Workers' Compensation

California: Top 25 Noteworthy Panel Decisions (January-June 2015)

LexisNexis has picked the top “noteworthy” panel decisions issued by the California Workers’ Compensation Appeals Board during the period January through June 2015. The list features a number of split-panel decisions, including bonus cases addressing the validity of untimely independent medical review determinations and a decision discussing the ability of professional athletes playing on out-of-state teams to pursue injury claims in California, as well as a case in which the Court of Appeal has granted writ of review to address constitutional issues surrounding the independent medical review process and a rare decision where the WCAB describes discovery restrictions applicable in sexual harassment and assault cases. These, in addition to the other cases listed, provide a look at some evolving issues of interest currently before the Appeals Board.

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CALIFORNIA INSURANCE GUARANTEE ASSOCIATION

Stephanie Ellis, Applicant v. Superior Grocers, Patriot Risk CIGA, Defendants, 2015 Cal. Wrk. Comp. P.D. LEXIS 185 (lexis.com), 2015 Cal. Wrk. Comp. P.D. LEXIS 185 (Lexis Advance)

California Insurance Guarantee Association—Other Insurance—Stipulations—WCAB, in split panel opinion, held that CIGA, on behalf of insolvent carrier Ullico, was liable for applicant’s cumulative industrial injury based upon prior stipulation in compromise and release agreement executed by Ullico and carrier with joint and several liability, Care West, regarding apportionment of liability (26 percent to Care West and 74 percent to Ullico), but determined that CIGA was not liable for outstanding lien claims, when WCAB found that, although CIGA does not have liability where there is “other insurance” liable for part of applicant’s cumulative trauma claim pursuant to Insurance Code § 1063.1(c)(9), insurers are not jointly and severally liable when they have entered into stipulation as to apportionment of liability between them, and, additionally, CIGA was bound by its stipulation to liability even if it would not be liable absent stipulation; however, since compromise and release agreement did not contain stipulation to apportionment of liability with respect to outstanding liens, defendants’ liability remained joint and several, and Care West, as other solvent insurance, is solely liable for payment of liens.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 2.84[3][a]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 3, § 3.33[3].]

EVIDENCE

Patricia Aguilar, Applicant v. Harris Ranch Beef Company, PSI, adjusted by Tristar Risk Management, Defendants, 2015 Cal. Wrk. Comp. P.D. LEXIS -- (lexis.com), 2015 Cal. Wrk. Comp. P.D. LEXIS -- (Lexis Advance)

Evidence—Sexual Harassment Cases—WCAB rescinded WCJ’s order allowing defendant to depose applicant on her history of sexual harassment and assault and, instead, limited discovery to medical records only, when WCAB reasoned that in claims such as applicant’s involving sexual harassment, assault or battery, Labor Code § 3208.4 requires that defendant set forth specific facts showing good cause for discovery regarding past sexual history such that defendant’s right to discovery and due process is balanced with applicant’s right to privacy, as determined on case by case basis, and that if good cause is in fact shown, requested discovery must be provided in least intrusive way possible, and WCAB found that, here, defendant sought to depose applicant on past sexual history prior to obtaining any evidence establishing that such discovery was directly relevant to applicant’s psychological state and, therefore, discovery request was premature, that good cause requirement was not satisfied simply by defendant’s argument that applicant’s sexual history may be relevant to causation and apportionment, and that, although defendant did not meet its burden of proof to compel applicant’s deposition testimony of questions related to past sexual abuse, Labor Code § 3208.4 did not shield applicant from having to prove her case under Labor Code § 3208.3(b) by establishing by preponderance of evidence that actual events of employment were predominant as to all causes combined of her psychiatric injury.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 24.45, 26.06[13]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 10, § 10.04[3][d], Ch. 15, § 15.45[5], Ch. 16, § 16.45[1].]

JURISDICTION

Roberto Barrero, Applicant v. Knudsen Dairy Corporation, Fireman’s Fund Insurance Company, Defendants, 2015 Cal. Wrk. Comp. P.D. LEXIS 177 (lexis.com), 2015 Cal. Wrk. Comp. P.D. LEXIS 177 (Lexis Advance)

WCAB Jurisdiction—Enforcement of Prior Medical Award—Compensable Consequence Injury—WCAB, reversing WCJ, held that applicant computer operator’s cardiovascular injury caused by heart attack resulting from 5/23/2013 back surgery authorized by defendant as part of applicant’s prior medical treatment award, was compensable consequence of applicant’s 3/31/75 industrial back injury, and that applicant was entitled to medical treatment for cardiovascular injury even though he did not file petition to reopen within five years from date of injury, when WCAB found that, contrary to defendant’s assertion, enforcement of medical award in this case did not equate to adding new body part to disability award, which would be prohibited more than five years from date of injury under Labor Code §§ 5410 and 5804 and Nickelsberg v. W.C.A.B. (1991) 54 Cal. 3d 288, 285 Cal. Rptr. 86, 814 P.2d 1328, 56 Cal. Comp. Cases 476, that treatment of heart attack caused, in part, by applicant’s industrially-related back surgery, and resulting cardiovascular damage was within scope of prior medical award, and that WCAB had continuing jurisdiction to enforce prior award.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 24.13, 31.02, 31.03[2], [2], 31.05; Rassp & Herlick, California Workers’ Compensation Law, Ch. 14, § 14.07.]

James Cooley, Applicant v. Hibshman Trading Corp., Markel Insurance Company, Defendants, 2015 Cal. Wrk. Comp. P.D. LEXIS 66 (lexis.com), 2015 Cal. Wrk. Comp. P.D. LEXIS 66 (Lexis Advance)

WCAB Jurisdiction—Collateral Estoppel—WCAB, affirming WCAB in split panel opinion, held that applicant was collaterally estopped from re-litigating issue of employment before WCAB, and was bound by adverse determination of labor commission, addressing applicant’s wage claim, that applicant did not show employment by defendant, when applicant, despite having right to request de novo trial, did not challenge labor commission’s determination denying wage claim due to non-employment, thereby rendering determination final, and majority WCAB panel found that applicant’s failure to complete available review process before labor commission precluded her from litigating identical issue at WCAB, based on doctrine of collateral estoppel; Chairwoman Caplane, dissenting from majority panel opinion, concluded that WCJ incorrectly applied doctrine of collateral estoppel to bar applicant from litigating issue of employment before WCAB, because (1) labor commission decision did not include express finding that applicant was not defendant’s employee, but rather found that applicant “performed work” for defendant while at defendant’s store to “learn the business,” (2) wage issue addressed by labor commission was different than issue of industrial injury before WCAB, requiring application of different processes and standards to determine question of employment, (3) labor commission made no finding that applicant was “independent contractor” or other person excluded from definition of “employee” under workers’ compensation law, (4) receipt of wages is not necessary to find employment for purposes of workers’ compensation, (5) in contrast to cases involving wage disputes, injured employees have no right to bring civil action against employer as workers’ compensation is exclusive remedy, (6) due process is denied by lack of notice to employee that adverse decision by labor commission could preclude workers’ compensation action, (7) decisions by labor commission on appeal are given no effect by civil courts, unlike WCAB decisions, which are not subject to de novo hearing before trial court or automatic right to appeal, (8) labor commissioner did not apply presumption of employment as required in workers’ compensation cases pursuant to Labor Code § 3357, (9) determination of whether individual is “employed” is not dependent upon whether individual is in pay status at time of injury because such analysis confuses issues of industrial causation with issues involving wage and hour law, and (10) arrangement between applicant and his employer to have applicant “learn the business” while performing services for employer’s benefit, as found by labor commission, constituted implied employment contract.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 21.08[2][d]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 13, § 13.01[3].]

LIENS

Francisco Velasquez, Applicant v. Fiesta Mexican Market, GMIS-Springfield Insurance Company, Defendants, 2015 Cal. Wrk. Comp. P.D. LEXIS 239 (lexis.com), 2015 Cal. Wrk. Comp. P.D. LEXIS 239 (Lexis Advance)

Liens—Procedural Rights and Duties—Lien Conferences and Trials—WCAB rescinded WCJ’s order issued at lien conference disallowing lien claimant Frontline Medical Associates, Inc.’s lien for medical treatment outside defendant’s medical provider network (MPN), when WCJ failed to follow required procedures set forth in 8 Cal. Code Reg. § 10770.1 of either setting matter for lien trial or submitting matter for decision based on listed exhibits since no witnesses were going to testify, and did not prepare and serve Minutes of Hearing and Summary of Evidence listing all exhibits submitted or admitted into evidence by parties as required under 8 Cal. Code Reg. § 10770.1(j) and Hamilton v. Lockheed Corporation (2001) 66 Cal. Comp. Cases 473 (Appeals Board en banc opinion), and WCAB found that WCJ’s determination that lien trial would be waste of time and resources because defendant provided notice of MPN such that there was no evidence to support treatment outside MPN did not justify disregarding Frontline’s right to proceed to trial and creation of proper record, that, even with limited record at time of lien conference, there may have been disputed issues or rights to adjudicate at trial, that Frontline was entitled to findings and explanation as to whether defendant’s MPN notice was compliant with applicable rules and whether there was evidence to support treatment outside MPN, and that Frontline was entitled to due process, including opportunity to present documentary evidence or witness testimony with WCAB rules evenly applied.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 30.22[2]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 17, § 17.113.]

MEDICAL-LEGAL PROCEDURE

Fernando Martinez, Applicant v. Santa Clarita Community College District, Defendant, 2015 Cal. Wrk. Comp. P.D. LEXIS 2 (lexis.com), 2015 Cal. Wrk. Comp. P.D. LEXIS 2 (Lexis Advance)

Medical-Legal Procedure—Assignment of Qualified Medical Evaluator Panel—Request of Different Specialties—WCAB, denying applicant custodian’s petition for removal, affirmed WCJ’s finding that applicant, who alleged that he incurred cumulative injury to his back, circulatory system, psyche, nervous system, gastrointestinal system, and in the forms of hypertension and diabetes during period 6/24/2011 through 6/14/2012, was entitled to panel qualified medical evaluation in orthopedics, but was not currently entitled to panel qualified medical evaluations in specialties of psychiatry and internal medicine as applicant had requested, when WCAB found that applicant improperly requested all three qualified medical evaluator panels at same time, rather than completing initial panel qualified medical evaluation pursuant to 8 Cal. Code Reg. § 31.7, before requesting evaluations in other specialties, that because applicant prematurely requested additional panels in different specialties, he could not use Form 31.7 to request other panels in other specialties as required under 8 Cal. Code Reg. § 31.7, that applicant also failed to comply with requirements of Labor Code § 4062 by requesting psychiatric and internal medicine qualified medical evaluator panels without objecting to medical findings regarding psychiatric and internal injury complaints prior to requesting panels in these specialties, and that since applicant was treating with orthopedist at time he requested three panel qualified medical evaluations in different specialties and objected only to orthopedic findings, it was appropriate to assign qualified medical evaluator panel only in orthopedics.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 1.11[3][g], 22.11[7], 26.03[4]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 16, § 16.54[7], Ch. 19, § 19.37.]

Angelica Villasenor, Applicant v. Community Action Partnership of San Bernardino County, United States Fire Insurance, administered by Crum & Forster, Defendants, 2015 Cal. Wrk. Comp. P.D. LEXIS 31 (lexis.com), 2015 Cal. Wrk. Comp. P.D. LEXIS 31 (Lexis Advance)

Medical-Legal Procedure—Panel Qualified Medical Evaluators—Conflict of Interest—WCAB, affirming WCJ, held that reports of panel qualified medical evaluator, Dr. Chodakiewitz and all reports from panel qualified medical evaluator’s referrals were inadmissible, when Dr. Chodakiewitz disqualified himself as panel qualified medical evaluator by assuming role of treating physician and failing to disclose conflict of interest in violation of 8 Cal. Code Reg. § 41.5(d), and WCAB found that fact that Dr. Chodakiewitz was not designated as treating physician did not mean that he was not acting as treating doctor when he requested authorization based upon Labor Code § 4600 and 8 Cal. Code Reg. § 9785(b) for occipital blocks, that, contrary to applicant’s assertion, treatment requested by Dr. Chodakiewitz was not for diagnostic purposes, as doctor did not make any diagnosis based upon occipital blocks but rather prescribed blocks as treatment to relieve pain, that all reports generated based on referrals from Dr. Chodakiewitz are similar to “fruit of the poisoned tree” and were inadmissible due to Dr. Chodakiewitz’s conflict of interest, and that defendant did not waive objection to Dr. Chodakiewitz’s reports because 8 Cal. Code Reg. § 31.5, allowing for replacement panel if qualified medical evaluator has disqualifying conflict of interest, read in conjunction with 8 Cal. Code Reg. § 41.5, does not provide time limit to object when doctor violates 8 Cal. Code Reg. § 41.5.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 1.112[2][e]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 1, § 1.113[4].]

Rigoberto Noriega, Applicant v. Best Western Town & Country, Defendant, 2015 Cal. Wrk. Comp. P.D. LEXIS 8 (lexis.com), 2015 Cal. Wrk. Comp. P.D. LEXIS 8 (Lexis Advance)

Medical-Legal Procedure—Medical Examiner Reporting Timeframes—Replacement Panels—WCAB, in split panel opinion, denied applicant’s petition for removal challenging WCJ’s order striking replacement qualified medical evaluator panel issued by Medical Director, when qualified medical evaluator’s report was untimely under 8 Cal. Code Reg. § 38(b) because qualified medical evaluator failed to serve report on applicant or applicant’s attorney within 30-day timeframe, and applicant properly objected to timeliness prior to receiving report, however, applicant did not request replacement panel until after he received report and determined that report was unfavorable to him, and majority WCAB panel concluded that since applicant did not request replacement panel until after receiving report, objection based on timeliness was defective under 8 Cal. Code Reg. § 31.5(a)(12), which provides for replacement panel request if requesting party objects to report on grounds of lateness prior to date evaluator served report, reflects policy that parties should not be allowed to decide whether allegedly untimely qualified medical evaluator report is favorable before deciding whether to object to timeliness of report, and disfavors “doctor shopping.”  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 1.11[3][g], 22.11[4], [6], 22.13, 26.03[4]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 16, § 16.54[6], [14], Ch. 19, § 19.37.]

MEDICAL PROVIDER NETWORKS

Shirley Lescallett, Applicant v. Wal-Mart, insured by ACE American Insurance, administered by York Risk Services, Defendants, 2015 Cal. Wrk. Comp. P.D. LEXIS 196 (lexis.com), 2015 Cal. Wrk. Comp. P.D. LEXIS 196 (Lexis Advance)

Medical Provider Networks—Access Standards—Primary Treating Physicians—WCAB, in split panel opinion, affirmed WCJ’s finding that applicant who suffered industrial injury to her neck, right shoulder and right knee on 7/6/2010 was not obligated to select primary treating physician from within defendant’s MPN, when applicant selected pain management specialist as her primary treating physician but defendant’s MPN had no such specialists within 15 mile or 30 minute radius of applicant’s home or workplace, and WCAB concluded that if injured employee chooses to select as his or her primary treating physician specialist whose specialty is appropriate to treat common injuries experienced by injured employees based on type of occupation or industry in which employee is engaged, defendant’s MPN will satisfy access standards in 8 Cal. Code Reg. § 9767.5 if MPN includes at least three physicians in medical specialty whose medical offices are within 15 mile or 30 minute radius of applicant’s residence or workplace, that, here, applicant’s choice of pain management specialist was appropriate to treat her injury, and that since defendant’s MPN does not meet access standards to accommodate applicant’s choice, applicant is entitled to select pain management specialist as her primary treating physician outside defendant’s MPN; in reaching its decision, majority WCAB panel rejected defendant’s position that applicant’s selection of pain management “specialist” as her primary treating physician triggered application of access standard in 8 Cal. Code Reg. § 9767.5 pertaining to specialists, which requires that specialist be within 30 miles or 60 minutes of applicant’s home or workplace, and WCAB reasoned that Labor Code § 4616.3(d) states that “[s]election by injured employee of a treating physician and any subsequent physicians shall be based on physician’s specialty or recognized expertise in treating the particular injury or condition in question,” that while MPN regulations define “primary” and “secondary” physician, they do not distinguish between “primary treating physicians” and “specialists” nor do they provide sufficient guidance as to type of medical specialty reasonably expected for each type of occupation and industry since this varies in each case, that access standard applicable to specific physician chosen by injured employee depends on whether physician is employee’s primary physician who is selected by employee to be responsible for his or her ongoing care or secondary physician who provides some treatment but is not primarily responsible for continuing management of care, regardless of type of medical specialty they practice, because every physician that provides MPN treatment is required to have specialty or expertise necessary to provide treatment for employee’s particular condition, and that, consistent with Labor Code § 4616.3(d) and 8 Cal. Code Reg. §§ 9767.5(a) and 9785(a), which instruct both employer and employee that primary treating physician should be appropriate specialist or expert, relevant regulations defining “primary treating physician” do not preclude applicant’s selection of pain management physician as her primary treating physician; Commissioner Lowe, dissenting from majority panel, found that if applicant chooses specialist as her primary treating physician, defendant’s MPN will satisfy access standard in 8 Cal. Code Reg. § 9767.5 if MPN includes at least three physicians in that specialty located within 30 mile or 60 minute radius of applicant’s residence or workplace, because, Commissioner Lowe reasoned, while applicable statutory and regulatory scheme for implementation of MPNs do not preclude injured worker from selecting specialist as his or her primary treating physician, regulations require specialist who has been selected as primary treating physician to operate under rules applicable to specialists, and conclusion reached by WCJ and majority would render access standards for specialists irrelevant.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 5.03[1]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 4, § 4.12[4].]

MEDICAL TREATMENT

Loretta McFarland, Applicant v. The Permanente Medical Group, Inc., adjusted by Athens Administrators, Inc., Defendants, 2015 Cal. Wrk. Comp. P.D. LEXIS 23 (lexis.com), 2015 Cal. Wrk. Comp. P.D. LEXIS 23 (Lexis Advance)

Medical Treatment—Utilization Review—Independent Medical Review—WCAB, affirming WCJ in split panel opinion, held that pursuant to Dubon v. World Restoration, Inc. (2014) 79 Cal. Comp. Cases 1298 (Appeals Board en banc opinion) (Dubon II), WCAB lacked jurisdiction over treating physician’s request for medical treatment in form of epidural steroid injections to treat applicant registered nurse’s industrial back injury, when defendant timely issued utilization review (UR) non-certification denying requested treatment based on Medical Treatment Utilization Schedule guidelines in 8 Cal. Code Reg. § 9792.25(b) and (c); WCAB also held that it had no authority to determine constitutionality of Independent Medical Review statutes as sought by applicant based on her inability to appeal noncompliant UR determination.  [Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 5.02, 22.05[6]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 4, §§ 4.10, 4.11.]

Medical Treatment—Utilization Review—Independent Medical Review—Rebuttal of Medical Treatment Utilization Review Schedule—Commissioner Sweeney, dissenting from majority panel decision denying jurisdiction over applicant’s appeal from adverse utilization review (UR) determination based on Medical Treatment Utilization Schedule (MTUS) guidelines, proposed that applicant should be allowed to rebut MTUS guidelines before WCAB, when Labor Code § 4604.5 provides that MTUS guidelines are presumptively correct but does not provide procedure for determining whether scientific medical evidence establishes that variance from guidelines is reasonably required to cure or relieve injured worker from effects of industrial injury and, while majority WCAB panel concluded that procedure for making this determination found in Labor Code §§ 4610.5 and 4610.6 Independent Medical Review (IMR) process is consistent with public policy favoring that medical professionals determine medical necessity issues, Commissioner Sweeney maintained that whether party has rebutted presumption affecting burden of proof is a legal question that must be determined by court of law, as such determination requires weighing of facts and evidence, that Labor Code §§ 4604 and 5304, together, give WCAB jurisdiction to determine medical treatment guideline controversies arising under Labor Code § 4604.5, independent from procedures in Labor Code § 4610.5 and Dubon v. World Restoration, Inc. (2014) 79 Cal. Comp. Cases 1298 (Appeals Board en banc opinion) (Dubon II), which apply to UR/IMR process for resolving “medical necessity” issues based on established guidelines, that UR decision here denied applicant’s medical treatment based upon MTUS, and that, therefore, applicant should be entitled to present evidence that she rebutted MTUS before the WCAB.  [Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 5.02, 22.05[6]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 4, §§ 4.10, 4.11.]

Norberto Arredondo, Applicant v. Tri-Modal Distribution Services, Inc., State Compensation Insurance Fund, Defendants, 2015 Cal. Wrk. Comp. P.D. LEXIS 209 (lexis.com), 2015 Cal. Wrk. Comp. P.D. LEXIS 209 (Lexis Advance)

Medical Treatment—Utilization Review—Independent Medical Review—WCAB, in split panel opinion, affirmed WCJ’s finding that WCAB lacked jurisdiction to review timely utilization review (UR) non-certification of requested medical treatment based on Administrative Director’s alleged failure to timely complete independent medical review (IMR), when majority WCAB panel concluded that, although WCJ misconstrued Labor Code § 4610.6(d) in finding that IMR must issue within 30 days of receipt of request as he did not account for extra 15 days allowed to provide supporting documentation to IMR organization, WCJ correctly found that IMR determination was valid even if it did not issue within statutory timeframes because, WCAB reasoned, (1) Legislature requires medical treatment disputes to be evaluated through IMR in order to assure that medical necessity is objectively and uniformly determined based on Medical Treatment Utilization Schedule (MTUS) and other recognized standards of care, (2) IMR determination is governmental action performed under auspices and control of Administrative Director, distinctly different from UR where defendant is obligated to perform within statutory and regulatory framework, (3) Legislature provided guidelines in Labor Code § 4610.6(d), administrative in nature, addressing when IMR determination should issue, but it enacted no provisions that invalidate IMR determination if determination is not made within Labor Code § 4610.6(d) timeframes, (4) given statutory design of IMR, Labor Code § 4610.6(d) timeframes are directory and not mandatory, and, therefore, IMR determination is valid even if it does not issue within specified timeframes, (5) untimeliness is not listed as ground for IMR appeal in Labor Code § 4610.6(h), and (6) because no grounds for appeal of IMR determination under Labor Code § 4610.6(h) were established at trial, IMR determination in this case was final and binding on applicant; Commissioner Sweeney, dissenting from majority panel, concluded that time requirements in Labor Code § 4610.6(d) must be construed as mandatory in order to uphold basic constitutional and statutory provisions of workers’ compensation law that require prompt provision of medical care, and opined that such construction is consistent with mandatory language in Labor Code § 4610.6(d) stating that IMR organization shall complete IMR within specified time frames, and with application of other time periods in Labor Code § 4610.6, that same remedy should be applied to untimely IMR as is applied to untimely and invalid UR pursuant to Dubon v. World Restoration, Inc. (2014) 79 Cal. Comp. Cases 1298 (Appeals Board en banc opinion) (Dubon II), that there is no basis for construing timeframes applicable to injured workers and claims administrators with respect to UR as mandatory while making timeframes applicable to Administrative Director for issuance of IMR determinations directory, and that if IMR organization does not issue determination within times mandated by Labor Code § 4610.6(d), medical treatment dispute is no longer covered by UR provisions in Labor Code § 4610.5 and, as such, medical necessity should be determined by WCAB based upon substantial evidence.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 5.02, 22.05[6]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 4, §§ 4.10, 4.11.]

Stacey Saunders, Applicant v. Loma Linda University Medical Group, PSI, Defendant, 2015 Cal. Wrk. Comp. P.D. LEXIS 311 (lexis.com), 2015 Cal. Wrk. Comp. P.D. LEXIS 311 (Lexis Advance)

Medical Treatment—Utilization Review—Independent Medical Review—WCAB, in split panel opinion, rescinded its prior decision [see Saunders v. Loma Linda Univ. Med. Group, 2014 Cal. Wrk. Comp. P.D. LEXIS 659 (Appeals Board noteworthy panel decision)] in which it found that WCJ had no jurisdiction pursuant to Dubon v. World Restoration, Inc. (2014) 79 Cal. Comp. Cases 1298 (Appeals Board en banc opinion) (Dubon II), to award medical treatment which had been denied by timely utilization review (UR), and majority WCAB panel held that independent medical review (IMR) determination issued following applicant’s appeal from UR appeared on its face to be untimely under Labor Code § 4610.6(d), and that untimely IMR, like untimely UR, is invalid such that WCJ has jurisdiction to decide medical treatment dispute based on substantial evidence, when majority panel concluded that time requirements in Labor Code § 4610.6(d) must be construed as mandatory in order to uphold basic constitutional and statutory provisions of workers’ compensation law, as well as purpose of timeframes for completion of IMR, that require prompt provision of medical care to injured workers, and reasoned that such construction is consistent with plain and mandatory language in Labor Code § 4610.6(d) stating that IMR organization shall complete IMR within specified time frames, and with application of other time periods in Labor Code §§ 4610.5 and 4610.6, that same remedy should be applied to untimely IMR as is applied to untimely and invalid UR pursuant to Dubon II, and that there is no basis for construing timeframes applicable to injured workers and claims administrators with respect to UR as mandatory while making timeframes applicable to Administrative Director for issuance of IMR determinations directory; Commissioner Zalewski, dissenting from majority opinion, concluded that IMR determination in this case is valid even if it did not issue within timeframes in Labor Code § 4610.6(d) because, Commissioner Zalewski reasoned, (1) Legislature requires medical treatment disputes to be evaluated through IMR in order to assure that medical necessity is objectively and uniformly determined based on Medical Treatment Utilization Schedule (MTUS) and other recognized standards of care, (2) IMR determination is governmental action performed under auspices and control of Administrative Director, distinctly different from UR where defendant is obligated to perform within statutory and regulatory framework, (3) Legislature provided guidelines in Labor Code § 4610.6(d) addressing when IMR determination should issue, but it enacted no provisions that invalidate IMR determination if determination is not made within Labor Code § 4610.6(d) timeframes, (4) untimeliness is not listed as ground for IMR appeal in Labor Code § 4610.6(h); and (5) given expressed legislative intent and statutory design of IMR, Labor Code § 4610.6(d) timeframes are directory and not mandatory.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 5.02, 22.05[6]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 4, §§ 4.10, 4.11.]

Daniel Ramirez, Applicant v. State of California, Department of Health Care Services, State Compensation Insurance Fund, Defendants, 2015 Cal. Wrk. Comp. P.D. LEXIS 261 (lexis.com), 2015 Cal. Wrk. Comp. P.D. LEXIS 261 (Lexis Advance) [Applicant’s petition for writ of review was subsequently granted on May 7, 2015, sub nom. Ramirez v. Workers’ Comp. Appeals Bd., Third Appellate District, C078440]

Medical Treatment—Utilization Review—Independent Medical Review—WCAB dismissed applicant’s petition for reconsideration of WCJ’s order taking matter off calendar, because WCJ’s order was not final order, when matter was taken off calendar after applicant appealed adverse independent review (IMR) determination and requested hearing based solely on constitutional grounds, which WCAB had no authority to hear or rule on, and on his disagreement with WCAB’s decision in Dubon v. World Restoration, Inc. (2014) 79 Cal. Comp. Cases 1298 (Appeals Board en banc opinion) (Dubon II), which WCAB was bound to follow; although there was no final order issued subject to reconsideration, WCAB granted removal on its own motion so applicant would have final order for purposes of appellate review, and amended WCJ’s order taking matter off calendar to provide, “Applicant wants to raise constitutional issues only.  The WCAB has no authority to declare Independent Medical Review (IMR) unconstitutional.  Therefore, applicant’s IMR appeal is DENIED and this matter is ORDERED TAKEN OFF CALENDAR” [Note: Applicant’s petition for writ of review was subsequently granted on May 7, 2015, sub nom. Ramirez v. Workers’ Comp. Appeals Bd., Third Appellate District, C078440].  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 1.11[3][g], 5.02, 22.05[6], 26.03[4]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 4, §§ 4.10, 4.11, Ch. 19, § 19.37.]

Diane Garibay-Jimenez, Applicant v. Santa Barbara Medical Foundation Clinic, Zurich American Insurance, Defendants, 2015 Cal. Wrk. Comp. P.D. LEXIS 130 (lexis.com), 2015 Cal. Wrk. Comp. P.D. LEXIS 130 (Lexis Advance)

Medical Treatment—Independent Medical Review—Appeals—WCAB rescinded WCJ’s order denying applicant’s appeal from independent medical review (IMR) determination upholding utilization review (UR) denial of recommended surgical treatment in form of left ulnar nerve decompression, when applicant challenged IMR determination based on failure of both UR and IMR physicians to review reports of agreed medical examiners who recommended surgery, and WCAB found that WCJ erroneously concluded that applicant failed to establish statutory basis for her appeal because applicant neglected to provide agreed medical examiners’ reports in response to IMR request for medical records, that it was defendant’s mandatory obligation under Labor Code § 4610.5(l) and 8 Cal. Code Reg. § 9792.10.5, not applicant’s, to forward all relevant medical records to IMR, and defendant failed to comply with obligation, that applicant has no statutory or regulatory obligation to submit medical records to IMR, that defendant’s failure to provide relevant medical records to IMR organization constitutes grounds for appeal of IMR determination under Labor Code § 4610.6(g) and (h) because, by failing to provide IMR reviewer with all material and relevant records, determination of IMR organization is in excess of its powers, and that given defendant’s failure to comply with statutory obligation to provide records in this case, WCJ’s finding that it would be unfair to require defendant to pay for another IMR determination was not valid basis to deny appeal.  [Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 5.02, 22.05[6]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 4, § 4.11.]

Minh Ly, Applicant v. Loral Space Systems, California Insurance Guarantee Association for Reliance National Indemnity Company, in liquidation, Defendants, 2015 Cal. Wrk. Comp. P.D. LEXIS 138 (lexis.com), 2015 Cal. Wrk. Comp. P.D. LEXIS 138 (Lexis Advance)

Medical Treatment—Utilization Review—Expedited Hearings—WCAB, in split panel opinion, granted applicant’s petition for removal and rescinded WCJ’s Order taking case off calendar instead of proceeding to expedited hearing and addressing applicant’s contention that defendant improperly denied authorization for prescription medication Lyrica, when WCJ issued Order based only on unwritten findings, without receiving any evidence into record and without allowing applicant to be heard, based on her conclusion that defendant’s utilization review (UR) denial of treatment was timely and that she was, therefore, without jurisdiction to address treatment dispute pursuant to Dubon v. World Restoration, Inc. (2014) 79 Cal. Comp. Cases 1298 (Appeals Board en banc opinion) (Dubon II), but majority WCAB panel held that applicant had right to expedited hearing on medical treatment issues under Labor Code § 5502(b)(1), including on issue of whether defendant improperly submitted prescription for Lyrica to UR pursuant to Patterson v. The Oaks Farm (2014) 79 Cal. Comp. Cases 910 (Appeals Board significant panel decision), that in order to determine if requested treatment is subject to UR/independent medical review (IMR) procedures in Labor Code §§ 4610 and 4610.5, if reasonable medical treatment is being denied, and whether holding in Patterson applies, evidentiary findings must be made and a proper record created even if it is ultimately determined that issues identified by applicant are subject only to UR/IMR as urged by WCJ, that panel in Patterson expressly held that use of expedited hearing to address medical treatment issues raised by applicant is authorized by Labor Code § 5502(b)(1), and that WCJ’s failure to allow applicant to be heard after applicant filed Declaration of Readiness to Proceed and failure to create meaningful evidentiary record was contrary to due process; Commissioner Brass, dissenting from majority panel, opined that conducting expedited hearing in this case is not necessary to determine whether holding in Patterson applies to request for prescription medication, which involves ongoing review and evaluation and, consequently, expedited hearing is waste of judicial resources, and that since applicant did not contend defendant’s UR was untimely, WCJ has no authority to determine whether requested treatment is medically necessary.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 5.02, 22.05[6], 26.02[1]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 4, §§ 4.10, 4.11, Ch. 16, § 16.04[3].]

Jesus Rodriguez, Applicant v. Air Eagle, Inc., California Insurance Guarantee Association, Sedgwick CMS for Legion Insurance In Liquidation, Defendants, 2015 Cal. Wrk. Comp. P.D. LEXIS 3 (lexis.com), 2015 Cal. Wrk. Comp. P.D. LEXIS 3 (Lexis Advance)

Medical Treatment—Utilization Review—Home Health Care—WCAB, amending WCJ’s decision, held that defendant’s 11/6/2013 utilization review (UR) denial of applicant’s request for home health care services for 24 hours per day, seven days per week on psychiatric basis was untimely and, therefore, invalid under Dubon v. World Restoration, Inc. (2014) 79 Cal. Comp. Cases 1298 (Appeals Board en banc opinion) (Dubon II), when WCAB found that (1) although defendant’s UR decision was issued nine days after receipt of Dr. Farshid Hekmat’s 10/28/2013 request for authorization (RFA) and was timely within time requirements for regular UR decision pursuant to former 8 Cal. Code Reg. § 9792.9.1, operative 10/1/2013, Dr. Hekmat checked box on RFA for “imminent and serious threat,” thereby raising issue of whether RFA was subject to timelines for expedited review, requiring UR decision to be issued within 72 hours of receipt of information reasonably necessary to make determination, (2) defendant’s claims adjuster and defendant’s UR reviewer testified that RFA was correctly filled out and was complete when it was received, (3) purpose of box check is to alert reviewer that separate timeframe for decision applies, and there is nothing in 8 Cal. Code Reg. § 9792.9.1 as it existed in 2013 that allows a defendant to override requesting physician’s designation of request as “imminent and serious,” (4) under circumstances, Dr. Hekmat’s RFA should have been treated as expedited request, and (5) request for further information regarding duration of requested home health care services sent by UR reviewer to defendant on 11/1/2013 did not meet 72-hour timeframe, making UR untimely.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 5.02, 22.05[6]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 4, § 4.10.]

Medical Treatment—Home Health Care—WCAB, in split panel opinion, held that applicant was entitled to home health care services by psychiatric technician or Licensed Vocational Nurse from 10/22/2013, and continuing indefinitely, when WCAB found that applicant met his burden to prove that 9/26/2013 report of Dr. Farshid Hekmat was a prescription under Labor Code § 4600(h) and Neri Hernandez v. Geneva Staffing, Inc. dba Workforce Outsourcing, Inc. (2014) 79 Cal. Comp. Cases 682 (Appeals Board en banc opinion), that defendant received Dr. Hekmat’s prescription on 10/7/2013, and under Labor Code § 4600(h) was liable for treatment from 14 days before date prescription was received, that since parties stipulated that issue was whether applicant was entitled to home health care services beginning on 10/22/2013 and defendant received prescription more than 14 days before that date, defendant was potentially liable for home health care on first day of stipulated period, and that applicant met burden of proving with substantial medical evidence that requested home health care services were reasonable and necessary to cure and relieve effects of his industrial injury.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 5.04[6]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 4, § 4.05[3].]

Jose Everett, Applicant v. Santa Clara Valley Transportation Authority, PSI, Administered By Tristar, Defendants, 2015 Cal. Wrk. Comp. P.D. LEXIS 100 (lexis.com), 2015 Cal. Wrk. Comp. P.D. LEXIS 100 (Lexis Advance)

Medical Treatment—Employee’s Right to Choose Physician—Reasonable Geographic Area—WCAB, amending WCJ’s decision, held that applicant’s medical treatment within defendant’s medical provider network (MPN) was not limited to reasonable geographic area under Labor Code § 4600(c), which requires employee to treat within reasonable geographic area unless employer has established MPN, when WCAB did not believe that Legislature, in amending Labor Code § 4600(c), intended to alter pre-2004 mandate that all medical treatment be provided in reasonable geographic area, but WCAB was constrained by plain meaning of Labor Code § 4600(c) and could not infer that Legislature meant to apply “reasonable geographic area” requirement to treatment within MPN, especially since Labor Code § 4600(c) was explicitly amended to exclude employee’s covered by MPN from requirement.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 5.07[6], 20.02[2]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 4, § 4.13.]

PERMANENT DISABILITY

Christopher Rice, Applicant v. City of Jackson, PSI, Adjusted by York Services Group, Inc., Defendants, 2015 Cal. Wrk. Comp. P.D. LEXIS 57 (lexis.com), 2015 Cal. Wrk. Comp. P.D. LEXIS 57 (Lexis Advance) [Defendant’s petition for writ of review was subsequently granted on April 30, 2015, sub nom. City of Jackson v. Workers’ Comp. Appeals Bd. (Rice), 3rd Appellate District, CO78706]

Permanent Disability—Apportionment—Substantial Evidence—WCAB rescinded WCJ’s award of 20 percent permanent disability to applicant police officer with cumulative neck injury ending on 4/22/2009, after 49 percent apportionment to applicant’s “personal history including genetic issues,” and ordered WCJ to issue unapportioned award of permanent disability, when WCAB conclude that opinion of panel qualified medical evaluator, Dr. Sloane Blair, upon which WCJ relied to find apportionment, did not constitute substantial evidence under Escobedo v. Marshalls (2005) 70 Cal. Comp. Cases 604 (Appeals Board en banc opinion), because Dr. Blair’s apportionment to “genetic” factors was not permissible, as finding causation based on “genetics” opens door to apportionment of disability to impermissible, immutable factors, and WCAB found that relying upon applicant’s genetic makeup led Dr. Blair to apportion causation of applicant’s injury rather than causation of his disability, and that, without proper apportionment to specific identifiable factors, WCAB could not rely upon Dr. Blair’s determination to justify apportioning 49 percent of applicant’s disability to nonindustrial factors.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 4.02[3][c], 8.05[1]-[3], 8.07, 32.03A; Rassp & Herlick, California Workers’ Compensation Law, Ch. 7, §§ 7.12, 7.40[1], 7.42[1], [2], 7.43; The Lawyer’s Guide to the AMA Guides and California Workers’ Compensation, Chs. 4, 5, 9.]

Heidi Kirkwood, Applicant v. Verizon California, Inc., American Home Assurance Company, Administered By Sedgwick Claims Management Services, Inc., Defendants, 2015 Cal. Wrk. Comp. P.D. LEXIS 134 (lexis.com), 2015 Cal. Wrk. Comp. P.D. LEXIS 134 (Lexis Advance) [WCAB’s decision was affirmed in Kirkwood v. Verizon California, Inc., 2015 Cal. Wrk. Comp. P.D. LEXIS 257 (lexis.com), 2015 Cal. Wrk. Comp. P.D. LEXIS 257 (Lexis Advance)]

Permanent Disability—Rating—Permanent Total Disability—WCAB rescinded WCJ’s award of 100 percent permanent disability, without apportionment, to applicant operator who suffered industrial injury to her right upper extremity and psyche from 8/1/2006 to 8/1/2007, and returned matter to WCJ to determine how much of applicant’s overall disability was attributable to preexisting, nonindustrial left arm injury, how much was attributable to industrial cumulative injury and whether or not Subsequent Injuries Benefit Trust Fund (SIBTF) had any liability (which WCAB determined, in interest of judicial economy, should be considered contemporaneously with permanent disability and apportionment to avoid later re-litigation of issues by SIBTF), when WCAB found that even though applicant lost use of both hands, conclusive presumption of 100 percent permanent disability in Labor Code § 4662(a) did not apply because applicant did not suffer injury to both of her hands as result of industrial injury, that applicant’s left arm injury (amputation below elbow) predated cumulative industrial injury in this case and preexisting disability cannot be combined with current industrial injury to justify application of conclusive presumption of permanent total disability, that holdings in Kaiser Foundation Hospitals v. W.C.A.B. (Dragomir-Tremoureux) (2006) 71 Cal. Comp. Cases 538 (writ denied) and Regents of the Univ. of Calif. V. W.C.A.B. (Siegel) (2011) 76 Cal. Comp. Cases 1237 (writ denied), as relied upon by applicant, did not apply here, and that vocational expert evidence was insufficient to rebut scheduled rating for applicant’s right upper extremity injury or support finding of 100 percent permanent disability “in accordance with the fact” pursuant to Labor Code § 4662(b) and analysis in 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 Ogilvie v. W.C.A.B. (2011) 197 Cal. App. 4th 1262, 129 Cal. Rptr. 3d 704, 76 Cal. Comp. Cases 624, because vocational expert disregarded impact of applicant’s preexisting, nonindustrial amputation in analyzing applicant’s diminished future earning capacity and vocational feasibility.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 8.02[3], [4][a], 32.03A; Rassp & Herlick, California Workers’ Compensation Law, Ch. 7, §§ 7.11, 7.12; The Lawyer’s Guide to the AMA Guides and California Workers’ Compensation, Ch. 8.]

Armand La Count, Applicant v. Los Angeles County Metropolitan Transit Authority, PSI, Defendant, 2015 Cal. Wrk. Comp. P.D. LEXIS 20 (lexis.com), 2015 Cal. Wrk. Comp. P.D. LEXIS 20 (Lexis Advance) [Defendant’s petition for writ of review was subsequently denied on April 22, 2015, sub nom. Los Angeles County Metropolitan Transit Authority v. Workers’ Comp. Appeals Bd. (La Count) (2015) 80 Cal. Comp. Cases 470 (lexis.com), 80 Cal. Comp. Cases 470 (Lexis Advance)]

Permanent Disability—Rating—Permanent Total Disability—WCAB, affirming WCJ, held that applicant cash/relief vault truck driver incurred permanent total disability as result of 11/16/2004 admitted industrial injury to his neck, back, left shoulder, left wrist, right hip, psyche, gastrointestinal system, and in forms of diabetes, hypertension and sleep disorder, when WCAB found that (1) unrebutted opinions of agreed medical examiners in orthopedics, psychiatry and internal medicine, and opinion of agreed vocational evaluator constituted substantial evidence to support finding of 100 percent permanent disability, (2) contrary to defendant’s assertion, WCJ properly considered findings of non-industrial apportionment and still found applicant to be permanently totally disabled even after apportionment, by adding applicant’s impairment rather than using Combined Values Chart pursuant to opinion of orthopedic agreed medical examiner that there was synergistic effect to applicant’s orthopedic injuries so that they should be added rather than combined, and opinion of internal medicine agreed medical examiner that applicant would be 100 percent permanently disabled even after apportionment, and (3) alternatively, applicant was permanently totally disabled “in accordance with the fact” under Labor Code § 4662, based upon his inability to compete in open labor market.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 8.05[1]-[3], 8.07, 32.03A; Rassp & Herlick, California Workers’ Compensation Law, Ch. 7, §§ 7.12, 7.40[1], 7.42[1], [2], 7.43; The Lawyer’s Guide to the AMA Guides and California Workers’ Compensation, Chs. 4, 5, 9, 10.]

Gregory Greene, Applicant v. Central Parking Systems, PSI, adjusted by Sedgwick CMS, Defendants, 2015 Cal. Wrk. Comp. P.D. LEXIS 283 (lexis.com), 2015 Cal. Wrk. Comp. P.D. LEXIS 283 (Lexis Advance)

Permanent Disability—Rating—AMA Guides—WCAB, in split panel opinion, affirmed WCJ’s finding that applicant incurred 75 percent permanent disability after apportionment as result of 5/14/2008 industrial injuries to his ankles, right foot, pelvis, psyche, bladder, and in form of erectile dysfunction, and that reporting of applicant’s primary treating physician, William Mouradian, M.D., constituted substantial evidence under principles in Almaraz v. Environmental Recovery Services/Guzman v. Milpitas Unified School District (2009) 74 Cal. Comp. Cases 1084 (Appeals Board en banc opinion), and Milpitas Unified School Dist. v. W.C.A.B. (Guzman) (2010) 187 Cal. App. 4th 808, 115 Cal. Rptr. 3d 112, 75 Cal. Comp. Cases 837, to rebut strict AMA Guides impairment rating, when majority WCAB panel, while noting that strict reading of AMA Guides (particularly Table 17-2 at p. 526) precludes combination of gait impairment with other impairment for lower extremities in determining overall impairment, concluded that Dr. Mouradian’s combination of gait derangement with range of motion, ankle strength and sensory loss ratings on lower extremities most accurately reflected applicant’s overall impairment within four corners of AMA Guides and was supported by reporting of panel qualified medical evaluator Barry Braiker, M.D., who also combined gait derangement with other lower extremity impairments, and with applicant’s credible testimony; Commissioner Zalewski, dissenting from majority panel, concluded that neither Dr. Mouradian’s reports nor reports of Dr. Braiker constituted substantial evidence to rebut strict application of AMA Guides prohibiting combination of gait derangement with other lower extremity impairments, because both doctors combined applicant’s gait derangement with other impairments of his lower extremities without explaining why they departed from strict application of AMA Guides or why their impairment findings more accurately depicted applicant’s level of disability, and Commissioner Zalewski believed that since there was insufficient medical evidence upon which to base permanent disability finding, WCAB had duty to further develop medical record on Almaraz/Guzman issue notwithstanding that defendant filed declaration of readiness to proceed.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 8.02[3, [4][a], 32.03A; Rassp & Herlick, California Workers’ Compensation Law, Ch. 7, § 7.12; The Lawyer’s Guide to the AMA Guides and California Workers’ Compensation, Chs. 3, 4, 8.]

PRESUMPTION OF COMPENSABILITY

Kino Suarez, Applicant v. Department of Forestry and Fire Protection Coastal, State Compensation Insurance Fund, City of Cathedral City, PSI, administered by Adminsure, Defendants, 2015 Cal. Wrk. Comp. P.D. LEXIS 11 (lexis.com), 2015 Cal. Wrk. Comp. P.D. LEXIS 11 (Lexis Advance)

Presumption of Industrial Causation—Cancer—Firefighters—WCAB affirmed WCJ’s finding that applicant firefighter sustained industrial injury in form of acute myelogenous leukemia while working for City of Cathedral City (City) from 10/17/2005 through 1/18/2010, and that City was solely liable for applicant’s injury, when WCAB found that (1) Labor Code § 3212.1 presumption of industrial causation, applicable to applicant’s cancer claim, was rebutted as to defendant Cal Fire, for whom applicant started working in 12/2011 and for whom he was working when he was diagnosed with leukemia on 12/27/2012, based on agreed medical examiner’s opinion that leukemia has five-year latency period, meaning that applicant’s last injurious exposure was in 2007 while applicant was working for City, (2) Labor Code § 3212.1(d), limiting presumption of industrial causation to period of 120 months following termination of employment “commencing with the last date actually worked in the specified capacity,” must be broadly interpreted to extend presumption to period following last actual date of work in capacity of firefighter, rather than last date of employment with specific employer as alleged by City, (3) broad interpretation of Labor Code § 3212.1(d) is consistent with rule of liberal construction pursuant to Labor Code § 3202, favoring extension of benefits to injured workers, as well as with legislative intent behind statute and prior case law, and (4) although applicant’s date of injury under Labor Code § 5412, based on concurrence of knowledge of industrial causation and disability, was on 12/27/2012, when applicant was diagnosed with leukemia, last date of possible injurious exposure was in 2007, given agreed medical examiner’s finding of five year latency period, thereby making City liable in accordance with Labor Code § 5500.5.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 3.113[1], [2], [4][b]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 10, § 10.07[5][c].]

PROFESSIONAL ATHLETES

Scottie Pippen, Applicant v. Portland Trail Blazers, Houston Rockets, Chicago Bulls, TIG Insurance, Chubb Group (Federal Insurance Company), Defendants, 2015 Cal. Wrk. Comp. P.D. LEXIS 201 (lexis.com), 2015 Cal. Wrk. Comp. P.D. LEXIS 201 (Lexis Advance)

WCAB Jurisdiction—Professional Athletes—WCAB, reversing WCJ in split panel opinion, held that California did not have jurisdiction over applicant professional basketball player’s claim for cumulative trauma while playing for Portland Trail Blazers, Houston Rockets and Chicago Bulls from 1987 through 2/2/2004, when majority panel found that state did not have legitimate interest in adjudicating applicant’s workers’ compensation claim as described in Federal Insurance Co. v. Workers’ Comp. Appeals Bd. (Johnson) (2013) 221 Cal. App. 4th 1116, 165 Cal. Rptr. 3d 288, 78 Cal. Comp. Cases 1257, because applicant never resided in California, was not hired in California, never worked for employer located in California, majority of employment activities (games, training camps and workouts) occurred outside of California, applicant played less than 9 percent of his career-total games in California, which is far less than 20 percent threshold deemed reasonable under amendments to Labor Code § 3600.5(b) (although not applicable here) to constitute legitimate and substantial connection between California and injury claim, and nothing in applicant’s testimony or medical evidence suggested that games applicant played in California were qualitatively more traumatic than his other games; Chairwoman Caplane, dissenting from majority panel, found that applicant’s work in California and value of his cumulative injury claim were not de minimis as matter of law pursuant to concept described in Civil Code § 3533, as applicant played in California every year during his career and testified to extent of his injurious exposure in California and medical treatment, including treatment by California doctor, and, in considering Johnson, Chairwoman Caplane rejected defendant’s assertion that worker could not be found to have sustained cumulative injury in California if Labor Code § 5412 date of injury is date that worker was outside state, because cumulative injury as described in Labor Code § 3208.1 occurs over period of time, not on specific date, and liability for cumulative injury is allocated between employers pursuant to statutory period specified in Labor Code § 5500.5.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 3.22[2], [3], 21.02, 21.06, 21.07[5]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 13, § 13.01[2].]

PSYCHIATRIC INJURY

Remedios Lira, Applicant v. Premium Packing, PSI, administered by Sedgwick CMS, Defendants, 2015 Cal. Wrk. Comp. P.D. LEXIS 299 (lexis.com), 2015 Cal. Wrk. Comp. P.D. LEXIS -- (Lexis Advance)

Psychiatric Injury—Post-Termination Claim—Sudden and Extraordinary Employment Events—WCAB affirmed WCJ’s finding that applicant tractor driver’s claim for psychiatric injury resulting from being hit by train on 9/24/2011 while crossing railroad tracks was not barred by Labor Code § 3208.3(e) as post-termination claim, when WCAB, relying on analysis in cases addressing “sudden and extraordinary employment condition” exception to six-month employment requirement in Labor Code § 3208.3(d), found compensability based on “sudden and extraordinary” exception in Labor Code § 3208.3(e)(1), and reasoned that (1) under Matea v. W.C.A.B. (2006) 144 Cal. App. 4th 1435, 51 Cal. Rptr. 3d 314, 71 Cal. Comp. Cases 1522, “sudden and extraordinary” employment events are those events that are “uncommon, unusual and totally unexpected,” (2) although motor vehicle accidents are generally not extraordinary events, accidents that occur under extremely unusual circumstances, as described in California Insurance Guarantee Association v. W.C.A.B. (Tejera) (2007) 72 Cal. Comp. Cases 482 (writ denied), may be interpreted as extraordinary, (3) type of accident where train collides with tractor, such as occurred here, was not routine or ordinary but rather was uncommon and unexpected so as to fall within “sudden and extraordinary” exception as interpreted in Matea and Tejera, and (4) defendant presented no evidence that applicant’s accident was common or routine; in making its finding, WCAB rejected court’s interpretation of “extraordinary” in State Compensation Ins. Fund v. W.C.A.B. (Garcia) (2012) 204 Cal. App. 4th 766, 139 Cal. Rptr. 3d 215, 77 Cal. Comp. Cases 307, because it creates distinction based upon how hazardous employee’s occupation is even though there is no basis for such distinction in legislative history of Labor Code § 3208.3, and WCAB also rejected defendant’s suggestion that Labor Code § 3208.3 requires workplace event or condition to be unforeseeable in order to qualify for application of “sudden and extraordinary” exception.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 4.02[3][d]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 10, § 10.06[3][c], [e].]

SUBSEQUENT INJURIES BENEFITS TRUST FUND

Gilbert Lopez, Applicant v. City and County of San Francisco, Subsequent Injuries Benefits Trust Fund of the State of California, Defendants, 2015 Cal. Wrk. Comp. P.D. LEXIS 46 (lexis.com), 2015 Cal. Wrk. Comp. P.D. LEXIS 46 (Lexis Advance)

Subsequent Injuries Benefits Trust Fund—Threshold Requirements—Diminished Future Earning Capacity Adjustment—WCAB, in split panel opinion, affirmed WCJ’s finding that applicant was entitled to benefits from Subsequent Injuries Benefits Trust Fund (SIBTF) under Labor Code § 4751 as his combined disability from his preexisting permanent disability and his 12/31/2010 industrial cumulative trauma produced permanent total disability which was greater than 42 percent permanent disability caused by subsequent industrial injury, and majority WCAB panel specifically concluded that WCJ did not err in applying diminished future earning capacity adjustment to standard rating to satisfy requirement that disability from subsequent injury be at least 35 percent, when WCAB found that Legislature did not amend Labor Code § 4751 to specifically exclude consideration of diminished future earning capacity adjustment when it added diminished future earning capacity adjustment factor to rating of permanent disability under SB 899, that, as law stands now, before adjusting for age and occupation, determination of permanent disability is based upon whole person impairment and diminished future earning capacity, that since determination of whole person impairment does not consider work disablement, and only considers impact of injury on activities of daily living, for permanent disability determination in Labor Code § 4751 to be relevant to work disablement, diminished future earning capacity adjustment must be included; Commissioner Lowe, dissenting from majority opinion, concurred with SIBTF that determination regarding entitlement to SIBTF benefits should be based upon applicant’s medical condition alone and should exclude adjustments for diminished future earning capacity as well as age and occupation, based on language in Labor Code § 4751 stating that “the permanent disability resulting from the subsequent injury, when considered alone and without regard to or adjustment for the occupation and age of the employee, is equal to 35 percent or more of the total,” that pursuant to SB 899 and Milpitas Unified School Dist. v. W.C.A.B. (Guzman) (2010) 187 Cal. App. 4th 808, 115 Cal. Rptr. 3d 112, 75 Cal. Comp. Cases 837, determination of degree of permanent disability starts with calculation of whole person impairment, prior to adjustment for diminished future earning capacity, and that majority panel’s decision was contrary to decision in Malen v. Kitchen Works, 2011 Cal. Wrk. Comp. P.D. LEXIS 84 (Appeals Board noteworthy panel decision), where WCAB approved determination that when calculating permanent disability from subsequent injury, industrial disability must be considered before adjustment for diminished future earning capacity.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 8.09, 31.20[4]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 8, §§ 8.01, 8.02.]

Subsequent Injuries Benefits Trust Fund—Threshold Requirements—Combining Disabilities—WCAB held that WCJ, in finding that applicant was entitled to benefits from Subsequent Injuries Benefits Trust Fund (SIBTF) under Labor Code § 4751, properly calculated applicant’s overall permanent disability by adding applicant’s preexisting disabilities and disability from subsequent industrial injury based on reasoning in Bookout v. W.C.A.B. (1976) 62 Cal. App. 3d 214, 132 Cal. Rptr. 864, 41 Cal. Comp. Cases 595, rather than by using combined values chart to find overall disability.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 8.09, 31.20[4]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 8, §§ 8.01, 8.02.]

SANCTIONS

Mary Coss, Applicant v. Century 21, National Liability & Fire Insurance Company, Defendants, 2015 Cal. Wrk. Comp. P.D. LEXIS 38 (lexis.com), 2015 Cal. Wrk. Comp. P.D. LEXIS 38 (Lexis Advance)

Sanctions—WCAB granted removal on its own motion and gave lien claimant Psychological Assessment Services notice of its intention to impose attorney’s fees, costs and/or sanctions of up to $2,500.00 pursuant to Labor Code § 5813 and 8 Cal. Code Reg. § 10561, when lien claimant failed to appear at properly noticed lien conference, and then filed untimely, frivolous petition for reconsideration challenging WCJ’s order dismissing its lien for failure to appear, even after advising that declaration of readiness to proceed was withdrawn and lien claim was no longer being pursued, and WCAB found that 8 Cal. Code Reg. § 10770.1(a)(4) provides that declaration of readiness filed for lien conference cannot be withdrawn by lien claimant unless lien claim is resolved or withdrawn pursuant to 8 Cal. Code Reg. § 10770.1(g), and that lien claimant’s conduct appeared to be part of pattern of bad faith actions or tactics (including pattern of alleging lack of notice for failing to appear), which are contrary to WCAB rules and Labor Code, without reasonable excuse, and frivolous, and also cause unnecessary delay.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 23.15; Rassp & Herlick, California Workers’ Compensation Law, Ch. 16, § 16.35[2].]

TEMPORARY DISABILITY

Hugo Bucio, Applicant v. County of Merced, legally uninsured, Defendant, 2015 Cal. Wrk. Comp. P.D. LEXIS 123 (lexis.com), 2015 Cal. Wrk. Comp. P.D. LEXIS 123 (Lexis Advance)

Temporary Disability—Self-Procured Medical Treatment—WCAB, reversing WCJ, held that applicant deputy sheriff/coroner who suffered admitted industrial back injury on 5/27/2012 was entitled to temporary disability for period following self-procured bilateral sacroiliac joint fusion surgery which had been denied by defendant’s utilization review (UR), when WCAB found that injured workers are entitled to temporary disability indemnity whether temporary disability resulted from reasonable medical treatment provided by defendant pursuant to Labor Code § 4600 or by reasonable self-procured medical treatment under Labor Code § 4605, and that, contrary to WCJ’s determination, applicant’s failure to challenge defendant’s UR denial of requested surgery through independent medical review (IMR) procedure was not basis for denial of temporary disability indemnity following self-procured surgery, because (1) UR/IMR procedure in Labor Code § 4610 et seq. involves disputes over medical treatment pursuant to Labor Code § 4600 and does not address medical treatment self-procured pursuant to Labor Code § 4605 or applicant’s entitlement to temporary disability indemnity, (2) there is no distinction between temporary disability arising from self-procured medical treatment under Labor Code § 4605 and Labor Code § 4600 medical treatment authorized and provided by defendant, and (3) as illustrated in Valdez v. W.C.A.B. (2013) 57 Cal. 4th 1231, 164 Cal. Rptr. 3d 184, 312 P.3d 102, 78 Cal. Comp. Cases 1209, issue of temporary disability is to be addressed on its own merit and not by consideration of statutory process for resolving Labor Code § 4600 medical treatment disputes, because injured worker is not obligated to utilize medical treatment provided by employer and fact that medical treatment is self-procured is unrelated to temporary disability indemnity entitlement; Commissioner Zalewski, concurring with majority panel, pointed out that reasonableness standards established by Legislature for Labor Code § 4600 are not statutorily applied to medical treatment that is self-procured pursuant to Labor Code § 4605, and that to assure temporary disability associated with self-procured medical treatment results from treatment that is reasonable and necessary, there should be statutory authority holding Labor Code § 4605 medical treatment to same reasonableness standards as treatment provided under Labor Code § 4600.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 7.01[1]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 6, § 6.01[1].]

WORKERS’ COMPENSTION APPEALS BOARD PROCEDURE

Bonnie Martin, Applicant v. Lancaster Community Hospital, ACE American Insurance Company, Administered and Adjusted by Sedgwick Claims Management Services, Defendants, 2015 Cal. Wrk. Comp. P.D. LEXIS 139 (lexis.com), 2015 Cal. Wrk. Comp. P.D. LEXIS 139 (Lexis Advance)

WCAB Procedure—Bifurcation of Issues for Trial—Due Process—WCAB, in split panel decision, denied defendant’s petition for removal challenging WCJ’s finding that defendant was not entitled to bifurcation of third-party credit and employer negligence issues and trial on those issues alone where normal compensation issues were not yet ready for trial, when WCJ ordered matter off-calendar over defendant’s objection because discovery was not completed on case-in-chief, and majority WCAB panel found no due process violation in requiring parties to complete discovery on issues of nature and extent of applicant’s disability and need for medical treatment before proceeding to trial on all issues, including employer negligence and credit, and concluded that there was no irreparable harm or substantial prejudice to defendant by WCJ’s order taking matter off calendar; Commissioner Lowe, dissenting from majority panel, concluded that defendant met its burden of demonstrating likelihood of substantial prejudice and irreparable harm for which future reconsideration would not provide adequate remedy, because compelling defendant to pursue claim of third-party credit until after applicant’s case-in-chief is resolved could unfairly force defendant to pay benefits pursuant to award even though entitlement to credit is probable, or face penalty for unreasonable delay.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 1.11[3][g], 21.02[2], 23.17, 26.03[4]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 16, § 16.22, Ch. 19, § 19.37.]

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