09 Mar 2020

California Compensation Cases February 2020

CALIFORNIA COMPENSATION CASES

Vol. 85 No. 2 Feb 2020

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 Advance 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

Brome (Jay) v. California Highway Patrol, Lexis Advance

Fair Employment and Housing Act—Statute of Limitations—Tolling by Workers’ Compensation Action—Court of Appeal, reversing trial court’s summary judgment in defendant’s favor, held that record did not preclude, as a matter of law, conclusion that plaintiff’s claims were timely and that he was constructively discharged, when Court of Appeal found that plaintiff, former California Highway Patrol officer who was openly gay, during his nearly 20-year career was subjected by other officers to derogatory, homophobic comments, was singled out for pranks, including repeated defacement of his mailbox, and refusals to provide him with backup assistance during enforcement stops, that in 1/2015 plaintiff went on medical leave and filed workers’ compensation claim based on work-related stress, that workers’ compensation claim...

Kennedy (Denise) v. MUFG Union Bank, Lexis Advance

Civil Actions—Summary Judgment—Burdens of Proof—Court of Appeal, affirming trial court’s summary judgment in defendant’s favor, held that plaintiff forfeited any claim of error for failure to summarize evidence before trial court on summary judgment, and that, even in absence of forfeiture, summary judgment was properly granted, when Court of Appeal found that plaintiff filed civil action against defendant alleging causes of action under California Fair Employment and Housing Act (Government Code § 12940 et seq.) and common-law causes of action alleging intentional infliction of emotional distress and wrongful termination in violation of public policy, that plaintiff alleged....

Workers’ Compensation Claim—Settlements—Applicant’s Voluntary Resignation. In dicta, Court of Appeal stated that...

Digests of WCAB Decisions Denied Judicial Review

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

Allstate Insurance Co. v. W.C.A.B. (Monrial, Maria), Lexis Advance

Permanent Disability—Rating—Rebuttal of Scheduled Rating—WCAB, amending WCJ’s decision, held that applicant who suffered industrial injuries to her neck, low back, knees, gastrointestinal system, psyche, and in forms of mental impairment and pain and sleep disorders while working as caregiver on 3/19/2011 was entitled to award of 100 percent permanent disability, rather than 91 percent permanent disability as awarded by WCJ, pursuant to Ogilvie v. W.C.A.B. (2011) 197 Cal. App. 4th 1262, 129 Cal. Rptr. 3d 704, 76 Cal. Comp. Cases 624, Contra Costa County v. W.C.A.B. (Dahl) (2015) 240 Cal. App. 4th 746, 193 Cal Rptr. 3d 7, 80 Cal. Comp. Cases 1119, and LeBoeuf v. W.C.A.B. (1983) 34 Cal. 3d 234, 193 Cal. Rptr. 547, 666 P.2d 989, 48 Cal. Comp. Cases 587, when reporting of orthopedic agreed medical evaluator and vocational expert constituted substantial evidence to support finding that applicant was unable to return to open labor market, had no future earning capacity, and was not amenable to vocational rehabilitation due to her orthopedic injuries, and WCAB concluded that...

Bennink (Hendrikus) v. W.C.A.B., Lexis Advance

Injury AOE/COE—Substantial Medical Evidence—WCAB affirmed WCJ’s finding that applicant did not suffer compensable orthopedic or gastrointestinal injuries while employed as police officer during period ending 3/3/2014, when orthopedic qualified medical evaluator concluded that...

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

Temporary Disability—Wage Loss—Earning Capacity—WCAB affirmed WCJ’s finding that applicant, who suffered industrial injury to his psyche on 12/5/2016 while working for county as switch repairer, was entitled to temporary disability indemnity for period of ongoing temporary disability beginning 6/22/2018 and continuing, when there was no medical dispute that applicant was temporarily disabled as of 6/22/2018, and, although applicant was hired...

Other WCAB Decisions Denied Judicial Review

Deglow (Annette) v. W.C.A.B., Lexis Advance

Sanctions and Penalties—Delay in Providing Medical Treatment—WCAB affirmed WCJ’s finding that defendant was not liable for sanctions/penalties pursuant to Labor Code §§ 5813 and 5814 based on 11/14/2016 utilization review determination upholding 5/4/2016 utilization review denial of medication Zegerid to treat applicant’s 12/6/2000 gastrointestinal injury, when WCAB found that...

Madrigal (Rudy) v. W.C.A.B., Lexis Advance

Injury AOE/COE—Substantial Evidence—WCAB affirmed WCJ’s finding that, based on reporting of qualified medical evaluator, applicant did not sustain cumulative injury to his knees while employed as custodian through 6/30/2017, when WCAB concluded that qualified medical evaluator’s opinion was substantial evidence to support WCJ’s finding...

Padilla (Leopoldo Cervantes) 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 as premature when there was no...

Samsung Fire and Marine Insurance Co. v. W.C.A.B. (Rodriguez, Jose Luis), Lexis Advance

Petitions for Writ of Review—Dismissed as Premature—Court of Appeal dismissed defendant’s Petition for Writ of Review as premature pursuant to...

Williams (Youlanda) v. W.C.A.B., Lexis Advance

Statute of Limitations—WCAB Jurisdiction—WCAB, affirming WCJ’s decision, held that it had no jurisdiction over pro per applicant’s claims for dates of injury 10/20/2006 through 5/19/2010, 3/1/2011, 4/8/2011, and cumulative injury through 2012, when applicant voluntarily dismissed her first three claims in 2017, and, although she alleged that her decision to dismiss claims was mistake resulting from fact that she was placed on medical leave for nonindustrial surgical procedure, and she had actively litigated her claims prior to dismissing them, WCAB found that...

Appeals Board Panel Decisions

Kudelka (Christopher) v. City of Costa Mesa, Lexis Advance

Subsequent Injuries Benefits Trust Fund—Threshold Requirements for Entitlement to Benefits—Combining Multiple Disabilities—WCAB affirmed WCJ's finding that applicant firefighter suffered permanent total disability as result of industrial heart injury (aortic valve replacement) from 1/13/84 to 1/22/2007 and injury to multiple body parts, including cardiovascular system, from 1/13/84 to 5/2/2013, and held that applicant was entitled to benefits from Subsequent Injuries Benefits Trust Fund (SIBTF) under Labor Code § 4751, when WCAB found that...

Independent Medical Review Decisions

CM19-0134943, Lexis Advance

Aqua Therapy—Knee Injury—IMR reviewer overturned UR decision denying request for 8 aqua therapy visits as an alternative to physical therapy for treatment of 48-year old applicant’s chronic knee pain and dysfunction following meniscal surgery. Although the MTUS does not discuss aqua therapy, the ODG recommends... [LexisNexis Commentary: This IMR decision presents a case in which the treating physician believed that applicant would benefit more from aqua therapy than from land-based exercise/physical therapy given her weight bearing restriction following knee surgery. Although the MTUS guidelines do not discuss aquatic therapy, the IMR reviewer found that additional aqua therapy was medically necessary based on the ODG, which recommend aqua therapy to minimize the effect of gravity in cases where weight bearing is limited.]

CM19-0135749, Lexis Advance

Massage Therapy—Upper Extremity Injury—IMR reviewer overturned UR decision denying treating physician’s request for 8 sessions of massage therapy to treat 68-year old applicant’s right shoulder and both wrists and hands. The medical documentation indicated that applicant was currently being treated for bilateral carpal tunnel syndrome, right shoulder pain following surgery, neuropathy of the right upper extremity, myalgia, osteoarthritis of the lumbar region, and chronic pain syndrome. The MTUS 2016 guidelines addressing shoulder conditions, upon which the IMR reviewer... [LexisNexis Commentary: This IMR decision describes a variety of manual therapies and provides insight into what types of therapy will be authorized for different musculoskeletal conditions.]

Prescription Medication—Muscle Relaxants—Flexeril—IMR reviewer upheld UR decision approving 54 of the 60 Flexeril 7.5 mg tablets requested by the treating physician, based on the MTUS guidelines which approve brief use of muscle relaxants, including Flexeril (cyclobenzaprine), as a second- or third-line treatment for acute exacerbations of chronic persistent pain with muscle spasms. Due to the potential for abuse, the guidelines recommend against long term use of muscle relaxants. The recommended duration of use for exacerbations of chronic pain is 2-3 weeks. Here, the documentation indicated that applicant was far outside the initial treatment period and had been prescribed the medication in excess of the guideline recommendations. Moreover, as noted by the IMR... [LexisNexis Commentary: This IMR decision illustrates a situation in which the applicant had been using the muscle relaxant Flexeril far beyond the recommended limits. However, instead of denying the treating physician’s request for 60 pills, UR authorized 54 pills for the purpose of weaning, and the IMR reviewer upheld UR’s attempt to impose a reasonable weaning program.]

CM19-0137422, Lexis Advance

Physical Therapy—Post Shoulder Surgery—IMR reviewer overturned UR decision approving only 10 out of the 12 requested physical therapy sessions to treat 55-year old applicant’s post-operative shoulder condition. Citing the ACOEM guidelines for shoulder disorders, the IMR reviewer explained that physical therapy programs need to be individualized based on a range of factors such as age, pre-operative condition, surgical results, contraindications, and other medical conditions. Further, the IMR reviewer emphasized that continuation of physical therapy must depend on individual progress. The IMR reviewer... [LexisNexis Commentary: The IMR reviewer in this case, who specialized in orthopedic surgery, emphasized that physical therapy programs need to be individualized based on medical condition and a variety of factors, which are specifically identified in the decision. The IMR reviewer also noted that the duration of physical therapy is dependent on an individual’s progress. Overall, the IMR reviewer provides a very solid rationale for allowing the physical therapy sessions decertified by UR.]