24 Jul 2024

California Compensation Cases July 2024

CALIFORNIA COMPENSATION CASES

Vol. 89, No. 7 July 2024

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

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JUST CLICK ON THE CASE NAMES BELOW…

Appellate Court Cases Not Originating with Appeals Board

Chavez v. Alco Harvesting, LLC (2nd—B329282)

Exceptions to Exclusive Remedy Rule—Fraudulent Concealment—COVID-19 Outbreak—Court of Appeal, reversing trial court’s judgment, remanded matter to trial court with instructions to enter new order overruling employer’s demurrer to plaintiff’s complaint alleging that her…

Lim (Thomas) v. City of Downey (2nd—B326822)

Fair Employment and Housing Act—Disability Discrimination—Court of Appeal, affirming trial court’s grant of summary judgment in favor of plaintiff’s former employer City of Downey (City), held that plaintiff who was terminated from his employment after suffering injury while on duty…

Federal Circuit Court Opinion of Related Interest

Olson v. State of California (9th Cir.—21-55757)

Employment Classification—Constitutionality of AB 5—Gig Workers—U.S. Court of Appeals, Ninth Circuit, affirming district court’s orders dismissing plaintiffs’ state and federal Equal Protection claims and denying preliminary injunctive relief, held that AB 5’s differential treatment of…

Appeals Board En Banc Decisions

Gonzalez (Guillermo) v. The Bicycle Casino (WCAB—ADJ12226694, ADJ12414651, ADJ12414992, ADJ12414993)

Sanctions—Bad Faith Actions—WCAB, granting removal on its own motion, en banc, consolidated two cases and issued separate notices of intention to impose costs and sanctions of up to $5,000.00 each against…

Hidalgo (Abel) v. Roman Catholic Archbishop (WCAB—ADJ13332737, ADJ15218980, ADJ12640295)

Sanctions—Bad Faith Actions—WCAB, granting removal on its own motion, en banc, consolidated three cases and issued separate notices of intention to impose costs and sanctions of up to $7,500.00 each against attorney Susan Garrett and hearing representative Lance Garrett pursuant…

Vigil (Sammy) v. County of Kern (WCAB—ADJ11201607 (MF),ADJ11201608)

Permanent Disability—Rating—Combining Multiple Disabilities—WCAB, granting reconsideration, rescinded decision in which WCJ found that injuries sustained by applicant to his hips and back while working as maintenance painter on 12/7/2017 and during cumulative period ending…

Digests of WCAB Decisions Denied Judicial Review

The Cincinnati Reds, LLC v. W.C.A.B. (Fonceca, Chad) (4th—G064089)

WCAB Jurisdiction—Personal Jurisdiction—Professional Athletes—WCAB, denying reconsideration, affirmed WCJ’s decision that WCAB had personal jurisdiction over Cincinnati Reds (Reds) in connection with…

Hagen v. W.C.A.B. (Anguiano, Juan) (2nd—B334001)

Subsequent Injuries Benefits Trust Fund—Threshold Requirements—WCAB, after granting reconsideration, held that pursuant to holdings in Bookout v. W.C.A.B. (1976) 62 Cal. App. 3d 214, 132 Cal. Rptr. 864, 41 Cal. Comp. Cases 595, and Todd v. Subsequent Injuries Benefits Trust Fund (2020) 85 Cal. Comp. Cases 576 (Appeals Board en banc opinion), permanent disability attributable to applicant’s subsequent injury for…

Jacuzzi Whirlpool Bath v. W.C.A.B. (Sanchez, Amado) (2nd—B334973)

Cumulative Trauma—Statute of Limitations—Collateral Estoppel—WCAB, denying reconsideration, affirmed WCJ’s finding that applicant’s claim for cumulative injury to multiple body parts while employed as electrical mechanic, was not barred by doctrine of collateral estoppel…

Wilson (Ronald) v. W.C.A.B. (5th—F086462)

Petitions for Reconsideration—Newly Discovered Evidence—Mistake or Excusable Neglect—WCAB granted reconsideration and, in keeping with substantial justice, treated applicant’s Petition to Reopen WCJ’s award of 36 …percent permanent disability for applicant’s 5/7/2013 back injury as…

Other WCAB Decisions Denied Judicial Review

Acevedo (Rodrigo) v. W.C.A.B. (4th—E083385)

Attorney’s Fees—Commutation of Fee—WCAB, denying reconsideration, affirmed WCJ’s determination that assumed State Average Weekly Wage (SAWW) rate of 3 percent was reasonable for purposes of calculating…

Cedars-Sinai Medical Center v. W.C.A.B. (Young, Karen) (2nd—B335053)

Psychiatric Injury—Burden of Proof—Predominant Cause Standard—WCAB, denying reconsideration, affirmed WCJ’s finding that applicant sustained industrial psychiatric injury during cumulative period ending on 6/23/2020, while employed as medical assistant, when WCAB found…

Independent Medical Review Decisions

CM22-0163094 (1-3-2023)

Durable Medical Equipment—Hitch Mounted Scooter Carrier Rack—Applicant, 68 years old, suffered an industrial injury on 1/18/2019 and was put on modified duty.…[LexisNexis Commentary: This IMR decision illustrates a situation in which evidence-based medical treatment guidelines and peer-reviewed studies need not be cited, because applicant was already provided with an electric mobility scooter and it is obvious that he would need to take the scooter outside of his home.]

CM23-0081775 (7-14-2023)

Ergonomic Adjustable Desk and Work Chair—Applicant, 36 years old, suffered an industrial injury on 4/29/2021 and was undergoing treatment for left shoulder pain, bilateral wrist pain, left elbow pain, bilateral hand pain, myalgia, left elbow lateral epicondyle, low back pain, lumbar region… [LexisNexis Commentary: Not only was the ergonomic desk and chair medically necessary for applicant in this case, but the employer was legally required to provide these accommodations. Also, as applicable here, the ergonomic intervention was supported by the 2023 MTUS/ACOEM Shoulder Disorder guidelines and the 2023 MTUS/ACOEM Hand, Wrist, and Forearm Disorders guidelines, although, surprisingly, it is not addressed in the 2018 Cervical and Thoracic Spine Disorders guidelines or the 2020 Low Back Disorders guidelines.]

CM23-0094439 (8-7-2023)

Personal Assistants—Amputations—Applicant, 52 years old, suffered an industrial injury on 5/12/2022. His injuries included a complete traumatic amputation of his right arm and shoulder, headaches, major depression, and PTSD. On 5/1/2023, applicant’s medical provider requested… [LexisNexis Commentary: The IMR reviewer correctly notes that the MTUS recommends home health care services to overcome deficits in ADLs. That term of art, as it is defined under the AMA Guides to the Evaluation of Permanent Impairment, Fifth Edition, excludes work. However, for purposes of either the AMA Guides or the MTUS, ADLs should not exclude anything normally done in the home. Feeding and caring for pets is akin to other kinds of housework, for which assistance can be part of reasonable and necessary medical care. Although an itemization of all the tasks with which applicant requires assistance, including those that his wife must perform due to applicant’s injury, may be helpful in determining the level of assistance needed, the documentation provided in this case did not make clear why such itemization was required.]

CM23-0094484 (8-10-2023)

TV Bluetooth Device—Hearing Loss—Applicant, 56 years old, suffered an industrial injury on 3/22/97. According to applicant, he developed traumatic hearing loss and tinnitus after having been exposed to gunfire… [LexisNexis Commentary: Although applicant in this case did not sustain a traumatic brain injury, the IMR reviewer applied the MTUS/ACOEM guidelines for traumatic brain injuries to applicant’s hearing loss. Interestingly, the statement provided in these guidelines about hearing aids is preceded by an indication that this section of the MTUS/ACOEM pertains to “reduced hearing or tinnitus, especially but not solely if the mechanism of injury was a blast.”]

CM23-0173252 (1-19-2024)

Orthopedic Beds—Back Pain—Applicant, 71 years old, suffered an industrial injury on 5/1/2000, and was undergoing treatment for lumbar radiculopathy, post-laminectomy syndrome following surgery and… [LexisNexis Commentary: This IMR is useful in that it discusses the MTUS/ACOEM guidelines applicable to sleeping surfaces

for patients with chronic back pain. According to the guidelines, there is no medical basis for a physician to prescribe any particular bed for the prevention or treatment of chronic pain, and the patient must choose a bed based on personal comfort. However, physicians should note that in cases where there is sufficient pain to interfere with sleep, recommendations by the provider for the patient to explore the effect of different surfaces in the home is appropriate.]