California: Top 25 Noteworthy Panel Decisions (January through June 2017)

LexisNexis has selected some of the top “noteworthy” panel decisions issued by the California Workers’ Compensation Appeals Board during the period January through June 2017. The list features a number of decisions addressing the issue of an employer’s right to credit against its workers’ compensation liability for an employee’s third-party recovery, including panel decisions addressing credit rights in third-party case involves professional negligence or vaccine-related injuries.  Additionally, there are several new cases discussing permanent disability awards for psychiatric injury, including a case interpreting the nature of a “violent act” for the purposes of determining entitlement to increased permanent disability for psychiatric injury as discussed in Labor Code § 4660.1(c). Two “bonus” cases also appear, one discussing whether a binding agreement by the parties to utilize an AME to resolve medical disputes is invalidated by the subsequent statutory changes regarding UR/IMR procedures, and another case decided on remittitur from the Court of Appeal involving IMR appeals.

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 However, WCAB panel decisions are not binding precedent, as are en banc decisions on all other Appeals Board panels and workers’ compensation judges.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

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CALIFORNIA INSURANCE GUARANTEE ASSOCIATION

Michelle Riddle, Applicant v. Las Flores Convalescent Hospital, CIGA by its servicing facility Intercare Insurance Services, for Ullico Casualty Co., in liquidation, Defendants, 2017 Cal. Wrk. Comp. P.D. LEXIS 20

California Insurance Guarantee Association—Other Insurance—WCAB, affirming WCJ, held that California Insurance Guarantee Association (CIGA) was not entitled to reimbursement from Travelers Insurance Company (Travelers) for benefits CIGA paid to applicant in connection with 10/4/2011 injuries to her lumbar spine and knees, notwithstanding that applicant’s earlier injury to her left knee and lower extremities on 11/22/2008, for which Travelers was liable, contributed to applicant’s need for medical treatment, when WCAB found that, while Travelers would ordinarily be jointly and severally liable for medical treatment and temporary disability benefits for subsequent injury and be considered “other insurance” under Insurance Code § 1063.1(c)(9) so as to entitle CIGA to reimbursement, Travelers’ settlement of applicant’s 11/22/2008 claim by Compromise and Release prior to applicant’s second injury completely terminated Travelers’ liability for medical care and temporary disability such that Travelers was no longer liable to applicant for benefits and was not “other insurance” for purposes of relieving CIGA of liability for benefits following applicant’s second injury.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 2.84[3][a]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 3, § 3.33[3].]

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Judith Kraft, Applicant v. Correy Jamestown, Hartford Insurance Company, Facility Systems, Inc., Broadspire Concord, Defendants, 2017 Cal. Wrk. Comp. P.D. LEXIS 35 [see Kraft v. Correy Jamestown (2017) 81 Cal. Comp. Cases 561 (Appeals Board noteworthy panel decision)]

California Insurance Guarantee Association—Other Insurance—Administration of Medical Benefits—WCAB, in split panel opinion, affirmed WCJ’s order transferring administration of applicant district manager’s medical award for all body parts from California Insurance Guarantee Association (CIGA), which was entity responsible for applicant’s 3/20/87 alleged injuries to her neck, low back and left ankle, to Hartford Insurance Company (Hartford), defendant’s workers’ compensation carrier at time of applicant’s 8/31/85 industrial low back and left ankle injuries, notwithstanding that liability for applicant’s neck injury had not yet been adjudicated, when WCAB panel majority reasoned that WCAB has discretion to relieve CIGA of liability for administration of claim absent extraordinary circumstances, and if another solvent insurer has some portion of liability that insurer should be required to administer award pursuant to Insurance Code § 1063.1(c)(9), subject to apportionment of liability and potential reimbursement, that possible disruption and unfairness to applicant in having two administrators, one for neck and one for back and ankle and chance of duplicative and overlapping treatment protocols outweighed claimed prejudice to Hartford in administering applicant’s medical benefits, and that Hartford did not establish facts to show irreparable harm by being required to administer applicant’s medical award on interim basis until liability for alleged injury to neck and low back is adjudicated; Commissioner Lowe, dissenting, concluded that order requiring Hartford to administer future medical award for all body parts will result in substantial prejudice to Hartford because Hartford will be required to pay for treatment to body part for which it presently has no liability, and reimbursement of expenses for treatment to applicant’s neck may be barred even if Hartford has no liability for neck injury if reimbursement is construed as obligation to insurer under Insurance Code § 1063.1(c)(5), for which CIGA has no liability.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 1.11[3][g], 2.84[3][a], 26.03[4]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 3, § 3.33[3], Ch. 19, § 19.37.]

CUMULATIVE INJURY

Roger Jay Bass, Applicant v. State of California, Department of Corrections & Rehabilitation, legally uninsured, administered by State Compensation Insurance Fund, Defendants, 2017 Cal. Wrk. Comp. P.D. LEXIS 213

Cumulative Injury—Single Cumulative Trauma Period—Injurious Exposure—WCAB affirmed WCJ’s finding that applicant suffered single cumulative trauma to his heart, neck, low back, right knee, and left foot while working as correctional officer during period ending 7/15/2014, and rejected defendant’s assertion that applicant suffered two separate cumulative injuries, one to his heart and second to orthopedic body parts, when WCAB reasoned that, even though there were two different dates of injury under Labor Code § 5412 for applicant’s heart and orthopedic injuries, there was one period of injurious exposure for purposes of determining liability under Labor Code § 5500.5, and that date of injury under Labor Code § 5412 has relevance to statute of limitations and allocation of liability for cumulative injury under Labor Code § 5500.5, but does not determine whether employee sustained one or two cumulative injuries.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 4.01[2][a]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 10, § 10.06[1].]

CREDIT

Sharon Padron, Applicant v. Frito Lay, PSI, adjusted by Sedgwick CMS, Defendants, 2017 Cal. Wrk. Comp. P.D. LEXIS 69 [Petition for Reconsideration filed 2/25/2017]

Credit—Employer Benefit Plan—WCAB rescinded WCJ’s finding that defendant was entitled to $37,700.35 credit against applicant’s temporary and/or permanent disability benefits as result of short-term and long-term disability payments made to applicant under defendant’s disability plans, and returned matter to WCJ for new decision, when WCAB was unable to ascertain from record factors utilized by WCJ in establishing basis for amount of defendant’s credit against applicant’s workers’ compensation award, and it was unclear to WCAB whether defendant was entitled to credit for full amount of benefits paid by defendant’s short-term and long-term disability plans as awarded by WCJ, where applicant made at least some contributions to disability plans but proportional contributions made by applicant and defendant were not considered in calculating amount of any credit to which defendant was entitled so as not to violate Labor Code § 3751(a), which prohibits employers from obtaining employee contribution toward workers’ compensation benefits.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 7.04[9][b]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 6, § 6.19[2].]

DISCOVERY

Kywan Cann, Applicant v. Desert View Auto Auction, Insurance Company of the State of Pennsylvania, Defendants, 2017 Cal. Wrk. Comp. P.D. LEXIS 214 Discovery—Vocational Evaluations—Recording—WCAB granted removal and rescinded WCJ’s order instructing applicant, who had sustained industrial injury to his arm on 7/13/2012 and to his spine on 9/11/2012, to attend vocational evaluation scheduled by defendant and allowing vocational examination to be stenographically recorded by court reporter as requested by applicant, when WCAB reasoned that there are no statutes or regulations regarding whether vocational evaluations may be recorded, that California Code of Civil Procedure § 2032.510, applicable to medical examinations and relied upon by WCJ, did not apply here because vocational evaluation is not one of authorized civil discovery methods, and Code of Civil Procedure does not address such examinations, that based on relevant panel decision, WCJ has discretion to decide whether or not to allow recording of vocational examinations in certain circumstances, and that because there was no hearing and no evidence provided in this case regarding whether there was good cause to allow recording of vocational evaluation, matter must be returned to trial level for further proceedings on that issue.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 1.11[3][g], 22.07, 25.40, 26.03[4]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 15, § 15.45[1], Ch. 19, § 19.37.]

INJURY AOE/COE

John E. Skaff, Applicant v. City of Stockton, PSI, adjusted by Corvel, Defendants, 2017 Cal. Wrk. Comp. P.D. LEXIS 148 [see Skaff v. City of Stockton (2017) 82 Cal. Comp. Cases – (Appeals Board noteworthy panel decision)]

Injury AOE/COE—Burden of Proof—Adverse Inferences—WCAB rescinded WCJ’s finding that applicant police officer did not suffer injury AOE/COE in form of prostate cancer based on opinion of panel qualified medical evaluator Juan Cesar Larach, M.D., that applicant’s exposure to methamphetamine during his employment did not contribute to his prostate cancer and that prostate cancer was unrelated to his employment, when WCJ did not address applicant’s contention that he was entitled to adverse inference that his prostate cancer was industrially caused due to defendant’s failure to produce Hazard Awareness Recognition Program (HARP) forms, which applicant alleged defendant was required to do pursuant to state and federal law, and WCAB, noting that 29 C.F.R. § 1910.1020(d) requires that employee medical records and exposure records be maintained for at least thirty years, subject to specified exceptions, concluded that record in this case was unclear as to whether HARP forms requested by applicant were in category of records required to be retained and, if so, whether any exception to regulation applied, that it was also unclear whether applicant was entitled to access to HARP forms as applicant had was not “employed” by defendant at time he requested records because he had retired ten years earlier, that if, upon return of case to trial level, applicant establishes that defendant had duty to retain HARP forms and produce them to applicant, applicant must prove that he exercised reasonable diligence in attempting to retain requested records in order to be entitled to adverse inference, and that if applicant meets requisite burden of proof, WCJ has wide discretion in determining whether and to what extent adverse inference should be made. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 4.02[3][b], 4.05[2][a], [d], [3][a], 27.01[1][c]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 10, § 10.01[4].]

Don Ponce, Applicant v. Barrett Business Services, Inc., PSI, State Compensation Insurance Fund, Defendants, 2017 Cal. Wrk. Comp. P.D. LEXIS 175 [see Ponce v. Barrett Business Services, Inc. (2017) 82 Cal. Comp. Cases – (Appeals Board noteworthy panel decision)]

Injury AOE/COE—Compensable Consequence Injuries—WCAB affirmed WCJ’s finding that applicant truck driver suffered cumulative industrial injury to his left wrist during period ending on 3/4/2015 and, while issue of whether wrist injury was compensable consequence of applicant’s prior shoulder injury incurred at applicant’s previous employment was not tried or determined, WCAB addressed defendant’s assertion that wrist injury was compensable consequence by observing that injury is “compensable consequence” if subsequent injury is direct and natural consequence of original industrial injury and relates back to original injury, but that acceleration or aggravation of preexisting industrial injury is compensable as separate injury AOE/COE if aggravation is reasonably attributable to employee’s subsequent employment, and WCAB found that medical evidence in this case indicated that wrist injury was due to stress on applicant’s wrist because of work he was performing for defendant, that opinion of orthopedic qualified medical evaluator Robert R. McIvor, M.D., stating that prior shoulder injury was contributing factor regarding stress on wrist was not inconsistent with his explanation regarding why cumulative trauma during applicant’s employment by defendant was also contributing factor, and that WCJ’s finding of injury AOE/COE to his left wrist was consistent with medical evidence submitted at trial.

JURISDICTION

Jamie Huscroft, Applicant v. Calgary Flames, Fresno Falcons, Stockton Thunder, Tampa Bay Lightning, Vancouver Canucks, Phoenix Coyotes, Washington Capitals, Federal Insurance Company, Defendants, 2017 Cal. Wrk. Comp. P.D. LEXIS 220

WCAB Jurisdiction—Professional Athletes—Subject Matter Jurisdiction—WCAB, reversing WCJ, held that it had jurisdiction pursuant to Labor Code §§ 3600.5(a) and 5305 over applicant’s claim that he suffered cumulative injury while employed as professional hockey player by several teams from 1/17/88 to 1/12/2000, when applicant accepted employment in California by California-based Fresno Falcons and worked in state during portion of cumulative trauma period, and WCAB explained that WCJ’s conclusion that finding of subject matter jurisdiction underLabor Code §§ 3600.5(a) and 5305 required proof of hiring in California during Labor Code § 5500.5 liability period was incorrect, where evidence showed that applicant played for California team during portion of cumulative injury period (1994 and 1995) that ran entire length of applicant’s professional hockey career, that applicant’s hiring in California by Fresno Falcons in 1994 was sufficient connection with California to support WCAB subject matter jurisdiction pursuant to Labor Code §§ 3600.5(a) and 5305, notwithstanding number of games in which applicant participated while in state, and that finding of WCAB subject matter jurisdiction over injury and claim based upon hiring in California during period of injurious exposure, as in this case, was not inconsistent with principles in Federal Insurance Co. v. Workers’ Comp. Appeals Bd. (Johnson) (2013) 221 Cal. App. 4th 1116, 165 Cal. Rptr. 3d 288, 78 Cal. Comp. Cases 1257, because liability may ultimately be allocated to different employer during period of injurious exposure in accordance with Labor Code § 5500.5(a) without violating due process rights of that employer.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 3.22[2], [3], 21.02, 21.06, 21.07[5]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 13, § 13.01[2].]

LIENS

Milton Reyes, Applicant v. Leegin Creative Leather Products, Travelers Property Casualty Company of America, Defendants, 2017 Cal. Wrk. Comp. P.D. LEXIS 45

Liens—Medical—Reasonableness of Charges—Burden of Proof—WCAB rescinded WCJ’s finding that lien claimant Monrovia Memorial Hospital (Monrovia) was not entitled to recovery on its lien for unpaid implants provided to applicant with 9/13/2002 industrial lumbar spine injury, when WCAB concluded that WCJ applied incorrect standard to evidence by erroneously calculating payments in context of federal regulations applicable to Medicare reimbursement, and explained that long-term care hospitals such as Monrovia are exempt from Official Medical Fee Schedule (OMFS) because, while Legislature intended under Labor Code § 5307(j) that long-term care hospitals be paid in accordance with OMFS, applicable regulations were never amended to provide for payment pursuant to OMFS and, therefore, long-term care hospitals must be paid on reasonable cost basis pursuant to 8 Cal. Code Reg. § 9789.22(k)(5), that reasonable cost-based reimbursement is not referenced in OMFS or defined by Administrative Director’s rules and, in absence of definition or explicit incorporation of federal reasonable cost-based reimbursement rules, it was improper for WCJ to apply those rules to determine reasonable payment due to Monrovia, and that in cases such as this, where OMFS does not apply, WCJ should apply reasonable cost principles set forth in Kunz v. Patterson Floor Coverings, Inc. (2002) 67 Cal. Comp. Cases 1588 (Appeals Board en banc opinion), and Tapia v. Skill Master Staffing (2008) 73 Cal. Comp. Cases 1338 (Appeals Board en banc opinion), and consider evidence from either lien claimant or expert bill reviewer to determine reasonable value lien claimant’s services.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 30.04[3][a], [9]-[12]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 17, § 17.70[1][b].]

MEDICAL-LEGAL PROCEDURE

Jesus Dorantes, Applicant v. Dirito Brothers and Insurance Co. of the West, Defendants, 2017 Cal. Wrk. Comp. P.D. LEXIS 237

Medical-Legal Procedure—Medical Examiner Reporting Timeframes—Replacement Panels—WCAB, denying removal, affirmed WCJ’s order denying applicant’s request for replacement panel qualified medical evaluator in field of orthopedic medicine, notwithstanding that panel qualified medical evaluator Patrick McGahan, M.D., issued untimely supplemental report and despite applicant’s assertion that Dr. McGahan’s reports were not substantial evidence, when WCAB reasoned that although 8 Cal. Code Reg. § 38(i) creates guideline which requires supplemental reports to issue within 60 days, rule must be read in conjunction with Labor Code § 4062.5, which does not mandate replacement qualified medical evaluator panel for untimely supplemental reports, and that while WCAB has discretion to order replacement panel for good cause when supplemental report is untimely, here there was no good cause for replacement panel qualified medical evaluator because there was no evidence delay in Dr. McGahan’s supplemental report caused any prejudice to applicant, and starting over with new qualified medical evaluator would only further delay this matter given that Dr. McGahan had been qualified medical evaluator for over two years, evaluated applicant twice and issued five reports during that time, and WCAB found that issue of whether Dr. McGahan’s reports were substantial evidence was not grounds for replacement qualified medical evaluator under 8 Cal. Code Reg. § 31.5.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 22.11[4], [6], 22.13; Rassp & Herlick, California Workers’ Compensation Law, Ch. 16, § 16.54[6], [14].]

Martin Espinoza, Applicant v. GFC Holdings, Inc., Redwood Fire and Casualty Insurance Company c/o Berkshire Hathaway Homestate Companies, Defendants, 2017 Cal. Wrk. Comp. P.D. LEXIS 239

Medical-Legal Procedure—Qualified Medical Evaluator Panel Requests—WCAB rescinded WCJ’s Order invalidating panel qualified medical evaluator on basis that panel qualified medical evaluator was prematurely obtained prior to receipt and review of report from primary treating physician, and WCAB issued new Order finding that applicant’s request for panel qualified medical evaluator was not premature and was in accord with Labor Code §§ 4060 and 4062.2, when WCAB found that because defendant disputed applicant’s claim of injury AOE/COE, objection to treating physician’s report was not necessary prior to obtaining panel qualified medical evaluator under Labor Code §§ 4060 and 4062.2, and that Labor Code § 4060 process leading to issuance of qualified medical evaluator panel can be initiated any time after filing of claim form.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 1.11[3][g], 22.11[1], 26.03[4]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 16, § 16.54[1], Ch. 19, § 19.37.]

Sandra Catlin, Applicant v. J.C. Penney, Inc., American Home Assurance Co., administered by Chartis, Defendants, 2017 Cal. Wrk. Comp. P.D. LEXIS 106

Medical-Legal Procedure—Additional Examinations—WCAB rescinded WCJ’s Minute Order directing applicant switchboard operator who suffered admitted industrial injuries to her neck, back, shoulder, and chest on 9/29/2006 to attend consultation re-examination regarding ongoing medical treatment with agreed medical examiner William Mouradian, M.D., pursuant to Labor Code § 4050, when WCAB found that medical treatment and medical-legal dispute, examination and reporting process has been modified to point that original purpose of Labor Code § 4050 was subsumed by more specific statutes, including Labor Code §§ 4060, 4061, 4062, and 4610, and medical examination pursuant to Labor Code § 4050 cannot circumvent process set forth in these provisions, but because there was no evidence in record here as to whether additional examination by agreed medical examiner examination was necessary, WCAB returned matter to WCJ for further proceedings on that issue.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 1.11[3][g], 22.06[1], 22.07[2][a], 22.11[11], 24.03[4]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 15, § 15.03, Ch. 16, § 16.54[11], Ch. 19, § 19.37.]

MEDICAL TREATMENT

Tony De La Garza, Applicant v. Roll Global/Del Rey Juice Plant dba POM Wonderful, PSI, Administered by Broadspire, Defendants, 2017 Cal. Wrk. Comp. P.D. LEXIS 61 [see De La Garza v. Roll global/Del Rey Juice Plant dba POM Wonderful (2017) 82 Cal. Comp. Cases 549 (Appeals Board noteworthy panel decision)]

Medical Treatment—Utilization Review—WCAB affirmed WCJ’s order directing defendant to authorize surgical treatment recommended by applicant supervisor’s primary treating physician, Randi Galli, M.D., to treat applicant’s 10/22/2012 industrial burn injury to his left arm, wrist and hand, when surgical treatment was certified by 6/3/2016 utilization review (UR) decision, and WCAB found no justification for defendant’s withdrawal of UR certification on basis that same treatment had been denied by UR/independent medical review (IMR) on 5/20/2016 and that such denial was effective for 12 months pursuant to Labor Code § 4610(g)(6) and 8 Cal. Code Reg. § 9792.9(o) absent change in material facts relating to applicant’s condition, where earlier denial of treatment by UR physician Gerard Pennington, M.D., was based upon Dr. Pennington’s mistaken belief that requested treatment was solely for cosmetic purposes and was not supported by Medical Treatment Utilization Schedule, but treatment was subsequently certified by Dr. Pennington after Dr. Galli resubmitted request for authorization (RFA) clarifying that procedure was not cosmetic but was rather required to alleviate pain associated with applicant’s burn injury and restore functionality in his arm, and WCAB reasoned that, with respect to whether new UR issued within 12 months was valid, neither Labor Code § 4610(g)(6) nor 8 Cal. Code Reg. § 9792.9(o) define meaning of phrase “a documented change in the facts material to the basis of the utilization review decision,” that to extent Dr. Pennington’s initial UR was premised upon incorrect assumption as to purpose of surgery, there was documented change in facts material to basis of UR decision when he was made aware, by resubmitted RFA, that purpose of surgery was to address debilitating pain and restore functionality to applicant’s left arm, that even assuming resubmitted RFA was not technically proper because one-year time period in Labor Code § 4610(g)(6) had not yet expired, there is nothing that prohibits claims adjuster from accepting and acting on UR that is resubmitted prior to such expiration, and that, here, claims adjuster’s decision to treat RFA as proper request for treatment and submit it to UR was consistent with overarching legislative purpose in enacting UR process “to ensure quality, standardized medical care for workers in a prompt and expeditious manner,” and to allow physician, rather than claims adjuster, to make decisions regarding injured employee’s medical treatment.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 5.02, 22.05[6]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 4, §§ 4.10, 4.11.]

Armando Mata, Applicant v. Supermercado Mi Tierra, LLC, California Insurance Company, adjusted by Applied Risk Services, Defendants, 2017 Cal. Wrk. Comp. P.D. LEXIS 166

Medical Treatment—Utilization Review—Disputed Injuries—WCAB affirmed WCJ’s finding that applicant butcher who alleged that he suffered industrial injury to his neck, back and head on 4/15/2016 was entitled to cervical fusion surgery approved through defendant’s utilization review (UR), when WCAB found no merit to defendant’s contention that deferral of UR-approved neck surgery was appropriate based on fact that defendant was contesting whether need for cervical fusion was caused by applicant’s industrial injury to his neck or by preexisting condition, because defendant did not act timely within five-day timeframe in 8 Cal. Code Reg. § 9792.9.1(b)(1) to defer liability for recommended treatment, and WCAB noted that once defendant decides to proceed with UR rather than defer, it cannot later decide to delay medical treatment approved by UR on basis that it is disputing industrial injury, and that since defendant in this case accepted liability for applicant’s neck injury and recommended surgery was certified by UR there was no basis for defendant’s failure to authorize surgery.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 5.02, 22.05[6]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 4, §§ 4.10, 4.11.]

Frances Stevens, Applicant v. Outspoken Enterprises, Inc., State Compensation Insurance Fund, Defendants, 2017 Cal. Wrk. Comp. P.D. LEXIS 228

Medical Treatment—Independent Medical Review—Appeals—WCAB, on remittitur from Court of Appeal [see Stevens v. W.C.A.B. (2015) 241 Cal. App. 4th 1074, 194 Cal. Rptr. 3d 469, 80 Cal. Comp. Cases 1262], rescinded WCJ’s finding that Administrative Director did not exceed her authority when she adopted independent medical review (IMR) determination and returned matter to trial level for further proceedings, when WCAB concluded that (1) IMR determination upholding utilization review denial of applicant’s request for home health aide was “adopted without authority” by Administrative Director because portion of 2009 Medical Treatment Utilization Schedule, Chronic Pain Medical Treatment Guideline (2009 Guideline), provided that housekeeping and personal care services are not forms of medical treatment, and this provision is contrary to longstanding workers’ compensation law which recognizes that such types of non-medical care are forms of medical treatment that may be reasonably required to cure or relieve effects of industrial injury, (2) 2009 Guideline is unlawful and invalid since it fails to address medical treatment in form of personal home care services sought by applicant, and (3) because IMR determination in this case relied on guideline that was invalid, and there was no consideration of scientific medical evidence or expert opinion intended to demonstrate necessity of recommended treatment pursuant to Labor Code §§ 4604.5(a) and 4610.5(b)(2) and 8 Cal. Code Reg. § 9792.21.1(d)(2), Administrative Director exceeded her authority when she adopted IMR determination in this case; although WCAB recognized that 2009 Guideline has been revised since time Court of Appeal issued its decision in this matter, and current guideline includes requirements that address need for personal home health care services, scope of WCAB’s determination was limited to present record and 2009 Guideline because it was version applied in proceedings below and reviewed by Court of Appeal.  [Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 1.11[3][g], 5.02, 22.05[6], 26.03[4]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 4, § 4.11, Ch. 19, § 19.37.]

Janice Payne, Applicant v. Federal Express, PSI, and Administered by Broadspire, Defendants, 2017 Cal. Wrk. Comp. P.D. LEXIS 243

Medical Treatment—Utilization and Independent Medical Review—Binding Agreement to Utilize Agreed Medical Examiner—WCAB rescinded WCJ’s finding that he lacked jurisdiction to award medical treatment in form of extension of weight loss program because applicant had triggered independent medical review (IMR) process by seeking review of utilization review (UR) denial and that dispute was, therefore, required to be resolved via UR/IMR process, when parties had entered Compromise and Release Agreement in 2003 wherein they agreed to utilize agreed medical examiner Mark Mandel, M.D., to determine medical necessity for applicant’s claimed industrial treatment, including weight loss, and, adopting analysis set forth by panel in Bertrand v. County of Orange, 2014 Cal. Wrk. Comp. P.D. LEXIS 342 (Appeals Board noteworthy panel decision), WCAB concluded that terms of parties’ Compromise and Release were not vitiated by new UR/IMR provisions because terms of binding settlement agreement cannot be invalidated by subsequent statutory changes, and that applicant did not waive right to enforce terms of settlement agreement by pursuing IMR; WCAB rejected defendant’s assertion that Court of Appeal in Stevens v. W.C.A.B. (2015) 241 Cal. App. 4th 1074, 194 Cal. Rptr. 3d 469, 80 Cal. Comp. Cases 1262, implicitly held that contractual agreement to use agreed medical evaluator to resolve future medical treatment disputes is nullified by statutory enactment of IMR process, as this issue was not addressed in Stevens, and WCAB noted that parties’ agreement in this case to use Dr. Mandel to resolve medical disputes was consistent with underlying purpose of UR/IMR statutory changes discussed in Stevens because it obviated need to litigate future treatment disputes through more protracted IMR review and appeal processes.  [Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 5.02, 22.05[6]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 4, §§ 4.10, 4.11.]

PERMANENT DISABILITY

Margaret Marti Foxworthy, Applicant v. State of California, Department of Parks and Recreation, Legally Uninsured, State Compensation Insurance Fund/State Contract Services, Adjusting Agency, Defendants, 2017 Cal. Wrk. Comp. P.D. LEXIS 86

Permanent Disability—Rating—Combined Values Chart—WCAB, in split panel opinion, affirmed its prior decision [see Foxworthy v. State of California, Dept. of Parks and Recreation, 2016 Cal. Wrk. Comp. P.D. LEXIS 634 (Appeals Board noteworthy panel opinion)] in which it awarded applicant 67 percent permanent disability for orthopedic, psychiatric and internal injuries based on Combined Values Chart (CVC) in 2005 Permanent Disability Rating Schedule, when application of CVC was based on opinion of orthopedic agreed medical examiner Jeffrey T. Holmes, M.D., regarding lack of synergistic effect among applicant’s various injuries, which WCAB found more persuasive than other medical opinions in record indicating that disabilities to different body parts/systems should not be combined using CVC, and WCAB rejected applicant’s claim that impairments from her psychiatric, internal and orthopedic injuries did not overlap and, therefore, should be added to produce overall permanent disability of 92 percent, where WCAB found overlap of psychiatric and orthopedic impairments based on work restrictions and effect on applicant’s activities of daily living and her ability to work; Commissioner Sweeney, dissenting, opined that applicant successfully rebutted applicability of CVC by demonstrating that there was no overlap of spine, psychiatric and internal impairments, and that application of CVC in this case did not produce accurate reflection of applicant’s disability given medical evidence describing separate impairments and restrictions for each injury.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 8.02[3], [4][a], 32.03A; Rassp & Herlick, California Workers’ Compensation Law, Ch. 7, §§ 7.11, 7.12; The Lawyer’s Guide to the AMA Guides and California Workers’ Compensation, Ch. 6.]

Kelly Truesdell, Applicant v. Von’s Grocery Company, PSI, Defendant, 2017 Cal. Wrk. Comp. P.D. LEXIS 102

Permanent Disability—Rating—Permanent Total Disability—WCAB, affirming WCJ, held that applicant sales manager/grocery supervisor’s cumulative injury to his cervical spine, thoracic spine, lumbar spine, right foot, right ankle, and psyche during period 12/10/2004 through 4/20/2011, suffered 100 percent permanent disability “in accordance with the fact” under Labor Code § 4662(b) following failed back surgery based on opinion of agreed medical examiner Alexander Angerman, M.D., when WCAB found that Dr. Angerman’s assessment of permanent total disability due to combination of failed back surgery and strong pain medications constituted substantial medical evidence to support WCJ’s determination that applicant was permanently totally disabled by his injury, despite Dr. Angerman’s provision of 67 percent impairment rating under AMA Guides, and WCAB found no merit to defendant’s assertion that vocational expert evidence, rather than medical opinion, was necessary to support finding of 100 percent PD “in accordance with the fact,” where Dr. Angerman had expertise to evaluate applicant’s orthopedic injury, assessed 100 percent permanent disability based on facts and objective findings using his medical judgement and properly determined, from medical standpoint, that applicant was unable to compete in labor market.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 8.02[3], [4], 32.02[2], 32.03A; Rassp & Herlick, California Workers’ Compensation Law, Ch. 7, §§ 7.11, 7.12; The Lawyer’s Guide to the AMA Guides and California Workers’ Compensation, Chs. 3, 4, 5, 8.]

Mukesh Singh, Applicant v. State of California, Legally Uninsured, Defendant, 2017 Cal. Wrk. Comp. P.D. LEXIS 204

Permanent Disability—Rating—Diminished Future Earning Capacity—WCAB rescinded WCJ’s finding that applicant suffered 100 percent combined permanent disability as result of industrial orthopedic and psychiatric injuries incurred on 12/15/2006, 12/11/2007, 9/1/2009, and during cumulative period ending on 10/16/2009, when WCAB found that opinion of vocational expert upon which WCJ relied to find permanent total disability did not constitute substantial evidence and was insufficient to rebut scheduled rating pursuant to Ogilvie v. W.C.A.B. (2011) 197 Cal. App. 4th 1262, 129 Cal. Rptr. 3d 704, 76 Cal. Comp. Cases 624, and Contra Costa County v. W.C.A.B. (Dahl) (2015) 240 Cal. App. 4th 746, 193 Cal Rptr. 3d 7, 80 Cal. Comp. Cases 1119, because vocational expert failed to address factors, whether medical or non-medical, which were contributing to applicant’s vocational non-feasibility, and did not address applicant’s ability to participate in vocational rehabilitation, and WCAB noted that even if evidence supported conclusion that applicant was unable to compete in open labor market solely due to his work injuries, Labor Code § 4663 and Benson v. W.C.A.B. (2009) 170 Cal. App. 4th 1535, 89 Cal. Rptr. 3d 166, 74 Cal. Comp. Cases 113, would still require that applicant’s permanent total disability be apportioned among his various industrial injuries, that separate injuries are combined by adding percentages of disabilities rather than combining them under Combined Values Chart, which is reserved for combining disability caused by single injury, and that scheduled disabilities caused by injuries in this case, which add up to far more than 100 percent, are not inconsistent with possibility that applicant had overall permanent total disability.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 8.02[3], [4][a], 32.03A; Rassp & Herlick, California Workers’ Compensation Law, Ch. 7, §§ 7.11, 7.12; The Lawyer’s Guide to the AMA Guides and California Workers’ Compensation, Ch. 8.]

Jesus Torres, Applicant v. Greenbrae Management, State Compensation Insurance Fund, Defendants, 2017 Cal. Wrk. Comp. P.D. LEXIS 230

Permanent Disability—Rating—Sleep and Sexual Dysfunction—WCAB held that applicant who was awarded permanent disability for 1/8/2014 industrial injuries to his head, neck, back, ears, and psyche, was precluded by Labor Code § 4660.1(c)(1) from receiving increased permanent disability for sleep disorder and sexual dysfunction, when WCAB found that AMA Guides already incorporates sleep and sexual functions as activities of daily living in determining proper strict rating, that to allow additional consideration for such disorders outside of strict rating would both impermissibly violate Labor Code § 4660.1(c)(1) and allow, in essence, two impairments for same injury, that applicant may not include additional sleep or sexual dysfunction add-ons via Almaraz v. Environmental Recovery Services/Guzman v. Milpitas Unified School District (2009) 74 Cal. Comp. Cases 1084 (Appeals Board en banc opinion), aff’d sub nom. Milpitas Unified School Dist. v. W.C.A.B. (Guzman) (2010) 187 Cal. App. 4th 808, 115 Cal. Rptr. 3d 112, 75 Cal. Comp. Cases 837, beyond that which is already considered in strict AMA Guides rating, and that to hold otherwise would ignore plain text of statute, which forbids any such add-ons, without exception.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 8.02[3], [4], 32.02[2], 32.03A; Rassp & Herlick, California Workers’ Compensation Law, Ch. 7, § 7.05[3][b]; The Lawyer’s Guide to the AMA Guides and California Workers’ Compensation, Chs. 2, 6.]

Ismael Gamez, Applicant v. Newport Mesa Unified School District, PSI, Administered By Keenan Associates, Defendants, 2017 Cal. Wrk. Comp. P.D. LEXIS 89

Permanent Disability—Offers of Regular, Modified or Alternative Employment—Increased Permanent Disability Award—WCAB affirmed WCJ’s award of 22 percent permanent disability, which did not include 15 percent increase under Labor Code § 4658(d), and found that although applicant, who had suffered industrial injury to his shoulders on 8/13/2012 while working as custodian, correctly asserted that pursuant to Bontempo v. W.C.A.B. (2009) 173 Cal. App. 4th 689, 93 Cal. Rptr. 3d 229, 74 Cal. Comp. Cases 419, it is not necessary to separately raise issue of Labor Code § 4658(d) increase at trial where permanent disability has been identified as issue, record in this case was devoid of evidence regarding essential elements of Labor Code § 4658(d)(2), including evidence regarding whether employer had 50 or more employees, and whether defendant ever sent applicant conforming offer of regular, modified or alternative work, and WCAB concluded that in absence of voluntary payment giving rise to tacit admission that Labor Code § 4658(d)(2) applied, or undisputed evidence to support application, Bontempo could not be read as mandating award of increased permanent disability where essential evidentiary foundation was not placed in record, that there was nothing in this record establishing evidentiary basis upon which to conclude that provision applied, that burden of proof in workers’ compensation cases rests on party “holding the affirmative of the issue,” and that it was not incumbent upon defendant to establish that 15 percent increase did not apply, but rather on applicant as party seeking increased benefit to justify application of increase.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 7.02[4][d][iii], 32.04[2]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 7, § 7.51[2].]

PSYCHIATRIC INJURY

Shaida Raiszadeh, Applicant v. County of Riverside, PSI and self-administered, Defendant, 2017 Cal. Wrk. Comp. P.D. LEXIS 225

Psychiatric Injury—Six-Month Employment Requirement—Sudden and Extraordinary Employment Condition—WCAB affirmed WCJ’s finding that applicant’s claim for 7/15/2015 psychiatric injury, allegedly incurred when applicant was punched in head on home visit while working as social worker, was not barred by six-month employment requirement in Labor Code § 3208.3(d), when WCAB found that psychiatric injury was caused by “sudden and extraordinary” employment because applicant’s injury was not accidental but was instead caused by willful assault at workplace, and reasoned that where employee is injured in course of workplace violence, injury is generally considered “sudden and extraordinary,” that although defendant offered testimony that other employees had been attacked in similar fashion, totality of evidence presented indicated that applicant, as social worker, was not engaged in violent occupation such that she was expected to be physically assaulted by member of public on common or routine basis, and that contrary to discussion by WCJ and defendant, concept of “sudden and extraordinary” in Labor Code § 3208.3(d) and concept of psychiatric injury caused by “violent act” for purposes of lowering threshold of proof as described in Labor Code § 3208.3(b) are not interchangeable.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 4.02[3][d]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 10, § 10.06[3][c].]

Jesus Torres, Applicant v. Greenbrae Management, State Compensation Insurance Fund, Defendants, 2017 Cal. Wrk. Comp. P.D. LEXIS 230

Psychiatric Injury—Violent Acts—Increased Permanent Disability—WCAB rescinded WCJ’s award of 57 percent permanent disability and instead awarded applicant 78 percent permanent disability for injuries incurred on 1/8/2014 when he fell approximately 20 feet from tree and struck tree trunk with his head and body while working as tree trimmer, when WCJ’s permanent disability award did not include permanent disability resulting from applicant’s psychiatric injury, presumably based on WCJ’s finding that applicant’s psychiatric injury did not result directly from his fall or from “violent act” in accordance with Labor Code § 4660.1(c), but WCAB found that applicant’s mechanism of injury did constitute “violent act” as defined in § 3208.3(b) and described in prior panel decisions as “an act that is characterized by either strong physical force, extreme or intense force, or an act that is vehemently or passionately threatening,” and, therefore, all of applicant’s psychiatric impairment was compensable regardless of whether it was directly caused by falling or whether it was caused as compensable consequence of applicant’s physical injuries.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 4.02[3][a], [b], [f], 4.69[1], [3][a], 8.02[4][c][ii], [5], 32.02[2][a]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 7, §§ 7.05[3][b][i][ii], 7.06[6], Ch. 10, § 10.06[3][a], [b][i].]

TEMPORARY DISABILITY

Jedediah Keltner, Applicant v. California Guest Services, Inc., Chubb Group of Insurance Companies, Defendants, 2017 Cal. Wrk. Comp. P.D. LEXIS 94 [see Keltner v. California Guest Services, Inc. (2017) 82 Cal. Comp. Cases 629 (Appeals Board noteworthy panel decision)]

Temporary Disability—Permanent and Stationary Status—Utilization Review—WCAB, in split panel opinion, affirmed WCJ’s finding that determination of agreed medical examiner Joel Renbaum, M.D., indicating that in absence of surgery applicant maintenance supervisor’s 2/15/2015 lumbar spine injury had reached permanent and stationary status, was substantial evidence despite fact that Dr. Renbaum did not review utilization review (UR) reports denying lumbar surgery, and WCAB concluded that applicant’s condition met definition of permanent and stationary status because there was no medical evidence that his condition was likely to substantially improve under his current medical treatment, that because surgery was denied by UR, WCJ lacked authority to consider merits of applicant’s need for surgery and, therefore, there was no pending approved medical treatment to support finding of continuing temporary disability, and that since UR determination disallowing surgery was final for one year, absent changed circumstance there was no basis to award continuing temporary disability indemnity; Commissioner Sweeney, dissenting, would return matter to WCJ to obtain clarification as to whether applicant was, in fact, temporarily disabled, when Commissioner Sweeney found this case similar to San Francisco Police Dept. v. W.C.A.B. (Casey) (2014) 79 Cal. Comp. Cases 970 (writ denied), where Dr. Renbaum also acted as agreed medical examiner and WCAB found temporary disability based on Dr. Renbaum’s finding that injured worker remained temporarily disabled even after UR denial of surgery because he was motivated to pursue benefits of surgical procedure, and Commissioner Sweeney was persuaded that substantial justice required further development of record to determine whether applicant actually reached permanent and stationary status or whether Dr. Renbaum merely acquiesced to fact that UR denied recommended surgery.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 7.02[3]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 6, § 6.01[1].]

THIRD-PARTY ACTIONS

Antonio Hernandez Orozco, Applicant v. Ronald McDonald Farms, Zenith Insurance Company, Defendants, 2017 Cal. Wrk. Comp. P.D. LEXIS 219

Third-Party Actions—Employer’s Claim for Credit—Waiver of Credit Rights—WCAB held that defendant Zenith Insurance Company (Zenith) did not expressly waive or settle its right to seek credit pursuant to Labor Code § 3861 for future benefits due to or on behalf of applicant against applicant’s net settlement of $23,506.14 in third-party case stemming from orthopedic injuries incurred by applicant while employed as tractor driver on 7/15/2011, when WCAB reasoned that right to credit in WCAB proceedings and right to lien in third-party action are separate and distinct, and settlement of lien claim in civil action is not necessarily settlement or waiver of right to credit, that to deny credit there must have been express waiver or settlement of credit rights, that, here, assignment of Zenith’s lien in settlement release document defined assigned lien rights as “the total amount of workers’ compensation benefits paid to and on behalf of plaintiff as the result of injuries which are the subject of the lawsuit herein,” indicating Zenith’s intent to settle lien for benefits already paid at time of assignment, that release document contained no express waiver or settlement of defendant’s right to Labor Code § 3861 credit for future benefits paid, and that WCJ misconstrued lien assignment to include credit for applicant’s third-party recovery, especially given absence of evidence in record of any intent by Zenith to waive its credit rights.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 11.42[5]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 12, § 12.10[2].]

Anthony Bernard Edwards (Dec’d), Candace Edwards (Widow), Ashley Edwards (Daughter), Anthony Edwards, Jr. (Son), Applicants v. City of Los Angeles, Los Angeles World Airports, PSI, Defendants, 2017 Cal. Wrk. Comp. P.D. LEXIS 156

Third Party Actions—Employer’s Claim for Credit—Professional Negligence—WCAB held that defendant was not barred by Civil Code § 3333.1 of Medical Injury Compensation Reform Act from claiming credit under Labor Code § 3861 against its liability for death benefits for proceeds of third-party settlement between decedent police officer’s dependents and decedent’s medical provider, Kaiser Permanente Medical Group, in medical malpractice action, when WCAB determined that death benefits are considered to be compensation similar to permanent disability benefits, temporary disability benefits and medical benefits, against which credit may be claimed, but noted that WCJ here made no findings of fact or orders regarding application of Civil Code § 3333.1 or defendant’s entitlement to credit even though issue was specifically raised by defendant, who contended that it was entitled to credit despite Civil Code § 3333.1 based on decision in Bernstein v. W.C.A.B. (1996) 61 Cal. Comp. Cases 484 (writ denied), to prevent double recovery by dependents where there was no proof that dependents’ civil settlement was reduced to reflect recovery of workers’ compensation death benefits, and WCAB found that WCJ’s attempt to distinguish Bernstein based on nature of benefits involved in that case was unfounded, and that nature of benefit does not determine application of Civil Code § 3333.1; WCAB remanded matter for further proceedings with respect to defendant’s entitlement to credit as result of third-party settlement and, if defendant is found to be entitled to credit, with respect to any negligence by employer, third-party or decedent that may affect defendant’s entitlement to credit.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 11.42[5]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 12, § 12.10[2].]

Beatrice Sywassink, Applicant v. Pacific Gas and Electric Company, PSI, Defendant, 2017 Cal. Wrk. Comp. P.D. LEXIS 205 [see Sywassink v. Pacific Gas and Electric (2017) 82 Cal. Comp. Cases -- (Appeals Board noteworthy panel decision)]

Third-Party Actions—Employer’s Claim for Credit—Vaccine Injury Compensation Program—WCAB affirmed WCJ’s finding that defendant was not entitled to credit pursuant to Labor Code §§ 3852-3862 against its workers’ compensation liability for applicant’s recovery from National Vaccine Injury Compensation Program (NVICP) (42 U.S.C.S. § 300aa-10 et seq.) for injury incurred by applicant on 9/29/2009 in form of adverse reaction to company-sponsored flu vaccine, when WCAB found that defendant’s right to credit was barred by express provisions of NVICP, which preclude payment for expenses covered under state compensation and, in fact, allow NVICP trust subrogation rights against applicant’s workers’ compensation award to avoid “double recovery,” and WCAB noted that only those persons who suffered vaccine-related injury or their legal representatives are permitted to petition NVICP for compensation so that defendant had no standing to pursue any claim against NVICP, and that NVICP can be analogized to Civil Code § 3333.1 of Medical Injury Compensation Reform Act, which precludes double recovery by operation of collateral source rule.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 11.42[5]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 12, § 12.10[2].]

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