06 Jun 2019

California Workers' Compensation Case Roundup (6/6/2019)

CALIFORNIA COMPENSATION CASES

Vol. 84 No. 5 May 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

Lexis Advance 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

Allied Signal Aerospace v. W.C.A.B. (Wiggs, Maxine), Lexis Advance

Home Health Care—Stipulations—House Cleaning—Utilization Review—Court of Appeal, annulling decision of WCAB and remanding to WCAB, held that WCAB had no jurisdiction to review medical necessity and reasonableness of home health care at issue in present case, when Court of Appeal found that...

Appellate Court Cases Not Originating With Appeals Board

Farhood (Victor) v. StrataCare, LLC, Lexis Advance

Confidential Medical Information—Disclosure—Court of Appeal, affirming trial court’s summary judgment in defendant’s favor, held that defendant did not “disclose” plaintiff’s medical information in violation of Confidentiality of Medical Information Act, Civil Code § 56.10(a), when Court of Appeal found that...

Moraga-Orinda Fire District v. Favro and Rogness (Stephen); Rattary (Michael), Rogness (Stephen), Marris (Kelly) v. Favro, Lexis Advance

Firefighter’s Rule—Statutory Exception—“Independent Cause” Exception—Court of Appeal, reversing trial court’s summary judgment in defendant’s favor, held that triable issues of fact would, if resolved in plaintiff’s favor, place case within statutory exception to firefighter’s rule set forth in Civil Code § 1714.9(a)(1), i.e., when conduct of person causing injury occurs after that person knows or should have known of presence of firefighter or emergency medical personnel, when Court of Appeal found that...

Appeals Board En Banc Decision

Wilson (Kris) v. State of CA Cal Fire, Lexis Advance

Psychiatric Injury—Catastrophic Injury—Increased Impairment Rating—Appeals Board, rescinding WCJ’s Findings and Award, held en banc that determination of whether injury is catastrophic under Labor Code § 4660.1(c)(2)(B) focuses on nature of injury and is fact-driven inquiry, when Appeals Board found en banc 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.

HomeGrocer.com v. W.C.A.B. (Dean, Susan), Lexis Advance

Stipulations—Setting Aside—WCAB, rescinding WCJ’s decision, found that defendant did not show good cause to be released from parties’ 12/4/2014 stipulation regarding applicant’s injured body parts, notwithstanding opinion rendered by qualified medical evaluator after stipulation was executed that applicant did not sustain industrial injury to various stipulated body parts, when WCAB found that...

State Compensation Insurance Fund v. W.C.A.B. (Devereux, Christopher), Lexis Advance

Permanent Disability—Rating—Combining Multiple Disabilities—WCAB, affirming WCJ’s decision, held that WCJ properly determined extent of applicant’s permanent disability by adding applicant’s ratable impairments from cognitive and cardiac/hypertension injuries, rather than combining them using Combined Values Chart (CVC), despite absence of medical evidence showing synergistic effect between impairments, when there was no overlap between cognitive and cardiac/hypertension impairments, and WCAB found that...

Vertis Communications v. W.C.A.B. (Garietz, Wallace), Lexis Advance

Permanent Disability—Commencement of Payments—Cost of Living Adjustments—WCAB held that, pursuant to Labor Code § 4650 and Brower v. David Jones Construction (2014) 79 Cal. Comp. Cases 550 (Appeals Board en banc opinion), defendant was obligated, for purposes of applicant’s entitlement to Cost of Living Adjustments (COLAs) under Labor Code § 4659, to commence payment of permanent total disability indemnity on date that applicant’s orthopedic injury became permanent and stationary in 2006, notwithstanding that applicant did not become entitled to permanent total disability indemnity until his psychiatric injury reached maximum medical improvement in 2015, when WCAB reasoned that...

Other WCAB Decisions Denied Judicial Review

Cerrillo (Demetrius) v. W.C.A.B., Lexis Advance

Petition for Writ of Review—Dismissed as Premature—Court of Appeal dismissed applicant’s Petition for Writ of Review in which applicant requested that WCJ’s Order Approving Compromise and Release (OACR) be set aside...

Ramirez-Leon (Jaime) v. W.C.A.B., Lexis Advance

Evidence—Medical Evidence—WCAB’s Duty to Develop Record—WCAB, granting reconsideration, rescinded WCJ’s decision in which WCJ found that applicant, while employed by defendant as delivery driver on 8/6/2014, sustained injury to his right shoulder with no temporary/permanent disability or need for medical treatment, and WCAB returned matter to trial level to permit applicant’s primary treating physician and panel qualified medical evaluator to review 2014 and 2017 MRIs along with any additional medical records and reports and, after reviewing MRIs, to provide further opinions regarding applicant’s condition, when WCAB found that...

Appeals Board Panel Decisions

Lopez (Javier) v. Sturtevant Farms, Lexis Advance

Permanent Disability—Apportionment—Prior Awards—WCAB, affirming WCJ's finding of 100 percent permanent disability, held that applicant laborer was not precluded from receiving award of permanent total disability for injury to his corticospinal tract, bladder and psyche under Labor Code § 4664(c)(1) based on prior award of 28 percent permanent disability, when WCAB, relying on Sanchez v. County of Los Angeles (2005) 70 Cal. Comp. Cases 1440 (Appeals Board en banc opinion), found that...

Orozco (Jorge) v. Southland Framers, Lexis Advance

Medical Treatment—Utilization Review—WCAB, affirming WCJ, held that defendant did not conduct timely utilization review (UR) of applicant's 5/9/2012 and 11/25/2014 requests for authorization for home health care services, thereby giving WCJ jurisdiction to determine medical necessity of disputed treatment, and further found that there was substantial evidence to support WCJ's determination that defendant was liable for home health care services after 5/1/2012 for up to 12 hours per day, seven days per week, based on opinions of applicant's treating physician and medical evidence establishing that applicant was “homebound” and unable to leave home or to perform activities of daily living without help, i.e., use of walker; WCAB noted that...

Independent Medical Review Decisions

CM18-0232595, Lexis Advance

Opioid Medications—Kadian and Morphine Sulfate—Spine Injury/Chronic Pain—IMR reviewer overturned treating physician’s request for Kadian ER 30mg #60 and Morphine Sulfate IR 15mg #45 based on the 2017 MTUS guidelines addressing opioid use for chronic pain. Here, 69-year old applicant suffered an industrial injury in 1997 and was undergoing treatment for post-laminectomy syndrome, lumbar intervertebral disc disorders with radiculopathy, dorsalgia, and chronic low back pain. She had been taking Kadian and Morphine Sulfate IR for at least 6 months. With medication usage, applicant rated her pain at 3 out of 10, and without medication her pain was rated at 9.5 out of 10. Applicant was able to walk and sit for short periods when using medication but could do neither without the medications. The ACOEM practice guidelines recommend... [LexisNexis Commentary: This IMR decision is instructive because the IMR reviewer provided a good discussion of the guideline requirements for approval of opioid medication and explained why applicant in this case satisfied the applicable criteria.]

CM19-0016741, Lexis Advance

Medical Marijuana—Physicians Specializing in Cannabis for Pain—IMR expert upheld UR decision denying treating physician’s request for referral of 65-year old applicant to a pain physician who specializes in prescribing cannabis for chronic pain control. The IMR expert noted that the 2017 MTUS is silent with regard to office visits and with respect to the use of cannabinoids. While the ODG encourages office visits for evaluation and management of injured workers’ conditions as dictated by their specific needs, these guidelines recommend against cannabinoids to treat pain. The IMR reviewer noted that... [LexisNexis Commentary: This IMR decision is useful to the workers’ compensation community in that it allows practitioners to understand the rationale behind a denial of certification for a referral to a pain physician who specializes in prescribing cannabis. Although marijuana is now legal in some states, it is still illegal under federal law and the applicable ODG guidelines recommend against its use for treatment of chronic pain. Here, the treating physician did not put forth any rationale to go against the guidelines in this particular case.]

CM19-0021422, Lexis Advance

Tertiary Pain Programs—Multidisciplinary Evaluation—Chronic Pain—IMR expert overturned treating physician’s request for multidisciplinary evaluation in case of 47-year old applicant who was undergoing treatment for chronic pain syndrome, personality disorder, bilateral carpal tunnel syndrome, and bilateral shoulder sprain. In addition to the pain from her physical injuries, applicant had psychiatric symptoms, including depression. Previous treatment included diagnostic studies, physical therapy, massage therapy, cognitive behavioral therapy, a pain management consult, psychological evaluation, biofeedback and treatment, follow up appointments, and medication including Cymbalta. Pursuant to the 2017 MTUS chronic pain guidelines... [LexisNexis Commentary: This IMR decision is instructive as the IMR reviewer explained the purpose behind tertiary pain programs and specifically detailed the criteria that must be met for an injured worker to be recommended for such a program, including demonstrated psychological symptoms in addition to physical symptoms.]