03 Jan 2018

California Workers' Comp Case Roundup (1/3/2018)

CALIFORNIA COMPENSATION CASES

Vol. 82 No. 12 Dec 2017

A Report of En Banc and Significant Panel Decisions of the WCAB and Selected Court Opinions of Related Interest, With a Digest of WCAB Decisions Denied Judicial Review

CONTENTS OF THIS ISSUE

LexisNexis Online Subscribers: You can link to your account on Lexis Advance to read the complete headnotes and court decisions, en banc decisions, writ denied summaries, panel decisions and IMR decisions.

Appellate Court Case Not Originating With Appeals Board

Maynes v. Western Christian School, Lexis Advance

Fair Employment and Housing Act—Pleading—Demurrers—Court of Appeal, reversing in part and affirming in part trial court’s dismissal of plaintiff’s lawsuit after sustaining defendants’ demurrer without leave to amend, held that, inter alia, with respect to plaintiff’s Fair Employment and Housing Act and wrongful termination in violation of public policy claims, trial court erred by finding that defendants were exempt from liability based on truth of factual statements contained in judicially noticed documents, and, with respect to plaintiff’s claim for intentional infliction of emotional distress, plaintiff failed to meet his burden to demonstrate error on appeal, when Court of Appeal found that plaintiff…

Federal District Court Opinion of Related Interest

Camacho v. JLG Industries, Inc., Lexis Advance

Federal Diversity Jurisdiction—Remand to State Court—U.S. District Court, Central District of California, remanding matter to state court, granted leave for plaintiffs to amend complaint by adding claim of negligence per se against existing defendants based on their alleged violations of state safety regulations and by adding additional defendant whose presence would destroy diversity jurisdiction, when federal court found that plaintiff was injured AOE/COE when he fell from scissor lift he was using to install glass in hotel building, that plaintiffs filed suit against manufacturer of scissor lift, JLG Industries, and company from which it was rented, Sunbelt Rentals, Inc., that plaintiffs subsequently retained new counsel, who discovered that Cal/OSHA had identified…

Digests of WCAB Decisions Denied Judicial Review

Editorial Board members Frederick W. Bray, William A. Herreras, and John W. Miller recommended the following writ denied cases for summarization in this issue.

City of Monterey v. W.C.A.B. (Holley, Douglas), Lexis Advance

Presumption of Industrial Causation—Cancer—Peace Officers—Rebuttal of Presumption—WCAB held that applicant, while employed as police officer by City of Stockton from 3/15/95 to 9/3/2012 and by City of Monterey from 9/4/2012 to 6/4/2015, suffered injurious exposure to known carcinogens causing him to incur industrial injury in form of colorectal cancer, and that City of Monterey was liable for applicant’s injury pursuant to Labor Code § 5500.5, when WCAB found…

Greenbrae Management, Inc. v. W.C.A.B. (Torres, Jesus), Lexis Advance

Permanent Disability—Increases for Psychiatric Injury—Violent Acts—Court of Appeal denied defendant’s Petition for Writ of Review challenging WCAB’s decision rescinding WCJ’s award of 57 percent permanent disability and awarding applicant 78 percent permanent disability for injuries incurred on 1/8/2014 when he fell approximately 20 feet from tree he was trimming after branch he was standing on snapped, causing applicant to fall, hit his head several times and lose consciousness, when WCJ’s permanent disability award did not include permanent disability resulting from applicant’s psychiatric injury, presumably based on WCJ’s finding that applicant’s psychiatric injury did not result directly from his fall or from “violent act” in accordance with Labor Code § 4660.1(c)(2)(A) and that separate permanent disability for psychiatric injury was, therefore, precluded under Labor Code § 4660.1(c)(1), but WCAB found that…

JC Resorts v. W.C.A.B. (Wences, Maria), Lexis Advance

Medical Treatment—Nonindustrial Conditions—Court of Appeal denied defendant’s Petition for Writ of Review challenging WCAB’s finding that applicant, who suffered industrial injury to her lower extremities while employed as housekeeper during period 9/1/98 through 2/18/2000, was entitled to medical treatment for her nonindustrial diabetes and related wounds and ulcerations, when WCAB found…

Doctrine of Res Judicata—Court of Appeal denied defendant’s Petition for Reconsideration challenging WCAB’s determination that doctrine of res judicata did not preclude finding that defendant Arrowhead Indemnity Co. was obligated to reimburse California Insurance Guarantee Association for medical treatment costs paid by California Insurance Guarantee Association to treat applicant’s nonindustrial diabetes and related wounds and ulcerations, despite prior award of medical care for applicant’s orthopedic injury and prior order of reimbursement, when WCAB…

Jokar Enterprises v. W.C.A.B. (Solorio, Maria), Lexis Advance

Medical Provider Networks—Liability for Self-Procured Treatment—Court of Appeal denied defendant’s Petition for Reconsideration challenging WCAB’s finding that defendant was liable for reimbursement to lien claimants Psychological Assessment Services and Professional Translation Services for medical treatment and interpreting services provided to applicant by lien claimants outside defendant’s Medical Provider Network between 5/8/2012 and 8/12/2014, when WCAB reasoned…

McGowan (Benny) v. W.C.A.B., Lexis Advance

Medical Treatment—Independent Medical Review—Lack of Necessary Information—WCAB upheld three independent medical review determinations appealed by applicant in which Administrative Director refused to submit utilization review denials to independent medical review when denials were based on treating physician’s failure to submit additional information as requested by utilization review physician, when WCAB found...

Medical Treatment—Independent Medical Review—Qualifications of Reviewing Physician—WCAB upheld three independent medical review determinations appealed by applicant on basis that independent medical review physicians were not qualified under Labor Code § 139.5(d)(4)(A) to review utilization review determinations regarding medical necessity of requested treatment because they were in specialties different from those of physicians who requested treatment, when WCAB found…

New York Marine and General Insurance Co. v. W.C.A.B. (Young, Andrew), Lexis Advance

Injury AOE/COE—Going and Coming Rule—Home as Second Jobsite—Substantial Deviation—In split panel opinion, WCAB held that applicant, while employed as director of animation for defendant Splash Studio, suffered injury AOE/COE on 8/17/2016 when he became involved in road rage incident and was stabbed while traveling home after work at defendant’s studio, when WCAB panel majority found...

Santa Clara Valley Transportation Authority v. W.C.A.B. (Tidwell, Debora), Lexis Advance

Injury AOE/COE—Home as Workplace—Personal Comfort Doctrine—Court of Appeal denied defendant’s Petition for Writ of Review challenging WCAB’s holding that applicant suffered injury AOE/COE to her right thigh on 3/1/2016 while working from her home as management analyst, when WCAB found that...

Other WCAB Decisions Denied Judicial Review

Benitez (Gloria) v. W.C.A.B., Lexis Advance

Injury AOE/COE—New and Further Disability—Medical Evidence—WCAB held that applicant, while employed as housekeeper on 4/8/2010, suffered industrial injury to her cervical spine and psyche but did not sustain injury to any other body parts and did not suffer new and further disability, based on reporting of court-appointed physician…

Borbon, Inc. v. W.C.A.B. (Vences, Jorge), Lexis Advance

Injury AOE/COE—Substantial Evidence—Court of Appeal denied defendant’s Petition for Writ of Review challenging WCAB’s finding that applicant suffered cumulative injury to his low back during period 5/22/2009 through 5/22/2010, when orthopedic agreed medical examiner George S. Watkin, M.D., opined that applicant’s work subsequent to incurring specific back and leg injuries on 8/29/2009 and through end of his employment was contributing cause of his back injury, and WCAB concluded...

Kwasigroch (James) v. W.C.A.B., Lexis Advance

Petitions for Writ of Review—Dismissed as Premature—Court of Appeal dismissed applicant’s Petition for Writ of Review pursuant to Labor Code §§ 5900 and 5901 because WCAB granted reconsideration...

Appeals Board Panel Decisions

Bolanos Zacarias (Tsitziri) v. Marz Farms, Lexis Advance

Sanctions—WCAB, in split panel opinion, affirmed WCJ's order imposing $250.00 sanction under Labor Code § 5813 on defendant and its counsel, jointly and severally, for failure to appear at status conference after having received proper notice of conference, notwithstanding defendant's assertion that it should not be sanctioned because its failure to appear was due to inadvertent calendaring error and there was no evidence that defendant or its attorneys demonstrated pattern of such conduct, when WCAB panel majority found that…

Gomez (Miguel) v. Bay Ship and Yacht Co., Lexis Advance

Liens—Procedural Rights and Duties—Collateral Estoppel—Consolidation of Lien Cases—WCAB rescinded WCJ's finding that lien claimant Enstar Group/SeaBright (Enstar) was estopped from litigating its lien filed in applicant's specific injury case because same lien was ordered to mandatory arbitration in applicant's cumulative injury case, and remanded matter to presiding workers' compensation judge to consider whether to consolidate Enstar's lien cases, when issue of whether Enstar was entitled to lien recovery in specific injury case (where Enstar was required show that it paid benefits to which applicant was entitled) was different, albeit related, to issue of whether Enstar was entitled to contribution in cumulative injury case (where Enstar was required to establish right to contribution under Labor Code § 5500.5), and WCAB concluded that…

Kimber (Sandra, Dec’d) v. City of Los Angeles, Lexis Advance

Presumption of Industrial Causation—Pneumonia—Peace Officers—WCAB rescinded WCJ's finding that decedent, while employed as Los Angeles police officer on 8/28/2013, suffered industrially-related bronchiotracheopneumonitis resulting in her death, based on presumption of industrial causation applicable to pneumonia under Labor Code § 3212, when WCAB found that WCJ erred in concluding that…

Minarik (Artemecia) v. Del Taco, Lexis Advance

Injury AOE/COE—Injury En Route To or From Doctor's Office—WCAB affirmed WCJ's finding that injury suffered by applicant in automobile accident on 12/16/2016 while returning from medical examination by agreed medical examiner for 9/1/2012 admitted industrial back injury, was compensable consequence of 2012 injury, when WCAB concluded that applicant's participation in agreed medical examination was akin to medical treatment in that parties were not obtaining evidence to dispute whether or not applicant sustained industrial injury, but were seeking medical opinion on nature and extent of applicant's disability and her need for medical treatment, and WCAB rejected…

Santana (Rose) v. Stanford University, Lexis Advance

California Insurance Guarantee Association—Reimbursement and Contribution—Stipulations—Judicial Estoppel—WCAB affirmed Arbitrator's decision denying CIGA's claim for reimbursement/contribution from Zurich American Insurance Company (Zurich) for benefits owed to applicant prior to 3/1/2006, when CIGA stipulated at 2014 trial that applicant suffered two distinct periods of cumulative trauma to her neck, back and upper extremities, and that Reliance Insurance Company (Reliance), whose covered claims CIGA assumed after Reliance became insolvent, provided coverage during first period and Zurich had coverage for second period, and WCAB found that…

Independent Medical Review Decisions

CM16-0240412, Lexis Advance

Home Health Care—Post-Surgery for Cervical Injury—IMR expert overturned UR decision allowing only one month of personal care attendant services for 4 hours per day, 5 days per week, and found that 3 months of personal care attendant services as originally requested was medically necessary for applicant following cervical surgery based on the 2016 MTUS chronic pain treatment guidelines. The MTUS guidelines on home health care recommend short-term care following major surgical procedures or in-patient hospitalizations to prevent hospitalization, or provision of longer term nursing care and supportive services for individuals whose condition…

CM16-0242053, Lexis Advance

Home Health Care—Orthopedic and Head Injury/Vestibular Injury—IMR expert overturned UR decision denying request for home assistance for 4 hours per day, 5 days per week, for applicant who suffered multiple orthopedic injuries and head injury resulting in vestibular disorder after falling from a 6-foot ladder. Following the injury, applicant required use of a cane and was at great risk of falling due to vestibular dysfunction. Applying the 2016 MTUS chronic pain guidelines, the IMR expert…

CM17-0063035, Lexis Advance

Medical Transportation—Bilateral Wrist Strain/Tenosynovitis—IMR expert reviewer overturned UR denial of transportation for 30 days to and from medical appointments for applicant who was undergoing treatment for bilateral wrist strain and flexor-extensor tenosynovitis. Because the MTUS guidelines are silent regarding the issue of transportation needs, the IMR expert reviewer relied upon the ODG guidelines, which recommend medical transportation to appointments in the same community for patients with disabilities preventing them from self-transport. Here, the medical documentation indicated that...

CM17-0093320, Lexis Advance

Home Health Care—Post-Surgery for Lumbar Injury—IMR expert reviewer overturned UR denial of request for home health care services for 4 hours per day for 2 weeks following applicant’s lumbar surgery with subsequent complications, based on 2016 MTUS chronic pain guidelines recommending short-term care following major surgical procedures or in-patient hospitalizations, to prevent hospitalization, or provision of longer term nursing care and supportive services for individuals whose condition would otherwise require in-patient care. According to the guidelines…

Durable Medical Equipment—Hospital Bed—IMR expert reviewer upheld UR denial of request for hospital bed for 1 month following applicant’s lumbar spine surgery, when the IMR reviewer found that the hospital bed was not medically necessary based on the ODG durable medical equipment guidelines. The ODG guidelines recommend...

CM17-0102257, Lexis Advance

Home Health Care—Total Knee Replacement—IMR expert reviewer overturned UR denial of request for caregiver services for 24 hours per day, for 14 days following applicant’s total left knee replacement, based on 2016 MTUS chronic pain guidelines. The MTUS guidelines on home health care recommend short-term care following major surgical procedures or in-patient hospitalizations, to prevent hospitalization, or provision of longer term nursing care and supportive services for individuals whose condition would otherwise require in-patient care. According to the guidelines…