CALIFORNIA COMPENSATION CASES

Vol. 82 No. 8 August 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

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Appellate Court Compensation Case

Baker v. W.C.A.B. (Guerrero, Jim), Lexis Advance

Subsequent Injuries Benefits Trust Fund—Commencement of Benefits—Court of Appeal, affirming WCAB decision, held that Subsequent Injuries Benefits Trust Fund benefits commence at time employer’s obligation to pay permanent disability benefits begins, when…

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Appellate Court Cases Not Originating With Appeals Board

Alvarez v. Seaside Transportation Services LLC, Lexis Advance

Summary Judgment—Privette Doctrine—Retained Control—Burden of Proof—Court of Appeal, affirming trial court’s grant of summary judgment in favor of defendants, held that defendants met their burden as moving parties on summary judgment and that plaintiff did not raise triable issues of material fact as to...

CSAC Excess Insurance Authority v. California Insurance Guarantee Association, Lexis Advance

California Insurance Guarantee Association—Covered Claims—Excess Insurance—Court of Appeal, affirming judgment of trial court, held that obligation for excess insurance is incurred on date of injury, not on date of exhaustion of retention, and that…

Espejo v. The Copley Press, Inc., Lexis Advance

Employment Relationships—Misclassification of Workers—Court of Appeal, affirming in part, reversing in part and remanding with directions to redetermine class award, attorney fees, and prejudgment interest, held that…

Digests of WCAB Decisions Denied Judicial Review

CompWest Insurance Co. v. W.C.A.B. (Gonzalez, Theodoro), Lexis Advance

Permanent Disability—Rating—Rebuttal of Scheduled Rating—Court of Appeal denied defendant’s Petition for Writ of Review challenging WCAB’s finding that applicant die setter/punch press operator suffered 100 percent permanent disability as result of 11/4/2008 industrial injury to his right upper...

Liberty Mutual Insurance Co. v. W.C.A.B. (Schnore, James, Dec’d), Lexis Advance

Employment Relationships—Employees vs. Independent Contractors—Court of Appeal denied defendant’s Petition for Writ of Review challenging WCAB’s findings that applicant truck driver was defendant’s employee, rather than independent contractor, at time he …

Marroquin (Joel) v. W.C.A.B., Lexis Advance

Post-Termination Claims—Court of Appeal denied applicant’s Petition for Writ of Review challenging WCAB’s finding that applicant’s claim for 11/18/2015 industrial back injury was barred by post-termination defense in Labor Code § 3600(a)(10) because he did not file claim for compensation until after…

Other WCAB Decisions Denied Judicial Review

Fabian (Sharon) v. W.C.A.B., Lexis Advance

Petitions for Writ of Review—Dismissal—Premature—Court of Appeal dismissed applicant’s Petition for Writ of Review as premature pursuant to Labor Code §§ 5900 and 5950, when applicant challenged...

Hartzheim Dodge, Inc. v. W.C.A.B. (Navarro, Juan), Lexis Advance

Petitions for Writ of Review—Dismissal—Premature—Court of Appeal dismissed defendant’s Petition for Writ of Review as premature, when Court of Appeal concluded that decision challenged by defendant, in which WCAB found that issue of...

Machado (Cindy) v. W.C.A.B., Lexis Advance

Psychiatric Injury—Substantial Evidence—Court of Appeal denied applicant’s Petition for Writ of Review challenging WCAB’s finding that applicant did not suffer psychiatric injury AOE/COE as compensable consequence of industrial injuries to her head, neck, and jaw, when WCAB determined...

Macy’s Inc. v. W.C.A.B. (Alaei-Nia, Fereshteh), Lexis Advance

Psychiatric Injury—Actual Events of Employment as Predominant Cause—Stipulations—Court of Appeal denied defendant’s Petition for Writ of Review challenging WCAB’s finding that applicant suffered compensable psychiatric injury on 6/29/2013 as result of stressful interrogation/ interview at work, which WCAB determined…

Pomona Unified School District v. W.C.A.B. (Kosinski, Kristina), Lexis Advance

Medical Treatment—Mileage Reimbursement—Court of Appeal denied defendant’s Petition for Writ of Review challenging WCAB’s finding that defendant was liable for medical mileage reimbursement for expenses incurred by applicant after her 2/19/2008 permanent and stationary date, when WCAB found that...

Tokio Marine and Nichido Fire Insurance Co. v. W.C.A.B. (Valenzuela, Sergio), Lexis Advance

California Insurance Guarantee Association—Reimbursement—Other Insurance—Court of Appeal denied Petition for Writ of Review filed by Tokio Marine and Nichido Fire Insurance Co. (Tokio Marine) challenging WCAB’s finding that California Insurance Guarantee Association was entitled to reimbursement from …

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.

Hernandez Orozco (Antonio) v. Ronald McDonald Farms, Lexis Advance

Third-Party Actions—Employer’s Claim for Credit—Waiver of Credit Rights—WCAB held that defendant Zenith Insurance Company (Zenith) did not expressly waive or settle its right to seek credit pursuant to Labor Code § 3861 for future benefits due to...

Langdon (Darren) v. New Jersey Devils, Lexis Advance

WCAB Jurisdiction—Professional Athletes—Subject Matter Jurisdiction—WCAB, affirming WCJ, held that it had jurisdiction pursuant to Labor Code §§ 3600.5(a) and 5305 over applicant’s claim that he suffered cumulative injury while employed as …

Morales (Maria) v. Montebello Unified School District, Lexis Advance

Liens—Medical—Reasonableness of Charges—Burden of Proof—WCAB affirmed WCJ‘s finding that lien claimant Monrovia Memorial Hospital (Monrovia) was entitled to $45,825.62, and nothing more, as reasonable cost for services...

Torres (Jesus) v. Greenbrae Management, Lexis Advance

Psychiatric Injury—Violent Acts—Increased Permanent Disability—WCAB rescinded WCJ’s award of 57 percent permanent disability and instead awarded applicant 78 percent permanent disability for injuries incurred on 1/8/2014 when …

Permanent Disability—Rating—Sleep and Sexual Dysfunction—WCAB held that applicant who was awarded permanent disability for 1/8/2014 industrial injuries to his head, neck, back, ears, and psyche, was precluded by Labor Code § 4660.1(c)(1) from receiving increased permanent disability for sleep disorder and sexual dysfunction, when …

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.

CM17-0047373, Lexis Advance

Radiofrequency Ablation—Low Back Pain—IMR expert reviewer overturned UR denial of repeat lumbar radiofrequency ablation bilaterally at L4-5 and L5-S1, based on the 2004 MTUS guidelines regarding...

CM17-0047578, Lexis Advance

Laminectomy—Hospital Stay—Low Back Injury—IMR expert reviewer overturned UR determination denying physician’s request for authorization for left L3-4 interlaminar laminectomy surgery with 1 day inpatient hospital stay, based on...

CM17-0059089, Lexis Advance

Opioid Medications—Bilateral Knee Injury—IMR expert reviewer overturned UR determination modifying treating physician’s request for opioid medication, based on Section 3 of the 2016 MTUS opioid treatment guidelines, addressing opioid treatment for chronic pain....

CM17-0061627, Lexis Advance

Total Knee Replacement—Bilateral Degenerative Knee Joint Disease—IMR expert reviewer upheld UR determination denying physician’s request for bilateral total knee replacement, based on non-MTUS Citation Official Disability Guidelines (ODG) knee & leg/knee joint replacement.…