11 Jan 2023

California Compensation Cases December 2022

CALIFORNIA COMPENSATION CASES

Vol. 87, No. 12 December 2022

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

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

Appellate Court Cases Not Originating With Appeals Board

Cover Right Roofing, Inc. v. State Compensation Insurance Fund, Lexis

Workers’ Compensation Insurance Policies—Notice of Premium Rate Increases—Court of Appeal, affirming trial court’s grant of summary judgment in favor of insurer State Compensation Insurance Fund (SCIF), concluded that SCIF had no liability with respect to insured employer’s negligence and equitable indemnity claims that arose from SCIF’s failure to notify insured employer of workers’ compensation premium rate increase under Insurance Code § 11664(e)(6)(A) (which requires insurers intending to renew policies to provide 30 days written notice of premium rate increase if premium rate in insured’s governing classification is to be increased by 25 percent or greater), when court of appeal, addressing matter of first impression…

The Travelers Indemnity Co. v. Lara, Lexis

Workers’ Compensation Insurance Policies—Approval of Side Agreements—Concurrent and Primary Jurisdiction Doctrines—Court of Appeal, affirming trial court’s judgment, held that trial court properly denied petition for writ of administrative mandate filed by The Travelers Indemnity Company (Travelers) challenging California Insurance Commissioner’s decision that certain side agreements relating to workers’ compensation insurance policies issued by Travelers were unenforceable because they were not filed with Workers’ Compensation Rating Bureau pursuant to Insurance Code §§ 11658 and 11735, when Court of Appeal, rejecting Travelers’ argument...

Whitlach v. Premier Valley, Inc., Lexis

Worker Classification—Real Estate Agents—Constitutionality of “ABC” Test Exemptions—Court of Appeal, affirming trial court’s dismissal of plaintiff’s complaint alleging violations of Labor Code’s wage and hour provisions by defendant real estate brokerage firm, held that trial court applied correct standard to determine that plaintiff was acting as independent contractor, not employee, while working as real estate agent for defendant’s firm, when Court of Appeal found that...

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.

Gage (Rebecca) v. County of Sacramento, Lexis

Temporary Disability—Disability Retirement Benefits—WCAB Jurisdiction—WCAB, granting reconsideration, rescinded decision in which WCJ found that applicant and defendant were expected to meet and confer to determine plan under Labor Code § 4850.4(f) for repayment of advanced disability pension payments defendant made to applicant (who suffered lumbar spine injury while working as deputy sheriff through 9/14/2011) before ultimately denying her disability retirement application, when WCAB held that...

Jackson (Marachelle) v. Door to Hope, Lexis

Compromise and Release Agreements—Setting Aside For Good Cause—Undue Influence—WCAB, after granting reconsideration, affirmed WCJ’s order setting aside Order Approving Compromise and Release (OACR), which settled applicant counselor’s claim for orthopedic and psychiatric injuries for $95,000.00, when applicant sought to set aside Compromise and Release approximately two months after its execution and after settlement funds were paid, asserting that settlement was secured through duress and undue influence by her attorney, and WCAB concluded that applicant...

Neyer (Paul) v. Mission Linen Supply, Lexis

Contribution and Reimbursement—Division of Liability Between Insurers—WCAB, granting reconsideration, rescinded Arbitrator’s decision ordering self-insured employer Mission Linen Supply (Mission Linen) to reimburse Arrowpoint Capital (Arrowpoint) for settlement sums Arrowpoint paid to California Insurance Guarantee Association (CIGA) in excess of Arrowpoint’s pro rata share of liability, and WCAB returned matter to trial level for further proceedings…

Pena (Miguel) v. Aqua Systems, Lexis

Third-Party Settlements—Approval of Settlement By WCAB—Credit and Attorney’s Fees—WCAB, granting reconsideration and rescinding WCJ’s decision, held that applicant’s workers’ compensation attorney was entitled to 15 percent attorney’s fee to be commuted from far end of applicant’s permanent total disability award, and that defendant was entitled to third-party credit of $474,705.79 applicable against applicant’s life pension (and potentially against award of future medical care) but not against applicant’s attorney’s fee, notwithstanding Stipulation to Credit between applicant and defendant in applicant’s third-party case to immediately apply credit against all unpaid workers’ compensation benefits, when applicant’s attorney was never notified…

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.

CM22-0045307, Lexis

Specialist Referrals—Cognitive Behavioral Therapy—Applicant, 50 years old, suffered an industrial injury on 12/18/2018, and underwent treatment for left knee and low back pain. Her pain persisted despite conservative and surgical interventions. Applicant’s treating physician requested a consult for cognitive behavioral therapy (CBT), which UR denied on the basis that there was limited evidence of depression, anxiety or sleep disturbance due to pain to support the request. The IMR reviewer overturned the UR denial based on... [LexisNexis Commentary: The IMR reviewer in this case clearly explains why applicant’s request for CBT was sufficiently supported based on the applicable MTUS chronic pain guidelines. Here, only a consult was requested, which is clearly consistent with the MTUS/ACOEM guidelines. Seemingly, there is a low threshold for consults under the guidelines and they could be recommended for any chronic pain case.]

CM22-0048549, Lexis

Specialist Referrals—Cognitive Behavioral Therapy—Applicant, 46 years old, suffered an industrial injury on 12/11/2019 resulting in chronic pain. He experienced psychiatric symptoms secondary to the pain and was undergoing psychiatric treatment for anxiety and major depressive disorder. Due to his symptoms, applicant was prescribed psychotropic medication. His treating psychologist requested authorization for one visit to manage this medication, which UR denied based on the ACOEM Practice Guidelines Referrals and Consultations. No MTUS guidelines were cited by UR. The IMR reviewer overturned the UR denial... [LexisNexis Commentary: This IMR provides helpful guidance regarding the criteria for management of mental health symptoms and medication. Among other things, it provides an example of a case in which IMR overturned a UR denial where UR failed to apply the relevant MTUS/ACOEM guidelines. Psychotropic medication management is clearly an integral part of mental health treatment as described in the MTUS/ACOEM workplace mental health guidelines.]

CM22-0053192, Lexis

Specialist Referrals—Podiatrists—Applicant, 64 years old, suffered an industrial injury on 11/20/2018, and was undergoing treatment for chronic pain syndrome. The pain, which rated at 8–9/10, began in applicant’s ankles and expanded to the legs, causing lower back pain. A physical examination revealed ankle numbness. As of 2/28/2022, applicant had returned to work but felt the need for better foot support. She had previously used orthotics with relief. Applicant’s treating physician requested authorization for a podiatry consult to evaluate applicant for ankle orthotics. UR denied the request. Citing the MTUS 2018 guidelines for ankle and foot disorders and the MTUS 2017 chronic pain guidelines, the IMR reviewer overturned... [LexisNexis Commentary: The treating physician in this matter requested an evaluation for orthotics, a non-invasive modality with no negative side effects that applicant had previously benefitted from. The IMR reviewer applied common sense in concluding that because of applicant’s documented foot pain, a podiatry consult was reasonable.]

CM22-0055717, Lexis

Specialist Referrals—Pain Management—Applicant, 47 years old, suffered an industrial low back injury on 12/1/2021, and was undergoing treatment for chronic radicular low back pain and lumbar spondylosis. Applicant’s treating physician requested authorization for a pain management consultation for a possible epidural steroid injection at L4–L5. The request was denied by UR. The IMR reviewer overturned the UR denial… [LexisNexis Commentary: This IMR provides helpful guidance regarding the situations that may support referral to a pain management specialist. Here, the IMR reviewer found that because applicant’s pain and function were not improving with medication or physical therapy, a pain management consult for a possible injection was reasonable.]

CM22-0056310, Lexis

Imaging Tests—Thallium Myocardial Perfusion Scan—COVID-19—Applicant, 60 years old, sustained an industrial injury on 5/18/2020 in the form of COVID-19. She ultimately developed long COVID, with symptoms including fatigue, memory loss, depression, anxiety, wheezing, chest pain, and persistent shortness of breath on exertion. A CT scan also revealed a pulmonary nodule. Applicant was unable to work due to her symptoms. On 4/13/2022, applicant’s medical provider requested authorization for thallium myocardial perfusion scanning and a repeat chest CT. UR approved the CT scan but denied approval for the thallium imaging. Relying on the MTUS Coronavirus 2021 guidelines, and the Harrison’s Textbook of Internal Medicine/Cardiology, the IMR reviewer upheld… [LexisNexis Commentary: This IMR provides guidance regarding how UR/IMR will address issues relating to long COVID. The IMR is also interesting because the MTUS/ACOEM guidelines support a chest CT to diagnose pulmonary problems related to COVID-19, but do not mention thallium. Thus, the reviewer turned to Harrison’s Textbook of Internal Medicine/Cardiology, presumably as an alternative source of “evidence-based medical treatment guidelines that are recognized by the national medical community and are scientifically based” under the medical search sequence set forth in 8 Cal. Code Reg. § 9792.21.1(a)(2)(B).]

CM22-0057852, Lexis

Imaging Tests—CT Scans—Applicant, 47 years old, suffered an industrial injury on 1/17/2019, and was treated for chronic cervicalgia with radiculopathy. An MRI showed significant cervical disc herniations, high-grade foraminal stenosis, and spinal cord compression at multiple cervical disc levels. Applicant reported pain in his neck and left shoulder with numbness, tingling, and weakness radiating down the left arm, and a physical examination revealed slightly diminished sensation on the left upper arm. Applicant’s treating physician requested authorization for a CT scan of applicant’s cervical spine in preparation for surgery. UR non-certified the request based on the MTUS 2018 guidelines for cervical and thoracic spine disorders and on the non-MTUS ODG. The IMR reviewer overturned the UR non-certification… [LexisNexis Commentary: The IMR reviewer in this case indicated that the MTUS is “silent” regarding cervical spine CT, and therefore relied on the ODG in finding medical necessity. Although the reviewer is not entirely correct that the MTUS/ACOEM is “silent” on this issue, the IMR reviewer’s reliance on the ODG was justified because the ACOEM does not provide any detailed recommendations regarding CT scans for the cervical spine.]