California Compensation Cases February 2022

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CALIFORNIA COMPENSATION CASES

Vol. 87, No. 2 February 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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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.

Other WCAB Decisions Denied Judicial Review

Fanning (Carey) v. W.C.A.B., Lexis

Evidence—Medical Evidence—WCAB’s Duty to Develop Record—WCAB, denying removal, affirmed WCJ’s decision un-submitting case and ordering further development of record through appointment of regular physician, when reports of panel qualified medical evaluator (PQME) submitted at trial did not constitute substantial evidence on issue of apportionment of applicant’s permanent disability to nonindustrial factors or to other industrial injuries, and since PQME could not determine if applicant’s three industrial injuries were inextricably intertwined or apportion permanent disability between them after providing six medical reports and deposition testimony, WCAB believed new physician was necessary.

Ford (Deshay David) v. W.C.A.B., Lexis

WCAB Procedure—Venue—WCAB denied applicant’s Petition for Change of Venue from Ventura County to Los Angeles County, when applicant did not establish good cause to support change of venue pursuant to Labor Code § 5501.6, as applicant lives in Oxnard, which is located in Ventura County, injury occurred in Ventura County at defendant’s place of business, and applicant’s belief that he could not get fair trial in Ventura County was not ground for change of venue.

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 However, WCAB panel decisions are not binding precedent, as are en banc decisions, on all other Appeals Board panels and workers’ compensation judges.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.

Corie (Emery) v. Hertz Corporation, Lexis

Psychiatric Injury—Six-Month Employment Requirement—Sudden and Extraordinary Employment Conditions—WCAB, denying reconsideration, affirmed WCJ’s finding that applicant’s psychiatric injury resulted from “sudden and extraordinary” employment event and therefore fell within exception to six-month employment rule in Labor Code § 3208.3(d), when applicant developed psychiatric symptoms following threatening phone call she received from customer seeking to rent car during her employment as manager trainee for rental car company, leaving applicant very upset and frightened of potential workplace violence, and WCAB, applying standard…

Harper (Hazel) v. Kaiser, Lexis

Attorney’s Fees—Lien Recovery—WCAB, affirming WCJ’s decision, held that Labor Code § 4903.2 precluded applicant’s attorney from recovering fee from Employment Development Department’s (EDD) lien recovery, when WCAB found WCJ was within her discretion to deny attorney’s fees where she found EDD’s attendance at 5/15/2019 lien hearing constituted sufficient “participation” in WCAB proceedings within meaning of Labor Code § 4903.2(b) to avoid liability for attorney’s fees, and WCAB rejected applicant attorney’s assertion that…

Johnson (Christopher) v. Lexmar Distribution, Lexis

Evidence—Admissibility—Dashcam Video—WCAB, granting removal, held that WCJ improperly excluded defendant’s dashcam video evidence based on lack of authentication and foundation, and returned matter to trial level for further proceedings, when WCAB concluded that defendant should be given opportunity to authenticate dashcam videos through applicant’s testimony or, if necessary, through testimony of another witness, and explained that WCAB is not bound by statutory rules of Evidence Code...

Workers’ Compensation Judges—Disqualification—WCAB granted defendant’s petition for disqualification of WCJ, when WCAB found defendant presented sufficient grounds for disqualification based on appearance of impropriety, where defense counsel submitted affidavit attributing two comments to WCJ which WCAB accepted as true and agreed could be construed as belittling of defense counsel and her ability to litigate.

Losurdo (Sally) v. United Parcel Service, Lexis

Medical-Legal Procedure—Self-Procured Medical Reports—Secondary Physicians—WCAB, granting reconsideration, affirmed WCJ’s finding that applicant sustained industrial injury in form of fibromyalgia while employed as UPS center clerk, and that medical report of David Yu, M.D., obtained by applicant, was admissible and was substantial evidence of causation of fibromyalgia, when WCAB found that applicant was permitted under Labor Code § 4605 to obtain medical report from consulting physician at her own expense in course of seeking medical treatment, and such report was admissible unless…

Walker (Latoya) v. Ararat Adult Day Health Care, Inc., Lexis

Discrimination—Labor Code § 132a—Application of Alter Ego Doctrine —WCAB, granting reconsideration, rescinded decision wherein WCJ found he did not have jurisdiction to “pierce the corporate veil” in Labor Code § 132a proceeding, and therefore issued Labor Code § 132a award only against dissolved corporation and not against corporation’s owner, and WCAB returned matter to WCJ for further proceedings regarding whether or not application of alter ego doctrine was warranted in this case to prevent injustice against applicant, when WCAB reasoned that conditions…

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.

CM21-0120470, Lexis

Inpatient Board and Care—Applicant, 54 years old, suffered an industrial injury on 4/25/2020 and sought authorization for two months of inpatient board and care while undergoing various forms of dental treatment. The documentation indicated that applicant needed boarding care to “enhance his physical and emotional wellbeing that he cannot provide for himself since he lived on his own.” There were minimal physical findings on examination. UR denied authorization for the treatment, citing the non-MTUS ODG guidelines for the knee and leg. The IMR reviewer upheld the UR non-certification based on the MTUS Traumatic Brain Injury 2017 Guidelines, which... [LexisNexis Commentary: This IMR decision provides helpful guidance regarding the evidence necessary to support a request for inpatient board and care. The decision demonstrates that a request for this type of care requires a showing of some physical or cognitive deficits affecting an injured worker’s ability to function. Simply stating that such treatment is necessary to “enhance the physical and emotional wellbeing” of a patient while undergoing medical treatment is insufficient to establish medical necessity.]

CM21-0126030, Lexis

Home Healthcare—Home Health Aide—Applicant, 32 years old, suffered an industrial injury on 6/2/2021. He underwent treatment for a C4 facet fracture and neck pain and was off work on temporary disability. Applicant’s treatment plan included the start of physical therapy, and his treating physician requested authorization for a home health aide twice per week for four weeks. UR denied the request. The IMR reviewer overturned the UR denial based on the MTUS Initial Approaches to Treatment 2017 Guidelines, which recommend home health care for injured workers who are homebound and need to overcome deficits in ADLs. Home healthcare is also recommended to prevent inpatient hospitalization… [LexisNexis Commentary: In this case, home healthcare was necessary due to applicant’s current disability and difficulty with ADLs. However, given the recency of applicant’s injury, and his relatively young age and temporary disability status, there is hope applicant’s condition will improve to the point where home healthcare is no longer needed.]

CM21-0138432, Lexis

Home Healthcare—Licensed Vocational Nurse and Home Health Aide—Applicant, 75 years old, suffered an industrial injury on 8/25/2020, rendering him quadriplegic. He experiences chronic pain, utilizes a motorized chair and is unable to perform ADLs. His wife and daughter indicate they are unable to keep up with his needs. Applicant’s treating physician requested authorization to extend applicant’s home healthcare to provide LVN care visits for 12 hours per day/six days per week for three months, for a total of 24 sessions, and three sessions with a home health aide. UR denied both treatment requests. The IMR reviewer overturned the UR non-certification based on the MTUS Initial Approaches to Treatment 2017 Guidelines... [LexisNexis Commentary: This IMR decision demonstrates that notwithstanding MTUS guidelines clearly indicating that certain treatment is medically necessary, UR may still misapply those guidelines to non-certify recommended treatment. In this case, the chronic nature of applicant’s condition suggests that no further UR is necessary to extend his home care, per Patterson v. The Oaks Farm (2014) 79 Cal. Comp. Cases 910 (Appeals Board significant panel decision), and that the requested treatment is medically necessary.]

CM21-0156517, Lexis

Home Healthcare—Physical Therapy and Home Health Aide—Applicant, 64 years old, suffered an industrial injury on 6/21/2020. She underwent treatment for a left hip sprain and osteoarthritis. Applicant had chronic pain, antalgic gait, and a limited range of motion in her hip. Her treating physician ultimately recommended, among other things, total left hip replacement surgery, six sessions of postoperative, home-based physical therapy, and six sessions with a home health aide. UR non-certified the requests for physical therapy and a home health aide, citing the non-MTUS ODG guidelines. The IMR reviewer overturned UR’s denial of the requested treatment, finding that both treatment requests were supported by the applicable MTUS/ACOEM guidelines and were medically necessary… [LexisNexis Commentary: This IMR decision provides an example of a case in which UR relied on secondary sources, i.e., ODG guidelines, to non-certify requested treatment notwithstanding applicable MTUS guidelines supporting the treatment requests. The IMR reviewer cited the MTUS guidelines as the basis for overturning the UR non-certifications.]