08 Mar 2019

California Workers' Comp Case Roundup (March 8, 2019)

CALIFORNIA COMPENSATION CASES

Vol. 84 No. 2 Feb 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

Ortega (Evelyn) v. Dignity Health, Inc., Lexis Advance

Fair Employment and Housing Act—Injury AOE/COE—Reasonable Accommodation—Engaging in Interactive Process—Evidence—Court of Appeal, affirming trial court judgment, held that substantial evidence supported jury’s verdict that defendant employer did not fail to provide reasonable accommodation for plaintiff employee’s injury and did not fail to engage in interactive process, as mandated by Fair Employment and Housing Act, Government Code § 12900 et seq., when Court of Appeal found that...

Digests of WCAB Decisions Denied Judicial Review

Editorial Board members Hon. Jacqueline C. Duncan, Susan Hamilton, James Pettibone, and Kenny Sheppard recommended some of the following writ denied cases for summarization in this issue.

County of Alameda v. W.C.A.B. (Cortes, Brenda), Lexis Advance

Permanent Disability—Rating—Combining Multiple Disabilities—WCAB affirmed WCJ’s finding that applicant who suffered cumulative orthopedic injury to multiple body parts and compensable consequence psychiatric injury was 100 percent permanently disabled from her injuries, and held that WCJ properly determined extent of applicant’s permanent disability by adding her ratable orthopedic impairments and then adding her psychiatric impairment to her orthopedic impairment, rather than by combining impairments using Combined Values Chart (CVC), when WCAB concluded that...

Permanent Disability—Apportionment—Preexisting Nonindustrial Condition—WCAB affirmed WCJ’s finding that 20 percent of applicant’s psychiatric permanent disability was apportionable to nonindustrial causes, and rejected defendant’s assertion that WCJ should have apportioned 25 percent of permanent disability based on opinion of psychiatric agreed medical examiner that five percent of applicant’s psychiatric disability (in addition to 20 percent already apportioned) was caused by stress from her divorce, when applicant testified that she was relieved by divorce, and WCJ determined that...

Lapesarde (Toby) v. W.C.A.B., Lexis Advance

Injury AOE/COE—Going and Coming Rule—Special Risk Exception—WCAB, reversing WCJ, held that applicant, injured in head-on traffic collision on 10/27/2014 while driving home after finishing overtime shift as licensed vocational nurse, did not sustain injury AOE/COE, when WCAB found that...

Other WCAB Decisions Denied Judicial Review

Dal Poggetto & Co. LLP v. WC.A.B. (Mizzi, Sheree), Lexis Advance

Evidence—Admissibility—Vocational Expert Reports—WCAB affirmed WCJ’s finding that applicant exercised due diligence in obtaining report of vocational expert one year from date agreed medical examiner issued his report, and that vocational expert report was admissible at trial, when WCAB found that...

Permanent Disability—Rating—WCAB’s Duty to Develop Medical Record—WCAB affirmed WCJ’s order reopening discovery for further development of record on issue of applicant’s permanent disability, when reports of psychiatric agreed medical examiner assigning zero impairment rating for applicant’s language deficit did not constitute substantial evidence because he did not explain “how and why” he assigned this impairment rating, especially given that AMA Guides supported higher impairment rating for language deficits, and WCAB found that...

Luis (Teodulfa) v. W.C.A.B., Lexis Advance

Medical Evidence—Substantial Evidence—WCAB affirmed WCJ’s findings that applicant who suffered industrial orthopedic injuries to her lumbar spine, cervical spine, right knee, and right upper extremity on 12/9/2013, and claimed to have sustained industrial injury to her back, right knee, and right hip on 5/26/2015, while working as bakery assistant, did not have any impairment or disability related to 2013 incident and did not sustain injury AOE/COE in 2015, that any impairment or disability applicant may have been experiencing was due to prior work-related injuries, and that applicant was not in need of further medical treatment, when WCJ’s findings were based on opinion of agreed medical examiner, and WCAB concluded that...

Appeals Board Panel Decisions

Gault (Brian) v. Americana Vacation Clubs, Inc., Lexis Advance

WCAB Jurisdiction—Progressive Insidious Diseases—WCAB, amending WCJ's decision, held that effects of long-term antibiotic treatment required to treat applicant's industrially-related knee infection was equivalent to insidious progressive disease as described in General Foundry Service v. W.C.A.B. (Jackson) (1986) 42 Cal. 3d 331, 721 P.2d 124, 228 Cal. Rtpr. 243, 51 Cal. Comp. Cases 375, thereby justifying WCAB's reservation of jurisdiction to award additional permanent disability beyond five-year limitation period in Labor Code § 5410 and 5804, when WCAB reasoned that...

Grahe (Joe) v. Philadelphia Phillies, Lexis Advance

WCAB Jurisdiction—Professional Athletes—WCAB affirmed WCJ's finding that applicant's workers' compensation claim for injuries he incurred during period 6/1/90 to 9/1/2000 while playing professional baseball for multiple teams was not barred by Labor Code § 3600.5(d), but held that applicant could not recover against Philadelphia Phillies (Phillies) in California workers' compensation system because portion of claim asserted against Phillies was barred by Labor Code § 3600.5(d), when WCAB found that...

Prado (Sierra) v. PCG Hospitality, Lexis Advance

Medical Provider Networks—Liability for Outside Treatment—Medical Access Assistants—WCAB, in split panel opinion, affirmed WCJ's finding that Medical Access Assistant's (MAA) failure to schedule appointment with applicant's selected MPN physician pursuant to 8 Cal. Code Reg. § 9767.5 was not denial of medical care justifying treatment outside MPN, when WCAB panel majority found that...

Independent Medical Review Decisions

CM18-0194499, Lexis Advance

Total Hip Replacement—Inpatient Hospital Stay—Hip Osteoarthritis—IMR reviewer overturned UR denial of treating physician’s request for left anterior total hip replacement with 2-day post-surgery hospital stay. Surgery was requested following failure of conservative treatment, including corticosteroid injection, to manage 65-year old applicant’s hip pain secondary to end-stage arthrosis. The IMR reviewer cited the 2011 MTUS surgical guidelines for the hip and groin, which recommend arthroplasty to improve pain and function in patients with moderate to severe hip disease who exhibit degeneration of joints, limitations in activities of daily living or occupational tasks and failure to manage symptoms with conservative treatment. The Non-MTUS ODG for hip and pelvis arthroplasty cited by the IMR reviewer recommend that surgery be delayed for at least 3 months, and preferably 1 year, following corticosteroid hip injection to decrease risk of infection. Here, applicant had persistent and worsening hip pain, significant functional limitation and overall declining quality of life. Clinal examination and radiographic evidence showed end-state left hip osteoarthritis, and conservative treatment did not provide relief. The IMR reviewer concluded that…[LexisNexis Commentary: This IMR decision is instructive as the IMR reviewer did an excellent job of setting forth the relevant guidelines for hip replacement and applying them to applicant’s medical condition, physical symptoms, disability, and need for post-surgery hospital stay.]

CM18-0195596, Lexis Advance

Lumbar Decompression—Disc Herniation and Radiculitis—IMR reviewer overturned UR denial of treating physician’s request for lumbar decompression at L3-4 and L4-5 to treat 38-year old applicant who suffered low back injury while moving a heavy box, resulting in multilevel disc herniation with nerve impingement and radiculopathy. In approving the requested treatment, the IMR reviewer cited the 2016 MTUS surgical guidelines for low back disorders, which state that decompression surgery is moderately recommended to speed recovery in patients with radiculopathy due to ongoing nerve root compression who continue to have significant pain and functional limitation after 4 to 6 weeks and after attempting conservative therapy. Here, applicant had... [LexisNexis Commentary: This IMR decision demonstrates the importance of assessing an injured worker’s functional limitations in determining whether certain treatment is medically necessary and emphasizes that use of “probative phrases” such as “functional limitations” by treating physicians in the supporting documentation can be important to establish that the requested treatment meets the applicable guideline criteria.]

CM18-0196086, Lexis Advance

Inpatient Rehabilitation Program—Traumatic Brain Injury—IMR reviewer overturned UR decision allowing only 14 days of requested 30 days (with weekends home) participation in inpatient rehabilitation program for 41-year old applicant who suffered a traumatic brain injury when a carpet roll thrown from the second floor hit him in the head. As a result of the injury, applicant suffers from physical and cognitive symptoms, including headaches, impaired motor coordination and vision, behavioral problems, and speech and reasoning/processing deficits. He also suffers from increased anger, irritability, severe depression, and suicidal ideation. The 2017 MTUS guidelines addressing rehabilitation programs for patients with traumatic brain injuries, as relied upon by the IMR expert in this case, recommend... [LexisNexis Commentary: This IMR decision provides an interesting analysis of the criteria that must be met in traumatic brain injury cases to justify an inpatient rather than outpatient rehabilitation program and emphasizes the importance of continuing treatment that will facilitate functional gains. The decision also emphasizes that use of “probative phrases” such as “functional limitations” and “functional gains” by treating physicians in the supporting documentation can be important to establish that the requested treatment meets the applicable guideline criteria.]