California: Workers' Comp Case Roundup (3/6/2018)

CALIFORNIA COMPENSATION CASES

Vol. 83 No. 2 Feb 2018

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

CONTENTS OF THIS ISSUE

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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 Compensation Case

State Compensation Insurance Fund v. W.C.A.B. (Guzman, Jose), Lexis Advance

Psychiatric Injury—Sudden and Extraordinary Employment Condition—Court of Appeal, annulling WCAB order denying reconsideration and remanding matter to WCAB with directions to deny applicant’s claim for psychiatric injury, held that applicant failed to present evidence relevant to employment condition that caused his injury and whether such event was uncommon, unusual, and unexpected, and, therefore failed to meet his burden of proving that his injury was result of sudden and extraordinary employment condition or event, when Court of Appeal found that...

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Appellate Court Cases Not Originating With Appeals Board

Gonzalez v. Mathis, Lexis Advance

Civil Actions—Peculiar Risk Doctrine—Privette Exceptions—Retained Control and Known Hazard Exceptions—Court of Appeal reversed trial court’s grant of summary judgment in defendant’s favor in plaintiff’s premises liability civil action against defendant homeowner/hirer of plaintiff independent contractor, when Court of Appeal held there was triable issue of fact on hazard exception, when Court of Appeal found...

Lowe (Suzanne) v. Board of Administration, California Public Employees’ Retirement System, Lexis Advance

Industrial Disability Retirement Benefits—Rejection of Application--Court of Appeal, affirming superior court’s order denying plaintiff’s petition for writ of mandate, held that superior court did not commit legal error by applying wrong standard of review, and that superior court did not commit error in analyzing physician reports submitted in plaintiff/applicant’s workers’ compensation case, when Court of Appeal found that...

People, The v. Hernandez (Luis), Lexis Advance

Workers’ Compensation Insurance Fraud—Attempted Perjury—Jury Instructions--Court of Appeal affirmed trial court’s sentencing of defendant based on convictions of workers’ compensation fraud and attempted perjury under Penal Code §§ 118(a) and 664(a) for providing false deposition testimony under oath in his workers’ compensation case and then refusing to sign transcript of deposition, and additionally held that trial court did not have sua sponte duty to use CALCRIM No. 460 instead of modified version of CALCRIM No. 2640 in instructing jury on attempted perjury charge, when Court of Appeal reasoned that...

Federal District Court Opinions of Related Interest

Hankins (Denise) v. American Medical Response Ambulance Service, Inc., Lexis Advance

Civil Actions Against Employers—Fair Employment and Housing Act—Disability Discrimination—United States District Court for the Eastern District of California affirmed trial court’s grant of summary judgment in favor of defendant, when plaintiff/applicant sustained industrial injury while working for defendant as paramedic (on 6/11/2012 plaintiff’s right hand was crushed between patient gurney and door), plaintiff filed California workers’ compensation claim and civil action under FEHA (Fair Employment and Housing Act (Government Code § 12940 et seq.) related to this injury, civil action was removed to federal court on diversity grounds, U.S. District Court upheld summary judgment against plaintiff’s causes of action for disability discrimination, wrongful demotion, and negligent supervision, when U.S. District Court found plaintiff...

San Diego County Schools Risk Management Joint Powers Authority v. Liberty Insurance Corp., Lexis Advance

Insurance Coverage—Excess Insurance Policies—Applicability of Workers’ Compensation Laws—United States District Court for the Southern District of California, in tentative ruling, granted in part and denied in part motion for summary judgment filed by excess workers’ compensation/employers liability insurance carrier Liberty Insurance Corporation (Liberty), and denied motion for summary judgment filed by excess workers’ compensation/employers liability insurance carrier Wesco Insurance Company (Wesco), when plaintiff San Diego County Schools Risk Management Joint Powers Authority (JPA), as administrator for self-insured school districts, filed complaint against both Wesco and Liberty seeking declaration that they were jointly liable for reimbursement of workers’ compensation benefits in excess of $100,000 paid on cumulative injury claims filed by two employees of school districts, and District Court found that...

Federal Agency Opinion of Related Interest

Hy-Brand Industrial Contractors, Ltd. and Brandt Construction Co., as a single employer and/or joint employers, Upshaw, Newcomb, Senteras, Hovendon, and Pinnick, Lexis Advance

National Labor Relations Board—Joint-Employer Standard—National Labor Relations Board, overruling Board’s 2015 decision in Browning-Ferris Industries, 362 NLRB No. 186, 80 Cal. Comp. Cases 946 (2015), and returning to pre-Browning-Ferris standard that governed joint-employer liability, held in 3-2 decision that, in all future and pending cases, two or more entities will be deemed joint employers under National Labor Relations Act, 29 U.S.C.S. § 151 et seq., if there is proof that one entity has exercised control...

Digests of WCAB Decisions Denied Judicial Review

Editorial Board members Frederick W. Bray, David Hettick, Robert G. Heywood, Kenneth B. Peterson, and Robert G. Rassp recommended some of the following writ denied cases for summarization in this issue.

Contra Costa Water District v. W.C.A.B. (Kirby, Timothy), Lexis Advance

Psychiatric Injury—Actual Events of Employment—Good Faith Personnel Actions—WCAB affirmed WCJ’s findings that applicant met burden of proving that psychiatric injury he incurred while employed as crew leader by defendant during period 3/11/2014 through 3/11/2015 was predominantly caused by actual events of his employment pursuant to Labor Code § 3208.3(b)(1), rather than perceived events as argued by defendant, and that defendant failed to establish that applicant’s injury claim was precluded by good faith personnel action defense in Labor Code § 3208.3(h), when WCAB reasoned that...

Temporary Disability—Offers of Modified Work—WCAB affirmed WCJ’s finding that applicant, who suffered industrial psychiatric injury while employed as crew leader by defendant during period 3/11/2014 through 3/11/2015, and was temporarily partially disabled...

McFarland (Theresa) v. W.C.A.B., Lexis Advance

Penalties—Delay in Payment of Supplemental Job Displacement Benefit Voucher—Return-To-Work Supplemental Payments—WCAB, affirming WCJ, held that defendant was not liable for second Labor Code § 5814 penalty based on applicant’s delay in presentation of her claim for Labor Code § 139.48 Return-To-Work supplemental payments, which allegedly resulted from defendant’s delay in providing applicant with Labor Code § 4658.7 Supplemental Job Displacement Benefit voucher, when WCAB reasoned that...

Sayre (Ronald) v. W.C.A.B., Lexis Advance

Injury AOE/COE—Burden of Proof—Substantial Evidence—WCAB affirmed WCJ’s finding that applicant, who was diagnosed with sarcoidosis and related erythema nodosum in 2015, did not meet burden of proving that sarcoidosis was caused by his employment on Sheriff’s Enforcement Team of County of Solano Sheriff’s Department between 2011 and 2015, notwithstanding undisputed evidence that applicant’s job duties required him to enter filthy, unhygienic, and contaminated environments, when agreed medical examiner Jonathan Ng, M.D., was unable to identify any potential industrial agent or trigger for applicant’s sarcoidosis and could not state that sarcoidosis was universally accepted to be environmental or occupational disease, and, therefore, WCAB concluded...

Sequeira de Bustos (Luisa) v. W.C.A.B., Lexis Advance

WCAB Procedure—Declarations of Readiness to Proceed—WCAB affirmed WCJ’s award of 20 percent permanent disability to applicant who suffered industrial injury to her lumbar spine on 11/25/2010, and found that...

Sutter Solano Medical Center v. W.C.A.B. (Go, Belinda), Lexis Advance

Self-Procured Medical Treatment—Temporary and Permanent Disability Awards—WCAB, affirming WCJ, held that applicant, who suffered industrial neck injury while working for defendant as registered nurse on 6/9/2013, was entitled to temporary and permanent disability as result of cervical spine surgery she self-procured after authorization for surgery was denied by utilization review/independent medical review, when WCAB reasoned that...

Other WCAB Decisions Denied Judicial Review

County of Los Angeles v. W.C.A.B. (Williams, Paula), Lexis Advance

Petition for Writ of Review—Dismissed as Premature—Court of Appeal dismissed defendant’s Petition for Writ of Review as premature pursuant to Labor Code §§ 5900 and 5901, when order...

Garcia (Maria) v. W.C.A.B., Lexis Advance

Permanent Disability—Substantial Evidence—WCAB held that applicant, while employed by defendant as produce packer, suffered injury AOE/COE to her low back and right leg but not to her left leg, her knees, or in form of radiculopathy on 9/1/2015, and did not sustain injury AOE/COE on cumulative basis to her back, left leg, nervous system, and in form of radiculopathy as alleged, and, based on reporting of qualified medical evaluator Steven J. Blaut, D.C., WCAB concluded that...

Restrepo (Guillermo) v. W.C.A.B., Lexis Advance

Injury AOE/COE—Going and Coming Rule—Required Vehicle Exception—WCAB affirmed WCJ’s finding that applicant’s claim for injury AOE/COE incurred on 2/26/2013 in motor vehicle accident while on his way to work was barred by “going and coming” rule, when applicant was traveling in his personal vehicle at time of accident and, although applicant testified that use of his personal vehicle at work was necessary for occasional travel to various off-site locations, WCAB observed that...

Appeals Board Panel Decisions

Prieto (Francisco) v. O.C. Contracting, Inc., Lexis Advance

Uninsured Employers Benefits Trust Fund—Liability for Reimbursement—WCAB, in split panel opinion, rescinded WCJ's order of reimbursement and held that Uninsured Employers Benefits Trust Fund (UEBTF) was not legally obligated under Labor Code § 3715 to reimburse Granite State Insurance Company (Granite State) for workers' compensation benefits mistakenly provided to applicant for 9/1/2005 industrial injury on behalf of illegally uninsured employer who reported incorrect date of injury to Granite State, when WCAB concluded that...

Ramirez (Rosa) v. Rancho Harvest, Inc., Lexis Advance

Liens—Interpreting Fees—WCAB, rescinding WCJ's decision, found that lien claimant Lorena Ortiz Schneider Interpreting was entitled to payment of $1,905.00 for services rendered prior to 1/1/2013 and returned matter to trial level for WCJ to determine amount due to lien claimant for services rendered after 1/1/2013, when WCJ had denied payment for lien claimant's services rendered after 1/1/2013 on basis that lien claimant did not avail herself of applicable review process within defendant's internal review system for bills disputed by defendant for exceeding Official Medical Fee Schedule (OMFS), but WCAB found that…

Reichelt (Laurence) v. City of Los Angeles, Lexis Advance

Medical-Legal Procedure—Release of Psychiatric Records——WCAB, granting removal, rescinded WCJ's order denying pro per applicant's request for release of psychiatric report from court-appointed psychiatrist Benjamin Carey, M.D., and returned matter to trial level, when both WCJ and defendant reviewed Dr. Carey's report, and WCAB found that denying applicant opportunity to review report based solely on Dr. Carey's admonition against releasing report to him would result in substantial prejudice to applicant and potentially violate applicant's due process rights; WCAB instructed that...

Timmons (Raymond, Dec’d), Timmons (Sandra, wife) v. County of Los Angeles, Lexis Advance

Death Benefits—Accrual of Claim—WCAB, in split panel opinion, affirmed WCJ's finding that applicant was entitled to death benefits following 10/25/2005 death of her husband, who suffered industrial injury to multiple body parts while employed as deputy sheriff, and found that applicant's claim for death benefits was not barred under Labor Code § 5406(b), even though it was filed more than 240 weeks after dates of injury as stipulated by decedent, when WCAB panel majority found that....

Yarbrough (Syrus) v. Southern Glazer’s Wine and Spirits, Lexis Advance

Medical-Legal Procedure—Qualified Medical Evaluators—Stipulation to Use Agreed Medical Examiner—WCAB, granting removal, rescinded WCJ's order compelling applicant to attend evaluation with agreed medical examiner Roger Sohn, M.D., over applicant's objection, when WCAB disagreed...

Independent Medical Review Decisions

CM17-0141152, Lexis Advance

Spinal Fusion—Pre-Operative Tests—IMR expert reviewer overturned UR decision denying treating physician’s request for various pre-operative tests, including EKG, urinalysis, CMP, and PT/PTT, in order for applicant to obtain pre-operative medical clearance to undergo spinal fusion at L4-S1 and neural decompression. In overturning the UR denial of the requested testing, the IMR reviewer relied on the MTUS 2004 Guidelines for special studies related to neck and upper back complaints and on the Non-MTUS ODG guidelines related to pre-operative testing for the low back. These guidelines support the pre-operative testing requested by the treating physician in order to obtain medical clearance for surgery, and, therefore, the IMR reviewer found... [LexisNexis Commentary: This IMR decision is instructive as it addresses the considerable number of tests commonly prescribed in cases of multi-level spinal fusion to obtain medical clearance for surgery.]…

Spinal Fusion—Post-Operative Medical Equipment—IMR expert reviewer overturned UR decision denying treating physician’s request for various post-operative medical equipment, including front wheel walker, bone stimulator, lumbosacral orthosis brace, and 3-1 commode, to aid in applicant’s function and recovery following spinal fusion at L4-S1 and neural decompression. In overturning the UR denial of the requested equipment, the IMR reviewer relied on the Non-MTUS ODG guidelines... [LexisNexis Commentary: This IMR decision is instructive as it addresses the various types of medical equipment commonly prescribed post-operatively in cases of multi-level spinal fusion to restore function and aid in recovery.]…

CM17-0149441, Lexis Advance

Psychological Testing—Pain Disorder—Opioid Treatment—IMR reviewer overturned UR decision denying treating physician’s request for retrospective review of psychological testing for applicant undergoing treatment for pain disorder exclusively related to psychological factors and pain disorder with related psychological factors. The request was non-certified by UR on the basis that it was not supported by the documentation submitted, which showed limited evidence of significant psychological symptoms and indicated that applicant may benefit from a functional restoration program. The subsequent IMR request was flawed in that it did not specifically identify the names of the tests being requested and did not clearly state a rationale for the requested psychological testing. Nonetheless, the IMR expert found that…[LexisNexis Commentary: This IMR decision was published to show that sometimes IMR will overlook shortcomings in an IMR request if it appears that the treatment being requested may benefit the injured worker and the treatment can be supported by the MTUS.]…

CM17-0150408, Lexis Advance

Venous Duplex Studies—Bilateral Lower Extremities—IMR reviewer overturned UR decision denying treating physician’s request to perform venous duplex studies of applicant’s bilateral lower extremities. Because the MTUS did not address the requested treatment, the IMR reviewer relied upon the Non-MTUS ODG guidelines for venous thrombosis in the legs to find that the requested treatment was medically necessary. These guidelines recommend that... [LexisNexis Commentary: This IMR decision illustrates that IMR recognizes the importance of authorizing tests such as the venous duplex studies requested here to accurately diagnose the nature of an injured worker’s condition prior to providing treatments, in this case anti-coagulants, that may potentially have negative side-effects.]

CM17-0173187, Lexis Advance

Doppler Study—Deep Vein Thrombosis—IMR reviewer overturned UR decision denying treating physician’s request to perform a Doppler study to rule out DVT in applicant who had a history of compartment syndrome and had undergone two surgeries, leaving him with vascular issues and calf claudication and pain. A Doppler study was requested when applicant had increased calf pain and swelling and became concerned about a blood clot. Because the MTUS Guidelines...[LexisNexis Commentary: This IMR decision illustrates that IMR recognizes the importance of authorizing tests such as the Doppler study requested here to accurately diagnose the nature of an injured worker’s condition prior to providing treatments, in this case anti-coagulants, that may potentially have negative side-effects.]