California Workers' Compensation Case Roundup (4/6/2019)

CALIFORNIA COMPENSATION CASES

Vol. 84 No. 3 March 2019

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

Johnson (Laurence) v. The Raytheon Co., Inc., Lexis Advance

Injury AOE/COE—Independent Contractors—Hirers’ Duties—Negligence—Court of Appeal, affirming summary judgments in defendants’ favor, held that plaintiff/applicant failed to raise triable issue of fact that any retained control by hirer/defendant Raytheon Co. affirmatively contributed to plaintiff injuries, and that independent contractor/defendant Systems XT hired by Raytheon owed no duty to plaintiff/applicant, when Court of Appeal found that...

Ruiz (Evangelina) v. Carter & Carter, APLC, Lexis Advance

Civil Actions—Injury AOE/COE—Burdens of Proof—Court of Appeal, affirming trial court’s summary judgment in defendant’s favor, held that plaintiff failed to present competent evidence to give rise to triable issue of fact as to whether preponderance of evidence established that she was injured at work, so that burden of proof never shifted to defendant, pursuant to Labor Code § 3708, to rebut allegations of alleged negligence, when Court of Appeal found that...

Appeals Board Significant Panel Decision

Villanueva (Ana) v. Teva Foods, Lexis Advance

Medical Liens—Stayed Liens—“Controlled” Entities—WCAB, in decision designed by WCAB as Significant Panel Decision, granted reconsideration, rescinded WCJ’s findings of fact and order, and returned case to trial level for further proceedings, clarified definition of entity “controlled” in Labor Code § 139.21(a)(3) by “an individual if the individual is an officer or a director of the entity, or a shareholder with a 10 percent or greater interest in the entity,” when WCAB panel found 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.

Athens Administrators v. W.C.A.B. (Perales, Miguel), Lexis Advance

Liens—Filing and Service—Lien Declarations—WCAB rescinded WCJ’s order disallowing lien filed on 12/5/2012 for medical treatment provided by lien claimant between 4/19/2012 and 12/6/2012, based on lien claimant’s failure to file Labor Code § 4903.8(d) lien declaration within timeframes specified in Labor Code § 4903.8(d) for pre-1/1/2013 liens, when WCAB found that...

International Capital Group v. W.C.A.B. (Walter, Sharon), Lexis Advance

Permanent Disability—Rating—Permanent Total Disability—WCAB affirmed WCJ’s finding that applicant, who sustained industrial injuries to her neck, right shoulder, psyche, lower back, and in form of headaches on 4/25/2007 while working as bookkeeper, suffered 100 percent permanent disability based on reporting of panel qualified medical evaluator...

Konstat v. W.C.A.B. (Aguilar, Alfredo), Lexis Advance

Liens—Medical Treatment—Medical Provider Networks—WCAB affirmed WCJ’s finding that lien claimant was not entitled to recovery of lien for psychiatric treatment provided to applicant for disputed psychiatric injury allegedly suffered by applicant as compensable consequence of 6/26/2010 orthopedic injuries, when WCAB found that...

Nieves (Jose) v. W.C.A.B., Lexis Advance

Permanent Disability—Rating—Rebuttal of Scheduled Rating—WCAB, in split panel decision, affirmed WCJ’s finding that applicant suffered 47 percent permanent disability after apportionment as result of industrial injury to multiple body parts while employed as backhoe operator during cumulative period ending on 8/30/2012, and found that vocational expert’s opinion that applicant lost 100 percent of his future earning capacity as consequence of 2012 injury did not constitute substantial evidence pursuant to principles in Ogilvie v. W.C.A.B.(2011) 197 Cal. App. 4th 1262 [129 Cal. Rptr. 3d 704, 76 Cal. Comp. Cases 624], LeBoeuf v. W.C.A.B. (1983) 34 Cal. 3d 234, 193 Cal. Rptr. 547 [666 P.2d 989, 48 Cal. Comp. Cases 587], and Contra Costa County v. W.C.A.B. (Dahl) (2015) 240 Cal. App. 4th 746 [193 Cal Rptr. 3d 7, 80 Cal. Comp. Cases 1119], to rebut scheduled rating because vocational expert’s reporting failed to establish that applicant was not amenable to vocational rehabilitation; Commissioner Sweeney, dissenting, would rescind WCJ’s determination...

Permanent Disability—Apportionment—Prior Awards—WCAB affirmed WCJ’s apportionment under Labor Code § 4664(b) of applicant’s permanent disability resulting from 2012 orthopedic and hernia injuries to prior award of permanent disability obtained by applicant for 2004 hernia injury, despite applicant’s assertion that defendant did not prove overlap of disabilities to support apportionment under Labor Code § 4664(b), when WCAB concluded that…

Other WCAB Decisions Denied Judicial Review

Broadfoot (John) v. W.C.A.B., Lexis Advance

Psychiatric Injury—Predominant Cause Standard—Substantial Evidence—WCAB held that there was substantial evidence to support WCJ’s finding that applicant, while employed as deputy sheriff during cumulative period ending 4/28/2016, did not sustain compensable psychiatric injury, and, additionally, that there was no basis to further develop medical record, when panel qualified medical evaluator...

Galleria Market v. W.C.A.B. (Hernandez Castillo, Ruben), 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 because there was no final order or award of WCAB, when WCAB had granted...

Mann (Sunita) v. W.C.A.B., Lexis Advance

Injury AOE/COE—Post-Termination Claims—WCAB affirmed WCJ’s findings that applicant’s claim for 4/20/2017 industrial injury was reported post-termination and was, therefore, barred pursuant to Labor Code § 3600(a)(10), and that, even had claim not been barred...

Appeals Board Panel Decisions

Hirschberger (Ted) v. Stockwell Harris Woolverton and Muehl, Lexis Advance

Permanent Disability—Apportionment—Conclusive Presumption of Total Disability—WCAB rescinded WCJ's finding that applicant suffered 66 percent permanent disability after apportionment from industrial psychiatric injury incurred during his employment as attorney from 11/30/2007 through 4/22/2009, which resulted in aggravation of his nonindustrial Parkinson's disease, and instead held that applicant sustained industrial brain injury resulting in permanent mental incapacity due to Parkinson's disease that was conclusively presumed to be permanently totally disabling under Labor Code § 4662(a)(4) and was not subject to apportionment, when WCJ declined to apply conclusive presumption to applicant's injury based on onset of Parkinson's disease prior to industrial injury and insidious nature of disease, but WCAB found...

Juarez (Raul) v. EB Design, Inc., Lexis Advance

Medical-Legal Procedure—Exchange of Nonmedical Information—Time Deadlines—WCAB, granting removal, rescinded WCJ's order allowing new qualified medical evaluator panel in orthopedic surgery and striking report of orthopedic panel qualified medical evaluator Gustav Salkinder, M.D., due to communications that allegedly violated Labor Code § 4602.3 based on WCJ's finding that defendant served its proposed advocacy letter and attached exhibits on applicant 24 days before serving Dr. Salkinder, and WCAB returned matter to trial…

Independent Medical Review Decisions

CM18-0220357, Lexis Advance

Kyphoplasty—Spinal Fractures—IMR reviewer overturned UR denial of treating physician’s request for Kyphoplasty at T12 and L2 based on Non-MTUS ODG guidelines, which recommend Kyphoplasty as an option for patients with pathologic fractures due to vertebral body neoplasms, or patients who have significant unremitting pain and functional deficits from osteoporotic compression fractures and do not responded to other medical interventions. Here, 64-year old applicant was working modified duty and undergoing treatment for significant chronic low back pain as well as pain in the thoracic spine and cervicalgia following a 2018 fall. He was diagnosed with compression fractures in the lumbar spine and thoracic spine, and conservative therapy, including medications and bracing, failed. The IMR reviewer concluded...

Epidural Steroid Injections—Lumbar Spine—IMR reviewer overturned UR denial of treating physician’s request for lumbar transforaminal epidural steroid injection at applicant’s left and right L4-5, based on the 2016 MTUS guidelines and Non-MTUS ODG guidelines for low back/thoracic spine injections. The MTUS guidelines recommend epidural steroid injections as an “option” for treatment of acute or subacute radicular pain. Its purpose is to provide temporary partial pain relief and allow some activity while awaiting further improvement in pain and function. The IMR reviewer noted...

Chiropractic Treatment—Cervical Spine—IMR reviewer overturned UR denial of treating physician’s request for 6 sessions of chiropractic treatment based on the 2016 MTUS guidelines and the Non-MTUS ODG guidelines addressing chiropractic care for neck and upper back conditions. The MTUS guidelines recommend chiropractic manipulation for short-term relief of cervical pain or as a component of an active treatment program focusing on active exercises for acute cervicothoracic pain. According to the guidelines…[LexisNexis Commentary: This IMR decision is helpful because it involves an applicant who suffered a recent back injury and continues to work modified duty while aggressively pursuing treatment for his condition. Conservative treatment was not working, and the treating physician requested different treatment modalities to help with applicant’s pain and restore function. These treatments included acupuncture, which was authorized by UR, Kyphoplasty, steroid injections, and chiropractic treatment. The IMR reviewer provides a very comprehensive discussion of the guideline criteria for each of the treatments requested and why they were met in this case.]

CM18-0226073, Lexis Advance

Platelet-Rich Plasma (PRP) Injection—Shoulder/Wrist Injury—IMR reviewer upheld UR denial of treating physician’s request that 50-year old applicant with industrial injuries to her neck, shoulders and wrist be referred to an orthopedic surgeon for right shoulder and right wrist PRP injection. Per the Non-MTUS ODG guidelines, upon which the IMR reviewer relied, PRP injections for the shoulder are not recommended. The IMR reviewer found that...[LexisNexis Commentary: The discussion regarding the efficacy of PRP injection in this IMR is interesting. Although the treatment is not supported by evidence-based studies, the American Academy of Orthopaedic Surgeons indicates that there is no downside to the PRP injection but for the fact that it may not be covered by insurance.]

Chiropractic Treatment—Cervical Spine—IMR reviewer overturned UR denial of treating physician’s request for 6 sessions of chiropractic treatment based on the 2016 MTUS guidelines addressing chiropractic care for the cervical and/or thoracic spine. The MTUS guidelines recommend chiropractic manipulation for short-term relief of cervical pain or as a component of an active treatment program focusing on active exercises for acute cervicothoracic pain. According to the guidelines...[LexisNexis Commentary: This IMR decision is helpful because it provides guidance as to how to evaluate the effectiveness of chiropractic treatment and determine whether continued treatment is recommended.]

CM18-0233254, Lexis Advance

Acupuncture and Chiropractic Treatment—Shoulder Pain—IMR reviewer overturned UR denial of treating physician’s request for 6 sessions of acupuncture and 6 chiropractic sessions to treat 57-year old applicant with bilateral shoulder pain, restricted range of motion and decreased strength. The IMR reviewer noted that the 2016 MTUS guidelines and Non-MTUS ODG guidelines recommend acupuncture for shoulder conditions, including rotator cuff tendinopathies, impingement syndrome, post-surgical rehabilitation, and general shoulder pain when other treatments have failed. The MTUS guidelines recommend a trial of 6 acupuncture sessions, whereas the ODG guidelines recommend a trial of 3-4 sessions and additional sessions with evidence of functional improvement. Applicant here had previously undergone acupuncture with pain relief and functional improvement. Because the treating physician provided documentation supporting the treatment request, the IMR reviewer found that the request for 6 sessions of acupuncture was medically necessary. With respect to the chiropractic treatment request, the IMR reviewer...[LexisNexis Commentary: This IMR decision is very helpful in providing guidance to the community as to what a physician needs to provide in the RFA to get both acupuncture and chiropractic treatments certified, and how to adequately comply with the requirements of the MTUS guidelines. Here, the treating physician recommended both acupuncture and chiropractic treatment to combat applicant’s chronic pain and functional deficits, and both modalities are fully discussed by the IMR reviewer.]