California: Top 25 Noteworthy Panel Decisions (January through June 2024)

LexisNexis has selected some of the top “noteworthy” panel decisions issued by the California Workers’ Compensation Appeals Board during the period January through June 2024. The first part of this year yielded a number of cases addressing medical-legal procedure, including a decision discussing the requirements that must be met to obtain additional QME panels in different specialties, and another confirming that an employer is liable for the cost of reasonable and necessary medical-legal evaluations performed by an employee’s treating physician. The WCAB also issued some particularly noteworthy decisions regarding medical treatment, with several important cases addressing utilization review and the application of Patterson v. The Oaks Farm (2014) 79 Cal. Comp. Cases 910 (Appeals Board significant panel decision).

In one case, the WCAB panel held that defendant was responsible for replacement of security cameras which were part of a previously-authorized security system installed in applicant’s home. The panel explained that the security system constituted “medical treatment” and rejected defendant’s reliance on Patterson to deny the replacement cameras, noting that durable medical equipment, such as a security system, is distinguishable from the type of intangible medical services addressed in Patterson.

The list also includes two notable COVID-19-related cases. In one, a split panel held that that applicant’s claim for psychiatric injury stemming from defendant’s denial of her request for exemption from its COVID-19 vaccination requirement was not barred by the Labor Code § 3208.3(h) good faith personnel action defense. In the other, the commissioners concluded that the COVID-19 pandemic significantly affected applicant’s last year of earnings and, accordingly, based applicant’s average weekly wage on his pre-pandemic earning capacity pursuant to Labor Code § 4453(c)(4).

Finally, on the issue of reconsideration, the WCAB’s “Top 25” opinion in Mayor v. Ross Valley Sanitary District, PSI, 2024 Cal. Wrk. Comp. P.D. LEXIS 26 (Appeals Board noteworthy panel decision), confirms that despite the Court of Appeal’s recent decision in Zurich American Ins. Co. v. W.C.A.B. (2023) 97 Cal. App. 5th 1213, the commissioners are not abandoning reliance on Shipley v. W.C.A.B. (1992) 7 Cal. App. 4th 1104, 9 Cal. Rptr. 2d 345, 57 Cal. Comp. Cases 493, to provide authority for tolling the 60-day period under Labor Code § 5909.

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, as these decisions are subject to appeal. 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.

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ATTORNEY’S FEES

■Andrew Glick, Applicant v. Swift Transportation Servies, LLC, PSI, administered by Corvel, Defendants, 2024 Cal. Wrk. Comp. P.D. LEXIS 148

W.C.A.B. No. ADJ11799924—WCAB Panel: Commissioners Capurro, Razo, Deputy Commissioner Schmitz (concurring, but not signing)

Workers’ Compensation Appeals Board (Board Panel Decision)

Opinion Filed April 26, 2024

Attorney’s Fees—Permanent Total Disability Awards—Cost of Living Adjustments—WCAB, granting reconsideration, rescinded decision in which WCJ awarded applicant’s attorney fee of $97,275.16, based on present value of applicant’s permanent total disability award, without accounting for annual cost of living adjustments (COLAs), and while WCAB agreed with WCJ’s assessment that 15 percent attorney’s fee was reasonable and appropriate, WCAB disagreed with WCJ’s decision to exclude reasonably anticipated COLAs from attorney’s fee calculation, and, relying on analysis in Wilson v. Piedmont Lumber & Mill Company, 2011 Cal. Wrk. Comp. P.D. LEXIS 196 (Appeals Board noteworthy panel decision), WCAB observed that WCJ’s permanent disability award contemplated lifetime indemnity payments to applicant, including COLA increases specified in Labor Code § 4659(c), that, assuming 3 percent state average weekly wage (SAWW) increase, Disability Evaluation Unit estimated value of applicant’s award as exceeding 1.14 million dollars, that in amending Labor Code § 4659(c) in 2003 to provide for COLAs linked to SAWW, legislature did not change criteria for assessing reasonable attorney’s fees described in Labor Code § 4906(d) or alter present value discount described in Labor Code § 5101(b), and that reasonable assumption of future COLA increases, based on historical assessment of SAWW, including recent trends and consideration of any other relevant factors, provides reasonable basis upon which to calculate attorney’s fees. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 8.08[2], 32.04[3][b]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 7, §§ 7.52, 7.54.]

AVERAGE WEEKLY WAGES

■Javier Hidalgo, Applicant v. Ducoing Management, Inc., Sirius Point America Insurance Company, administered by Corvel, Defendants, 2024 Cal. Wrk. Comp. P.D. LEXIS 82, petition for reconsideration filed 4/30/2024

W.C.A.B. No. ADJ17503090—WCAB Panel: Commissioner Razo, Chair Zalewski, Commissioner Snellings

Workers’ Compensation Appeals Board (Board Panel Decision)

Opinion Filed March 25, 2024

Average Weekly Wages—Calculation—Food and Lodging—WCAB, granting reconsideration and applying removal standard, rescinded decision in which WCJ determined that applicant’s food and lodging allowance were part of his wages for purposes of calculating his temporary disability rate, and WCAB returned matter to WCJ for further proceedings, when Labor Code § 4454 provides that board, lodging, fuel and other advantages are included in determination of average weekly earnings under Labor Code § 4453 if employee received these advantages as part of employee’s remuneration, but are not included if employer pays employee for these costs to cover special expenses entailed by nature of employment, and WCAB explained that determining whether fuel, meals and lodging are “remuneration” or “special expenses” requires analysis of whether they were provided in exchange for services, whether they are advantageous to employee, and whether they are provided to employee only while employee is performing employment duties, and WCAB found that in this case, although applicant received food allowance and stayed in hotels arranged and paid for by his foreman when he worked at jobsites away from home, there was no evidence applicant bargained for payment of food or lodging as part of his remuneration, that record was unclear as to nature of per diem meals and lodging provided to applicant, and that on return to trial level, WCJ must consider whether money applicant received for meals was “special expense” as opposed to “remuneration” for purposes of including these payments in calculation of applicant’s weekly earnings, and whether lodging was expense necessitated by nature of applicant’s employment and whether it provided any bargained-for economic advantage to applicant. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 6.04[4]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 5, § 5.05[1].]

■Hever Rivera Flores, Applicant v. L.A. Specialty Food Produce Company, Inc., Safety National Casualty Corporation, administered by Tristar Risk Management, Defendants, 2024 Cal. Wrk. Comp. P.D. LEXIS 87, petition for writ of review filed 5/13/2024

W.C.A.B. No. ADJ16035179—WCAB Panel: Chair Zalewski, Commissioners Razo, Capurro

Workers’ Compensation Appeals Board (Board Panel Decision)

Opinion Filed March 29, 2024

Average Weekly Wages—Earning Capacity—COVID-19 Pandemic—WCAB, granting reconsideration, rescinded WCJ’s finding that applicant’s average weekly earnings at time of his 8/28/2021 injury for purposes of determining temporary disability rate were $749.42, as calculated under Labor Code § 4453(c)(1) based on applicant’s actual earnings in year prior to his injury, and found that limiting wage analysis to year prior to applicant’s date of injury did not lead to accurate estimate of applicant’s true earning capacity because in year prior to injury, COVID-19 pandemic and its impact on employer’s business resulted in involuntary and significant reduction in applicant’s work hours and wages, that wage capacity analysis set forth in Labor Code § 4453(c)(4), which applies where employee’s earnings at time of injury “cannot be reasonably and fairly applied” and permits consideration of general condition of labor market in wage calculation, more accurately reflected applicant’s true earning capacity at time of his injury, and that pursuant to Labor Code § 4453(c)(4), most accurate representation of applicant’s true earning capacity was his earnings in 2019, which was last full year applicant worked before COVID-19 pandemic caused his hours and wages to drop, and resulted in average weekly earnings of $1,301.46. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 6.02[1], [2], [5]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 5, §§ 5.01, 5.04.]

DISCOVERY

■Jennifer Reveles, Applicant v. State of California Sierra Conservation Center, adjusted by State Compensation Insurance Fund, Defendants, 2024 Cal. Wrk. Comp. P.D. LEXIS 124

W.C.A.B. No. ADJ16783231—WCAB Panel: Commissioner Capurro, Deputy Commissioner Schmitz, Chair Zalewski

Workers’ Compensation Appeals Board (Board Panel Decision)

Opinion Filed April 15, 2024

Discovery—Medical Evidence—WCAB, granting removal, rescinded WCJ’s order requiring applicant to disclose all medical treatment she had received during last 10 years to her neck, upper extremities and wrists, and returned matter to trial level for further proceedings, when WCJ’s order exceeded disclosure mandated under Labor Code § 4663(d), which only requires disclosure of prior permanent disabilities or physical impairments and does not compel disclosure of all prior medical treatment, and WCAB determined that defendant failed to show necessity for written disclosure of medical treatment, which applicant contended was equivalent to written interrogatories, because defendant did not establish that less burdensome vehicles for discovery of desired medical information were unavailable, record reflected no previous unsuccessful discovery efforts by defendant, and, absent showing that no other discovery methods were available, defendant’s requests for written disclosure were unduly burdensome. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 25.40; Rassp & Herlick, California Workers’ Compensation Law, Ch. 15, § 15.45[1].]

EVIDENCE

■Rosario Montes, Applicant v. Westside Children’s Center, State Compensation Insurance Fund, Everest National Insurance Company, administered by Gallagher Bassett Services, Inc., Pacific Employers Insurance Company/ACE American Insurance Company, administered by ESIS, Defendants, 2024 Cal. Wrk. Comp. P.D. LEXIS 121

W.C.A.B. Nos. ADJ11018186, ADJ7088816, ADJ7088813, ADJ7087589, ADJ7088796—WCAB Panel: Commissioners Capurro, Dodd, Deputy Commissioner Schmitz

Workers’ Compensation Appeals Board (Board Panel Decision)

Opinion Filed April 11, 2024

Evidence—Admissibility of Medical Reports—WCAB, granting removal, rescinded WCJ’s order striking reports of agreed medical examiner (AME) who was no longer available for further reporting or cross-examination, and held that AME’s reporting may remain in evidence, when WCAB reasoned that, notwithstanding unavailability of AME, existing reports of prior medical evaluators may contain information helpful to future medical evaluators in assessing injured employee’s condition and also relevant to determination of issues necessary for adjudication of claim, including record of employee’s symptoms, medical history, clinical observations, and diagnostic testing that may be lost over time, and WCAB further found that allowing procedurally or substantively deficient medical-legal reporting to remain in evidence while assigning it appropriate evidentiary weight is consistent with well-established principles favoring broad admissibility of evidence in workers’ compensation proceedings to ensure substantial justice. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 26.06[4], [12][b]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 16, § 16.51.]

INJURY AOE/COE

■Ellie Gonzalez, Applicant v. Los Angeles Unified School District, Sedgwick Claims Management Services, Defendants, 2024 Cal. Wrk. Comp. P.D. LEXIS 50, 89 Cal. Comp. Cases 578

W.C.A.B. No. ADJ12104893—WCAB Panel: Commissioner Capurro, Deputy Commissioner Schmitz, Commissioner Snellings

Workers’ Compensation Appeals Board (Board Panel Decision)

Opinion Filed February 12, 2024

Injury AOE/COE—Valley Fever—Burden of Proof—WCAB, granting reconsideration, rescinded WCJ’s decision denying applicant’s claim for Valley Fever allegedly incurred from exposure to wildfire smoke during her employment as assistant school principal from 12/2/2017 through 6/15/2018, and WCAB returned matter to trial level for clarification of various unresolved factual and medical issues, when WCAB found that in denying applicant’s claim, WCJ appeared to misunderstand applicant’s burden of proof, that WCJ erroneously indicated applicant was required to testify under oath to establish that she was exposed to wildfire smoke while at work, but medical reports describing applicant’s significant exposure were sufficient evidence to establish exposure, that to extent WCJ relied on applicant’s testimony regarding factors requiring scientific expertise to deny applicant’s claim, such reliance was erroneous, as injured workers are neither qualified nor required to provide expert scientific testimony, that applicant’s burden of proving she was exposed to wildfire smoke and fungal spores was one of reasonable probability, not scientific certainty, and that record requires further development with respect to whether applicant was exposed to fungal spores in air where she worked, either in conjunction with or in addition to smoke from wildfires, and with supplemental medical opinion to address latency period of Valley Fever, and while WCAB recognized that presence of conflicting medical opinions on issues like latency may not justify further development of medical record in every case, there was wide divergence of medical opinion concerning latency period of Valley Fever in this matter, plus there was need to reevaluate issue of latency in context of particular facts of this case. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 4.71; Rassp & Herlick, California Workers’ Compensation Law, Ch. 10, § 10.06[5].]

■Dima Pislar, Applicant v. UC Davis Medical Center, PSI and administered by Sedgwick Claims Management Services, Inc., Defendants, 2024 Cal. Wrk. Comp. P.D. LEXIS 125

W.C.A.B. No. ADJ17619294—WCAB Panel: Commissioner Dodd, Chair Zalewski, Commissioner Snellings (concurring, but not signing)

Workers’ Compensation Appeals Board (Board Panel Decision)

Opinion Filed April 12, 2024

Injury AOE/COE—Going and Coming Rule—Special Mission Exception—WCAB, denying reconsideration, affirmed WCJ’s decision that applicant, employed as registered nurse, sustained industrial injury in automobile accident on 2/14/2023, and that “going and coming” rule did not bar applicant’s right to compensation based on “special mission” exception, when accident occurred while applicant was driving to two-hour class scheduled outside his regular work hours, which employer required that he attend along with all first-year nurses, and WCAB found that applicant’s engagement in educational activity involving lecture or lab-based classes outside his normal work shift, although located on same campus where applicant worked, was undeniably and fundamentally distinct from applicant’s primary job duty of caring for trauma patients, and that applicant’s concurrently-required educational classes mandated as part of his employment did not constitute normal work routine rendering travel to and from those classes barred under “going and coming” rule. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 4.157; Rassp & Herlick, California Workers’ Compensation Law, Ch. 10, § 10.05[3][d][iv], [8].]

JURISDICTION

■Robert Holmberg, Applicant v. Oakland Raiders insured by HIH American Insurance and Star Insurance, administered by AmeriTrust, Indianapolis Colts insured by State Compensation Insurance Fund, New York Jets insured by Reliance Insurance Company, in liquidation, administered by the California Insurance Guarantee Association (CIGA), Minnesota Vikings, PSI, Minnesota Vikings, insured by Reliance Insurance Company, in liquidation, administered by CIGA, New England Patriots, insured by Liberty Mutual, Carolina Panthers, insured by Legions Insurance Company, in liquidation, administered by CIGA, Green Bay Packers, insured by Travelers, Defendants, 2024 Cal. Wrk. Comp. P.D. LEXIS 17, 89 Cal. Comp. Cases 356

W.C.A.B. Nos. ADJ10874193, ADJ10874229—WCAB Panel: Commissioners Snellings, Razo, Chair Zalewski

Workers’ Compensation Appeals Board (Board Panel Decision)

Opinion Filed January 11, 2024

WCAB Jurisdiction—Professional Athletes—WCAB, after granting reconsideration, affirmed WCJ’s finding that California had jurisdiction over applicant professional football player’s claim of industrial injury while employed by multiple football teams between 1994 and 2002, when WCAB found that California jurisdiction was established based on applicant’s hiring by California-based Oakland Raiders and subsequent four years of regular employment in California (which encompassed substantial portion of applicant’s cumulative injury), thereby giving California legitimate interest in applicant’s workers’ compensation claim, that California’s interest in applicant’s claim was further supported by provisions in Labor Code §§ 5000, 5305 and 3600.5, that choice of law/forum selection clause in applicant’s employment agreement with defendant Green Bay Packers (Packers) was not enforceable because it contravened California’s public policy, and  Packers failed to establish that choice of law/forum selection clause overrode California’s interest in adjudicating applicant’s injury claim, that in determining jurisdiction, due process analysis is not limited to one-year period of liability in Labor Code § 5500.5, but must encompass entirety of applicant’s claimed injury, and that Travelers, on behalf of Packers, waived defense of lack of personal jurisdiction, where Travelers did not specifically contest personal jurisdiction and, additionally, did not seek dismissal on grounds of lack of personal jurisdiction, substantively participated in discovery efforts, and did not timely specify nature of its special appearance. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 3.22[2], [3], 21.02, 21.06, 21.07[5]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 13, §§ 13.01[2], 13.02.]

■Heriberto Solis, Applicant v. Kansas City Royals, ACE American Insurance Company/Chubb, administered by Gallagher Bassett and Sedgwick CMS, Windy City Thunderbolts, Virginia Surety Company, administered by Sedgwick CMS, Defendants, 2024 Cal. Wrk. Comp. P.D. LEXIS 69

W.C.A.B. No. ADJ16588373—WCAB Panel: Commissioner Snellings, Chair Zalewski, Commissioner Razo

Workers’ Compensation Appeals Board (Board Panel Decision)

Opinion Filed March 1, 2024

WCAB Jurisdiction—Personal Jurisdiction—WCAB, granting reconsideration and rescinding WCJ’s decision, held that Windy City Thunderbolts (Thunderbolts) made general appearance in this matter and, as such, waived defense of lack of personal jurisdiction in connection with applicant’s California claim for cumulative injury incurred while employed as professional baseball player by Thunderbolts and Kansas City Royals (Royals) between 6/19/2003 to 10/1/2006, when WCAB reasoned that while California may only exercise jurisdiction over nonresident defendant when defendant has certain minimum contacts with state, in keeping with due process, personal jurisdiction is automatically waived by general appearance in action, and notwithstanding party’s initial assertion that it is “specially appearing,” subsequent appearance by party for reasons other than contesting personal jurisdiction constitutes general appearance, and that, in this matter, Thunderbolts filed Notice of Representation, appeared at Mandatory Settlement Conference, and requested that WCJ grant discovery continuance, all without assertion of special appearance, thereby generally appearing in matter for purpose of waiving personal jurisdiction defense; WCAB also concluded that WCJ’s finding that development of record was necessary to determine issue of personal jurisdiction with respect to Royals was interim order subject to removal and, applying removal standard, affirmed WCJ’s determination regarding development of record. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 22.11[7]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 16, § 16.53[7].]

MEDICAL-LEGAL PROCEDURE

■Nikolas Ferioli, Applicant v. NASSCO, PSI, Defendant, 2024 Cal. Wrk. Comp. P.D. LEXIS 1, 89 Cal. Comp. Cases 241

W.C.A.B. No. ADJ10385820—WCAB Panel: Commissioners Snellings, Capurro, Chair Zalewski

Workers’ Compensation Appeals Board (Board Panel Decision)

Opinion Filed January 2, 2024

Medical-Legal Procedure—Comprehensive Medical-Legal Reports—Admissibility—WCAB, granting reconsideration, rescinded decision in which WCJ found that supplemental report of toxicologist Charles Munday, M.D., obtained by defendant in applicant’s pending federal workers’ compensation case, could not be submitted to qualified medical evaluator (QME) in applicant’s California workers’ compensation case because Dr. Munday was not treating or consulting physician under Labor Code § 4600, 4062.1 or 4605, and WCAB returned matter to WCAB for further proceedings, when WCAB found that Labor Code § 4605 was irrelevant to issue of submission of Dr. Munday’s report to QME, as report was obtained by defendant, not by applicant, that issue to be addressed on remand is whether Dr. Munday’s supplemental report constituted comprehensive medical-legal evaluation, as contemplated in Labor Code §§ 4060 and 4062.2, that if WCJ finds that supplemental report is comprehensive medical-legal report, and it was obtained outside mandated procedures of Labor Code §§ 4060 and 4062.2, it is inadmissible, and under 8 Cal. Code Reg. § 35(e) may not be submitted to QME, and that in addition to whether Dr. Munday’s supplemental report constitutes comprehensive medical-legal evaluation obtained in compliance with Labor Code §§ 4060 and 4062.2, WCJ must address issue of whether applicant waived his objection to submission of any reporting from Dr. Munday to QME by previously agreeing to submit Dr. Munday’s initial report to QME. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 22.06[1][a], [7]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 15, §§ 15.03[1], 15.03[4][b]; Ch. 16, § 16.51[6].]

■Sharquent Jacobs, Applicant v. Trident Maritime Systems, Travelers Diamond Bar, Defendants, 2024 Cal. Wrk. Comp. P.D. LEXIS 47, 89 Cal. Comp. Cases 588

W.C.A.B. No. ADJ15208827—WCAB Panel: Commissioners Snellings, Capurro, Razo

Workers’ Compensation Appeals Board (Board Panel Decision)

Opinion Filed February 20, 2024

Medical-Legal Procedure—Comprehensive Medical-Legal Reports—Admissibility—WCAB, denying reconsideration based on removal standard, affirmed WCJ’s finding that reports of independent medical evaluator, James Fait, M.D., prepared in connection with applicant’s Longshore and Harbor Workers’ Compensation Act case may be provided to applicant’s primary treating physician (PTP) and qualified medical evaluator (QME) in his concurrent California workers’ compensation proceeding, and WCAB rejected applicant’s assertion that it would be improper under Batten v. W.C.A.B. (2015) 241 Cal. App. 4th 1009, 194 Cal. Rptr. 3d 511, 80 Cal. Comp. Cases 1256, to provide Dr. Fait’s reports to PTP and QME because those reports were not admissible in California workers’ compensation proceedings pursuant Labor Code §§ 4061(i) and 4062.2, when WCAB reasoned that issue in this case was different from that in Batten because, unlike medical reports in Batten, Dr. Fait’s reports were not those of physician privately retained solely for purpose of rebutting opinion of QME and were relevant to determination of medical issues in applicant’s California workers’ compensation case, and WCAB concluded that Dr. Fait’s reports should be provided to PTP and QME pursuant to Labor Code § 4062.3(a), which permits party to provide medical-legal evaluator with medical records “relevant to determination of the medical issue.” [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 22.04, 22.06[1][a], [7]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 15, §§ 15.03[1], 15.03[4][b]; Ch. 16, § 16.51[6].]

■Ramberto Salcido, Applicant v. Waste Management Collection and Recycling, ACE American Ins. Co., adjusted by Gallagher Bassett, Defendants, 2024 Cal. Wrk. Comp. P.D. LEXIS 63

W.C.A.B. No. ADJ11237703—WCAB Panel: Commissioners Razo, Snellings, Deputy Commissioner Schmitz

Workers’ Compensation Appeals Board (Board Panel Decision)

Opinion Filed February 21, 2024

Medical-Legal Procedure—Additional Qualified Medical Evaluator Panels—WCAB, granting reconsideration and applying removal standard, reversed WCJ’s finding and held that applicant who filed claim for orthopedic and internal injuries through end of his employment on 1/4/2018 was entitled to additional qualified medical evaluator (QME) panel in specialty of internal medicine/gastroenterology based on testimony of orthopedic QME that it would be appropriate for different specialist to evaluate applicant’s internal injuries, even though no treating physician reported that applicant sustained injuries other than orthopedic injuries, when WCAB reasoned that under 8 Cal. Code Reg. § 31.7(b), additional panel shall issue upon showing of good cause that QME panel in different specialty is needed, that obtaining opinion of primary treating physician and then objecting per Labor Code § 4062 is one way to show good cause, that another way to show good cause is to ask currently-serving QME whether they are capable of commenting upon all disputed issues in case, which applicant here did, and that if currently-serving PQME is not capable of resolving all disputed medical issues, good cause exists to order additional panel; although defendant asserted that applicant could allege body part without any medical evidence of industrial injury and immediately be entitled to new QME specialty, WCAB pointed out that, in many cases, including instant case (where claim was denied), injured employee’s initial QME appointment is obtained based solely on allegations of injury, without any reporting of primary treating physician, that allegations of injury to other body systems should be treated similarly, and that while need for expeditions resolution of cases is paramount in workers’ compensation proceedings, sufficient remedies exist to combat those rare cases where litigant may request additional panels frivolously or in bad faith. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 22.11[7]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 16, § 16.53[7].]

■Domonique Lopez, Applicant v. Albertsons, PSI, administered by Sedgwick Claims Management Services, Inc., Defendants, 2024 Cal. Wrk. Comp. P.D. LEXIS 112

W.C.A.B. No. ADJ14743350—WCAB Panel: Commissioner Dodd, Chair Zalewski, Commissioner Snellings

Workers’ Compensation Appeals Board (Board Panel Decision)

Opinion Filed April 8, 2024

Medical-Legal Procedure—Treating Physician’s Report as Reimbursable Medical-Legal Expense—WCAB, granting reconsideration, rescinded decision in which WCJ determined that report of treating physician obtained by applicant to address issue of causation was not reimbursable medical-legal expense as applicant was only entitled to obtain report from panel qualified medical evaluator (PQME) under Labor Code § 4062.2, when WCAB reasoned that Labor Code §§ 4060(b), 4620(a) and 4064(a), read together, provide that medical-legal evaluation performed by employee’s treating physician is medical-legal evaluation obtained pursuant to Labor Code § 4060, and that employer is liable for cost of reasonable and necessary medical-legal evaluations that are performed by treating physician, and WCAB determined that, in instant case, reports from both PQME and primary treating physician were relevant, admissible and could provide basis for decision, and that if lien claimant can demonstrate, on remand, that primary treating physician’s medical-legal report was reasonable and necessary, it is entitled to reimbursement for report. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 22.06[7]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 15, § 15.03[2].]

■Ruth Serrano, Applicant v. Nova Commercial Company, Inc., and Cypress Insurance Company, administered by Berkshire Hathaway Homestate Companies, Defendants, 2024 Cal. Wrk. Comp. P.D. LEXIS 123

W.C.A.B. No. ADJ10746901—WCAB Panel: Commissioners Razo, Snellings, Deputy Commissioner Schmitz

Workers’ Compensation Appeals Board (Board Panel Decision)

Opinion Filed April 11, 2024

Medical-Legal Procedure—Disputed Medical Treatment—WCAB, granting reconsideration and amending WCJ’s decision, held that report from medical provider network independent medical review (MPN-IMR) physician was substantial evidence that applicant needed and was entitled to left hip biopsy surgery to remove hip mass as diagnostic procedure, but that this physician could not address question of whether applicant needed left hip surgery on industrial basis nor could his report be sent to orthopedic qualified medical evaluator (QME) for review, when WCAB reasoned that language of Labor Code § 4616.4(b), addressing MPN-IMR process, clearly states that MPN-IMR evaluation pertains only to “disputed treatment or diagnostic service still in dispute,” thereby precluding MPN-IMR physician from addressing causation of injured worker’s condition, that, consequently, MPN-IMR physician’s opinion in this matter that applicant’s left hip mass was nonindustrial and should be treated on nonindustrial basis could not be considered, although physician’s report did constitute evidence that hip surgery/biopsy was necessary diagnostic test regarding nature of applicant’s left hip condition, and that because applicant’s need for hip surgery/biopsy was disputed medical treatment issue, QME was precluded under 8 Cal. Code Reg. § 35.5 from addressing issue, and there was no reason to provide him with MPN-IMR physician’s report. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 5.03[4], [5], 22.11[11]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 4, § 4.12[8], [9], 4.18; Ch. 16, § 16.53[11].]

MEDICAL PROVIDER NETWORKS

■Francisco Gonzalez, Applicant v. Vermont Healthcare Center, LLC, and CompWest Insurance Company, Defendants, 2024 Cal. Wrk. Comp. P.D. LEXIS 18

W.C.A.B. No. ADJ12673751—WCJ Jerilyn Cohen (LAO); WCAB Panel: Commissioners Capurro, Snellings, Razo

Workers’ Compensation Appeals Board (Board Panel Decision)

Opinion Filed February 7, 2024

Medical Provider Networks—Release from Medical Care—Second Opinion Process—WCAB, granting reconsideration, held that applicant who was industrially-exposed to tuberculosis while employed as certified nurse assistant on 5/6/2019 was not permitted to designate new treating physician within defendant’s medical provider network (MPN) under Labor Code § 4616.3 and 8 Cal. Code Reg. § 9785(b)(3), and was not entitled to treat outside MPN based on alleged denial of medical care, after applicant’s primary treating physician within MPN determined that applicant’s exposure did not result in tuberculosis infection (based on negative test result) and released applicant from further medical treatment, when WCAB, relying on prior panel decisions analyzing issue, found that dispute over release from medical care does not constitute dispute over “diagnosis or recommendation for medical treatment” for purposes of applying second opinion process in Labor Code §§ 4616.3 and 4616.4, nor does request for second opinion MPN physician constitute request for authorization of medical treatment, that applicant’s argument that she was entitled to designate new treating physician under Labor Code § 4616.3 and 8 Cal. Code Reg. § 9785(b)(3) misconstrued these provisions, and that applicant was entitled to no further medical treatment at defendant’s expense without first being evaluated by panel QME pursuant to Labor Code § 4061 or 4062, but because WCJ did not address issue raised at trial as to whether applicant waived right to evaluation by panel qualified medical evaluator (QME), and record contained no evidence pertaining to this issue, matter must be returned to trial level for further development of record regarding applicant’s right to QME evaluation. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 5.03[4], [5]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 4, § 4.12[8], [9].]

MEDICAL TREATMENT

■Linda Burton, Applicant v. Los Angeles County Metropolitan Transit Authority, PSI, Defendant, 2024 Cal. Wrk. Comp. P.D. LEXIS 51, petition for writ of review filed 4/2/2024

W.C.A.B. Nos. ADJ12874580, ADJ12874605—WCJ Clint Feddersen (VNO); WCAB Panel: Chair Zalewski, Commissioner Capurro, Deputy Commissioner Sussman

Workers’ Compensation Appeals Board (Board Panel Decision)

Opinion Filed February 23, 2024

Medical Treatment—Utilization Review—Termination of Inpatient Care—Change of Circumstances—WCAB, denying reconsideration, affirmed WCJ’s finding that based on rationale in Patterson v. The Oaks Farm (2014) 79 Cal. Comp. Cases 910 (Appeals Board significant panel decision), applicant who suffered industrial injury to her back, neck, shoulders, and psyche while working as bus driver on 8/6/2019 was entitled to continued inpatient care at Casa Colina until such time as defendant establishes change in applicant’s condition or circumstance sufficient to show inpatient care is no longer necessary, that after inpatient care at Casa Colina was certified by 3/11/2022 utilization review (UR), Casa Colina was not required to submit requests for authorization (RFA) for applicant to obtain ongoing inpatient care, that any RFA submitted by Casa Colina without evidence of changed circumstances should not have been submitted to UR by defendant, and, consequently, defendant’s unilateral termination of applicant’s medical care at Casa Colina based on 8/30/2023 UR non-certification was improper, that evidence of applicant’s worsening condition did not constitute change in circumstances warranting cessation of inpatient treatment, but instead provided greater support for continuation of inpatient care, that WCJ was not required to order Casa Colina to create discharge plan for applicant pursuant to Labor Code § 4610(i)(4)(C) because course of medical treatment should be determined by treating physician subject to UR and independent medical review, and that defendant’s request that Jeffrey Kinney, RN, be permitted access to Casa Colina for observation and participation in discharge plan was properly denied because services of nurse case manager constitute medical treatment under Labor Code § 4600, and, accordingly, applicant had right to select her own nurse case manager from defendant’s medical provider network pursuant to Labor Code § 4600(c). [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 5.02[2][a]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 4, § 4.05[2].]

■Chris Derboghossian, Applicant v. All Tune & Lube, Erie Insurance Company, administered by Southland Claims, Defendants, 2024 Cal. Wrk. Comp. P.D. LEXIS 85

W.C.A.B. Nos. ADJ3107843 (MON 0208626)—WCJ M. Victor Bushin (VNO); WCAB Panel: Commissioner Capurro, Chair Zalewski, Deputy Commissioner Schmitz

Workers’ Compensation Appeals Board (Board Panel Decision)

Opinion Filed March 18, 2024

Medical Treatment—Durable Medical Equipment—WCAB, after granting reconsideration, affirmed WCJ’s finding that defendant was liable for Labor Code § 5814 penalties and associated attorney’s fees for delaying reimbursement of replacement security cameras, which were part of security system defendant had previously authorized and installed in applicant’s home, when WCAB found that security system constituted “medical treatment,” as it was prescribed by doctor to assist applicant who was permanently totally disabled by 6/12/94 industrial injury resulting in blindness and psychiatric injury, and that once piece of durable equipment is provided to employee as form of medical treatment, defendant is obligated to maintain it; WCAB further found that defendant’s reliance on holding in Patterson v. The Oaks Farm (2014) 79 Cal. Comp. Cases 910 (Appeals Board significant panel decision), to assert that it was not required to replace cameras was misplaced, because Patterson involved provision of intangible services whereas this matter involved durable medical equipment. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 5.04[9][b]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 4, §§ 4.01[1], 4.05[6].]

■Precious Castellanos, Applicant v. Best Buy Co., Inc., XL Insurance America, Inc., administered by Sedgwick CMS, Defendants, 2024 Cal. Wrk. Comp. P.D. LEXIS 122

W.C.A.B. No. ADJ18538112—WCAB Panel: Commissioners Razo, Dodd, Chair Zalewski

Workers’ Compensation Appeals Board (Board Panel Decision)

Opinion Filed May 10, 2024

Medical Treatment—Utilization Review—Requirements for Expedited Review—WCAB, denying reconsideration based on removal standard, affirmed WCJ’s finding that defendant’s 1/10/2024 utilization review (UR) decision denying treating physician’s request for authorization (RFA) of outpatient transitional living center program and associated treatment modalities was timely issued within five business days of receipt of RFA, as required by Labor Code § 4610(i)(3), and that expedited review of RFA within 72 hours, pursuant to 8 Cal. Code Reg. § 9792.9.1(c)(4), was not required notwithstanding checked box on RFA indicating need for expedited review, where RFA and supporting documentation failed to establish that applicant, who alleged she sustained injury to her head, brain, neck, and right arm while employed as customer service specialist on 11/26/2023, faced imminent or serious threat to her health or safety, or that decision issued in normal UR timeframe would be detrimental to her condition. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 5.02[2][c]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 4, § 4.10[5], [6].]

■Robert Acevedo, Applicant v. Old Dominion Freight Line, Inc., and ACE American Insurance Company, administered by Gallagher Bassett Services, Inc., Defendants, 2024 Cal. Wrk. Comp. P.D. LEXIS 141

W.C.A.B. No. ADJ12595156—WCJ Robert Sommer (VNO); WCAB Panel: Deputy Commissioner Schmitz, Commissioners Razo, Snellings

Workers’ Compensation Appeals Board (Board Panel Decision)

Opinion Filed April 29, 2024

Medical Treatment—Utilization Review—Consulting Physician Reports—WCAB Jurisdiction—WCAB, after granting reconsideration, affirmed WCJ’s finding that diagnostic medical testing requested by consulting neurologist in connection with applicant truck driver’s 9/26/2019 injury to his brain and other body parts, did not constitute medical treatment subject to utilization review and independent medical review processes, and, therefore, WCJ had jurisdiction to address reasonableness and necessity of medical testing, when WCAB found that consulting physician’s report was more similar to medical-legal report than medical treatment report, as requested testing, which included EEG, cognitive testing, and brain MRI, was ordered to determine impairment ratings, future medical care, and work limitations, and consulting physician was never designated as treating physician, nor did he ever provide any medical treatment pursuant to Labor Code § 4600. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 5.02[2][d], 22.05[6][b][iv]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 4, § 4.10[7].]

PERMANENT DISABILITY

■Charlotte Utsey, Applicant v. National Courier Systems, and Superior National Insurance, in liquidation, administered by California Insurance Guarantee Association, City of Oakland, PSI, administered by JT2 Integrated Resources, Defendants, 2024 Cal. Wrk. Comp. P.D. LEXIS 105, petition for writ of review filed 5/13/2024

W.C.A.B. Nos. ADJ3762315 (OAK 0266269), ADJ946031 (SFO 0394259), ADJ17114655—WCJ Lilla J. Szelenyi (OAK); WCAB Panel: Chair Zalewski, Commissioners Capurro, Razo (dissenting)

Workers’ Compensation Appeals Board (Board Panel Decision)

Opinion Filed March 29, 2024

Permanent Disability—Apportionment—Nonindustrial Factors—Benson Exception—WCAB, in split panel opinion, affirmed WCJ’s finding that applicant was entitled to unapportioned award of 100 percent permanent disability for three industrial injuries (one while employed as courier on 11/2/94 and two others while working for different employer on 5/4/99 and during cumulative period through 5/9/99), when (1) WCAB panel majority concurred with WCJ’s determination that opinion of agreed medical examiner (AME) was not substantial evidence under Labor Code § 4663(c) and Escobedo v. Marshalls (2005) 70 Cal. Comp. Cases 604 (Appeals Board en banc opinion), to support apportionment of permanent disability to nonindustrial factors based on applicant’s obesity and preexisting right knee problems, because AME did not adequately explain how and why applicant’s obesity and prior right knee problems were causing permanent disability at time of his evaluations in 2017 and 2018 or how and why those conditions were responsible for 25 percent of her permanent total disability, AME also failed to describe in detail exact nature of applicant’s apportionable disability, and AME’s opinion was inconsistent, suggesting that it was founded in speculation, and (2) WCAB panel majority further found that WCJ properly issued combined award of permanent disability for applicant’s three injuries, rather than separate awards pursuant to Benson v. W.C.A.B. (2009) 170 Cal. App. 4th 1535, 89 Cal. Rptr. 3d 166, 74 Cal. Comp. Cases 113, where AME testified, with respect to apportionment between injuries, that “it’s kind of hard to separate everything out,” which WCAB understood to mean that it was virtually impossible to apportion disability between applicant’s injuries, thereby requiring combined permanent disability award, and WCAB noted that absence of specific testimony from AME that applicant’s disabilities from injuries were “inextricably intertwined” was not basis to conclude that it was legally possible to apportion them so as to require separate awards; Commissioner Razo, dissenting, believed that WCJ applied incorrect legal standard to AME’s apportionment opinion by requiring scientific certainty rather than reasonable medical probability, and by applying more stringent standard to prove apportionment than that set forth in Escobedo, and Commissioner Razo opined that AME amply explained industrial and nonindustrial causes of applicant’s permanent disability and percentage of disability attributable to each injury to degree of reasonable medical probability, that AME’s opinion was not speculative but was instead properly based on applicant’s medical history, medical records and his own evaluations, and that AME’s opinion was sufficient to support 25 percent apportionment of applicant’s overall disability to nonindustrial factors and to require two separate permanent disability awards with equal apportionment between applicant’s 1994 and 1999 specific injuries, consistent with Benson. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 8.02[3], 8.05[1]-[3], 8.06[1], 8.07[2][d][ii], 32.03A[1]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 7, §§ 7.12[2], 7.40, 7.41, 7.42[2]; The Lawyer’s Guide to the AMA Guides and California Workers’ Compensation, Chs. 5, 6.]

■Matthew Hunt, Applicant v. California Highway Patrol, Legally Uninsured, administered by State Compensation Insurance Fund, Defendants, 2024 Cal. Wrk. Comp. P.D. LEXIS 27, 89 Cal. Comp. Cases 371

W.C.A.B. No. ADJ13285870—WCAB Panel: Commissioner Capurro, Deputy Commissioner Schmitz, Commissioner Snellings

Workers’ Compensation Appeals Board (Board Panel Decision)

Opinion Filed January 19, 2024

Permanent Disability—Rating—Lifetime Cap on Award for Same Body Regions—WCAB, denying reconsideration, affirmed WCJ’s award of 43 percent permanent disability for industrial injuries to applicant’s low back, heart (hypertension), psyche, abdomen/groin (in form of prostate cancer), and in forms of hemorrhoids, hernia, and GERD, incurred while he was employed as highway patrol officer from 3/13/97 to 5/13/2020, when applicant had previously received award of 66 percent permanent disability for injury to his heart/hypertension, and WCAB concluded that WCJ properly applied 100 percent lifetime cap to applicant’s prior and current disabilities for body regions specified in Labor Code § 4664(c)(1)(G), and then appropriately combined those disabilities with applicant’s disabilities arising from other body regions described in Labor Code § 4664(c)(1), and WCAB found that although presumptively compensable injuries are not subject to apportionment under Labor Code § 4664(a) and (b) based on non-attribution provisions in Labor Code § 4663(e), non-attribution provisions do not preclude application of lifetime accumulative limit set forth in Labor Code § 4664(c), because, contrary to applicant’s assertion, Labor Code § 4664(c) is distinguishable from apportionment requirements in Labor Code § 4664(a) and (b), in that Labor Code § 4664(c) does not concern causal attribution, but rather is lifetime accumulative limit to permanent disability arising out of injuries to statutorily-defined body regions. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 8.06[5][d], 8.07[2]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 7, § 7.42[3]; The Lawyer’s Guide to the AMA Guides and California Workers’ Compensation, Ch. 6.]

■Michael Rose, Applicant v. Los Angeles Dodgers, ACE American Insurance/Chubb, Defendants, 2024 Cal. Wrk. Comp. P.D. LEXIS 77

W.C.A.B. No. ADJ9095312—WCJ Marco Famiglietti (ANA); WCAB Panel: Chair Zalewski, Commissioners Capurro, Razo

Workers’ Compensation Appeals Board (Board Panel Decision)

Opinion Filed February 29, 2024

Permanent Disability—Rating—Presumption of Permanent Total Disability—Mental Incapacity—WCAB, granting reconsideration, rescinded WCJ’s finding that applicant who suffered brain injury (in addition to other injuries) while playing professional baseball from 6/5/95 to 9/2/2010 did not suffer cognitive impairment of sufficient severity to justify application of Labor Code § 4662(a)(4)’s conclusive presumption of permanent total disability for mental incapacity, and WCAB deferred issue of applicability of Labor Code § 4662(a)(4) pending further development of medical evidence addressing this issue, when WCAB agreed with WCJ that applicability of Labor Code § 4662(a)(4) requires showing of brain injury resulting in profound cognitive impairment as described in medical evidence, which WCAB noted is highly relevant to any determination concerning presumptive total disability, but WCAB concluded that further development of medical record was required in this case to make determination regarding whether applicant’s cognitive impairment satisfied Labor Code § 4662(a)(4)’s severe impairment requirement. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 8.02[3], [4], 32.02[2][a], 32.03A; Rassp & Herlick, California Workers’ Compensation Law, Ch. 7, §§ 7.11, 7.12; The Lawyer’s Guide to the AMA Guides and California Workers’ Compensation, Ch. 7.]

Permanent Disability—Rating—Rebuttal of Scheduled Rating—WCAB, after granting reconsideration, affirmed WCJ’s decision that there was no basis to find applicant professional baseball player’s disability permanent and total “in accordance with the fact” pursuant to Labor Code § 4662(b) or based on his diminished future earning capacity, when WCAB reasoned that Court of Appeal in Dept. of Corrections & Rehabilitation v. W.C.A.B. (Fitzpatrick) (2018) 27 Cal. App. 5th 607, 238 Cal. Rptr. 3d 224, 83 Cal. Comp. Cases 1680, clarified that Labor Code § 4662(b) does not provide independent path to permanent total disability finding separate from Labor Code § 4660, and, with respect to applicant’s earning capacity, vocational expert opinion obtained by applicant was not substantial evidence to support award of permanent total disability because vocational expert misinterpreted medical evidence in determining applicant’s vocational feasibility and substituted impermissible vocational apportionment in place of valid medical apportionment, contrary to Labor Code § 4663 and Nunes (Grace) v. State of California, Department of Motor Vehicles (2023) 88 Cal. Comp. Cases 741 (Appeals Board En Banc opinion), by discounting nonindustrial apportionment identified by evaluating physicians. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 8.02[3], [4], 8.05[2], 8.06[1], 32.01[3][a][ii], 32.03A; Rassp & Herlick, California Workers’ Compensation Law, Ch. 7, §§ 7.05[3][d], 7.12[2][a], [d][iii], 7.40, 7.41, 7.42[2]; The Lawyer’s Guide to the AMA Guides and California Workers’ Compensation, Chs. 6, 7.]

Permanent Disability—WCAB’s Reservation of Jurisdiction for Progressive Insidious Diseases—WCAB, granting reconsideration, returned matter to trial level on issue of whether applicant who suffered cumulative trauma to multiple body parts while playing professional baseball from 6/5/95 to 9/2/2010 sustained chronic traumatic encephalopathy (CTE) in addition to his other alleged injuries and, if so, whether CTE constitutes insidious and progressive disease warranting WCAB’s reservation of jurisdiction over issue of permanent disability pursuant to General Foundry Service v. W.C.A.B. (Jackson) (1986) 42 Cal. 3d 331, 721 P.2d 124, 228 Cal. Rtpr. 243, 51 Cal. Comp. Cases 375, when WCAB found that there was no comprehensive medical-legal reporting identifying existence of CTE in applicant’s case or characterizing CTE as insidious, progressive disease, and that record requires further development regarding whether applicant has established diagnosis of CTE or similar injury and, per Ruffin v. Olson Glass Co. (1987) 52 Cal. Comp. Cases 335 (Appeals Board En Banc Opinion), whether such injury was caused by “remote” and “undramatic” work exposure, whether disease will worsen over time, but at rate so gradual that it is well established before becoming apparent, and whether there is long latency period between exposure to risk and onset of symptomology; WCAB further found that parties need to clarify if it is possible to determine whether contemplated reservation of jurisdiction is result of alleged cumulative trauma, in full or in part, as distinguished from sequelae of assault and armed robbery applicant experienced in 2000. [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d §§ 8.03, 8.04, 32.02[1]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 7, § 7.30, Ch. 14, §§ 14.04, 14.06[3].]

PETITIONS FOR RECONSIDERATION

■Joseph Mayor, Applicant v. Ross Valley Sanitary District, PSI, administered by Sedgwick CMS, Defendants, 2024 Cal. Wrk. Comp. P.D. LEXIS 26, petition for writ of review filed 1/9/24

W.C.A.B. No. ADJ10036954—WCAB Panel: Commissioners Razo, Snellings, Capurro

Workers’ Compensation Appeals Board (Board Panel Decision)

Opinion Filed February 2, 2024

Petitions for Reconsideration—WCAB’s Time to Act on Petition—WCAB relied on rationale in Shipley v. W.C.A.B. (1992) 7 Cal. App. 4th 1104, 9 Cal. Rptr. 2d 345, 57 Cal. Comp. Cases 493, and due process principles to grant defendant’s Petition for Reconsideration beyond 60-day time limit in Labor Code § 5909, when, due to administrative irregularity that was neither party’s fault, defendant’s Petition was not received by WCAB until after 60 days from time of filing, and WCAB reasoned that all timely petitions for reconsideration filed and received by WCAB are “acted upon within 60 days from the date of filing” pursuant to Labor Code § 5909, by either denying or granting petition, that there is exception to this rule for those petitions not received by WCAB within 60 days due to irregularities outside petitioner’s control, that pursuant to holding in Shipley allowing tolling of 60-day time period in Labor Code § 5909, WCAB acts to grant or deny such petitions for reconsideration within 60 days of receipt of any such petition, and thereafter to issue decision on merits, that by doing so, WCAB preserves parties’ ability to seek meaningful review, and that this approach is consistent with Rea v. W.C.A.B. (2005) 127 Cal. App. 4th 625, 25 Cal. Rptr. 3d 828, 70 Cal. Comp. Cases 312, and other California courts, which have consistently followed Shipley when weighing 60-day statutory mandate against parties’ constitutional due process right to true and complete judicial review by WCAB; in following Shipley, WCAB declined to follow Zurich American Ins. Co. v. W.C.A.B. (2023) 97 Cal. App. 5th 1213, 316 Cal. Rptr. 3d 264, 89 Cal. Comp. Cases 1, noting that opinion in Zurich reflects split of authority on application of Shipley because it disagreed with Shipley’s conclusion that petitioner has due process right to review by WCAB of petition for reconsideration even after 60 days has passed. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 28.32; Rassp & Herlick, California Workers’ Compensation Law, Ch. 19, § 19.21.]

Petitions for Reconsideration—WCJ’s Role After Filing of Petition—WCAB, granting reconsideration, rescinded WCJ’s decision and returned matter to trial level, when WCJ did not provide adequate Opinion on Decision pursuant to Labor Code § 5313 and Hamilton v. Lockheed Corporation (2001) 66 Cal. Comp. Cases 473 (Appeals Board en banc opinion), and did not prepare Report and Recommendation on Petition for Reconsideration in response to defendant’s Petition for Reconsideration or take any other action on Petition in accordance with 8 Cal. Code Reg. §§ 10961 and 10962. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 26.10, 28.25, 28.35[2]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 16, § 16.30; Ch. 19, § 19.20.]

PSYCHIATRIC INJURY

■Maria Cisneros, Applicant v. Los Angeles Unified School District, administered by Sedgwick, Defendants, 2024 Cal. Wrk. Comp. P.D. LEXIS 61, 89 Cal. Comp. Cases 566

W.C.A.B. No. ADJ16681782—WCJ Michael Joy (LBO); WCAB Panel: Chair Zalewski, Commissioners Capurro, Razo (dissenting)

Workers’ Compensation Appeals Board (Board Panel Decision)

Opinion Filed February 20, 2024

Psychiatric Injury—Good Faith Personnel Actions—COVID-19 Vaccination—WCAB, granting reconsideration and rescinding WCJ’s decision in split panel opinion, held that applicant’s claim that she suffered industrial injury to her psyche from 10/15/2020 to 10/15/2021 while employed by defendant as health care assistant was not barred by good faith personnel action defense under Labor Code § 3208.3(h) and Rolda v. Pitney Bowes, Inc. (2001) 66 Cal. Comp. Cases 241 (Appeals Board en banc opinion), when applicant alleged that she was forced to retire after defendant denied her request for exemption from defendant’s requirement that she be vaccinated against COVID-19 due to her history of adverse reaction to another vaccine, psychiatric qualified medical evaluator found that 75 percent of applicant’s psychiatric injury was caused by events surrounding COVID-19 vaccination, and although defendant argued these were good faith personnel actions, WCAB panel majority found that defendant failed to carry its burden of proof that its process in evaluating applicant’s request for workplace accommodation, including remote work or reassignment, was carried out in good faith; Commissioner Razo, dissenting, believed that defendant met its burden of proving good faith personnel action defense, and that applicant’s claim was barred on that basis, when Commissioner Razo found that defendant did not have blanket rule to deny accommodations to COVID-19 vaccination policy, and that defendant acted in good faith by engaging in interactive process with applicant over lengthy period of time pursuant to Fair Employment and Housing Act, but applicant’s medical evidence for accommodation was insufficient, and she failed to provide missing documentation relevant to her reasonable accommodation request, despite defendant’s request for this information. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 4.02[3][a], [b], [f], 4.69[3][a], [b], [d]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 10, § 10.06[3][b], [d].]

SETTLEMENTS

■Annette Valdez, Applicant v. Southern California Gas Company, PSI, Defendant, 2024 Cal. Wrk. Comp. P.D. LEXIS 13, 89 Cal. Comp. Cases 389

W.C.A.B. Nos. ADJ1991445 (POM 0231941)—WCAB Panel: Commissioner Razo, Chair Zalewski, Commissioner Capurro

Workers’ Compensation Appeals Board (Board Panel Decision)

Opinion Filed January 24, 2024

Compromise and Release Agreements—Setting Aside—Competency Determinations—WCAB, after granting reconsideration, affirmed WCJ’s finding that there was no good cause to set aside Order Approving Compromise & Release (OACR) resolving applicant’s psychiatric injury claim for $2,500.00, based on reports from two qualified medical evaluator’s finding applicant’s psyche claim to be nonindustrial, when applicant sought to have OACR set aside more than 20 years after it was issued, asserting that she was not competent at time she signed Compromise and Release (C&R) agreement, but WCAB determined that applicant did not meet her burden of proving she was incompetent at time she signed agreement or that C&R was based on fraud or mistake, where WCAB reasoned that, while there is no Labor Code provision defining incompetency, prior case law has defined incompetency “as not insanity, but rather inability to properly manage or take care of oneself or property without assistance,” [County of Santa Clara v. W.C.A.B. (McMonagle) (1992) 57 Cal. Comp. Cases 377 (writ denied)] that without substantial medical evidence showing incompetency based on this definition, injured worker is presumed to be competent, that applicant’s testimony that she was paranoid/schizophrenic and fearful of retribution by her co-workers if she pursued litigation of her claim was not sufficient to prove incompetency, and that although both reporting physicians diagnosed significant psychological issues, neither stated that applicant was incompetent or incapable of handling her affairs. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 29.05; Rassp & Herlick, California Workers’ Compensation Law, Ch. 18, § 18.11[1].]

STATUTE OF LIMITATIONS

■Geoffrey Raya, Applicant v. County of Riverside, PSI, Defendant, 2024 Cal. Wrk. Comp. P.D. LEXIS 79

W.C.A.B. No. ADJ12509226—WCAB Panel: Chair Zalewski, Commissioners Razo, Capurro

Workers’ Compensation Appeals Board (Board Panel Decision)

Opinion Filed February 29, 2024

Statute of Limitations—Cumulative Injury—Date of Injury—WCAB, after granting reconsideration, affirmed WCJ’s finding that applicant’s claim for industrial injury in form of testicular cancer incurred while employed as deputy sheriff from 5/1/94 to 6/20/2008 was not barred by one-year statute of limitations in Labor Code § 5405 based on applicant’s date of injury and date he filed Application for Adjudication of Claim (Application), when WCAB reasoned that determination regarding date of cumulative injury under Labor Code § 5412 for purposes of triggering running of statute of limitations requires concurrence of applicant’s compensable disability and knowledge that disability is work-related, that employee is not charged with knowledge that disability is job-related without medical advice to that effect, unless nature of disability and applicant’s training, intelligence and qualifications are such that employee should have recognized relationship between known adverse factors involved in their employment and their disability, that applicant’s filing of workers’ compensation claim form in 2008, following cancer diagnosis, was insufficient to impute knowledge to applicant of industrial nature of his disability because medical advice applicant received at time he filed claim denied existence of any relationship between his disability and work exposures, and, just as medical advice establishing that disability is industrial is sufficient to set date of injury under Labor Code § 5412, medical advice negating such relationship would similarly negate finding of Labor Code § 5412 date of injury, that applicant’s filing of claim form in 2008 was reflection of his suspicion that his condition was work-related, which was not same as knowledge of industrial nature of disability, that causation of applicant’s testicular cancer was not amenable to lay attribution and applicant required medical advice as to industrial nature of his claim prior to commencement of running of statute of limitations, and that applicant first received such medical advice on 11/13/2019 and filed Application within one year of that date. [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d § 24.03[6]; Rassp & Herlick, California Workers' Compensation Law, Ch. 14, §§ 14.02, 14.13[1].]

TEMPORARY DISABILITY

■Mark Richter, Applicant v. Frontier Communications, Zurich, Defendants, 2024 Cal. Wrk. Comp. P.D. LEXIS 20, 89 Cal. Comp. Cases 381

W.C.A.B. No. ADJ12335903—WCJ Alicia Hawthorne (SDO); WCAB Panel: Commissioners Capurro, Razo, Deputy Commissioner Schmitz (concurring, but not signing)

Workers’ Compensation Appeals Board (Board Panel Decision)

Opinion Filed January 5, 2024

Temporary Disability—Credit for Disability Benefits Paid by Employment Development Department—WCAB, granting reconsideration, amended WCJ’s decision to reflect that defendant was required to pay applicant statutory maximum of 104 weeks of temporary disability benefits for period 8/25/2018 to 8/23/2020, and affirmed WCJ’s finding that defendant was not entitled to credit against its temporary disability liability for one year of State Disability Insurance (SDI) paid to applicant by Employment Development Department (EDD) because there was no evidence defendant reimbursed EDD for SDI paid to applicant. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 7.04[9][a], 31.14[1]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 6, § 6.19[1].]