28 Sep 2017

California Workers’ Comp Case Roundup: 10/3/2017

CALIFORNIA COMPENSATION CASES

Vol. 82, No. 9 September 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, and writ denied summaries.

Appellate Court Compensation Case

Singh (Ravinderjit) v. W.C.A.B., Lexis Advance

Temporary Disability Benefits—Modified Work—Court of Appeal vacated the WCAB’s decision and remanded for further proceedings, when Court of Appeals found that WCAB admitted error in failing to consider whether the employer provided modified work in assessing injured worker’s entitlement...

Appellate Court Case Not Originating With Appeals Board

Light (Melony) v. California Department of Parks and Recreation, Lexis Advance

Exclusive Remedy Rule—Fair Employment and Housing Act—Retaliation—Disability Discrimination—Intentional Infliction of Emotional Distress—Assault—Court of Appeal, affirming in part and reversing in part trial court’s judgment, held that, as to defendant California Department of Parks and Recreation, triable issues of material fact precluded...

Federal District Court Opinion of Related Interest

Camacho v. JLG Industries, Inc., Lexis Advance

Federal Court Jurisdiction—Removal—In third-party suit originally filed in Superior Court of California, County of Orange, by injured worker and spouse against manufacturer of scissor lift equipment, seeking recovery in tort for injuries sustained by worker on or about 12/8/2015...

Digests of WCAB Decisions Denied Judicial Review

Editorial Board members Melissa C. Brown, Hon. Joel K. Harter, Richard M. Jacobsmeyer, and Hon. Ralph Zamudio recommended the following writ denied cases for summarization in this issue.

Federal Express Corp. v. W.C.A.B. (Payne, Janice), Lexis Advance

Medical Treatment—Utilization Review and Independent Medical Review—Binding Agreement to Utilize Agreed Medical Evaluator—Court of Appeal denied defendant’s Petition for Writ of Review challenging WCAB’s findings that WCAB had jurisdiction to award medical treatment to applicant in form of extension of weight loss program pursuant to 2003 compromise and release agreement in which parties stipulated…

Illinois Midwest Insurance Agency, LLC v. W.C.A.B. (Casarotti, Danielle), Lexis Advance

Injury AOE/COE—Intoxication—Seizures—Court of Appeal denied defendant’s Petition for Writ of Review challenging WCAB’s findings that applicant, while working as bartender on 1/28/2012, suffered compensable injury to her brain, neck, back, head, psyche, sleep, and eyes after falling off bar stool…

Southwest Airlines v. W.C.A.B. (Hargreaves, Francis), Lexis Advance

Permanent Disability—Rating—Chronic Regional Pain Syndrome—Court of Appeal denied defendant’s Petition for Writ of Review challenging WCAB’s determination that opinions of agreed medical examiners David B. Pechman, M.D., and Timothy Reynolds, M.D., constituted substantial evidence to support finding that applicant who sustained multiple orthopedic and internal injuries…

Willoughby (Pamela) v. W.C.A.B., Lexis Advance

Medical Treatment—Utilization Review—Medical Provider Networks—Court of Appeal denied applicant’s Petition for Writ of Review challenging WCAB’s finding that request for authorization to provide medical treatment in form of prescription medications and pain program by applicant’s…

Other WCAB Decisions Denied Judicial Review

Chubb & Son v. W.C.A.B. (Gunchick, Jeffrey), Lexis Advance

Petition for Writ of Review—Dismissal of Premature Petition—Court of Appeal dismissed defendant’s Petition for Writ of Review as premature pursuant to Labor Code §§ 5900 and 5901 because no final order...

County of Ventura v. W.C.A.B. (Reynoso, Esmeralda), Lexis Advance

Psychiatric Injury—Substantial Medical Evidence—Court of Appeal denied defendant’s Petition for Writ of Review challenging WCAB’s determination that reporting of panel qualified medical evaluator Karen S. Snyder, Ph.D., constituted substantial evidence to support finding that applicant suffered injury AOE/COE…

Martin (Edith) v. W.C.A.B., Lexis Advance

Petition for Writ of Review—Dismissal of Untimely Petition—Court of Appeal dismissed applicant’s Petition for Writ of Review as untimely, when Petition, which challenged WCAB’s denial of applicant’s Petition to Reopen, was filed one day...

Appeals Board Panel Decisions

CAUTION: These WCAB panel decisions have not been designated a “significant panel decision” by the Workers’ Compensation Appeals Board. Practitioners should proceed with caution when citing to these board panel decisions and should also verify the subsequent history of the decisions. WCAB panel decisions are citeable authority, particularly on issues of contemporaneous administrative construction of statutory language. However, WCAB panel decisions are not binding precedent, as are en banc decisions, on all other Appeals Board panels and workers’ compensation judges. While WCAB panel decisions are not binding, the WCAB will consider these decisions to the extent that it finds their reasoning persuasive.

Bass (Roger) v. State of California, Department of Corrections and Rehabilitation, Lexis Advance

Cumulative Injury—Single Cumulative Trauma Period—Injurious Exposure—WCAB affirmed WCJ’s finding that applicant suffered single cumulative trauma to his heart, neck, low back, right knee, and left foot while working as correctional officer during period ending 7/15/2014, and rejected defendant’s assertion that…

Permanent Disability—Rating—Combined Values Chart—WCAB rescinded WCJ’s finding that applicant suffered 66 percent permanent disability as result of heart and orthopedic injuries he incurred while working...

Blanco Ayala (Elmer) v. Fruit Harvest, Inc., Lexis Advance

Injury AOE/COE—Lunch Breaks—WCAB, affirming WCJ, held that applicant field worker suffered injury AOE/COE to his right arm and upper extremity on 6/1/2015 when his arm was run over by truck while he was taking lunch break in orchard adjacent to employer’s premises…

Enciso (Sergio) v. Toys “R” Us, Lexis Advance

Liens—Medical—Automatic Stay—WCAB, granting removal, held that WCJ erroneously found that medical treatment lien of lien claimant Firstline Health was stayed pursuant to Labor Code § 4615, which applies to any lien filings made “by or on behalf of” indicted physician...

Vargas (Antonio) v. Becker, Lexis Advance

Hearings—Electronic Testimony—WCAB held that WCJ did not err in allowing applicant painter/helper, who was living in Mexico, to testify at trial remotely via cellphone using FaceTime application regarding claim for 9/13/2012 industrial injury, when WCAB found no merit to defendant’s assertion that applicant’s cellphone…

Evidence—Admissibility—WCAB held that WCJ did not err by allowing mother of applicant’s children, Aida Higuera, to testify at trial regarding applicant’s 9/13/2012 alleged industrial injury, notwithstanding applicant’s failure to disclose Ms. Higuera as witness...

Injury AOE/COE—Substantial Evidence—WCAB affirmed WCJ’s finding that applicant painter/helper suffered injury AOE/COE to his wrists on 9/13/2012 but deferred issue of injury to other alleged body parts pending further development of record…

Independent Medical Review Decisions

CAUTION: The Publisher’s Staff has reviewed both overturned and upheld independent medical review (IMR) decisions beginning in 2017. Criteria for selection include discussion of relevant medical topics, including but not limited to prescription medicine, home health care, orthopedic issues, physical therapy, opioid prescriptions, etc. The Publisher’s selection is not meant to be reflective of the proportion of all IMR decisions that overturn utilization review (UR) denials.

CM17-0058715, Lexis Advance

Epidural Steroid Injections—Sciatica—IMR expert reviewer overturned UR denial of request for bilateral S1 epidural steroid injections to treat applicant’s sciatica pain, based on Non-MTUS Citation Official Disability Guidelines...

CM17-0059399, Lexis Advance

Steroid Injections—Right Knee Osteoarthritis—IMR expert reviewer overturned UR denial of request for right knee steroid injection to alleviate applicant’s osteoarthritis pain following industrial injury resulting in multiple amputations. Expert reviewer’s determination…

CM17-0059510, Lexis Advance

Bilateral Facet Block and Neurotomy—Lumbar Spine—IMR expert reviewer overturned UR denial of provider’s request to administer bilateral lumbar facet block for applicant’s chronic facet pain due to osteoarthritis of the lumbar spine with radiculopathy. Applicant complained…

CM17-0059626, Lexis Advance

Epidural Steroid Injections—Low Back Pain and Radiculopathy—IMR expert reviewer overturned UR denial of treating physician’s request for 1 epidural steroid injection at the left L5-S1 level, based on MTUS Low Back Complaints 2004…

CM17-0060109, Lexis Advance

Epidural Steroid Injections—Cervical Disc Disorder and Radiculopathy—IMR expert reviewer overturned UR denial of 1 epidural steroid injection to treat applicant’s cervical pain with radiculopathy affecting both upper extremities…