California Compensation Cases February 2023

CALIFORNIA COMPENSATION CASES

Vol. 88, No. 2 February 2023

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 Case Not Originating With Appeals Board

Degala (Abraham) v. John Stewart Company,  Lexis

Peculiar Risk Doctrine/Premises Liability—Application of Privette Doctrine—Retained Control Exception—Court of Appeal, reversing trial court, held that general contractor and owner of construction site (defendants) were not entitled, based Privette v. Superior Court (1993) 5 Cal. 4th 689, 21 Cal. Rptr. 2d 72, 854 P.2d 721, 58 Cal. Comp. Cases 420, to summary judgment in negligence/premises liability action filed by demolition subcontractor’s employee (plaintiff) for injuries he incurred when he was attacked and seriously injured by unknown assailants while working at construction site located in high-crime area of San Francisco, when Court of Appeal concluded that...

Digests of WCAB Decisions Denied Judicial Review

County of Sacramento v. W.C.A.B. (Iosif, Ileana),  Lexis

Psychiatric Injury—Burden of Proof—Predominant Cause Standard—WCAB, in split panel opinion, granted reconsideration and affirmed WCJ’s finding that applicant established that actual events of her employment as deputy sheriff over period ending 7/10/2020 predominantly caused her psychiatric injury for purposes of compensability under standard in Labor Code § 3208.3(b)(1), and WCAB panel majority found that defendant...

Sosa (Julian) v. W.C.A.B.,  Lexis

Psychiatric Injury—Increased Awards of Permanent Disability—WCAB, denying reconsideration, affirmed WCJ’s findings that applicant suffered 10 percent permanent disability as result of 6/1/2017 industrial injury to his right hand, and that he was precluded under Labor Code § 4660.1(c)(1) from receiving separate permanent disability rating for his psychiatric/sleep injury, when WCAB determined that substantial medical evidence supported...

Other WCAB Decisions Denied Judicial Review

Conagra Foods, Inc. v. W.C.A.B. (Perez, David),  Lexis

California Insurance Guarantee Association—Other Insurance—WCAB, after granting reconsideration, affirmed WCJ’s finding that applicant’s permissibly self-insured special employer, and not general employer/California Insurance Guarantee Association (CIGA), had liability for applicant’s 1/20/2014 specific injury pursuant to Insurance Code § 1063.1(c)(9), when WCAB found that special and general employers...

County of Ventura Behavioral Health v. W.C.A.B. (Morefield, Perry),  Lexis

Petitions for Writ of Review—Court of Appeal annulled WCAB’s 7/15/2022 decision awarding applicant 48 percent permanent disability, and, pursuant to WCAB’s confession of error and request for remand, returned matter to WCAB to issue amended decision reflecting correct permanent disability rating of 47 percent and to issue award of permanent disability and attorney’s fees consistent with finding of 47 percent permanent disability.

Ryan (Joseph) v. W.C.A.B.,  Lexis

Petitions for Writ of Mandate—Dismissal—Court of Appeal dismissed applicant’s 8/17/2022 Petition for Writ of Mandate to compel WCAB to issue decision approximately ten months after granting reconsideration, when WCAB issued said decision on 9/23/2022, thereby rendering Petition for Writ of Mandate moot.

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.

Dacumos (Donald) v. Pete’s Home,  Lexis

Injury AOE/COE—Assault By Co-Worker—WCAB, denying reconsideration, affirmed WCJ’s finding that decedent’s death arose out of and in course of his employment, when WCAB found that decedent’s murder, which occurred at work when he was shot and killed by co-worker over alleged affair with co-worker’s wife...

Glick (Andrew) v. Knight-Swift Transportation Holdings,  Lexis

Temporary Disability—Exceptions to Two-Year Cap on Benefits—High-Velocity Eye Injuries—WCAB, after granting reconsideration, held that WCJ appropriately exercised his discretion to find that applicant sustained “high-velocity eye injury” when, while crossing street on 11/26/2018, he was struck and thrown nearly 10 feet by motor vehicle traveling approximately 30 mile per hour, entitling him to...

Jones (Robert) v. Russo Brothers Transportation,  Lexis

Discovery—Subpoenas Duces Tecum—Meet and Confer Requirements—WCAB, granting removal, rescinded WCJ’s order denying eight petitions filed by defendant seeking to quash various subpoenas duces tecum directed by applicant to third parties, because defendant failed to include meet and confer declarations in support of its petitions pursuant to Code of Civil Procedure § 2025.410(c), and WCAB returned matter to trial level for further proceedings, when WCAB identified multiple issues...

Murguia (Gisela) v. Lyft, Inc.,  Lexis

WCAB Jurisdiction—Gig Workers—Discovery Orders—WCAB, denying removal, affirmed WCJ’s “meet and confer” order issued in response to defendant’s objection to applicant’s subpoena duces tecum (SDT) seeking production of records from applicant’s alleged employer, Lyft, Inc. (Lyft), when defendant asserted that WCAB had no personal or subject matter jurisdiction to issue “meet and confer” order because applicant, who claimed she suffered compensable injuries to her neck, back and other body parts on 2/15/2022, was not Lyft’s employee but rather was independent contractor under Proposition 22 (Prop 22), which is enacted as Business & Professions Code § 7451 and exempts certain app-based transportation services from having to classify their California gig workers as employees under Labor Code § 2775, but WCAB found no evidence…

Riggs (Eric) v. Miami Marlins,  Lexis

WCAB Jurisdiction—Professional Athletes—WCAB, granting reconsideration, amended WCJ’s decision to reflect that Florida/Miami Marlins (Marlins) were exempted from proceedings before WCAB under Labor Code § 3600.5(c) and could not be found liable for injuries claimed by applicant while playing professional baseball for Marlins between 1998 and 2007, but that applicant met Labor Code § 3600.5(d) exception to Labor Code § 3600.5(c) exemption, when WCAB applied broad standard...

Rodriguez (Laura) v. Continuing Life, LLC,  Lexis

Medical-Legal Procedure—Qualified Medical Evaluator Panel Requests—WCAB, denying reconsideration based on removal standard, affirmed WCJ’s finding that applicant made timely strike from qualified medical evaluator (QME) panel 14 days after assignment of panel through online process, when WCAB reasoned that 8 Cal. Code Reg. § 10605 is controlling authority governing service...

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.

CM22-0048276,  Lexis

Diagnostic Tests—CT Scans—Lumbar Spine—Applicant, 58 years old, suffered an industrial injury on 2/11/2020, and was being treated for orthopedic symptoms following lumbar spine surgery on 3/18/2021. X-rays of the lumbar spine dated 07/21/2021 and a 3/2/2022 lumbar MRI showed loss of disc space height, borderline hypertrophy, and moderately severe central canal stenosis at the L4-L5 levels. In a 2/16/2022 progress report, applicant reported an unchanged pain level rated at 8/10. The physical examination revealed a limited range of lumbar spine motion, with radiculopathy and diminished sensation to the right leg. Applicant’s treating physician requested authorization for a CT scan of the lumbar spine to rule out hypertrophic bone formation as a cause of applicant’s severe stenosis. UR denied the request. The IMR reviewer overturned the UR denial... [LexisNexis Commentary: The IMR reviewer in this case found that a CT scan was supported based on the fact that applicant’s physician was considering further lumbar surgery and needed to clarify applicant’s diagnosis before performing the surgery. Although the MTUS guidelines recommend CT scans in conjunction with CT myelography in such cases, the IMR reviewer thoroughly evaluated applicant’s request and found that the CT scan was medically necessary.]

CM22-0049998,  Lexis

Diagnostic Tests—MRIs—Wrists—Applicant, 67 years old, sustained an industrial injury on 9/22/2017 and was undergoing treatment for shoulder and wrist symptoms. Per a 1/26/2022 progress report, applicant was temporarily partially disabled from working during the period 1/26/2022 to 3/9/2022. Applicant reported constant aching, burning, stabbing, and cramping pain in the right hand/wrist, constant radiating pain in the right hand, and constant numbness, tingling, stiffness, clicking, weakness, and muscle spasms in the right wrist. Applicant also demonstrated decreased range of motion in the shoulders and wrists and decreased grip strength. Applicant’s treating physician requested authorization for an MRI of the right wrist/hand, which UR denied. The IMR reviewer noted that the MTUS does not directly address wrist/hand MRIs and, therefore, relied upon the non-MTUS ODG guidelines for MRIs of the forearm, wrist and hand in overturning the UR non-certification... [LexisNexis Commentary: The IMR reviewer in this case recognized that an MRI was necessary to make a proper diagnosis of applicant’s condition. The IMR decision provides a good example of how treatment not addressed by the MTUS/ACOEM (or perhaps not addressed exactly on point with a given case) may be addressed by resort to ODG under the Medical Evidence Search Sequence set forth in 8 Cal. Code Reg § 9792.21.1.] 

CM22-0053753,  Lexis

Diagnostic Tests—MRIs—Spine—Applicant, 59 years old, suffered an industrial injury on 9/8/2012, and underwent treatment for lumbar degenerative disc disease, stenosis, facet pain, degenerative joint disease, and facet arthropathy. A 3/9/2021 MRI identified multi-level disc disease and degenerative joint disease at L4-5, and high-grade extraforaminal nerve root compression. In a 4/4/2022 progress report, applicant reported new radicular low back pain rated at 2-8/10. The physical examination revealed tenderness over the lumbar paraspinals and facet joints, and there was pain with lumbar flexion and extension. Applicant’s treating physician requested authorization for another lumbar spine MRI to evaluate the etiology of applicant’s worsening pain complaints. UR denied authorization for the MRI based on... [LexisNexis Commentary: The IMR reviewer here explains that while repeat MRIs are generally not supported by the MTUS/ACOEM guidelines, new symptoms may justify a repeat MRI. It is also worth remembering that new symptoms could justify the use of repeat MRIs not only as reasonable and necessary for treatment purposes, but also potentially to address disputes over TD, PD, or causation of need for further medical care. If the repeat MRI is needed to address a medical-legal dispute, it would not be subject to UR and IMR.]

CM22-0058637,  Lexis

Psychological Assessments—COVID-19—Cognitive Deficits—Applicant, 38 years old, suffered an industrial injury in the form of COVID-19 on 1/10/2021. She underwent treatment for memory deficit related to COVID-19, and per a 3/23/2022 progress report was not working. Applicant’s treating physician requested five appointments for neurological assessment, which were denied by UR based on the MTUS 2021 Covid-19 guidelines. The IMR reviewer noted that the COVID-19 guidelines... [LexisNexis Commentary: IMRs such as this, involving work-related COVID-19, are of ongoing interest to the community. Note, however, the IMR reviewer’s determination in this case appears to be based on a plainly erroneous finding of fact because the MTUS guidelines clearly support neuropsychological assessments, including sets of appointments (e.g., 6-8), as was requested in this case. Further, the reviewer’s own finding that a neuropsychological assessment was reasonable in applicant’s case is inconsistent with the reviewer’s ultimate denial of all the requested assessments. At least one assessment should have been recommended. Arguably, this IMR determination could be successfully appealed under Labor Code § 4610.6(h)(5).]

CM22-0068541,  Lexis

Anti-Depressants—Chronic Pain—Applicant, 59 years old, suffered an industrial spine injury on 6/15/2012. As of 11/16/2021, applicant reported neck and low back pain rated at 8/10 without medication and 5/10 with medication. The pain was described as burning, aching, shooting, throbbing, squeezing, pressure-like, deep and constant. Aggravating factors included sitting, standing, lifting and walking. Applicant also reported depression, anxiety, stress and insomnia. Applicant’s treatment included a home exercise program in addition to various pain medications. On 5/12/2022, applicant’s treating physician requested authorization for Nortriptyline cap 10mg #60. Applying the 2018 MTUS guidelines for post-traumatic stress disorder and acute stress disorder, UR non-certified the requested treatment. IMR overturned the UR non-certification based on… [LexisNexis Commentary: This IMR decision provides an example of how UR non-certifications may be based on use of the incorrect MTUS/ACOEM guidelines. In this case, UR applied the 2018 MTUS/ACOEM for PTSD to deny the requested medication, when the prescription for Nortriptyline was clearly for chronic pain, not PTSD.]

CM22-0110551,  Lexis

Steroid Injections—Radicular Pain—Applicant, 40 years old, sustained an industrial injury on 9/18/2021, and underwent treatment for lumbago with right-sided sciatica, lumbar degenerative disc disease, and L5-S1 spondylolisthesis. In a 7/7/2022 progress report, applicant reported right-sided low back pain extending into the lateral hip/buttock and thigh. The report described new neurologic findings of “sensation to light touch decreased on the right at L5. Seated SLR is positive on the right.” However, there was indication that applicant may be able to return to work with restrictions. Applicant’s treating physician requested authorization for a right L5 transforaminal epidural steroid injection, which UR denied. The IMR reviewer overturned the UR denial... [LexisNexis Commentary: This IMR decision shows when a steroid injection may be useful to relieve pain, including if it helps return an injured employee to work. The IMR reviewer took a nuanced and thoughtful approach to the facts presented to find an exception to the general rule that epidural steroid injections are not appropriate for chronic pain and concluded that the injection could be useful to treat applicant’s radicular pain after conservative care failed.]