California Workers’ Comp Case Roundup: 8/11/2017

CALIFORNIA COMPENSATION CASES

Vol. 82 No. 7 July 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 Compensation Cases

Baker (Jack) v. W.C.A.B, Lexis Advance

WCAB Jurisdiction—Utilization Review—Independent Medical Review—Timeframes—Court of Appeal, affirming WCAB decision and following State Compensation Insurance Fund v. W.C.A.B. (Margaris) (2016) 248 Cal. App. 4th 349, 207 Cal. Rptr. 3d 875, 81 Cal. Comp. Cases 561, held that time limit in Labor Code § 4610.6(d), providing that…

County of Sacramento v. W.C.A.B. (McCartney, Jonathon Scott), Lexis Advance

Injury AOE/COE—Actinic Keratosis—Causal Connection—Court of Appeal, annulling WCAB’s opinion on reconsideration and remanding matter to WCAB with directions to deny applicant’s petition for reconsideration, held that WCJ properly concluded that applicant failed to establish that work-related sun exposure contributed to…

Hikida (Maureen) v. W.C.A.B., Lexis Advance

Petitions for Writ of Review—Time to File—Final Awards—Court of Appeal, annulling decision of WCAB and remanding matter, held that applicant’s petition for writ of review was timely filed, when Court of Appeal found that WCAB opinion of February 8, 2016, was not, contrary to defendant’s assertion, “final decision” with respect to apportionment issue since it...

Medical Treatment—Permanent Disability Arising from Medical Treatment—Apportionment—Court of Appeal, annulling decision of WCAB and remanding matter, held that disability resulting from medical treatment for which defendant was responsible was not subject to apportionment…

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Zhu (Yu Qin) v. W.C.A.B., Lexis Advance

Injury AOE/COE—Going and Coming Rule—Transit for Benefit of Employer or Employment—Court of Appeal, annulling WCAB decision and remanding matter, held that applicant’s transit bestowed direct benefit on employer, was at implied request of employer, and was, therefore, “part and parcel” of…

Appellate Court Cases Not Originating With Appeals Board

Fernandez (Brayan) v. Spayde, Lexis Advance

Summary Judgment—Liability of Premises Owner—Concealed Hazard—Court of Appeal, reversing trial court’s summary judgment in favor of defendants, held that evidence showed triable issues of fact about whether there was hidden dangerous condition that homeowners should have disclosed and whether contractor and contractor’s employees acted reasonably, when…

Maldonado (Carlos) v. Medivators, Inc., Lexis Advance

Injury Caused by Wrongful Act or Neglect—Statute of Limitations— Discovery Rule—Court of Appeal, reversing trial court’s summary judgment in favor of defendant, held that triable issue of fact existed regarding when plaintiff first suspected he suffered appreciable and actual harm and that it was result of wrongdoing, when Court of Appeal found that plaintiff alleged…

People v. Snow (Sara), Lexis Advance

Workers’ Compensation Fraud—Attempted Perjury—Court of Appeal, affirming trial court’s judgment of conviction of defendant, held that defendant’s false statements and material matters associated with each attempted perjury count were sufficiently distinct to support two separate counts, so that defendant’s convictions on two counts did not constitute…

Schueneman (Regina) v. Lively, Lexis Advance

Statute of Limitations—Delayed Discovery Rule—Separate and Distinct Injuries—Court of Appeal, reversing trial court’s summary judgment in favor of defendant, held that plaintiff’s complaint sufficiently alleged facts triggering potential application of latent-disease exception to Code of Civil Procedure Section 340.8 statute of limitations, as set forth by California Supreme Court in Pooshs v. Philip Morris USA, Inc. (2011) 51 Cal. 4th 788, 250 P.3d 181, 123 Cal. Rptr. 3d 578…

Federal District Court Opinion of Related Interest

Paleg v. Kmart Corp., Lexis Advance

Diversity Jurisdiction—Exclusive Remedy Rule—Intentional Infliction of Emotional Distress—U.S. District Court, Central District of California, granting plaintiff’s motion to remand case to California Superior Court, held that defendant’s argument that plaintiff cannot meet intentional infliction of emotional distress pleading standard does not justify finding that non-diverse defendant was fraudulently joined, when court found…

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.

Churnside (Edward) v. W.C.A.B., Lexis Advance

Medical Treatment—Independent Medical Review—Appeals—Court of Appeal denied applicant’s Petition for Writ of Review challenging WCAB’s finding that WCJ properly remanded case to Administrative Director pursuant to Labor Code § 4610.6(i) to assign parties’ medical treatment dispute to different independent medical review organization after WCJ…

Culver City Unified School District v. W.C.A.B. (Grawe, Virginia), Lexis Advance

Injury AOE/COE—Non-Occupational Diseases—Special Risk—Court of Appeal denied defendant’s Petition for Writ of Review challenging WCAB’s finding that applicant met burden of proving that she suffered injury AOE/COE in form of hypertension while employed as schoolteacher during…

Great Divide Insurance Co. v. W.C.A.B. (Newberry, Jeremy), Lexis Advance

Cumulative Injury—Single Period of Cumulative Injury—Court of Appeal upheld WCAB’s finding that applicant suffered single period of cumulative injury to multiple body parts over his entire professional football career ending on 1/11/2009 in accordance with Western Growers Ins. Co. v. W.C.A.B. (Austin) (1993) 16 Cal. App. 4th 227, 20 Cal. Rptr. 2d 26, 58 Cal. Comp. Cases 323, rather than two separate periods of cumulative trauma as found…

Injury AOE/COE—Substantial Medical Evidence—Court of Appeal upheld WCAB’s finding that applicant suffered cumulative injury to his kidneys and in form of hypertension, in addition to orthopedic and head injuries…

Highlands Insurance Co. v. W.C.A.B. (Soto, Patricia), Lexis Advance

California Insurance Guarantee Association—Stay of Proceedings—WCAB rescinded WCJ’s order staying California Insurance Guarantee Association’s Petition for Contribution from defendant Highlands Insurance Co. (Highlands), in receivership in Texas, and returned matter to WCJ for further proceedings, when WCAB found that, in staying contribution proceedings…

JLJ Trucking, Inc. v. W.C.A.B. (Lopez, Charles), Lexis Advance

Permanent Disability—Substantial Evidence—Permanent Total Disability—WCAB, in split panel decision, affirmed WCJ’s finding that applicant suffered 100 percent permanent disability, without basis for apportionment, from injuries to his neck, psyche, and in forms of headaches and sleep disorder incurred while he was employed as truck driver on 3/13/2011, when WCAB panel majority found that there was substantial evidence to support...

Other WCAB Decisions Denied Judicial Review

N & N Windbreak Services, Inc. v. W.C.A.B. (Reynoso, Jose), Lexis Advance

Discovery—Closure—Due Process—Court of Appeal denied defendant’s Petition for Writ of Review challenging WCAB’s decision that upheld WCJ’s order closing discovery and setting matter for trial, when defendant failed to identify evidence in record to establish that documents it demanded from applicant were in existence and were...

Von Ritzhoff (Kristian) v. W.C.A.B., Lexis Advance

Petition for Writ for Review—Premature—Court of Appeal dismissed applicant’s Petition for Writ of Review as premature pursuant to Labor Code §§ 5900 and 5901 because no final order was issued by WCAB on findings challenged by applicant regarding deposition of applicant’s former wife and medical expert.

Appeals Board Panel Decisions

CAUTION: These WCAB panel decisions have not been designated a “significant panel decision” by the Workers’ Compensation Appeals Board. Practitioners should proceed with caution when citing to these board panel decisions and should also verify the subsequent history of the decisions. WCAB panel decisions are citeable authority, particularly on issues of contemporaneous administrative construction of statutory language. However, WCAB panel decisions are not binding precedent, as are en banc decisions, on all other Appeals Board panels and workers’ compensation judges. While WCAB panel decisions are not binding, the WCAB will consider these decisions to the extent that it finds their reasoning persuasive.

Garcia (Maria) v. Child Development, Inc., Lexis Advance

Medical—Legal Procedure—Medical Examiner Reporting Timeframes—Replacement Panels—WCAB, denying removal, affirmed WCJ’s finding that defendant was not entitled to new qualified medical evaluator panel based on original panel qualified medical evaluator’s failure to issue timely supplemental report pursuant to 8 Cal. Code Reg. § 38(i), when WCAB concluded…

Ponce (Don) v. Barrett Business Services, Inc., Lexis Advance

Injury AOE/COE—Compensable Consequence Injuries—WCAB affirmed WCJ’s finding that applicant truck driver suffered cumulative industrial injury to his left wrist during period ending on 3/4/2015 and, while issue of whether wrist injury was compensable consequence…

Skaff (John) v. City of Stockton, Lexis Advance

Injury AOE/COE—Burden of Proof—Adverse Inferences—WCAB rescinded WCJ’s finding that applicant police officer did not suffer injury AOE/COE in form of prostate cancer based on opinion of panel qualified medical evaluator Juan Cesar Larach, M.D., that applicant’s exposure to methamphetamine during his employment did not contribute…

Sywassink (Beatrice) v. Pacific Gas and Electric Co., Lexis Advance

Third-Party Actions—Employer’s Claim for Credit—Vaccine Injury Compensation Program—WCAB affirmed WCJ’s finding that defendant was not entitled to credit pursuant to Labor Code §§ 3852–3862 against its workers’ compensation liability for applicant’s recovery from National Vaccine Injury Compensation Program (NVICP) (42 U.S.C.S. § 300aa-10 et seq.) for injury…

Independent Medical Review Decisions

CAUTION: The Publisher’s Staff has reviewed both overturned and upheld independent medical review (IMR) decisions beginning in 2017. Criteria for selection include discussion of relevant medical topics, including but not limited to prescription medicine, home health care, orthopedic issues, physical therapy, opioid prescriptions, etc. The Publisher’s selection is not meant to be reflective of the proportion of all IMR decisions that overturn utilization review (UR) denials.

CM17-0043712, Lexis Advance

Physical Therapy—Post Shoulder Surgery—IMR expert reviewer overturned UR denial of treating physician’s request for 12 physical therapy sessions to applicant’s left shoulder, twice per week for 6 weeks, based on 2009 MTUS guidelines addressing post-surgical treatment…

CM17-0045766, Lexis Advance

Acupuncture Treatments—Cervical/Thoracic Spine Injury—IMR expert reviewer overturned UR denial of 6 acupuncture sessions, twice per week, for neck/back pain associated with applicant’s cervical disc disorder and cervical-thoracic spondylosis…

CM17-0063196, Lexis Advance

Total Knee Replacement—Custom Fit Total Knee (CFTK) Replacement—IMR expert reviewer upheld denial of total knee replacement using Custom Fit Total Knee (CFTK) Replacement, basing their decision on recommendations outside of the MTUS Guidelines, specifically…