California Workers' Comp Case Roundup (4/30/2018)

CALIFORNIA COMPENSATION CASES

Vol. 83 No. 4 Apr 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

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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 Cases Not Originating With Appeals Board

Hurley v. Department of Parks and Recreation, Lexis Advance

Civil Actions Against Employers—Exclusive Remedy Rule—Court of Appeal held workers’ compensation exclusive remedy rule of Labor Code § 3602(a) did not bar plaintiff’s civil action against her supervisor for intentional infliction of emotional distress or negligent infliction of emotional distress, when Court of Appeal found plaintiff worked for employer parks and recreation district as staff services analyst, brought civil action against her direct supervisor for various causes of action, including intentional infliction of emotional distress and negligent infliction of emotional distress, trial court found...

Mehta (Mahavir) v. Activor Corp., Lexis Advance

Uninsured Employers—Civil Judgments—Fraudulent Transfer of Assets—Court of Appeal affirmed trial court’s finding that there was clear and convincing evidence that defendant Activor Corporation (Activor), illegally uninsured for workers’ compensation, fraudulently transferred assets to its principal shareholder, defendant Chanda Zaveri, and two entities controlled by Zaveri, defendants Actiogen Corporation and Chanda LLC, to avoid paying plaintiff entire judgment he was awarded in civil action stemming from serious injury he incurred on 9/12/2007 while employed by Activor, when civil action resulted in judgment against Activor totaling $184,850.22, which included $129,850.22 attorney’s fee award, and evidence indicated that after paying plaintiff $55,000.00 on judgment, Activor began transferring assets then initiated “no asset” bankruptcy proceeding, omitting “more than $900,000.00 accounts receivable due and owing to Activor,” and Court of Appeal...

Preferred Auto Dealers Self Insurance Program, Inc. v. Anderson Enterprises, Inc., Lexis Advance

Group Self-Insurers—Alleged Breach of Contract—Assessments on Former Members—Court of Appeal, affirming trial court’s judgment, held that group self-insurer failed to prove that defendants breached contract with it, when Court of Appeal found that Department of Industrial Relations determined that plaintiff group self-insurer lacked sufficient assets to cover its liabilities and ordered it to take corrective action, that plaintiff group self-insurer, relying on “joint and several liability” language in indemnity agreement signed by group self-insurer and each group member/employer, levelled assessments against present and former members/employers of group self-insurance program that...

Federal District Court Opinions of Related Interest

San Francisco Bay Area Rapid Transit District v. General Reinsurance Corp., Lexis Advance

Reinsurance Policy—Date of Employee Injury—Right to Litigate—U.S. Court of Appeals, Ninth Circuit, affirming judgment of U.S. District Court, Northern District of California, in favor of General Reinsurance Corp., in San Francisco Bay Area Rapid Transit District v. General Reinsurance Corp., 111 F. Supp. 3d 1055, 80 Cal. Comp. Cases 712 (N.D. Cal. 2015), held that...

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Federal District Court Opinion of Related Interest

Munoz (Christobal) v. Barona Band of Mission Indians, Lexis Advance

Indian Tribes—Sovereign Immunity—Indian Civil Rights Act—Federal Court Jurisdiction

U.S. District Court, Southern District of California, granted defendant’s motion to dismiss with prejudice for lack of subject matter jurisdiction based on tribal sovereign immunity, when District Court found that plaintiff alleged that, while working for defendant tribe, he suffered injury, that he received workers’ compensation and medical treatment while his claim was investigated, that his claim…

Appeals Board En Banc Decision

Hernandez (Pedro) v. Henkel Loctite Corp., Lexis Advance

Lien Claims—Timely Filed Declarations—WCAB, en banc, affirmed WCJ’s finding that lien claimant timely filed Labor Code § 4903.05(c)(1) declaration at 8:00 a.m. on Monday, July 3, 2017, in compliance with Labor Code § 4903.05 and, therefore, lien claimant’s 5/29/2013 lien was not subject to dismissal by operation of law as asserted by defendant, when WCAB held that...

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 Pittsburg v. W.C.A.B. (Ligouri, Michele); City of Concord v. WCAB (Ligouri, Michele), Lexis Advance

Presumption of Industrial Causation—Cancer Presumption for Peace Officers—Rebuttal—Latency Period—WCAB affirmed WCJ’s finding that applicant, who was exposed to various carcinogens during her approximately nine years of employment as police officer with Defendants City of Pittsburg and City of Concord and ultimately developed breast cancer, was entitled to benefit of Labor Code § 3212.1 presumption that her cancer was industrially caused, but rescinded WCJ’s determination that defendants successfully rebutted presumption with opinion of panel qualified medical evaluator Ira Fishman, M.D., that latency period for breast cancer is minimum of 10 years and exceeded period of applicant’s industrial exposure, when WCAB reasoned that...

Los Angeles Metropolitan Transportation Authority v. W.C.A.B. (Estel, John), Lexis Advance

Injury AOE/COE—Going and Coming Rule—Special Mission Exception—WCAB, reversing WCJ, held that applicant suffered injury AOE/COE to multiple body parts when he was involved in motorcycle accident on 8/10/2016 while employed by defendant as rail electronic communications inspector, and that applicant’s injury claim was not barred by “going and coming” rule as determined by WCJ, because “special mission” exception to “going and coming” rule was applicable, when WCAB reasoned that…

Salceda (Elizabeth) v. W.C.A.B., Lexis Advance

Injury AOE/COE—Dual-Purpose Rule—WCAB affirmed WCJ’s finding that fatal injury suffered by decedent on 10/1/2015 did not arise out of or occur in course of his employment with defendant Direct Motion, Inc., and that decedent’s widow and children, applicants herein, were not entitled to death benefits from defendant, when decedent’s injury was incurred while he was working in his own separate business, Mission Critical Performance, located in separate space he rented at same commercial complex as defendant’s business, and, while evidence showed that there was special mutuality between decedent’s own business and defendant’s related business, in that defendant gave decedent latitude and flexibility to engage in his own business while he worked for defendant, defendant assisted decedent in setting up invoicing and accounting services for his own business, and decedent attempted to increase revenue for his own business as well as defendant’s business through his engine-building skills and connections, WCAB concluded that…

Other WCAB Decisions Denied Judicial Review

Lowry (Vivian) 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, 5901, and 5950, when ruling by WCAB that...

Moss (Perry) v. W.C.A.B., Lexis Advance

Compromise and Release Agreements—Setting Aside—WCAB affirmed WCJ’s order approving compromise and release agreement under which pro per applicant settled his claim for cumulative injuries allegedly sustained while employed as professional basketball player by Golden State Warriors from 1982 through 1996, when applicant sought...

Appeals Board Panel Decisions

Gonzalez Hernandez (Gildardo) v. Medi-Serve Transportation, Lexis Advance

Liens—Filing and Service—Lien Declarations—WCAB rescinded WCJ's order disallowing lien of Mesa Pharmacy and its assignee Javlin Three Omaha (collectively, “lien claimant”) in its entirety under Labor Code § 4903.8(e) for allegedly failing to comply with declaration requirements in Labor Code § 4903.8(d), and returned matter to WCJ for further proceedings, when WCJ found…

Ingrassi (Anthony) v. State of California, Lexis Advance

Permanent Disability—Offer of Regular, Modified or Alternative Employment—WCAB, in split panel opinion, affirmed WCJ's finding that applicant who suffered industrial orthopedic injuries while employed as parole agent during period 10/31/99 through 8/13/2012 was entitled to 15 percent increase in permanent disability award pursuant to Labor Code § 4658(d)(2), beginning on date defendant had actual or constructive knowledge of applicant's permanent and stationary status, when defendant sent applicant offer of regular work after agreed medical examiner Michael Luciano, M.D., issued initial permanent and stationary report in 2015, but did not send another offer of work following Dr. Luciano's 10/3/2016 permanent and stationary report in which Dr. Luciano found increased impairment after applicant underwent shoulder surgery, and WCAB panel majority found that…

Martinez (Helen) v. County of Alameda, Lexis Advance

Permanent Disability—Apportionment—WCAB, in split panel opinion, affirmed WCJ's finding that opinion of internal medicine agreed medical examiner Juan Larach, M.D., did not constitute substantial evidence to support apportionment of permanent total disability resulting from applicant supervising auditor's industrial injuries to her head, upper extremity and neuropsychologic system due to stroke, when WCAB panel majority concluded that Dr. Larach's opinion that 60 percent of applicant's permanent total disability was due to nonindustrial factors was inconsistent with Labor Code §§ 4663 and 4664(a) and Escobedo v. Marshalls (2005) 70 Cal. Comp. Cases 604 (Appeals Board en banc opinion), because Dr. Larach concluded that applicant had “pre” for stroke due to her preexisting, nonindustrial atherosclerotic plaque in left carotid artery, but that actual stroke was entirely caused by industrial factors, and WCAB reasoned that...

Pacas (Delmy) v. The Mailing House, Lexis Advance

Medical Treatment—Home Health Care—Due Process—WCAB affirmed WCJ's finding that applicant who suffered industrial injury to her neck, back, upper extremities, shoulders, wrists, psyche, and internal system while employed as mailroom clerk from 7/26/2001 through 7/26/2002, was in need of home health care 24 hours per day, seven days per week, and that deposition testimony of agreed medical evaluator Lawrence Richman, M.D., was oral prescription for home health care pursuant to Labor Code § 4600(h) and Neri Hernandez v. Geneva Staffing, Inc. dba Workforce Outsourcing, Inc. (2014) 79 Cal. Comp. Cases 682 (Appeals Board en banc opinion), when WCAB found that…

Senquiz (Jessica) v. City of Fremont, Lexis Advance

Liens—Medical—Independent Bill Review—WCAB, reversing WCJ, held that dispute between defendant and lien claimant Fremont Surgery Center regarding payment for transforaminal epidural steroid injections provided by lien claimant to applicant for 9/18/2007 lumbar spine injury was subject to Independent Bill Review (IBR) and was not within jurisdiction of WCAB, when defendant objected to lien claimant's bills based on incorrect coding that did not comply with National Correct Coding Initiative (NCCI), and WCAB found that...

Independent Medical Review Decisions

CM17-0154075, Lexis Advance

Retrospective Home Health Care Services—Chronic Pain—IMR expert reviewer upheld UR decision denying 55-year old applicant’s request for retrospective home health care services for chronic pain starting in 2012 and ongoing indefinitely, based on the 2016 MTUS chronic pain guidelines for home health care services. The guidelines recommend home health care services on a short-term basis following major surgery or in-patient hospitalization, or longer-term nursing care and supportive services for those whose condition is such that they would otherwise require in-patient care. Home health care services include both medical and non-medical services medically necessary for patients who are homebound, meaning that...[LexisNexis Commentary: This IMR decision is a good reminder of the basic requirements that need to be met to qualify for home health care services. The request in this case was deficient because there was no indication that applicant was homebound, and the request was for unspecified duration.]

CM17-0157511, Lexis Advance

Durable Medical Equipment—Shower Chair—RN Visit—IMR expert reviewer overturned UR noncertification of 69-year old applicant’s request for Spanish-speaking RN to visit applicant’s home to evaluate home for shower chair. The MTUS and ACOEM guidelines are silent regarding medical necessity of shower chairs; however, the non-MTUS ODG guidelines recommend durable medical equipment, such as shower chairs, if the equipment meets Medicare’s definition of durable medical equipment, i.e., the equipment can withstand repeated use, is used in the home for medical reasons, and is not useful to someone who is not sick or injured. The IMR reviewer in this case found that.... [LexisNexis Commentary: The IMR reviewer in this case provided a clear and concise explanation for rationale in finding the requested treatment, related to durable medical equipment, medically necessary even though there are no rules directly addressing the treatment request.]

CM17-0160968, Lexis Advance

Functional Restoration Program—Lodging Accommodations—IMR expert reviewer overturned UR denial of 35-year old applicant’s request for lodging accommodations for 28 days while applicant, who suffered cervical spine injury and endured chronic pain with radicular symptoms in upper extremities, attended Functional Restoration Program (FRP) located approximately 1.25 hours (64.9 miles) from his home. In overturning the UR decision, the IMR reviewer... [LexisNexis Commentary: This IMR decision is instructive regarding the necessary criteria that must be met to medically qualify for a Functional Restoration Program to treat chronic pain and loss of function. The IMR reviewer concisely explains why the request in this case complies with the criteria set forth in the MTUS guidelines for chronic pain.]

CM17-0169668, Lexis Advance

Skilled Nursing Facility—Femoral Neck Fracture and Hip Replacement—IMR expert reviewer upheld UR denial of 74-year old applicant’s request for placement in skilled nursing facility, based on the non-MTUS ODG guidelines for knee and leg conditions. These guidelines, as detailed by the IMR reviewer, recommend in-facility nursing care if necessary after hospitalization when a patient requires skilled nursing care or skilled rehabilitation services, or both, on a 24-hour basis, and require that the patient... [LexisNexis Commentary: This IMR decision is instructive as it clearly sets forth the requirements that must be met to qualify for skilled nursing facility care. Here, the documentation accompanying applicant’s request for skilled nursing facility care did not discuss the type of care applicant was currently receiving and why it was no longer adequate, how applicant may benefit from rehabilitation services, or the requested duration of applicant’s stay in the nursing home.]

CM17-0176021, Lexis Advance

Home Health Care—Skilled Nursing/Full Assisted Living—Quadriplegia—IMR expert reviewer overturned UR decision allowing only 60 days of skilled nursing full assisted living and found that skilled nursing full assisted living 24 hours per day for an unspecified duration, as requested by 65-year old applicant, was medically necessary based on the 2016 MTUS chronic pain guidelines for home health services. The guidelines recommend home health care services on a short-term basis following major surgery or in-patient hospitalization, or longer-term nursing care and supportive services for those whose condition is such that they would otherwise require inpatient care. Home health care services include... [LexisNexis Commentary: This IMR decision sets forth the criteria for home health care services and applies the criteria to a request for “skilled nursing full assisted living” of unspecified duration. Although UR allowed 60 days of the requested treatment, the IMR reviewer found that because applicant was quadriplegic and there was no documentation that his condition would ever change, skilled nursing full assisted living on an ongoing basis is appropriate.]

CM17-0177650, Lexis Advance

Functional Restoration Program—Transportation—IMR expert reviewer upheld UR decision denying 55-year old applicant’s request for 29 days of transportation to Functional Restoration Program (FRP) based on the non-MTUS ODG knee and leg guidelines for transportation to and from appointments. Applicant in this case was undergoing treatment for post-laminectomy syndrome, chronic pain syndrome and pain disorder related to psychological factors following a 2015 work injury and was determined... [LexisNexis Commentary: This IMR decision is instructive because the need for transportation to and from appointments is common, and the decision sets forth the requirements that must be met to justify transportation and indicates why the request in this case was deficient.]

CM17-0185185, Lexis Advance

Home Health Care—Post Lumbar Surgery—IMR expert reviewer overturned UR decision denying 73-year old applicant’s request for post-operative home health care services 3 days per week, 6 hours per day for 6 weeks following lumbar surgery related to 1989 work injury, based on the 2016 MTUS chronic pain guidelines for home health care services. The guidelines recommend home health care services on a short-term basis following major surgery or in-patient hospitalization, or longer-term nursing care and supportive services for those whose condition is such that they would otherwise require inpatient care. Home health care services include... [LexisNexis Commentary: This IMR decision is a good reminder of the basic requirements that need to be met to qualify for home health care services. Applicant in this case is post-surgery and satisfies the criteria for receiving home care rather than in-patient rehabilitation.]

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