California: Top 25 Noteworthy Panel Decisions (January through June 2018)

LexisNexis has selected some of the top “noteworthy” panel decisions issued by the California Workers’ Compensation Appeals Board during the period January through June 2018. The list features a number of split panel decisions, including a case in which the WCAB interpreted City of Covina v. W.C.A.B. (Alvarez) (2002) 67 Cal. Comp. Cases 1044 (writ denied), to award a retired police officer permanent disability indemnity at the maximum statutory rate pursuant to the Labor Code § 4458.5 conclusive presumption of maximum earnings, when his injuries were orthopedic in nature and not subject to any presumptions specified in Labor Code § 3212 et seq., and a decision where the WCAB determined that the agreed medical examiner’s apportionment of applicant’s permanent disability to preexisting genetic degenerative disease was consistent with apportionment to causation requirements in Labor Code §§ 4663 and 4664(a) and case law interpreting those statutes.

Also included are several decisions addressing ex parte communications with qualified medical evaluators and the rules regarding the exchange of nonmedical information with opposing parties prior to service on a medical evaluator, recent panel decisions discussing the filing of lien declarations, and a panel decision in which the WCAB cautioned claims adjusters to read RFAs and physician’s report together in their entirety when making decisions regarding whether to authorize medical treatment.

Additionally, there are three “bonus” cases included—one is the first panel decision interpreting the amendments to Labor Code § 3600.5, which limit the ability of pro athletes to have cumulative trauma claims heard in California, another interprets the phrase “practically total paralysis” in Labor Code § 4662(a)(3) for purposes of applying the presumption of permanent total disability, and the third discusses when the apportionment rule in Benson v. W.C.A.B. (2009) 170 Cal. App. 4th 1535, 89 Cal. Rptr. 3d 166, 74 Cal. Comp. Cases 113, should be applied and when the exception to the Benson rule applies.

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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AVERAGE WEEKLY EARNINGS

James Craig Sillers, Applicant v. City of Pleasant Hill, PSI, Municipal Pooling Authority, Defendants, 2018 Cal. Wrk. Comp. P.D. LEXIS 77 [Petition for Writ of Review dismissed 4/26/2018, sub nom. City of Pleasant Hill v. WCAB (Sillers), A153989]

Average Weekly Wage—Earnings—Presumption of Maximum Earnings for Retired Police Officers—WCAB, in split panel opinion, held that retired police officer who suffered 47 percent permanent disability as result of cumulative injury to his cervical spine, lumbar spine, and bilateral cubital tunnels during his employment from 1/22/88 to 9/17/2015, was entitled to permanent disability indemnity at maximum statutory rate of $290.00 per week pursuant to Labor Code § 4458.5 conclusive presumption of maximum earnings, even though his injuries were orthopedic in nature and not subject to any presumptions specified in Labor Code § 3212 et seq., as referenced in Labor Code § 4458.5, when WCAB panel majority found that decision in City of Covina v. W.C.A.B. (Alvarez) (2002) 67 Cal. Comp. Cases 1044 (writ denied), was controlling in this case, and based on Alvarez decision reasoned that nothing in Labor Code § 4458.5’s language expressly provides that benefits are limited only to those retired active public service members whose injuries are presumed compensable, that Labor Code § 4458.5’s reference to presumption statutes was only for purpose of incorporating time provisions, which limit post-employment injury benefits to maximum of 60 months, and that absent clear and unambiguous legislative intent, WCAB should liberally construe provisions of Labor Code § 4458.5 to extend its benefits for protection of injured public service members; Commissioner Lowe, dissenting, believed that because Alvarez involved injury which fell under heart trouble presumption in Labor Code §§ 3212 and 3212.5, language in Alvarez relied upon by majority was dicta and was not controlling, and Commissioner Lowe opined that based on panel decisions in Goslin v. City of Avalon, 2009 Cal. Wrk Comp. P.D. LEXIS 121 (Appeals Board noteworthy panel decision), and Bachant v. City of Fresno, 2007 Cal. Wrk. Comp. P.D. LEXIS 96 (Appeals Board noteworthy panel decision), where panels determined that only service members with presumptively compensable injuries are entitled to presumption of maximum earnings, Labor Code § 4458.5 did not apply to applicant in this case. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 6.05[3]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 5, § 5.07.]

Maria Cerna, Applicant v. Eckert Cold Storage Company, Travelers Property Casualty Company of America, Defendants, 2018 Cal. Wrk. Comp. P.D. LEXIS 145 [see Cerna v. Eckert Cold Storage Co. (2018) 83 Cal. Comp. Cases -- (Appeals Board noteworthy panel decision)]

Average Weekly Wages—Earning Capacity—Seasonal Employees—Unemployment Compensation—WCAB rescinded WCJ’s finding that applicant packer’s average weekly earnings for purposes of her permanent disability rate must be calculated using her gross seasonal earnings combined with her net benefits from unemployment collected during off-season, when WCAB found that average weekly wage of seasonal employees such as applicant is generally determined under Labor Code § 4453(c)(4), with focus on employee’s earning capacity rather than actual earnings, that determination of earning capacity involves consideration of several factors including employee’s skills, education and ability to work, general condition of labor market, and employment opportunities for similarly situated persons, that although applicant here testified that she desired to work full-time but could not perform the jobs offered by defendant due to her disabilities, there was no medical evidence submitted at trial about applicant’s physical restrictions, no testimony reflecting wage amount for any position offered by defendant, and no evidence indicating what applicant’s post-injury earnings would be if applicant were employed in position offered by defendant or other full-time employment, that record was deficient regarding applicant’s post-injury earning capacity and required further development on that issue, and that if, upon further development of record, there is specific, demonstrable evidence that applicant has higher post-injury earning capacity, this must be considered in determining her average weekly earnings for purposes of her permanent disability rate; WCAB also found that WCJ erred in ordering consideration of applicant’s unemployment compensation benefits as part of her earnings, noting that unemployment compensation may not be used in determining actual earnings for seasonal employee because unemployment benefits are not “earnings” since these benefits are only payable when person is unemployed. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 6.02[1], [5], 6.04; Rassp & Herlick, California Workers’ Compensation Law, Ch. 5, §§ 5.01, 5.03, 5.04, 5.05.]

Steven Patterson, Applicant v. Ralph Mejia Security, State Compensation Insurance Fund, Defendants, 2018 Cal. Wrk. Comp. P.D. LEXIS 96

Average Weekly Wage—Dual Employment—WCAB amended WCJ’s decision to defer calculation of applicant’s average weekly earnings so that record could be further developed pursuant to Leeth v. W.C.A.B. (1986) 186 Cal. App. 3d 1550, 231 Cal. Rptr. 468, 51 Cal. Comp. Cases 540, when applicant, who worked part-time as security guard for Ralph Mejia Security earning $12.00 per hour and had concurrent full-time employment with California Cemetery and Funeral earning $19.00 per hour, suffered injury while breaking up fight in his capacity as security guard, WCJ found that applicant’s average weekly earnings at time of injury under Labor Code § 4453(c)(4) were $1,040.10 based on his earning capacity, producing temporary disability rate of $697.40 per week, and WCAB reasoned that in cases of concurrent employment, Labor Code § 4453(c)(2) is generally used to calculate average weekly wage based on actual earnings from both employments, that pursuant to Leeth, Labor Code § 4453(c)(4) can be applied in dual employment situations to calculate earning capacity for injurious employment only if there exists specific demonstrable evidence that injured worker was scheduled for or likely to receive wage increase in that employment, and that here WCJ should have applied Labor Code § 4453(c)(2) or, alternatively, made determination that applicant’s earnings at Ralph Mejia Security did not fairly reflect his earning capacity based on specific evidence that wage increase at that employment was likely, and because there was no such evidence, record required further development. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 6.02[6]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 5, § 5.02.]

ATTORNEY’S FEES

Bruce Carter, Applicant v. Department of Fair Employment and Housing, State Compensation Insurance Fund, Defendants, 2018 Cal. Wrk. Comp. P.D. LEXIS 255

Attorney’s Fees—Delayed Payment of Compensation—Exemption for State Agencies—WCAB granted removal and rescinded WCJ’s award of attorney’s fees against defendant California Department of Fair Employment and Housing/State Compensation Insurance Fund pursuant to Labor Code § 5814.5, based on its delayed payments of compensation to applicant, when WCAB found that, as agency of State of California, defendant was exempt from attorney’s fees assessed under Labor Code § 5814.5 pursuant to language in Labor Code § 3700. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 10.42, 20.02[2][e]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 11, § 11.11[2], Ch. 17, § 17.33[7].]

CALIFORNIA INSURANCE GUARANTEE ASSOCIATION

Jose Luis Mastache, Applicant v. Staffchex, Inc., Jessie Lord Bakery, California Guarantee Association for Ullico Casualty Company in Liquidation through its servicing facility Sedgwick CMS, Travelers Property Casualty Company of America, Defendants, 2018 Cal. Wrk. Comp. P.D. LEXIS 270

California Insurance Guarantee Association—General and Special Employment—Restricting and Limiting Endorsements—WCAB rescinded Arbitrator’s finding that California Insurance Guarantee Association (CIGA), on behalf of applicant’s general employer, Staffchex, Inc., was liable for benefits to applicant because insurance policy issued by Travelers Property Casualty Company of America (Travelers) to applicant’s special employer, Jessie Lord Bakery, excluded special employees from coverage and was not “other insurance” pursuant to Insurance Code § 1063.1(c)(9), and WCAB held that Travelers policy covered applicant’s 8/31/2011 date of injury, when WCAB reasoned that (1) Arbitrator incorrectly found that agreement between general employer and special employer under Labor Code § 3602(d), such as leasing agreement between Staffchex and Jessie Lord Bakery, can eliminate joint and several liability for their joint employees, as coverage is determined by looking at terms of relevant insurance policy and not agreement between employers, (2) Arbitrator also erred in determining that Travelers insurance policy excluded certain employees based on limiting and restricting endorsement that did not comply with Insurance Commissioner’s regulations in effect at time insurance contract was formed, because change in rules, effective 4/1/2016, allowing insurer to exclude liability of employer for employees who are covered under another employer’s workers’ compensation policy pursuant to Labor Code § 3602(d) agreement, do not apply retroactively as determined by Arbitrator, and (3) Travelers did not properly exclude liability for applicant’s injuries pursuant to former 10 Cal. Code Reg. § 2259(e) in effect at time insurance policy was issued to Jessie Lord Bakery because there was no evidence that Travelers obtained required written affirmation from employer stating that excluded liability was otherwise insured, either by employer’s countersignature on endorsement or through separate document. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 2.60[3], 2.84[3][a], 3.142[5]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 3, §§ 3.30[2], 3.33[3].]

CREDIT

Dolores Escamilla, Applicant v. Cacique, Inc., Travelers Insurance Company, Defendants, 2018 Cal. Wrk. Comp. P.D. LEXIS 49 [see Escamilla v. Cacique, Inc. (2018) 83 Cal. Comp. Cases 1099 (Appeals Board noteworthy panel decision)]

Credit—Third-Party Actions—Legal Malpractice Settlements—WCAB affirmed WCJ’s finding that defendant was not entitled to credit pursuant to Labor Code § 3861 against its workers’ compensation liability for applicant’s net settlement recovery in legal malpractice lawsuit against her civil attorneys based on their handling of third-party personal injury case arising out of applicant’s 10/3/2010 industrial slip-and-fall injury, when WCAB, based on decisions in Soliz v. Spielman (1974) 44 Cal. App. 3d 70, 118 Cal. Rptr. 127, 40 Cal. Comp. Cases 130, and El Katan v. Barrett Business Services, Inc., 2013 Cal. Wrk. Comp. P.D. LEXIS 41 (Appeals Board noteworthy panel decision), held that employer has no right of recovery under subrogation/credit statutes from employee’s legal malpractice lawsuit, noting that if employee fails to file third-party civil action, as occurred here due to running of statute of limitations, thereby precluding employer from obtaining credit under Labor Code § 3861 against any third-party recovery, employer’s remedy is to file its own subrogation action against third party, which defendant in this case did not do, that defendant failed to show that settlement proceeds from applicant’s legal malpractice lawsuit would duplicate any future compensation benefits that defendant may owe applicant and, therefore, could not prevail on its assertion that credit should be awarded to prevent double recovery by applicant, that, contrary to defendant’s contention, there is no analogy between “fourth party” legal malpractice lawsuit and third-party medical malpractice claims under Civil Code § 3333.1 or uninsured motorist coverage, and that neither applicant nor applicant’s attorneys owed duty of care to defendant to preserve defendant’s rights against third-party tortfeasor such that defendant would be entitled to credit based on breach of duty/negligence theory. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 11.42; Rassp & Herlick, California Workers’ Compensation Law, Ch. 12, § 12.02.]

DEATH BENEFITS

Gilbert Cortez (Deceased), Nohema Cortez (Surviving Spouse & Guardian Ad Litem), et al., Applicants v. California Department of Corrections and Rehabilitation, Legally Uninsured, California Public Employees Retirement System, and State Compensation Insurance Fund (Claims Administrator), Defendants, 2018 Cal. Wrk. Comp. P.D. LEXIS 233

Death Benefits—Special Death Benefit—WCAB rescinded WCJ’s finding that there was good cause to award workers’ compensation death benefits against defendant and in favor of decedent’s totally dependent son and partially dependent daughter, and WCAB returned matter to WCJ to issue 10-day notice of intention to submit, served on California Employees’ Retirement System (CalPERS) and all other parties, consistent with 8 Cal. Code Reg. § 10562, when WCJ’s decision was issued without appearance by CalPERS, and WCAB concluded that in cases where, as here, CalPERS was joined in WCAB proceeding but failed to appear, WCAB may proceed to decision on entitlement to workers’ compensation benefits only after serving CalPERS and all other parties with 10-day notice of intention to submit, and that to conclude otherwise would effectively prevent WCAB from determining under Department of Corrections v. W.C.A.B. (Antrim) (1979) 23 Cal. 3d 197, 205, 152 Cal. Rptr. 345, 350, 589 P.2d 853, 858, 44 Cal. Comp. Cases 114, whether there was good cause to award workers’ compensation benefits; WCAB instructed that if CalPERS does not timely object and/or request to appear after receiving notice of intention, WCJ should issue new decision giving consideration to whether there was good cause pursuant to principles in Antrim to award workers’ compensation death benefits to decedent’s two dependent children and, if good cause is found, determine whether these benefits should be offset by amount of CalPERS special death benefit being paid. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 3.114[1], 9.03[2], 9.04; Rassp & Herlick, California Workers’ Compensation Law, Ch. 9, § 9.14[1], Ch. 22, § 22.05[4].]

DISCOVERY

Gildo Beitia, Applicant v. City of Oakland, PSI and Administered by JT2 Integrated Resources, Defendants, 2018 Cal. Wrk. Comp. P.D. LEXIS 228

Discovery—Subpoena Duces Tecum—WCAB, denying removal in split panel opinion, found that WCJ did not deny defendant due process by limiting its right to discovery of nonindustrial conditions that may have played role in causation of applicant’s 9/3/2015 injuries, which he alleged included back/spine injury and compensable consequence hypertension and weight gain, when WCAB panel majority was persuaded that defendant’s subpoenas seeking treatment records from three different medical facilities were impermissibly overbroad, and reasoned that WCJ’s Order quashing subpoenas was consistent with case law limiting scope of discovery into plaintiff’s past medical history, that despite public policy of liberal pre-trial discovery, provisions of Code of Civil Procedure § 2016 et seq., related to discovery are not applicable in workers’ compensation proceedings, and parties should complete discovery pursuant to workers’ compensation rules, that in this case defendant failed to provide compelling argument to allow discovery of applicant’s entire medical record and history beyond alleged injuries currently at issue, and that defendant did not establish that substantial prejudice or irreparable harm would result if removal is denied because defendant can issue another subpoena if additional evidence indicates applicant suffered injury to other body parts and can utilize other methods to discover information it seeks, such as subpoenaing additional records or deposing treating physicians; Commissioner Lowe, dissenting, opined that applicant did not show adequate basis for limiting scope of subpoenas in question and that full discovery of medical records requested by defendant was preferable given general rule allowing liberal pre-trial discovery, and that in order for examining physician in this case to render opinion which will be substantial evidence regarding applicant’s claim of industrial compensable consequence injuries consisting of hypertension and weight gain, it is necessary for doctor to review all available medical records on these issues, including those related to applicant’s nonindustrial conditions. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 1.11[3][g], 25.40, 25.43, 26.03[4]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 15, § 15.45, Ch. 19, § 19.37.]

INJURY AOE/COE

Alex Robles, Applicant v. Southern California Gas Company, PSI, Utility Workers Union of America, Local 132, State Compensation Insurance Fund, Defendants, 2018 Cal. Wrk. Comp. P.D. LEXIS 98 [see Robles v. Southern California Gas Co. (2018) 83 Cal. Comp. Cases 1122 (Appeals Board noteworthy panel decision)]

Injury AOE/COE—Going and Coming Rule—Union Activities—WCAB affirmed WCJ’s findings that applicant who was injured in automobile accident on 10/17/2011 while driving to union office to participate in union business in his capacity as union regional manager, was employed by defendant Southern California Gas Company at time of his injury, and that his injury claim was not barred by “going and coming” rule, when WCAB reasoned, based on analyses in prior decisions, that injuries sustained as result of union activity are compensable, whether sustained on or off employer’s premises, when activity is condoned by and beneficial to employer, and WCAB found that in this case, where defendant expressly released applicant from his work as energy residential technician and paid him his regular salary to attend union study day in midst of ongoing contract negotiations, applicant’s participation in union activity was for benefit of defendant and injury sustained during participation was compensable. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 4.130[1], 4.157; Rassp & Herlick, California Workers’ Compensation Law, Ch. 10, § 10.05[3][d][iv].]

INSURANCE COVERAGE

Lawrence O’Donnell, Applicant v. Ten-West Towing Inc., PTO Services, Inc., HR Employer Services, Inc., Defendants; Franklin Powers, Applicant v. Ten-West Towing Inc., PTO Services, Inc., HR Employer Services, Inc., Defendants, 2018 Cal. Wrk. Comp. P.D. LEXIS 129

Insurance Coverage—Exclusions—Misrepresentations—WCAB affirmed Arbitrator’s finding that applicants who suffered industrial injury in motor vehicle accident on 5/28/2014 while working for special employer were covered under insurance policy issued to applicants’ general employer by defendant insurer, notwithstanding insurer’s assertion that its policy covered only clerical office employees and sales people and that neither applicant fell within these two specified classifications, when general employer entered into agreement with special employer to provide workers’ compensation coverage for “assigned employees” and misrepresented to special employer that policy issued by insurer covered temporary employees such as applicants, and WCAB found that insurer, upon learning of misrepresentation, should have canceled policy ab initio, but instead issued notice of policy cancellation on 5/20/2014 with effective date of 7/7/2014, that policy was still in effect on date of applicants’ injury, that complete workers’ compensation policy issued by insurer was not made part of record in this case, and portion of policy that was in record did not contain language explicitly limiting coverage to only two specified employee classifications, and that absent endorsement excluding certain employees from policy, policy covers all employees of named insured, whether or not insurer collected premium for those employees. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 2.50, 2.62; Rassp & Herlick, California Workers’ Compensation Law, Ch. 3, § 3.25.]

JURISDICTION

Ken Sutton, Applicant v. San Jose Sharks, Federal Insurance Company, c/o Chubb Group of Insurance Companies, Defendants, 2018 Cal. Wrk. Comp. P.D. LEXIS 249

WCAB Jurisdiction—Professional Athletes—WCAB held that applicant’s claim for cumulative trauma against California-based defendant San Jose Sharks (Sharks), which employed applicant as professional hockey player from 12/7/97 through 5/1/98, was not exempt from WCAB subject matter jurisdiction pursuant to provisions of Labor Code § 3600.5, and, consequently, WCAB had jurisdiction over claim, when applicant played hockey for various out-of-state teams, in addition to Sharks, during his professional career, and WCAB reasoned that, contrary to defendant’s assertion, Labor Code § 3600.5(c) could not be applied to exempt applicant and his last employer, German team Ingolstadt Panthers (Ingolstadt), from California jurisdiction as applicant never worked temporarily in California while employed by Ingolstadt, that because Labor Code § 3600.5(c) did not apply to Ingolstadt, it could not be used to create blanket exemption for applicant’s entire claim under Labor Code § 3600.5(d), and that although defendant correctly asserted that reference to “any other law” in Labor Code § 3600.5(d) indicates Legislature’s intent tha this section apply to more than simply cases in which Labor Code § 3600.5(c) applies to last employers, defendant identified no “other law” that exempted applicant’s claim pursuant to Labor Code § 3600.5(d) in this case; WCAB rescinded WCJ’s decision, however, when WCAB concluded that it was error for WCJ to find jurisdiction partly based upon Labor Code § 3600.5(e), because Labor Code § 3600.5(e) does not operate to limit application of Labor Code § 3600.5 to out-of-state teams as suggested by WCJ and may apply to California teams so as to preclude injured athlete from bringing claim in California if claim is exempt under Labor Code § 3600.5(d), even if claim includes employment with California teams. [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].]

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LIENS

Zeringer Jernigan, Applicant v. Centinella State Prison, State Compensation Insurance Fund, Defendants, 2018 Cal. Wrk. Comp. P.D. LEXIS 268

Liens—Living Expenses—WCAB, amending WCJ’s decision, held that lien of California Correctional Peace Officers Association Benefit Trust Fund (CCPOA) for living expenses was not valid lien pursuant to Labor Code §§ 4903(c) and 4903.1(a)(3), when WCAB held that (1) CCPOA could not assert lien solely under Labor Code § 4903(c) because it paid applicant benefits under plan based on its contractual obligation to do so, and it would exceed WCAB’s jurisdiction to allow CCPOA to assert such lien, (2) contrary to WCJ’s determination, current version of Labor Code § 4903.1(a)(3), effective 1/1/2013, applies to CCPOA’s lien because WCJ issued award to applicant on 3/12/2018 and it is date of award, not date CCPOA provides benefit, that controls whether current or former version of Labor Code § 4903.1(a)(3) applies, (3) under Labor Code § 4903.1(a)(3)(A), CCPOA has right to assert lien for living expenses only against award of temporary disability based on plain language and legislative intent of statute, and cannot assert lien against applicant’s other compensation as urged by CCPOA, and (4) there is no legal basis for group disability policy or self-insured welfare benefit plan to assert lien under Labor Code § 4903(c) for living expenses, or under Labor Code § 4903.1(a)(3)(A) unless WCAB issues award finding injury AOE/COE and makes award of temporary disability benefits, which it did not do in this case. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 30.06; Rassp & Herlick, California Workers’ Compensation Law, Ch. 17, § 17.80[1].]

Erika Chavez, Applicant v. West Coast Warehouse, Inc., Hartford Insurance, Defendants, 2018 Cal. Wrk. Comp. P.D. LEXIS 176

Liens—Filing of Declarations—Dismissal of Lien—Due Process—WCAB dismissed Petition for Removal filed by lien claimant after notation was entered in Electronic Adjudication Management System (EAMS) indicating that its lien was dismissed by operation of law for failure to file Labor Code § 4903.05(c) lien declaration, when lien claimant contended that it timely filed lien declaration but due to clerical error it listed incorrect lien reservation number, and WCAB found that it had authority to set aside lien dismissal due to mistake, inadvertence, surprise or excusable neglect in accordance with Code of Civil Procedure § 473(b), and lien claimant was entitled to hearing at trial level on whether dismissal should be set aside; WCAB noted that pursuant to Labor Code § 4903.05(c)(3), if lien claimant’s declaration had been successfully filed in EAMS, lien claimant would be entitled to notice and opportunity to be heard before lien could be dismissed, and, as matter of due process, lien claimant who has made clerical error in declaration that results in EAMS notation of dismissal should be allowed same remedy. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 30.20[1]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 17, §§ 17.10[4], 17.111[5].]

Joaquin Gonzalez, Applicant v. National Distribution Centers, Zurich North America, administered by Gallagher Bassett, Defendants, 2018 Cal. Wrk. Comp. P.D. LEXIS 182

Liens—Filing and Service—Lien Declarations—WCAB rescinded WCJ’s finding that lien claimant’s Labor Code § 4903.05(c) lien declaration was false pursuant to Labor Code § 4903.05(c)(3) because it was electronically signed by “Southland Spine Rehab Costa Mesa” and not by human being under penalty of perjury, when WCAB found that lien claimant properly filed lien using electronic “S Signature” and e-form approved by WCAB, that contrary to WCJ’s conclusion, lack of proper signature on declaration would not make declaration “false” but rather would render it void ab initio, that, more importantly, lien claimant was not required by Labor Code § 4903.05(c) to provide declaration signed by identifiable individual/human being as this section simply requires that “signed declaration” be filed and does not mirror Labor Code § 4903.8(d) which specifically requires signature of “natural person,” that unless Legislature clearly states otherwise, as it did in Labor Code § 4903.8(d), lien claimant may file Labor Code § 4903.05(c) declaration signed with corporate or entity name (though it may be better practice to sign with name of natural person with knowledge of matters declared), and defendant seeking to establish that statements made in declaration are false may depose person most knowledgeable of matters declared, that declaration signed under penalty of perjury constitutes prima facie evidence of truth of matters sworn to in declaration pursuant to Code of Civil Procedure § 2015.5, and if defendant raises falsity of declaration in its defense of lien claim, defendant bears burden of proof to establish that declarations made were false, and that since defendant here did not produce evidence that sworn statements in lien claimant’s declaration were false, defendant did not meet burden of proof. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 30.20[1], 30.25[1]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 17, § 17.10[4].]

MEDICAL-LEGAL PROCEDURE

Jon Amedee, Applicant v. Pacific Bell Telephone Company, Old Republic Insurance Company, adjusted by Sedgwick CMS, Defendants, 2018 Cal. Wrk. Comp. P.D. LEXIS 63 [see Amadee v. Pacific Bell Telephone Co. (2018) 83 Cal. Comp. Cases 1069 (Appeals Board noteworthy panel decision)]

Medical-Legal Procedure—Ex Parte Communications—WCAB, reversing WCJ, found that telephone call from psychiatric qualified medical evaluator Stephen M. Raffle, M.D., to applicant’s attorney was improper ex parte communication prohibited by Labor Code § 4062.3(g), when Dr. Raffle called applicant’s attorney to discuss severity of applicant’s psychiatric condition and spoke with applicant’s attorney’s assistant, advising assistant that applicant suffered from suicidal depression and providing details/conclusions regarding his diagnosis of applicant’s condition and level of disability, and WCAB found that (1) call was not insignificant or inconsequential so as to fall under exception in Labor Code § 4062.3(g), where Dr. Raffle essentially disclosed to applicant’s attorney his substantive findings as psychiatric agreed medical evaluator, (2) fact that Dr. Raffle spoke to applicant’s attorney’s assistant rather than applicant’s attorney herself was irrelevant, (3) even if defendant was not prejudiced by Dr. Raffle’s communication because information relayed during communication appeared in Dr. Raffle’s report, defendant had right to select new evaluator because subsequent disclosure of opinions already improperly divulged via ex parte communication does not excuse ex parte communication, and (4) although Dr. Raffle’s communication was motivated by his concern for applicant’s mental state, Labor Code does not contain exception to rule against ex parte communication based on injured employee’s mental state, and WCAB does not have power to create exception; WCAB commented that even though parties may proceed with selection of new evaluator pursuant to 8 Cal. Code Reg. § 35(k) based on Dr. Raffle’s improper ex parte communication, WCAB is satisfied that applicant met burden of proving compensable psychiatric injury. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 22.06[3]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 15, § 15.03[4][e].]

Lucy Wachiuri, Applicant v. Torrance Memorial Medical Center, PSI, Beta Healthcare Group, administered by Alpha Fund, Defendants, 2018 Cal. Wrk. Comp. P.D. LEXIS 196

Medical-Legal Procedure—Exchange of Nonmedical Information—WCAB granted defendant’s Petition for Removal challenging WCJ’s order that defendant could inform panel qualified medical evaluator that applicant’s claim was denied but could not provide information as to reasons for denial, and held instead that claim denial letters could not be submitted to qualified medical evaluator, but qualified medical evaluator could be informed of denial of claim for lack of medical evidence in defendant’s advocacy letter, when WCAB found that claim denial letters constituted “information” and that it was within WCJ’s discretion to preclude disclosure of those letters to qualified medical evaluator, but that under Maxham v. California Department of Corrections and Rehabilitation (2017) 82 Cal. Comp. Cases 136 (Appeals Board en banc opinion), advocacy letters discussing legal positions would not constitute “information” as defined in Labor Code § 4062.3(a), to which opposing party could object pursuant to Labor Code § 4062.3(b), and that because disclosure of defendant’s denial of applicant’s claim for lack of medical evidence is relevant to qualified medical evaluator’s determination of medical issue regarding whether applicant’s orthopedic claim is compensable, it is reasonable for defendant to disclose this basis for claim’s denial to qualified medical evaluator in advocacy letter; however, WCAB found that other reasons stated for claim’s denial, including late filing, good faith personnel action and post-termination defense, could not be disclosed in advocacy letter because these bases for denial of claim are not relevant to qualified medical evaluator’s medical determination. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 22.06[1][d], [3], 22.11[18]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 15, § 15.03[4][d], [e].]

Bob Pettit, Applicant v. Ventura Regional Sanitation District, PSI, administered by York Risk Services Group, Defendants, 2018 Cal. Wrk. Comp. P.D. LEXIS 271

Medical-Legal Procedure—Exchange of Nonmedical Information—WCAB affirmed WCJ’s order terminating panel qualified medical evaluator and granting replacement qualified medical evaluator panel, but rescinded WCJ’s award of attorney’s fees against defendant, when WCAB, comparing requirements in Labor Code § 4062.3 to “meet and confer” procedures in Code of Civil Procedure § 2016.010 et seq., concluded that (1) defendant violated Labor Code § 4062.3(b) by sending panel qualified medical evaluator job description taken from government agency website outlining applicant’s purported job duties and working conditions in his position as wastewater supervisor without serving applicant with job description 20 days in advance of service on qualified medical evaluator, where WCAB determined that job description constituted “information” as described in Labor Code § 4062.3(b), (2) although defendant’s disclosure of job description to panel qualified medical evaluator was not ex parte communication because applicant was copied, new qualified medical evaluator panel was justified given defendant’s failure to timely serve job description on applicant, based on analysis similar to analysis employed to determine whether replacement panel is warranted under Labor Code § 4062.3(g) for ex parte communications, and (3) because there was no ex parte communication with medical evaluator, award of attorney’s fees against defendant under Labor Code § 4062.3(h) was erroneous. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 22.06[1][d], [3], 22.11[18]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 15, § 15.03[4][d], [e].]

MEDICAL TREATMENT

Alejandro Sosa, Applicant v. Advanced Knitting Mills, Employers Preferred Insurance Company, Defendants, 2018 Cal. Wrk. Comp. P.D. LEXIS 193

Medical Treatment—Assignment of Qualified Medical Evaluator Panels—Requests For Different Specialties—WCAB granted removal and rescinded WCJ’s finding that good cause existed for additional qualified medical evaluator panel in orthopedics, when WCJ found good cause based on report of chiropractic panel qualified medical evaluator indicating that applicant needed referral to orthopedic specialist for “evaluation and treatment,” but WCAB noted that qualified medical evaluators cannot provide both evaluation and treatment because they are expressly precluded from treating injured workers pursuant to 8 Cal. Code Reg. § 41(a)(4), and that chiropractic panel qualified medical evaluator’s recommendation is more appropriately interpreted as recommendation for evaluation and treatment by orthopedist rather than as recommendation for additional medical-legal evaluation in another specialty; WCAB concluded that additional qualified medical evaluator panel in orthopedics could cause applicant to suffer substantial prejudice and irreparable harm where applicant’s claim was currently denied in its entirety and chiropractic panel qualified medical evaluator already opined that applicant’s cervical spine, lumbar spine and bilateral upper extremity conditions were industrially caused, and that allowing additional orthopedic qualified medical evaluator to evaluate same body parts gave defendant improper second bite at apple and could result in dueling qualified medical evaluator opinions regarding causation or other disputed issues. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 1.11[3][g], 22.11[7], 26.03[4]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 16, § 16.54[7], Ch. 19, § 19.37.]

Peter Winokur, Applicant v. Monterey Financial Services, Farmers Insurance Group, Defendants, 2018 Cal. Wrk. Comp. P.D. LEXIS 139 [see Winokur v. Monterey Financial Services (2018) 83 Cal. Comp. Cases -- (Appeals Board noteworthy panel decision)]

Medical Treatment—Utilization Review—Independent Medical Review—WCAB affirmed WCJ’s finding that WCAB had no jurisdiction to award applicant programmer who suffered industrial injury to his neck and psyche on 7/27/2000 medical treatment in form of acupuncture therapy based on rationale in Patterson v. The Oaks Farm (2014) 79 Cal. Comp. Cases 910 (Appeals Board significant panel decision), when defendant had previously authorized set number of acupuncture treatments for applicant but never authorized acupuncture therapy on ongoing basis, and subsequent requests for acupuncture by applicant’s primary treating physician were denied by defendant’s utilization review (UR), and WCAB reasoned that Patterson rationale did not apply where there was no ongoing award of acupuncture treatment, that applicant’s requests for additional acupuncture treatments were subject to UR procedures in Labor Code § 4610.5, and that because parties stipulated that all UR was completed in timely manner, WCAB had no jurisdiction to determine issue of whether requested acupuncture was reasonably necessary because any appeal of UR decision was solely within jurisdiction of independent medical review process in Labor Code § 4610.5 et seq. [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.]

Medical Treatment—Independent Medical Review—Appeals—WCAB, affirming WCJ, found no sufficient grounds under Labor Code § 4610.6(h) to grant applicant’s appeals of multiple independent medical review (IMR) determinations upholding utilization review (UR) modifications and denials of applicant’s request for acupuncture therapy, despite applicant’s assertions that insufficient medical records were provided to UR and IMR, and that IMR determinations were based on factual errors by reviewers in their assessment of how acupuncture improved applicant’s functional capacity and reduced her use of opioids, when WCAB found that (1) regardless of any deficiency in underlying UR decision, WCAB review is confined to whether IMR ran afoul of limited grounds listed in Labor Code § 4610.6(h), and does not review underlying UR decision, (2) IMR experts in this case properly reviewed medical records relevant to applicant’s need for acupuncture and applicant failed to show how additional records would have been material to IMR experts’ determinations, and (3) there was no indication IMR reviewers’ determinations were based on factual oversight, where each reviewer concluded that acupuncture was not medically necessary based on medical record, and WCAB observed that IMR decision is presumptively correct and may be set aside under Labor Code § 4610.6(h)(5) only by “clear and convincing” evidence that determination resulted from plainly erroneous finding of fact, provided mistake of fact is matter of ordinary knowledge based on information submitted for review and not matter subject to expert opinion, and that extent to which applicant’s functional capacity was improved by acupuncture or dependence on opioids was reduced is not matter of ordinary knowledge, and fact that IMR reviewers came to different conclusions than applicant’s primary treating physician was not plainly erroneous fact. [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.]

Donna Ives, Applicant v. DR Myers Distributing Company, Preferred Employers Insurance Company, Defendants, 2018 Cal. Wrk. Comp. P.D. LEXIS 184

Medical Treatment—Utilization Review—Requests for Authorization of Treatment—WCAB rescinded WCJ’s finding that request for authorization (RFA) submitted by applicant’s primary treating physician was not valid request for eight sessions of chiropractic neurology treatment, and held instead that request was valid and should have been submitted to defendant’s utilization review (UR), where primary treating physician submitted DWC form RFA requesting neurology consult and eight sessions of “chiropractic care with Dr. Chung,” accompanied by appropriate supporting documentation pursuant to 8 Cal. Code Reg. § 9792.6.1(t), including narrative report by primary treating physician explaining that Dr. Chung was chiropractor of neurology and specifying that request was for eight sessions of chiropractic care with him, and WCAB found that defendant’s claims adjuster improperly failed to submit RFA to UR and instead unilaterally modified request for eight sessions with chiropractic neurologist when it authorized treatment with “chiropractor” rather than “chiropractic neurologist” based only on language in DWC form RFA, without sufficient consideration of treating physician’s report detailing his treatment request, and WCAB explained that claims adjusters must read RFA and physician’s report together in their entirety when making decision and not simply skim first page of RFA and choose portions of required documentation, that Labor Code § 4610(e) provides that only licensed physician, not claims adjuster, may modify treatment request after applying appropriate medical treatment guidelines, and that there was no legal basis for defendant’s claims adjuster to “modify” RFA in this case by authorizing treatment with chiropractor instead of neurological chiropractor. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 5.02[2], 22.05[6][b]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 4, § 4.10.]

PERMANENT DISABILITY

Marilyn Schuy (formerly, Marilyn Terry), Applicant v. City of Yuba, PSI, and York Risk Services Group, Inc., (Claims Administrator), Defendants, 2018 Cal. Wrk. Comp. P.D. LEXIS 136 [see Schuy v. City of Yuba (2018) 83 Cal. Comp. Cases -- (Appeals Board noteworthy panel decision)]

Permanent Disability—Apportionment—Preexisting Nonindustrial Conditions—WCAB, reversing WCJ in split panel opinion, held that opinion of orthopedic agreed medical examiner was substantial evidence to support 50 percent apportionment of applicant’s permanent disability from cumulative low back injury incurred during her employment as police department records supervisor to nonindustrial causes, when WCAB panel majority concluded that agreed medical examiner’s apportionment opinion that applicant’s disability should be apportioned to her preexisting, genetically determined degenerative disease, was consistent with apportionment to causation requirements in Labor Code §§ 4663 and 4664(a) and case law interpreting these statutes, which mandate apportionment of permanent disability where substantial evidence establishes that some definable percentage of disability was caused by, among other things, pathology, asymptomatic preexisting condition, or genetic/hereditary factors; Deputy Commissioner Schmitz, dissenting, agreed with WCJ’s finding that agreed medical examiner’s opinion was not substantial evidence because he did not adequately explain why applicant’s preexisting degenerative condition was actual contributing cause of her permanent disability at time her permanent disability became permanent and stationary. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 32.03A; Rassp & Herlick, California Workers’ Compensation Law, Ch. 7, § 7.11; The Lawyer’s Guide to the AMA Guides and California Workers’ Compensation, Chs. 3, 4, 5.]

Enrique Herrera, Applicant v. Maple Leaf Foods, U.S. Fire Insurance Company (Administered by Crum & Forster Insurance), & Alea North American Insurance Company (Administered by Tristar Risk Management), Defendants, 2018 Cal. Wrk. Comp. P.D. LEXIS --

Permanent Disability—Apportionment—Benson Exception—WCAB rescinded WCJ’s award of 68 percent permanent disability after apportionment in applicant baker’s case involving industrial injury to his back, gastrointestinal system, psyche, shoulders, left index finger, lumbar spine, neck, and in form of headaches from 10/15/2002 through 1/2/2003, and WCJ’s separate award of 39 percent permanent disability after apportionment for cumulative injury to applicant’s right index finger, right shoulder, lumbar spine, cervical spine, psyche, gastrointestinal system, and in form of headaches from 10/15/2002 through 1/2/2003, and issued new Joint Findings and Award wherein WCAB determined that applicant’s combined permanent disability in both cases was 83 percent after apportionment to nonindustrial factors based on “cannot parcel out” exception outlined in Benson v. W.C.A.B. (2009) 170 Cal. App. 4th 1535, 89 Cal. Rptr. 3d 166, 74 Cal. Comp. Cases 113, and WCAB specifically concluded that where some aspects of industrially-caused permanent disability from two or more separate industrial injuries cannot be parceled out because disability is inextricably intertwined (in this case, applicant’s psychiatric and gastrointestinal disabilities), then combined permanent disability award must issue even though other aspects of industrially-caused permanent disability from those injuries can be parceled out with reasonable medical probability (in this case, applicant’s orthopedic disability). [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 8.05[1]-[3], 8.07, 32.03A; Rassp & Herlick, California Workers’ Compensation Law, Ch. 7, §§ 7.40[1], 7.42[1], [2], [4]; The Lawyer’s Guide to the AMA Guides and California Workers’ Compensation, Ch. 9.]

James Burr, Applicant v. The Best Demolition & Recycling Co., Inc., State Compensation Insurance Fund, Defendants, 2018 Cal. Wrk. Comp. P.D. LEXIS 143 [see Burr v. The Best Demolition & Recycling Co., Inc. (2018) 83 Cal. Comp. Cases -- (Appeals Board noteworthy panel decision)]

Permanent Disability—Rating—Conclusive Presumption of Permanent Total Disability—Vocational Evidence—WCAB affirmed WCJ’s findings that applicant incurred 88 percent permanent disability, after apportionment, as result of industrial back injury with additional compensable consequence injuries, and that applicant was not entitled to award of 100 percent permanent disability based on conclusive presumption in Labor Code § 4662(a)(3) or “in accordance with the fact” under Labor Code § 4662(b), when (1) agreed medical examiner concluded that applicant was medically paraplegic based on his bilateral lower extremity leg weakness, resulting in need for wheelchair, but WCAB noted that Labor Code § 4662(a)(3) requires “practically total paralysis,” which WCAB interpreted as equivalent to “near paraplegia,” and found that because applicant had no weakness in his upper extremities, his condition did not meet definition of “practically total paralysis” in Labor Code § 4662(a)(3), and, therefore, presumption of permanent total disability did not apply, and (2) WCAB found that reporting of applicant’s vocational expert did not constitute substantial evidence to support finding that applicant was permanently totally disabled solely due to his work injuries because she provided only cursory opinion that industrial injury alone without consideration of apportionment rendered applicant unemployable. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 8.02[3], [4], 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. 9.]

Permanent Disability—Apportionment—WCAB affirmed WCJ’s finding that applicant suffered 88 percent permanent disability, after apportionment, as result of industrial back injury with additional compensable consequence injuries and found that holding in Hikida v. W.C.A.B. (2017) 12 Cal. App. 5th 1249, 219 Cal. Rptr. 3d 654, 82 Cal. Comp. Cases 679, (where Court of Appeal found that disability resulting from medical treatment provided by employer is not apportionable) did not bar apportionment of applicant’s permanent disability to non-industrial causes pursuant to Labor Code § 4663, when WCAB found that unlike in Hikida, where applicant’s surgery for her industrial injury caused new onset of chronic pain syndrome which, itself, rendered applicant permanently totally disabled, applicant’s 2014 industrially-related spine surgery alone did not result in applicant being permanently totally disabled, and that although applicant correctly noted that he was not wheelchair-bound prior to 2014 surgery but has been ever since surgery, there was no substantial evidence to show that being functionally paralyzed in lower extremities was solely due to surgery. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 8.05[1]-[3], 8.06[5]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 7, §§ 7.40, 7.41; The Lawyer’s Guide to the AMA Guides and California Workers’ Compensation, Ch. 9.]

Joe Jordan, Applicant v. California Department of Corrections, Pleasant Valley, legally uninsured, administered by State Compensation Insurance Fund, Defendants, 2018 Cal. Wrk. Comp. P.D. LEXIS 243

Permanent Disability—Rating—Cap on Benefits—WCAB amended WCJ’s joint award of permanent disability to applicant correctional officer who suffered cumulative injury to his heart ending on 3/18/2013, causing 100 percent permanent disability, and injury to his cervical spine, left knee, psyche, and in forms of headaches and cognitive disorder on 3/2/2009 and 10/27/2010, causing 62 percent permanent disability, when WCAB found that WCJ’s joint award violated Labor Code § 4664(c)(1), which states that accumulation of all lifetime permanent disability with respect to any statutorily defined “region of the body” cannot exceed 100 percent, and that because applicant’s headache disability (5 percent) constituted “head” disability for purposes of Labor Code § 4664(c)(1)(G) and “head” is considered same “region of body” as “cardiovascular system,” headache disability could not be awarded in addition to 100 percent heart disability; however, rather than subtract headache disability from 100 percent awarded for applicant’s cumulative injury claim, WCAB deducted it from award for specific injury claims, thereby reducing applicant’s permanent disability rating for specific injuries to 60 percent; WCAB determined that applicant’s cognitive disability was due to “mental and behavioral disorder” pursuant to Labor Code § 4664(c)(1)(C) rather than “head” under Labor Code § 4664(c)(1)(G) and, therefore, cognitive disability need not be deducted from either award. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 8.05[1], 8.06[d], 8.07[2]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 7, §§ 7.40[1], [2], 7.42; The Lawyer’s Guide to the AMA Guides and California Workers’ Compensation, Chs. 5, 9.]

Michael Hennessey, Applicant v. Compass Group and National Fire Insurance Company of Pittsburg, Pennsylvania, administered by Gallagher Bassett Services, Inc., Defendants, 2018 Cal. Wrk. Comp. P.D. LEXIS 265

Permanent Disability—Rating—AMA Guides—Rebuttal of Scheduled Rating—Vocational Evidence—WCAB affirmed WCJ’s order taking case off calendar to allow applicant who incurred injury to his left hand/wrist while employed as cook on 8/14/2013 to obtain report from vocational expert to attempt to rebut strict AMA Guides permanent disability rating, when WCJ rejected defendant’s assertion that changes in Labor Code § 4660.1, removing language regarding consideration of future diminished earning capacity, made vocational expert evidence irrelevant and inadmissible for post-1/1/2013 dates of injury, and reasoned that there is currently no settled case law interpreting Labor Code § 4660.1, and that provisions in Labor Code and regulations enacted contemporaneously with Labor Code § 4660.1 support position that vocational expert reports are still admissible and not limited to dates of injury prior to 2013. [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. 2, 8.]

PETITIONS TO REOPEN

Nicolas Gomez, Applicant v. Wedemeyer Bakery, Illinois Midwest, Defendants, 2018 Cal. Wrk. Comp. P.D. LEXIS 30 [Petition for Writ of Review denied 6/19/2018, sub nom. Illinois Midwest Insurance Co. v. WCAB (Gomez), A153812]

Petitions to Reopen—New and Further Disability—Compensable Consequence Psychiatric Injury—WCAB, reversing WCJ, held that applicant who received award of 69 percent permanent disability as result of cumulative orthopedic injuries during period ending on 8/23/2010 was not precluded from raising issue of compensable consequence psychiatric injury in Petition to Reopen for New and Further Permanent Disability pursuant to Labor Code § 5410, even though applicant had some psychiatric symptoms prior to original trial where issue of psychiatric injury was not raised, and treating chiropractor Helen Park, D.C., recommended that psychiatric claim be made, when WCAB reasoned that psychiatric injury under Labor Code § 3208.3(a) is not cognizable under law unless it results in disability or need for medical treatment and diagnosis using terminology and criteria of American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders, and WCAB found that here applicant’s awareness of psychiatric symptoms and their potential relation to her industrial orthopedic injury was insufficient to support finding that applicant waived his right to make psychiatric claim in Petition to Reopen, and that Dr. Park’s medical reports did not rise to level of substantial medical evidence establishing industrial causation for psychiatric injury. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 31.04[1], [2], 31.05; Rassp & Herlick, California Workers’ Compensation Law, Ch. 14, § 14.09.]

PRESUMPTION OF COMPENSABILITY

Fermin Molar, Applicant v. State of California Department of Corrections and Rehabilitation, legally uninsured and adjusted by State Compensation Insurance Fund, Defendants, 2018 Cal. Wrk. Comp. P.D. LEXIS 35 [see Molar v. State of California Dept. of Corrections & Rehabilitation (2018) 83 Cal. Comp. Cases 929 (Appeals Board noteworthy panel decision)]

Presumption of Industrial Causation—Blood-Borne Infectious Diseases—Herpes/Epstein-Barr Virus—WCAB affirmed WCJ’s finding that applicant, who suffered industrial injury to his heart, cardiovascular system, and in forms of hypertension, chronic fatigue, atrial fibrillation, and herpes/Epstein-Barr virus exposure while employed as correctional officer from 4/8/90 through 3/26/2014, was entitled to presumption of compensability applicable to blood-borne infectious diseases pursuant to Labor Code § 3212.8, regarding his herpes/Epstein-Barr virus exposure, when WCAB noted that “bloodborne pathogens” are defined in 8 Cal. Code Reg. § 5193(b) as “pathogenic microorganisms that are present in human blood and can cause disease in humans[,]” including but not limited to hepatitis B virus, hepatitis C virus and human immunodeficiency virus, and that panel qualified medical evaluator David Baum, M.D., explicitly testified that herpes and Epstein-Barr virus can be transmitted via blood such that they fall within definition of “bloodborne pathogens” and are covered by presumption; WCAB found no support for defendant’s assertion that only specifically listed conditions and methicillan-resistant Staphylococcus aureus were subject to presumption of compensability in Labor Code § 3212.8, where WCAB reasoned that Legislature’s intent to protect certain safety personnel who have higher exposures to members of public infected with communicable blood-borne pathogens is not served by narrowly construing Labor Code § 3212.8 to apply only to four conditions identified by defendant, especially given that plain language of Labor Code § 3212.8 and 8 Cal. Code Reg. § 5193(b) permits application of presumption to broader range of blood-borne conditions than those specifically identified. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 4.138[4][j]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 10, § 10.07[5][f].]

STATUTE OF LIMITATIONS

Hector Vasquez, Applicant v. Personnel Plus, Inc., California Insurance Guarantee Association Through Intercare For Villanova Insurance, In liquidation, Dynamic Electronics Manufacturing, Republic Indemnity Company of America, JB Research, ICW Group/Explorer Insurance Company, Defendants, 2018 Cal. Wrk. Comp. P.D. LEXIS 156

Statute of Limitations—Specific Injury Claims—Furnishing of Benefits—WCAB affirmed WCJ’s finding that special employer’s liability for applicant’s 5/18/2000 right knee injury was not barred by one-year statute of limitations in Labor Code § 5405, even though applicant did not file Application for Adjudication of Claim until approximately twelve years after date of injury, when WCAB found that special employer and general employer had joint and several liability for applicant’s injury, that under Labor Code § 5405(b) and (c) special employer’s liability will not be barred by statute of limitations if general employer furnishes applicant with either indemnity or medical benefits within one year prior to date applicant filed Application for Adjudication of Claim because statute runs from last payment of any compensation, and that there was substantial evidence in record here, including agreed medical examiner’s report and benefits print-out, that California Insurance Guarantee Association, on behalf of applicant’s general employer, furnished applicant with medical treatment benefits after applicant filed Application for Adjudication of Claim; WCAB also found that applicant’s claim was not barred by five-year statute of limitations in Labor Code § 5410 because Labor Code § 5405(b) and (c) operate to extend time for filing original claims beyond five years from date of injury when benefits are voluntarily paid, without award, beyond five-year period as they were in this case. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 24.03[1], 24.04[1]-[3]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 14, § 14.03.]

Laches—WCAB, amending WCJ’s decision, deferred issue of laches raised by insurance carrier for applicant’s special employer in defense of its joint and several liability with California Insurance Guarantee Association (CIGA), on behalf of general employer, for applicant’s 5/18/2000 right knee injury, when WCJ originally decided not to consider defense of laches and made no finding regarding application of defense, and although WCJ addressed defense of laches in his report, concluding that laches did not apply because there was no evidence that applicant had “unclean hands” or that liquidation of general employer’s insurer constituted “unreasonable delay,” WCAB noted that there was no evidence in record identifying liquidation date of general employer’s insurer, which could be relevant to defense of laches in that liquidation of general employer’s insurer necessitated joinder of special employer’s insurer as “other insurance” for CIGA, that, more importantly, applicant’s actions were not at issue here, but rather relevant question was whether special employer’s insurer had “unclean hands” with respect to efforts to join special employer, and that WCJ did not address whether there was any “unreasonable delay” of special employer’s joinder given apparently consistent medical opinions that applicant’s right knee injury was compensable consequence of earlier left knee injury incurred while applicant was working for another employer. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 24.03[1]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 14, § 14.03.]