California Workers' Comp Case Roundup (7/9/2018)

CALIFORNIA COMPENSATION CASES

Vol. 83 No. 6 June 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.    

Supreme Court Case Not Originating With Appeals Board

Liberty Surplus Insurance Corp. v. Ledesma & Meyer Construction Co., Inc., Lexis Advance

General Liability Insurance Policies—Negligent Hiring, Retaining, and Supervising of Employees—“Occurrence” Defined—California Supreme Court, responding to question posed by U.S. Court of Appeals, Ninth Circuit, held that, when third party sues employer for negligent hiring, retention, and supervision of employee who intentionally injures that third party, suit alleges “occurrence” under employer’s California commercial general liability policy, when California Supreme Court found that…

Appellate Court Cases Not Originating With Appeals Board

Camacho (Adrian) v. Target Corp., Lexis Advance

Settlements—Compromise and Release Agreements—General Release of Civil Liability—Court of Appeal reversed trial court’s order granting summary judgment in favor of defendant on ground that plaintiff released all of his civil claims when he settled his workers’ compensation claims against defendant, and concluded that trial court erred in determining that language contained in addendum to parties’ workers’ compensation compromise and release agreement constituted general release of all of plaintiff’s civil claims, when WCAB reasoned that...

Gudino (Maria) v. Kalkat, Lexis Advance

Privette and Progeny—Hirer's Liability—Retained Control—Provision of Unsafe Equipment—Court of Appeal, affirming trial court’s summary judgment in defendant’s favor, held that plaintiffs failed to present evidence that raised triable issues of fact as to whether defendant retained control over safety conditions and negligently exercised that control and whether defendant provided unsafe equipment, when the Court of Appeal found that...

Gund v. County of Trinity, Lexis Advance

Active Law Enforcement Service—Exclusive Remedy Rule—Court of Appeal, affirming trial court’s summary judgment in defendant’s favor, held that plaintiffs, responding to deputy sheriff’s phone call requesting them to check on welfare of neighbor, which caused plaintiffs to be engaged in “active law enforcement service,” pursuant to Labor Code § 3366, so that, by virtue of exclusive remedy rule, damages they sustained while so engaged were limited to workers’ compensation benefits, when Court of Appeal found that...

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Digests of WCAB Decisions Denied Judicial Review

Editorial Board members Hon. Jacqueline C. Duncan, Susan Hamilton, James Pettibone, and Kenny Sheppard recommended some of the following writ denied cases for summarization in this issue.

B & B Roof Preparation, Inc. v. W.C.A.B. (Leyva, Vicente), Lexis Advance

Serious and Willful Misconduct by Employer—Violation of Safety Order—WCAB affirmed WCJ’s finding that employer was liable for increased compensation based on its serious and willful misconduct under Labor Code §§ 4553 and 4553.1, which resulted in applicant’s injury to multiple body parts on 7/12/2010 when he fell from roof 38 feet in height, when WCAB found, based on evidence in record, that applicant and his co-workers were not wearing fall protection while dumping roofing material over edge of roof, that applicant’s foreman, who WCAB concluded...

Serious and Willful Misconduct by Employer—Employer’s Executives or Managing Officers—WCAB held that foreman on job site where applicant fell from roof 38 feet in height and suffered serious injury was deemed to be employer’s “executive or managing officer” under Labor Code § 4553 for purposes of imputing his serious and willful misconduct to employer, when WCAB found that...

California Department of Corrections and Rehabilitation v. W.C.A.B. (Potter, Joseph), Lexis Advance

Supplemental Job Displacement Benefits—Inmates—WCAB, affirming WCJ, held that applicant was not precluded under Labor Code § 3370(e) from receiving supplemental job displacement voucher by virtue of his status as inmate, when WCAB was not persuaded by defendant’s assertion that supplemental job displacement voucher was intended as replacement for vocational rehabilitation, to which inmates were not entitled, and reasoned that fact that Legislature did not amend Labor Code § 3370 to preclude supplemental job displacement vouchers indicated that Legislature did not intend to restrict inmates from those benefits; WCAB also rejected…

Terry (Patrick, Dec’d) v. W.C.A.B., Lexis Advance

Death Benefits—Accrual of Claim—WCAB affirmed WCJ’s finding that applicant, whose husband suffered industrial spine injury on 5/16/2011 that contributed to his death on 5/17/2016, was barred by Labor Code § 5406(b) from recovering death benefits because decedent’s death occurred more than 240 weeks after his date of injury, and WCAB reasoned that...

Other WCAB Decisions Denied Judicial Review

Smith (Bonita) v. W.C.A.B., Lexis Advance

Discrimination—Labor Code § 132a—WCAB affirmed WCJ’s finding that employer did not engage in unlawful discrimination in violation of Labor Code § 132a by terminating applicant’s employment after she suffered industrial injury, when credible testimony of defense witnesses established that employer attempted to accommodate applicant’s restrictions by enrolling her in “Well-At-Work” program, but applicant...

Penalties—Delayed Payments—WCAB held that WCJ did not err in failing to impose 25 percent penalties under Labor Code § 5814 based on defendant’s alleged failure to authorize certain medical treatment and delays in payment of compensation pursuant to order, when applicant...

Appeals Board Panel Decisions

Amedee (Jon) v. Pacific Bell Telephone Co., Lexis Advance

Medical-Legal Procedure—Ex Parte Communications—WCAB, reversing WCJ, found that telephone call from psychiatric qualified medical evaluator Stephen M. Raffle, M.D., to applicant's attorney was improper ex parte communication prohibited by Labor Code § 4062.3(g), when Dr. Raffle called applicant's attorney to discuss severity of applicant's psychiatric condition and spoke with applicant's attorney's assistant, advising assistant that applicant suffered from suicidal depression and providing details/conclusions regarding his diagnosis of applicant's condition and level of disability, and WCAB found that...

Beitpolous (Ilbra) v. California Correctioinal Healthcare Services, Lexis Advance

Medical-Legal Procedure—Assignment and Selection of Panel Qualified Medical Evaluators—Replacement Panels—Telemedicine—WCAB, denying removal, affirmed WCJ's order instructing Medical Unit to issue replacement qualified medical evaluator panel in specialty of physical medicine and rehabilitation to replace panel qualified medical evaluator Behzad Emad, M.D., who was granted accommodation under Americans with Disabilities Act to conduct evaluation of applicant via telemedicine, when WCAB found that...

Duran (Maria) v. Forever 21 Retail, Inc., Lexis Advance

Medical Treatment—Independent Medical Review—Appeals—WCAB affirmed WCJ's finding that independent medical review (IMR) determination affirming utilization review (UR) denial of applicant's request for home health care to assist with household chores, self-care and personal hygiene was not result of plainly erroneous express or implied findings of fact and that Administrative Director (AD) did not exceed his authority by adopting IMR determination, when WCAB acknowledged that...

Escamilla (Dolores) v. Cacique, Inc., Lexis Advance

Credit—Third-Party Actions—Legal Malpractice Settlements—WCAB affirmed WCJ's finding that defendant was not entitled to credit pursuant to Labor Code § 3861 against its workers' compensation liability for applicant's net settlement recovery in legal malpractice lawsuit against her civil attorneys based on their handling of third-party personal injury case arising out of applicant's 10/3/2010 industrial slip-and-fall injury, when WCAB, based on decisions in Soliz v. Spielman (1974) 44 Cal. App. 3d 70, 118 Cal. Rptr. 127, 40 Cal. Comp. Cases 130, and El Katan v. Barrett Business Services, Inc., 2013 Cal. Wrk. Comp. P.D. LEXIS 41(Appeals Board noteworthy panel decision), held that employer...

Robles (Alex) v. Southern California Gas Co., Lexis Advance

Employment Relationships—Union Members—WCAB affirmed WCJ's findings that applicant who was injured in automobile accident on 10/17/2011 while driving to union office to participate in union business was employed by defendant Southern California Gas Company at time of his injury, when WCAB concluded that...

Injury AOE/COE—Going and Coming Rule—Union Activities—WCAB affirmed WCJ's findings that applicant who was injured in automobile accident on 10/17/2011 while driving to union office to participate in union business in his capacity as union regional manager, was employed by defendant Southern California Gas Company at time of his injury, and that his injury claim was not barred by “going and coming” rule, when WCAB reasoned...

Independent Medical Review Decisions

CM17-0187339, Lexis Advance

Medical Marijuana—Marijuana With Cannabidiol (CBD)—Chronic Pain—IMR reviewer upheld UR decision denying treating physician’s request for CBD (a cannabinoid) 25mg #90, based on the 2016 MTUS chronic pain guidelines and Non-MTUS ODG pain guidelines addressing cannabinoids. Here, 53-year old applicant was being treated for CRPS, chronic pain, lumbar radiculopathy and right knee pain following industrial injury. He had undergone lumbar fusion and total knee replacement and had been using CBD for approximately 5 months prior to the current request. The IMR reviewer noted that... [LexisNexis Commentary: This IMR decision illustrates the difficulty in getting authorization for CBD use for the treatment of chronic pain due to the lack of quality studies supporting the efficacy of CBD to treat pain and the potential risks associated with cannabinoid use.]

CM17-0187381, Lexis Advance

Driving School—Quadriplegia—IMR reviewer upheld UR decision denying treating physician’s request for driving school consultation in order to help 49-year old applicant with quadriplegia with home maintenance and adequate function. The IMR reviewer noted that... [LexisNexis Commentary: This IMR provides good rationale for determination that home health services may be better option than driving school consultation for applicant who is quadriplegic.]

Medical Marijuana—Marinol—Anorexia—IMR reviewer upheld UR decision denying treating physician’s request for Marinol 2.5mg #60 to treat applicant’s anorexia. In upholding the UR decision, the IMR reviewer relied on the 2016 MTUS chronic pain guidelines addressing cannabinoids, which do not recommend use of cannabinoids to treat pain especially given their potential negative side effects, including decrease in cognitive performance and possibility of psychotic symptoms in vulnerable persons. The IMR reviewer also noted that... [LexisNexis Commentary: This IMR decision illustrates the difficulty in getting authorization for use of cannabinoids especially because, as pointed out by the IMR reviewer, cannabinoids can be addictive and there are FDA approved medications that provide better treatment options.]

CM17-0197716, Lexis Advance

Prescription Medications—Terocin Patch—Chronic Pain—IMR reviewer upheld UR decision denying treating physician’s request for Terocin patches #30 based on the 2017 MTUS chronic pain guidelines for neuropathic pain and the Non-MTUS ODG guidelines for topical analgesics to treat pain. Here, 55-year old applicant was undergoing treatment for post-laminectomy syndrome and lumbar radiculopathy and reported decreased pain while using Terocin patches. The MTUS guidelines selectively recommend topical NSAIDs for the treatment of neuropathic pain and the ODG guidelines recommend... [LexisNexis Commentary: This IMR decision provides a good example of the showing that must be made to meet the MTUS and ODG requirements for topical analgesics to treat neuropathic pain.]

Medical Marijuana—Marinol—Chronic Pain—IMR reviewer upheld UR decision denying treating physician’s request for Marinol 2.5mg #30 to treat applicant’s pain, even though applicant reported decreased pain while using this medication. In upholding the UR decision, the IMR reviewer relied on the 2016 MTUS chronic pain guidelines addressing cannabinoids, which do not recommend use of cannabinoids to treat pain, especially given their potential negative side effects. The MTUS guidelines... [LexisNexis Commentary: This IMR decision illustrates the difficulty in getting authorization for use of cannabinoids even when there is documentation of decreased pain while using this medication, given that the negative side-effects may outweigh the benefits of the medication especially when used at higher doses.]

CM17-0220138, Lexis Advance

Medical Marijuana—Marijuana With Cannabidiol (CBD)—Chronic Pain—IMR reviewer upheld UR decision denying treating physician’s request for CBD (a cannabinoid) of unspecified dosage and quantity, based on the 2016 MTUS chronic pain guidelines addressing cannabinoids. The IMR reviewer noted that the MTUS chronic pain guidelines do not recommend use of CBD for pain and, although 23 states have legalized medical marijuana, there are no quality studies supporting cannabinoid use, and there are serious risks associated with usage. The MTUS guidelines state... [LexisNexis Commentary: This IMR decision illustrates the difficulty in getting authorization for CBD use for the treatment of pain due to the lack of quality studies supporting the efficacy of CBD to treat pain and the potential risks associated with cannabinoid use.]

CM17-0220918, Lexis Advance

Medical Marijuana—Chronic Pain—IMR reviewer upheld UR decision denying treating physician’s request for medical marijuana of unspecified dosage and quantity, based on various Non-MTUS peer-reviewed studies addressing the efficacy of cannabis to treat chronic pain. The IMR reviewer noted that the MTUS guidelines generally encourage the use of conservative treatments with benefits that outweigh the risks before adding treatments, such as medical marijuana, with more concerning benefit-risk comparisons. Additionally, the IMR reviewer... [LexisNexis Commentary: This IMR decision contains a thorough discussion of the evidence considered in determining whether to authorize medical marijuana to treat pain. The IMR reviewer cites to multiple peer-reviewed studies addressing the issue and provides guidance regarding what information a physician should include when requesting authorization for medical marijuana.]

CM17-0237823, Lexis Advance

Medical Marijuana/Anti-Emetics—Marinol—Opioid-Induced Nausea and Chronic Pain—IMR reviewer upheld UR decision denying treating physician’s request for Marinol 5mg #15 to treat 43-year old applicant’s opiate-induced nausea, chronic pain related to reflex sympathetic dystrophy in the upper extremity and neuropathic arm pain. The IMR expert relied on the Non-MTUS ODG guidelines, pain chapter, for anti-emetics (for opioid nausea), which state that anti-emetics are not recommended for nausea and vomiting secondary to chronic opioid use. The IMR reviewer... [LexisNexis Commentary: This IMR decision provides an example of a circumstance where medical marijuana was prescribed for both pain and nausea and did not meet the ODG guideline criteria for either condition.] 

Prescription Medications—Lidocaine Topical Patch—Neuropathic Pain—IMR reviewer overturned UR decision denying treating physician’s request for Lidocaine 5% topical patch #60 to treat applicant’s reflex sympathetic dystrophy of the upper extremity, arm neuropathy and muscle pain. The IMR expert relied on the 2017 MTUS guidelines for chronic persistent pain and chronic pain syndrome, which state that Lidocaine patches are selectively recommended for treatment of chronic persistent localized pain amenable to topical treatment or moderate to severe chronic persistent pain. Progress notes submitted by applicant’s treating physician indicated that the Lidocaine patches were to treat applicant’s neuropathic pain, and that Lidocaine lotion was not effective. Regarding Lidoderm patches, the IMR reviewer... [LexisNexis Commentary: This IMR is helpful for its thorough discussion of the criteria that must be met to obtain authorization for Lidocaine patches.]

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