California Workers' Comp Case Roundup (4/29/2019)

CALIFORNIA COMPENSATION CASES

Vol. 84 No. 4 Apr 2019

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., Lexis Advance

Liens—Lien Activation Fees—Payment Deadline—Court of Appeal, affirming WCAB order denying insurer’s petition for reconsideration, held that federal district court’s 11/9/2015 order vacating injunction against collection of lien activation fees, which granted lienholders until 12/31/2015 to pay their lien activation fees, applied to present case, when Court of Appeal found that...

Appellate Court Cases Not Originating With Appeals Board

Jackpot Harvesting, Inc. v. Applied Underwriters, Inc., Lexis Advance

Workers’ Compensation Insurance—Arbitration—Court of Appeal, affirming trial court’s judgment denying insurer’s motion to compel arbitration, held that trial court, rather than arbitrator, had authority to adjudicate enforceability of arbitration agreement, that, because arbitration agreement was contained in “Request to Bind,” which was collateral agreement to insurance contract that materially changed...

Strouse v. Webcor Construction, L.P., Lexis Advance

Injury AOE/COE—Independent Contractors—Retained Control—Jury Instructions—Court of Appeal, affirming trial court’s judgment, held that defendant general contractor was 100 percent liable for injuries suffered by plaintiff employee of subcontractor, when Court of Appeal found that general contractor’s contract with hirer contained provision that contractor was to be “solely responsible for initiating, maintaining, and supervising all safety precautions and programs in connection with the performance of the Contract,” that employee of subcontractor fell into 12-inch deep expansion joint after plywood safety cover, for which general contractor was responsible, gave way, that holding of Hooker v. Department of Transportation (2002) 27 Cal. 4th 198, 38 P.3d 1081, 115 Cal. Rptr. 2d 853, 67 Cal. Comp. Cases 19, was no bar to defendant’s liability because substantial evidence supported facts that defendant did retain control of premises and that defendant’s retained control affirmatively contributed to plaintiff’s injuries, that trial court...

Digests of WCAB Decisions Denied Judicial Review

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

Arena Football One v. W.C.A.B. (Gray, Virgil), Lexis Advance

Employment Relationships—Joint Employment—WCAB affirmed WCJ’s decision that applicant, while working as professional football player, was jointly employed by both San Jose SaberCats (SaberCats) and Arena Football League (League), uninsured for workers’ compensation, when WCAB reasoned that joint employment is found to occur when employee simultaneously performs services under control of two or more employers, and services for both employers are same or closely related, and WCAB found that...

Martinez v. W.C.A.B. (Sandoval Jaramillo, Jose, Dec’d), Lexis Advance

Employment Relationships—Residential Employees—WCAB affirmed WCJ’s finding that decedent was employee of defendants Emir and Delfina Martinez at time he sustained fatal injury on uninsured property they owned, when WCAB, deferring to WCJ’s credibility determinations, found that...

Shandler & Associates v. W.C.A.B. (Arellano, Carlos), Lexis Advance

Attorney’s Fees—Depositions—Laches—WCAB held that WCJ did not abuse his discretion in finding that applicant’s attorney was not entitled to Labor Code § 5710 fees beyond those already paid for depositions that occurred in 2001, and was likewise not entitled to award of penalties or sanctions against defendant, when WCAB found that...

Other WCAB Decisions Denied Judicial Review

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

Cumulative Injury—Substantial Medical Evidence—WCAB, affirming WCJ’s decision, held that applicant, while employed as caregiver, suffered specific industrial injury to her back on 10/9/2014 while employed by defendant IHSS - California Department of Social Services (IHSS), and did not sustain subsequent cumulative injury with different employer, when agreed medical evaluator reporting in applicant’s cumulative injury case, Don T. Williams, M.D., found no cumulative trauma, and WCAB determined that reports of Dr. Williams constituted substantial evidence and were more persuasive than reports of agreed medical evaluator Mark. A. Anderson, M.D., who reported in applicant’s specific injury case and who found that applicant... 

Johnson v. W.C.A.B. (Green, Jacqueline), Lexis Advance

Petition for Writ of Review—Dismissal of Untimely Petition—Court of Appeal dismissed lien claimant’s petition for writ of review as untimely, when petition, which challenged WCAB’s order...

Lawrie (Matthew) v. W.C.A.B., Lexis Advance

Petition for Writ of Review—Court of Appeal denied applicant’s Petition for Writ of Review as premature pursuant to Labor Code §§ 5900 and 5901 because no final order was issued by WCAB.

Nichols & Associates v. W.C.A.B. (Kurtz, Sharon), Lexis Advance

Injury AOE/COE—Substantial Evidence—WCAB, affirming WCJ, held that there was substantial evidence to support finding that applicant suffered injury AOE/COE to her right shoulder on 9/20/2015 when she slipped...

Post-Termination Claim—WCAB affirmed WCJ’s finding that applicant’s claim for 9/20/2015 industrial right shoulder injury was not barred as post-termination claim under Labor Code § 3600(a)(10), when WCAB found that...

Temporary Disability—WCAB affirmed WCJ’s finding that applicant was temporarily totally disabled as result of 9/20/2015 right shoulder injury, at least during period from 12/21/2015 to 5/10/2016, and that record required further development as to whether she was temporarily disabled after 5/10/2016, and WCAB rejected...

Robinson (Earlyn) v. W.C.A.B., Lexis Advance

Temporary Disability—Permanent and Stationary Status—WCAB affirmed WCJ’s finding that applicant, who suffered industrial injuries to her back, hip, knee, and ankle on 11/19/2015 while working as product demonstrator at Costco, became permanent and stationary with respect to her industrial injuries on 9/26/2017, based on treating physician’s 9/26/2017 report indicating that applicant had reached maximum medical improvement but was still in need of further medical treatment, and WCAB found that...

Wilson (Richard) v. W.C.A.B., Lexis Advance

Psychiatric Injury—Burden of Proof—WCAB affirmed WCJ’s finding that applicant did not meet burden of proving that he suffered compensable psychiatric injury while employed as police lieutenant during period ending 10/6/2011, when reporting of psychiatric agreed medical examiner and qualified medical evaluator, as well as applicant’s own trial testimony, established that applicant’s psychiatric symptoms were not caused by any employment-related events or duties, but rather stemmed from fact that his fiancée left him for another man, with whom he had to work, and WCAB concluded that...

Appeals Board Panel Decisions

Collins (Brian) v. City of Vacaville, Lexis Advance

Discovery—Subpoena Duces Tecum—Police Officer Personnel/Medical Records—WCAB granted defendant's Petition for Removal challenging WCJ's Order Quashing Subpoenas Duces Tecum, wherein WCJ quashed defendant's subpoenas seeking personnel records from applicant police officer's former employers because defendant did not comply with requirements of Evidence Code §§ 1043–1046, which describe procedure that parties must follow to obtain discovery of information relating to peace officers and custodial officers protected by Penal Code §§ 832.7 and 832.8, when WCAB concluded that...

Garcia (Hector) v. Barrett Business Services, Inc., Lexis Advance

Medical Treatment—Utilization Review—Concurrent Review—WCAB affirmed WCJ's finding that defendant's 3/26/2018 utilization review (UR) determination was untimely, when applicant's primary treating physician submitted 3/15/2018 request for authorization (RFA) for six months of continued inpatient care at Center for Neuro skills (CNS) for applicant who suffered traumatic brain injury while employed as truck driver on 3/6/2013, and WCAB determined that...

Independent Medical Review Decisions

CM18-0228283, Lexis Advance

Opioid Medications—Ultram—Spine Injury/Chronic Pain—IMR reviewer overturned UR decision denying treating physician’s request for Ultram 50mg #60 based on 2017 MTUS guidelines addressing opioid use for chronic pain. Here, 63-year old applicant suffered from chronic pain due to disc protrusions in her cervical spine and lumbar spine with lower and upper extremity radiculopathy. The guidelines recommend a trial of opioids in an attempt to achieve functional improvement, with ongoing medical visits to monitor efficacy, improvement in function, adverse effects, and compliance/non-compliance. Applicant’s treating physician desired to continue treating applicant with Ultram for chronic pain, noting that she had approximately 50 percent decrease in pain and 50 percent increase in functionality with use of the medication. The IMR reviewer noted... [LexisNexis Commentary: This IMR decision provides a good template of how to obtain authorization for medication needed to cure or relieve an injured worker from the effects of his or her injury.]

CM18-0237059, Lexis Advance

Opioid Medications—Norco—Chronic Back Pain—IMR reviewer overturned UR decision denying treating physician’s request for Norco 10/325mg #150 based on the 2017 MTUS guidelines addressing opioid use for chronic pain. Here, 65-year old applicant suffered an industrial injury in 1975 and continues to suffer chronic back pain. The guidelines recommend use of opioids for treatment of both function and pain impaired by subacute or chronic severe pain when other treatments for functional restorative pain therapy have been attempted without adequate effect. Ongoing usage of opioid treatment beyond a trial period is dependent on its efficacy during the trial. Further, the guidelines...[LexisNexis Commentary: The IMR reviewer here provided a very detailed recitation of the guidelines for prescribing opioids and emphasized that the IMR decision addressed the medical necessity of opioids as they have been prescribed to this injured worker. This illustrates that the MTUS guidelines should not be applied mechanically but rather must be applied based on the needs of the particular patient. In this case, applicant’s quality of life would have been significantly diminished if the opioid prescription were denied.]