California: Workers' Comp Case Roundup (2/14/2018)

CALIFORNIA COMPENSATION CASES

Vol. 83 No. 1 January 2018

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

© Copyright 2018 LexisNexis. All rights reserved. 

LexisNexis Online Subscribers: You can link to your account on Lexis Advance to read the complete headnotes and court decisions, en banc decisions, writ denied summaries, panel decisions and IMR decisions.    

Appellate Court Compensation Case

Zuniga (Saul) v. W.C.A.B., Lexis Advance

Utilization Review—Independent Medical Review—Confidentiality of Independent Reviewers’ Identities—Court of Appeal, affirming WCAB’s orders, held that WCAB has no authority to order disclosure of independent medical review reviewers’ identities, and that keeping reviewers’ identities confidential does not violate due process, when Court of Appeal found...

Appellate Court Cases Not Originating With Appeals Board

Camp v. Estate of Patterson, Lexis Advance

Duty of Care—Primary Assumption of Risk—Home Caregiving—Court of Appeal, reversing trial court’s summary judgment in favor of defendant and remanding matter, held that, while primary assumption of risk doctrine provides complete defense against acts plaintiff was hired to prevent, plaintiff’s injury in present case did not occur as result of such act, when Court of Appeal found...

Delgado v. County of Santa Barbara; Flath v. County of Santa Barbara, Lexis Advance

Going and Coming Rule—Special Errand Exception—Court of appeal, reversing trial court’s judgment, held that evidence, when considered as a whole, did not so clearly show abandonment of employee’s special errand that trial court could determine as matter of law that he was outside scope of his employment at time of accident giving rise to present cause of action, when Court of Appeal found...

Duncan (Denise) v. Wal-Mart Stores, Inc., Lexis Advance

Liens—Insurers Lien—Temporary Disability Payments—Court of Appeal, affirming with modification trial court’s order granting defendant employer’s workers’ compensation insurer’s lien for reimbursement of amounts it paid to plaintiff/applicant for medical expenses, held...

Merritt (David) v. Equinox Fitness Woodland Hills, Inc., Lexis Advance

Fair Employment and Housing Act—Disability Discrimination—Summary Adjudication—Court of Appeal, reversing in part and affirming in part trial court’s summary adjudication in favor of defendant, held that plaintiff presented evidence of triable issues of material fact on elements of his case for disability discrimination, when Court of Appeal found...

">

People, The v. Lias (Michelle), Lexis Advance

Workers’ Compensation Fraud—Restitution—Court of Appeal, affirming trial court’s order of restitution, held that trial court did not abuse its discretion in ordering restitution for amounts incurred prior to November 11, 2013, since factual basis of defendant’s guilty plea for workers’ compensation fraud consisted of defendant’s admission that she had “got some money by faking an injury and getting some Workers’ Comp money” on or about November 11, 2013, when Court of Appeal found...

People, The, ex rel. Alzayat (Mahmoud) v. Hebb, Lexis Advance

Qui Tam Action—Insurance Frauds Prevention Act—Litigation Privilege—Exclusive Remedy Rule—Court of Appeal, reversing trial court’s grant of judgment on pleadings for defendants, held that neither litigation privilege nor exclusive remedy rule bars plaintiff’s qui tam action, when Court of Appeal found...

Digests of WCAB Decisions Denied Judicial Review

Editorial Board members Melissa C. Brown, Hon. Joel K. Harter, Richard M. Jacobsmeyer, John W. Miller, and Hon. Ralph Zamudio recommended some of the following writ denied cases for summarization in this issue.

City of Vista v. W.C.A.B. (Gravlin, Robert), Lexis Advance

Cumulative Injury—Single Period of Cumulative Injury—WCAB affirmed WCJ’s findings that applicant suffered single cumulative trauma while employed as firefighter from 1/6/75 through 4/25/2002, causing skin cancer and heart condition/hypertension, and that applicant was entitled to combined award of 74 percent permanent disability for both body parts…

Penalties—Automatic Increase for Late Payment of Permanent Disability—WCAB affirmed WCJ’s award of 10 percent automatic increase on unpaid permanent disability benefits pursuant to Labor Code § 4650(d) for defendant’s failure to timely pay permanent disability advances from applicant’s permanent and stationary date…

County of San Diego v. W.C.A.B. (Southwell, Bill), Lexis Advance

Medical Treatment—Home Health Care—WCAB affirmed WCJ’s finding that defendant was liable for applicant’s home health care from 6/30/2009 to present and continuing, and found no merit to defendant’s assertion that applicant was not entitled to home health care for period awarded because defendant did not have notice of applicant’s need for home health care until 9/20/2012 deposition of agreed medical examiner Thomas C. Bluff, M.D., when WCAB found...

National American Insurance Co. of California v. W.C.A.B. (Herrera, Fraterno); Herrera (Fraterno) v. W.C.A.B., Lexis Advance

Injury AOE/COE–Substantial Medical Evidence—WCAB, affirming WCJ, held that reporting of qualified medical evaluator David Kim, M.D., obtained by California Insurance Guarantee Association, constituted substantial evidence to support finding that applicant did not suffer cumulative trauma to his low back, right shoulder, and neck throughout his period of employment with defendant as alleged, and that all of applicant’s permanent disability was attributable to specific injury incurred on 12/20/91, when WCAB, adopting WCJ’s report, determined...

Online Graphics and Finishing v. W.C.A.B. (Puccio, Salvatore), Lexis Advance

Injury AOE/COE—Compensable Consequence Injuries—Medical Treatment—WCAB, reversing WCJ, held that stroke applicant maintenance worker suffered in hospital while being treated for 4/20/2012 admitted orthopedic injury was compensable consequence of his industrial injury, when agreed medical evaluator in cardiology…

Other WCAB Decisions Denied Judicial Review

Barrett Business Services, Inc. v. W.C.A.B. (Cummins, John), Lexis Advance

Petition for Writ of Review—Dismissed as Premature—Court of Appeal dismissed defendant’s Petition for Writ of Review as premature pursuant to Labor Code §§ 5900 and 5901, when WCAB order was not final because applicant’s date of injury was not resolved…

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

Injury AOE/COE—Substantial Evidence—WCAB affirmed WCJ’s finding that applicant firefighter sustained injury AOE/COE, as defined in Labor Code §§ 3208 and 3208.1, to his heart and circulatory system on 9/17/2014 when he suffered asymptomatic atrial arrhythmia during treadmill test at employment-mandated health check-up…

Nguyen v. W.C.A.B. (Guzman, Salvador), Lexis Advance

Sanctions—WCAB affirmed WCJ’s imposition of sanctions against applicant’s former attorney, Thomas C. Nguyen, in amount of $1,001 pursuant to Labor Code § 5813 and 8 Cal. Code Reg. § 10561, based on…

Parco, Inc. v. W.C.A.B. (Martinez, Ricardo), Lexis Advance

Petition for Writ of Review—Dismissed as Premature—WCAB dismissed defendant’s Petition for Writ of Review as premature pursuant to Labor Code §§ 5900 and 5901 because WCAB order denying Petition for Removal is not final order subject to review…

Puerto (Helcias) v. W.C.A.B., Lexis Advance

WCAB Procedure—Suspension of Proceedings—Mental Competency—WCAB, treating applicant’s Petition for Reconsideration as Petition for Removal, denied removal and affirmed WCJ’s Minute Order taking case off calendar and suspending proceedings in applicant’s Labor Code § 132a claim, including discovery, until such time as applicant is found mentally competent, when WCAB found...

Voller (Barbara) v. W.C.A.B., Lexis Advance

Petition for Writ of Review—Dismissed as Premature—Court of Appeal dismissed applicant’s Petition for Writ of Review as premature pursuant to Labor Code §§ 5900 and 5901, when WCAB’s decision that applicant was not entitled to second period of temporary total disability payments was not final award or order and, therefore, was not subject to review by Court of Appeal...

Appeals Board Panel Decisions

Drummer (Olivia) v. Oak Valley Hospital District, Lexis Advance

Medical—Legal Procedure—Medical Examiner Reporting Time Frames—Replacement Panels—WCAB, granting removal in split panel opinion, rescinded WCJ’s order finding that report of qualified medical evaluator Eduardo Lin, M.D., was untimely and that replacement qualified medical evaluator panel should be issued on that basis, when WCAB reasoned...

Huscroft (James) v. Calgary Flames, Lexis Advance

WCAB Jurisdiction—Professional Athletes—Subject Matter Jurisdiction—WCAB, denying defendant’s Petition for Reconsideration, affirmed its prior decision… in which it found that it had jurisdiction pursuant to Labor Code §§ 3600.5(a) and 5305 over applicant’s claim that he suffered cumulative injury while employed as professional hockey player by several teams from 1/17/88 to 1/12/2000, when WCAB found...

Vargas (Constanza Medina) v. Barrett Business Services, Inc., Lexis Advance

Medical Treatment—Assignment of Qualified Medical Evaluator Panels—Requests For Different Specialties—WCAB, granting removal and reversing WCJ, held that referral referenced in report of panel qualified medical evaluator Nim Alvaro, M.D., recommending additional panels to determine whether applicant sustained industrial injuries to additional body parts, was not medical treatment referral as determined by WCJ but rather was medical-legal referral because…

Washington (Sonia) v. Department of Social Services HISS, Lexis Advance

Stipulations—WCAB, affirming WCJ, held that defendant was bound by its stipulation in pre-trial conference statement that it paid applicant permanent disability advances in amount of $2,343.00, and that defendant was not entitled to credit for all permanent disability advances, including $16,879.75 payment it made in 2013 prior to negotiating 2015 stipulated award for permanent disability in sum of $18,050.00 “less credit for such payments previously made,” when WCAB found…

Independent Medical Review Decisions

CM17-0133923, Lexis Advance

Cervical Spine Discectomy and Fusion Surgery—Neck and Back Pain—Postoperative Brace/Cervical Collar—IMR expert reviewer overturned UR decision denying treating physician’s request for C5-7 anterior cervical discectomy and fusion for decompression to treat applicant’s neck pain with cervical spondylosis and radiculopathy... [LexisNexis Commentary: This IMR decision provides guidance for individuals seeking cervical surgery and contains a helpful summary of the guidelines applicable to the requested treatment. The decision also provides an example of a case in which the UR reviewer and IMR reviewer relied on the same guidelines but reached different conclusions as to the medical necessity of the requested treatment.]…

CM17-0134944, Lexis Advance

Lumbar Spine Decompression Surgery—Postoperative Physical Therapy—IMR expert reviewer overturned UR decision denying treating physician’s request for L5-S1 decompression surgery… [LexisNexis Commentary: This IMR decision provides an excellent discussion of why two-level disc surgery was appropriate in this case and provides an example of a case in which the UR reviewer and IMR reviewer relied on the same guidelines but reached different conclusions as to the medical necessity of the requested treatment.]…

CM17-0136316, Lexis Advance

Physical Therapy—Neurosurgery Referral—Lumbar/Cervical Spine Injury—IMR expert reviewer upheld UR denial of physical therapy evaluation and treatment for applicant’s lumbar spine injury, based on the MTUS chronic pain 2016 guidelines for physical medicine…[LexisNexis Commentary: This IMR decision provides a helpful discussion regarding active and passive modes of therapy and illustrates the importance of specifying the number of sessions when requesting physical therapy. The decision also clearly explains the criteria for referral to a specialist for consultation.]…

CM17-0140549, Lexis Advance

Lumbar Spine Laminoforaminotomy and Microdiscectomy—IMR expert reviewer overturned UR denial of treating physician’s request for revision bilateral L4-5 and L5-S1 laminoforaminotomy and microdiscectomy based on the MTUS 2004 guidelines for low back surgery and the non-MTUS Official Disability Guidelines for the low back. The IMR expert described the applicable guidelines for surgical recommendation and observed... [LexisNexis Commentary: This IMR decision provides an example of a case in which the UR reviewer and IMR reviewer relied on the same guidelines but reached different conclusions as to the medical necessity of the requested treatment. The decision is also helpful to put practitioners on notice regarding the importance of having the requesting physician scrutinize the UR denial to see if the requested treatment, when reviewed by IMR, may be found to be compliant with the MTUS guidelines and/or ODG applied by the UR reviewer.]…

CM17-0140638, Lexis Advance

Physical Therapy—TENS Unit—Neck and Knee Pain—IMR expert reviewer overturned UR decision denying 4 sessions of physical therapy and a TENS unit for applicant’s bilateral neck and right knee, based on the MTUS 2016 guidelines for chronic pain.... [LexisNexis Commentary: This IMR decision illustrates the premise that reasonable medical treatment is treatment that produces a functional benefit.]…

CM17-0140665, Lexis Advance

Cellsaver Machine Rental—Intraoperative Red Blood Cell Salvage and Transfusion—Spine Surgery—IMR expert overturned UR denial of treating physician’s request for Cellsaver machine rental and other supplies for transfusion of autologous red blood cells following applicant’s very extensive elective spine surgery, based on non-MTUS references (Cochran Database Syst Rev 2010 and Transfusion 2016)… [LexisNexis Commentary: This IMR decision illustrates a situation in which the IMR reviewer used medical studies to justify a procedure that is not covered by the MTUS or ODG.]…