10 Jul 2019

California Workers' Comp Case Roundup (7/10/2019)

CALIFORNIA COMPENSATION CASES

Vol. 84 No. 6 June 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

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 Cases Not Originating With Appeals Board

Fields (Tommie) v. Interim Inc., Lexis Advance

Collateral Estoppel—Effect of Prior WCAB Adjudication—Court of Appeal, reversing judgment of trial court, held that trial court erred when it failed to find that defendant was collaterally estopped from presenting evidence that its termination of plaintiff/applicant’s employment was lawful, nondiscriminatory, good faith personnel action, when Court of Appeal found that, following his termination of employment by defendant, applicant brought workers’ compensation claim for psychiatric injuries, that defendant argued that its decision to terminate applicant’s employment was lawful, nondiscriminatory, good faith personnel action under Labor Code § 3208.3(h), meaning applicant was not entitled to benefits for his injuries, that WCJ rejected this argument and found that...

Ochoa v. Setton Pistachio of Terra Bella, Inc., Lexis Advance

Exclusive Remedy Rule—Power Press Exception—Strict Products Liability—Summary Judgment—Court of Appeal, affirming trial court’s order granting summary judgment in defendant’s favor, held that there was no triable issue as to whether auger that caused decedent employee’s death was power press, and that there was no triable issue as to whether non-employer defendant manufactured, sold, or distributed that auger or other augers, when Court of Appeal found that...

Digests of WCAB Decisions Denied Judicial Review

Editorial Board members Hon. Joel K. Harter, Richard M. Jacobsmeyer, John W. Miller, and Hon. Ralph Zamudio recommended some of the following writ denied cases for summarization in this issue.

City of Laguna Beach v. W.C.A.B. (Walloch, Greg), Lexis Advance

Credit—Overpayment of Permanent Disability—WCAB, affirming WCJ, held that defendant, government entity, was not entitled to credit against permanent disability awarded in applicant’s cumulative injury case for permanent disability indemnity advances that defendant overpaid in applicant’s specific injury case, when WCAB found that...

City of Los Angeles v. W.C.A.B. (Kriha, Mary Jane), Lexis Advance

Death Benefits—Statute of Limitations—Accrual of Claim—WCAB held that decedent, who died on 9/16/2014 from industrially-related prostate cancer incurred during his employment as police officer from 1964 through 5/6/2008, had Labor Code § 5412 date of injury, for purposes of timeliness of his widow’s claim for death benefits, of 4/29/2011, which was first date decedent knew or should have known his disability was caused by his employment, and WCAB affirmed WCJ’s…

Payne v. W.C.A.B. (Holder, Charles), Lexis Advance

Liens—Medical Treatment—Official Medical Fee Schedule—Independent Bill Review—WCAB affirmed WCJ’s finding that lien claimant who provided medical treatment to applicant between 11/30/2009 and 12/31/2012 was not entitled to fees above Official Medical Fee Schedule (OMFS) based on alleged extraordinary nature of medical services, when WCAB found that...

Pena (Miguel) v. W.C.A.B., Lexis Advance

Penalties—Delay in Providing Medical Treatment—Labor Code § 5814.5 Attorney’s Fees—WCAB, rescinding WCJ’s award of attorney’s fees in split panel decision, held that defendant who incurred penalty under Labor Code § 5814 for unreasonable delay in authorizing psychiatric treatment was not, in addition to penalty, liable for Labor Code § 5814.5 attorney’s fees, when WCAB panel majority reasoned that...

Qualcomm, Inc. v. W.C.A.B. (Brown, Beverly), Lexis Advance

Permanent Disability—Rating—Rebuttal of Scheduled Rating—WCAB affirmed WCJ’s finding that reporting of psychiatric agreed medical evaluator was substantial evidence to support WCJ’s finding that applicant, who suffered admitted industrial injury to her head on 4/2/2010 while working as administrative assistant, was permanently totally disabled from psychiatric symptoms and severe headaches related to her injury, when agreed medical evaluator assigned applicant GAF score of 35 under AMA Guides but found that impairment associated with scheduled GAF score did not accurately reflect severity of applicant’s disability, which agreed medical evaluator opined precluded applicant from gainful employment and participation in vocational rehabilitation, and WCAB found that...

Other WCAB Decisions Denied Judicial Review

Church of the Chimes v. W.C.A.B. (Mosrie, Ghassan), 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 because...

County of Humboldt v. W.C.A.B. (Hale, Cody), Lexis Advance

Presumption of Compensability—Cancer—Correctional Officers—WCAB affirmed WCJ’s finding that applicant, while employed as correctional deputy sheriff from 12/9/2005 to 12/1/2016 suffered compensable esophageal cancer, and that defendant did not rebut cancer presumption in Labor Code § 3212.1, when WCAB explained that...

County of Humboldt v. W.C.A.B. (Hale, Cody), Lexis Advance

Petitions for Writ of Review—Attorney’s Fees—Court of Appeal denied applicant’s request for attorney’s fees under Labor Code § 5801 in connection with defendant’s petition for writ of review…

Appeals Board Panel Decisions

Khachatrian (Shake) v. State of California Attorney General’s Office, Lexis Advance

Presumption of Compensability—Admissibility of Evidence—Good Faith Personnel Action Defense to Psychiatric Injury—WCAB, rescinding WCJ's decision in split panel opinion, 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 during period ending on 9/8/2016, and found that evidence of good faith personnel action defense is exempt from Labor Code § 5402(b) presumption, when WCAB panel majority reasoned that...

Mills (Gary) v. American Medical Response, Lexis Advance

Permanent Disability—Apportionment—Benson Exception—WCAB affirmed WCJ's finding that applicant was entitled to single, unapportioned award of 100 percent permanent disability as result of four separate specific and cumulative industrial injuries incurred during his employment as paramedic, when WCAB found no legal basis to apportion applicant's permanent disability between his separate industrial injuries pursuant to Labor Code § 4663 and Benson v. W.C.A.B. (2009) 170 Cal. App. 4th 1535, 89 Cal. Rptr. 3d 166, 74 Cal. Comp. Cases 113, notwithstanding that orthopedic agreed medical examiner was able to apportion applicant's orthopedic permanent disability consistent with Benson, where agreed medical examiner in internal medicine was unable to apportion applicant's internal disability between his separate dates of injury, and because there was no unanimity amongst physicians indicating that it was appropriate to apportion between dates of injury, WCJ properly made single, rather than apportioned, permanent disability award; WCAB further found that...

Independent Medical Review Decisions

CM18-0238572, Lexis Advance

Home Health Care—Antibiotic Treatment—Post-Surgery Infection—IMR reviewer overturned UR decision denying treating physician’s request for home health care antibiotic treatment to help combat a persistent infection following 80-year old applicant’s bilateral knee replacement surgery. Applicant’s infection had improved with wound care and intravenous antibiotics; however, treatments had stopped, and applicant’s infection worsened. The IMR expert noted that the MTUS 2017 guidelines for the treatment of chronic pain recommend short-term home health care following major surgery for some patients, and also selectively recommend home health care to prevent hospitalization, to overcome deficits in ADLs and to provide supportive/nursing care at home for those individuals who would otherwise require inpatient care. Although the ODG requires specific documentation regarding the underlying condition that necessitates home health care and the specific services being requested, in this case the IMR expert noted that... [LexisNexis Commentary: This IMR decision presents a situation in which failure to provide the requested antibiotic treatment could cause applicant’s infection to become life-threatening, and/or could result in the need for hospitalization. To avoid these potential consequences, the IMR reviewer decided to allow the antibiotics as medically necessary despite the limited information provided in the medical documentation.]

CM18-0244052, Lexis Advance

Home Health Care—Post-Total Knee Replacement Surgery—Nurse Follow-Up Visits—IMR reviewer overturned UR decision allowing only 6 of the requested 10–15 home health nurse follow-up visits for 59-year old applicant who underwent a total knee replacement and subsequently developed a staph infection and other complications. While hospitalized, applicant received ongoing skilled nursing care with intravenous antibiotics, pain management, wound care, physical therapy, and occupational therapy. The request for 10–15 nurse follow-up visits was part of applicant’s hospital discharge plan. In overturning the UR decision, the IMR expert explained that...[LexisNexis Commentary: This IMR decision is a good reminder that providing home health care can keep an applicant from requiring hospitalization, thereby decreasing the chance for infection and potentially decreasing the treatment costs incurred by the employer/insurer.]

Physical/Occupational Therapy—Post-Total Knee Replacement Surgery—IMR reviewer upheld UR decision allowing only 6 of the requested 10–15 physical therapy/occupational therapy (PT) sessions for applicant’s right lower leg as part of the hospital discharge plan following knee replacement surgery with subsequent complications. In upholding the UR decision, the IMR reviewer noted that...[LexisNexis Commentary: This IMR decision is an example of a case in which PT was authorized on a trial basis, with additional sessions permitted if applicant’s condition improves.]

CM19-0003829, Lexis Advance

Home Health Care—Chronic Pain—IMR expert overturned UR decision denying treating physician’s request for home health care services for 6 hours per day, 5 days per week to assist 75-year old applicant who suffered from chronic pain in her neck, back and knees and related functional deficits. The MTUS 2017 guidelines for the treatment of chronic pain recommend short-term home health care following major surgery for some patients, and also selectively recommend home health care to prevent hospitalization, to overcome deficits in ADLs and to provide supportive/nursing care at home for those individuals who would otherwise require inpatient care. Frequency of the care is individualized by the provider’s assessment and evaluation of the patient’s health care needs. To justify home health care, the ODG require that the medical records document the medical condition that necessitates home health services, including objective deficits in function and the specific activities precluded by such deficits; the expected kinds of services that will be required, with an estimate of the duration and frequency of such services; and the level of expertise and/or professional licensure required to provide the services. In weighing home health services versus inpatient care, home health services should generally be no more than 8 hours per day and no more than 28 hours per week. In this case, the medical record provided documentation that applicant is “homebound” and requires assistance with a full range of ADLs. The IMR reviewer noted that... [LexisNexis Commentary: This IMR is helpful because the IMR reviewer applied the MTUS and ODG guidelines to applicant’s specific circumstances and found that home health care should be allowed despite the fact that the anticipated duration of the home health care services was not specified in the request, because without such services applicant would require inpatient care.]

CM19-0003988, Lexis Advance

Home Health Care—Post-Spinal Surgery—RN Evaluation of Wound—IMR expert overturned UR decision denying treating physician’s request for an RN evaluation of 70-year old applicant’s wound following spinal surgery, and also overturned UR decision denying home health aide services for 4 hours per day, 2-3 times per week for 4 weeks to overcome deficits in applicant’s ADLs and for supportive care services. The MTUS 2017 guidelines for the treatment of chronic pain recommend short-term home health care following major surgery for some patients, and also selectively recommend home health care to prevent hospitalization, to overcome deficits in ADLs and to provide supportive/nursing care at home for those individuals who would otherwise require inpatient care. Frequency of the care is individualized by the provider’s assessment and evaluation of the patient’s health care needs. To justify home health care, the ODG require that the medical records document: the medical condition that necessitates home health services, including objective deficits in function and the specific activities precluded by such deficits; the expected kinds of services that will be required, with an estimate of the duration and frequency of such services; and the level of expertise and/or professional licensure required to provide the services. In weighing home health services versus inpatient care, home health services should generally be no more than 8 hours per day and no more than 28 hours per week. The IMR reviewer noted that the guidelines recommend home care following major surgical procedures. The request here was for a one-time wound evaluation due to concerns over potential slow healing. The IMR reviewer found that... [LexisNexis Commentary: This IMR is helpful because the IMR reviewer applies the MTUS and ODG guidelines to applicant’s specific circumstances and finds that post-surgical wound care evaluation and home health aide services were medically necessary based on the guidelines recommending home care following major surgery. The IMR reviewer emphasized that without home care services, applicant would likely require inpatient care.]

CM19-0017217, Lexis Advance

Home Health Care—Chronic Pain—IMR expert overturned UR decision denying treating physician’s request for home health care 3 times per week, 2 hours per day for 6 weeks to assist 55-year old applicant with ADLs such as cleaning and laundry. Applicant currently suffers from post-laminectomy syndrome and chronic pain syndrome causing pain as severe as 10 out of 10 on the pain scale, without relief even with use of opioid medication. Applicant has limited function due to her chronic severe pain, increased depression and anxiety and is in too much pain to improve her condition. Citing the MTUS 2017 treatment guidelines, the IMR reviewer noted that home health care is used to address select patient problems on a short-term basis. Such care is functionally based and cost effective in certain circumstances and reduces the risk of hospitalization. The IMR reviewer noted that... [LexisNexis Commentary: This IMR is helpful because the IMR reviewer provided a concise and easy-to-understand description of the MTUS criteria that must be met for authorization of home health care.]