California Compensation Cases June 2022

CALIFORNIA COMPENSATION CASES

Vol. 87, No. 6 June 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

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Appellate Court Case Not Originating With Appeals Board

Miles v. Sedgwick Claims Management Services, Inc.,  Lexis

Civil Liability—Defamation—Court of Appeal, affirming trial court’s grant of summary judgment in favor of defendants California Insurance Guarantee Association (CIGA) and third-party claims administrator Sedgwick Claims Management, Inc. (Sedgwick), held that defendants were, as matter of law, not liable in defamation action brought by plaintiff chiropractor who treated injured worker, after Sedgwick sent two letters to injured worker (as well as counsel for injured worker and for CIGA) falsely stating that plaintiff had been indicted for fraud or misuse of Medicare, Medi-Cal, or workers’ compensation system, when Court of Appeal found that though defendants’ statements about plaintiff’s indictment were admittedly false, statements were…

Federal Circuit Court Opinion of Related Interest

Hill v. Walmart Inc.,  Lexis

Employment Relationships—Employees/Independent Contractors—Application of Borello—U.S. Court of Appeals, Ninth Circuit, affirmed district court’s grant of summary judgment for defendant Walmart Inc. (Walmart), in action brought by plaintiff who alleged Walmart owed her penalties in excess of $540,000.00 pursuant to Labor Code § 203 because it failed to pay her immediately after several photo shoots, when Court of Appeals found that though there were disputes of material fact as to Walmart’s defense that plaintiff was independent contractor outside protections of Labor Code, such that Walmart was not entitled to summary judgment regarding plaintiff’s employment status, good-faith mistake about worker’s employment status was...

Digests of WCAB Decisions Denied Judicial Review

Blue and Gold Fleet v. W.C.A.B. (Brazil, Jeremiah),  Lexis

WCAB Jurisdiction—Concurrent State and Federal Jurisdiction—Maritime Workers—WCAB, granting reconsideration, rescinded WCJ’s finding of no concurrent jurisdiction and substituted finding that WCAB had concurrent jurisdiction over applicant’s workers’ compensation claim for 7/8/2014 right knee injury he incurred while working on engine of ferry, which was tied to pier in Fisherman’s Wharf over waters of San Francisco Bay, during his employment as ferry captain who was “seaman” under federal Jones Act (46 U.S.C.S. Appx. § 688), when WCAB found that policy considerations...

City of San Jose Human Resources Department v. W.C.A.B. (Junge, Robert),  Lexis

Permanent Disability—Apportionment—Sufficiency of Medical Evidence—WCAB, granting applicant’s Petition for Reconsideration, reversed WCJ’s award of 70 percent permanent disability, after 30 percent apportionment to non-industrial causes, and found that applicant, while employed as 911 operator during period 7/20/2003 through 10/19/2015, suffered 100 percent permanent disability, without basis for apportionment, when qualified medical evaluator (QME) relied upon by WCJ apportioned 20 percent of applicant’s permanent disability to depression associated with death of his daughter years earlier and 10 percent to chronic neck pain from industrial orthopedic injury for which applicant never filed claim, but QME failed to comply with requirements in Labor Code § 4663 and prior case precedent for establishing apportionment because her apportionment analysis did not discuss how and why non-industrial factors were responsible for specific portion of applicant’s current disability, and instead merely repeated her causation analysis, and WCAB concluded that absent...

Permanent Disability—Rating—Rebuttal of Scheduled Rating—WCAB, denying defendant’s Petition for Reconsideration, held that applicant was 100 percent permanently totally disabled by psychiatric injury he suffered during his employment as 911 operator from 7/20/2003 through 10/19/ 2015, when WCAB found that medical reports coupled with report of applicant’s vocational expert indicating that applicant could not compete in open labor market given his significant limitations and medication reactions, constituted substantial evidence...

State of California, Department of Corrections and Rehabilitation v. W.C.A.B. (Shuere, Peter),  Lexis

Injury AOE/COE—Valley Fever—WCAB granted reconsideration and, in split panel opinion, affirmed WCJ’s finding that applicant, while employed as vocational instructor for State of California Youth Authority during period 1/14/2014 through 6/1/2018, suffered injury AOE/COE to his respiratory system in form of valley fever, when WCAB panel majority found that absent direct evidence of causation, panel qualified medical evaluator’s (PQME) unrebutted opinion indicating there was reasonable medical probability applicant contracted coccidioidomycosis infection during course of his employment because he spent more time outdoors at work, exposed to soil and dust from nearby farmland, than he did elsewhere, was substantial evidence...

Other WCAB Decision Denied Judicial Review

County of Los Angeles v. W.C.A.B. (Kowal, Gus),  Lexis

Petitions for Writ of Review—Dismissal of Premature Petitions—Court of Appeal dismissed defendant’s Petition for Writ of Review, when there was no final decision by WCAB, as matter was returned to trial level by WCAB for WCJ to address in first instance whether applicant was permitted to schedule evaluation with physician he untimely struck from qualified medical evaluator panel.

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.

Castillo (Reyna) v. Midnight Impressions,  Lexis

Medical Treatment—Utilization Review—Traumatic Brain Injury—WCAB, granting reconsideration, affirmed WCJ’s finding that applicant production line worker is entitled to continued outpatient treatment in Casa Colina Hospital Transitional Living Center’s (Casa Colina) multidisciplinary neuro-rehabilitation program (with interpreter and transportation) following 10/13/2017 traumatic brain injury, when defendant’s 7/16/2019 utilization review (UR) denying continued treatment was untimely and, therefore, invalid, and WCAB found that because UR was invalid, WCJ properly exercised jurisdiction over medical necessity dispute, that substantial medical evidence supported WCJ’s award of continued outpatient treatment, where reports of applicant’s treating physician and medical team indicated that while applicant’s condition had improved during course of treatment, she required...

Jamerson (Patrick, Dec’d) v. Commercial Metals Company,  Lexis

Death Benefits—Sufficiency of Applications—WCAB, granting reconsideration, affirmed WCJ’s finding that applicant’s 9/6/2019 application for death benefits was not rendered invalid based on fact that applicant listed three claims on single application rather than filing separate applications for each claim, when WCAB reasoned that workers’ compensation pleadings are to be liberally construed when determining whether pleadings are effective to invoke WCAB’s jurisdiction, that longstanding policy favors, whenever possible, adjudication on merits rather than on technical sufficiency of pleadings, that 8 Cal. Code Reg. § 10617 provides considerable latitude in accepting nonstandard pleadings, so long as pleadings contain sufficient information…

Pascacio (Javier) v. Jacobo Farm Services,  Lexis

Petition to Reopen—Five-Year Statute of Limitations—WCAB, granting reconsideration, rescinded WCJ’s decision that applicant laborer’s claim of new and further disability did not arise within five years from date of injury and remanded matter to trial level for further development of record, when applicant, on 1/5/2016, filed Petition to Reopen his 1/5/2015 Stipulated Award of 17 percent permanent disability for 5/25/2012 low back injury, alleging his condition had worsened, and although no new temporary or permanent disability was found, applicant was referred for surgery, and WCAB reasoned that requisite showing to support assertion of new and further disability is not limited to temporary or permanent disability, but can also include...

Snowden (Michael) v. City of Los Angeles,  Lexis

Presumption of Industrial Causation—Heart Trouble—Peace Officers—WCAB, granting reconsideration, affirmed WCJ’s finding that defendant failed to rebut Labor Code § 3212.5 presumption of industrial causation applicable to applicant police officer’s claim for stroke/neurological injuries caused by heart trouble, despite opinion of agreed medical examiner (AME) that applicant’s stroke resulted from congenital patent foramen ovale and from his personal air travel, which together caused applicant to develop blood clot that entered his brain, when there was conflicting evidence from another AME indicating that presumptively industrial atrial fibrillation documented contemporaneously with applicant’s 8/17/2017 stroke was its cause, and WCAB reasoned that to rebut heart presumption employer has affirmative burden to show…

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.

CM21-0108539,  Lexis

Transforaminal Epidural Injection—Low Back Injury—Applicant, 64 years old, sustained an industrial injury on 9/17/2019. She underwent treatment for cervical radiculopathy, lumbar radiculopathy, lumbar disc degeneration, lumbar spinal stenosis and chronic pain, and was temporarily totally disabled. Applicant reported low back pain radiating to the right lower extremity, rated at 1/10 with medications and 6/10 without medications, in addition to numbness and tingling. Her treating physician requested authorization for L4–L5 and L5–S1 right transforaminal epidural steroid injection with fluoroscopy due to failure of conservative treatment and applicant’s acute exacerbation of lumbar radicular symptoms. The goals of injections were to reduce pain and inflammation, restore range of motion and facilitate progress in more active treatment programs to avoid surgery. UR denied the requested treatment based on the non-MTUS ODG guidelines for low back epidural steroid injections. The IMR reviewer overturned... [LexisNexis Commentary: This IMR provides helpful guidance regarding the applicable guidelines for approval of epidural injections. It also shows the importance of applying the correct guidelines to treatment requests and illustrates the consequences if they are not applied by UR.]

CM21-0109046,  Lexis

Caudal Epidural Steroid Injection—Chronic Pain—Applicant, 61 years old, suffered an industrial injury on 7/27/2009. She underwent treatment for post-laminectomy syndrome with low back-left leg regional sympathetic dystrophy symptoms and lower extremity chronic regional pain syndrome (CRPS), among other complaints, and is not working. Applicant had previously undergone a caudal epidural objection, and her treating physician requested approval for a repeat epidural injection under fluoroscopy. The request was denied by UR based on the non-MTUS ODG for the treatment of low back conditions, without citation to the MTUS guidelines. The IMR reviewer upheld the UR denial based on the 2019 MTUS guidelines for low back disorders, which incorporate guidelines... [LexisNexis Commentary: This IMR decision provides an example of a situation in which the IMR reviewer relied largely on the non-MTUS ODG to deny applicant’s request for a caudal epidural injection, even though the MTUS clearly addresses epidural steroid injections. Unless the ODG recommendations are being used to rebut the MTUS/ACOEM guidelines, reliance on the ODG appears to be a misapplication of the medical evidence search sequence requirements outlined in 8 Cal. Code Reg. § 9792.21.1(a)(2). This could potentially render the IMR appealable per Labor Code § 4616.6(h)(1), as being in excess of the AD’s powers under the current regulations.]

CM21-0110308,  Lexis

Opioid Medication—Oxycodone—Chronic Pain—Applicant, 49 years old, suffered an industrial injury on 2/9/2001. He underwent treatment for lumbar radiculopathy, neck sprain, chronic pain syndrome, post-laminectomy syndrome, thoracic radiculopathy, and gait abnormalities, and was off work. Applicant’s treating physician requested Oxycodone 10mg #90 (down from his previous dosage of Oxycodone #125) but did not suggest an opioid weaning plan. UR modified the original request, and authorized Oxycodone 10mg #90 for weaning purposes. The IMR reviewer upheld the UR modification based on the 2017 MTUS opioids guidelines, noting that the documentation submitted did not indicate... [LexisNexis Commentary: The IMR reviewer in this case did a good job of explaining the MTUS criteria and why the treating physician failed to satisfy the criteria by sufficiently documenting applicant’s recent improvement and showing how it outweighed the potential harms of opioid use. As indicated by the IMR reviewer’s comments on weaning, it is important for applicant’s well-being that the parties in this matter comply with the instructions to wean or taper the Oxycodone, and that the treating physician request an appropriate weaning plan.]

CM21-0113589,  Lexis

Cognitive Behavioral Therapy—Chronic Pain—Applicant, 59 years old, suffered an industrial orthopedic injury on 5/14/2021. Her treating physician requested six cognitive behavioral therapy (CBT) sessions for purposes of pain management. UR denied the requested treatment on the basis that the 2017 MTUS chronic pain guidelines addressing CBT were not met because there was no indication applicant had attended a traditional physical therapy and exercise program prior to requesting CBT. The IMR reviewer overturned the UR denial, noting that... [LexisNexis Commentary: In this case, the MTUS guideline criteria for approval of CBT were not strictly met, but the IMR reviewer nonetheless found medical necessity and certified the treatment on the basis that it would help applicant return to work. The IMR illustrates that though the MTUS guidelines must be applied in evaluating medical treatment requests, the IMR reviewer has discretion regarding how they are applied and may approve treatment based on “sufficient” compliance.]