have industrially-related surgery to replace knuckle on injured finger, and while she was on approved leave district terminated her employment, taking position that it had to terminate plaintiff’s probation and employment because if it did not, plaintiff would have become permanent employee on anniversary of her hiring under Education Code § 88013(a) without having had her performance evaluated, but Court of Appeal concluded that...

Lewis (Fergus) v. Los Angeles County Metropolitan Transportation Authority,Lexis Advance

Government Tort Claims—Statute of Limitations—Equitable Tolling—Court of Appeal, affirming judgment of Superior Court dismissing plaintiff’s claims, held that plaintiff’s claim filed under Government Claims Act, Government Code § 810 et seq., was untimely, and that plaintiff’s subsequent filing of present lawsuit, alleging whistleblower retaliation, Labor Code § 1102.5(b), (c), was also untimely, when Court of Appeal found that plaintiff bus driver was dismissed from employment by defendant after plaintiff refused to drive bus without his equipment bag containing his verification of transit training card, medical card, wheelchair key, maps, stop sheets, punch card, and accident envelope, which he was unable to retrieve from his originally-assigned bus, that plaintiff alleged...

Federal District Court Opinions of Related Interest

People of the State of California ex rel. TIG Insurance Co., et al. v. Culpepper (Brad), Does 1-100, et al.,Lexis Advance

Reinsurance Policy—Date of Employee Injury—Right to Litigate—U.S. Court of Appeals, Ninth Circuit, affirming judgment of U.S. District Court, Northern District of California, in favor of General Reinsurance Corp., in San Francisco Bay Area Rapid Transit District v. General Reinsurance Corp., 111 F. Supp. 3d 1055, 80 Cal. Comp. Cases 712 (N.D. Cal. 2015), held that...

Digests of WCAB Decisions Denied Judicial Review

Editorial Board members Frederick W. Bray, David Hettick, Robert G. Heywood, Kenneth B. Peterson, and Hon. Robert G. Rassp recommended some of the following writ denied cases for summarization in this issue.

American Zurich Insurance Co. v. W.C.A.B. (Ali, Sheik Zahid), Lexis Advance

Insurance Coverage—Scope of Coverage—Exclusions—WCAB affirmed Arbitrator’s finding that American Zurich Insurance Co. (American Zurich), not Lexington Insurance Co. (Lexington), had coverage for injuries incurred by applicant on 7/19/2006 while driving tractor-trailer rig for defendant Trimac Transportation Services (Trimac), when (1) applicant was found to be jointly employed by Trimac and by Intaz Ali dba Ali’s Trucking (Intaz), who contacted with Trimac to lease equipment and drivers to Trimac for transportation services, (2) Intaz did not maintain workers’ compensation coverage for applicant but Trimac was insured for workers’ compensation…

Federal Insurance Co. v. W.C.A.B. (Shemet, Patrick), Lexis Advance

Injury AOE/COE—Due Process—WCAB affirmed WCJ’s finding that applicant suffered injury AOE/COE to his neck and shoulders during period 2000 to 4/11/2014, and found that defendant was not denied due process based on its inability to cross-examine applicant, who did not testify at trial on Fifth Amendment grounds, when defendant challenged applicant’s claim of industrial injury, based on its assertion that applicant’s injuries resulted not from him his work for defendant but rather from his physical activities in his nonwork-related marijuana growing operation, for which he was ultimately arrested, but WCAB found that...

Pronto Express & Services, Inc. v. W.C.A.B. (Quintanilla, Victor), Lexis Advance

Presumption of Compensability—Period to Deny Liability—WCAB affirmed WCJ’s findings that decedent sustained injury AOE/COE resulting in his death on 2/3/2016, and that applicant widow’s claim for death benefits was presumed compensable pursuant to Labor Code § 5402(b) based on defendant’s failure to timely deny claim within 90 days after it was filed and failure to rebut presumption of compensability with evidence that could not have been obtained with reasonable diligence prior to expiration of 90-day period, when WCAB found that…

Sandoval (Fermin) v. W.C.A.B., Lexis Advance

Permanent Disability—Rating—AMA Guides—Rebuttal of Scheduled Rating—WCAB, affirming WCJ, found that applicant’s 6/21/2011 industrial injury to his back and right knee caused 50 percent permanent disability pursuant to Labor Code § 4660 and AMA Guides, based on reporting of qualified medical evaluator and treating physician, and that applicant did not rebut AMA Guides rating, when WCAB reasoned that…

United States Fire Insurance v. W.C.A.B. (Kamakeeaina, Alexander), Lexis Advance

Permanent Disability—Rating—Permanent Total Disability—Medical Treatment—Home Health Care Services—WCAB affirmed WCJ’s finding that applicant was permanently totally disabled “in accordance with the fact” under Labor Code § 4662(b), without basis for apportionment, from industrial injuries incurred on 11/23/2006 resulting in quadriparesis and rendering applicant wheelchair bound, when agreed medical examiner determined that applicant was likely unemployable given his ongoing pain, need for heavy narcotic medication, significant neurologic deficit in his lower extremities, and bowel and bladder dysfunction, and WCAB found that…

Medical Treatment—Home Health Care Services—WCAB affirmed WCJ’s finding that defendant was liable for applicant’s home health care beginning 14 days before receipt of agreed medical examiner’s 2010 report, wherein agreed medical examiner clearly stated that applicant, who was almost completely paralyzed and wheelchair bound following 11/23/2006 industrial injuries, would need home health care attendant for remainder of his life and recommended that assessment be provided as to his specific home health care needs, when WCAB concluded that...

Other WCAB Decisions Denied Judicial Review

Ameritech Business Systems v. W.C.A.B. (Balian, Armen), Lexis Advance

Permanent Disability—Substantial Evidence—WCAB, affirming WCJ, found that opinion of applicant’s primary treating physician constituted substantial evidence to support WCJ’s finding that applicant...

Barnes (Ronnie) v. W.C.A.B., Lexis Advance

Petition for Writ of Review—Dismissal of Untimely Petition—Court of Appeal dismissed applicant’s petition for writ of review as untimely, when petition, which challenged WCAB’s finding that…

Pride Industries v. W.C.A.B. (Bates, Cherie), Lexis Advance

Petitions for Reconsideration—Verification—Court of Appeal dismissed defendant’s Petition for Writ of Review without prejudice, when defendant filed unverified Petition for Reconsideration with WCAB, and, while WCAB recognized that failure to file verification of Petition for Reconsideration as required under Labor Code § 5902 is not jurisdictional requirement and does not mandate dismissal, WCAB found that...

Walle (Estela) v. W.C.A.B., Lexis Advance

Injury AOE/COE—Burden of Proof—Credibility Determinations—WCAB affirmed WCJ’s finding that applicant did not meet burden of proving that she suffered injury AOE/COE to her back on 6/22/2017 while working as medical assistant for defendant, when applicant testified that injury occurred when she caught her foot on trash receptacle and stumbled, but WCJ did not find mechanism of injury as described by applicant to be plausible and, therefore, found alleged injury non-compensable, and WCAB concluded that…

Appeals Board Panel Decisions

Havay (Robert) v. State of California, Lexis Advance

Presumption of Industrial Causation—Heart Trouble—Correctional Officers—WCAB rescinded WCJ's finding that applicant, while employed as correctional sergeant during cumulative period ending on 3/28/2013, suffered industrial injury to his heart, and returned matter to WCJ to reanalyze compensability of applicant's heart injury applying correct evidentiary standards, when agreed medical examiner Samuel L. Sobol, M.D., and WCJ in his decision cited to Labor Code § 3212 presumption in finding applicant's heart trouble to be industrial, despite Dr. Sobol's opinion that applicant's heart trouble was due to congenital abnormality, rather than physical industrial stress, and WCAB determined that…

Maldonado (Julian) v. Beverly Hilton Hotel, Lexis Advance

Medical Treatment—Nurse Case Manager Services—WCAB, granting removal, rescinded WCJ's Order removing Debbie Lee, RN/CPDM, as Nurse Case Manager in this matter, when WCAB, applying principles in Lamin v. City of Los Angeles Police Department (2004) 69 Cal. Comp. Cases 1002 (Appeals Board significant panel decision), reasoned that although there was no evidence in this case that Nurse Case Manager was reasonably required medical treatment to which applicant was entitled to cure or relieve effects of his 9/1/2005 industrial injury, Ms. Lee's testimony indicated that her duties were more in nature of claims administration than nursing care in that she was tasked with verifying applicant's attendance at medical appointments, ensuring that applicant's treating doctors understood and complied with their reporting requirements, ensuring claims personnel were made aware of requests for authorization of medical treatment and responded in timely manner, and that utilization review approvals and denials were timely communicated to applicant's treating physicians, and WCAB determined that...

Molar (Fermin) v. California Department of Corrections and Rehabilitation, Lexis Advance

Presumption of Industrial Causation—Blood-Borne Infectious Diseases—Herpes/Epstein-Barr Virus—WCAB affirmed WCJ's finding that applicant, who suffered industrial injury to his heart, cardiovascular system, and in forms of hypertension, chronic fatigue, atrial fibrillation, and herpes/Epstein-Barr virus exposure while employed as correctional officer from 4/8/90 through 3/26/2014, was entitled to presumption of compensability applicable to blood-borne infectious diseases pursuant to Labor Code § 3212.8, regarding his herpes/Epstein-Barr virus exposure, when WCAB noted that “bloodborne pathogens” are defined in 8 Cal. Code Reg. § 5193(b) as “pathogenic microorganisms that are present in human blood and can cause disease in humans[,]” including but not limited to hepatitis B virus, hepatitis C virus and human immunodeficiency virus, and that panel qualified medical evaluator David Baum, M.D., explicitly testified that herpes and Epstein-Barr virus can be transmitted via blood such that they fall within definition of “bloodborne pathogens” and are covered by presumption; WCAB found…

Rayo (Plutarco) v. Certi-Fresh Foods, Inc., Lexis Advance

Medical-Legal Procedure—Assignment and Selection of Panel Qualified Medical Evaluators—WCAB, denying removal, affirmed WCJ's finding that chiropractic qualified medical evaluator panel obtained by applicant to evaluate industrial back injury was premature and invalid under 8 Cal. Code Reg. § 30, when WCAB concluded that applicant obtained chiropractic panel in violation of Labor Code § 4062.2(b) because there was no “request for a medical evaluation pursuant to [Labor Code] Section 4060” to trigger ten-day waiting period in Labor Code § 4062.2(b), and WCAB found that…

Wyant (Crystal) v. American Medical Response, Lexis Advance

Medical Treatment—Utilization Review—Change in Material Facts—WCAB affirmed WCJ's finding that applicant who suffered admitted industrial back injury while employed as paramedic on 6/23/2014 was entitled to lumbar spinal fusion as approved by defendant's 9/11/2017 utilization review (UR), and disagreed with defendant's position that 9/11/2017 UR certification was invalid based on prior UR decision issued by defendant on 6/22/2017 denying spinal surgery, which defendant asserted should remain effective for 12 months from date of decision under Labor Code § 4610(k), when second request for authorization (RFA) submitted by treating physician provided additional information in support of spinal surgery, and defendant accepted second RFA as new information and sent it to UR reviewer who issued 9/11/2017 decision certifying surgery as reasonable and necessary medical treatment, and WCAB found that...

Independent Medical Review Decisions

CM17-0178182, Lexis Advance

Opioid Medications—Lower Back Injuries—Tapering—IMR reviewer overturned UR decision authorizing only 68 of the 75 Oxycodone 30mg pills requested by applicant’s treating physician, based on the 2016 MTUS opioid treatment guidelines. Following treatment for a lower back injury, including lumbar laminectomy and microdiscectomy, 29-year old applicant complained of increasing lower back pain rated at level 9 out of 10 with radiation to the left lower extremity. With use of Oxycodone, applicant’s pain decreased to level 4 out of 10. The IMR expert noted that Oxycodone was prescribed to applicant at a daily morphine equivalent dose (MED) of 135mg and that applicant was being weaned from 30mg #90 to #75, with additional prescriptions of Flexeril and Elavil to help with radicular symptoms and muscle spasms in order to facilitate weaning. The IMR expert found that... [LexisNexis Commentary: This IMR decision serves as a good reminder that abrupt cessation of opioid use may be dangerous for the injured worker, that slow tapering is recommended, and that there are specific MTUS guidelines in place regarding opioid tapering and monitoring for opioid abuse.]

Prescription Medications—Muscle Relaxants—Lower Back Injuries—IMR reviewer overturned UR decision denying treating physician’s request for authorization for 30 Flexeril pills at a 10mg dosage to treat applicant’s worsening back pain/spasms following lumbar laminectomy and microdiscectomy. In overturning the UR decision, the IMR expert relied on the 2016 MTUS chronic pain guidelines for Cyclobenzaprine (Flexeril)/muscle relaxants, which recommend short courses of Flexeril as a second-line option for treatment of acute exacerbations in patients with muscle spasms... [LexisNexis Commentary: This IMR decision was published to provide insight into the IMR reviewer’s analysis, considering the relevant guidelines, in determining that the muscle relaxant Flexeril was medically necessary for this injured worker.]

CM17-0178459, Lexis Advance

Opioid Medications—Lower Back Injury—Tapering—IMR reviewer overturned UR decision authorizing only 45 of the 90 (#45 with 1 refill) Buprenorphine 2mg pills requested by applicant’s treating physician, based on the 2016 MTUS opioid treatment guidelines. Here, 32-year old applicant suffered collapsed vertebra in his lumbar spine, an injury to the L1 spinal level, and injury of the cauda equina. He reported continued back pain at a level of 5 out of 10 in addition to muscle spasms. Applicant was prescribed several pain medications and had been tapered on Buprenorphine from 8mg per day to 1.5-4mg per day. Applicant reported a 60-70% reduction in pain with use of Buprenorphine and lidocaine patches and demonstrated an improvement in function. Additionally, applicant was compliant to the controlled substance agreement with no signs of abuse or diversion. The IMR reviewer noted that.... [LexisNexis Commentary: This IMR decision serves as a good reminder that abrupt cessation of opioid use may be dangerous for the injured worker, that slow tapering is recommended, and that there are specific MTUS guidelines in place regarding opioid tapering and monitoring for opioid abuse.]

Prescription Medications—Anti-Epilepsy Drugs—Lower Back Injury—IMR reviewer upheld UR decision authorizing only 93 of the 240 75mg Lyrica pills (#120 with 1 refill) requested by the treating physician, based on the 2016 MTUS chronic pain guidelines for anti-epilepsy drugs. The guidelines recommend... [LexisNexis Commentary: This IMR decision serves as a good reminder to doctors regarding the importance of providing sufficient information/documentation to demonstrate that the MTUS criteria have been met.]

Prescription Medications—Topical Analgesics—Lower Back Injury—IMR reviewer overturned UR decision denying treating physician’s request for Lidoderm patches 5% #60 (#30 with 1 refill), based on the 2016 MTUS chronic pain guidelines for topical analgesics. The guidelines state that... [LexisNexis Commentary: This IMR decision serves as a good example of a request for a largely experimental treatment.]

Prescription Medications—NSAIDs—Lower Back Injury—IMR reviewer upheld UR decision denying treating physician’s request for Naprosyn 500mg #20 as not medically necessary or appropriate based on 2016 MTUS chronic pain guidelines for non-steroidal anti-inflammatory drugs (NSAIDs). The guidelines recommend... [LexisNexis Commentary: This IMR decision serves as a good reminder to doctors regarding the importance of providing sufficient information/documentation to demonstrate that the MTUS criterial have been met.]

CM17-0183316, Lexis Advance

Opioid Medications—Chronic Pain Syndrome—Tapering—IMR reviewer overturned UR decision denying treating physician’s request for Morphine 15mg #120, to treat 27-year old applicant who was diagnosed with right shoulder pain and decreased range of motion, chronic pain syndrome, reflex sympathetic dystrophy of the upper limb, and depression. Applicant complained of neck and right shoulder pain rated at 9 out of 10 without medication and 8 out of 10 with medication. The 2016 MTUS opioid guidelines relied upon by the IMR reviewer state that... [LexisNexis Commentary: This IMR decision provides a very comprehensive overview of the standards an IMR reviewer will consider in deciding whether opioid treatment is medically necessary and serves as a very helpful roadmap to providers who prescribe opioids because it provides step-by-step instructions on what information to provide the IMR reviewer in order to meet the MTUS criteria for opioid usage.]

CM17-0186889, Lexis Advance

Opioid Medications—Cervical Pain—IMR reviewer overturned UR decision authorizing only 45 of the 60 Hydrocodone/Apap 10/325mg pills requested by applicant’s treating physician, based on the 2016 MTUS opioid guidelines. In this case, 52-year old Applicant was being treated for cervical radiculopathy, foraminal stenosis in the cervical region and insomnia. Under the MTUS guidelines, opioid treatment is satisfactory when there is decreased pain and the patient can demonstrate an increased level of function or improved quality of life with use of medication. A clinically meaningful improvement in condition is when there is a 30% or more improvement in pain and function. Here, the IMR reviewer found that... [LexisNexis Commentary: This IMR decision in helpful because the IMR reviewer clearly documents the relevant factors justifying treatment with opioid medication, sets forth the applicable MTUS criteria, and explains how the criteria was met in this case.]

CM17-0187433, Lexis Advance

Opioid Medication—Failed Back Syndrome—Tapering—IMR reviewer overturned UR decision denying treating physician’s request for Norco 10/325mg #60, but upheld UR denial of request for Ultram 50mg #60, based on 2016 MTUS opioid guidelines. In this case, 45-year old applicant was undergoing treatment for multiple conditions, including failed cervical spine fusion, radicular pain in arms, lumbar disc herniation with lower extremity radiculopathy, internal derangement of the left hip, and right knee myoligamentous injury. Applicant reported that Norco provided 30 to 50% improvement of pain, range of motion, and ability to function, and Ultram provided 30 to 40% improvement. Urine drug testing results showed positive results for opiates. With respect to the request for Norco, the IMR reviewer noted that... [LexisNexis Commentary: This IMR decision provides an example of a case where the IMR reviewer upheld the UR denial of an opioid prescription because of the lack of biopsychosocial testing and documentation of improvement, leading the reviewer to conclude that applicant should be weaned.]

Prescription Medications—Anti-Epilepsy Drugs—Failed Back Syndrome—IMR reviewer overturned UR decision denying treating physician’s request for Topamax 25mg #60, based on the 2016 MTUS chronic pain guidelines for anti-epilepsy drugs. The guidelines state that Topiramate has not been effective to treat neuropathic pain of “central” etiology but is still considered for use for neuropathic pain when other anticonvulsants have failed. According to the MTUS guidelines... [LexisNexis Commentary: This IMR decision provides a good overview of the MTUS criteria for use of anti-epilepsy drugs to treat neuropathic pain. The IMR reviewer indicated that, based on the guideline criteria, the focus should be on functional restoration rather than decreasing pain.]

CM17-0190448, Lexis Advance

Opioid Medications—Low Back and Knee Injuries—IMR reviewer overturned UR decision authorizing only 84 of the 120 ER formulation Tramadol 100mg pills requested by applicant’s treating physician, based on 2016 MTUS guidelines for opioids. In this case, 57-year old applicant suffered injury to his lumbar spine and a left knee meniscal tear, causing him to suffer persistent pain and limited range of motion. The IMR reviewer noted that...[LexisNexis Commentary: This IMR decision highlights the 30% standard for improvement in pain to justify opioid use under the MTUS guidelines.]

CM17-0191463, Lexis Advance

Opioid Medications—Lumbar Spine Injury—Tapering—IMR reviewer overturned UR decision authorizing only 90 of the 120 50mg Ultram pills requested by applicant’s treating physician, based on the 2016 MTUS opioid treatment guidelines. Here, 48-year old applicant was undergoing treatment for lumbar spinal canal stenosis. He complained of continued calf cramping and reported a 70% reduction in pain while taking medications, which included Norco, Ultram and Ambien. A urine drug screen showed positive results for Hydrocodone, Ambien and Tramadol. The 2016 MTUS opioid guidelines relied upon by the IMR reviewer state that.... [LexisNexis Commentary: This IMR decision serves as a good reminder that abrupt cessation of opioid use may be dangerous for the injured worker, that slow tapering is recommended, and that there are specific MTUS guidelines in place regarding opioid tapering and monitoring for opioid abuse.]

Prescription Medication—Sleep Medication—Ambien—IMR reviewer upheld UR decision denying provider’s request for Ambien 10mg #60, based on the non-MTUS ODG guidelines. The ODG guidelines indicate that Zolpidem (Ambien) is a short-acting nonbenzodiazepine hypnotic, which is approved for short-term (usually 2 to 6 weeks) treatment of insomnia. The IMR reviewer noted that... [LexisNexis Commentary: This IMR decision is helpful in that it demonstrates the criteria that must be met, including a diagnosis of insomnia, for approval of a sleep medication.]

CM17-0191506, Lexis Advance

Opioid Medication—Cervical Radiculopathy and Headaches—Tapering—IMR reviewer overturned UR decision denying provider’s request for Norco 5/325mg 1 tablet twice per day #60, based on the 2016 MTUS opioid treatment guidelines. Here, 70-year old applicant was undergoing treatment for cervical radiculopathy and post-traumatic head syndrome/headaches and has used Norco for pain since 12/2015. The provider indicated that... [LexisNexis Commentary: This IMR decision serves as a good reminder that abrupt cessation of opioid use may be dangerous for the injured worker, and that slow tapering is recommended.]

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