California Compensation Cases June 2024

CALIFORNIA COMPENSATION CASES

Vol. 89, No. 6 June 2024

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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JUST CLICK ON THE CASE NAMES BELOW…

Appellate Court Cases Not Originating with Appeals Board

California Specialty Insulation, Inc. v. Allied World Surplus Lines Insurance Company

General Liability Insurance Policies—Personal Injury Actions—Application of Contractor Exclusion—Court of Appeal, affirming trial court’s grant of summary judgment in favor of insured California Specialty Insulation, Inc. (CSI), held that exclusions in commercial general liability insurance policy issued to CSI…

CBRE v. The Superior Court of San Diego County

Peculiar Risk Doctrine/Premises Liability—Application of Privette Doctrine—Exceptions—Court of Appeal, reversing trial court in split opinion, held that there were no triable issues of fact and that defendants were entitled to summary judgment based on Privette doctrine (which generally prohibits hirers of independent contractors from liability for injuries…

Appeals Board En Banc Decision

Ledezma (Alfredo) v. Kareem Cart Commissary and Mfg

Sanctions—Bad Faith Actions—WCAB, after issuing notice of intent, en banc, imposed sanctions totaling $20,000.00 each against attorney Susan Garrett and hearing representative Lance Garrett pursuant to Labor Code…

Other WCAB Decisions Denied Judicial Review

Calvin (Helena) v. W.C.A.B.

Petitions for Reconsideration—Premature and Untimely Petitions—WCAB dismissed pro per applicant’s Petition for Reconsideration filed on 10/30/2023, when WCAB found that to extent applicant’s Petition…

David Silver, M.D. v. W.C.A.B. (Weaver, Rebecca)

Petitions for Writ of Review—Untimely Petitions—Court of Appeal dismissed lien claimant’s Petition for Writ of Review as untimely, when lien claimant failed to file Petition within 45-day limitation period set forth…

Katrina S. Hagen v. W.C.A.B. (Heigh, Robert)

Petitions for Writ of Review—Premature Petitions—Court of Appeal dismissed defendant’s Petition for Writ of Review as premature under…

Lawrence (Keith) v. W.C.A.B.

Injury AOE/COE—Substantial Evidence—WCAB, denying reconsideration, affirmed WCJ’s finding that applicant did not sustain injury to his…

Appeals Board Panel Decisions (Note: Not Binding Precedent)

Cisneros (Maria) v. Los Angeles Unified School District

Psychiatric Injury—Good Faith Personnel Actions—COVID-19 Vaccination—WCAB, granting reconsideration and rescinding WCJ’s decision in…

Gonzalez (Ellie) v. Los Angeles Unified School District

Injury AOE/COE—Valley Fever—Burden of Proof—WCAB, granting reconsideration, rescinded WCJ’s decision denying applicant’s claim for…

Jacobs (Sharquent) v. Trident Maritime Systems

Medical-Legal Procedure—Comprehensive Medical-Legal Reports—Admissibility—WCAB, denying reconsideration based on removal…

Independent Medical Review Decisions

CM22-0165300 (1-11-2023)

Prescription Medication—Opioids—Acetaminophen/Codeine—Applicant, 54 years old, sustained an industrial injury on 8/31/2009 and began…[LexisNexis Commentary: The IMR reviewer in this case determined that applicant had sufficient functional improvement with the use of acetaminophen/codeine to satisfy the MTUS guideline criteria for opioid usage. Applicant’s use of the medication allowed him to engage in ADLs he may have been precluded from without the medication, such as household chores, meal preparation and exercise. If applicant uses the medication judiciously and he is appropriately monitored, the claims examiner may avoid having to provide more costly (and potentially less effective) treatment for applicant’s pain.]

CM22-0165664 (1-12-2023)

Prescription Medication—Opioids—Tramadol—Applicant, 59 years old, suffered an industrial injury on 4/27/2018 and was treated for, among other things, pain in the lumbosacral spinal region with radiculopathy…[LexisNexis Commentary: The UR physician in this case approved only a portion of the requested opioid tablets for applicant’s chronic back pain, likely in an effort to have applicant weaned from opioid medication. However, the IMR reviewer determined that the full dosage requested was appropriate based on applicant’s functional improvement, consistent with the opioid guidelines, and the fact that applicant’s opioid usage was being properly monitored by his provider.]

CM23-0139798 (11-17-2023)

Brain Injury Outpatient Programs—Applicant, 56 years old, suffered an industrial brain injury on 2/15/2023, and was undergoing treatment for post-concussion syndrome and post-traumatic headaches. Her symptoms…[LexisNexis Commentary: The applicant in this case had a serious brain injury and her physician believed that the brain injury program would be immensely helpful in restoring function, with no downside. The IMR reviewer was correct in overturning the UR noncertification of the requested treatment given applicant’s symptoms and did an excellent job explaining the reasons for doing so based on the applicable MTUS/ACOEM guidelines.]

CM23-0142736 (11-21-2023)

Tertiary Pain Programs—Functional Restoration—Initial Evaluation—Applicant, 68 years old, suffered an industrial injury on 6/6/2007, and was undergoing treatment for lumbar radiculopathy and right foot drop…[LexisNexis Commentary: The IMR reviewer in this case did a good job explaining why applicant should be evaluated for participation in a functional restoration program, based on the criteria from the MTUS/ACOEM 2017 chronic pain guidelines. Although there are nine criteria for referral to tertiary programs, which include functional restoration programs, not all of these criteria are discussed in this case despite language in the ACOEM that “all” nine criteria must be used as the basis for referral to a pain management program (ACOEM Chronic Pain Guidelines, May 15, 2017, p. 340). However, the ACOEM guidelines are ultimately guidelines to be applied using the reviewer’s expert discretion, and, here, the request for authorization is simply for an initial evaluation to determine whether a functional restoration program would be appropriate. From the clinical case summary, it can be inferred that applicant likely meets all of the ACOEM criteria for a tertiary rehabilitation program.]

CM23-0167219 (1-11-2024)

Chiropractic Treatment—Lumbar Spine—Applicant, 36 years old, suf fered an industrial low back injury on 4/20/2013, and reported low back pain. A physical examination revealed tenderness to palpation in the…[LexisNexis Commentary: In this case, the IMR reviewer relied on the MTUS guidelines and the non-MTUS ODG to address applicant’s need for additional chiropractic treatment after completing an initial course of treatment. Given applicant’s improvement in pain and decreased medication use after completing eight sessions, the IMR reviewer correctly concluded that additional sessions were supported by the MTUS and ODG criteria.]