02 Jan 2019

California: Top 25 Noteworthy Panel Decisions (July through December 2018)

LexisNexis has selected some of the top “noteworthy” panel decisions issued by the California Workers’ Compensation Appeals Board during the period July through December 2018. The list features a number of cases addressing permanent disability and apportionment, including a case discussing application of the “cannot parcel out” exception outlined in Benson v. W.C.A.B. (2009) 170 Cal. App. 4th 1535, 89 Cal. Rptr. 3d 166, 74 Cal. Comp. Cases 113, applicable when some aspects of permanent disability from multiple injuries can be apportioned and others cannot, and a decision applying the new standard for rating 100 percent permanent disability as discussed by the 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.

Also included is a decision in which the WCAB determined that the effect of long-term antibiotic treatment is equivalent to an insidious progressive disease for the purpose of reserving jurisdiction over permanent disability, and a case in which the WCAB panel provides a useful analytical framework for determining reimbursement of interpreters’ services. Finally, the list includes the first panel decision addressing the Supreme Court’s decision in Dynamex Operations West, Inc. v. Superior Court (2018) 4 Cal. 5th 903, 416 P.3d 1, 232 Cal. Rptr. 3d 1, 83 Cal. Comp. Cases 817, as it applies to determining employment status.

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 However, WCAB panel decisions are not binding precedent, as are en banc decisions on all other Appeals Board panels and workers’ compensation judges.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.

COSTS

■ Miguel Santana v. Mulholland Tennis Club, Inc., and Security National Insurance Company, administered by AmTrust, 2018 Cal. Wrk. Comp. P.D. LEXIS 416 [see Santana v. Mulholland Tennis Club, Inc. (2018) 83 Cal. Comp. Cases 1949 (Appeals Board noteworthy panel decision)]

Costs—Sanctions—Interpreting Services—WCAB rescinded WCJ’s finding that Joyce Altman Interpreters, Inc. (Altman) did not meet its burden of proving entitlement to costs and sanctions under Labor Code § 5813 and 8 Cal. Code Reg. § 10561 for defendant’s failure to timely pay interpreting fees, and returned matter to WCJ for further proceedings on that issue, when Altman met its initial burden of showing that defendant did not comply with 60-day payment requirement set forth in 8 Cal. Code Reg. § 9795.4, and defendant provided no evidence justifying its failure to timely pay fees, and, although WCJ denied costs/sanctions based on his finding that Altman did not prove that defendant acted in bad faith by failing to pay fees, WCAB held that failure to comply with regulations is appropriate basis for imposing sanctions under Labor Code § 5813 and 8 Cal. Code Reg. § 10561, and once it is shown that party failed to comply with regulation, burden of proof shifts to alleged offending party to show that its noncompliance was result of mistake, inadvertence, surprise, or excusable neglect; WCAB agreed that Altman was not entitled to penalties and interest for defendant’s failure to timely pay interpreting fees because Altman’s services, which in this case were provided for deposition preparation/review and appearance at mandatory settlement conference, were Labor Code § 5811 costs and not medical-legal expenses subject to penalties/interest as set forth in Labor Code § 4622. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 23.13[3], 23.15; Rassp & Herlick, California Workers’ Compensation Law, Ch. 16, §§ 16.35[1], 16.49[2].]

DISCOVERY

■ Rafael Guzman Rodriguez, Applicant v. Waste Management Collection and Recycling, ACE American Insurance, administered by Gallagher Bassett Services, Defendants, 2018 Cal. Wrk. Comp. P.D. LEXIS 408 [Petition for Reconsideration denied 11/20/2018]

Discovery—Medical-Legal Evaluations—Recording—WCAB, amending WCJ’s decision, held that applicant who suffered injury to his left shoulder, neck, upper extremities, left arm, hand, and fingers while employed as sanitary worker on 8/26/2014 was allowed to record his evaluation with panel qualified medical evaluator through his phone pursuant to Code of Civil Procedure § 2032.510, and was not limited to recording examination through court reporter as determined by WCJ, when audio recording of medical examination is permitted in civil cases under Code of Civil Procedure § 2032.510, and WCAB found that reasons for giving civil plaintiffs right to audio record medical examinations are equally applicable in workers’ compensation cases, that prior WCAB panel decisions support allowance of audio recording, that applicant’s desire to audio record medical evaluation is not unreasonable refusal to participate in medical evaluation as contemplated by Labor Code § 4062.2(d), and that WCJ permitted applicant to record examination through court reporter as permitted by Code of Civil Procedure § 2032.510, but not through his phone; however, applicant may select any recording method described in Code of Civil Procedure § 2032.510, including audio recording; WCAB further found that WCJ acted within her discretion in determining that applicant should bear cost of court reporter to record panel qualified medical evaluation, because Labor Code § 4600(e)(1), which describes benefits employers are required to provide to employee in relation to medical-legal evaluation, does not specify that employer must pay for court reporter at evaluation if requested by employee, and absent specific authority as to which party is liable for this expense, determination depends on particular factual circumstances. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 22.07[2][a], 25.40]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 15, § 15.45[1].]

EMPLOYMENT RELATIONSHIPS

■ Leamon Perkins, Applicant v. Don L. Knox, DLK Capital, Inc., American Modern Insurance Company, Defendants, 2018 Cal. Wrk. Comp. P.D. LEXIS 490

Employment Relationships—Employees vs. Independent Contractors—WCAB, rescinding WCJ’s decision, returned matter to trial level for further proceedings on issue of whether applicant, who claimed that he suffered industrial injury to his head, neck, arms, and upper extremities while working as laborer/handyman on 9/11/2015, was defendants’ employee or independent contractor on date of his injury based on factors set forth in S. G. Borello & Sons, Inc. v. Dept. of Industrial Relations (1989) 48 Cal. 3d 341, 769 P.2d 399, 256 Cal. Rptr. 543, 54 Cal. Comp. Cases 80, when WCAB held that WCJ’s application of ABC test set forth in Dynamex Operations West, Inc. v. Superior Court (2018) 4 Cal. 5th 903, 416 P.3d 1, 232 Cal. Rptr. 3d 1, 83 Cal. Comp. Cases 817, to find that applicant in this case was defendants’ employee was erroneous because Dynamex expressly limits application of ABC standard to determination of employment status with regard to wage orders, Dynamex did not overturn Borello, and Borello is still correct standard for determining injured worker’s employment status in workers’ compensation cases; although defendant asserted that evidence established applicant was independent contractor, WCAB found that existing record was incomplete as to whether and to what extent applicant, whose injury occurred while demolishing property owned by defendants engaged in business of purchasing and remodeling homes, was independently engaged in handyman/laborer business and/or was subject to supervision in tasks he performed, and regarding length of time applicant performed services for defendants. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 3.06, 3.07, 3.130, 3.131; Rassp & Herlick, California Workers’ Compensation Law, Ch. 2, § 2.06.]

EVIDENCE

■ Craig Hanus, Applicant v. URS/AECOM Corporation, National Union Fire Insurance Company of Pittsburgh PA, administered by Sedgwick Claims Management Services, Defendants, 2018 Cal. Wrk. Comp. P.D. LEXIS 355 [see Hanus v. URS/AECOM Corp. (2018) 83 Cal. Comp. Cases 1836 (Appeals Board noteworthy panel decision)]

Permanent Disability—Rating—AMA Guides—Rebuttal of Scheduled Rating—Vocational Evidence—WCAB affirmed WCJ’s finding that applicant suffered 100 percent permanent disability, without apportionment, as result of admitted industrial injury to his left shoulder, neck, low back, and neurological system sustained on 11/15/2014 while he was employed by defendant as mechanic, when WCAB found that changes in Labor Code § 4660.1 applicable to injuries on or after 1/1/2013, which remove language regarding consideration of future diminished earning capacity, do not preclude rebuttal of strict AMA Guides rating with vocational expert evidence, and concluded that in this case WCJ’s finding of permanent total disability was supported by medical reports indicating that applicant had difficulty with almost all of his activities of daily living and by reporting of applicant’s vocational expert, which considered and discussed medical reports and established that applicant’s medical limitations and constant pain made vocational retraining impossible and rendered applicant unable to compete in open labor market, and that there was no substantial medical evidence in record to support apportionment of applicant’s permanent disability. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 8.02[3], [4], 32.02[2], 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, Chs. 2, 8.]

■ Dovie King, Applicant v. California Department of Corrections and Rehabilitation, Substance Abuse Treatment Facility, legally uninsured, administered by State Compensation Insurance Fund, Defendants, 2018 Cal. Wrk. Comp. P.D. LEXIS 433

Evidence—Medical Evidence—WCAB’s Duty to Develop Record—WCAB, granting removal, rescinded WCJ’s order vacating submission of matter and ordering evaluation of applicant by regular physician pursuant to Labor Code § 5701 after he concluded there was insufficient medical evidence in record to allow for determination, when WCAB found that WCJ did not specifically identify or elaborate on any deficiencies in evidence that required further development of medical record, and did not follow preferred procedure for developing deficient medical record pursuant to McDuffie v. Los Angeles County Metropolitan Transit Authority (2002) 67 Cal. Comp. Cases 138 (Appeals Board en banc opinion), by obtaining augmentation of medical record by physicians who had already reported in case and, if this was unsuccessful, by allowing parties to choose different agreed medical examiner. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 1.11[3][g], 22.06[6], 25.40[1], 26.03[4]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 15, § 15.03[4][h], Ch. 19, § 19.37.]

EXPEDITED HEARINGS

■ Scot Turknette, Applicant v. County of San Bernardino, PSI, Defendant, 2018 Cal. Wrk. Comp. P.D. LEXIS 367 [see Turknette v. County of San Bernardino (2018) 83 Cal. Comp. Cases 1857 (Appeals Board noteworthy panel decision)]

Expedited Hearings—Labor Code § 4850 Salary Continuation Benefits—WCAB granted removal and rescinded WCJ’s order taking expedited hearing off calendar after defendant raised issue of whether applicant, who suffered industrial injury on 7/20/2017 followed by period of temporary disability, was properly classified as firefighter for purposes of entitlement to Labor Code § 4850 benefits, and WCAB ordered that matter be set for expedited hearing on applicant’s entitlement to Labor Code § 4850 salary continuation benefits, when WCAB found that since Labor Code § 4850 payments are made in lieu of temporary disability indemnity, injured worker who is qualified to receive such payments must be able to seek expedited hearing on issues concerning rate of benefits to which he or she is entitled during period of temporary disability, otherwise such injured workers would be denied access to expedited hearing that is available to all other injured workers where there is issue as to whether he or she is receiving full amount of benefits to which he or she is entitled. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 25.09[2], 26.02[1]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 16, § 16.04[3].]

JURISDICTION

■ Joe Grahe, Applicant v. Philadelphia Phillies, et al., Defendants, 2018 Cal. Wrk. Comp. P.D. LEXIS 480

WCAB Jurisdiction—Professional Athletes—WCAB affirmed WCJ’s finding that applicant’s workers’ compensation claim for injuries he incurred during period 6/1/90 to 9/1/2000 while playing professional baseball for multiple teams was not barred by Labor Code § 3600.5(d), but held that applicant could not recover against Philadelphia Phillies (Phillies) in California workers’ compensation system because portion of claim asserted against Phillies was barred by Labor Code § 3600.5(d), when WCAB found that (1) where athlete is employed by California-based team, such as applicant was here, and is dispatched to minor-league affiliate outside state of California, time working for minor-league affiliate is counted as time working for California-based team for purposes of calculating two seasons of California employment and seven seasons of non-California employment that determine whether Labor Code § 3600.5(d)(1)(B) applies, that in this case parties stipulated that applicant was employed by Anaheim Angels (Angels) for entirety of time he played for Angels’ minor league affiliates, and such time was counted as time working for California team, and that applicant met requirements for application of Labor Code § 3600.5(d)(1) since he worked for California-based team for four seasons and non-California based team for six seasons, and (2) under circumstances in this case, where Phillies, as applicant’s last employer, was exempt pursuant to Labor Code § 3600.5(c) but applicant had claim in California under Labor Code § 3600.5(d)(1), liability must be assessed against last employer or employers over whom WCAB could establish jurisdiction pursuant to Labor Code § 5500.5, as exempt party may not be held liable under Labor Code § 5500.5. [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].]

■ Brian Gault, Applicant v. Americana Vacation Clubs, Inc., Republic Underwriters Insurance Company, Defendants, 2018 Cal. Wrk. Comp. P.D. LEXIS 476

WCAB Jurisdiction—Progressive Insidious Diseases—WCAB, amending WCJ’s decision, held that effects of long-term antibiotic treatment required to treat applicant’s industrially-related knee infection was equivalent to insidious progressive disease as described in 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, thereby justifying WCAB’s reservation of jurisdiction to award additional permanent disability beyond five-year limitation period in Labor Code § 5410 and 5804, when WCAB reasoned that “progressive” disease is one which is “increasing in extent or severity,” and here panel qualified medical evaluator concluded with near medical certainty that future complications from applicant’s antibiotic therapy, including selection of drug-resistant bacteria, infectious colitis, drug toxicity, seizure disorder, hepatotoxicity, and allergy-mediated side effects, would progress, causing applicant to suffer increasing impairment. [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].]

LIENS

■ Rachelle Martinez, Applicant v. California Medical Facility, State Compensation Insurance Fund, Defendants, 2018 Cal. Wrk. Comp. P.D. LEXIS 386

Liens—Attorney’s Fees—CCPOA Benefit Trust Fund—ERISA Preemption—WCAB affirmed WCJ’s decision awarding attorney’s fees to applicant’s attorney from CCPOA Benefit Trust Fund’s (CCPOA) award of reimbursement for periods applicant was entitled to temporary disability, when WCAB reasoned that, notwithstanding its contrary claim, CCPOA received notice of expedited hearing on issue of temporary disability, but neither CCPOA nor its representative appeared at hearing, and applicant’s attorney successfully obtained award of temporary disability and award of reimbursement for CCPOA such that conditions allowing for attorney’s fees under Labor Code § 4903.1 were met, and there was no basis to upset WCJ’s award of attorney’s fees; although WCAB allowed attorney’s fee award to stand, WCAB, sua sponte, raised issue of whether WCAB has subject matter jurisdiction over Labor Code § 4903.1(a)(3)(A) lien claims of CCPOA, which is self-funded ERISA employee benefit plan, given ERISA’s preemption provisions, but concluded that it was premature to determine whether CCPOA’s lien in this case was preempted by ERISA, or whether provisions of Labor Code § 4903.1(a)(3)(A) permitting ERISA plans to assert lien against applicant’s award of temporary disability are preempted by ERISA, because issues involving separate reimbursement agreement signed by all plan participants, including applicant, must first be litigated. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 1.03, 30.27; Rassp & Herlick, California Workers’ Compensation Law, Ch. 16, § 16.36, Ch. 17, § 17.80[1], Ch. 22, § 22.02.]

■ Celiflora Lopez, Applicant v. Harbor View Farms, LLC, Zenith Insurance Company, Defendants, 2018 Cal. Wrk. Comp. P.D. LEXIS 507

Liens—Medical-Legal—Photocopy Services—WCAB rescinded WCJ’s findings that contested claim existed at time applicant requested photocopy services from lien claimant and that lien claimant was, therefore, entitled to reimbursement for services under Labor Code § 4622, when finding of contested claim was based on WCJ’s determination that applicant’s attorney could reasonably conclude from nature of applicant’s claim that claim would be contested, but WCAB reasoned that while characterization of applicant’s claim on application may have made it likely that claim would be denied, lien claimant did not establish that there was actually contested claim pursuant to Labor Code § 4620(b) at time services were requested, and held that applicant’s attorney was required to wait to request documents until employer either acted to reject benefits, failed to accept liability for benefits within reasonable period or failed to respond to demand for benefits within statutory deadline for payment, which employer in this case had not done. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 30.05[2][a]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 17, § 17.72[1][b].]

MEDICAL-LEGAL PROCEDURE

■ Alma Ramirez, Applicant v. Jaguar Farm Labor Contracting, Inc., Star Insurance Company, administered by Meadowbrook Insurance Group, Defendants, 2018 Cal. Wrk. Comp. P.D. LEXIS 442

Medical-Legal Procedure—Assignment and Selection of Panel Qualified Medical Evaluators—Notice Requirements—WCAB affirmed WCJ’s finding that applicant was not properly notified of her right to engage in qualified medical evaluator process during time she was unrepresented, thereby rendering applicant’s attorney’s later objection to treating physician’s findings and request for chiropractic qualified medical evaluator panel valid, when defendant did not provide applicant with form to request qualified medical evaluator panel to object to medical determinations of treating physician pursuant to Labor Code § 4062(a), and defendant’s notice regarding permanent disability benefits was unclear as to whether defendant actually provided applicant with treating physician’s reports. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 22.06[1][b], [2]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 16, § 16.54[1].]

Medical-Legal Procedure—Assignment and Selection of Panel Qualified Medical Evaluators—Specialty Designation—WCAB, reversing WCJ, held that chiropractic panel qualified medical evaluator was appropriate specialty to evaluate applicant’s left wrist injury and ordered parties to utilize chiropractic panel as requested by applicant instead of orthopedic replacement panel issued by Medical Director, when Medical Director did not provide adequate discussion regarding why chiropractic qualified medical evaluator was inappropriate to evaluate disputed medical issues, stating only that applicant’s contested claim involved surgery and use of prescription medication outside scope of chiropractor, and WCAB reasoned that while chiropractor may not perform surgery or prescribe medications, chiropractors are not precluded from acting as qualified medical evaluators, that since physicians may not provide treatment to injured workers while also acting as qualified medical evaluator, applicant’s specific treatment needs were not relevant to whether chiropractor was medically appropriate specialist to evaluate applicant and, moreover, medical treatment, including potential surgery and use of prescription medication, was not specified as disputed issue as applicant objected to treating physician’s opinions only regarding “diagnosis, prognosis, and work status,” and that nothing prevents chiropractic qualified medical evaluator from opining that evaluations or referrals for surgery or medications may be necessary as part of applicant’s future medical care, but deferring determination of medical necessity of those modalities to appropriate physicians. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 22.11[1], [2], [4]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 16, § 16.54[1], [2], [4].]

■ Saydiel Ocana, Applicant v. Selah Gourmet Food, dba Country House, Oak River Insurance Company, administered by Berkshire Hathaway Homestate Companies, Defendants, 2018 Cal. Wrk. Comp. P.D. LEXIS 440

Medical-Legal Procedure—Documents Provided to Qualified Medical Evaluator—Vocational Evidence—WCAB, granting removal, rescinded WCJ’s order prohibiting defendant from forwarding vocational expert reports to panel qualified medical evaluator and held that defendant was permitted to send reports of vocational expert to qualified medical evaluator to review pursuant to 8 Cal. Code Reg. § 35(a)(5), when WCAB believed that qualified medical evaluators should be able to review and comment upon vocational evidence since there is nexus between medical and vocational evidence and vocational evidence could affect permanent disability rating, and WCAB found that parties would suffer significant prejudice if they are forced to go to trial on incomplete record. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 22.11[18]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 15, § 15.03[4][d].]

MEDICAL PROVIDER NETWORKS

■ Sierra Prado, Applicant v. PCG Hospitality, Travelers Insurance Co., Defendants, 2018 Cal. Wrk. Comp. P.D. LEXIS 441

Medical Provider Networks—Liability for Outside Treatment—Medical Access Assistants—WCAB, in split panel opinion, affirmed WCJ’s finding that Medical Access Assistant’s (MAA) failure to schedule appointment with applicant’s selected MPN physician pursuant to 8 Cal. Code Reg. § 9767.5 was not denial of medical care justifying treatment outside MPN, when WCAB panel majority found that defendant provided applicant with continuing treatment within MPN until she requested change of primary treating physicians, that MAA acted diligently and reasonably to assist applicant in finding and scheduling appointment with new primary treating physician within defendant’s MPN, and that although three doctors selected by applicant who were listed as available on defendant’s MPN list were, in fact, unavailable to treat applicant, MPN list was not illusory, as physician’s availability is not guaranteed simply because he or she is on MPN list and unavailability of selected physician does not automatically allow injured employee to treat outside MPN; Commissioner Sweeney, dissenting, opined that applicant’s ordeal finding available primary treating physician from unreliable MPN list was sufficient reason to allow applicant to obtain medical treatment outside defendant’s MPN at defendant’s expense, when Commissioner Sweeney reasoned that MAA’s endeavors to assist applicant in finding new primary treating physician did not ameliorate defendant’s failure to provide accurate and current information regarding availability of doctors in its MPN, and that failure to provide current information delayed applicant’s receipt of necessary medical treatment and was unreasonable. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 5.03; Rassp & Herlick, California Workers’ Compensation Law, Ch. 4, § 4.12[3].]

MEDICAL TREATMENT

■ Maxine Wiggs, Applicant v. Allied Signal Aerospace, St. Paul Travelers Insurance, Defendants, 2018 Cal. Wrk. Comp. P.D. LEXIS 421 [Writ of Review granted 12/3/2018]

Medical Treatment—Utilization Review Process—Stipulations—WCAB, affirming WCJ in split panel opinion, held that WCJ did not err in directing further development of record regarding applicant’s current need for home health care by ordering parties to obtain supplemental report from Nurse Case Manager Irene Mefford, R.N., who had issued prior report in 2013, when WCAB found that parties’ 2012 stipulation established process for modifying applicant’s level of home health care by having Nurse Mefford report on issue, and 2012 stipulation coupled with Nurse Mefford’s 2013 report provided for reevaluation of home health care services if additional information became available after period of one year, that parties’ prior stipulation was not superseded by subsequent statutory changes implementing utilization review (UR)/independent medical review (IMR) process, and that there was no evidence of change in applicant’s condition as required under Patterson v. The Oaks Farm (2014) 79 Cal. Comp. Cases 910 (Appeals Board significant panel decision), to justify termination of previously-authorized home health care services, especially given medical evidence that applicant needed additional home health care; Commissioner Razo, dissenting, would rescind WCJ’s decision and direct that medical treatment issue be addressed through UR/IMR process, when Commissioner Razo disagreed with panel majority’s finding that parties’ 2012 stipulation was ongoing agreement concerning provision of home care services, and found that stipulation was made solely to address applicant’s need for heavy housekeeping services following her spinal surgery, that, moreover, stipulation was superseded by subsequent statutory implementation of UR/IMR process, and WCJ had no authority to circumvent UR/IMR process by ordering development of record and retaining jurisdiction over parties’ medical treatment dispute, and that, absent stipulation, WCJ’s reliance on Patterson was misplaced. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 5.02, 22.05[6]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 4, §§ 4.10, 4.11.]

■ Urban Jones, Applicant v. The Higher Path Holistic Care, Inc., a California non-profit corporation, Defendant, 2018 Cal. Wrk. Comp. P.D. LEXIS 432

Medical Treatment—Utilization Review—Time Deadlines—WCAB affirmed WCJ’s finding that applicant was entitled to inpatient psychological rehabilitation program that Uninsured Employers Benefits Trust Fund (UEBTF) approved by timely utilization review (UR) decision but subsequently did not provide to applicant, and found that UEBTF misinterpreted decisions in Dubon v. World Restoration, Inc. (2014) 79 Cal. Comp. Cases 1298 (Appeals Board en banc opinion) (Dubon II), and Ramirez v. W.C.A.B. (2017) 10 Cal. App. 5th 205, 215 Cal. Rptr. 3d 723, 82 Cal. Comp. Cases 327, in asserting that WCJ exceeded his jurisdiction by specifically ordering treatment approved by timely UR, when WCAB reasoned that, unlike untimely UR determinations, UR decisions approving treatment cannot be challenged through IMR process, and WCAB retains authority to determine medical treatment controversies not subject to IMR, including authority to award medical treatment that was specifically approved by employer either without UR or pursuant to its UR, and that if WCAB had no authority to enforce treatment that was approved by employer, employee would have no remedy to obtain such treatment; WCAB further determined that UR decisions by UEBTF modifying treatment requests for cognitive behavioral therapy and monthly medication management and denying request for outpatient program were untimely under Labor Code § 4610(i) and 8 Cal. Code Reg. § 9792.9.1(e)(3), and, therefore, invalid, where UR decisions were only served on applicant and treating physician but not on applicant’s attorney; however, WCAB deferred medical necessity of these requested treatment modalities for further development of medical record despite untimely UR decisions, when there was insufficient evidence in existing record to determine if treatment requested was reasonably required. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 5.02[2][c], 22.05[6][b][iii]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 4, § 4.10[4].]

PERMANENT DISABILITY

■ Enrique Herrera, Applicant v. Maple Leaf Foods, U.S. Fire Insurance Company (Administered by Crum & Forster Insurance), & Alea North American Insurance Company (Administered by Tristar Risk Management), Defendants, 2018 Cal. Wrk. Comp. P.D. LEXIS 430 [Writ of Review denied 12/5/2018, see U.S. Fire Ins. Co. v. WCAB (Herrera) (2018) 83 Cal. Comp. Cases 1829 (writ denied)]

Permanent Disability—Apportionment—Benson Exception—WCAB, denying reconsideration, affirmed its prior decision [see Herrera v. Maple Leaf Foods, 2018 Cal. Wrk. Comp. P.D. LEXIS 284 (Appeals Board noteworthy panel decision)], wherein WCAB found that applicant9 baker suffered combined permanent disability of 83 percent, after non-industrial apportionment, due to industrial orthopedic, gastrointestinal and psychiatric injuries incurred on 10/15/2002 and during cumulative period 10/15/2002 through 1/2/2003, and that WCJ erred in issuing separate, rather than combined, permanent disability awards for applicant’s two dates of injury, when WCAB found that “cannot parcel out” exception outlined in Benson v. W.C.A.B. (2009) 170 Cal. App. 4th 1535, 89 Cal. Rptr. 3d 166, 74 Cal. Comp. Cases 113, was applicable in this case, and specifically concluded that where some aspects of industrially-caused permanent disability from two or more separate industrial injuries cannot be parceled out because disability is inextricably intertwined (in this case, applicant’s psychiatric and gastrointestinal disabilities), then combined permanent disability award must issue even though other aspects of industrially-caused permanent disability from those injuries can be parceled out with reasonable medical probability (in this case, applicant’s orthopedic disability), and that medical evidence in record supported combined permanent disability award. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 8.05[1]-[3], 8.07, 32.03A; Rassp & Herlick, California Workers’ Compensation Law, Ch. 7, §§ 7.40[1], 7.42[1], [2], [4]; The Lawyer’s Guide to the AMA Guides and California Workers’ Compensation, Ch. 9.]

■ Ted Hirschberger, Applicant v. Stockwell Harris Woolverton and Muehl, State Compensation Insurance Fund, Defendants, 2018 Cal. Wrk. Comp. P.D. LEXIS 482 [Petition for Reconsideration filed 10/16/2018]

Permanent Disability—Apportionment—Conclusive Presumption of Total Disability—WCAB rescinded WCJ’s finding that applicant suffered 66 percent permanent disability after apportionment from industrial psychiatric injury incurred during his employment as attorney from 11/30/2007 through 4/22/2009, which resulted in aggravation of his nonindustrial Parkinson’s disease, and instead held that applicant sustained industrial brain injury resulting in permanent mental incapacity due to Parkinson’s disease that was conclusively presumed to be permanently totally disabling under Labor Code § 4662(a)(4) and was not subject to apportionment, when WCJ declined to apply conclusive presumption to applicant’s injury based on onset of Parkinson’s disease prior to industrial injury and insidious nature of disease, but WCAB found no statutory or case law precluding application of Labor Code § 4662(a)(4) conclusive presumption when brain malfunction causing mental incapacity results from progression of insidious disease or industrial aggravation of nonindustrial disease, as in this case; Commissioner Lowe, disagreeing with majority’s analysis, opined that apportionment may apply to award of permanent total disability if apportionment is supported by medical evidence, even if award is based on conclusive presumption in Labor Code § 4662(a)(4), but concurred with majority’s finding of permanent total disability under Labor Code § 4662(a)(4) on basis that apportionment was not proven on record in this case. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 8.02[3], 8.05[1]-[3], 32.03A; Rassp & Herlick, California Workers’ Compensation Law, Ch. 7, §§ 7.11, 7.12, 7.43, 7.44; The Lawyer’s Guide to the AMA Guides and California Workers’ Compensation, Chs. 7, 9.]

■ Rose Casado v. Kaiser Permanente, PSI, administered by Sedgwick, 2018 Cal. Wrk. Comp. P.D. LEXIS 399 [see Casado v. Kaiser Permanente (2018) 83 Cal. Comp. Cases 1937 (Appeals Board noteworthy panel decision)]

Permanent Disability—Rating—AMA Guides—Subjective Complaints—WCAB rescinded WCJ’s finding that applicant who suffered industrial injury to her cervical spine, shoulders and wrists while working as pharmacist during period 8/22/2007 through 9/10/2014, incurred 10 percent permanent disability for shoulder impairment and no permanent disability for impairment to spine and wrists based on reporting of orthopedic panel qualified medical evaluator, and WCAB returned matter to WCJ for further proceedings regarding extent of applicant’s permanent disability, when WCAB found that report of orthopedic panel qualified medical evaluator on which WCJ relied was inadmissible as evidence under Labor Code § 4628(e) for failure to properly identify person who performed diagnostic testing on applicant as required under Labor Code § 4628(b), and also found that panel qualified medical evaluator’s reporting did not constitute substantial evidence because panel qualified medical evaluator relied on incorrect legal theory in rating applicant’s impairment by finding no permanent disability based on lack of positive objective findings for her spine and wrists, and refusing to provide impairment rating for applicant’s subjective complaints regarding these body parts; WCAB explained that physician may provide impairment rating greater than zero percent based solely on subjective complaints if he or she finds that alternate rating, using any table, chapter or method of AMA Guides, would most accurately reflect injured employee’s level of impairment. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 8.02[3], [4], 32.02[2], 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, Chs. 2, 6, 8.]

■ Elly Damian, Applicant v. County of San Mateo, PSI, administered by Athens Administrators, Defendants, 2018 Cal. Wrk. Comp. P.D. LEXIS 500

Permanent Disability—Rating—Rebuttal of Scheduled Rating—WCAB rescinded WCJ’s finding that applicant suffered 100 percent permanent disability as result of cumulative injuries to her upper extremities, cervical spine and psyche over periods ending on 3/3/2009 and 4/21/2010, and returned matter to WCJ for further proceedings, when WCAB found that WCJ’s rating of applicant’s permanent disability “in accordance with the fact” as provided in Labor Code § 4662(b) was inconsistent with decision 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, where Court of Appeal held that Labor Code § 4662(b) does not provide “a second independent path to permanent total disability findings separate from section 4660,” and that while method in Ogilvie v. W.C.A.B. (2011) 197 Cal. App. 4th 1262, 129 Cal. Rptr. 3d 704, 76 Cal. Comp. Cases 624, may still be used to rebut scheduled rating in cases where injured employee has diminished future earning capacity and is not amenable to vocational rehabilitation, this method is limited to cases in which injured employee’s diminished future earnings are directly attributable to work-related injury and not due to nonindustrial factors. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 8.02[3], [4], 32.01[3][a][ii]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 7, §§ 7.05[3][d], 7.12[2][a], [d][iii], 7.42[2]; The Lawyer’s Guide to the AMA Guides and California Workers’ Compensation, Ch. 8.]

PRESUMPTION OF COMPENSABILITY

■ Lilia Carrasco v. California Department of Corrections and Rehabilitation, 2018 Cal. Wrk. Comp. P.D. LEXIS 398 [see Carrasco v. California Dept. of Corrections and Rehabilitation (2018) 83 Cal. Comp. Cases 1931 (Appeals Board noteworthy panel decision)]

Presumption of Compensability—Admissibility of Evidence—Good Faith Personnel Action Defense to Psychiatric Injury—WCAB, rescinding WCJ’s decision, concluded that WCJ erred in applying Labor Code § 5402 presumption of compensability to bar defendant from asserting good faith personnel action defense under Labor Code § 3208.3(h) against applicant’s claim for cumulative psychiatric injury, when WCAB reasoned that presumption of compensability does not give rise to blanket exclusion of evidence not discovered within initial 90-day period, and found that although defendant cannot use evidence discoverable within 90-day period to rebut presumption of compensability, such evidence can be used to show that injury was caused by good-faith personnel actions, and that based on reasoning in James v. W.C.A.B. (1997) 55 Cal. App. 4th 1053, 64 Cal. Rptr. 2d 392, 62 Cal. Comp. Cases 757, where Court of Appeal found that Labor Code § 5402 did not preclude employer from raising six-month employment requirement as defense to psychiatric claim, allowing defendant to present evidence on good faith personnel action defense is consistent with legislative intent of Labor Code § 3208.3 to establish higher threshold for compensability of psychiatric injuries under Division Four of Labor Code. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 24.01[4]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 10, § 10.02.]

SUBSEQUENT INJURIES BENEFITS TRUST FUND

■ Shevon Thomas, Applicant v. Pomona Valley Hospital Medical Center, PSI, Administered by Adminsure, Inc., Subsequent Injuries Benefits Trust Fund, Defendants, 2018 Cal. Wrk. Comp. P.D. LEXIS 365 [see Thomas v. Pomona Valley Hospital Medical Center (2018) 83 Cal. Comp. Cases 1846 (Appeals Board noteworthy panel decision)]

Subsequent Injuries Benefits Trust Fund—Prior Labor Disabling Conditions—Congenial Work Rule—WCAB affirmed WCJ’s finding that applicant who suffered industrial injury to his left leg, upper extremity, back, skin, and internal system on 9/28/2005 while working as patient care associate, did not establish entitlement to benefits from Subsequent Injuries Benefits Trust Fund (SIBTF) pursuant to requirements in Labor Code § 4751, when WCAB reasoned that (1) entitlement to SIBTF benefits under Labor Code § 4751 requires proof of prior “labor disabling” disability and, while ability of injured worker to engage in some type of gainful employment under work conditions congenial to preexisting disability does not require finding that preexisting disability, either industrial or nonindustrial, does not exist, attempts to impose liability under “congenial work setting” doctrine must be strictly scrutinized, and prophylactic work restrictions cannot be applied retroactively, and (2) here, applicant was cleared to work without restriction despite various symptoms listed by applicant on his preemployment physical form which he claimed constituted preexisting disability, and although applicant’s treating physician speculated that these symptoms may have been labor disabling in broader labor market, treating physician’s evidence fell far short of general test for substantial evidence, let alone strict scrutiny required in SIBTF cases where applicant is asserting “congenial work setting” doctrine. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 8.09, 31.20[4]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 8, §§ 8.01, 8.02.]

SUPPLEMENTAL JOB DISPLACEMENT BENEFITS

■ Anthony Dennis, Applicant v. State of California – Department of Corrections Inmate Claims, State Compensation Insurance Fund, Defendants, 2018 Cal. Wrk. Comp. P.D. LEXIS 349

Supplemental Job Displacement Benefits—WCAB Jurisdiction—WCAB rescinded WCJ’s finding that applicant, who suffered industrial injury to his right wrist on 10/29/2013 while working as inmate laborer, was barred from receiving supplemental job displacement benefits (SJDB) because he did not timely appeal Administrative Director’s (AD) de facto denial of his request for SJDB pursuant to 8 Cal. Code Reg. § 10133.54, and instead found that applicant was entitled to SJDB, when WCAB reasoned that Labor Code § 5300 vests WCAB with exclusive jurisdiction to adjudicate claims regarding “recovery of compensation, or concerning any right or liability arising out of or incidental thereto,” which extends to inmates who suffer injury AOE/COE, that Labor Code § 4658.7(h), authorizing AD to adopt regulations for “administration” of SJDB, does not abrogate WCAB’s ability to adjudicate disputes under this provision or extend AD’s authority to adjudicate SJDB disputes, that notwithstanding 8 Cal. Code Reg. § 10133.54, WCAB maintains exclusive jurisdiction to adjudicate issue of whether applicant is entitled to benefits under SJDB program, that under Labor Code § 4658.7(b) injured employee, including inmate, with permanent partial disability is entitled to SJDB unless employer makes timely offer of regular, modified or alternative work, and that although defendant in this case timely offered applicant work, offer was not bona fide job offer because applicant was released from prison and could not return to prison employment and, therefore, employer was not absolved of liability for SJDB. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 3.100[1], 35.01, 35.02; Rassp & Herlick, California Workers’ Compensation Law, Ch. 2, § 2.04[6], Ch. 21, §§ 21.01, 21.02.]

TEMPORARY DISABILITY

■ Renee Skelton v. Department of Motor Vehicles, State Compensation Insurance Fund, 2018 Cal. Wrk. Comp. P.D. LEXIS 417

Temporary Disability—Attendance at Medical Appointments—WCAB, affirming WCJ in split panel opinion, held that applicant, whose condition was not yet permanent and stationary following industrial orthopedic injuries on 7/26/2012 and 7/18/2014, was not entitled to temporary disability indemnity for wage loss caused by attendance at medical appointments for her industrial injuries after she returned to full-time work, based on decisions in Department of Rehabilitation v. W.C.A.B. (Lauher) (2003) 30 Cal. 4th 1281, 135 Cal. Rptr. 2d 665, 70 P.3d 1076, 68 Cal. Comp. Cases 831, and Ward v. W.C.A.B. (2004) 69 Cal. Comp. Cases 1179 (writ denied); Commissioner Sweeney, dissenting, would have found that applicant was entitled to temporary disability indemnity to compensate for wages lost by reason of attending her medical treatment appointments because, Commissioner Sweeney reasoned, unlike injured employee in Lauher, applicant’s condition had not yet reached permanent and stationary status when she returned to work, and Commissioner Sweeney believed that applicant should be compensated with temporary disability indemnity for wages she lost while she was receiving necessary medical treatment for her injuries, that majority panel’s decision was based only on dicta in Lauher, and that Ward decision was also based on Lauher’s dicta and was not binding precedent. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 7.02[1]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 6, § 6.01[1].]

■ Steven Gonzales, Applicant v. Barrett Business Services, Inc., ServiceMaster Anytime, Corvel Corporation, Defendants, 2018 Cal. Wrk. Comp. P.D. LEXIS 478

Temporary Disability—Exceptions to Two-Year Cap on Benefits—High Velocity Eye Injuries—WCAB affirmed WCJ’s finding that applicant sustained “high velocity eye injury” pursuant to Labor Code § 4656(c)(3)(F), entitling him to temporary disability indemnity beyond 104-week cap, when WCAB rejected defendant’s assertion that statutory exception was not met without “definitive” evidence showing velocity of object that hit applicant’s eye, and found that applicant’s testimony as to what occurred was sufficient, and that reasonable inference regarding nature of injury could be drawn from applicant’s testimony that he was struck in eye at high velocity after portion of nail he hit with his hammer splintered. [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d § 7.02[2][b]; Rassp & Herlick, California Workers' Compensation Law, Ch. 6, § 6.12.]

WORKERS’ COMPENSATION APPEALS BOARD PROCEDURE

■ Miguel Hernandez, Applicant v. Hershel Abelman, Clarendon National Insurance Company, adjusted by Sedgwick, Defendants, 2018 Cal. Wrk. Comp. P.D. LEXIS 481

WCAB Procedure—Appointment of Guardian Ad Litem and Conservatorship—WCAB affirmed WCJ’s findings that WCAB had jurisdiction to address issue of potential reimbursement of legal costs associated with conservatorship, and that applicant’s guardian ad litem was not required, as part of his duties under Labor Code § 5307.5, to effectuate and maintain conservatorship, when WCAB reasoned that Labor Code § 5307.5 allows trustees or guardians ad litem to recover compensation for their caregiving services to extent they are equivalent to medical treatment, and that because expenses associated with conservatorship may fall under Labor Code § 4600 medical treatment costs, WCAB has authority to consider whether costs are in fact incidental to medical treatment and whether they are reasonable and necessary; however, WCAB found that costs incidental to obtaining and maintaining conservatorship, which are not medical costs, are not subject to reimbursement under Labor Code § 5307.5, and that there is no case law or statutory authority requiring guardian ad litem to effectuate and maintain conservatorship as part of his or her duties. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 31.21; Rassp & Herlick, California Workers’ Compensation Law, Ch. 16, § 16.09.]