California Workers' Comp Case Roundup (12/7/2017)

CALIFORNIA COMPENSATION CASES

Vol. 82 No. 11 Nov 2017

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 Cases Not Originating With Appeals Board

Gholipour v. The Superior Court of San Diego County, Lexis Advance

Workers’ Compensation Fraud—Restitution—Trial Court's Jurisdiction—Court of Appeal, denying petition for writ of mandate, held that trial court retained jurisdiction to determine amount of restitution owed by petitioner, when Court of Appeal found that petitioner was convicted of multiple counts of perjury and workers’ compensation fraud, resulting in sentence of three years in local custody, followed by three years under mandatory supervision, plus restitution award of $309,101.05, that petitioner appealed both judgment of conviction and trial court’s restitution order, that, while appeal…

Herek v. Los Angeles County Employees Retirement Association, Lexis Advance

Disability Retirement—Substantial Evidence—Court of Appeal, affirming trial court judgment denying plaintiff’s writ petition, which in turn affirmed retirement board’s denial of plaintiff’s application for disability retirement, held that there was no error in trial court’s denial of plaintiff’s petition, when Court of Appeal found that conflicting medical evidence, including various medical tests and opinions of three physicians, was properly weighed at each level of proceedings below, that trial court properly applied independent judgment standard in its review of retirement board’s decision, and that trial court’s decision was supported by substantial evidence.

Linton v. DeSoto Cab Co., Inc., Lexis Advance

Employment Relationships—Employee vs. Independent Contractor—Wage and Hour Claims—Court of Appeal, reversing trial court’s judgment in defendant’s favor and remanding case, held that applicability of S.G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal. 3d 341, 769 P.2d 399, 256 Cal. Rptr. 543, 54 Cal. Comp. Cases 80, “and its taxicab-related progeny” is not limited to workers’ compensation or unemployment insurance benefits, but rather applies equally to cases, such as present one, involving wage and hour claims based on Labor Code §§ 201, 203, and 221, when Court of Appeal found that…

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M.F. v. Pacific Pearl Hotel Management LLC, Lexis Advance

Fair Employment and Housing Act—Nonemployee Sexual Harassment—Court of Appeal, reversing trial court’s judgment and remanding matter, held that facts were sufficient to state claims under Fair Employment and Housing Act for sexual harassment by nonemployee, Government Code § 12940(j)(1), which provides that, “An employer may … be responsible for the acts of nonemployees, with respect to sexual harassment of employees … where the employer, or its agents or supervisors, knows or should have known of the conduct and fails to take immediate and appropriate corrective action,” and for failure to prevent such harassment, Government Code § 12940(k), when Court of Appeal found…

Reiner v. Greyhound Lines Inc., Lexis Advance

Anti-SLAPP Motions—Court of Appeal, affirming trial court’s orders granting defendants’ anti-SLAPP motions to strike plaintiff’s complaint pursuant to Code of Civil Procedure § 425.16, held that defendant made threshold showing that challenged cause of action was one arising from protected activity, and that plaintiff did not demonstrate probability of prevailing on his claim, when Court of Appeal found that plaintiff…

Tevis (Kelly) v. Spare Time, Inc., Lexis Advance

Fair Employment and Housing Act—Assault—Intentional Infliction of Emotional Distress—Wrongful Termination in Violation of Public Policy—Summary Judgment—Court of Appeal, affirming in part and reversing in part trial court’s summary judgment in favor of defendant, held that plaintiff’s claims for alleged sexual harassment, failure to prevent sexual harassment, assault, intentional infliction of emotional distress, and gender discrimination were barred by statute of limitations, by admissions of plaintiff, and by failure of proof of intentional tortious conduct, but that triable issues of material fact remained as to plaintiff’s claims of disability discrimination, of defendant’s alleged failure to engage in good faith interactive process and to provide reasonable accommodation, of retaliation, and of wrongful termination, when Court of Appeal…

Federal District Court Opinions of Related Interest

Shasta Linen Supply, Inc. v. Applied Underwriters, Inc., Lexis Advance

Workers’ Compensation Fraud—Reinsurance Participation Agreement—Filing with Insurance Commissioner—U.S. District Court, Eastern District of California, granting defendants’ motion to dismiss plaintiffs’ complaints as to plaintiffs’ RICO claims and as to plaintiffs’ attempts to invalidate reinsurance participation agreements on theory that defendants violated Insurance Code § 11735, and denying motion in all other respects, held that, after workers’ compensation insurance policies sold by defendants to plaintiff took effect, defendants allegedly required plaintiffs to sign “reinsurance participation agreement” (RPA), that RPA allegedly modified terms of existing insurance policies, including rates, causing plaintiffs to incur significantly higher costs for insurance than defendants had marketed, that defendants allegedly deliberately misrepresented costs of insurance in their marketing materials to induce plaintiffs to rely on those costs, that plaintiffs claimed that…

Vanguard Medical Management Billing, Inc. v. Baker, Lexis Advance

Medical Liens—Stays of Liens—Due Process—U.S. District Court, Central District of California, denying plaintiffs’ motion for preliminary injunction on all grounds except for plaintiffs’ procedural due process claim, plaintiffs’ Sixth Amendment claim, and plaintiffs’ so-called “access to the courts due process claim,” held that Labor Code § 4615, as amended in 2017 by AB 1422, does not provide adequate due process notice or right to meaningful hearing before or after it deprives lien claimants of protectable interest, that this deficiency is not solved through any existing WCAB procedures…

Appeals Board En Banc Decision

Rodriguez (Jose Guillermina) v. Garden Plating Co., Lexis Advance

Lien Claims—Timely Filed Declarations—WCAB en banc, dismissing petitions for reconsideration in consolidated lien cases, held that (1) issue of administrative action by DWC has now been rendered moot and petitions for reconsideration must be dismissed, (2) cases at issue are “The Cases Involving a Labor Code section 4903.05(c) Declaration filed after 5:00 p.m. on Friday, June 30, 2017 through 5:00 p.m. on Monday, July 3, 2017 where a Petition for Reconsideration was filed on the issue of timeliness of the filing” and are designated as The Lien Cases, (3) pursuant to WCAB Rule 10589 (8 Cal. Code Reg. § 10589), The Lien Cases are consolidated on motion of WCAB for limited purpose of making orders herein, including designating Rodriguez v. Garden Plating Co. (ADJ8588344) as master case and designating service of this decision to lien claimants’ representative, Maximum Medical, (4) WCAB en banc...

Digests of WCAB Decisions Denied Judicial Review

Editorial Board members Francis V. Clifford, Hon. Jacqueline C. Duncan, Susan Hamilton, and James Pettibone recommended the following writ denied cases for summarization in this issue.

City of Los Angeles v. W.C.A.B. (Clark, Aaron), Lexis Advance

Injury AOE/COE—Aggravation of Preexisting Condition—WCAB, amending WCJ’s decision, held that applicant’s 7/16/2014 aggravation of prior industrial low back injury constituted new injury to applicant’s lumbar spine, rather than temporary exacerbation of preexisting injury, when aggravation caused need for medical treatment and period of temporary disability, and WCAB determined...

Other WCAB Decisions Denied Judicial Review

City and County of San Francisco v. W.C.A.B. (Sandoval, Carlos), Lexis Advance

Injury AOE/COE—Altercations—Initial Physical Aggressor—Court of Appeal denied defendant’s Petition for Writ of Review challenging WCAB’s finding that applicant was not initial physical aggressor in altercation with his supervisor on 4/15/2015, which resulted in applicant’s industrial injury, when applicant testified that he was trying to move away from his supervisor and do his job, and that his supervisor made first physically aggressive move causing injury, and WCAB found…

Goodyear Commercial Tire & Service v. W.C.A.B. (Swain, Darrin), Lexis Advance

Injury AOE/COE—Medical Evidence—Substantial Evidence—Court of Appeal denied defendant’s Petition for Writ of Review challenging WCAB’s finding that applicant suffered cumulative injury AOE/COE to his right hand/wrist while employed as tire salesman/deliveryman during period ending 10/20/2014, based on reporting of panel qualified medical evaluator, which WCAB...

Los Angeles County IHSS v. W.C.A.B. (Bugay, Remigio), Lexis Advance

Statute of Limitations—Notice of Injury—WCAB affirmed WCJ’s finding that applicant in-home caregiver’s claim for 5/21/2012 left knee injury was not barred by statute of limitations as asserted by defendant, when WCAB found that…

Owens (Sterling) v. W.C.A.B., Lexis Advance

Permanent Disability—Apportionment—Substantial Medical Evidence—Court of Appeal denied applicant’s Petition for Writ of Review challenging WCAB’s finding that opinion of orthopedic panel qualified medical evaluator Jack Piasecki, M.D., constituted substantial evidence to support apportionment of applicant bus driver’s permanent disability following 10/3/2011 cervical spine injury, with 60 percent apportionable to non-industrial arthritis and 20 percent to cumulative injury claim that applicant had not yet filed, resulting in award of eight percent permanent disability, when WCAB concluded…

Yellow Transportation, Inc. v. W.C.A.B. (Howarth, Daniel), Lexis Advance

Statute of Limitations—Petition to Reopen—WCAB affirmed WCJ’s finding that applicant truck driver’s claim for injury to his right hip raised more than five years after he incurred and received award for 10/1/2007 and 12/21/2007 lumbar spine injuries was not barred by statute of limitations in Labor Code §§ 5804 and/or 5410, when applicant filed timely petition to reopen original claims for new and further disability to his lumbar spine and, thereafter, obtained medical report corroborating injury to right hip due to damage from his industrial back injuries, and WCAB found that…

Zelada (Elvia) v. W.C.A.B., Lexis Advance

Permanent Disability—Substantial Evidence—Court of Appeal denied pro per applicant’s Petition for Writ of Review challenging WCAB’s finding that applicant, who incurred 52 percent permanent disability as result of cumulative orthopedic injuries that she sustained while employed as packer from 1/1/2007 through 7/19/2012, suffered no ratable permanent disability from psychiatric injury, based on reports of psychiatric qualified medical evaluator, when WCAB found…

Appeals Board Panel Decisions

Abea (Eduardo) v. Parco, Inc., Lexis Advance

Presumption of Compensability—Discovery After Denial of Claim—WCAB, granting removal, rescinded WCJ's Minute Order wherein WCJ set matter for trial on issue of injury AOE/COE over defendant's objection on basis that it had not yet completed discovery, including depositions of applicant and panel qualified medical evaluator, and WCAB issued order taking matter off calendar, when WCJ, in setting matter for trial, erroneously found that matter was ripe for trial without need for further discovery given defendant's denial of injury within 90-day period in Labor Code § 5402, and WCAB explained that…

Jimenez (Viktor) v. Rose Hill Co., Lexis Advance

Medical Treatment—Utilization Review—Time Deadlines—WCAB affirmed WCJ's finding that defendant's utilization review (UR) determination denying treating physician Derek Dee, M.D.'s request for authorization for knee surgery was timely communicated and valid despite applicant's assertion that UR determination was invalid under Bodam v. San Bernardino County/Department of Soc. Servs. (2014) 79 Cal. Comp. Cases 1519 (Appeals Board significant panel decision), based on defendant's alleged failure to establish timely communication on applicant's attorney pursuant to Labor Code § 4610(g)(3)(A) and 8 Cal. Code Reg. § 9792.9.1(e)(3), which require written notice of prospective UR determinations to be served on applicant and his or her attorney within two business days of decision, when defendant established that it served UR determination on applicant and his attorney by mail within requisite two days, and WCAB held that…

Morales Sesena (Sandra) v. Residence Inn by Marriott, LLC, Lexis Advance

Supplemental Job Displacement Benefits—WCAB, reversing WCJ, held that applicant housekeeper who suffered two cumulative injuries, one ending on 2/2/2014 to her lumbar spine and in form of hypertension, causing 12 percent permanent disability, and another ending on 2/6/2015 to her cervical spine, thoracic spine and lumbar spine and in form of hypertension, causing 37 percent permanent disability, was entitled to separate job displacement vouchers for each injury notwithstanding that both injuries became permanent and stationary at same time, based on plain language in Labor Code § 4658.7, and concluded that WCJ…

Rockefeller (Winston, Dec’d) v. State of California, Department of Corrections and Rehabilitation, Lexis Advance

Injury AOE/COE—Suicide—WCAB rescinded WCJ's finding that decedent suffered injury AOE/COE resulting in death by suicide on 3/30/2012, and returned matter to trial level for further proceedings, when WCAB reasoned that (1) while acts of suicide do not generally arise directly from events of employment and are ordinarily pled as compensable consequence of underlying injury, here applicant alleged that decedent's psychiatric injury contributed to his suicide, thereby requiring applicant to prove industrial injury to decedent's psyche, (2) under DSM-IV, suicide is not psychiatric injury in itself but rather is symptom…

Staudt (Katherine) v. University of California, Los Angeles, Lexis Advance

Dismissal—Failure to Appear—WCAB rescinded WCJ's order dismissing applicant's cases due to applicant's failure to personally appear at 2/8/2017 mandatory settlement conference, and remanded matter for further proceedings, when WCAB found that applicant's attorney's appearance at mandatory settlement conference was sufficient to satisfy Labor Code § 5700, and observed that in cases where applicant's testimony is required, parties can stipulate to applicant's appearance or, if parties cannot stipulate, defendant can subpoena applicant or issue written notice to appear at least ten days before trial, and if applicant fails to appear after subpoena or written notice is issued, defendant may request contempt order or order compelling applicant's attendance, request sanctions, or request adverse inference based on applicant's failure to testify and submit case on merits, and WCAB noted...

Independent Medical Review Decisions

CM17-0024090, Lexis Advance

Home Health Care—Post-Total Knee Replacement—IMR expert reviewer overturned UR decision denying treating physician’s request for authorization of a total of 4 home health care visits (twice a week for 2 weeks), based on 2016 MTUS chronic pain treatment guidelines. Here, applicant underwent a total right knee replacement following industrial injury and needed assistance with ADLs and household chores. UR denied the request for home health care assistance two weeks after applicant had undergone surgery. Noting that… 

CM17-0030329, Lexis Advance

Home Health Care—Post-Total Knee Replacement—IMR expert reviewer overturned UR decision denying treating physician’s request for authorization of in-home health care assistance/skilled nursing twice a week for 3 weeks for safety assessment and wound care following total left knee replacement, based on the 2016 MTUS chronic pain treatment guidelines. According to the MTUS home health service section, home health care services... 

CM17-0034897, Lexis Advance

Home Health Care—Lumbar Spine Injury/Failed Back Surgery—IMR expert reviewer overturned UR decision denying treating physician’s request for authorization of home health care services 2 hours a day, Monday through Friday, for applicant with lumbar spine injury and chronic back pain following failed back surgery. In overturning the UR denial, the IMR expert relied on the 2016 MTUS chronic pain treatment guidelines, which recommend short-term home health care services following major surgery or inpatient hospitalization, to prevent hospitalization or to provide longer term nursing care and supportive services for those whose condition is such that they would otherwise require in-patient care. According to the MTUS…

CM17-0035313, Lexis Advance

Home Health Care—Fibromyalgia and Chronic Fatigue Syndrome—IMR expert reviewer overturned UR decision denying treating physician’s request for authorization of home health care for 3 hours per day/7 days per week, based on 2016 MTUS chronic pain treatment guidelines. The 2016 MTUS chronic pain treatment guidelines recommend short-term home health care services following major surgery or inpatient hospitalization, to prevent hospitalization or to provide longer-term nursing care and supportive services for those whose condition is such that they would otherwise require inpatient care. According to the MTUS…

CM17-0039149, Lexis Advance

Home Health Care—Personal Care Attendant—Psychiatric and Pain Disorders—IMR expert reviewer overturned UR decision denying treating physician’s request for authorization of in-home personal care attendant for 3 hours per day to assist applicant who suffered from fibromyalgia, PTSD and depression. In overturning the UR decision, the IMR expert reviewer relied upon the home health care section of the 2016 MTUS chronic pain treatment guidelines…

CM17-0053716, Lexis Advance

Home Health Evaluation—Spine Surgery—IMR expert reviewer overturned UR decision denying treating physician’s request for authorization of home health evaluation submitted prior to applicant undergoing laminectomy and decompression surgery at L1-L2. In overturning the UR decision, the IMR expert reviewer relied on…