California: Top 25 Noteworthy Panel Decisions (July through December 2021)

LexisNexis has selected some of the top “noteworthy” panel decisions issued by the California Workers’ Compensation Appeals Board during the period July through December 2021. The latter part of this year yielded a number of cases addressing medical-legal issues, including one in which the WCAB Commissioners were split as to whether an employee was permitted to unilaterally withdraw from an agreement with his employer to utilize an AME where the employee had not yet been evaluated by the AME. In two cases, the WCAB was required to determine whether the QME’s conduct during a medical evaluation was sufficiently egregious so as to constitute an ethical violation. The list also includes a handful of cases involving COVID-19 issues. Particularly noteworthy was the first panel decision to address the newly enacted COVID-19 presumption in Labor Code § 3212.88. Additionally, there is a decision discussing the admissibility of dashcam video in workers’ compensation proceedings, a case in which surgery to shorten an employee’s limb was deemed an amputation so as to come within an exception to the 104-week cap on temporary disability, and a case in which the WCAB found that a firefighter killed in a traffic accident while commuting from his home to his shift at the fire station fell within an exception to the going and coming rule. As a bonus, the list includes a very noteworthy panel decision recently issued by the WCAB interpreting Fitzpatrick.

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 However, WCAB panel decisions are not binding precedent, as are en banc decisions on all other Appeals Board panels and workers’ compensation judges.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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ATTORNEY’S FEES

■ Hazel Harper, Applicant v. Kaiser, Athens Administrator, Defendants, 2021 Cal. Wrk. Comp. P.D. LEXIS 254

Attorney’s Fees—Lien Recovery—WCAB, affirming WCJ’s decision, held that Labor Code § 4903.2 precluded applicant’s attorney from recovering fee from Employment Development Department’s (EDD) lien recovery, when WCAB found WCJ was within her discretion to deny attorney’s fees where she found EDD’s attendance at 5/15/2019 lien hearing constituted sufficient “participation” in WCAB proceedings within meaning of Labor Code § 4903.2(b) to avoid liability for attorney’s fees, and WCAB rejected applicant’s attorney’s assertion that term “participation” requires more than mere “attendance” at proceedings, when case law interpreting Labor Code § 4903.2 has equated appearance or presence of lien claimant’s representative at proceeding to participation. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 20.02[2][i], 30.27; Rassp & Herlick, California Workers’ Compensation Law, Ch. 16, § 16.36, Ch. 17, § 17.33[4][b].]

COMPROMISE AND RELEASE AGREEMENTS

■ Abiel Harrison, Applicant v. Canyon Springs Pools and Spas, Inc., State Compensation Insurance Fund, Defendants, 2021 Cal. Wrk. Comp. P.D. LEXIS 234

Compromise and Release Agreements—Rescission—Mutual Mistake—WCAB, denying reconsideration, affirmed WCJ’s finding of good cause to set aside 1/8/2020 Order Approving Compromise and Release agreement settling applicant’s claim for cumulative orthopedic injury, based on mutual mistake, when Compromise and Release agreement contained zero-dollar Medicare Set-Aside, resulting in Center for Medicare Services (CMS) charging applicant for medical treatment, which applicant paid, and WCAB found there was mutual mistaken belief by parties that zero-dollar Medicare Set-Aside did not have to be submitted to CMS for approval, and further determined there was mutual mistake by parties that agreed medical examiner found no compensable injury, which formed premise of entire settlement agreement. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 29.05[1], [2]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 18, § 18.11.]

■ Gilberto Vergara, Applicant v. Bradley J. Bovee, Uninsured Employers Benefits Trust Fund, Defendants, 2021 Cal. Wrk. Comp. P.D. LEXIS 313

Compromise and Release Agreements—Issue and Claim Preclusion—Employers’ Joint and Several Liability—WCAB, granting reconsideration, affirmed WCJ’s finding that applicant’s claim against defendant for 5/11/2011 injury he allegedly suffered while working for defendant on roof owned by co-defendant was not barred based on applicant’s settlement of his workers’ compensation claim against co-defendant, when defendant was not party to settlement agreement, and WCAB found that neither doctrine of issue preclusion (collateral estoppel) nor doctrine of claim preclusion (res judicata) applied to bar applicant’s claim, because (1) although Compromise and Release was final adjudication of applicant’s claims against co-defendant, including common issues related to workers’ compensation benefits, it was not final adjudication of any issues actually litigated and decided in this case, and, therefore, could not be used to bar litigation of any issue related to applicant’s claim against defendant, and (2) even though defendant and co-defendant were both named as employers in same workers’ compensation claim, they were not same party and their conflicting interests in this matter, based on their potential joint and several liability and different defenses to liability, precluded finding of privity between them, thereby negating application of claim preclusion. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 21.08[2], 29.01[2]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 13, § 13.10; Ch. 18, § 18.13[1], [2].]

CONTRIBUTION

■ Benjamin Morales, Applicant v. Western Tube & Conduit Corp., Mitsui Sumitomo Insurance Company of America, administered by Mitsui Sumitomo Marine Management, Defendants, 2021 Cal. Wrk. Comp. P.D. LEXIS 236

Contribution—Date of Cumulative Injury—WCAB affirmed Arbitrator’s order denying defendant’s Petition for Contribution under Labor Code § 5500.5, when applicant’s Labor Code § 5412 date of injury was after his last date of injurious exposure and defendant insured applicant’s employer during last year of injurious exposure, and WCAB found that evidence relied on by defendant in its attempt to move Labor Code § 5412 date of injury back to 3/2007 was evidence of specific injury and not evidence applicant had knowledge of or disability related to cumulative trauma for purposes of Labor Code § 5412, and further found that defendant’s reliance on Bassett-McGregor v. W.C.A.B. (1988) 205 Cal. App. 3d 1102, 252 Cal. Rptr. 868, 53 Cal. Comp. Cases 502, to argue it did not need to prove applicant had knowledge of cumulative injury was misplaced, because in this case applicant had two distinct claims, one for specific injury on 3/2/2007 and another for cumulative injury through his last date of employment in 2008, unlike applicant in Bassett-McGregor who had single claim initially pled as specific injury but later amended to cumulative trauma. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 31.13[2][a], [b], [e]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 14, § 14.13[1]; Ch. 15, § 15.15.]

COVID-19 PANDEMIC

■ Jerry Villegas Payan, Applicant v. West Coast Auto Sales, N&H Motors, Technology Insurance, administered by AmTrust, Defendants, 2021 Cal. Wrk. Comp. P.D. LEXIS 222, 86 Cal. Comp. Cases 1169

COVID-19 Pandemic—Discovery—WCAB, granting removal, rescinded WCJ’s 7/22/2021 Order closing discovery and setting matter for trial on 8/23/2021, and returned matter to trial level for further proceedings, when applicant, on behalf of decedent who contracted COVID-19 while employed as auto salesman on 7/12/2020 and subsequently died as result of virus, requested that discovery remain open to allow reasonable time to complete discovery on issues related to transmission of COVID-19 and potential workplace outbreaks, and WCAB reasoned that if decedent contracted COVID-19 during “outbreak” and certain conditions are met, his COVID-19 infection is presumed compensable under Labor Code § 3212.88, that whether applicant is entitled to presumption of compensability in infectious disease case may require complex discovery, and that because correct insurer was not joined until 5/27/2021, discovery should remain open for reasonable time thereafter to allow applicant to obtain qualified medical evaluation. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 4.138[4][r]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 10, § 10.07[5][l].]

■ Roman Mota Perez, Applicant v. Spr Op Co., Inc., and Redwood Fire and Casualty Insurance Company, administered by Berkshire Hathaway Homestate Companies, Defendants, 2021 Cal. Wrk. Comp. P.D. LEXIS 193, petition for writ of review denied 9/17/2021

COVID-19 Pandemic—Temporary Disability—Modified Duties—Unavailability of Work Due to COVID-19— WCAB, denying reconsideration, affirmed WCJ’s finding that defendant was liable for period of temporary total disability incurred by applicant after defendant’s business shut down due to COVID-19 and modified duties applicant had been working following 10/18/2018 back injury became unavailable, when WCAB reasoned that odd-lot doctrine requires payment of temporary total disability indemnity to injured employee unless employer shows that modified duty consistent with employee’s work restrictions is both available and offered to employee, and lack of available modified duty does not negate employer’s liability for benefits, even if caused by “market forces” beyond employer’s control, and WCAB rejected defendant’s contention that government should bear burden of paying benefits to applicant in form of unemployment or other benefits, where WCAB found that this would place unfair burden on applicant to seek government benefits or suffer financial incapacity in midst of global financial crisis. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 7.02[4][c]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 6, § 6.11.]

DISCRIMINATION

■ Oscar Scagliotti, Applicant v. Elmore Toyota, Defendant, 2021 Cal. Wrk. Comp. P.D. LEXIS 273

Discrimination—Labor Code § 132a—Mitigation of Damages During COVID-19 Pandemic—Reinstatement—WCAB, granting reconsideration and affirming WCJ’s findings, held that (1) applicant reasonably attempted to mitigate his damages during period defendant refused to reinstate him to his position in violation of Labor Code § 132a, and was entitled to recover lost wages for that period, when WCAB found that applicant credibly testified he filed six applications with potential employers during period of unemployment and also contacted five other potential employers whose identities he could not recall, (2) applicant’s duty to mitigate damages did not include duty to seek unemployment benefits for which defendant could subsequently claim credit against its liability, (3) applicant’s failure to search for work after his 3/2020 termination from job with another employer did not suggest he removed himself from labor market given circumstances of COVID-19 pandemic, and (4) applicant is entitled to reinstatement to his service advisor position with defendant when applicable governmental guidelines indicate that reopening may safely take place, and any refusal by applicant to return to his position after guidelines permit reopening may be deemed waiver of his right to reinstatement. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 10.11[1]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 11, § 11.27[1].]

■ Latoya Walker, Applicant v. Ararat Adult Day Health Care, Inc., dba Rancho Cordova Adult Day Health Care, Defendants, 2021 Cal. Wrk. Comp. P.D. LEXIS 302

Discrimination—Labor Code § 132a—Application of Alter Ego Doctrine—WCAB, granting reconsideration, rescinded decision wherein WCJ found he did not have jurisdiction to “pierce the corporate veil” in Labor Code § 132a proceeding, and therefore issued Labor Code § 132a award only against dissolved corporation and not against corporation’s owner, and WCAB returned matter to WCJ for further proceedings regarding whether or not application of alter ego doctrine was warranted in this case to prevent injustice against applicant, when WCAB reasoned that conditions under which alter ego doctrine apply vary according to circumstances of each case, with specific consideration given to whether corporation is controlled by individual sought to be held liable and to whether recognition of separate existence of controlled corporation would promote fraud or injustice, that application of alter ego doctrine may be warranted in Labor Code § 132a claim where, under circumstances, to do otherwise would promote fraud or injustice against injured worker, that applicant here raised issue of corporation owner’s joint and several liability under alter ego doctrine, arguing that there was no difference between owner and his corporation, that owner’s testimony suggested he had significant control over corporation and its activities, and that because WCJ found he had no authority to apply alter ego doctrine, he did not consider all evidence to issue findings of fact regarding whether or not owner sufficiently controlled corporation and/or whether application of alter ego doctrine was warranted to prevent injustice against applicant under circumstances of this case. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 10.11[1]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 11, § 11.27[1].]

EVIDENCE

■ Christopher Johnson, Applicant v. Lexmar Distribution dba LDI Trucking, Inc., Clear Spring Property and Casualty Company administered by Cannon Cochran Management Services, Inc., Defendants, 2021 Cal. Wrk. Comp. P.D. LEXIS 289

Evidence—Admissibility—Dashcam Video—WCAB, granting removal, held that WCJ improperly excluded defendant’s dashcam video evidence based on lack of authentication and foundation, and returned matter to trial level for further proceedings, when WCAB concluded that defendant should be given opportunity to authenticate dashcam videos through applicant’s testimony or, if necessary, through testimony of another witness, and explained that WCAB is not bound by statutory rules of Evidence Code and may admit documents into evidence without formal authentication, and that video recording is typically authenticated by showing it is fair and accurate representation of scene depicted, which can be established by person who witnessed event being recorded. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 26.06[4]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 16, § 16.45[1].]

INJURY AOE/COE

■ Steven Pacatte (Deceased), Applicant v. San Francisco Fire Department, City and County of San Francisco, PSI, Defendants, 2021 Cal. Wrk. Comp. P.D. LEXIS 177, petition for writ of review denied 10/29/2021

Injury AOE/COE—Going and Coming Rule—Required Vehicle Exception—WCAB affirmed WCJ’s finding that applicants’ claim for death benefits arising from fatal injuries suffered by decedent who, while employed as firefighter on 12/12/2018, was involved in automobile accident while commuting from his home to fire station, was not barred by “going and coming rule” based on applicability of “required vehicle” exception to rule as described in Hinojosa v. W.C.A.B. (1972) 8 Cal. 3rd 150, 501 P.2d 1176, 104 Cal. Rptr. 456, 37 Cal. Comp. Cases 734, when WCAB reasoned that although employer did not explicitly request applicant to have access to his car in order to perform job duties, applicant’s access to vehicle provided clear benefit to employer and occurred with employer’s implicit consent, as firefighters were often reassigned to different stations on day of their shift and would typically use their own vehicles to move quickly and efficiently between stations on reassignment, and contrary to employer’s assertion, applicant was not required to show he actually would have needed his car on date of injury to fall within exception to “going and coming” rule given liberal construction of workers’ compensation provisions consistent with Labor Code § 3202. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 4.155; Rassp & Herlick, California Workers’ Compensation Law, Ch. 10, § 10.05[3][d][ii].]

JURISDICTION

■ Jorge Guzman, Jr., Applicant v. Hector Chavez, Philma Alvarez, Edward W. Younan, Kevin W. Robledo, Avalon Foods, Inc., and Uninsured Employers Benefits Trust Fund, Defendants, 2021 Cal. Wrk. Comp. P.D. LEXIS 228, petition for writ of review filed 10/20/2021

WCAB Jurisdiction—Concurrent Jurisdiction—Uninsured Employers—WCAB rescinded WCJ’s decision that applicant was employed by defendant Philma Alvarez aka Philma Chavez on 1/11/2014 date of injury but not by defendants Hector Chavez, Avalon Foods, Inc., Edward Younan, or Kevin Robledo, and deferred proceedings related to issue of employment pending final resolution of phase I of applicant’s bifurcated civil case against defendants involving same work injury, when WCAB found that although doctrines of claim preclusion (res judicata) and issue preclusion (collateral estoppel) did not apply to bar WCJ’s employment finding (which conflicted with phase I civil jury verdict as to identity of applicant’s employer(s)) because there was no final judgment in applicant’s civil case, WCJ failed to address issue of concurrent jurisdiction that existed under this matter’s unique circumstances, where WCAB did not have exclusive jurisdiction over controversy because applicant’s claim involved uninsured employers under Labor Code §§ 3706 and 3715, and WCAB explained that when two or more tribunals have concurrent jurisdiction, such as here, tribunal first assuming jurisdiction retains jurisdiction to exclusion of all other tribunals in which action might have been initiated, that superior court, not WCAB, first assumed jurisdiction over these matters and should therefore retain jurisdiction with respect to issues over which there is concurrent jurisdiction, i.e., employment, and that deferral of employment issue in applicant’s workers’ compensation case pending final resolution of issue in civil case is necessary to prevent further “unseemly conflict between courts” or any further duplicative litigation. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 21.05[1]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 13, §§ 13.06[1], 13.08[1], [2].]

LIENS

■ Francisco Rebolledo, Applicant v. New Cure, Inc., State Compensation Insurance Fund, Defendants, 2021 Cal. Wrk. Comp. P.D. LEXIS 300

Liens—Filing Requirements—Billing and Collection Services—WCAB, granting reconsideration, rescinded WCJ’s order denying lien claim filed by medical provider’s billing/collection service based on his finding that absent lien assignment, billing service had no authority to pursue lien for medical provider’s services because it was not original provider of services, and WCAB, finding no assignment issues raised by record in this case, returned matter to WCJ to determine medical provider’s entitlement to payment on lien, when WCAB concluded that while medical provider’s billing/collection service could not be “lien owner” under Labor Code § 4903.8(a) and was, therefore, not entitled to payment on lien for medical provider’s services, medical provider was permitted to pursue payment for acupuncture services provided to applicant, and billing/collection service could, in fact, act as medical provider’s non-attorney representative with authority to represent and adjudicate lien on medical provider’s behalf. [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

■ Felicia Sonnier, Applicant v. Los Angeles Unified School District, PSI, administered by Sedgwick CMS, Defendants, 2021 Cal. Wrk. Comp. P.D. LEXIS 197, aff’d by Sonnier v. Los Angeles Unified School District, 2021 Cal. Wrk. Comp. P.D. LEXIS 263

Medical-Legal Procedure—Admissibility of Medical Reports—Anti-Ghostwriting Statute—WCAB, rescinding WCJ’s decision, granted defendant’s request to strike reporting of panel qualified medical evaluator for violation of Labor Code § 4628(a), which requires examining physician to review and summarize injured employee’s prior medical records, and held that defendant was entitled to replacement qualified medical evaluator panel, when record reflected that panel qualified medical evaluator selected to evaluate applicant cafeteria worker’s claim for cumulative injury through 1/17/2017 did not prepare summary of medical records contained in some of his reports and instead summaries were prepared by other individuals whose qualification were unknown to panel qualified medical evaluator, and WCAB noted that Labor Code § 4628 is strict liability statute such that if physician who prepares report does not comply with statute’s requirements, there is no balancing of factors to determine whether non-compliance affected report’s reliability, but rather report is automatically excluded. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 26.06[12][b][i]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 17, § 17.72[2].]

■ Marissa Agamao, Applicant v. Mitsubishi Motor Credit of America, Tokio Marine Management, Inc., Defendants, 2021 Cal. Wrk. Comp. P.D. LEXIS 227, petition for removal denied 11/30/2021

Medical-Legal Procedure—Qualified Medical Evaluator Bias—WCAB, in split panel opinion, granted removal and amended WCJ’s decision to reflect that applicant who filed multiple claims of industrial injury while employed as administrative assistant was not entitled to replacement qualified medical evaluator panel and was required to attend examination with qualified medical evaluator, even though she testified evaluator made her feel uncomfortable and engaged in racial profiling, when WCAB panel majority recognized that under 8 Cal. Code Reg. § 40, injured worker is permitted to discontinue medical-legal examination where evaluator engages in discriminatory conduct towards worker, but found in this case that applicant did not prove doctor or his staff engaged in such conduct where her trial testimony made only vague references to feeling hostility from doctor’s staff, reporting that doctor “got angry” and would not allow her attorney to be present in room during examination, and stating she felt “racially profiled,” and although WCAB acknowledged doctor may have expressed displeasure at applicant’s request to have another person present during examination, it could not conclude his response was racially-motivated in absence of specific evidence indicating doctor’s conduct revealed bias against applicant; Commissioner Sweeney, dissenting, believed that absent evidence refuting applicant’s sworn testimony that she felt discriminated against by doctor and his staff, applicant should not be forced to return to doctor for further examination. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 22.11[15]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 16, § 16.54[16].]

■ Hilda Pratcher, Applicant v. County of Los Angeles, PSI, administered by Sedgwick CMS, Defendants, 2021 Cal. Wrk. Comp. P.D. LEXIS 242

Medical-Legal Procedure—Qualified Medical Evaluators—Ethical Requirements—WCAB, denying removal, affirmed WCJ’s order finding good cause to issue replacement qualified medical evaluator panel to evaluate applicant’s multiple industrial injuries, when WCAB found panel qualified medical evaluator’s comment “I like my women thick” reflected doctor’s bias and violated professional ethics and conduct requirements for qualified medical evaluators set forth in 8 Cal. Code Reg. § 41(a)(5), which requires qualified medical evaluators to communicate with injured workers in respectful, courteous and professional manner, and also fell outside standards identified in Physician’s Guide to Medical Practice in the California Workers’ Compensation System (Fourth Edition, 2016), published by Division of Workers’ Compensation, and WCAB found that although doctor had already issued seven reports in this case, doctor’s inappropriate conduct rendered totality of his reporting insufficient evidence. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 22.11[15]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 16, § 16.54[16].]

■ Victor Bonnevie, Applicant v. Fox Studio Lot, PSI, administered by Gallagher Bassett, Defendants, 2021 Cal. Wrk. Comp. P.D. LEXIS 247, 86 Cal. Comp. Cases 1139

Medical-Legal Procedure—Stipulation to Use Agreed Medical Examiner—WCAB, denying removal in split panel opinion, affirmed WCJ’s finding that applicant was not permitted to unilaterally withdraw from his agreement to utilize orthopedic agreed medical examiner (AME) Kenneth Sabbag, M.D., to evaluate his claims for orthopedic injuries incurred on 1/13/2020 and during period 1/13/2019 through 1/13/2020, when WCAB panel majority found that pursuant to plain language in Labor Code § 4062.2(f), stipulation to utilize AME may only be canceled by parties’ mutual written consent, that here defendant did not consent to terminate agreement to utilize Dr. Sabbag and therefore applicant was not permitted to withdraw from agreement even though no evaluation with Dr. Sabbag had yet taken place, and that decision in Yarbrough v. Southern Glazer’s Wine & Spirits (2017) 83 Cal. Comp. Cases 425 (Appeals Board noteworthy panel decision), relied upon by dissenting Commissioner Razo, was not controlling to extent decision interpreted statutory language as permitting unilateral withdrawal from AME agreement where no evaluation had yet occurred. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 22.06[1][a]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 15, § 15.03[2].]

■ Gus Kowal, Applicant v. County of Los Angeles, PSI, Defendant, 2021 Cal. Wrk. Comp. P.D. LEXIS 305

Medical-Legal Procedure—Assignment of Qualified Medical Evaluators—New Injuries—WCAB, granting reconsideration and rescinding WCJ’s decision, held that pursuant to Navarro v. City of Montebello (2014) 79 Cal. Comp. Cases 418 (Appeals Board en banc opinion), applicant who alleged he suffered cumulative injuries to multiple body parts through period ending on 2/28/2012 and period ending on 1/22/2018, while working as roofer, was entitled to new qualified medical evaluator (QME) panel to evaluate 2012 cumulative trauma claim, which he filed in 2019, when claim form for this injury was filed after he underwent QME evaluation for 2018 cumulative injury claim, and although WCJ concluded that applicant was not entitled to new panel for 2012 claim because he considered claim to be duplicative of 2018 claim, WCAB explained that number and nature of injuries sustained are questions of fact to be determined by WCJ, and that while applicant may have sustained single cumulative trauma injury through 1/22/2018, there could be two distinct and separate cumulative trauma claims if there are two periods of repetitive activities or stresses at work interrupted by period of disability or need for medical treatment, and, accordingly, it was premature for WCJ to conclude that applicant’s claims were duplicative before number and nature of injuries was determined. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 22.11[11]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 16, § 16.54[11].]

MEDICAL TREATMENT

■ Charlesetta Wiley, Applicant v. AT&T, administered by Sedgwick CMS, Defendants, 2021 Cal. Wrk. Comp. P.D. LEXIS 217

Medical Treatment—Independent Medical Review—Appeals—WCAB rescinded WCJ’s decision upholding 11/16/2020 independent medical review (IMR) determination denying applicant’s request for home health care to cure or relieve effects of industrial orthopedic injury incurred during period 11/6/2011 to 11/6/2012, and ordered Administrative Director to submit IMR application to different independent review organization or different reviewer, when WCAB reasoned that Labor Code § 4610.5(l)(1) requires employer to provide IMR reviewer with all records relevant to employee’s current medical condition and medical treatment being provided by employer, that defendant in this case improperly excluded highly relevant in-home assessment from records provided to IMR organization, and that under these circumstances, IMR determination was result of plainly erroneous findings of fact as described in Labor Code § 4610.6(h)(5) and was without or in excess of Administrative Director’s powers per Labor Code § 4610.6(h)(1), and must be set aside. [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, § 4.11.]

PERMANENT DISABILITY

■ Sheryl Wilson, Applicant v. Kohls Department Store, New Hampshire Insurance Company, Defendants, 2021 Cal. Wrk. Comp. P.D. LEXIS 322

Permanent Disability—Rating—Rebuttal of Scheduled Rating—Diminished Future Earning Capacity—WCAB, granting reconsideration, awarded applicant 87 percent permanent disability based on scheduled AMA Guides rating, and affirmed WCJ’s finding that applicant, who sustained 9/20/2016 industrial injury to her lumbar spine, left ankle and in form of chronic regional pain syndrome while working as retail salesclerk, did not establish that she suffered permanent total disability as result of her injury or that she was entitled to increased permanent partial disability beyond that reflected in scheduled rating based on diminished future earning capacity (DFEC), when WCAB reasoned that given clear language in Labor Code § 4660.1, coupled with statute’s legislative history and other provisions enacted as part of SB 863, for dates of injury on or after 1/1/2013 injured worker cannot rebut permanent partial disability schedule using DFEC analysis as set forth in Ogilvie v. W.C.A.B. (2011) 197 Cal. App. 4th 1262, 129 Cal. Rptr. 3d 704, 76 Cal. Comp. Cases 624 [Labor Code §4660.1(a)], that although injured worker may continue to rebut permanent disability rating schedule to show permanent total disability “in accordance with the fact” [Labor Code §§ 4660.1(g), 4662(b)] based on complete loss of earning capacity, and is permitted to obtain vocational expert evidence as rebuttal evidence [Labor Code § 5703(j)], applicant here did not provide substantial medical or vocational evidence to rebut scheduled rating where agreed medical examiner (AME) imposed only limited work restrictions, which vocational expert did not believe precluded applicant from gainful employment, and AME’s opinion that applicant was precluded from work due to restrictions he imposed was insufficient because he did not have expertise to opine regarding applicant’s vocational feasibility, but rather vocational expert evidence was required on this issue. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 8.02[3], [4], 32.01[3][a][ii], 32.03A; Rassp & Herlick, California Workers’ Compensation Law, Ch. 7, §§ 7.05[3][d], 7.12[2][a], [d][iii], 7.42[2]; The Lawyer’s Guide to the AMA Guides and California Workers’ Compensation, Ch. 7.]

■ Brian Hodson, Applicant v. Vacasa, LLC, AmGUARD Insurance Company, Defendants, 2021 Cal. Wrk. Comp. P.D. LEXIS 170, 86 Cal. Comp. Cases 1049

Permanent Disability—Rating—Combining Multiple Disabilities—WCAB affirmed WCJ’s finding that applicant suffered 51 percent permanent disability as result of industrial injury to his back, neck, arms/hands, left knee, and head while employed as property manager on 3/6/2018, and held that to find permanent disability, WCJ properly added applicant’s cognitive and psychiatric impairments pursuant to Athens Administrators v. W.C.A.B. (Kite) (2013) 78 Cal. Comp. Cases 213 (writ denied), rather than using Combined Values Chart to combine them, when qualified medical evaluator opined that there was synergistic effect between applicant’s injuries such that his cognitive symptoms (attention, concentration, and memory deficits) caused his emotional symptoms (worry, fear, helplessness, and sadness) to become more intense and, in turn, emotional symptoms caused greater difficulty in accessing and using cognitive functional abilities, that both injuries combined caused more disability than each would by itself, that there was no overlap between disability caused by organic brain injury and disability caused by emotional reaction to impairment caused by brain injury, and that given synergistic effect between cognitive and emotional disabilities, adding impairments produced most accurate reflection of applicant’s overall permanent disability. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 8.02[4][d], 32.03A[1]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 7, §§ 7.11[2], 7.100; The Lawyer’s Guide to the AMA Guides and California Workers’ Compensation, Chs. 2, 3, 7.]

■ Maria Estrella, Applicant v. State of California, Legally Uninsured, Administered By State Compensation Insurance Fund, Defendants, 2021 Cal. Wrk. Comp. P.D. LEXIS 316

Permanent Disability—Rating—Almaraz/Guzman Analysis—WCAB, denying reconsideration in split panel opinion, affirmed WCJ’s finding that applicant, while working as correctional officer during period ending on 5/17/2017, suffered industrial injury to her right shoulder and spine, resulting in 58 percent permanent disability based on strict AMA Guides impairment rating as provided by panel qualified medical evaluator (PQME), and concluded that WCJ correctly rejected PQME’s alternative impairment analysis under 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, when WCAB panel majority found that PQME did not adequately describe why standard ratings in AMA Guides failed to reflect applicant’s lumbar spine and shoulder impairments, and that by combining loss of strength with range of motion impairment, resulting in 15 percent add-on split between lumbar and shoulder impairment, PQME did not stay within four corners of AMA Guides; Chair Zalewski, dissenting, agreed that PQME’s add-on for lumbar spine impairment was not warranted, but would have incorporated add-on for right shoulder impairment, when Chair Zalewski reasoned that PQME explained that he chose impairment rating most reflective of applicant’s difficulty performing activities of daily living, and that while upper extremity loss of strength and range of motion impairments are generally not to be combined under AMA Guides, Almaraz/Guzman allows departure from this guideline when reporting physician clearly indicates that impairment is not accurately measured by only one rating. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 8.02[3], 32.01[3][a][ii], [d], 32.03A[1]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 7, § 7.12[1]; The Lawyer’s Guide to the AMA Guides and California Workers’ Compensation, Chs. 4, 7.]

PETITIONS TO REOPEN

■ Carol Laudonio, Applicant v. County of San Bernardino, PSI, Defendant, 2021 Cal. Wrk. Comp. P.D. LEXIS 199, 86 Cal. Comp. Cases 1157

Petitions to Reopen—New and Further Disability Claims—Time to File Claim—WCAB, in split panel opinion, affirmed WCJ’s decision that applicant suffered new and further disability to her psyche as compensable consequence of her original industrial orthopedic injury while employed as child support officer during period 9/11/2007 through 9/11/2008, but did not suffer new and further disability to her wrists, elbows, shoulders, or neck, and WCAB found that applicant’s Petition to Reopen was timely filed within five-year period in Labor Code § 5410, when applicant filed Petition on 8/28/2013 alleging new and further disability to her wrists, elbows, shoulders, and neck, and WCAB reasoned that applicant’s failure to specifically include psychiatric injury (which applicant alleged by way of Amended Application filed on 1/16/2015) did not defeat her psychiatric claim, as even very broad or general petitions are sufficient to preserve WCAB’s jurisdiction, that applicant’s Petition to Reopen was timely and sufficient because it alleged that her “medical condition has worsened, resulting in additional permanent disability and ongoing need for medical treatment,” and also claimed “additional body parts, shoulders, neck,” and that there was evidence of demonstrable change in applicant’s condition, as contemplated in Applied Materials v. W.C.A.B. (2021) 64 Cal. App. 5th 1042, 279 Cal. Rptr. 3d 728, 86 Cal. Comp. Cases 331, within five-year period following 9/11/2008 cumulative injury based on medical reports of psychiatrist referencing psychiatric symptoms; Commissioner Razo, dissenting, agreed with panel majority that applicant filed timely Petition to Reopen, but found that Petition was not supported by sufficient evidence of psychiatric treatment or disability that arose before expiration of five-year period following original cumulative trauma to preserve WCAB’s jurisdiction. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 31.05; Rassp & Herlick, California Workers’ Compensation Law, Ch. 14, §§ 14.04, 14.06.]

PSYCHIATRIC INJURY

■ Dana McKee, Applicant v. Aerotek, Inc., Allegis, Inc., ACE American Insurance Company, Defendants, 2021 Cal. Wrk. Comp. P.D. LEXIS 189, 86 Cal. Comp. Cases 1055

Psychiatric Injury—Six-Month Employment Requirement—Sudden and Extraordinary Employment Conditions—WCAB, in split panel opinion, affirmed WCJ’s finding that applicant’s claim for psychiatric injury was not barred by six-month employment rule in Labor Code § 3208.3(d), when WCAB panel majority found that applicant’s injury was caused by “sudden and extraordinary” employment event and therefore fell within exception to six-month rule, where applicant, who was employed by defendant as nurse case manager, injured her left tibia and right humerus on 6/5/2019 when she fell off loading dock outside defendant’s building while walking to cafeteria, and WCAB found that being on loading dock was not part of applicant’s job with defendant or part of her anticipated work zone, that falling as applicant did could not be considered ordinary risk of her job as nurse case manager, that applicant did not receive any safety training or protocols with respect to walking in area of dock, that none of applicant’s administrative/office job duties would require her to perform work using loading dock, and that under these circumstances applicant’s injury was not routine or result of routine employment event expected or experienced by all employees working for defendant in this occupation within first six months of their employment; Commissioner Razo, dissenting, concluded that applicant’s injury was not “sudden and extraordinary” under Labor Code § 3208.3(d) because walking off loading dock was not uncommon, unusual and unexpected. [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].]

■ Joseph Chavira, Applicant v. Southland Gunite, Inc., National Liability & Fire Insurance Company, Defendants, 2021 Cal. Wrk. Comp. P.D. LEXIS 270

Psychiatric Injury—Catastrophic Injuries—Increased Permanent Disability—WCAB, granting reconsideration and rescinding WCJ’s decision, held that applicant who suffered psychiatric injury as compensable consequence of physical injury to multiple body parts while employed as pool bottom finisher on 1/10/2017, met burden of proving his industrial injury was “catastrophic” under Labor Code § 4660.1(c)(2)(B) and Wilson v. State of CA Cal Fire (2019) 84 Cal. Comp. Cases 393 (Appeals Board en banc opinion), thereby entitling him to increased impairment rating for psychiatric injury, when WCAB reasoned that treatment for applicant’s injury was significant and life-threatening, requiring multiple hospitalizations for serious conditions resulting from physical injury, and his ability to perform activities of daily living was substantially impacted, and WCAB found that applicant’s return to working light duty did not preclude finding of catastrophic injury because work is expressly excluded as activity of daily living by AMA Guides, and moreover, Wilson decision specifically states that whether injury is catastrophic is not measured by injury’s impact on employee’s earning capacity. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 4.02[3][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]; The Lawyer’s Guide to the AMA Guides and California Workers’ Compensation, Chs. 5, 6, 9.]

■ Corie Emery, Applicant v. Hertz Corporation, and ACE American Insurance Company, adjusted by Sedgwick Claims Management Services, Defendants, 2021 Cal. Wrk. Comp. P.D. LEXIS 299

Psychiatric Injury—Six-Month Employment Requirement—Sudden and Extraordinary Employment Conditions—WCAB, denying reconsideration, affirmed WCJ’s finding that applicant’s psychiatric injury resulted from “sudden and extraordinary” employment event and therefore fell within exception to six-month employment rule in Labor Code § 3208.3(d), when applicant developed psychiatric symptoms following threatening phone call she received from customer seeking to rent car during her employment as manager trainee for rental car company, leaving applicant very upset and frightened of potential workplace violence, and WCAB, applying standard in in Matea v. W.C.A.B. (2006) 144 Cal. App. 4th 1435, 51 Cal. Rptr. 3d 314, 71 Cal. Comp. Cases 1522, found that applicant provided credible and unrebutted testimony that threatening call went beyond what is usual, regular, common, or customary, and was totally unexpected so as to establish “extraordinary” nature of threats, and, additionally, applicant received no specific training from defendant regarding how to deal with threatening customers, supporting inference that defendant itself did not believe threatening phone call was common, usual or routine. [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].]

SERIOUS AND WILLFUL MISCONDUCT

■ Maurilio Perez (Deceased), Applicant v. Dynamic Auto Images, Inc. dba Dynamic Collision of Victorville, United Wisconsin Insurance Company, administered by American Claims Management, Defendants, 2021 Cal. Wrk. Comp. P.D. LEXIS 245

Serious and Willful Misconduct of Employer—WCAB, denying reconsideration, affirmed WCJ’s finding that defendant did not engage in serious and willful misconduct in connection with decedent’s fatal injury, which occurred when decedent fell 12 feet from roof on which he was working, and WCAB found that, as operations manager for defendant, decedent had broad autonomy regarding how to conduct his job duties without oversight from other management employees, and his own failure to use safety equipment while working on roof could not form basis for serious and willful misconduct finding against defendant under Labor Code § 4553 where there was no showing that other management employees working for defendant committed quasi-criminal misconduct by failing to micromanage applicant’s own executive functions as operations manager, and further found that applicants failed to prove requisite elements of serious and willful misconduct either under theory of failure to provide safe workplace or by violation of Cal/OSHA safety order under Labor Code § 4553.1. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 10.01; Rassp & Herlick, California Workers’ Compensation Law, Ch. 11, § 11.14.]

TEMPORARY DISABILITY

■ Sampson Parker, Applicant v. AC Transit, PSI, adjusted by Athens Administrators, Defendants, 2021 Cal. Wrk. Comp. P.D. LEXIS 205

Temporary Disability—Exceptions to Two-Year Cap on Benefits—Amputations—WCAB, affirming WCJ’s decision, found that shortening of applicant bus driver’s left leg resulting from 10/15/2019 surgical procedure to treat 12/19/2016 left leg injury qualified applicant for amputation exception to 104-week cap on temporary disability benefits in Labor Code § 4656(c), when surgery caused applicant to lose approximately two inches from his left lower extremity, and WCAB reasoned that amputation exception does not require severance of entire body part, and that applicant’s “limb shortening surgery” was sufficient to constitute removal of part of limb and entitle applicant to 240 weeks of temporary disability, and WCAB further found that pursuant to Labor Code § 4656(c)(3), applicant’s 240 weeks of temporary disability ran continuously from 12/19/2016 until applicant became maximally medically improved on 2/8/2021. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 7.02[2][b]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 6, § 6.12.]

■ Roman Mota Perez, Applicant v. Spr Op Co., Inc., and Redwood Fire and Casualty Insurance Company, administered by Berkshire Hathaway Homestate Companies, Defendants, 2021 Cal. Wrk. Comp. P.D. LEXIS 193, petition for writ of review denied 9/17/2021

Temporary Disability—Modified Duties—Unavailability of Work Due to COVID-19—WCAB, denying reconsideration, affirmed WCJ’s finding that defendant was liable for period of temporary total disability incurred by applicant after defendant’s business shut down due to COVID-19 and modified duties applicant had been working following 10/18/2018 back injury became unavailable, when WCAB reasoned that odd-lot doctrine requires payment of temporary total disability indemnity to injured employee unless employer shows that modified duty consistent with employee’s work restrictions is both available and offered to employee, and lack of available modified duty does not negate employer’s liability for benefits, even if caused by “market forces” beyond employer’s control, and WCAB rejected defendant’s contention that government should bear burden of paying benefits to applicant in form of unemployment or other benefits, where WCAB found that this would place unfair burden on applicant to seek government benefits or suffer financial incapacity in midst of global financial crisis. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 7.02[4][c]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 6, § 6.11.]