California Workers' Comp Case Roundup (8/8/2018)

CALIFORNIA COMPENSATION CASES

Vol. 83 No. 7 July 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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Appellate Court Compensation Case

Tripplett (Larry) v. W.C.A.B., Lexis 

WCAB Jurisdiction—Professional Athletes—Signing of Employment Contract—Court of Appeal, affirming WCAB’s decision, held that evidence supported conclusion that applicant and his agent were outside of California when they signed applicant’s employment agreement with Indianapolis Colts, so that applicant failed to satisfy his burden of proving he was hired in California, when Court of Appeal found that...

Appellate Court Cases Not Originating With Appeals Board

Elguea (Artemio) v. Southern California Pizza Co., LLC, Lexis

Compromise and Release—Causes of Action Outside Workers’ Compensation Claims—Court of Appeal, affirming trial court’s judgment, held that compromise and release, which included addendum that stated, “This Compromise & Release also includes resolution of all claims arising under any state or federal law regulation, including the California Fair Employment and Housing Act … and any and all federal, state or local laws or regulations relating to wage and hour issues, breach of contract, discrimination, harassment, retaliation, public policy, wrongful discharge disability compensation and any other claims relating to or arising out of the relationship between Applicant and Defendant,” was properly executed by both parties and barred present lawsuit, when Court of Appeal found that...

Healthsmart Pacific, Inc. v. Golia, Lexis

Anti-SLAPP Motion—Malicious Prosecution Action—Court of Appeal, affirming trial court’s judgment of dismissal and order awarding attorney fees, held that plaintiffs failed to establish probability of prevailing on their malicious prosecution claims, as required to defeat anti-SLAPP motions pursuant to Code of Civil Procedure § 425.16(a) and (b), when Court of Appeal found that plaintiffs filed instant lawsuit for malicious prosecution against 30 patient defendants, who had dismissed their claims against plaintiffs in previous lawsuit, and 11 attorneys and three law firms that represented them, contending that no reasonable person in defendants’ position would have believed that plaintiffs...

Newland v. County of Los Angeles, Lexis 

Civil Actions—Injury AOE/COE—Coming and Going Rule—Required Vehicle Exception—Respondeat Superior—Court of Appeal, reversing trial court’s judgment and order denying defendant/employer’s motion for judgment notwithstanding verdict and directing trial court to enter new and different order granting defendant/employer’s motion for judgment notwithstanding verdict, held that there was no substantial evidence to support finding that employee was driving in course and scope of his employment at time of accident, because he was not required to use personal vehicle that day, so that vicarious liability via respondeat superior could not be extended to employer, when Court of Appeal found that...

Rosales v. Beckendam, Lexis 

Employment Relationships—Hirer’s Liability—Unlicensed Tree Trimmer’s Injury—Court of Appeal, affirming trial court’s grant of summary judgment in defendant’s favor, held that there were no triable issues of material facts in support of plaintiff’s claim that defendant was negligent in relation to plaintiff’s injury, when Court of Appeal found that...

Skidgel v. California Unemployment Insurance Appeals Board, Lexis 

In-Home Supportive Services—Close Family Member Service Provider—Unemployment Insurance Coverage—Court of Appeal, affirming trial court’s judgment, upheld validity of Matter of Caldera (2015) CUIAB Precedent Benefit Dec. No. P-B-507, which held that, because provider was close-family-member in-home-supportive-services provider under direct payment mode employed by recipient, provider was subject to exclusion under Unemployment Insurance Code § 631, and held that, because legislature, in enacting Unemployment Insurance Code § 683, intended to designate recipient of in-home supportive services as provider’s sole employer for purposes of unemployment insurance coverage, plaintiff/provider in instant case was not eligible for coverage by unemployment insurance, 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.

County of San Bernardino v. W.C.A.B. (Griffin, Gregory), Lexis 

Statute of Limitations—Tolling—WCAB rescinded WCJ’s finding that applicant’s claim of industrial injury to his ears while employed as fire captain during cumulative period ending on 3/21/2012 was barred by statute of limitations, and concluded that, regardless of whether applicant’s date of injury was more than one year prior to his filing of claim as determined by WCJ, statute of limitations was tolled in this case by defendant’s failure to provide applicant with claim form and notice of potential eligibility for workers’ compensation benefits pursuant to Labor Code § 5401 after receiving disability retirement memo from San Bernardino County Employees’ Retirement Association indicating that applicant...

County of San Bernardino v. W.C.A.B. (Nelson-Watkins, Tammy), Lexis

Statute of Limitations—Date of Injury—Knowledge of Compensable Injury—WCAB, in split panel decision, affirmed WCJ’s finding that applicant’s 11/10/2015 Application for Adjudication of Claim alleging that applicant suffered cumulative psychiatric injury during her employment as probation/correctional officer for defendant was not barred by one-year statute of limitations in Labor Code § 5405, when WCAB determined that applicant’s date of injury was 5/4/2016, which WCAB panel majority found was earliest possible date applicant could be charged with knowledge that her psychiatric disability was caused by her work for purposes of Labor Code § 5412, based on report of psychiatric panel qualified medical evaluator, and, although defendant asserted that WCAB should have found...

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

Temporary Disability—Exceptions to Two-Year Cap on Benefits—Amputations and Severe Burns—WCAB affirmed WCJ's finding that applicant who suffered industrial injuries to his left thumb, left hand, and skin while working as machinist on 8/30/2013, was entitled to additional temporary disability benefits above 104-week limit allowed under Labor Code § 4656(c)(2), when WCAB found that...

Wilson (David, Dec’d) v. W.C.A.B., Lexis

WCAB Jurisdiction—Effect of Employee’s Death on Payment of Compensation—Constitutional Challenges—WCAB affirmed WCJ’s determination that, pursuant to Labor Code § 4700, which provides for termination of permanent disability benefits upon employee’s death and allows for payment only of accrued and unpaid compensation, decedent’s heirs were entitled to equal shares of accrued and unpaid portions of decedent’s permanent disability award through date of decedent’s death but not beyond that date, and WCAB found that...

Other WCAB Decisions Denied Judicial Review

Dean (Faizah) v. W.C.A.B., Lexis

Permanent Disability—Substantial Evidence—WCAB’s Duty to Develop Record—WCAB affirmed WCJ’s order for further development of medical record on issue of applicant’s permanent disability by appointment of regular physician in field of orthopedic surgery pursuant to Labor Code § 5701, when report of orthopedic panel qualified medical evaluator...

Russell (Anthony) v. W.C.A.B., Lexis

Temporary Disability—Modified Duties—Termination for Cause—WCAB, reversing WCJ, held that applicant was not entitled to temporary disability indemnity for period following his termination from modified duty based on inappropriate and offensive comments made to fellow workers, when WCAB found that...

Silver v. W.C.A.B. (Diaz, Priscilla), Lexis

Liens—Medical Treatment—Burden of Proof—WCAB affirmed WCJ’s finding that lien claimant was not entitled to recover on lien for medical services provided to applicant between 2004 and 2011 for her alleged industrially-related fibromyalgia, when WCAB found that (1) there was insufficient evidence in record to support finding that lien claimant’s services were reasonable and necessary to cure or relieve from effects of applicant’s injury, when lien claimant’s...

Svorinich (Denis, Dec’d) v. W.C.A.B., Lexis

Petitions for Writ of Review—Dismissal of Untimely Petitions—Court of Appeal dismissed applicant’s petition for writ of review as untimely, when petition, which challenged WCAB’s finding that...

Valenzuela (Alfonso) v. W.C.A.B., Lexis

Penalties—Delay in Providing Medical Treatment—WCAB affirmed WCJ’s finding that defendant was not liable for penalties under Labor Code § 5814 for alleged delays in providing medical treatment and in serving medical reports and records on applicant’s counsel, when applicant failed...

Appeals Board Panel Decisions

Burr (James) v. The Best Demolition & Recycling Co., Inc., Lexis

Permanent Disability—Rating—Conclusive Presumption of Permanent Total Disability—Vocational Evidence—WCAB affirmed WCJ's findings that applicant incurred 88 percent permanent disability, after apportionment, as result of industrial back injury with additional compensable consequence injuries, and that applicant was not entitled to award of 100 percent permanent disability based on conclusive presumption in Labor Code § 4662(a)(3) or “in accordance with the fact” under Labor Code § 4662(b), when (1) agreed medical examiner concluded that applicant was medically paraplegic based on his bilateral lower extremity leg weakness, resulting in need for wheelchair, but WCAB noted that Labor Code § 4662(a)(3) requires “practically total paralysis,” which WCAB interpreted as equivalent to “near paraplegia,” and found that because applicant had no weakness in his upper extremities, his condition did not meet definition of “practically total paralysis” in Labor Code § 4662(a)(3), and, therefore, presumption of permanent total disability did not apply, and (2) WCAB found that...

Permanent Disability—Apportionment—WCAB affirmed WCJ's finding that applicant suffered 88 percent permanent disability, after apportionment, as result of industrial back injury with additional compensable consequence injuries and found that holding in Hikida v. W.C.A.B. (2017) 12 Cal. App. 5th 1249, 219 Cal. Rptr. 3d 654, 82 Cal. Comp. Cases 679, (where Court of Appeal found that disability resulting from medical treatment provided by employer is not apportionable) did not bar apportionment of applicant's permanent disability to non-industrial causes pursuant to Labor Code § 4663, when WCAB found that...

Cerna (Maria) v. Eckert Cold Storage Co., Lexis

Average Weekly Wages—Earning Capacity—Seasonal Employees—Unemployment Compensation—WCAB rescinded WCJ's finding that applicant packer's average weekly earnings for purposes of her permanent disability rate must be calculated using her gross seasonal earnings combined with her net benefits from unemployment collected during off-season, when WCAB found that...

Schuy (Marilyn) v. City of Yuba, Lexis

Permanent Disability—Apportionment—Preexisting Nonindustrial Conditions—WCAB, reversing WCJ in split panel opinion, held that opinion of orthopedic agreed medical examiner was substantial evidence to support 50 percent apportionment of applicant's permanent disability from cumulative low back injury incurred during her employment as police department records supervisor to nonindustrial causes, when WCAB...

Turner (Curtis) v. PT Gaming, LLC, Lexis

Medical-Legal Procedure—Ex Parte Communications—WCAB, denying removal in split panel opinion, affirmed WCJ's finding that applicant was not entitled to replacement panel qualified medical evaluator in internal medicine/cardiology, notwithstanding applicant's assertions that current panel qualified medical evaluator, Paul Grodan, M.D., engaged in improper ex parte communication with defendant by serving medical reports on defendant but failing to serve applicant, and that defendant improperly induced ex parte communication by sending advocacy letter to Dr. Grodan prior to Dr. Grodan's evaluation of applicant which requested service of his medical reports on defense counsel and claims adjuster, but did not request service on applicant, when WCAB panel...

Winokur (Peter) v. Monterey Financial Services, Lexis

Medical Treatment—Utilization Review—Independent Medical Review—WCAB affirmed WCJ's finding that WCAB had no jurisdiction to award applicant programmer who suffered industrial injury to his neck and psyche on 7/27/2000 medical treatment in form of acupuncture therapy based on rationale in Patterson v. The Oaks Farm (2014) 79 Cal. Comp. Cases 910 (Appeals Board significant panel decision), when defendant had previously authorized set number of acupuncture treatments for applicant but never authorized acupuncture therapy on ongoing basis, and subsequent requests for acupuncture by applicant's primary treating physician were denied by defendant's utilization review (UR), and WCAB reasoned that…

Medical Treatment—Independent Medical Review—Appeals—WCAB, affirming WCJ, found no sufficient grounds under Labor Code § 4610.6(h) to grant applicant's appeals of multiple independent medical review (IMR) determinations upholding utilization review (UR) modifications and denials of applicant's request for acupuncture therapy, despite applicant's assertions that insufficient medical records were provided to UR and IMR, and that IMR determinations were based on factual errors by reviewers in their assessment of how acupuncture improved applicant's functional capacity and reduced her use of opioids, when WCAB found that... 

Independent Medical Review Decisions

CM17-0249139, Lexis

Opioid Medications—Hydrocodone/Acetaminophen (Norco)—Chronic Pain—IMR reviewer overturned UR decision denying treating physician’s request for Norco 10/325mg #90, based on the 2016 MTUS chronic pain guidelines for opioid treatment. Here, 64-year old applicant suffered from chronic pain in her low back and right scapula, which decreased from level 7-8 out of 10 to 3 out of 10 with use of Norco. The documentation indicated that, in addition to decreased pain, applicant’s function and performance of ADLs increased with opioid use. In this case, the IMR reviewer found... [LexisNexis Commentary: This IMR decision is very detailed regarding the MTUS guidelines that must be satisfied for opioid treatment and will be particularly helpful to treating physicians in determining the documentation they must submit to support a request for treatment with opioid medication.]

CM17-0249217, Lexis

Opioid Medications—Percocet—Chronic Pain—IMR reviewer overturned UR decision denying treating physician’s request for Percocet 5/325mg #30, based on the 2016 MTUS chronic pain guidelines for opioid treatment. Here, 35-year old applicant suffered from lumbar spine disc degeneration causing lower back pain radiating to both legs. Applicant was treated with multiple medications, including Norco, which was ultimately denied by UR. UR’s denial of Norco prompted the treating physician’s request for Percocet to help with applicant’s pain. The IMR reviewer pointed out that the MTUS for chronic opioid use supports use of opioids for chronic pain conditions, especially those causing moderate to severe pain. According to the MTUS... [LexisNexis Commentary: This IMR decision is very detailed regarding the MTUS guidelines that must be satisfied for opioid treatment and will be particularly helpful to treating physicians in determining the documentation they must submit to support a request for treatment with opioid medication. The IMR reviewer also provided extensive explanation as to why he authorized the Percocet despite applicant’s positive THC test.]

CM18-0000100, Lexis

Opioid Medications—Belbuca—Chronic Pain—IMR reviewer overturned UR decision denying treating physician’s request for Belbuca MIS 150mcg #60, based on the 2016 MTUS chronic pain guidelines for opioid treatment. Here, 65-year old applicant was undergoing treatment for low back pain. Treatment included medications, urine drug screening and spinal cord stimulator. Applicant could not take NSAID medication due to a gastric ulcer and tried Norco with poor tolerance. Applicant reported significant pain relief and improved functionality with use of Belbuca. The IMR reviewer noted...[LexisNexis Commentary: This IMR decision is a good example of a case where the IMR reviewer deferred to the opinion of the treating physician. Further, although the IMR reviewer allowed the requested treatment, the reviewer noted that applicant’s functional improvement needed to be better documented, which is helpful advice for treating physicians who must provide sufficient documentation to support their requests for opioid treatment.]

CM18-0000854, Lexis

Opioid Medications—Ultram—Chronic Pain—IMR reviewer overturned UR decision denying treating physician’s request for a new prescription of Ultram 50mg #50, based on the 2017 MTUS opioid guidelines for subacute (1-3 months) and chronic pain (>3 months). Here, 59-year old applicant suffered from pain and limited range of motion in his right upper extremity and was working modified duty. Applicant’s medical treatment to date has included a Norco prescription, bracing, physical therapy and surgical intervention. The IMR reviewer noted that... [LexisNexis Commentary: This IMR decision addresses a new request for opioid medication as opposed to the more typical case where UR denies authorization for an ongoing prescription.]

CM18-0001648, Lexis

Opioid Antagonists—Evzio Autoinjector—Chronic Pain—IMR reviewer overturned UR decision denying treating physician’s request for Evzio 2mg/0.4ml pack #2, based on the 2016 MTUS chronic pain guidelines addressing Evzio (naloxone). Here, 64-year old applicant, a diabetic, complained of chronic pain in his low back, neck, right shoulder, left hand, and both knees, and had limited range of motion in his spine and right knee. Applicant did home exercise as prescribed by his physical therapist and had an ongoing prescription for Norco 10/325mg 1-3 times per day, which decreased his pain from a level 7-8 out of 10 to 3-4 out of 10. The IMR reviewer noted that... [LexisNexis Commentary: This IMR decision is interesting as it involves a prescription for an opioid antagonist, which can save lives in the case of an opioid overdose, and, in this case, applicant’s condition justifying the prescription was well documented by the treating physician and described in detail by the IMR reviewer in overturning UR’s denial of the medication.]

CM18-0001810, Lexis

Opioid Medications—OxyContin—Chronic Pain—IMR reviewer overturned UR decision denying treating physician’s request for OxyContin 10mg #180, based on the 2017 MTUS opioid guidelines for subacute (1-3 months) and chronic pain (>3 months). Here, 55-year old applicant had treated for chronic pain since suffering an industrial injury in 2010. Her treatment included a cervical fusion, medications, physical therapy, and acupuncture. A functional restoration program was offered but declined. The documents provided indicated that applicant’s medications decreased her pain from a level of 10 out of 10 to 6-7 out of 10. Medications prescribed included OxyContin 10mg #180 at a MED (morphine equivalent dose) of 90mg per day. In this case, the IMR reviewer noted... [LexisNexis Commentary: This IMR decision details the MTUS guidelines that must be satisfied for continuation of opioid treatment, and specifically addresses the necessity of monitoring and gradual weaning.]

Prescription Medications—Muscle Relaxants—Flexeril—IMR reviewer upheld UR denial of Flexeril 10mg #30, based on the 2016 MTUS guidelines for low back disorders and 2017 MTUS guidelines for chronic persistent pain and chronic pain syndrome. Applicant suffered from persistent neck and shoulder pain with radiculopathy and insomnia. Flexeril was prescribed based on applicant’s complaints of muscle spasms and her desire to use the medication at night. The IMR reviewer noted that... [LexisNexis Commentary: This IMR decision upheld the UR denial of a muscle relaxant that was not helping applicant’s muscle spasms.]

CM18-0001822, Lexis

Prescription Medications—NSAIDs—Celebrex—IMR reviewer upheld UR denial of treating physician’s request for Celebrex 200mg #30, based on the 2015 MTUS guidelines for knee pain and osteoarthritis. Here, 30-year old applicant had a history of low back and right knee pain. He had been taking Norco, which had been gradually decreased in dosage, and Celebrex. The guidelines recommend an assessment of gastrointestinal symptoms and cardiovascular risk when NSAIDs are used. The IMR reviewer noted that...[LexisNexis Commentary: This IMR decision illustrates a situation where an NSAID was denied on the basis that the applicable guidelines do not recommend prescribing a selective COX-2 medication over a non-selective medication.]

Opioid Medications—Hydrocodone/Acetaminophen (Norco)—Chronic Pain—IMR reviewer overturned UR decision denying treating physician’s request for Norco 10/325mg #60, based on the 2017 MTUS opioid guidelines for subacute (1–3 months) and chronic pain (>3 months). Applicant had a history of low back and knee pain and had been taking Norco, which was gradually decreased in dosage from #90 to #60, for approximately 6 months. Urine drug screening was performed, and applicant was being gradually weaned from the Norco. Although there were no identified issues of abuse or addiction, there was no documentation that the medication was providing clinically meaningful improvement in pain through documentation of VAS pain scores or specific examples of how the Norco was resulting in increased function or improved quality of life. The IMR reviewer observed... [LexisNexis Commentary: This IMR decision illustrates a situation where an opioid was approved even without adequate pain assessment and documentation of meaningful improvement when applicant had been taking Norco for approximately 6 months and was gradually being weaned according to the guideline recommendations.]

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