California Compensation Cases August 2022

CALIFORNIA COMPENSATION CASES

Vol. 87, No. 8 August 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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Digest of WCAB Decision Denied Judicial Review

University of California, Los Angeles, Medical Center v. W.C.A.B. (Onruang, Alisa),  Lexis

Medical Treatment—Utilization Review—Independent Medical Review—Non-Medical Transportation—WCAB, granting reconsideration affirmed WCJ’s finding that WCAB had jurisdiction to address the medical necessity of applicant’s need for transportation services and found that applicant was in need of transportation to facilitate her ability to perform activities of daily living (ADLs) following injury to her neck, upper extremities, back, eyes, face, psyche and headaches while employed as registered nurse on 10/26/2016, when...

Other WCAB Decisions Denied Judicial Review

Illinois Midwest Insurance Agency v. W.C.A.B. (Nelson, Tiffany),  Lexis

Mandatory Settlement Conference—Evidence Obtained after Mandatory Settlement Conference—Due Diligence—WCJ Obligation to Make and File Findings Upon on All Issues Raised—WCAB granting reconsideration rescinded WCJ’s decisions finding that applicant clerical assistant sustained injury to her bilateral shoulders with permanent disability of 19 percent with need for further medical care, but did not sustain cumulative injury, and failed to make findings on lien of applicant’s attorney for vocational evaluation costs advanced and costs related to vocational expert fees, where WCJ excluded vocational expert report of Diaz & Company from evidence because it was obtained after Mandatory Settlement Conference (MSC), and WCAB found...

Sanchez (Alexandra) v. W.C.A.B.,  Lexis

Petition for Reconsideration—Requirements for Petition for Reconsideration—Skeletal Petition—Dismissal of Skeletal Petition—WCAB dismissing petition affirmed WCJ finding that applicant phlebotomist sustained injury to her hands and lips with permanent disability of 6 percent and need for future medical care but did not sustain temporary disability from 3/9/2020 through 1/30/202, where WCAB found applicant’s petition for reconsideration failed to state grounds upon which reconsideration is sought or to cite to the record with any specificity.

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.

Arevalo (Lorenzo) v. Limoneira Company, Inc.,  Lexis

Cumulative Injury—Election by Employee—WCAB, denying removal, affirmed WCJ’s order approving applicant’s election against defendant Zurich American Insurance Company/Gallagher Bassett (Zurich) in claim involving cumulative injury to his knee during period 1/1/2004 through 2/28/2020, when both Zurich and co-defendant California Insurance Company/Applied Risk Services (Applied Risk) had coverage for portions of cumulative injury period, and WCAB found that fact that Applied Risk had majority of liability for applicant’s claim based on period of coverage did not preclude applicant’s election against Zurich to administer claim, when WCAB,...

Gonzales (Dorothy), Gonzales (Michael, Dec’d) v. City of Montebello,  Lexis

Death Benefits—Statute of Limitations—WCAB, granting reconsideration, rescinded decision in which WCJ found that decedent’s date of injury was 12/19/96 for purposes of 240-week limitations period in Labor Code § 5406(b), and that applicant’s Application for Adjudication of Claim for decedent’s death was barred by statute of limitations, when WCAB found that WCJ erroneously determined “date of injury” based on decedent’s “date of injury” rather than...

Kowal (Gus) v. County of Los Angeles,  Lexis

Medical-Legal Procedure—Selection of Qualified Medical Evaluators—WCAB, granting reconsideration and rescinding WCJ’s decision, found that applicant roofer who alleged he sustained two industrial injuries, one through 1/22/2018 and another through 2/28/2012, was permitted to schedule examination with doctor he untimely struck from qualified medical evaluator (QME) panel, when WCAB found that applicant’s untimely strike was invalid and applicant had legal right to schedule appointment with doctor under...

Quiroz (Leonel) v. State of California,  Lexis

Permanent Disability—Apportionment—Joint Awards—WCAB, denying reconsideration, affirmed WCJ’s finding that applicant suffered presumptively compensable hypertensive heart disease with diastolic dysfunction while working as correctional officer on 10/27/2017 and during cumulative period ending on 10/27/2017, based on opinion of panel qualified medical evaluator, and found that WCJ properly issued joint award of 75 percent permanent disability for applicant’s specific injury, which, in addition to heart injury, included multiple other body parts, and for applicant’s cumulative injury, rather than issuing two separate awards as sought by defendant, when WCAB reasoned...

Scott (Terri) v. City of Los Angeles,  Lexis

Imposition of Sanctions—Due Process—WCAB, granting reconsideration, rescinded WCJ’s order imposing sanctions of $1,500.00 against applicant’s attorneys and awarding costs to defendant of $6,800.00 under Labor Code § 5813, based on WCJ’s finding that applicant’s attorneys engaged in conduct intentionally designed to harass defense counsel in order to obtain strategic litigation advantage, and WCAB returned matter to WCJ for evidentiary hearing on issue of sanctions, when WCAB recognized that applicant’s attorneys must be given notice and opportunity to be heard at evidentiary hearing...

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.

CM22-0032154,  Lexis

Home Healthcare—Post-Surgery—Applicant, 57 years old, sustained an industrial injury on 2/14/2019 and underwent surgery, including a left heel shift osteotomy and attempted first tarsometatarsal (TMT) joint fusion. Applicant subsequently reported sensitivity at the site of the incision and pain shooting up and down the left leg, with limited range of motion and weakness of the left ankle. Applicant’s treating physician requested approval for a heel and first TMT joint hardware removal with revision of the original TMT fusion and bunion correction. The physician also requested two weeks of home healthcare for four hours per day post-operatively. UR denied the request for home healthcare. Citing the 2017 MTUS/ACOEM guidelines and non-MTUS ODG, the IMR reviewer overturned the UR denial. The IMR reviewer noted that the MTUS/ACOEM guidelines selectively recommend... [LexisNexis Commentary: This IMR concisely explains why applicant needs home health care post-operatively, and how the request for short-term home health care complies with the applicable MTUS/ACOEM guidelines. The case also exemplifies a situation where the claims examiner could have considered overriding the UR non-certification of home health care because the short duration of care was requested in anticipation of a change in circumstances (post-surgical recovery), per Patterson v. The Oaks Farm (2014) 79 Cal. Comp. Cases 910 (Appeals Board significant panel decision) and would not be indefinite.]

CM22-0033086,  Lexis

Home Healthcare—Back Injury—Applicant, 61 years old, suffered an industrial injury on 6/1/2005 and underwent lumbar spine surgery and right hip arthroplasty. In 2022, there was an exacerbation of low back pain (rated 8/10) after applicant fell at home due to weakness in the lower extremities. She developed difficulty with ADLs and getting in and out of a chair/wheelchair, could not stand for more than three minutes, had decreased sensation and strength in her legs, and was temporarily totally disabled from work. Applicant’s physician requested authorization for home healthcare for six hours per day, seven days per week for 26 weeks, totaling 1,092 hours. UR non-certified the request. The IMR reviewer found that the requested home care was not medically necessary and upheld the UR non-certification... [LexisNexis Commentary: This IMR describes the information missing from the treating physician’s request for home healthcare, which resulted in denial of the requested treatment. With respect to the IMR reviewer’s comment regarding family and friends providing care, it should be noted that the MTUS guidelines do not require an assessment of family or other support systems in determining entitlement to home healthcare, and case law specifically states that the family of an injured worker is under no obligation to provide home healthcare which would otherwise be the employer’s responsibility. See Henson v. W.C.A.B. (1972) 27 Cal. App. 3d 452, 103 Cal. Rptr. 785, 37 Cal. Comp. Cases 564.]