Workers' Compensation

California: Top 25 Noteworthy Panel Decisions (January-June 2016)

LexisNexis has picked the top “noteworthy” panel decisions issued by the California Workers’ Compensation Appeals Board during the period January through June 2016. The list features a number of decisions addressing utilization review time deadlines and reporting requirements, several cases discussing the access standards applicable to medical provider networks, and two cases addressing Subsequent Injuries Benefits Trust Fund liability. Also included are two cases involving rarely litigated issues, one a split panel decision addressing whether an employee was barred from recovery under Labor Code § 3600(a)(8) on the basis that her injury occurred during the commission of a felony, and another in which the WCAB held that an employee who was hit by a car was the victim of a “violent act” for the purposes of receiving additional permanent disability for her psychological injury as an exception to Labor Code § 4660.1(c).  Two “bonus cases,” both of which will be reported in California Compensation Cases, are included on the list.  One is a split panel opinion addressing independent medical review appeals and the other a decision on AMA Guides rating.  These, in addition to the other cases listed, provide a look at some evolving issues of interest currently before the Appeals Board.

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 However, WCAB panel decisions are not binding precedent, as are en banc decisions on all other Appeals Board panels and workers’ compensation judges.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

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CALIFORNIA INSURANCE GUARANTEE ASSOCIATION

Jorge Orozco, Applicant v. Marriott Downtown Los Angeles/Interstate Hotels and Resorts, California Insurance Guarantee Association for American Protection Insurance Company, in liquidation, administered by Broadspire, Zurich North America, Century Plaza Hotel, insured by Zurich North America, administered by Sedgwick Claims Management Services, Defendants, 2016 Cal. Wrk. Comp. P.D. LEXIS 189 (lexis.com), 2016 Cal. Wrk. Comp. P.D. LEXIS 189 (Lexis Advance)

California Insurance Guarantee Association—Other Insurance—Stipulations—WCAB affirmed WCJ’s order dismissing California Insurance Guarantee Association (CIGA) as party defendant based on her finding that liabilities arising from Compromise and Release Agreement did not constitute “covered claim” under Insurance Code §§ 1063.1 and 1063.2, and that Zurich North America constituted “other insurance” available to satisfy liability for outstanding lien claims notwithstanding apportionment of liability reflected in Compromise and Release, when WCAB concluded that obligations of insurers for payment of lien claims was joint and several, that where more than one insurer is found jointly and severally liable for period of cumulative trauma, CIGA will be relieved of liability under Insurance Code § 1063.1(c)(9), and that insurer’s agreement in Compromise and Release to apportion their liabilities between them does not change joint and several nature of liability, but rather each insurer remains liable for entire obligation.  [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].]

COSTS

Richard Varela, Applicant v. Morley Group, National Union Fire Insurance Company of Pittsburgh, Pennsylvania, administered by AIG Claims Services, Inc., Defendants, 2016 Cal. Wrk. Comp. P.D. LEXIS 194 (lexis.com), 2016 Cal. Wrk. Comp. P.D. LEXIS 194 (Lexis Advance)

Costs—Expert Witness Fees Incurred By Lien Claimants—WCAB affirmed WCJ’s award of costs in amount of $2,737.50 pursuant to Labor Code § 5811 for reasonable expense of trial testimony provided by Sally Glade, R.N., with regard to applicant’s need for home health care services provided by lien claimants Mary Brack and Robert Tinker, when WCAB reasoned that lien claimants “stood in the shoes” of applicant, bearing burden of proof to establish all elements necessary to recover on their lien for home care services, that although WCJ ultimately found that applicant did not sustain industrial injury to his left eye on 10/16/2007 as alleged, had WCJ found compensable injury, lien claimants would have had burden to present substantial evidence that their services were reasonable and necessary and, consequently, testimony of expert witness Ms. Glade secured by lien claimants was necessary to meet essential element of lien claimants’ burden of proof on all issues raised at trial, and that defendant’s effort to distinguish Costa v. Hardy Diagnostic (2007) 72 Cal. Comp. Cases 1492 (Appeals Board en banc decision), on grounds that testimony of vocational expert in that case was requested by injured worker and directed towards benefit to which applicant was already entitled was misplaced because, since lien claimants here stood in applicant’s shoes and had additional burden to establish reasonableness of their lien, Ms. Glade’s testimony was directed to equally essential element of lien claimants’ burden of proof.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 23.13[2][b], 27.01[8][a]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 16, § 16.47.]

CREDIT

Leonel Collazo, Applicant v. Global Manufacturing, AIG Claims, Defendants, 2016 Cal. Wrk. Comp. P.D. LEXIS 86 (lexis.com), 2016 Cal. Wrk. Comp. P.D. LEXIS 86 (Lexis Advance)

Credit—Third-Party Recovery—Power Press Exception to Exclusive Remedy Doctrine—WCAB, affirming WCJ, held that defendant was not entitled to credit for applicant’s civil settlement in action directly against employer based on Labor Code § 4558 “power press” exception, although net proceeds of successful action under Labor Code § 4558 are generally to be credited against any workers’ compensation benefits due pursuant to Labor Code § 3600(b), when, in order to receive credit, defendant must prove what portion of applicant’s civil settlement is subject to credit, and WCAB concluded that defendant here failed to meet this burden as factual record did not support finding that applicant’s lawsuit was based solely on power press exception because (1) civil suit may have been based on multiple theories, including products liability, (2) evidence regarding how machine malfunctioned to cause applicant’s injury in this case did not support conclusion that applicant’s injury fell within provisions of Labor Code § 4558, (3) civil settlement itself was silent as to causes of action upon which it was based and whether defendant was entitled to credit in applicant’s workers’ compensation case, (4) defendant did not offer civil complaint as exhibit or any other documents or testimony from civil law suit which would have explained nature of applicant’s settlement, and (5) given record and history of proceedings in this case, WCAB found no good cause to order further development of record.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 11.02[1], [2], 11.42[5]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 12, § 12.09[6].]

EMPLOYMENT RELATIONSHIPS

Mark Dominguez, Applicant v. County of Orange, Defendant, 2016 Cal. Wrk. Comp. P.D. LEXIS 180 (lexis.com), 2016 Cal. Wrk. Comp. P.D. LEXIS 180 (Lexis Advance)

Employment Relationships—Excluded Employers—WCAB held that applicant who alleged injury to multiple body parts while working on 12/31/2011 at Salvation Army as part of live-in drug rehabilitation program that was condition of his probation/sentencing after being released from jail was not employee of defendant County of Orange (County), when WCAB found that, while applicant was required to participate in drug rehabilitation program or face additional jail time, County did not assign applicant to work at Salvation Army nor did County supervise, control, or remunerate applicant for his work, and, additionally, Salvation Army is private, nonprofit organization that was acting as “sponsor” to applicant during his drug rehabilitation and was, therefore, exempt from employer status under Labor Code § 3301(b).  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 3.02-3.08; Rassp & Herlick, California Workers’ Compensation Law, Ch. 2, § 2.02[2].]

INJURY AOE/COE

Hillary Schwartz, Applicant v. Ease Entertainment, Starr Indemnity and Liability Company, Defendants, 2016 Cal. Wrk. Comp. P.D. LEXIS 106 (lexis.com), 2016 Cal. Wrk. Comp. P.D. LEXIS 106 (Lexis Advance) [WARNING: Defendant filed Petition for Writ of Review on 4/22/2016]

Injury AOE/COE—Commission of Felony—WCAB, in split panel opinion, affirmed WCJ’s finding that applicant suffered injury AOE/COE to her psyche on 2/20/2014 while employed as first assistant director of film Midnight Rider:  The Gregg Allman Story, and that her claim for psychiatric injury was not barred under Labor Code § 3600(a)(8), which precludes recovery of workers’ compensation benefits for injuries caused by commission of felony, when applicant, who was involved in setting up film shoot on train trestle located in State of Georgia after permission to use trestle was expressly denied by railroad company, suffered psychiatric injury as result of accident in which train struck and killed film crew member Sarah Jones and injured six others, leading State of Georgia to file charges against applicant for criminal trespass and involuntary manslaughter, and WCAB panel majority concluded that under strict interpretation of language in Labor Code § 3600(a)(8), conviction is required to bar workers’ compensation claim under this provision, that under Georgia law, “conviction” requires final judgment of conviction to be entered upon verdict or finding of guilt of crime or upon guilty plea, that in view of deferral of applicant’s prosecution after finding of guilt by superior court pursuant to Georgia’s First Offender law (Ga. Code Ann. § 42-8-60), requirement that applicant’s injury be caused by commission of felony for which she was “convicted” was not met in this case, and that because applicant was not “convicted” of felony, her claim was not barred by Labor Code § 3600(a)(8); Commissioner Razo, dissenting, would find that applicant is barred from receiving workers’ compensation benefits under Labor Code § 3600(a)(8), based upon fact that injury to her psyche arose as consequence of her commission of felony (involuntary manslaughter of Sarah Jones) for which applicant was convicted by superior court in Georgia following evidentiary hearing in 2015, and that fact that applicant was subsequently accorded leniency in her sentencing did not obviate fact that she was found guilty of involuntary manslaughter.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 30.08; Rassp & Herlick, California Workers’ Compensation Law, Ch. 17, § 17.85.]

INSURANCE COVERAGE

Jesus Felix Serrano, Applicant v. Exact Staff, Tower Insurance Company, administered by York Insurance, HR Comp, LLC, Farmington Casualty Company, administered by Travelers Insurance Company, Defendants, 2016 Cal. Wrk. Comp. P.D. LEXIS 221 (lexis.com), 2016 Cal. Wrk. Comp. P.D. LEXIS 221 (Lexis Advance)

Insurance Coverage—Employee Leasing Agreement—Payroll Services—Concurrent Employment—WCAB affirmed arbitrator’s finding that Exact Staff, insured by Tower Insurance Company, administered by York Insurance Services Group, and HR Comp, LLC (HR Comp), insured by Travelers Insurance Company (Travelers), had joint and several liability for alleged industrial injury incurred by applicant when he crashed forklift on 4/2/2010, after being hired by Exact Staff and assigned to work as laborer for entity known as Service Connection, when (1) Exact Staff had entered into written employee leasing agreement with HR Comp wherein HR Comp agreed to pay payroll taxes (FICA, Medicare, state disability insurance, unemployment insurance, and workers’ compensation premiums), and Exact Staff paid net payroll directly to applicant, (2) Travelers denied coverage for applicant’s injury, contending that workers’ compensation policy it issued to HR Comp covered one clerical employee and not any warehouse workers, and that HR Comp did not disclose to broker that it was PEO that provided payroll deductions for employees who work at various job sites, including warehouse where applicant worked, and (3) WCAB concluded that under Labor Code § 3602(d)(1) and based on provisions of employee leasing agreement, Exact Staff and HR Comp were concurrent employers of applicant on his date of injury since both entities shared payroll duties for purpose of workers’ compensation coverage, that Travelers’ failure to do any investigation regarding HR Comp’s misclassification of 50 warehouse workers did not absolve Travelers of its legal responsibility to cover applicant’s injuries in accordance with Labor Code § 3602(d)(1) and Insurance Code § 11663, that, while agreement between Exact Staff and HR Comp did not fit traditional general-special employment relationship, it constituted similar hybrid with concurrent payroll duties that conferred same legal responsibilities, and that, under circumstances, Travelers had no basis to deny coverage.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 2.60, 3.140; Rassp & Herlick, California Workers’ Compensation Law, Ch. 2, § 2.07, Ch. 3, § 3.30.]

LIENS

Mario Carrasco, Applicant v. City of Los Angeles, PSI, administered by Tristar, Defendants, 2016 Cal. Wrk. Comp. P.D. LEXIS 225 (lexis.com), 2016 Cal. Wrk. Comp. P.D. LEXIS 225 (Lexis Advance)

Liens—Medical—Independent Bill Review—Appeals Process—WCAB dismissed lien claimant Western Medical Center’s petition seeking reconsideration of adverse independent bill review (IBR) final determination issued by Maximus Federal Services, based on assertion that determination was result of “plainly erroneous” express or implied finding of fact because defendant did not provide Maximus with copy of contract between vendor and defendant that justified payment at rate less than provided by official medical fee schedule, when WCAB concluded that lien claimant failed to follow appeals procedure laid out in Labor Code and related administrative rules because lien claimant did not first file appeal of disputed IBR determination as was required by Labor Code § 4603.6(f), and only filed petition for reconsideration, that by explicit terms of applicable statutes and rules, IBR determination itself is not subject to reconsideration because there has not been adverse ruling on timely verified appeal filed with WCAB, and that under 8 Cal. Code Reg. § 10957(f)(4), failure to comply with rules constitutes valid legal ground for summary dismissal or denial of petition appealing IBR determination.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 5.02[2][e], 22.05[6][b][iv]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 16, § 16.24, Ch. 17, § 17.70[6].]

Olivia Palacios, Applicant v. County of Fresno, PSI, Administered By RISCO, Defendants, 2016 Cal. Wrk. Comp. P.D. LEXIS 4 (lexis.com), 2016 Cal. Wrk. Comp. P.D. LEXIS 4 (Lexis Advance)

Liens—Procedural Rights and Duties—Collateral Estoppel—WCAB affirmed WCJ’s finding that lien claimant Michael Kesselman, Ph.D., had no standing to file and recover on his lien for medical services provided to applicant after WCJ previously issued Findings and Order in applicant’s case-in-chief determining that applicant did not sustain industrial psychiatric injury, and WCAB reasoned that lien claimant became party to case pursuant to 8 Cal. Code Reg. § 10301(dd) when WCJ issued decision resolving underlying case and served lien claimant with adverse decision, that lien claimant, at that time, had obligation to file timely petition for reconsideration, and that, having failed to do so, decision is now final order precluding lien claimant from recovering for psychological treatment rendered to applicant and precluding lien claimant from re-litigating same issue.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 21.08[2], 30.22[2]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 13, § 13.10, Ch. 16, § 16.04[1], Ch. 17, § 17.113.]

Julia Ozuna, Applicant v. Kern County Superintendent of Schools, PSI, Defendant; Associated Reproduction Services, Inc., Lien Claimant, 2016 Cal. Wrk. Comp. P.D. LEXIS 98 (lexis.com), 2016 Cal. Wrk. Comp. P.D. LEXIS 98 (Lexis Advance)

Liens—Professional Copy Services—Medical-Legal—WCAB rescinded WCJ’s finding that lien claimant Associated Reproduction Services, Inc. (ARS) was not entitled to full reimbursement for copying services, when WCJ denied full reimbursement based on his determination that some copied records for which ARS sought payment were not actually used in resolving applicant’s claim, but WCAB concluded that all copy services provided by lien claimant were provided for purpose of proving or disproving contested claim and, therefore, were reimbursable as medical-legal expenses under Labor Code § 4620(a), and WCAB reasoned that there was no award, order or compromise and release at time documents were copied that would have made their production unnecessary, that until such disposition occurs it is reasonable for employee’s attorney to obtain relevant documents concerning employee’s medical history, employment and injury to properly evaluate case and provide competent representation, that there is no requirement that lien claimant prove that all records copied were specifically relied upon to resolve issue in dispute in order to have valid lien claim for copying records, that copying is compensable if it was reasonably undertaken to discover information that is relevant or potentially relevant to case, and that compensation may be claimed even if service of subpoena yields no records because that fact is itself information that may be relevant to attorney’s evaluation and understanding of case.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 30.05; Rassp & Herlick, California Workers’ Compensation Law, Ch. 17, § 17.72[1].]

MEDICAL-LEGAL PROCEDURE

Sandy Chaides, Applicant v. The Kroger Company dba Ralphs Grocery Company, PSI, administered by Sedgwick, Defendants, 2016 Cal. Wrk. Comp. P.D. LEXIS 143 (lexis.com), 2016 Cal. Wrk. Comp. P.D. LEXIS 143 (Lexis Advance)

Medical-Legal Procedure—Replacement Qualified Medical Evaluator Panel—Deposition Fees—WCAB, in split panel opinion, granted defendant’s petition for removal challenging WCJ’s order instructing Medical Director to issue replacement qualified medical evaluator panel in orthopedics to replace orthopedic qualified medical evaluator Michael Klassen, M.D., and held that, although Dr. Klassen’s mandatory deposition policy that he receive deposition fee payment of $1,000.00 at least 11 business days in advance of scheduled deposition as condition to proceeding with deposition was inappropriate under Code of Civil Procedure § 2034.450(a) (allowing for payment of deposition fee at commencement of deposition) and 8 Cal. Code Reg. § 35.5(f) (stating that qualified medical evaluators must make themselves available for deposition within 120 days of request), and did not comply with applicable qualified medical evaluator deposition rate of $250.00 per hour provided for in Medical Legal Fee Schedule, and could subject Dr. Klassen to sanctions or other disciplinary action, improper deposition policy, in itself, does not entitle party to replacement qualified medical evaluator panel, when WCAB panel majority reasoned that decision to replace qualified medical evaluator years after initial evaluation and after multiple reports and examination must be weighed against goal of promoting timely resolution of claims and constitutional imperative that California workers’ compensation law be administered so as to accomplish substantial justice, that actual or perceived doctor shopping via use of procedural challenges should be discouraged, that to have applicant evaluated by new qualified medical evaluator at this late stage of proceedings, even though Dr. Klassen’s prior reports are still admissible, will increase costs and significantly delay ultimate resolution of case, and that replacement of Dr. Klassen as qualified medical evaluator solely for improper deposition policy is not warranted as remedy under circumstances of this case; Commissioner Sweeney, dissenting, opined that defendant failed to show requisite substantial prejudice or irreparable harm to justify removal, or that reconsideration from final order will not be adequate remedy, and that WCJ appropriately exercised his discretion to order replacement panel.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 1.11[3][g], 22.11[6], 26.03[4]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 16, § 16.54[6], Ch. 19, § 19.37.]

Kischa Loving, Applicant v. California Department of Corrections and Rehabilitation – Ventura Youth Correctional Facility, State Compensation Insurance Fund, Defendants, 2016 Cal. Wrk. Comp. P.D. LEXIS 238 (lexis.com), 2016 Cal. Wrk. Comp. P.D. LEXIS 238 (Lexis Advance)

Medical-Legal Procedure—Ex Parte Communications—WCAB affirmed WCJ’s finding that defendant violated Labor Code § 4062.3 by engaging in ex parte communications with agreed medical examiner Mitchel Silverman, M.D., including conducting ex parte interview of Dr. Silverman purportedly in connection with criminal workers’ compensation insurance fraud investigation being conducted by defendant after applicant was charged with insurance fraud, when WCAB found that defendant’s ex parte communications were not confidential as alleged by defendant because they were disclosed to defendant’s adjusting agency in applicant’s workers’ compensation case, that documents relevant to applicant’s workers’ compensation case were provided to Dr. Silverman by defendant without applicant having opportunity to object, that defendant’s communications involved and impacted applicant’s workers’ compensation case and were not insignificant or inconsequential, and that Labor Code § 4062.3 does not contain exception to ex parte communication rule for criminal investigations.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 22.06[3], 22.11[18]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 15, § 15.03[4][d], [e].]

MEDICAL PROVIDER NETWORKS

Maria Soto, Applicant v. Sambrailo Packaging, Zenith Insurance Company, Defendants, 2016 Cal. Wrk. Comp. P.D. LEXIS 26 (lexis.com), 2016 Cal. Wrk. Comp. P.D. LEXIS 26 (Lexis Advance)

Medical Provider Networks—Access Standards—Primary Treating Physicians—WCAB held that WCJ erred in finding that applicant who suffered industrial injury to her neck, back and right shoulder was entitled to treat outside defendant’s MPN because defendant failed to meet statutory MPN access standards in 8 Cal. Code Reg. § 9767.5 for rural geographic area by not including three orthopedic surgeons willing to act as applicant’s primary treating physician, when WCAB found that Labor Code § 4616(a)(1) provides that MPNs are required to have “adequate” number and type of physicians to provide treatment, and if MPN provides access to appropriate selection of specialists or physicians with appropriate expertise to provide medical treatment, access requirements are satisfied and employee must select primary treating physician from within MPN, that access standards applicable to defendant’s MPN for rural geographic area require that defendant have at least three available primary treating physicians within 30 miles or 60 minutes of applicant’s workplace capable of treating applicant’s injury and three specialists who could treat injury within 120 minutes or 60 miles, that defendant established there were sufficient numbers of available physicians within rural geographic area with specialties capable of providing applicant’s primary care, even though there were not three physicians with specific specialty (orthopedics) selected by applicant, and that because access standards were satisfied applicant was not permitted to treat outside of MPN.  [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].]

Maria Arvizu De Guevara, Applicant v. La Golondrina, Inc., Ltd, California Insurance Company, Administered by Applied Risk Omaha, Defendants, 2016 Cal. Wrk. Comp. P.D. LEXIS 84 (lexis.com), 2016 Cal. Wrk. Comp. P.D. LEXIS 84 (Lexis Advance)

Medical Provider Networks—Access Standards—Treating Physicians—WCAB affirmed WCJ’s finding that defendant’s actions did not constitute denial of medical care, and that applicant was not entitled to treat outside defendant’s MPN for her orthopedic injuries incurred while employed during period 11/6/2007 through 11/6/2014, when there were over 50 orthopedic surgeons and 15 chiropractors in defendant’s MPN within 15 miles of applicant’s zip code, and WCAB found that applicant’s efforts in contacting only five orthopedic surgeons, of approximately 75 doctors on list, who would not accept her as patient did not shift burden to defendant to establish that reasonable treatment was available within MPN, and WCAB also noted that applicant’s counsel did not attempt to avail himself of medical access assistant to help applicant find available physician in MPN, as provided for under Labor Code § 4616(a)(5).  [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

Connie Shepard Thompson, Applicant v. County of Los Angeles, PSI, Defendant, 2016 Cal. Wrk. Comp. P.D. LEXIS 107 (lexis.com), 2016 Cal. Wrk. Comp. P.D. LEXIS 107 (Lexis Advance)

Medical Treatment—Reporting Requirements—Medical Treatment Utilization Schedule—WCAB, reversing WCJ, held that reporting of applicant’s treating physician, Eric Spayde, M.D., requesting authorization for low back surgery, was not substantial evidence to support finding that surgery was reasonable and necessary, when Dr. Spayde requested authorization for low back surgery in multiple reports based on applicant’s complaints of severe low back pain, which correlated to MRI results showing stenosis at L4-5, attached reports concerning lumbar epidural injections and medications, and requested “peer-to-peer” discussion to discuss necessity of proposed lumbar spine surgery, but WCAB found that Dr. Spayde did not justify his recommendation for lumbar surgery by reference to Medical Treatment Utilization Schedule guidelines or address issue of reasonableness and necessity by reference to other elements of hierarchy for evidence-based standards and medical opinion, such as peer-reviewed scientific and medical evidence regarding effectiveness of disputed treatment, nationally recognized professional standards, expert opinion, generally accepted standards of medical practice, and treatments that are likely to provide benefit to patient for condition for which other treatments are not clinically efficacious.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 22.08[3], 26.06[12][b][ii]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 4, § 4.09[1], [4], [5].]

Robert Dallas, Applicant v. Pan Pacific Petroleum, National Union Fire Insurance Company, Administered by AIG Property Casualty, Defendants, 2016 Cal. Wrk. Comp. P.D. LEXIS 116 (lexis.com), 2016 Cal. Wrk. Comp. P.D. LEXIS 116 (Lexis Advance)

Medical Treatment—Utilization Review—Time Deadlines—WCAB, affirming WCJ, held that defendant’s 9/29/2014 utilization review (UR) decision denying spinal surgery requested on 9/4/2014 by primary treating physician Alan Moelleken, M.D., to treat applicant’s 1/9/2011 back injury, was untimely pursuant to Bodam v. San Bernardino County/Department of Soc. Servs. (2014) 79 Cal. Comp. Cases 1519 (Appeals Board significant panel decision), when WCAB concluded that Labor Code § 4610(g)(3)(A) clearly requires UR decisions to be communicated by “telephone or facsimile” to requesting physician within 24 hours of decision and communicated to physician and employee “in writing” within 24 hours, that two-step requirement was confirmed by Court of Appeal in Bodam, that in this case defendant complied with first requirement in Labor Code § 4610(g)(3)(A) by faxing 9/29/2014 UR decision to Dr. Moelleken on same day, but did not communicate decision to Dr. Moelleken “in writing” as was also required by Labor Code § 4610(g)(3)(A), that defendant’s suggested interpretation of rule that only communication by telephone must be followed by written notice to requesting physician is inconsistent with two-step process mandated by Legislature in Labor Code § 4610(g)(3)(A), that pursuant to Bodam, UR decision that is timely made but not timely communicated, such as decision in this case, is untimely and invalid, and that WCJ correctly applied Bodam to determine necessity of spinal surgery requested by Dr. Moelleken.  [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.]

Maria Elena Grijalva, Applicant v. Care Administration and Management Professionals Cypress Insurance Company, Defendants, 2016 Cal. Wrk. Comp. P.D. LEXIS 121 (lexis.com), 2016 Cal. Wrk. Comp. P.D. LEXIS 121 (Lexis Advance)

Medical Treatment—Utilization Review—WCAB granted removal and rescinded WCJ’s order issued after closure of discovery directing orthopedic panel qualified medical evaluator Robert Ferretti, M.D., to comment on medical treatment proposed by applicant caregiver’s treating physician earlier denied by valid utilization review (UR) and independent medical review (IMR), when WCAB concluded that order was improper because any further effort by applicant to obtain treatment for her 9/26/2012 back injury must be by submission of new request for authorization of treatment pursuant to Labor Code § 4610 and not by soliciting opinion from panel qualified medical evaluator, and that allowing applicant to reopen discovery by obtaining supplemental report from Dr. Ferretti concerning disputed treatment after discovery was closed and after authorization was denied by UR and IMR was contrary to Labor Code § 5502(d)(3).  [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, Ch. 19, § 19.37.]

Curtis Klein, Applicant v. Warner Bros. Studio, PSI, Defendant, 2016 Cal. Wrk. Comp. P.D. LEXIS 236 (lexis.com), 2016 Cal. Wrk. Comp. P.D. LEXIS 236 (Lexis Advance)

Medical Treatment—Utilization Review—Time Deadlines—WCAB affirmed WCJ’s award of reimbursement for medical treatment provided by secondary treating physician Marina Russman, M.D., as well as other lien claimants whose services were provided in conjunction with Dr. Russman’s treatment for applicant vault clerk’s 1/15/2009 industrial back injury, when WCAB rejected defendant’s assertion that it was not obligated to reimburse cost of medical treatment because primary treating physician did not properly submit request for authorization (RFA) for purposes of triggering defendant’s duty to undertake utilization review (UR) and that it had no obligation to submit secondary treating physician’s RFA to UR, when WCAB reasoned that there is no express requirement in Labor Code or Administrative Director Rules that RFA may only be submitted by primary treating physician, and little support in case law for defendant’s position that RFA submitted by secondary treating physician is not subject to UR, that fact that primary treating physician has specific duties vis-à-vis communicating with claims adjuster about employee’s medical condition and treatment does not diminish role of secondary treating physician who has been invited to apply his or her specialized expertise to assist in employee’s treatment, where treating physician may lack such expertise, that, here, Dr. Russman acted as secondary physician when she undertook to examine applicant and provide medical treatment in form of course of epidural injections, that Dr. Russman submitted multiple RFAs to defendant seeking to obtain authorization for recommended treatment and defendant had duty to submit Dr. Russman’s RFAs to UR, and that WCJ properly found there was substantial medical evidence to establish that medical treatment rendered by Dr. Russman was reasonable and necessary and relied upon parties’ stipulation of industrial causation of applicant’s injury and his need for further medical treatment.  [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.]

Maria Uribe Ramos, Applicant v. Patterson Frozen Foods, Inc., California Insurance Guarantee Association for Fremont Indemnity, in liquidation, Defendants, 2016 Cal. Wrk. Comp. P.D. LEXIS 27 (lexis.com), 2016 Cal. Wrk. Comp. P.D. LEXIS 27 (Lexis Advance)

Medical Treatment—Independent Medical Review—Appeals—WCAB, in split panel opinion, affirmed WCJ’s denial of applicant’s appeal of 3/12/2015 independent medical review (IMR) determination upholding utilization review (UR) decision pertaining to applicant’s request for various prescription medications, when WCAB, like WCJ, rejected applicant’s position that under Patterson v. The Oaks Farm (2014) 79 Cal. Comp. Cases 910 (Appeals Board significant panel decision), defendant was required to show change in applicant’s condition or circumstance to support UR of requested prescription refills and found that Patterson, which involved nurse case manager services, did not apply to prescription medications because prescription medication, by its nature, is subject to ongoing evaluation to address its efficacy and necessity; however, WCAB rescinded WCJ’s denial of applicant’s appeal of 2/4/2015 IMR determination and entered new order upholding appeal of 2/4/2015 IMR determination because it issued based upon incomplete medical record regarding applicant’s use of medication Flexeril, in excess of Administrative Directors powers as described in Labor Code § 4610.6(h)(1), and WCAB remanded treatment dispute addressed by IMR to Administrative Director to conduct new IMR as provided in Labor Code § 4610.6(i); Commissioner Sweeney concurred with majority’s decision to grant applicant’s IMR regarding medication Flexeril but, contrary to panel majority, found that grounds specified in Labor Code § 4610.6(h)(5) provide additional basis for granting appeal of 2/4/2015 IMR determination, and also provided basis for granting appeal of 3/12/2015 IMR determination, when Commissioner Sweeney found that it was plainly erroneous mistake of fact as matter of ordinary knowledge for IMR reviewer in both instances to not recognize treating physician’s report documenting existence of shoulder spasms and improvement in applicant’s pain and functional status with use of requested medications, and for IMR reviewer to deny medications that resulted in functional improvement based simply on manner in which treating physician assessed applicant’s increased functionality and on basis that medication was prescribed in oral form instead of as intrathecal agent.  [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, § 4.11.]

PERMANENT DISABILITY

Robert Podesta, Applicant v. Evening Post Publishing, Travelers Insurance Company, Defendants, 2016 Cal. Wrk. Comp. P.D. LEXIS 52 (lexis.com), 2016 Cal. Wrk. Comp. P.D. LEXIS 52 (Lexis Advance)

Permanent Disability—Rating—AMA Guides—WCAB rescinded WCJ’s award of 100 percent permanent total disability to applicant master control operator who incurred admitted industrial back injury on 7/23/2012, and returned matter to WCJ for further development of medical record with regard to proper rating of applicant’s permanent disability, when qualified medical evaluator Thor Gjerdrum, M.D., provided 16 percent whole person impairment based upon strict application of AMA Guides and did not provide alternative or rebuttal rating or other basis to support award of 100 percent permanent total disability, and applicant presented no vocational evidence to rebut scheduled rating by establishing that his amenability to rehabilitation was impaired, and WCAB concluded that there was no substantial evidence in record to support WCJ’s finding of permanent total disability, and that WCJ was not permitted to undertake his own assessment of Dr. Gjerdrum’s findings to determine that description of applicant’s activities of daily living in Dr. Gjerdrum’s report was sufficient to justify award of permanent total disability.  [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.]

Maureen Hikida, Applicant v. Costco Wholesale, PSI, Defendant, 2016 Cal. Wrk. Comp. P.D. LEXIS 72 (lexis.com), 2016 Cal. Wrk. Comp. P.D. LEXIS 72 (Lexis Advance)

Permanent Disability—Rating—Apportionment—WCAB, in split panel opinion, rescinded WCJ’s finding that applicant sales auditor’s industrial cumulative injury to upper extremities and in form of complex regional pain syndrome (CRPS) caused 90 percent permanent disability after apportionment, and remanded matter for further proceedings, when WCAB found that applicant also suffered psychiatric injury as result of chronic pain and impairment, that WCJ failed to address permanent disability caused by psychiatric injury, and that applicant’s psychiatric injury was separate causative source of permanent disability that needed to be considered with other causative sources to determine extent of applicant’s permanent disability; although WCAB found that WCJ erroneously failed to consider applicant’s psychiatric injury in determining extent of applicant’s permanent disability, and rescinded award on that basis, WCAB panel majority concluded that WCJ correctly apportioned 10 percent of permanent total disability caused by applicant’s CRPS to nonindustrial factors based on agreed medical examiner’s finding that CRPS resulted entirely from surgery applicant underwent to treat her carpal tunnel condition, which was found to be 10 percent nonindustrial; Commissioner Sweeney, dissenting, believed that it was error for WCJ to apportion permanent disability resulting entirely from medical treatment to treat industrial carpal tunnel injury based on causes of underlying injury being treated and not on cause of permanent disability, contrary to requirements of Labor Code § 4663 and Escobedo v. Marshalls (2005) 70 Cal. Comp. Cases 604 (Appeals Board en banc opinion), and she would find applicant 100 percent permanently totally disabled as result of her industrial CRPS.  [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, §§ 7.11, 7.12, 7.40[1], 7.42[1], [2], [4]; The Lawyer’s Guide to the AMA Guides and California Workers’ Compensation, Chs. 9, 10.]

Billy Branham, Applicant v. Arroyo Grande Glass, State Compensation Insurance Fund, Defendants, 2016 Cal. Wrk. Comp. P.D. LEXIS 197 (lexis.com), 2016 Cal. Wrk. Comp. P.D. LEXIS 197 (Lexis Advance)

Permanent Disability—Rating—Vocational Evidence—WCAB, in split panel opinion, rescinded WCJ’s finding that applicant was entitled to permanent disability award of 63 percent, and returned matter to trial level for development of medical and vocational records regarding effects of applicant’s medications relative to extent of his permanent disability, when WCJ had rejected opinion of applicant’s vocational expert, P. Steve Ramirez, who concluded that combined effects of applicant’s physical condition after industrial injury and of medications Norco and Gabapentin prescribed to treat his industrial back injury resulted in permanent total disability, but, given medical history documented by agreed medical examiners in orthopedics and internal medicine regarding applicant’s long-standing use of pain-killers, WCAB panel majority disagreed with WCJ’s suggestion that it was inappropriate for Mr. Ramirez to consider cognitive effects of industrially-prescribed medications on applicant’s ability to compete in open labor market, and concluded that such opinion from vocational expert may be sufficient, in conjunction with medical expert opinion, to support finding of permanent total disability, and that rather than dismiss Mr. Ramirez’s opinion, it was appropriate to further develop medical and vocational records to investigate cognitive effects of medications on applicant’s work restrictions and on his ability to compete in open labor market; Commissioner Razo, dissenting, would affirm WCJ’s 63 percent permanent disability award on basis that Mr. Ramirez’s opinion did not constitute substantial evidence because, Commissioner Razo found, Mr. Ramirez (1) improperly provided analysis of applicant’s diminished future earning capacity as relevant to 2005 Permanent Disability Rating Schedule, when he should have analyzed whether applicant could be retrained for suitable gainful employment consistent with LeBoeuf v. W.C.A.B. (1983) 34 Cal. 3d 234, 193 Cal. Rptr. 547, 666 P.2d 989, 48 Cal. Comp. Cases 587, because applicant’s permanent disability was subject to determination under 1997 Schedule for Rating Permanent Disabilities, (2) considered medical factors that were beyond his expertise and were not contained in reports of medical evaluators, and (3) was not qualified to offer opinion on any restrictions applicant may have under 1997 Schedule, because he is not physician.  [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, Ch. 8.]

Manny Winningham, Applicant v. State of California Department of Corrections, Legally Uninsured, Defendants, 2016 Cal. Wrk. Comp. P.D. LEXIS 251 (lexis.com), 2016 Cal. Wrk. Comp. P.D. LEXIS 251 (Lexis Advance)

Permanent Disability—Apportionment—Permanent Total Disability—WCAB affirmed WCJ’s finding that applicant correctional officer’s 1/21/2010 industrial injury to his brain, central nervous system, psyche, eye, digestive system, cognitive system, and in forms of meningitis, headaches and vertigo, caused 84 percent permanent disability, after apportionment, and that applicant’s injury did not cause “an injury to the brain resulting in permanent mental incapacity” for purposes of Labor Code § 4662(a)(4) conclusive presumption of permanent total disability, when WCAB concluded that, although combination of applicant’s disabilities rendered him permanently totally disabled “in accordance with the fact” pursuant to Labor Code § 4662(b), conclusive presumption only arises when injury to brain causes severe cognitive impairment, that applicant did sustain serious psychological symptoms as result of his injury, including GAF score of 45, corresponding to “Serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep job) under 2005 Permanent Disability Rating Schedule, and that partially because of these serious psychiatric impairments WCJ found that applicant sustained 100 percent permanent total disability, but, when viewed alone, partial cognitive impairments sustained by applicant as result of his injury were not sufficient to raise Labor Code § 4662(a)(4) presumption and, therefore, applicant’s permanent disability was apportionable.  [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, §§ 7.40[1], 7.42[1], [2], [4]; The Lawyer’s Guide to the AMA Guides and California Workers’ Compensation, Ch. 9.]

PETITIONS TO REOPEN

Andrew Weitnauer, Applicant v. Sacramento County Sheriff’s Department, Defendant, 2016 Cal. Wrk. Comp. P.D. LEXIS 171 (lexis.com), 2016 Cal. Wrk. Comp. P.D. LEXIS 171 (Lexis Advance)

Petitions to Reopen—Change in Disability Status—WCAB Jurisdiction—WCAB rescinded WCJ’s 3/3/2015 Amended Findings and Award issued in response to applicant’s Petition to Reopen for increased disability and reinstated original findings and award issued on 9/12/2011, when Amended Findings and Award reopened original award and found that applicant’s permanent disability with respect to his heart injury had decreased from prior award of 82 percent to current level of 45 percent based on agreed medical evaluator’s reporting, and WCAB concluded that WCAB lacked jurisdiction under Labor Code § 5804 to issue award which reduced applicant’s permanent disability when no petition to reduce permanent disability was filed by defendant within five years of date of injury, even though defendant had ample time prior to running of five-year jurisdictional period to file petition to reduce permanent disability, and no counter-petition was filed within 30 days of applicant’s Petition to Reopen for increased disability.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 31.04[2][b], [3]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 14, §§ 14.04, 14.06[2].]

PSYCHIATRIC INJURY

Barbara Olden, Applicant v. State of California, Department of Corrections, legally uninsured administered by State Compensation Insurance Fund, Defendants, 2016 Cal. Wrk. Comp. P.D. LEXIS 3 (lexis.com), 2016 Cal. Wrk. Comp. P.D. LEXIS 3 (Lexis Advance)

Psychiatric Injury—Good Faith Personnel Actions—Physical Injury—WCAB, affirming WCJ, held that applicant’s claim for industrially-related hypertension was not barred under holding in County of San Bernardino v. W.C.A.B. (McCoy) (2012) 203 Cal. App. 4th 1469, 138 Cal. Rptr. 3d 328, 77 Cal. Comp. Cases 219, notwithstanding that applicant’s psychiatric claim was found non-compensable pursuant to good faith personnel action defense in Labor Code § 3208.3(h), when WCAB reasoned that stress, in itself, does not constitute psychiatric injury although stress can cause psychiatric or physical injury, that type of job stress that caused applicant’s hypertension in this case was different than stress that caused her psychiatric injury, as stress causing her hypertension resulted over time from her regular work duties, employment environment and relationships with coworkers, whereas stress causing psychiatric injury related to applicant’s interactions with her supervisor and perceived harassment by that supervisor which occurred later in applicant’s employment and which were determined to be good faith personnel actions, that applicant met her burden of proving that her hypertension was aggravated by work stress based on opinion of agreed medical examiner, and that defendant did not prove applicant’s hypertension was solely caused by her psychiatric injury.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 4.02[3][a], [b], [f], 4.69[3][a], [b], [d]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 10, § 10.06[3][b], [d].]

Deborah Larsen, Applicant v. Securitas Security Services, PSI, adjusted by Sedgwick CMS, Defendants, 2016 Cal. Wrk. Comp. P.D. LEXIS 237 (lexis.com), 2016 Cal. Wrk. Comp. P.D. LEXIS 237 (Lexis Advance)

Psychiatric Injury—Violent Acts—Increased Permanent Disability—WCAB affirmed WCJ’s findings that applicant security guard sustained compensable psychiatric injury which resulted in 56 percent permanent disability, after apportionment and after combination with permanent disability to applicant’s shoulders, and that applicant’s psychiatric permanent disability was separately compensable because it resulted from “violent act” in accordance with Labor Code § 4660.1(c), when applicant’s accepted orthopedic and alleged psychiatric injury occurred as result of being hit by car while walking through parking lot on 2/21/2013, and, although defendant asserted that being hit by car was not “violent act” under Labor Code § 4660.1 because it was not act of criminal or quasi-criminal nature perpetrated against applicant, WCAB concluded that, where Legislature did not include any language in Labor Code § 3208.3(b) limiting definition of “violent act” to either criminal or quasi-criminal conduct perpetrated against applicant, for purposes of Labor Code § 3208.3(b), “violent act” is not limited solely to criminal or quasi-criminal activity, and may include other acts that are characterized by either strong physical force, extreme or intense force, or are vehemently or passionately threatening, and that applicant in this case, who was hit by car from behind with enough force to cause her to fall, hit her head and lose consciousness, was victim of “violent act” within definition of Labor Code § 3208.3(b) for purposes of receiving additional permanent disability for her psychological injury as exception to Labor Code § 4660.1(c).  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 4.02[3][a], [b], [f], 4.69[3][a], 4.69[1], 8.02[4][c][ii], [5], 32.02[2][a]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 7, § 7.05[3][b][i][ii], 7.06[6], Ch. 10, § 10.06[3][a], [b][i].]

SUBSEQUENT INJURIES BENEFITS TRUST FUND

Charles Geletko, Applicant v. California Highway Patrol, Subsequent Injuries Benefits Trust Fund, Defendants, 2016 Cal. Wrk. Comp. P.D. LEXIS 202 (lexis.com), 2016 Cal. Wrk. Comp. P.D. LEXIS 202 (Lexis Advance)

Subsequent Injuries Benefits Trust Fund—Calculation of Permanent Disability—Combining Disabilities—WCAB, amending WCJ’s decision for sole purpose of correcting clerical error, found that applicant met his burden of proof pursuant to Labor Code § 4751 to establish that he suffered subsequent industrial injury through 6/5/2013 which caused permanent disability of at least 35 percent, considered alone and without regard to adjustment for age and occupation, and that applicant’s combined permanent disability was 82 percent, thereby entitling him to SIBTF benefits; in finding SIBTF liability, WCAB concluded that WCJ properly adjusted applicant’s unadjusted impairment standards for spine, cardiovascular, gastric and head impairments by factor of 1.4 and then added impairments, rather than combining disabilities using Combined Values Chart (CVC), to find that applicant’s subsequent injury met 35 percent threshold in Labor Code § 4751, when WCAB reasoned that (1) Labor Code § 4751 expressly excludes adjustment for age and occupation from calculation of permanent disability but makes no mention of 1.4 modifier, (2) pursuant to Labor Code § 4660.1 (applicable to injuries occurring on or after 1/1/2013), permanent disability, when considered alone and without regard to age or occupation as described in Labor Code § 4751, is based solely on “the nature of the physical injury or disfigurement” under AMA Guides multiplied by 1.4, (3) Legislature’s creation of 1.4 modifier in 2013, without amending Labor Code § 4751 at same time to exclude modifier from consideration of permanent disability “when considered alone,” exhibited Legislature’s intent to exclude only age and occupation adjustments when considering disability alone, and (4) under 2005 Permanent Disability Rating Schedule, combination of impairments under CVC can only occur after adjustment for age and occupation, which is not permitted under Labor Code § 4751, and, therefore, CVC cannot be used to determine permanent disability for purposes of 35 percent threshold to qualify for SIBTF benefits.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 24.03[8], 31.20[4][d]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 8, § 8.09, Ch. 14, § 14.10.]

Elizabeth Cochran, Applicant v. Subsequent Injuries Fund, Winship Properties, State Compensation Insurance Fund, Defendants, 2016 Cal. Wrk. Comp. P.D. LEXIS 198 (lexis.com), 2016 Cal. Wrk. Comp. P.D. LEXIS 198 (Lexis Advance)

Subsequent Injuries Benefits Trust Fund—Commencement of Benefits—WCAB affirmed WCJ’s finding that applicant with cumulative back injury ending on 7/1/2001 was entitled to award of SIBTF benefits commencing on date applicant’s condition became permanent and stationary, rather than on date her temporary total disability payments ended, and found that applicant’s reliance on Brower v. David Jones Construction (2014) 79 Cal. Comp. Cases 550 (Appeals Board en banc opinion), was misplaced, when WCAB reasoned that, unlike employee in Brower, applicant here was injured prior to 4/19/2004 amendment of Labor Code § 4656, which added 104-week cap on temporary disability, and that analysis in Brower, which addresses coordination of temporary and permanent disability benefits, does not apply to SIBTF benefits.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 24.03[8], 31.20[4][d]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 8, § 8.09, Ch. 14, § 14.10.]