Apportionment and Fibromyalgia: California Workers' Comp Case Roundup (12/8/2011)

Apportionment and Fibromyalgia: California Workers' Comp Case Roundup (12/8/2011)

CALIFORNIA COMPENSATION CASES

Vol. 76 No. 11 November 2011

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

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FEATURED CASE OF THE MONTH – Apportionment and Fibromyalgia:

Larry Salit, Petitioner, v. Workers' Compensation Appeals Board et al., Respondents, 2011 Cal. App. Unpub. LEXIS 8848; 76 Cal. Comp. Cases 1129

Permanent Disability—Apportionment—Substantial Evidence—Court of Appeal, annulling WCAB decision, held that WCAB’s finding that applicant did not sustain industrial injury in form of irritable bowel syndrome (IBS) was not supported by substantial evidence, and that WCAB’s apportionment findings related to applicant’s fibromyalgia injury were not supported by substantial evidence, when Court of Appeal found that applicant testified that he experienced gastrointestinal problems and had been diagnosed and treated for IBS, that this testimony was neither contradicted nor impeached, that applicant’s treating physician diagnosed applicant with IBS and in his report described symptoms and causes of IBS and reported ratable factors of permanent disability due to IBS, that defense qualified medical evaluator also reported that applicant had symptoms compatible with IBS, and that this medical evidence was uncontradicted, that WCAB based its rating instructions concerning applicant’s fibromyalgia on orthopedic surgeon’s findings, but that orthopedic surgeon did not discuss fibromyalgia in his report, so that, to extent that WCAB based its instructions on that physician’s report, they were not based on substantial evidence, that, even if WCAB based its instructions on defense qualified medical evaluator’s report, which did discuss applicant’s fibromyalgia, the additional 15.5-percent apportionment awarded by WCAB was not supported by that physician’s report and, thus, was not supported by substantial evidence.

CONTENTS OF THIS ISSUE: Lexis.com subscribers can link to the cases to read the complete headnotes, etc.

Appellate Court Compensation Cases

Larry Salit, Petitioner, v. Workers' Compensation Appeals Board et al., Respondents, 76 Cal. Comp. Cases 1129

Permanent Disability—Apportionment—Substantial Evidence—Court of Appeal, annulling WCAB decision, held that WCAB’s finding that applicant did not sustain industrial injury in form of irritable bowel syndrome (IBS) was not supported by substantial evidence, and that WCAB’s apportionment findings related to applicant’s fibromyalgia injury were not supported by substantial evidence, when Court of Appeal found that…

State Compensation Insurance Fund, Petitioner, v. Workers' Compensation Appeals Board and James Dorsett, Respondents, 76 Cal. Comp. Cases 1138

Permanent Disability—Apportionment—Court of Appeal, annulling WCAB’s order denying reconsideration of WCJ’s award of 100-percent permanent disability from specific and cumulative trauma injuries to same body part, held that applicant’s specific injury and cumulative trauma injury must each be rated separately, when Court of Appeal found that…

Supreme Court Case Not Originating With Appeals Board

Rebecca Howell, Plaintiff and Appellant, v. Hamilton Meats & Provisions, Inc., Defendant and Respondent, 52 Cal. 4th 541; 257 P.3d 1130; 129 Cal. Rptr. 3d 325; 76 Cal. Comp. Cases 1147

Medical Treatment—Collateral Source Rule—California Supreme Court, reversing judgment of court of appeal, held that injured plaintiff whose medical expenses are paid through private insurance may recover as economic damages no more than amounts paid by plaintiff or his or her insurer for medical services received or still owing at time of trial, thereby in no way abrogating or modifying California collateral source rule, because negotiated rate differential, i.e., discount that medical providers offer insurer, is not benefit provided to plaintiff in compensation for his or her injuries and, therefore, does not come within rule, when Supreme Court found that …

Federal Circuit Court Opinion of Related Interest

Roosevelt Kairy, Larry Brown, Wayne Dickson, Drake Osmun, Harjinder Singhdietz, Plaintiffs-appellants, v. SuperShuttle InternationaL, SuperShuttle Franchise Corporation, Does 1 Through 20, Inclusive, Defendants-appellees, 660 F.3d 1146; 76 Cal. Comp. Cases 1176

Employment Relationships—Federal Court Jurisdiction—California Public Utilities Commission—United States Court of Appeals, Ninth Circuit, reversing grant by United States District Court, Northern District of California, of defendant’s motion to dismiss plaintiffs’ state law claims on grounds that it lacked subject matter jurisdiction, held that federal district court had subject matter jurisdiction to determine whether defendant’s drivers were employees or independent contractors under California law, when appellate court found that…

Appeals Board En Banc Decision

Tsegay Messele, Applicant v. Pitco Foods, Inc., California Insurance Company, Defendants, 76 Cal. Comp. Cases 1187; 2011 Cal. Wrk. Comp. LEXIS 172

Qualified Medical Evaluator Requests—Timeliness—WCAB en banc, on its own motion, granted reconsideration of its prior en banc decision, Messele v. Pitco Foods, Inc. (2011) 76 Cal. Comp. Cases 956 (Appeals Board en banc opinion), issued notice of intention to modify its prior decision to hold that …

Digests of WCAB Decisions Denied Judicial Review

Editorial Board members Francis V. Clifford, Susan Hamilton, James R. Libien, and Neil R. Robinson recommended the following writ denied cases for summarization in this issue.

James A. Bishop, Petitioner v. Workers' Compensation Appeals Board, Schindler Elevator Company/Schindler Elevator Corporation, Zurich American Insurance Company, administered by Broadspire Services, Respondents, 76 Cal. Comp. Cases 1192; 2011 Cal. Wrk. Comp. LEXIS 156

Medical Treatment—Reasonableness and Necessity—Utilization Review—WCAB panel majority, rescinding WCJ's finding, held that there was not substantial evidence to support WCJ's award of medical treatment, including housekeeping, pool, and gardening services, to applicant with specific and cumulative trauma injuries to back, knees, and gastrointestinal system, which was based on reports of treating physician and agreed medical evaluator and on defendant's alleged failure to conduct timely utilization review of requests for services, when WCAB panel majority found that…

Kathleen Brezensky (Widow), Chester Brezensky (Dec'd), Petitioners v. Workers' Compensation Appeals Board, Lockheed Martin, PSI, administered by ESIS, Respondents, 76 Cal. Comp. Cases 1201; 2011 Cal. Wrk. Comp. LEXIS 173

Death Benefits—Statute of Limitations—WCAB, reversing WCJ, held that widow’s claim for death benefits stemming from her husband’s 8/31/2009 death more than 240 weeks following 5/1/2002 industrial injury was barred by Labor Code § 5406(c) statute of limitations, and that widow’s lack of knowledge that …

Connecticut Indemnity Insurance Company, insurer for Delicato Vineyards, Petitioner v. Workers' Compensation Appeals Board, Gary Barnett, Respondents, 76 Cal. Comp. Cases 1204; 2011 Cal. Wrk. Comp. LEXIS 174

Temporary Disability—Five-Year Statute of Limitations—WCAB held that applicant/maintenance and refrigeration mechanic who sustained admitted industrial injuries to both knees and hips on 5/28/2002 was entitled to additional temporary total disability for period 4/25/2006 through 1/21/2009, when applicant filed petition to reopen for new and further disability within five years from date of injury, and WCAB found…

Permanent Disability—Apportionment—WCAB held that there was no basis for apportionment of 70-percent permanent disability awarded to applicant/maintenance and refrigeration mechanic who sustained admitted industrial injuries to both knees and hips on 5/28/2002, when WCAB found that…

David Dykes, Petitioner v. Workers' Compensation Appeals Board, E & J Gallo Winery, PSI, Respondents, 76 Cal. Comp. Cases 1210; 2011 Cal. Wrk. Comp. LEXIS 175

Psychiatric Injury—Burden of Proof—WCAB, reversing WCJ’s finding, held that applicant/winery worker with back injury failed to meet his burden of proving that he sustained compensable injury to his psyche pursuant to Labor Code § 3208.3(b)(1), when WCAB found that …

Gallo Glass Company, PSI, Petitioner v. Workers' Compensation Appeals Board, James Hernandez, Respondents, 76 Cal. Comp. Cases 1214; 2011 Cal. Wrk. Comp. LEXIS 159

Permanent Disability—Apportionment—Overlap—WCAB affirmed WCJ’s findings that, based on agreed medical evaluator's opinion and parties’ stipulations, applicant incurred 57.5-percent permanent disability after apportionment as result of cumulative industrial injuries to his shoulders, neck, back, and right lower extremity through 7/4/2001, and that…

Granite State Insurance Company/Chartis (formerly AIG), Petitioner v. Workers' Compensation Appeals Board, Rose International Market, (Delmys Martinez), Respondents, 76 Cal. Comp. Cases 1219; 2011 Cal. Wrk. Comp. LEXIS 161

Insurance Coverage—Estoppel to Deny Coverage—WCAB held that carrier was estopped from claiming that its workers' compensation insurance policy issued to applicant’s employer had been canceled prior to applicant’s date of injury, thereby denying coverage, when WCAB found that…

Erma Lester, Petitioner v. Workers' Compensation Appeals Board, State of California/Board of Equalization, State Compensation Insurance Fund, adjusting agency, Respondents, 76 Cal. Comp. Cases 1224; 2011 Cal. Wrk. Comp. LEXIS 162

Permanent Disability—Apportionment—Successive Injuries—WCAB panel majority rescinded WCJ's finding that applicant's specific and cumulative trauma injuries to her bilateral upper extremities, back, and in form of fibromyalgia combined to cause 100-percent permanent disability, and held that…

Gregory McBee, Petitioner v. Workers' Compensation Appeals Board, American Design Roofing, Inc., California Insurance Guarantee Association, administered by Broadspire, on behalf of Legion Insurance Company, in liquidation, Respondents, 76 Cal. Comp. Cases 1230; 2011 Cal. Wrk. Comp. LEXIS 164

WCAB Jurisdiction—New and Further Disability—Five-Year Statute of Limitations—WCAB held that WCJ had no jurisdiction to award applicant/smog technician temporary disability benefits for period of disability commencing more than five years after he sustained injuries to his lumbar spine, left hip, and left knee, even though…

Karen Reff, Petitioner v. Workers' Compensation Appeals Board, Union of American Hebrew Congregation, Star Insurance Company/Meadowbrook Insurance Company, Respondents, 76 Cal. Comp. Cases 1233; 2011 Cal. Wrk. Comp. LEXIS 165

Medical Treatment—Lifetime Award—WCAB, reversing WCJ, held that defendant was not liable for lifetime award of medical treatment for applicant’s pre-existent, non-industrial and dormant common variable immunodeficiency (CVID), when …

Regents of the University of California, PSI, Petitioner v. Workers' Compensation Appeals Board, Virginia Siegel, Respondents, 76 Cal. Comp. Cases 1237; 2011 Cal. Wrk. Comp. LEXIS 169

Permanent Disability—Rating—Conclusive Presumption of Total Disability—WCAB held that applicant/teacher who suffered industrial injuries to her left minor shoulder and bilateral upper extremities was entitled to an unapportioned award of 100-percent permanent disability, when WCAB found that…

Dann Peter Shubin, Petitioner v. Workers' Compensation Appeals Board, Southwest Airlines, PSI, administered by Cambridge Pasadena, Respondents, 76 Cal. Comp. Cases 1241; 2011 Cal. Wrk. Comp. LEXIS 166

Injury AOE/COE—Going and Coming Rule—WCAB, reversing WCJ, held that applicant's claims for injuries to his head, back, shoulders, and upper and lower extremities were barred by “going and coming” rule, when injuries were incurred in motor vehicle accident while applicant, who lived in Pasadena and was employed as pilot for Southwest Airlines, was traveling from his domicile airport in Oakland to friend's home after being released from duty for scheduled, uncompensated nine-hour “reserve rest period,” and WCAB found that…

Sompo Japan Insurance Company of America (formerly known as Yasuda Fire & Marine Insurance Company, c/o Broadspire, a Crawford Co.), insurer for Canon Business Solutions, Inc., Petitioner v. Workers' Compensation Appeals Board, Gerald Lark, Respondents, 76 Cal. Comp. Cases 1247; 2011 Cal. Wrk. Comp. LEXIS 170

Temporary Disability—Credit—Severance Agreements—WCAB, awarding applicant business machine repair person temporary disability for injury AOE/COE to applicant’s back and left shoulder, with credit for time worked and wages earned, if any, based on applicant’s testimony and medical record, held that defendant was not entitled to credit against temporary disability for payments defendant made pursuant to severance agreement between applicant and defendant employer, when WCAB found that…

State Compensation Insurance Fund, insurer for Central Cartage Company, Petitioner v. Workers' Compensation Appeals Board, Don Keith Transportation, insured by AARLA, (Bill Dunehew), Respondents, 76 Cal. Comp. Cases 1251; 2011 Cal. Wrk. Comp. LEXIS 171

Credit—Overpayment of Permanent Disability—WCAB, in split decision rescinding WCJ’s award of credit, held that defendant was not entitled to credit under LC 4909 for permanent disability advances paid to applicant for his 3/31/2003 industrial injury against permanent disability indemnity owed in connection with his cumulative injury through 6/30/2007, when applicant's permanent disability was apportioned among three dates of injury (8/16/2000, 3/31/2003, and 6/30/2007) pursuant to SB 899 and decision in Benson v. W.C.A.B. (2009) 170 Cal. App. 4th 1535, 89 Cal. Rptr. 3d 166, 74 Cal. Comp. Cases 113, resulting in smaller monetary award to applicant than if permanent disabilities from all three injuries were combined, and WCAB found that…

Visalia Unified School District, PSI, administered by Keenan and Associates, Petitioner v. Workers' Compensation Appeals Board, Heidi Marshall, Respondents, 76 Cal. Comp. Cases 1255; 2011 Cal. Wrk. Comp. LEXIS 177

Permanent Disability—Apportionment—Multiple Injuries—WCAB affirmed WCJ's finding that applicant/teacher incurred 78-percent permanent disability as result of specific injuries on 10/29/2004 to her low back, neck, and right elbow, and on 2/2/2005 to her neck, both upper extremities, low back, and right toe, and that, based on AME’s opinion, there was no justification for apportionment of …

Other WCAB Decisions Denied Judicial Review

Marcus Cazares, Petitioner v. Workers' Compensation Appeals Board, Norman Bell Enterprises, Inc., State Compensation Insurance Fund, Respondents, 76 Cal. Comp. Cases 1262; 2011 Cal. Wrk. Comp. LEXIS 157

Petitions for Writ for Review—Dismissal—Court of Appeal dismissed petition for writ of review because petition was devoid of merit and …

William Davis, Petitioner v. Workers' Compensation Appeals Board, Asbury Environmental Services, State Compensation Insurance Fund, Respondents, 76 Cal. Comp. Cases 1264; 2011 Cal. Wrk. Comp. LEXIS 168

Injury AOE/COE—WCAB held that applicant mechanic sustained injury AOE/COE on 10/17/2001 to his psyche, head, eyes, chest, spine, left tibia, and ankles, based on stipulations of parties as to …

Permanent Disability—Rating—Apportionment—WCAB awarded applicant 93-percent permanent disability, without apportionment and with life pension and credit for previous payments, for 10/17/2001 injury AOE/COE to his psyche, head, eyes, chest, spine, left tibia, and ankles, based on …

Permanent Disability—Medical Treatment—WCAB held that applicant did not sustain any permanent disability or need for further medical treatment for head injury, concussion, headaches, or post-traumatic head syndrome, based on…

Jane Dowds, Petitioner v. Workers' Compensation Appeals Board, Long Beach Unified School District, PSI, administered by Tristar Risk Management, Respondents, 76 Cal. Comp. Cases 1266; 2011 Cal. Wrk. Comp. LEXIS 158

Permanent Disability—Application of 1997 Schedule for Rating Permanent Disabilities—WCAB affirmed WCJ's finding that 1997 Schedule for Rating Permanent Disabilities applied to rate permanent disability stemming from applicant counselor's cumulative trauma industrial injuries from 1/83 through 5/2004 to internal and gastrointestinal systems (irritable bowel syndrome) and cardiovascular system (hypertension), when WCAB found that …

Placido Gaspar, Petitioner v. Workers' Compensation Appeals Board, Ingersoll-Rand/Hussman Corporation, PSI, ACE American Insurance Company, administered by ESIS, Respondents, 76 Cal. Comp. Cases 1267; 2011 Cal. Wrk. Comp. LEXIS 160

Injury AOE/COE—WCAB held that applicant punch and brake press operator sustained admitted injury AOE/COE to both knees from 8/3/2002 through 8/3/2004 but, based on…

Permanent Disability—Rating—WCAB awarded applicant 18-percent permanent partial disability for industrial injury to both knees, based on…

Medical Evidence—WCAB held that it did not err in denying applicant's request for re-evaluation by agreed medical evaluator, when WCAB found that…

Los Angeles Unified School District, PSI, Sedgwick CMS v. Workers' Compensation Appeals Board, Robert S. Frederick, Respondents, 76 Cal. Comp. Cases 1269; 2011 Cal. Wrk. Comp. LEXIS 163

Temporary Disability—WCAB, awarding temporary total disability from 6/23/2009 to present and continuing for applicant teacher's 5/9/2009 industrial injury to his left shoulder and cervical spine, held that applicant's temporary disability rate should be based on earnings of substitute teachers and remanded for parties to develop record on issue of earnings of substitute teachers, when WCAB found that …

Moises Mendoza, Petitioner v. Workers' Compensation Appeals Board, BLAS Packing, California Insurance Guarantee Association, administered by Intercare Insurance Services, on behalf of Paula Insurance Company, in liquidation, Respondents, 76 Cal. Comp. Cases 1271; 2011 Cal. Wrk. Comp. LEXIS 167

Temporary Disability—WCAB, denying applicant’s request for temporary total disability benefits from 7/5/2003 through 11/10/2008 on psychiatric basis, found that applicant loader sustained injury AOE/COE on 12/1/99 to his head, jaw, mouth, teeth, and psyche and awarded temporary total disability benefits on physical basis (for vertigo) from 10/19/2000 to 7/5/2003, based on …

Omelet & Waffle Shop, Tower Group Companies (formerly Specialty Underwriters Alliance), Petitioners v. Workers' Compensation Appeals Board, Francisco Arizmendi, Respondents, 76 Cal. Comp. Cases 1273; 2011 Cal. Wrk. Comp. LEXIS 176

Petitions for Reconsideration—Final Orders—WCAB dismissed defendants’ petition for reconsideration of WCJ’s order, which vacated submission of case, appointed regular physician under Labor Code § 5701 to evaluate applicant's claimed orthopedic injuries, and took matter off calendar, when WCAB held that …

Removal to WCAB—WCAB denied defendants’ petition for removal to WCAB, holding that …

Kristian Von Ritzhoff, Petitioner v. Workers' Compensation Appeals Board, Ogden Entertainment Services, et al., Respondents, 76 Cal. Comp. Cases 1275; 2011 Cal. Wrk. Comp. LEXIS 178

Petitions for Writ of Mandate/Mandamus—Court of Appeal dismissed applicant’s petition for writ of mandate/mandamus requesting Court of Appeal to order WCAB to respond to two petitions filed by applicant, when WCAB did not …