November 2019 California Compensation Cases

CALIFORNIA COMPENSATION CASES

Vol. 84 No. 11 Nov 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 Cases Not Originating With Appeals Board

California Insurance Guarantee Association v. San Diego County Schools Risk Management Joint Powers Authority, Lexis Advance

Jurisdiction—Reinsurance—California Insurance Guarantee Association—Court of Appeal, reversing judgment of superior court, held that superior court had jurisdiction over dispute between employer and CIGA (in place of employer’s insolvent excess insurer) to determine applicant’s date of injury even if its decision was contrary to that of WCAB, when Court of Appeal found that...

McCormick (Cari) v. California Public Employees’ Retirement System, Lexis Advance

California Public Employees’ Retirement System—Disability Retirement—Court of Appeal, reversing trial court’s order denying petition for writ of administrative mandate and remanding matter, held that trial court applied wrong legal standard since employees are eligible for CalPERS disability retirement under Government Code § 21156 when, due to disability, they can no longer perform their usual duties at only location where employer will allow them to work, even if they might be able to perform those duties at some theoretical different location, when Court of Appeal found that…

Federal Circuit Court Opinion of Related Interest

Gutierrez (Jose) v. McNeilus Truck and Manufacturing, Inc., Lexis Advance

Third Party Action—Removal to Federal Court—U.S. District Court, Northern District of California, denying plaintiff’s motion to remand, held that action was not nonremovable pursuant to 28 U.S.C.S. § 1445(c), because action did not arise under California’s workers’ compensation law, when U.S. District Court found that...

Digests of WCAB Decisions Denied Judicial Review

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

Barrett Business Services, Inc. v. W.C.A.B. (Chavez, Noe), Lexis Advance

Temporary Disability—Duration—Permanent and Stationary Conditions—WCAB affirmed WCJ’s finding that applicant, who suffered industrial injuries to his left knee, lumbar spine, shoulders, right elbow, right wrist, upper gastrointestinal system, psyche, sleep, bowel, and in the form of hypertensive cardiovascular disorder on 1/23/2012, became permanent and stationary with respect to his injuries on 1/30/2017, based on opinion of treating psychiatrist, and that orthopedic agreed medical evaluator’s subsequent opinion that applicant’s medical condition...

Permanent Disability—Rating—Rebuttal of Scheduled Rating—WCAB affirmed WCJ’s finding that, pursuant to principles in Ogilvie v. W.C.A.B. (2011) 197 Cal. App. 4th 1262, 129 Cal. Rptr. 3d 704, 76 Cal. Comp. Cases 624, and LeBoeuf v. W.C.A.B. (1983) 34 Cal. 3d 234, 193 Cal. Rptr. 547, 666 P.2d 989, 48 Cal. Comp. Cases 587, applicant suffered permanent total disability as result of industrial orthopedic injury to multiple body parts, gastrointestinal problems, hypertensive cardiovascular disorder, psychiatric injury, and problems with her bowels and sleep, when there was substantial medical evidence indicating that applicant was not amenable to vocational rehabilitation and was unable to return to labor market, and WCAB found that...

Permanent Disability—Rating—Combining Multiple Disabilities—WCAB, affirming WCJ’s finding of permanent total disability, held that WCJ properly determined that most accurate assessment of applicant’s overall permanent disability was achieved by adding her orthopedic and non-orthopedic impairments as described in Athens Administrators v. W.C.A.B. (Kite) (2013) 78 Cal. Comp. Cases 213 (writ denied), rather than combining impairments using Combined Values Chart, when orthopedic agreed medical evaluator described in detail synergistic effects of applicant’s orthopedic and non-orthopedic disabilities, and explained why adding disabilities was most accurate reflection of applicant’s overall permanent disability, and WCAB found that...

Penalties—Delay in Paying Permanent Disability Advances—WCAB affirmed WCJ’s award of penalties under Labor Code §§ 4650 and 5814 for defendant’s late payment of permanent disability benefits, when defendant failed to advance permanent disability owed to applicant for over six months after temporary total disability was last paid, thereby resulting in 10 percent penalty pursuant to Labor Code § 4650, and WCAB concluded that...

County of Fresno v. W.C.A.B. (Shanen, Geoffery), Lexis Advance

Presumption of Industrial Causation—Cancer—Peace Officers—WCAB held that cancer presumption in Labor Code § 3212.1 applied to applicant deputy sheriff’s claim for tonsil and prostate cancers against County of Fresno (Fresno), applicant’s employer from 2/10/97 to 3/31/2005, but that presumption did not apply to applicant’s claim against County of San Bernardino (San Bernardino), applicant’s employer from 1973 to 1977 and from 1982 to 2/10/97, when WCAB reasoned that...

Statute of Limitations—Cumulative Injuries—Date of Injury—WCAB rescinded WCJ’s findings that applicant’s date of injury for tonsil and prostate cancers was 10/16/2008 and that his claim filed more than one year later on 2/4/2011 against multiple employers was barred by statute of limitations, when WCAB held that...

Petitions for Reconsideration—WCAB's Time to Act on Petition —WCAB held that 60-day period in Labor Code § 5909 for WCAB to act on petition for reconsideration begins to run day after petition is filed, not on date of filing as argued by defendant, and that, in this case, WCAB...

Diaz (George) v. W.C.A.B., Lexis Advance

Permanent Disability—Apportionment—WCAB affirmed WCJ’s award of 93.75 percent permanent disability as result of applicant laborer’s 4/15/92 industrial injury to his neck, psyche, left shoulder, upper extremities, and neurological system in form of headaches, and held that WCJ properly apportioned 30 percent of permanent disability to prior industrial low back injury, despite applicant’s assertion that he was permanently totally disabled and that apportionment was not justified based on presumption of permanent total disability for loss of use of both hands under Labor Code § 4662(a)(2) and based on Hikida v. W.C.A.B. (2017) 12 Cal. App. 5th 1249, 219 Cal. Rptr. 3d 654, 82 Cal. Comp. Cases 679, when WCAB found that...

State of California/Department of Hospitals-Vacaville v. W.C.A.B. (Ham, Dores), Lexis Advance

Permanent Disability—Apportionment—Preexisting Conditions—WCAB, in split panel decision, affirmed WCJ’s finding that applicant suffered 28 percent permanent disability as result of partial amputation of left foot necessitated after applicant, while employed as janitor on 6/4/2009, developed blister and contracted Methicillin-resistant Staphylococcus aureus, and WCAB panel majority determined that reports of orthopedic agreed medical examiner and internal medicine agreed medical examiner did not constitute substantial evidence to support apportionment of applicant’s permanent disability to his nonindustrial diabetic neuropathy pursuant to Labor Code § 4663, even though both doctors stated that applicant’s preexisting diabetes contributed to need for partial left foot amputation, when WCAB found that...

Sturtevant Farms v. W.C.A.B. (Lopez, Javier), 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, notwithstanding defendant’s assertion that Labor Code § 4664(c)(1), which prohibits awards of more than 100 percent permanent disability for any one body region, required that applicant’s prior award of 28 percent permanent disability for 2000 and 2001 back injuries must be deducted from his current permanent disability award, when WCAB found that...

Other WCAB Decisions Denied Judicial Review

Brown (Janine) v. W.C.A.B., Lexis Advance

Injury AOE/COE—Medical Evidence—Substantial Evidence—WCAB, affirming WCJ’s decision, held that decedent did not sustain industrial injury to his heart on 7/20/2016 or to his cerebrovascular system during cumulative period ending on 7/20/2016, and that decedent’s dependents were not allowed to conduct further discovery by obtaining report from cardiologist discussing whether decedent suffered from any condition that constituted “heart trouble” for purposes of Labor Code § 3212.10 presumption and whether, independent of “heart trouble” presumption, industrial stress contributed to decedent’s stroke, when WCAB found that...

City and County of San Francisco v. W.C.A.B. (Shaheed, Thaddeus), Lexis Advance

Injury AOE/COE—Medical Evidence—Substantial Evidence—WCAB affirmed WCJ’s finding that applicant suffered cumulative injury to his neck, back, upper extremities, shoulder, arms, elbows, hands, wrist, and finger, while working as customer service agent during period ending on 12/5/2017, based on opinion of applicant’s primary treating physician that applicant had chronic overuse syndrome pain in cervical spine and thoracic spine due to his non-ergonomic workstation, and that pain was aggravated by mild obesity and minimal degenerative changes, when WCAB concluded that...

Gill v. W.C.A.B. (Rubalcava, Gustavo), Lexis Advance

Employment Relationships—Employee vs. Independent Contractor—WCAB affirmed WCJ’s finding that applicant dispatcher was employee of defendant trucking company and not independent contractor when he was injured in head-on motor vehicle accident while using his cell phone to perform dispatch duties for defendant, when WCAB, applying factors in S. G. Borello & Sons, Inc. v. Dept. of Industrial Relations (1989) 48 Cal. 3d 341 [769 P.2d 399, 256 Cal. Rptr. 543, 54 Cal. Comp. Cases 80], concluded that...

Kloeckner USA Holdings v. W.C.A.B. (De La Rosa, Leonard), Lexis Advance

Permanent Disability—Rating—Conclusive Presumption of Total Disability—WCAB affirmed WCJ’s finding that applicant, while employed as plant operating manager on 10/8/2012, suffered industrial injury causing, among other injuries, mental incapacity as provided in Labor Code § 4662(a)(4), thereby entitling applicant to unapportioned award of 100 percent permanent disability, when panel qualified medical evaluator opined that applicant’s industrial head injury aggravated or “lit up” his preexisting neurodegenerative disorder, resulting in profound cognitive dysfunction, and WCAB concluded that...

Independent Medical Review Decisions

CM19-0035006, Lexis Advance

Transportation Costs—Medical Appointments—IMR reviewer overturned UR denial of treating physician’s request for transportation costs to 1 medical appointment. Here, 61-year old applicant was undergoing treatment for post-laminectomy syndrome, cervical spine radiculopathy, lumbar spine radiculopathy, traumatic brain injury, chronic pain syndrome, post-concussive syndrome, and left shoulder impingement syndrome, and required a home health aide to help him with his ADLs. In finding the requested transportation reasonable, the IMR reviewer cited the ODG, Knee and Leg Chapter under Transportation, which recommend medically necessary transportation to and from medical appointments for patients age 55 or older and in need of “a nursing home level of care.” Additionally, the IMR reviewer noted... [LexisNexis Commentary: This IMR decision is helpful to alert treating physicians requesting transportation costs that they must explain that even if the injured worker is not living in a nursing home, he or she still needs “a nursing home level of care” as described in the guidelines and, therefore, needs transport to and from medical appointments.]

CM19-0091219, Lexis Advance

Computed Tomography (CT) Scan—Right Knee Osteoarthritis—Obesity—IMR reviewer overturned UR decision denying treating physician’s request for CT scan of 58-year old applicant’s right knee, where applicant had severe right knee osteoarthritis and was a candidate for knee arthroplasty. Applicant’s ability to exercise was limited due to her obesity, and she was unlikely to be able to lose weight without surgery. However, applicant’s situation was complicated by the fact that she needed to lose weight before surgery could be considered. The MTUS/ACOEM 2019 guidelines for knee disorders recommend CT scan for pre-surgical planning. The IMR reviewer... [LexisNexis Commentary: This IMR decision discusses applicant’s need for weight loss prior to undergoing surgery for her industrial knee condition. Although surgery was not yet requested, a CT scan was necessary in preparation for future surgery.]

CM19-0091300, Lexis Advance

Prescription Medications—Antidepressants/Anticonvulsants for Chronic Pain—Duloxetine/Topamax—IMR reviewer overturned UR decision denying treating physician’s request for antidepressant Duloxetine 30 mg #30, and anticonvulsant Topamax 100 mg #30, to treat applicant’s chronic pain. The MTUS/ACOEM 2019 guidelines cited by the IMR reviewer recommend Duloxetine for CRPS that is sufficient to require medication, especially if other modalities and medications have failed. Although anticonvulsants are generally not indicated, the guidelines state that they may be considered for severe, chronic CRPS as a fourth-line or fifth-line treatment, after strengthening exercises and medications (including NSAIDs, bisphosphonates and certain antidepressants) have failed, and that patients using these anticonvulsants for pain should be monitored for adverse effects. In this case, 54-year old applicant suffers from CRPS with cervical spine and upper extremity pain following industrial injury. The IMR reviewer noted that... [LexisNexis Commentary: The IMR reviewer in this case provided a good explanation as to why the requested prescriptions were medically necessary to treat applicant’s chronic pain pursuant to the applicable MTUS/ACOEM guidelines. Interestingly, the IMR reviewer noted that it is unwise to discontinue a stable medication prior to spinal cord stimulator placement, and also emphasized that there is no medical necessity for brand name medication where there is a cheaper generic version available.]