Cal. Comp. Cases March 2020

CALIFORNIA COMPENSATION CASES

Vol. 85 No. 3 Mar 2020

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 Case Not Originating With Appeals Board

Picazzo (Steven) v. C.W. Driver, Inc., Lexis Advance

Special Employment—Jury Queston—Court of Appeal, reversing judgment of trial court, held that whether Loyola Marymount University (LMU) was plaintiff/applicant’s special employer was question for jury, when Court of Appeal found that plaintiff/applicant was employed by Andrews International (Andrews) as security officer, that Andrews assigned plaintiff/applicant to work at LMU, that LMU was erecting new building, for which defendant was general contractor, that plaintiff/applicant suffered severe spinal cord injury when he tripped and struck his head at construction site, that Andrews’s workers’ compensation carrier, Liberty Insurance Corp. (Liberty), paid plaintiff/applicant benefits in amount of $2,849,209.62, that plaintiff/applicant sued defendant general contractor for negligence and premises liability, that LMU was not named defendant, that Liberty filed complaint in intervention seeking reimbursement from any third party tortfeasor for benefits it had paid, that jury found...

Federal Circuit Court Opinion of Related Interest

Dobbs v. TXI Riverside, Inc., Lexis Advance

Privette Doctrine—Exceptions—Summary Judgment—U.S. Court of Appeals, Ninth Circuit, reversing trial court’s summary judgment against plaintiff, held that triable issue of material fact existed as to whether exception to Privettev v. Superior Court (1993) 5 Cal. 4th 689, 21 Cal. Rptr. 2d 72, 854 P.2d 721, 58 Cal. Comp. Cases 420, doctrine saved plaintiff’s negligence claim from summary judgment, when Court of Appeals 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.

California Department of Corrections and Rehabilitation v. W.C.A.B. (Boyajian, Robert), Lexis Advance

Presumption of Industrial Causation—Correctional Officers—Exposure to Biochemical Substances—WCAB affirmed WCJ’s finding that applicant suffered industrial injury in form of prostate cancer while working as parole agent for defendant California Department of Corrections and Rehabilitation during period 2/11/82 through 5/10/2010, and concurred that Labor Code § 3212.85 presumption of industrial causation was applicable to applicant’s injury claim based on exposure to biochemical substances, when evidence established that applicant was exposed to CS and CN chemical agents (tear gas and mace) on several occasions in 1982 and 1989, and WCAB found that...

Forward (Victor) v. W.C.A.B., Lexis Advance

WCAB Jurisdiction—Res Judicata—WCAB affirmed WCJ’s finding that applicant was barred by res judicata from litigating claim in WCAB’s Anaheim District Office for cumulative trauma to multiple body parts ending on 3/30/2015 because same claim was previously litigated in Long Beach District Office and applicant was awarded no benefits, and WCAB reasoned that...

Kroger Co., The v. W.C.A.B. (Melton, Brenda), Lexis Advance

Permanent Disability—Rating—Rebuttal of Scheduled Rating—WCAB affirmed WCJ’s finding that applicant stock clerk who suffered industrial injuries to her psyche, back, neck, wrists, hands, knees, shoulders, and in forms of fibromyalgia and sleep loss during period 1/17/97 through 1/17/98, was permanently totally disabled from her injuries and was entitled to unapportioned award of 100 percent permanent disability, when agreed medical examiner and applicant’s vocational expert concluded that applicant was unable to compete in open labor market and was not amenable to vocational rehabilitation due chronic pain from her industrial injuries, including fibromyalgia, and WCAB found that...

State of California, Department of Corrections and Rehabilitation v. W.C.A.B. (Cortez, Gilbert), Lexis Advance

Death Benefits—Good Cause for Award—Credit and Offset for Special Death Benefits Paid by California Public Employees’ Retirement System—WCAB affirmed WCJ’s award of workers’ compensation death benefits under Labor Code § 4704 to decedent’s totally dependent son and partially dependent daughter, in amounts of $250,000 and $40,000, respectively, and found that defendant was not entitled to credit against its liability based on survival benefits paid by California Public Employees’ Retirement System (CalPERS) to dependent children or to offset under Labor Code § 4707 for basic special death benefits paid by CalPERS to decedent’s widow, who elected to receive special death benefits over workers’ compensation death benefits, and WCAB further found that...

United States Fire Insurance Co. v. W.C.A.B. (Bernasani, Monica), Lexis Advance

Permanent Disability—Rating—Rebuttal of Scheduled Rating—WCAB affirmed WCJ’s finding that applicant suffered permanent total disability as result of cumulative injuries to her back, neck, knees, wrists, shoulders, psyche, upper gastrointestinal system, and in forms of hypertension, headaches, and weight gain, while working as machine operator from 11/1/2004 through 1/10/2005, when orthopedic agreed medical examiner and applicant’s vocational expert concluded that applicant was not capable of returning to gainful employment due to extensive physical limitations caused by her industrial injuries, in addition to applicant’s need for housekeeping services, need for transportation assistance, reliance on cane, use of prescription medication, and lack of transferable job skills due to her work restrictions limiting her to sedentary work, and WCAB concluded that…

Other WCAB Decisions Denied Judicial Review

CareMeridian, LLC v. W.C.A.B. (Torres, Leonel), Lexis Advance

Compromise and Release Agreements—Setting Aside—Lien Claimant's Standing—WCAB denied lien claimant’s request to set aside Order Approving Compromise and Release in which applicant and defendant settled all issues related to temporary and permanent disability and also stipulated that applicant was in need of future medical treatment to cure and relieve from effects of 8/3/2015 injury to his brain, skull, facial bones, back, shoulders, legs, and ribs, when WCAB reasoned that...

San Diego Imaging, Inc. v. W.C.A.B. (Calderon, Fernando), Lexis Advance

Petitions for Writ of Review—Denied as Premature—Court of Appeal denied lien claimant’s Petition for Writ of Review as premature because...

Wesco Insurance v. W.C.A.B. (Gomez Ortiz, Evelio), Lexis Advance

Third-Party Settlements—Employer’s Right to Reimbursement—WCAB affirmed WCJ’s finding that defendant was not entitled to reimbursement for workers’ compensation benefits paid to applicant plumber following admitted industrial injury, from proceeds of applicant’s third-party civil recovery stemming from injuries sustained by applicant in automobile accident that occurred on 4/8/2016, which was same day as industrial injury, when WCAB found that...

Appeals Board Panel Decisions

Kiehlmeier (Linda) v. California Emergency Physicians Medical Group, Lexis Advance

Contribution Proceedings—Statute of Limitations—WCAB affirmed arbitrator's finding that 8/18/2017 Petition for Contribution filed by defendant Travelers Property and Casualty Company of America seeking contribution from defendant United States Fire Insurance Company for proceeds of Compromise and Release agreement was timely filed within one year of 4/12/2017 Order Approving Compromise and Release Agreement and not barred by statute of limitations in Labor Code § 5500.5(e), although Petition for Contribution was barred as to all Awards and benefits flowing from prior Findings and Awards, when WCAB reasoned that...

Contribution Proceedings—Burden of Proof—WCAB affirmed arbitrator's finding that defendant Travelers Property and Casualty Company of America (Travelers) was entitled to contribution from defendant United States Fire Insurance Company (US Fire) for proceeds of Compromise and Release Agreement entered into between Travelers and applicant settling applicant's claim for specific injury on 12/25/2005 and cumulative trauma from 2/15/2000 through 6/15/2006 to applicant's head, knees, neck, back, feet, hands, wrists, arms, elbows, and psyche for sum of $550,000.00, when WCAB reasoned that...

Worrell (Mark) v. San Diego Padres, Lexis Advance

WCAB Jurisdiction—Professional Athletes—WCAB rescinded WCJ's decision that applicant's claim for industrial injury incurred while playing professional baseball from 6/19/2004 to 5/8/2013 for various California and non-California teams, including defendant California-based San Diego Padres and its minor league affiliate Portland Beavers, was not exempt from California jurisdiction under Labor Code § 3600.5(d), and WCAB returned matter to trial level for determination of whether applicant worked 20 percent or more of his duty days as professional athlete in California or for California-based teams, when WCAB reasoned that...

Independent Medical Review Decisions

CM19-0133740, Lexis Advance

Psychotherapy—Cognitive Behavioral Therapy—Chronic Pain—IMR reviewer overturned UR determination denying treating physician’s request for 6 additional psychotherapy sessions to treat 42-year old applicant who suffered an industrial injury while working as a bus driver, resulting in multilevel cervical disc displacement with neck pain and radiculopathy, cervical facet syndrome, right shoulder impingement, and bilateral trapezius sprain. Applicant was also undergoing treatment for mental health issues including major depression, chronic pain syndrome, and pain disorder with related psychological factors, and had completed 5 psychotherapy sessions. The IMR expert noted that the MTUS/ACOEM 2017 guidelines recommend cognitive behavioral therapy (CBT) for the treatment of subacute and chronic pain. The guidelines support an initial set of 6 therapy sessions, with an additional 16–24 subsequent sessions contingent upon documentation of symptoms and functional progress in treatment. In this case, UR had denied the additional sessions of psychotherapy notwithstanding documentation of improved sleep, because there was no clear documentation that the therapy was producing functional improvement. The IMR reviewer acknowledged that... [LexisNexis Commentary: Although the documentation of applicant’s progress in psychotherapy was “marginal,” the IMR reviewer used the limited documentation in combination with the fact that applicant had fewer than 6 therapy sessions to justify approval of additional sessions. This was a creative approach that certified additional sessions even though the medical record, strictly speaking, did not justify the extra sessions.]

CM19-0136308, Lexis Advance

Psychotherapy—Cognitive Behavioral Therapy—Chronic Pain—IMR reviewer overturned UR determination denying treating physician’s request for 12 one-hour sessions of patient/family psychotherapy. In this case, 62-year old applicant suffered an industrial injury in 2005 and was undergoing treatment for low back pain, lumbar spondylosis with radiculopathy, and major depressive disorder, anxiety and insomnia. Her physician prescribed 12 sessions of psychotherapy for chronic pain management with an emphasis on cognitive behavioral therapy (CBT) and stress management. The IMR expert noted that the MTUS/ACOEM 2017 guidelines recommend CBT for the treatment of subacute and chronic pain. The guidelines support an initial set of 6 therapy sessions, with an additional 16–24 subsequent sessions contingent upon documentation of symptoms and functional progress in treatment. Additionally, the guidelines state that while 4 to 6 sessions of CBT should be sufficient to provide evidence of symptom improvement, functional improvement is generally not seen without additional sessions. Here, UR had denied the request for psychotherapy based on the finding that applicant’s depression was at least in part caused by opioid dependence. In reviewing UR’s decision, the IMR expert noted that... [LexisNexis Commentary: In this case, the IMR expert made a rare decision to bypass the MTUS and ODG guidelines recommending a maximum of 6 initial psychotherapy sessions and approved an initial request for 12 sessions, where applicant had a significant history of depression and anxiety yet had never received psychological treatment for her condition. In getting the treatment approved, it was helpful that the documentation submitted contained a QME report, which is often more comprehensive than reports provided by the treating physician and likely provided additional information to support the treatment request.]

CM19-0137011, Lexis Advance

Psychotherapy—Cognitive Behavioral Therapy and Evaluation—Chronic Pain—IMR expert overturned UR determination denying treating physician’s request for cognitive behavorial evaluation but upheld the UR denial of cognitive behavioral therapy. In this case, 72-year old applicant sustained an industrial low back injury in 1988, resulting in 5 surgical interventions and intractable back pain radiating to her right hip and causing weakness on that side. The MTUS/ACOEM 2017 guidelines recommend a psychological evaluation as part of the evaluation and management of patients with chronic pain in order to identify psychosocial factors that may be affecting recovery, and/or assess situations of inadequate recovery, including continued dysfunction in excess of the normal recovery time. UR denied the request for a cognitive behavioral evaluation based in part on the rationale that there was limited documentation that applicant demonstrated any behavior problems or anxiety. The IMR reviewer acknowledged that... [LexisNexis Commentary: The IMR reviewer provided an extremely detailed rationale for allowing the request for a cognitive behavioral evaluation, even though there was limited medical evidence provided to support the request. However, absent medical documentation regarding applicant’s mental health status and without any psychological evaluation to date, the IMR reviewer found the request for psychotherapy to be premature.]