California Compensation Cases September 2024

CALIFORNIA COMPENSATION CASES

Vol. 89, No. 9 September 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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Appellate Court Compensation Case

Mayor (Joseph) v. W.C.A.B. (1st—A169465)

Petitions for Reconsideration—WCAB’s Time to Act on Petition—Court of Appeal, granting applicant’s petition, issued writ of mandate directing WCAB to rescind its order granting employer’s petition for reconsideration…

Appellate Court Case Not Originating with Appeals Board

American Building Innovation v. Balfour Beatty Construction (4th—G062471, G062965)

Interplay Between Contractor Licensing Requirements and Workers’ Compensation Law—Court of Appeal, affirming trial court’s judgment, held that subcontractor’s suit against general contractor on construction…

Appeals Board En Banc Decision.

Hoddinott (Steve) v. Bravo Security Services, Inc. (WCAB—ADJ16491268, ADJ15884384, ADJ16161110, ADJ16161057, ADJ16161093, ADJ15760386, ADJ18891808, ADJ19153721, ADJ16116250)

Attorney’s Fees—Division of Fees—WCAB, en banc, granted removal on its own motion and ordered consolidation of five cases involving applicant’s attorney, Patrick C. Gorman, who sought either removal or…

Digests of WCAB Decision Denied Judicial Review

American Claims Management v. W.C.A.B. (Mejia, Jose) (5th—F087380)

Permanent Disability—Rating—Rebuttal of Scheduled Rating—WCAB, after granting reconsideration, affirmed WCJ’s decision that applicant was permanently totally disabled from 8/4/2010 injuries sustained while…

City of Oakland v. W.C.A.B. (Utsey, Charlotte) (1st—A170395)

Permanent Disability—Apportionment—Nonindustrial Factors—Benson Exception—WCAB, in split panel opinion, affirmed WCJ’s finding that applicant was entitled to unapportioned award of 100 percent permanent…

Herrera (Rosalina) v. W.C.A.B. (1st—A170657)

Evidence—Substantial Medical Evidence—Due Process—WCAB, after granting reconsideration, affirmed WCJ’s finding that reports of internal medicine qualified medical evaluator (QME) and orthopedic QME were….

Orellana (Bernardina) v. W.C.A.B. (2nd—B337694)

Subsequent Injuries Benefits Trust Fund—Statute of Limitations—WCAB, granting reconsideration, affirmed WCJ’s finding that applicant’s claim for Subsequent Injuries Benefits Trust Fund (SIBTF) benefits was…

Appeals Board Panel Decisions

Derboghossian (Chris) v. All Tune & Lube (WCAB—ADJ3107843)

Medical Treatment—Durable Medical Equipment—WCAB, after granting reconsideration, affirmed WCJ’s finding that defendant was liable for Labor Code § 5814 penalties and associated attorney’s fees for delaying…

Solis (Heriberto) v. Kansas City Royals (WCAB—ADJ16588373)

WCAB Jurisdiction—Personal Jurisdiction—WCAB, granting reconsideration and rescinding WCJ’s decision, held that Windy City Thunderbolts (Thunderbolts) made general appearance in this matter and, as such…

Independent Medical Review Decisions

CM23-0135892 (12-1-2023)

Home Healthcare Services—Applicant, 61 years old, sustained an industrial injury on 6/14/2021 and was undergoing treatment for post-concussion syndrome with cervical spondylosis, severe lumbar stenosis and L5… [LexisNexis Commentary: This case is a useful reminder that home care is recommended under the MTUS/ACOEM not just for short-term post-surgical recovery, but also on a long-term basis to address ADL deficits, subject to recommended documentation of the medical conditions requiring home health care services, the objective functional deficits, the specific activities precluded by such deficits, the necessity of skilled services, and the duration and frequency of the home healthcare services required (ACOEM Initial Approaches to Treatment, 10/22/2021, p. 16). The review is refreshing insofar as it does not elevate form over substance by focusing on whether applicant was “homebound,” although he arguably is homebound on the basis that he is unable to drive.]

CM23-0158654 (12-21-2023)

Nurse Visits—Patient Education—Applicant, 70 years old, suffered industrially-related cancer of his neck and skin. He underwent multiple procedures to… [LexisNexis Commentary: Applicant in this case has malignant neck cancer and needs help under- standing his condition, the medical treatment involved, and the importance of being proactive in treating the condition. Under these circumstances, a nurse visit to educate applicant about radiation therapy as a treatment option was supported by the MTUS guidelines.]

CM24-0000391 (1-26-2024)

Home Healthcare Services—Post-Childbirth—Applicant, 43 years old, sustained an industrial injury on 5/16/2023 and was undergoing treatment for a right knee contusion and deep vein thrombosis of the left lower leg… [LexisNexis Commentary: This IMR decision exemplifies the longstanding legal principles that medical treatment is not apportionable to nonindustrial conditions (such as pregnancy) even if they may contribute to the need for assistance, and that an injured worker may require care on an industrial basis even for a nonindustrial condition itself where there is a relationship between the nonindustrial and industrial conditions. In this case, applicant was homebound and had previously received home healthcare, so childbirth could be merely coincidental to the renewed post-surgical need for assistance.]

CM24-0008918 (2-13-2024)

Prosthetic Limbs—Amputations—Applicant, 36 years old, suffered an industrial injury on 10/28/2019 resulting in a below-the-knee right leg amputation on 5/8/2020. Following the amputation, applicant received a… [LexisNexis Commentary: This IMR decision ultimately serves the interests of both defendants and injured workers by approving the replacement of applicant’s prosthesis and avoiding the potentially more expensive compensable consequences of an ill-fitting socket, which could lead to surgical treatment and/or long-term homecare.]

CM24-0034517 (4-16-2024)

Home Healthcare Services—Licensed Vocational Nurse Assistance—Applicant, 48 years old, sustained an industrial injury on 4/3/2022 and was undergoing treatment for major depressive disorder, right knee pain… [LexisNexis Commentary: This case sets forth the MTUS/ACOEM criteria for home healthcare and illustrates that the level of care should be determined by a physician, not the claims examiner. The period of time, three months, would be extended by the WCAB’s reasoning in Patterson v. The Oaks Farm (2014) 79 Cal. Comp. Cases 910 (Appeals Board significant panel decision), which has been applied consistently to homecare, although MTUS/ACOEM guidelines do request that the time period be specified.]