California Compensation Cases April 2022

CALIFORNIA COMPENSATION CASES

Vol. 87, No. 4 April 2022

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

Trigueros (Rogelio) v. W.C.A.B., Lexis

Medical-Legal Procedure—Qualified Medical Evaluator Panel Requests—Court of Appeal, granting applicant’s petition for writ of review, annulled WCAB’s decision and returned matter for further proceedings, when WCAB acknowledged that it erroneously based its determination that applicant’s qualified medical evaluator panel was prematurely requested and, therefore, invalid, on out-of-state location from where claims administrator mailed triggering delay notice instead of location where notice was served on applicant, and Court of Appeal clarified...

Appellate Court Cases Not Originating With Appeals Board

Mejia v. Roussos Construction, Inc., Lexis

Worker Classification—Dynamex’s “ABC” Test—Burden of Proof—Court of Appeal reversed trial court’s judgment as to four counts of plaintiffs’ complaint and, remanding case for new trial on those counts, concluded that trial court prejudicially erred by instructing jury that plaintiffs, who were unlicensed flooring installers asserting they were misclassified as independent contractors, were required to establish that they were actually hired by defendant general contractor or its agent before “ABC” test could be applied to determine their status as employees or independent contractors for purposes of California’s wage and hour laws, when Court of Appeal found that “ABC” test...

Unlicensed Contractors—Presumption of Employee Status—Court of Appeal, partially reversing trial court’s judgment and remanding matter, rejected general contractor’s assertion that plaintiffs were presumptive employees of subcontractor who hired them pursuant to conclusive presumption in Labor Code § 2750.5 applicable to unlicensed contractors, because jury question existed as to whether subcontractors were independent of general contractor.

People, The, ex rel. Gilbert Ellinger v. Magill, Lexis

Insurance Fraud—Anti-Fraud Provisions—Court of Appeal, affirming trial court’s order sustaining defendants’ demurrers without leave to amend, held that plaintiff, who filed workers’ compensation claim for industrial back injury in January 2016, could not pursue qui tam action for civil penalties under Insurance Code § 1871.7 (provision of Insurance Frauds Prevention Act) against employer’s workers’ compensation insurance carrier/third-party administrator or claims adjuster handling his workers’ compensation claim, based on violation of Penal Code § 550(b), for allegedly concealing information relevant to his workers’ compensation claim, when Court of Appeal held that...

Rivera v. TransAm Trucking, Inc., Lexis

Employer Negligence—Vicarious Liability—Doctrine of Respondeat Superior—Court of Appeal reversed trial court’s entry of summary judgment for defendant on plaintiffs’ complaint seeking damages for personal injuries sustained in motor vehicle accident involving truck owned by defendant and driven by defendant’s employee, who, prior to accident, had driven truck from Kansas (where defendant’s business is located) to California to deliver load of cargo, but held that defendant was entitled to summary judgment on specific causes of action in complaint, including plaintiffs’ cause of action for general negligence under theory of respondeat superior, when court found…

Employer Negligence—Direct Liability—Negligent Hiring, Supervision and Entrustment—Court of Appeal reversed trial court’s entry of summary judgment for defendant on plaintiffs’ complaint seeking damages for personal injuries sustained in motor vehicle accident involving truck owned by defendant and driven by defendant’s employee, but held that defendant was entitled to summary judgment on specific causes of action in complaint, including plaintiffs’ cause of action for negligent hiring, supervision and entrustment, when undisputed evidence showed...

Digests of WCAB Decisions Denied Judicial Review

Express Employment Professionals v. W.C.A.B. (Becerra, Christopher), Lexis

Psychiatric Injury—Six-Month Employment Requirement—WCAB, denying reconsideration, affirmed WCJ’s finding that applicant’s claim for psychiatric injury was not barred by six-month employment requirement in Labor Code § 3208.3(d), when applicant was employed by defendant for at least six months, out of which he earned wages for approximately 15.4 weeks (77 days), between 12/6/2017 to 6/13/2018, and WCAB rejected defendant’s assertion...

Markel Insurance Company v. W.C.A.B. (Amos, Stephen), Lexis

Employment Relationships—Employers—Trusts—WCAB affirmed WCJ’s finding that Luchetti Children’s Trust (Trust), and not Luchetti Ranch Partnership, was applicant’s employer at time of 8/1/2018 hand injury, incurred while applicant was building woodshed adjacent to house located on ranch owned by Trust and, individually, by seven Luchetti children as trustees, when WCAB found that Peter Luchetti, acting solely in his representative capacity as trustee of Trust, hired…

Employment Relationships—Residential Employees—WCAB affirmed WCJ’s finding that applicant was residential employee at time of 8/1/2018 hand injury incurred while he was building woodshed adjacent to house on property owned by employer Luchetti Children’s Trust, when construction of woodshed was solely to hold firewood for use by Luchetti children in house, which they occupied periodically, and WCAB found that Luchetti children...

Employment Relationships—General and Special Employers—WCAB, affirming WCJ’s finding, held that applicant did not have dual employment relationship with construction companies owned by Jeff Luchetti (as alleged general employer) and Luchetti Ranch Partnership (as alleged special employer), when applicant was injured while building woodshed on ranch property owned by seven Luchetti Children as trustees for Luchetti Children’s Trust (Trust), and WCAB found that Trust was applicant’s sole employer…

Solano (Tina) v. W.C.A.B., Lexis

Discovery—Close of Discovery—WCAB, granting reconsideration, rescinded WCJ’s decision awarding applicant 82 percent permanent disability for 3/6/2006 industrial injury to her upper extremities, neck, and in form of thoracic outlet syndrome, incurred while she was employed as stocker, and returned matter to trial level with instructions for WCJ to admit and consider treating physician’s 4/17/2020 supplemental report, when treating physician had changed his opinion regarding whether applicant suffered thoracic outlet syndrome and, during his deposition, requested further opportunity to address defendant’s questions regarding proper impairment rating for that injury through supplemental report, and although 4/17/2020 supplemental report subsequently generated by physician to respond to defendant’s questions was prepared after close of discovery, WCAB concluded...

Other WCAB Decisions Denied Judicial Review

Avalon Foods, Inc. v. W.C.A.B. (Guzman, Jorge), Lexis

Petitions for Writ of Review—Dismissal of Premature Petitions—Court of Appeal dismissed defendant’s Petition for Writ of Review as premature pursuant to Labor Code §§ 5900 and 5901 because there was no final decision by WCAB, where WCAB granted applicant’s Petition for Reconsideration and deferred proceedings related to issue of applicant’s employment pending final resolution of phase I of civil trial.

Fassett (Robert) v. W.C.A.B., Lexis

Stipulated Award—Setting Aside—WCAB, vacating its grant of reconsideration, returned matter to trial level with recommendation that applicant’s Petition for Reconsideration be treated as petition to set aside Stipulation and Award/Order (Stipulated Award), when applicant contended Stipulated Award was procured by fraud and duress, and WCAB found that applicant may have grounds...

Frontline Medical Associates, Inc. v. W.C.A.B. (Lopez, Leonel; Sablan, Yolanda), Lexis

Petitions for Writ for Review—Dismissal of Premature Petitions—Court of Appeal dismissed lien claimant’s Petition for Writ of Review, without prejudice to filing another petition, when there was no final decision by WCAB.

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.

Flosi (Larry) v. Selco Heating and Air Conditioning, Lexis

Evidence—Medical Evidence—WCAB’s Duty to Develop Record—WCAB, granting reconsideration, rescinded decision wherein WCJ ordered further development of medical record with new physician, and returned matter to trial level for further proceedings, when WCAB found that while WCJ correctly determined that opinion of existing qualified medical evaluator (QME) was not substantial evidence on issue of applicant’s permanent disability, WCJ did not identify any deficiencies…

Licea (Juan) v. Screwmatic, Lexis

Evidence—Surveillance Video—Submission of Nonmedical Records to Medical Evaluator—WCAB, granting reconsideration and rescinding WCJ’s decision, held that WCJ erroneously applied Civil Code § 1708.8 to find that defendant, having established “articulable suspicion” to support filming applicant, was permitted to submit sub rosa surveillance video to qualified medical evaluator (QME) for review, and WCAB substituted new finding that Civil Code § 1708.8 did not apply in these proceedings, when WCAB reasoned that…

Sanchez (Jaime) v. California Department of Corrections, Lexis

Permanent Disability—Apportionment—Benson Exception—WCAB, granting reconsideration, rescinded WCJ’s separate awards of permanent disability for two industrial injuries incurred by applicant while working as correctional officer, one on 6/23/2016 and another during period 1/1/99 through 6/23/2016, and returned matter to WCJ for further proceedings on issues of permanent disability and apportionment, when WCAB noted that this case presented unusual circumstance...

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.

CM21-0114029, Lexis

Acupuncture—Chronic Pain—Applicant, 80 years old, suffered an industrial injury on 8/30/2003 and subsequently underwent treatment for lumber region radiculopathy and spondylosis. He reported low back pain radiating to both legs with associated paresthesia symptoms, rated at 6/10, and had limited range of motion with pain on flexion greater than extension. Applicant’s prior medical treatment included medication, a lumbar epidural steroid injection and six sessions of acupuncture. His treating physician requested six additional acupuncture sessions. Citing the MTUS 2019 guidelines for low back disorders, UR denied the request. The IMR reviewer overturned the UR denial based on… [LexisNexis Commentary: This IMR decision provides guidance regarding the criteria that must be met for approval of acupuncture treatment. The requesting physician in this case did a nice job of describing applicant’s functional improvement after the initial treatments and recommended additional treatments in conjunction with a conditioning program. The IMR reviewer found that this was sufficient to establish medical necessity.]

CM21-0121703, Lexis

Mental Health Disorders—Post-Traumatic Stress/Adjustment Disorder—Simultaneous Exercise and Psychotherapy (STEP) Program—Applicant, 52 years old, sustained an industrial injury on 4/28/2021 and is undergoing treatment for post-traumatic stress disorder (PTSD) and an adjustment disorder with anxiety. He reported that his injury was due to stress related to his employment as a frontline healthcare worker caring for COVID patients in a hospital setting. An examination revealed that applicant was motivated and interested in resolving his psychological difficulties and returning to his job. Upon his return to work, however, applicant had a relapse of symptoms and was placed on restricted duty. Applicant’s treating physician requested twelve STEP therapy sessions, which would involve structured group cognitive behavioral therapy in combination with an aerobic exercise program. UR denied the request, finding that... [LexisNexis Commentary: This IMR provides an example of a case where the IMR reviewer gave applicant the benefit of the doubt regarding medical necessity, even though the record lacked a formal diagnosis and history of prior therapy. Applicant’s status as a frontline healthcare worker caring for COVID patients was likely considered by the IMR reviewer in deciding to allow the requested therapy sessions.]

CM21-0123073, Lexis

Mental Health Disorders—Cognitive Behavioral Therapy—Post-Traumatic Stress Disorder/Depression and Chronic Pain—Applicant, 52 years old, suffered an industrial injury on 6/18/2015, resulting in complex regional pain syndrome (CRPS), post-traumatic stress disorder (PTSD), and major depressive disorder. She participated in 42 sessions of cognitive behavioral therapy (CBT), and her treating physician requested an additional six sessions. UR non-certified the request, finding that although applicant reported improvements in depression, anxiety, and function... [LexisNexis Commentary: The IMR reviewer’s approach in this case is interesting because it focuses on chronic pain as the basis for CBT and places less emphasis and analysis on the diagnoses of PTSD and major depressive disorder, both of which could potentially support the request for CBT.]

CM22-0000324, Lexis

Mental Health Disorders—Post-Traumatic Stress Disorder/Depression—Intensive Outpatient Program—Applicant, 36 years old, suffered an industrial injury on 11/9/2021 while working as a first responder, resulting in anxiety, major depressive disorder, chronic post-traumatic stress disorder (PTSD), substance abuse disorder, and insomnia. He participated in eight to ten sessions of cognitive behavioral therapy (CBT), cognitive processing therapy, and an employer-assisted PTSD program, with minimal benefit. Applicant’s treating physician requested that applicant see a clinical psychiatrist for immediate evaluation, and, additionally, start an intensive outpatient PTSD rehab program (IOP) for 80 hours, which would be distributed between multiple treatment modalities. UR non-certified the request for the IOP. The IMR reviewer overturned the UR denial, noting... [LexisNexis Commentary: The IMR reviewer’s assessment in this case of all the surrounding circumstances to decide what would best achieve the goal of returning applicant to his profession was appropriate and served the purpose of the workers’ compensation system better than an approach that evaluates MTUS criteria without context. Of additional interest, is the IMR reviewer’s consideration of the level of function required to return an injured employee to a particular profession—in this case, a first responder—and the corresponding need to control applicant’s PTSD symptoms without alcohol abuse to return to work.]