California Workers' Comp Case Roundup (1/8/2015)

CALIFORNIA COMPENSATION CASES

Vol. 79 No. 12 December 2014

A Report of En Banc and Significant Panel Decisions of the WCAB and Selected Court Opinions of Related Interest, With a Digest of WCAB Decisions Denied Judicial Review

CONTENTS OF THIS ISSUE

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Appellate Court Compensation Cases

California Insurance Guarantee Assn. v. W.C.A.B., lexis.com, Lexis Advance

WCAB Jurisdiction—Medical Billing Disputes—Ambulatory Surgical Centers—Court of Appeal, affirming WCAB decision, held that SB 863, effective January 1, 2013, creating independent bill review process by which billing disputes between providers and employers are to be resolved administratively, not by WCAB, does not divest WCAB of jurisdiction over medical billing disputes pending on January 1, 2013, which included disputes in present case, when Court of Appeal found that…

Ambulatory Surgical Centers—Reasonable Facilities Fees—Substantial Evidence—Court of Appeal, affirming WCAB decision, held that substantial evidence supported WCAB’s conclusions as to what reasonable outpatient facility fee was for relevant procedures during relevant time period, when Court of Appeal found that…

Powell (Pope) v. W.C.A.B., lexis.com, Lexis Advance

Occupational Groups—Court of Appeal, annulling WCAB’s order and remanding case to WCAB for determination of applicant’s appropriate occupational group, held that, in determining applicant’s appropriate occupational group, focus should be on applicant’s physical work activities, not on characterization of applicant’ job duties as “managerial,” when Court of Appeal found that…

Appellate Court Cases Not Originating With Appeals Board

Griffin (Antoian) v. Berlin, lexis.com, Lexis Advance

Third Party Actions—Legal Malpractice—Breach of Fiduciary Duty—Court of Appeal held that trial court properly granted motion of defendant attorney for summary judgment in plaintiff/applicant’s civil action for legal malpractice and breach of fiduciary duty, when Court of Appeal found that…

Appeals Board Significant Panel Decision

Bodam (Timothy) v. San Bernardino County, lexis.com, Lexis Advance

Utilization Review—Timeliness—WCAB, in Significant Panel Decision, denying defendant’s petition for removal, affirmed WCJ’s decision and held that (1) defendant was obligated to comply with all time requirements in conducting utilization review, including timeframes for communicating utilization review decision, (2) utilization review decision that is timely made but is not timely communicated is untimely, and (3) when utilization review is untimely and, therefore, invalid, necessity of medical treatment at issue may be determined by WCAB based on substantial evidence, when WCAB found that…

Digests of WCAB Decisions Denied Judicial Review

Editorial Board members Frederick W. Bray, Hon. Colleen S. Casey, William A. Herreras, and John W. Miller recommended the following writ denied cases for summarization in this issue.

Babbar (Ranesh) v. W.C.A.B., lexis.com, Lexis Advance

Discovery—Close of Discovery—Non-Final Orders—Court of Appeal denied applicant’s petition for writ of review “for lack of jurisdiction,” when applicant sought review of WCAB’s non-final order denying removal, in which WCAB affirmed WCJ’s order taking case off calendar to allow defendant to procure supplemental reports from agreed medical evaluators addressing sub rosa video obtained by defendant in 2011 and 2013, following applicant’s 8/21/2010 industrial orthopedic and psychiatric injury, and WCAB found that…

Bolanos (Hugo) v. W.C.A.B., lexis.com, Lexis Advance

Petitions to Reopen—New and Further Disability—WCAB affirmed WCJ’s order denying applicant machine operator’s Petition to Reopen in which applicant claimed injury to his psyche, which was previously unclaimed body part, when applicant did not allege psyche injury in Application for Adjudication of Claim alleging injury to his lungs/respiratory system, nor was psyche injury included in two prior Stipulated Awards issued, and WCAB found that…

California Self-Insurers’ Security Fund v. W.C.A.B. (Tapia, Samuel, Jr.), lexis.com, Lexis Advance

Injury AOE/COE—Horseplay—WCAB, in split panel decision reversing WCJ, held that applicant’s claim for industrial injury was not barred based on applicant’s alleged participation in “horseplay” at time of injury, notwithstanding testimony of applicant’s co-workers that applicant willingly participated in “dog piling” incident that led to his injuries and WCJ’s finding that applicant lacked credibility, when panel majority reasoned that…

Dominguez v. W.C.A.B. (Leong, Lisa), lexis.com, Lexis Advance

Removal to WCAB—WCAB Order for Further Development of Record—Medical Treatment—Home Health Care—WCAB denied defendants’ petition to remove case to itself under Labor Code § 5310, finding no substantial prejudice or irreparable harm if removal was not granted due to WCJ’s order vacating submission of record and ordering further development of record related to decedent’s son’s claim for reimbursement for home health care provided to his mother before her death from non-industrial cancer, contending that…

Glendale Adventist Medical Center v. W.C.A.B. (Gibney, Trena), lexis.com, Lexis Advance

Medical Treatment—Disputed Body Parts—Non-Final Orders—Court of Appeal dismissed defendant’s petition for writ of review pursuant to Labor Code §§ 5900 and 5901, as there was no final WCAB order, and awarded attorney’s fees under Labor Code § 5801, when defendant challenged WCAB’s finding that applicant registered nurse who suffered industrial injury to her neck, back, left shoulder, left hip, psyche, and lower extremities was entitled to medical treatment, including consultations with hematologist, pulmonary specialist, and nephrologist, in addition to AFO brace for her left foot, and, relying on decision in Dubon v. World Restoration, Inc. (2014) 79 Cal. Comp. Cases 313 (Appeals Board en banc opinion) (Dubon I), found that…

James (Jennifer) v. W.C.A.B., lexis.com, Lexis Advance

Public Employees—Salary in Lieu of Benefits—WCAB, in split panel decision, affirmed WCJ’s denial of applicant/police officer’s claim for additional Labor Code § 4850 benefits for period during which she was temporarily partially disabled and was working part-time modified duties as result of her industrial back injury, and held that Labor Code § 4850 benefits are to be paid to injured worker who returns to part-time work for one calendar year, rather than for equivalent of one year’s salary, when defendant…

Landmark Medical Management LLC v. W.C.A.B. (Gonzalez, Alejandro), lexis.com, Lexis Advance

Discovery—Pharmaceutical Liens—Trade Secrets—WCAB, denying lien claimants’ petition for removal, affirmed WCJ’s discovery orders requiring lien claimants, compound pharmacies owned by same individuals whose liens in question were purchased by accounts receivable company, to produce documents representing contracts between lien claimants and certain health care providers, which lien claimants alleged were protected by “trade secret” privilege, when WCAB found that…

Luna v. W.C.A.B. (Sanchez, Marcelino), lexis.com, Lexis Advance

Employment Relationship—Presumption of Employee Status—WCAB held that applicant was employee of uninsured defendant/petitioner on date of applicant’s industrial injury, 8/2/2006, pursuant to presumption of employee status set forth in Labor Code § 3357, relying on statements made in police report of 8/2/2006 incident, canceled checks showing several payments made by defendant to applicant, and applicant’s testimony that…

Workers’ Compensation Judges—Bias—WCAB found no error by WCJ in advising pro per applicant to seek legal representation at time of trial, when…

Mackin (Sally) v. W.C.A.B., lexis.com, Lexis Advance

Permanent Disability—Application of 2005 Permanent Disability Rating Schedule—WCAB, in split panel decision, upheld WCJ’s application of 2005 Permanent Disability Rating Schedule to rate permanent disability caused by applicant carpenter’s cumulative trauma to wrists/carpal tunnel, when there was no claim for wrist injury prior to 1/1/2005, since claim was not filed until after that date, and WCAB found that...

Permanent Disability—Rating—Formal Ratings—WCAB, in split panel decision, affirmed WCJ’s finding that applicant carpenter suffered 43 percent permanent disability for specific injury to her neck and shoulders and nine percent permanent disability to her wrists/carpal tunnel, based on recommended ratings from…

Permanent Disability—Rating—Vocational Expert Evidence—WCAB, in split panel decision, affirmed WCJ’s finding that applicant carpenter suffered 43 percent permanent disability for specific injury to her neck and shoulders and nine percent permanent disability to her wrists/carpal tunnel, based on agreed medical examiner’s report describing whole person impairment and rating issued by Disability Evaluation Unit rater, when WCAB found that…

Sutter Medical Foundation v. W.C.A.B. (Moulthrop, Kari), lexis.com, Lexis Advance

Permanent Disability—Rating—Opioid Medications—WCAB held that there was sufficient evidence to support WCJ’s finding that applicant incurred permanent total disability in accordance with Labor Code § 4662 following industrial injuries to her lumbar spine, right knee, and left ankle, based on applicant’s testimony regarding her physical condition in conjunction with opinions of orthopedic agreed medical evaluator Jeffrey Holmes, M.D., pain management specialist and psychiatrist James Weiss, M.D., (applicant’s primary treating physician), and vocational expert Bob Rehm indicating that applicant’s reliance on high levels of narcotic pain medication, including Norco and Soma, caused strong and unpredictable side effects that would make applicant unable to compete in open labor market, and WCAB found that…

Swift Transportation v. W.C.A.B. (Coon, Robert), lexis.com, Lexis Advance

Injury AOE/COE—Assaults by Unknown Assailants—Personal Comfort Doctrine—Commercial Traveler—WCAB affirmed WCJ’s finding that applicant/student long-haul truck driver suffered compensable industrial injury, resulting in partial quadriplegia, when he was assaulted by unknown assailant while away from truck on dinner break, when WCAB held that…

Technicolor v. W.C.A.B. (Minichiello-Smith, Michelle), lexis.com, Lexis Advance

Statute of Limitations—Cumulative Injuries—WCAB, in split panel decision, held that applicant/film technician’s claim for cumulative industrial injury to her neck, right shoulder, and bilateral hands and wrists filed more than one year from last date of work, was not barred by Labor Code § 5405 statute of limitations, when majority of WCAB panel, applying principles described in series of prior appellate cases, concluded that…

Warner Bros. Studio Facilities v. W.C.A.B. (White, James), lexis.com, Lexis Advance

Medical Treatment—Improper Physician Referrals—WCAB affirmed WCJ’s finding that lien claimant Miracle Mile Medical Center, owned by applicant’s primary treating physician, Gil Tepper, M.D., was not barred from reimbursement of its lien for costs relating to applicant’s inpatient back surgery performed at Miracle Mile by Dr. Tepper, who billed for his services under his medical corporation. The Spine Institute, when defendant alleged that…

Other WCAB Decisions Denied Judicial Review

Banga (Kamlesh) v. W.C.A.B., lexis.com, Lexis Advance

Injury AOE/COE—Disability—Medical Treatment—WCAB held that applicant senior legal typist employed by State Compensation Insurance Fund sustained cumulative trauma injury AOE/COE in period ending 10/31/2000 to her left upper extremity, WCAB awarded applicant four and three-quarters percent permanent disability and medical treatment for this injury, and WCAB found no merit to…

Brim v. W.C.A.B. (Sharp, Anita), lexis.com, Lexis Advance

Sanctions—Bad Faith Tactics of Counsel—WCAB held that petitioner’s conduct was sanctionable and in bad faith and imposed sanctions, when WCAB found that petitioner was attorney for defendant at lien conference related to applicant’s workers’ compensation claim, that WCAB staff, including two WCJs, repeatedly warned petitioner to leave WCAB offices at Long Beach Division of Workers’ Compensation premises by closing time, that WCAB had authority to…

Comer (Robert) v. W.C.A.B., lexis.com, Lexis Advance

Injury AOE/COE—WCAB held that applicant dispatch manager/film developer did not sustain burden of proving cumulative trauma injury AOE/COE from 7/14/1969 through 5/2010 to his eyes, stress, psyche, respiratory system, internal, neurological, headaches, cardiac, and sleep from alleged exposure to chemicals, when WCAB found…

Forward (Victor Paul) v. W.C.A.B., lexis.com, Lexis Advance

Injury AOE/COE—WCAB held that applicant did not meet burden of proving three industrial injury claims, all while working for defendant as senior estimator, (1) on 7/29/2008 to upper and lower extremities, head, neck, and…

Gonzalez (Raul Marin) v. W.C.A.B., lexis.com, Lexis Advance

Petitions for Writ of Review—Time to File—Court of Appeal denied petition for writ of review not filed within time requirements of Labor Code § 5950 (applicant was appealing WCAB decision finding injury AOE/COE to applicant’s left shoulder on 10/1/2008 but not to…

Graves (Michael) v. W.C.A.B., lexis.com, Lexis Advance

Injury AOE/COE—WCAB denied applicant’s petitions for reconsideration and removal to WCAB related to WCAB’s decision holding that applicant bus driver did not sustain cumulative trauma injury…

Graves (Michael) v. W.C.A.B., lexis.com, Lexis Advance

Petitions for Writ for Review—WCAB Final Orders—Court of Appeal dismissed applicant’s petition for writ of review because applicant was appealing WCAB decision that was not final order or decision as required by Labor Code §§ 5900 and 5901, when applicant was appealing WCAB decision in which WCAB (1) rejected applicant’s declaration of readiness to…

Los Angeles Unified School District v. W.C.A.B. (Reid, Michael), lexis.com, Lexis Advance

Petitions for Writ for Review—Final Orders—Court of Appeal dismissed petition for writ of review because decision of WCAB being appealed was not final order or decision of WCAB, as required by Labor Code §§ 5900, 5901, when defendant was appealing WCAB’s decision finding that…

Navarro (Rodolfo Figueroa) v. W.C.A.B., lexis.com, Lexis Advance

Injury AOE/COE—WCAB held that applicant landscaper sustained injury AOE/COE to back and hernia cumulatively ending 3/1/2010 and on 11/15/2010 but did not sustain injury AOE/COE on same two dates to psyche or internal system, based on opinions from two panel qualified medical evaluators, and WCAB also held that applicant’s contentions in petition for…