Workers' Compensation

California: Top 25 Noteworthy Panel Decisions (January through June 2019)

LexisNexis has selected some of the top “noteworthy” panel decisions issued by the California Workers’ Compensation Appeals Board during the period January through June 2019. The list features panel decisions addressing the exchange of information and ex parte communications with medical evaluators, including a case illustrating how the WCAB will apply the recent decision in Suon v. California Dairies (2018) 83 Cal. Comp. Cases 1803 (Appeals Board en banc decision), when parties seek a new medical evaluator, and a case discussing when it is appropriate for medical evaluators to obtain information from an injured employee’s family.

Also on the list are a number of split panel decisions, including one in which the Commissioners are divided on the issue of whether the presumption of compensability in Labor Code § 5402(b) applies to the good faith personnel action defense to psychiatric claims, and another where the Commissioners disagree as to whether a diagnosis of pneumonitis falls within the Labor Code § 3212.10 pneumonia presumption applicable to specified public safety employees.

One of the top noteworthy panel decisions to issue so far this year broadly interprets the holding in Department of Rehabilitation v. W.C.A.B. (Lauher) (2003) 30 Cal. 4th 1281, 135 Cal. Rptr. 2d 665, 70 P.3d 1076, 68 Cal. Comp. Cases 831, making it easier for injured workers to prove discrimination under Labor Code § 132a. Another significant case on the list holds that it is the employer’s burden to secure a physician’s return-to-work form upon being advised of an injured worker’s permanent disability status for purposes of supplemental job displacement benefits.

Finally, two bonus cases are included here. In one, the WCAB finds that home care services cannot be limited based on provisions of the 2009 MTUS and should be assessed applying the new 2016 MTUS guidelines. The other is the first case to highlight the drug formulary and explain the difference between drugs that are and drugs that are not exempt from UR.

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, as these decisions are subject to appeal. 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. Practitioners should check the subsequent history of each case before citing to it.

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ALTERNATIVE DISPUTE RESOLUTION

■ John Manning, Applicant v. Orange County Fire Authority, PSI, administered by Corvel, 2019 Cal. Wrk. Comp. P.D. LEXIS 191

Alternative Dispute Resolution—WCAB Jurisdiction—WCAB, granting removal, rescinded WCJ’s finding that applicant fire captain was precluded from obtaining evaluation by independent medical examiner for his 1/24/2018 specific injury claim of skin cancer, which was subject to alternative dispute resolution (ADR) agreement, based on fact that applicant had previously obtained panel qualified medical evaluator for cumulative injury that was not subject to ADR, and WCAB returned matter to trial level for further proceedings, when WCAB determined that existing record was unclear as to whether, given ADR agreement was applicable to specific injury, WCAB had jurisdiction to resolve medical-legal dispute between parties, and, citing Hordwedel v. County of Los Angeles, 2013 Cal. Wrk. Comp. P.D. LEXIS 425 (Appeals Board noteworthy panel decision), WCAB reasoned that it has limited jurisdiction over disputes arising from claims subject to ADR, and parties must exhaust their remedies in ADR program before seeking intervention from WCAB, but where ADR agreement does not provide specific process to address disputed issue, WCAB has jurisdiction to decide, in first instance, whether issue should be addressed within ADR program or by WCAB, that ADR agreement in this case did not address how disputes regarding entitlement to independent medical examiners may be resolved absent agreement to voluntary mediation, that although parties stipulated that WCAB could address dispute, jurisdiction may not be conferred by stipulation, and that because both parties may be significantly prejudiced by continuing to adjudicate disputed issues in forum potentially acting without jurisdiction, matter must be returned to WCJ for determination regarding whether WCAB has jurisdiction to resolve parties’ medical-legal discovery dispute or whether dispute must be resolved through ADR process. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 1.04A, 1.11[3][g], 26.03[4]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 16, § 3.04[3], Ch. 19, § 19.37.]

AVERAGE WEEKLY WAGES

■ Sandra Brooks v. E. I. Dupont, 2018 Cal. Wrk. Comp. P.D. LEXIS 611

Average Weekly Wages—Earning Capacity—Post-Injury Earnings—WCAB amended WCJ’s finding to clarify that applicant who suffered industrial injuries to her knees and lumbar spine while working as administrative assistant on 12/5/2002 and 2/11/2003 was entitled to temporary disability rate based on wages actually earned at time her temporary disability began in 2007, and WCAB rejected WCJ’s position that applicant’s average weekly wage should be based on her earnings at time of her injuries rather than her post-injury earnings, when WCAB reasoned that because applicant’s temporary disability arose many years after her injury and applicant had multiple changes in job title with increased earnings, it was appropriate to award temporary disability based on applicant’s actual wages on date her temporary disability commenced. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 6.02; Rassp & Herlick, California Workers’ Compensation Law, Ch. 5, §§ 5.01, 5.04.]

DISCOVERY

■ Brian Collins v. City of Vacaville, PSI and administered by Innovative Claims Solutions, Inc., 2019 Cal. Wrk. Comp. P.D. LEXIS 3 [also reported at (2019) 84 Cal. Comp. Cases 340 (Appeals Board noteworthy panel decision)]

Discovery—Subpoena Duces Tecum—Police Officer Personnel/Medical Records—WCAB granted defendant’s Petition for Removal challenging WCJ’s Order Quashing Subpoenas Duces Tecum, wherein WCJ quashed defendant’s subpoenas seeking personnel records from applicant police officer’s former employers because defendant did not comply with requirements of Evidence Code §§ 1043-1046, which describe procedure that parties must follow to obtain discovery of information relating to peace officers and custodial officers protected by Penal Code §§ 832.7 and 832.8, when WCAB concluded that compliance with Evidence Code §§ 1043-1046 is not required where defendant in workers’ compensation proceeding seeks routine discovery of personnel and medical records that applicant put into issue by filing claim, such as occurred in this case; WCAB reasoned that depriving defendant of access to applicant’s medical/personnel records when applicant’s medical condition is at issue would be unreasonable and would not comport with purposes of Penal Code §§ 832.7 and 832.8 and Evidence Code §§ 1043-1046, which were enacted by Legislature to curtail practice of record shredding by police departments and to protect police personnel records from random discovery by defendants asserting self-defense to charges of criminal assault on police officers; WCAB, in returning case to WCJ for further proceedings, emphasized that WCJ retains right to determine whether subpoenas in question are overbroad, unclear, burdensome, or otherwise inappropriate. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 1.11[3][g], 25.40, 25.43, 26.03[4]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 15, § 15.45, Ch. 19, § 19.37.]

DISCRIMINATION

■ Oscar Franco v. MV Transportation, Inc., 2019 Cal. Wrk. Comp. P.D. LEXIS 120 [also to be reported in the July issue of Cal. Comp. Cases]

Discrimination—Labor Code § 132a—WCAB rescinded WCJ’s finding that employer did not violate Labor Code § 132a by discharging applicant from his position as bus driver for four months without pay pending clarification from agreed medical examiner regarding applicant’s work restrictions, notwithstanding that applicant had already been released to work by his treating physician and had been working full duty for four months, and WCAB remanded matter for further development of record, when WCAB found evidentiary record lacking with respect to whether applicant could establish prima facie case for discrimination and whether defendant could defeat claim; although WCAB did not decide whether there was Labor Code § 132a violation due to deficient record, WCAB, interpreting Supreme Court’s decision in Department of Rehabilitation v. W.C.A.B. (Lauher) (2003) 30 Cal. 4th 1281, 135 Cal. Rptr. 2d 665, 70 P.3d 1076, 68 Cal. Comp. Cases 831, concluded that injured worker is not required, in every case, to prove that he or she was “singled out for disadvantageous treatment” to establish prima facie case for discrimination, that more broadly interpreted, Lauher requires employee to show that, based on specific factual scenario underlying his or her discrimination claim, he or she was subject to “disadvantages not visited on other employees” because of injury, that although applicant here was ostensibly treated same as non-industrially injured workers with respect to his work release, employer’s apparent lack of policy with regard to handling medical-legal reports that conflict with opinion of treating physician that releases employee to work could be found to adversely affect industrially-injured workers in way that does not equally affect non-industrially-injured workers (who would presumably remain on job once released to work after injury or illness), thereby subjecting applicant to disadvantages not visited upon other employees because of his injury, and that if, on remand, applicant establishes prima facie case of Labor Code § 132a violation by showing he suffered such disadvantages, employer retains right to defeat applicant’s discrimination claim by showing that employer acted out of business necessity. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 10.11[1]-[3]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 11, § 11.27[1], [6][a].]

EMPLOYMENT RELATIONSHIPS

■ Rosenda Rodriguez v. Fairway Staffing, 2019 Cal. Wrk. Comp. P.D. LEXIS 124

Employment Relationships—Concurrent Employment—Professional Employer Organizations—WCAB affirmed WCJ’s finding that applicant was not employee of Solvis Staffing Services, Inc. (Solvis) on her dates of injury, but was employee of Fairway Staffing Services (Fairway), as her general employer, and Fresh Grill Foods (Fresh Grill), as her special employer, for claimed 10/11/2016 industrial injury at Fresh Grill, and was employee of Fairway for claimed 12/14/2016 injury at Fairway, when WCAB found that based on panel’s decision in Serrano v. Exact Staff (2016) 81 Cal. Comp. Cases 777 (Appeals Board noteworthy panel decision), Solvis’ role as Professional Employer Organization (PEO) for Fairway was for workers’ compensation insurance coverage and liability purposes only and did not, in itself, create employment relationship between applicant and Solvis for purposes of finding concurrent employment with Fairview, as these are two completely separate issues, that although Solvis, pursuant to PEO contract with Fairview, was responsible for paying payroll taxes, insurance and other administrative items, Fairway directly paid applicant his wages, thereby indicating that Solvis acted solely in capacity of payroll service for Fairway with additional contractual obligation to provide workers’ compensation insurance and not as applicant’s actual employer, that there was no evidence in record to support finding that Solvis was actually applicant’s employer, and that issue of whether Solvis was applicant’s employer for purposes of insurance coverage and liability was not before WCAB and was issue subject to mandatory arbitration at later time. [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.]

JURISDICTION

■ Donald Audette v. Los Angeles Kings, 2019 Cal. Wrk. Comp. P.D. LEXIS 137

WCAB Jurisdiction—Professional Athletes—WCAB rescinded WCJ’s decision that California had jurisdiction over applicant’s claim for industrial injuries incurred while applicant was employed as professional hockey player for various teams between 1989 and 2004, and returned matter to trial level for further proceedings on issue of whether insurance policies issued to employers Montreal Canadiens (Montreal) and Florida Panthers (Florida) met requirements of Labor Code § 3600.5(c)(1)(A) and (B) for purposes of exemption from California jurisdiction under Labor Code § 3600.5(d), when WCAB reasoned that exemption applies to cumulative trauma claim asserted by professional athlete hired in state other than California when athlete is temporarily doing work in California, if employer proves, pursuant to Labor Code § 3600.5(c)(1)(A) and (B), that it furnished workers’ compensation coverage or its equivalent under laws of state other than California and that insurance policy covers professional athlete’s work while in California, that although both Montreal and Florida met initial requirements for exemption under Labor Code § 3600.5(d) in that both employers hired applicant outside California, applicant worked in California at least once during his last year of employment with each employer and worked less than 20 percent of his duty days for both employers in this state, neither Montreal nor Florida met burden of establishing, either through stipulation or evidence presented, that coverage requirements of Labor Code § 3600.5(c)(1)(A) and (B) were met, and that further development of record was necessary on issue of employers’ insurance coverage to allow determination regarding whether employers were exempt from California jurisdiction; in finding that Labor Code § 3600.5(c) was applicable to Montreal, WCAB determined that requirement for exemption in Labor Code § 3600.5(c)(1)(A) that employer furnish proof of workers’ compensation insurance coverage or its equivalent “under the laws of a state other than California,” is not limited to states of United States of America, as argued by applicant, but also includes foreign jurisdictions. [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].]

MEDICAL-LEGAL PROCEDURE

■ Jose Villanueva v. Vallarta Supermarket, 2019 Cal. Wrk. Comp. P.D. LEXIS 64

Medical-Legal Procedure—Exchange of Information—Ex Parte Communications—WCAB affirmed WCJ’s finding that applicant suffered injury AOE/COE to his back while employed as meat clerk on 9/10/2017, and that report of chiropractic panel qualified medical evaluator Lauren Papa, D.C., was admissible at trial despite defendant’s assertion that applicant engaged in impermissible ex parte communication and disclosure of information to Dr. Papa by providing Dr. Papa with certain medical/hospital records at time of her evaluation in violation of Labor Code § 4062.3, when WCAB found that defendant did not timely raise issue of whether applicant’s disclosure of medical records without prior service on defendant violated Labor Code § 4062.3(b), nor specific issue of whether there was ex parte communication by applicant, and even if applicant’s provision of information to Dr. Papa was inappropriate under Labor Code § 4062.3(b), defendant did not seek to terminate evaluation with Dr. Papa after becoming aware of communication and, in fact, conducted additional discovery with Dr. Papa following ex parte communication, thereby relinquishing its right to terminate evaluation and seek new qualified medical evaluator pursuant to Labor Code § 4062.3(g) and WCAB’s decision in Suon v. California Dairies (2018) 83 Cal. Comp. Cases 1803 (Appeals Board en banc decision). [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 22.06[1][d], [3], 22.11[18]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 15, § 15.03[4][d], [e].]

■ Arturo Trujillo v. TIC - The Industrial Company, 2019 Cal. Wrk. Comp. P.D. LEXIS 90

Medical-Legal Procedure—Exchange of Information—Ex Parte Communications—WCAB affirmed WCJ’s finding that neuropsychological agreed medical evaluator Marcel Ponton, Ph.D., did not engage in impermissible ex parte communication in violation of Labor Code § 4062.3(g) by interviewing applicant’s wife, when applicant suffered traumatic brain injury as result of 8/9/2012 industrial accident, and WCAB, relying on reasoning in Frost v. East Bay Municipal Utility District, 2012 Cal. Wrk. Comp. P.D. LEXIS 623 (Appeals Board noteworthy panel decision), found that in cases such as this where employee has memory issues, employee may be unable to provide medical-legal evaluator with accurate and adequate history during examination, making it appropriate for medical-legal evaluator to interview person most knowledgeable about employee to supplement employee’s history and symptoms as reported by employee and ensure that medical-legal report is substantial evidence, that as in Frost, in this matter Dr. Ponton’s interview with applicant’s wife occurred during applicant’s examination, provided critical information regarding applicant’s memory issues and changes in behavior, and was considered necessary by Dr. Ponton to fill in gaps created by applicant’s impaired memory, and that there was no reasonable basis for replacement medical-legal evaluator as requested by defendant where defendant had opportunity to depose Dr. Ponton about collateral interview with applicant’s wife and what effect, in any, it had on doctor’s opinion; although WCAB found no improper communication by Dr. Ponton based on interview with applicant’s wife, WCAB granted removal, rescinded WCJ’s decision and returned matter to trial level for further proceedings on issue of whether applicant violated Labor Code § 4062.3(c) by providing previously undisclosed medical records to Dr. Ponton at time of Dr. Ponton’s deposition, based on decisions in Maxham v. California Department of Corrections and Rehabilitation (2017) 82 Cal. Comp. Cases 136 (Appeals Board en banc opinion), and Suon v. California Dairies (2018) 83 Cal. Comp. Cases 1803 (Appeals Board en banc decision), which were both issued after WCJ issued decision in applicant’s case. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 1.11[3][g], 22.06[1][d], [3], 22.11[18], 26.03[4]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 15, § 15.03[4][d], [e], Ch. 19, § 19.37.]

■ Peter Luckhardt v. City of Tracy, 2019 Cal. Wrk. Comp. P.D. LEXIS 146

Medical-Legal Procedure—Assignment and Selection of Panel Qualified Medical Evaluators—WCAB affirmed WCJ’s finding that applicant fire captain was not precluded from obtaining qualified medical evaluator panel in pain management after becoming represented by counsel, even though Medical Unit had issued orthopedic qualified medical evaluator panel before applicant became represented, when WCAB reasoned that Labor Code Labor Code § 4062.1(e), which provides procedure for unrepresented worker to obtain qualified medical evaluator panel, only precludes employee from obtaining additional medical evaluation after becoming represented if employee “has received a comprehensive medical-legal evaluation under this section,” that under Romero v. Costco Wholesale (2007) 72 Cal. Comp. Cases 824 (Appeals Board significant panel decision), employee has “received” comprehensive medical-legal evaluation when employee attends and participates in examination with medical evaluator, that in instant matter applicant never attended evaluation with orthopedic panel qualified medical evaluator, and that pursuant to Romero and express language of Labor Code § 4062.2, once applicant became represented by counsel he was obligated to obtain medical-legal evaluation in accordance with Labor Code § 4062.2, and was entitled to obtain new qualified medical evaluator panel since no evaluation had taken place with physician from first panel; WCAB further found that, as party submitting qualified medical evaluator panel request, applicant had right to designate panel specialty and was not precluded from choosing different specialty than orthopedics, and that because applicant’s request was for new panel rather than replacement panel, applicant was not obligated to comply with regulations governing replacement panel requests. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 22.06[1][a], [b], 22.11[1], [5], [6]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 16, § 16.54[1], [5], [6].]

■ Anthony Taylor (deceased) v. Merced County Sheriff’s Department, 2019 Cal. Wrk. Comp. P.D. LEXIS 141

Medical-Legal Procedure—Assignment and Selection of Panel Qualified Medical Evaluators—Specialty Designation—WCAB affirmed WCJ’s finding that specialty of internal medicine for qualified medical evaluator panel was medically appropriate to evaluate applicant’s claim for death benefits stemming from her husband’s death from pancreatic cancer incurred while he was employed as correctional sergeant during period through 7/30/2011, when WCAB reasoned that applicant, as first party requesting panel, had right under Labor Code § 4062.2(b) to designate specialty in internal medicine, that although defendant had right to request replacement panel in another specialty under 8 Cal. Code Reg. § 31.5(a)(10), defendant had burden of proof, as party challenging appropriate specialty, to show that specialty of internal medicine was medically or otherwise inappropriate to address disputed medical issues in this matter, and defendant here did not present sufficient evidence to make this showing, that, as licensed qualified medical evaluator, panel qualified medical evaluator selected in this case was presumably capable of addressing causation and any other disputed medical issues within his scope of practice and area of clinical competency, that if there are disputed medical issues that internal medicine panel qualified medical evaluator is unable to address, including causation, it is presumed that he will advise parties of such pursuant to 8 Cal. Code Reg. § 35.5(d), and that if parties wish to challenge panel qualified medical evaluator’s conclusions, they may do so by engaging in further medical discovery. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 22.11[1], [2], [4], ; Rassp & Herlick, California Workers’ Compensation Law, Ch. 16, § 16.54[1], [2], [4].]

Medical-Legal Procedure—Sanctions—WCAB rescinded WCJ’s award of sanctions/attorney’s fees against defendant under Labor Code § 5813 and 8 Cal. Code Reg. § 10561 based on her finding that defendant engaged in bad faith conduct by challenging specialty designation of qualified medical evaluator panel, when WCAB reasoned that 8 Cal. Code Reg. §§ 31.1(b) and 31.5(a)(10) expressly permit parties to dispute appropriateness of medical specialty of panel with both Medical Director and WCJ, and that because defendant acted within its right to challenge specialty of existing panel pursuant to regulations, defendant’s contentions regarding appropriate medical specialty cannot be characterized as “indisputably without merit” or “not warranted under existing law.” [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 23.15; Rassp & Herlick, California Workers’ Compensation Law, Ch. 16, § 16.35.]

MEDICAL TREATMENT

■ Jorge Orozco v. Southland Framers, State Compensation Insurance Fund, 2019 Cal. Wrk. Comp. P.D. LEXIS 22 [In May 2019 Cal. Comp. Cases, see Orozco v. Southland Framers (2019) 84 Cal. Comp. Cases 445 (Appeals Board noteworthy panel decision)]

Medical Treatment—Utilization Review—WCAB, affirming WCJ, held that defendant did not conduct timely utilization review (UR) of applicant’s 5/9/2012 and 11/25/2014 requests for authorization for home health care services, thereby giving WCJ jurisdiction to determine medical necessity of disputed treatment, and further found that there was substantial evidence to support WCJ’s determination that defendant was liable for home health care services after 5/1/2012 for up to 12 hours per day, seven days per week, based on opinions of applicant’s treating physician and medical evidence establishing that applicant was “homebound” and unable to leave home or to perform activities of daily living without help, i.e., use of walker; WCAB noted that UR in this case applied incorrect treatment guideline in determining applicant’s need for home health care by relying on 2009 Medical Treatment Utilization Schedule (MTUS) guideline for home health care, which was subsequently determined to be invalid, and was replaced with new MTUS guideline in 2016, and although new guideline was not applicable in this case, WCAB found that it provided guidance regarding review of home health care prescriptions.[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.]

■ Jocelyn Bowen v. County of San Bernardino, 2019 Cal. Wrk. Comp. P.D. LEXIS 46

Medical Treatment—Independent Medical Review—Appeals—WCAB affirmed WCJ’s decision granting applicant’s appeal of 3/7/2016 independent medical review (IMR) determination upholding utilization review denial of prescription for Norco, when IMR reviewer denied authorization for Norco on basis that there was no documentation of functional improvement with use of Norco, notwithstanding that there was documentation of specific functional improvements in records not reviewed by IMR reviewer, and WCAB found that IMR physician is obligated to look at all submitted reports and to consider entire record prior to rendering determination, that denial of authorization based upon finding that there is “no documentation” when such documentation is, in fact, in IMR reviewer’s possession is plainly erroneous fact as matter of ordinary knowledge and not matter of expert opinion as described in Labor Code § 4610.6(h)(5), and it is also action taken without or in excess of Administrative Director’s powers as described in Labor Code § 4610.6(h)(1), that IMR reviewer here ignored clear and convincing evidence that use of prescribed opioid medications enabled applicant to perform activities of daily living and reduced her pain levels, and that as part of new IMR under Labor Code § 4610.6(i), applicant is permitted to re-submit 11/23/2015 IMR final determination approving Norco prescription in addition to medical reports of her treating physician. [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.]

■ Juan Castillo v. Piedra’s Machine Corporation, 2019 Cal. Wrk. Comp. P.D. LEXIS 119

Medical Treatment—Home Purchase/Modifications—WCAB, affirming WCJ, ordered defendant California Insurance Guarantee Association (CIGA) to purchase house for applicant who severely injured his back in slip-and-fall accident on 11/19/2009, or, alternatively to provide applicant with funds to purchase and modify house, as reasonable and necessary medical care under Labor Code § 4600, when applicant’s injury rendered him morbidly obese and in severely debilitated state, and WCAB found that CIGA was not exempt, by virtue of its status as organization which pays claims of insolvent insurers, from statutory requirement to provide reasonable and necessary medical care to injured workers with covered claims, that WCJ did not abuse his discretion by ordering CIGA to purchase, rather than rent, property for applicant’s use given difficulty and uncertainty of renting and modifying suitable property that would provide applicant with stable living arrangement, especially given that parties were unable to obtain appropriate rental housing after extensive search over approximately two years, and that WCJ equitably balanced applicant’s and CIGA’s rights by allowing CIGA, if CIGA purchased property, to retain full title to property and to charge applicant rent comparable to rent he would pay absent industrial injury; WCAB found that house to be purchased by CIGA must either be within one-mile boundary of specified cities, in area of comparable safety and tranquility to applicant’s current residence, or anywhere parties agree upon. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 5.01, 5.04[1]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 4, §§ 4.01[1], 4.04[1].]

■ Samantha Silva, Applicant v. Hilmar Cheese and Safety National Insurance, 2019 Cal. Wrk. Comp. P.D. LEXIS 167

Medical Treatment—Utilization Review—Prescription Drugs—WCAB rescinded WCJ’s finding that prescribing physician’s request for authorization for Voltaren gel was not exempt from utilization review (UR), and that UR denial of brand name Voltaren gel was valid, when WCAB reasoned that Medical Treatment Utilization Schedule (MTUS) Drug Formulary set forth in 8 Cal. Code Reg. §§ 9792.27.1 through 9792.27.23 lists drugs that are and are not exempt from UR and states that generic drug may be substituted for therapeutic equivalent brand name drug, that if medical provider prescribes brand name drug with no substitutions when cheaper therapeutically equivalent generic drug exists or if physician proposes off-label use of exempt drug against recommendation of MTUS guidelines, normal UR process applies, and that because MTUS drug list is set forth by active drug ingredients, and generic drug may be substituted for therapeutic equivalent name brand drug, even if name brand Voltaren prescription is subject to UR on basis that it is not listed as exempt, issue of whether generic equivalent can be dispensed without UR was not addressed at trial level, thereby requiring that matter be returned for further proceedings. [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.]

PERMANENT DISABILITY

■ Gary Mills v. American Medical Response, 2019 Cal. Wrk. Comp. P.D. LEXIS 84 [also reported at (2019) 84 Cal. Comp. Cases 552 (Appeals Board noteworthy panel decision)]

Permanent Disability—Apportionment—Benson Exception—WCAB affirmed WCJ’s finding that applicant was entitled to single, unapportioned award of 100 percent permanent disability as result of four separate specific and cumulative industrial injuries incurred during his employment as paramedic, when WCAB found no legal basis to apportion applicant’s permanent disability between his separate industrial injuries pursuant to Labor Code § 4663 and Benson v. W.C.A.B. (2009) 170 Cal. App. 4th 1535, 89 Cal. Rptr. 3d 166, 74 Cal. Comp. Cases 113, notwithstanding that orthopedic agreed medical examiner was able to apportion applicant’s orthopedic permanent disability consistent with Benson, where agreed medical examiner in internal medicine was unable to apportion applicant’s internal disability between his separate dates of injury, and because there was no unanimity amongst physicians indicating that it was appropriate to apportion between dates of injury, WCJ properly made single, rather than apportioned, permanent disability award; WCAB further found that pursuant to Hikida v. W.C.A.B. (2017) 12 Cal. App. 5th 1249, 219 Cal. Rptr. 3d 654, 82 Cal. Comp. Cases 679, applicant’s permanent total disability arose directly from effects of surgery to treat his industrial injuries, including implantation and removal of spinal cord stimulator, and, therefore, could not be apportioned between injuries or to any other source.

■ Margaret Knapp v. Department of Social Services, 2019 Cal. Wrk. Comp. P.D. LEXIS 102

Permanent Disability—Apportionment—New and Further Disability—WCAB, rescinding WCJ’s award, held that applicant who sustained three industrial injuries to her spine/back while employed as in-home caregiver, received stipulated award of 25 percent permanent disability on 1/20/98 and filed petition to reopen for new and further disability on 2/2/2001, was entitled to apportionment only for 30 percent of her new and further disability pursuant to Labor Code §§ 4663 and 4664, when WCAB reasoned that applicant’s original 1998 combined stipulated award was final and could not be legally revisited to dismantle joint and apportioned nature of original permanent disability award, that apportionment could only be applied to applicant’s percentage of disability, but not to overall dollar value of non-industrial portion of increase in permanent disability award, and that applicant’s overall current permanent disability was increased to 52 percent, after apportionment of 30 percent of her increased permanent disability to non‑industrial causation. [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. 8.]

■ Robert William Bates, Applicant v. County of San Mateo, PSI, and Athens Administrators (Claims Administrator), 2019 Cal. Wrk. Comp. P.D. LEXIS 72 [also to be reported in the July issue of Cal. Comp. Cases]

Permanent Disability—Apportionment—WCAB affirmed WCJ’s finding that applicant deputy sheriff was entitled to combined award of 80 percent permanent disability for injury to his heart and circulatory/cardiovascular system through 5/10/2010 and subsequent cumulative injury to same body parts through 4/18/2012, rather than apportioned award pursuant to Labor Code § 4664(a) and Benson v. W.C.A.B. (2009) 170 Cal. App. 4th 1535, 89 Cal. Rptr. 3d 166, 74 Cal. Comp. Cases 113, when “heart trouble” presumption in Labor Code § 3212 was applicable to both of applicant’s cumulative injuries, and WCAB found that Labor Code § 4663(e) precluded apportionment to causation for heart trouble injuries that were statutorily presumed to be compensable under Labor Code § 3212; WCAB rejected defendant’s contention that Labor Code § 4663(e) only precludes apportionment under Labor Code § 4663 but not under Labor Code § 4664(a), and found that general apportionment to causation provisions of Labor Code § 4664(a) do not trump specific provisions of Labor Code § 4663(e) that preclude apportionment to causation between two or more industrial injuries that are presumed compensable, and that it would be inconsistent with Legislature’s unified scheme of apportionment based on causation to conclude that Labor Code § 4664(a) somehow overrides specific and later-enacted provisions of Labor Code § 4663(e) precluding apportionment for presumptively compensable injuries. [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.]

■ Michael Hennessey v. Compass Group, 2019 Cal. Wrk. Comp. P.D. LEXIS 121

Permanent Disability—Rating—Rebuttal of Scheduled Rating—WCAB affirmed WCJ’s finding that applicant suffered 25 percent permanent disability as result of injuries he incurred to his left wrist, left hand, left arm, left elbow, left shoulder, and left knee while employed as cook on 8/14/2013, and that reports of vocational expert did not constitute substantial evidence to rebut scheduled permanent disability rating, when WCAB reasoned that to rebut permanent disability rating, vocational expert must explain whether or not apportionment, as identified in medical evidence, was considered and how it affected his or her conclusions, and that vocational expert here did not explain why he failed to apply apportionment described by orthopedic agreed medical examiner; although WCAB determined that vocational expert’s reports obtained by applicant were not substantial evidence, WCAB found that applicant was entitled to use vocational evidence to attempt to rebut permanent disability rating under permanent disability rating schedule for post-1/1/2013 industrial injury pursuant to Labor Code § 4660.1, and WCAB rejected defendant’s assertion that changes in Labor Code § 4660.1, removing language regarding consideration of future diminished earning capacity, made vocational expert evidence irrelevant and inadmissible for post-1/1/2013 dates of injury, where 2012 amendment of Labor Code § 4660.1 did not eliminate adjustment factor but rather standardized factor to multiple of 1.4, and provisions in Labor Code and regulations enacted contemporaneously with Labor Code § 4660.1 support position that vocational expert reports are still admissible and not limited to dates of injury prior to 2013. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 8.02[3], [4], 32.02[2], 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. 7.]

■ Soohyun Kim v. Valentino, 2019 Cal. Wrk. Comp. P.D. LEXIS 143

Permanent Disability—Rating—Rebuttal of Scheduled Rating—WCAB, in split panel opinion, rescinded WCJ’s finding that applicant, while employed as visual merchandiser during period 3/31/2008 to 1/25/2012, suffered industrial orthopedic injuries/complex regional pain syndrome (CRPS) and psychiatric injuries that resulted in 100 percent permanent disability “in accordance with the fact” under Labor Code § 4662(b), when WCAB found that pursuant to Dept. of Corrections & Rehabilitation v. W.C.A.B. (Fitzpatrick) (2018) 27 Cal. App. 5th 607, 238 Cal. Rptr. 3d 224, 83 Cal. Comp. Cases 1680, Labor Code § 4662(b) does not provide independent basis, outside of Labor Code § 4660, to find permanent total disability “in accordance with the fact,” where medical record justifies scheduled rating of less than 100 percent and scheduled rating is not rebutted, that medical reports in this case did not produce rating of 100 percent permanent disability, and that vocational expert’s opinion was not sufficient to rebut scheduled rating of between 64 and 81 percent, where limitations and severity of pain relied upon by vocational expert in support of his conclusion that applicant was unemployable and not amenable to vocational rehabilitation were not fully corroborated by reporting physicians, who described significantly more moderate impairment than completely debilitating impairment proposed by vocational expert; Commissioner Sweeney, dissenting, believed that many significant disabling factors, particularly applicant’s constant severe pain related to her CRPS and preclusion from using her right upper extremity, with resulting psychiatric and sleep disorders, were substantial and compelling medical findings that supported vocational expert’s conclusion that applicant was permanently totally disabled. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 8.02[3], [4], 32.01[3][a][ii], 32.03A; Rassp & Herlick, California Workers’ Compensation Law, Ch. 7, §§ 7.05[3][d], 7.12[2][a], [d][iii], 7.42[2]; The Lawyer’s Guide to the AMA Guides and California Workers’ Compensation, Ch. 7.]

■ Kenneth Morris, Applicant v. County of Riverside, 2019 Cal. Wrk. Comp. P.D. LEXIS 59

Permanent Disability—Commencement of Payments—Cost of Living Adjustments—WCAB affirmed WCJ’s finding that applicant deputy sheriff, whose permanent disability increased from 50 percent to 83 percent after his initial award, was entitled to permanent disability indemnity at increased rate of $270.00 per week beginning 5/3/2012, which was date applicant’s original disability became permanent and stationary, rather than from 10/1/2017, which was date applicant reached maximum medical improvement for new permanent disability, when WCAB reasoned that pursuant to Labor Code § 4650 and Brower v. David Jones Construction (2014) 79 Cal. Comp. Cases 550 (Appeals Board en banc opinion), it was applicant’s initial permanent and stationary date that was significant for calculating when permanent disability became due, and that here, where evidence supported finding that applicant first became permanent and stationary on 5/3/2012 and reached maximum medical improvement for second time on 10/1/2017, only first date was relevant in determining when defendant’s obligation to increase applicant’s permanent disability arose. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 8.08[4]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 7, § 7.50[1], [2].]

PRESUMPTION OF COMPENSABILITY

■ David Cisar v. Orange County Fire Authority, PSI, Administered by Corvel Corporation, 2019 Cal. Wrk. Comp. P.D. LEXIS 2

Presumption of Compensability—Cancer—Firefighters and Peace Officers—WCAB affirmed WCJ’s finding that applicant, while employed as fire captain from 1/1/81 to 5/19/2016, did not sustain Chronic Lymphocytic Leukemia and/or Small Lymphocytic Lymphoma (CLL/SLL) on industrial basis, when WCAB found that reporting and testimony of independent medical evaluator rebutted presumption of industrial causation in Labor Code § 3212.1 using hybrid of average latency period for CLL/SLL caused by benzene exposure and medical evidence unique to this case, and, while WCAB reasoned that independent medical evaluator’s opinion would not be sufficient to rebut presumption if it were based solely on average latency period, here independent medical evaluator opined that finding of link between applicant’s cancer and his exposure to benzene was not reasonable given median latency period of four to seven years, when laboratory tests showed no evidence whatsoever of abnormality in applicant’s lymphocyte count six and one-half years after applicant’s last possible exposure to benzene, and cancer was not detectable until late 2015 or early 2016. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 4.138[4][b]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 10, § 10.07[5][c].]

■ Shake Khachatrian v. State of California Attorney General’s Office, 2019 Cal. Wrk. Comp. P.D. LEXIS 82 [In June 2019 CCC, see Khachatrian v. State of California Attorney General’s Office (2019) 84 Cal. Comp. Cases 540 (Appeals Board noteworthy panel decision)]

Presumption of Compensability—Admissibility of Evidence—Good Faith Personnel Action Defense to Psychiatric Injury—WCAB, rescinding WCJ’s decision in split panel opinion, concluded that WCJ erred in applying Labor Code § 5402 presumption of compensability to bar defendant from asserting good faith personnel action defense under Labor Code § 3208.3(h) against applicant’s claim for cumulative psychiatric injury during period ending on 9/8/2016, and found that evidence of good faith personnel action defense is exempt from Labor Code § 5402(b) presumption, when WCAB panel majority reasoned that presumption of compensability does not give rise to blanket exclusion of evidence not discovered within initial 90-day period, and found that although defendant cannot use evidence discoverable within 90-day period to rebut presumption of compensability, such evidence can be used to show that injury was caused by good faith personnel actions, that based on reasoning in James v. W.C.A.B. (1997) 55 Cal. App. 4th 1053, 64 Cal. Rptr. 2d 392, 62 Cal. Comp. Cases 757, where Court of Appeal found that Labor Code § 5402 did not preclude employer from raising six-month employment requirement as defense to psychiatric claim, allowing defendant to present evidence on good faith personnel action defense is consistent with legislative intent of Labor Code § 3208.3 to establish higher threshold for compensability of psychiatric injuries under Division Four of Labor Code, and that upon return to trial level, defendant may try good faith personnel action defense utilizing all competent evidence, regardless of whether it could have been reasonably obtained within 90 days of receipt of DWC-1 claim form; Commissioner Sweeney, dissenting, would have upheld WCJ’s finding that Labor Code § 5402(b) is applicable to good faith personnel action defense, because Labor Code § 5402(b) creates evidentiary presumption and limits evidence that can be used to dispute claim, and Commissioner Sweeney would not extend holding in James to make Labor Code § 5402(b) presumption inapplicable, based on her belief that such extension vitiated generally applicable procedural provisions of Labor Code § 3208.3 in employer’s favor, and nullified purpose behind Labor Code § 5402, to expedite claims process and provide injured worker prompt resolution to his or her claim.

■ David Marshall v. Santa Clara County Sheriff’s Department, PSI, 2019 Cal. Wrk. Comp. P.D. LEXIS 145

Presumption of Compensability—Pneumonia vs. Pneumonitis—Deputy Sheriff—WCAB, in split panel opinion, affirmed WCJ’s finding that applicant did not sustain industrial injury to his lungs while employed as deputy sheriff during cumulative period ending on 6/2/2014, and concurred with WCJ’s determination that applicant’s diagnosis of hypersensitivity pneumonitis was not included as presumptively compensable injury under pneumonia presumption in Labor Code § 3212.10, based on prior panel decisions in Lee v. State of California, Department of Corrections & Rehabilitation, 2017 Cal. Wrk. Comp. P.D. LEXIS 543 (Appeals Board noteworthy panel decision), and Kimber v. City of Los Angeles (2017) 82 Cal. Comp. Cases 1538 (Appeals Board noteworthy panel decision), and on panel qualified medical evaluator’s opinion that pneumonia and pneumonitis are very different diseases in that pneumonia is infectious/contagious whereas hypersensitivity pneumonitis is allergenic and cannot be contracted from another individual; Commissioner Sweeney, dissenting, would have found that applicant was entitled to Labor Code § 3212.10 pneumonia presumption, based on her belief that pneumonitis should come within statutory definition of pneumonia, where textbooks define pneumonia as exactly same thing as pneumonitis but with infectious etiology, terms “pneumonitis” and “pneumonia” are often used synonymously in medical literature, lay use of term “pneumonia” encompasses both infectious and non-infectious causes of condition, and distinction between pneumonia and pneumonitis is one of causation and should not be determinative of whether presumption statute applies. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 4.138[1], [4][m]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 10, § 10.07[1], [5][b].]

PSYCHIATRIC INJURY

■ Kimberly Allen v. Antelope Valley Union High School District, 2019 Cal. Wrk. Comp. P.D. LEXIS 66

Psychiatric Injury—Violent Acts—Increased Permanent Disability—WCAB rescinded WCJ’s finding that applicant was entitled to increased permanent disability for her psychiatric injury, and concluded that applicant was barred under Labor Code § 4660.1(c)(1) from receiving additional permanent disability for that injury, when WCAB reasoned that applicant’s psychiatric injury was not directly caused by events of her employment but rather was compensable consequence of her multiple industrial orthopedic injuries, and, consequently, pursuant to Labor Code § 4660.1(c)(2)(A), applicant’s permanent disability could only be increased for psychiatric impairment if injury resulted from either being victim of violent act or from direct exposure to significant violent act or catastrophic injury, and WCAB found that here applicant’s injuries, which were incurred in slip and fall accident during her employment as high school receptionist, were not sufficiently extreme or intense so as to rise to level of “violent act” where there was no loss of consciousness or immediate need for medical treatment and found no merit to applicant’s assertion that all head injuries, regardless of how mild, constitute violent injuries. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 4.02[3][a], [b], [f], 4.69[1], [3][a], 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].]

STATUTE OF LIMITATIONS

■ Garry Lee Stephens, Applicant v. Consolidated Freightways, United States Fidelity and Guarantee Association, administered by Zenith Insurance Company, California Insurance Guarantee Association, administered by Intercare Holdings Insurance Services for Reliance Insurance in liquidation, 2019 Cal. Wrk. Comp. P.D. LEXIS 185

Statute of Limitations—Cumulative Injury—WCAB, reversing WCJ, held that California Insurance Guarantee Association’s (CIGA) 12/31/2004 Application for Adjudication of Claim alleging that decedent suffered cumulative injury to his shoulders while working as long haul trucker from 10/1/2000 to 9/2/2002, was not barred by one-year statute of limitations in Labor Code § 5405(a) as alleged by co-defendant United States Fidelity Guarantee Association/Zenith Insurance Company (Fidelity/Zenith), against whom CIGA sought reimbursement as “other insurance” under Insurance Code § 1063.1(c)(9), when WCAB reasoned that to establish Labor Code § 5412 date of injury for purposes of statute of limitations, Fidelity/Zenith had burden of proving that decedent knew or should have known that his disability was industrially related to his employment during period of alleged cumulative injury, that there was no evidence in record regarding whether decedent ever received medical advice that any of his disability was due to his employment between 2000 and 2002, so as to establish that applicant had requisite knowledge, that based on clear language of Labor Code § 5412, WCJ lacked authority to rely on CIGA’s date of knowledge to determine decedent’s date of injury under Labor Code § 5412, and that Fidelity/Zenith failed to meet its burden of proving applicant’s date of injury for purposes of establishing whether 12/31/2004 Application was barred by Labor Code § 5405(a). [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 24.03[6]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 14, § 14.02.]

Statute of Limitations—Tolling—Furnishing of Benefits—WCAB, reversing WCJ, found that California Insurance Guarantee Association’s (CIGA) 12/31/2004 Application for Adjudication of Claim alleging that decedent suffered cumulative injury to his shoulders while working as long haul trucker from 10/1/2000 to 9/2/2002, was timely filed pursuant to Labor Code § 5405(c), which states that proceeding may be commenced within one year from last date that medical benefits or treatment is furnished, when decedent sustained successive injuries to his shoulders and upper extremities, including 1998 specific injury, cumulative injury from 1996-1997, and alleged 2002 cumulative injury, and CIGA provided medical treatment for all of decedent’s injuries between 7/12/2001 and 2/6/2008 and filed claim for 2002 cumulative injury in 2004, within one year of providing medical treatment; WCAB noted that pursuant to holding in Plotnick v. W.C.A.B. (1970) 1 Cal. 3d 622, 463 P.2d 387, 83 Cal. Rptr. 163, 35 Cal. Comp. Cases 13, medical treatment provided by employer for earlier injury that also provides treatment for subsequent injury may toll statute of limitations for subsequent injury under Labor Code § 5405(c), that application of holding in Plotnick is not limited to same self-insured employer, as found by WCJ, but also applies to situations where one defendant is filing claim against another defendant, that when employers and/or carriers are jointly and severally liable, statute of limitations runs from last payment of any compensation and not from last payment by parties ultimately joined in proceeding, that if alleged 2002 cumulative injury is found to be AOE/COE, United States Fidelity Guarantee Association/Zenith Insurance Company, against whom CIGA sought reimbursement as “other insurance” under Insurance Code § 1063.1(c)(9), is jointly and severally liable for medical and temporary disability benefits provided by CIGA, and that statute of limitations in this case runs from CIGA’s last payment of compensation. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 24.04; Rassp & Herlick, California Workers’ Compensation Law, Ch. 14, § 14.03.]

SUBSEQUENT INJURIES BENEFITS TRUST FUND

■ Victor Tejada, Applicant v. Subsequent Injuries Benefits Trust Fund, 2019 Cal. Wrk. Comp. P.D. LEXIS 174

Subsequent Injuries Benefits Trust Fund—Threshold Requirements—WCAB affirmed WCJ’s finding that applicant who suffered specific injury to his low back on 6/8/2006, but did not suffer compensable psychiatric injury pursuant to Labor Code § 3208.3(d), was not entitled to benefits from Subsequent Injuries Benefits Trust Fund (SIBTF) because his industrial injury did not cause permanent disability of at least 35 percent and, therefore, did not meet threshold requirements for SIBTF benefits under Labor Code § 4751, when WCAB reasoned that by express terms of Labor Code § 4751, only results of “subsequent compensable injury” can trigger entitlement to SIBTF benefits, that in this case applicant’s injury did not result in any compensable psychiatric claim so psychiatric disability resulting from low back injury was not counted towards 35 percent threshold in Labor Code § 4751(b), and that while term “compensable” does not occur in Labor Code § 4751, phrase “the permanent disability resulting from the subsequent injury” in that subdivision, when read in context of first sentence of Labor Code § 4751, means permanent disability resulting from compensable injury. [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.]

SUPPLEMENTAL JOB DISPLACEMENT BENEFITS

■ Robert Fndkyan v. Opus One Labs, 2019 Cal. Wrk. Comp. P.D. LEXIS 51 [Petition for Writ of Review denied 6/14/2019, Second District Court of Appeal, Division Four, B296789]

Supplemental Job Displacement Benefits—Physician’s Return-to-Work Forms—WCAB, reversing WCJ, held that applicant was entitled to supplemental job displacement voucher (SJDV) benefits and, contrary to WCJ’s finding, was not precluded from receiving SJDV based on fact that Physician’s Return-to-Work (Physician’s RTW) form was not sent to or received by defendant, when it was undisputed that defendant received qualified medical evaluator’s report, which informed defendant that applicant’s condition was permanent and stationary following his cumulative industrial orthopedic injuries to multiple body parts and that applicant was industrially permanently disabled, and also informed of applicant’s work capacities and restrictions as result of his industrial injuries, and WCAB concluded that, in this instance, defendant had burden to obtain Physician’s RTW because defendant was apprised of applicant’s permanent disability status and work preclusions in qualified medical evaluator’s report, and that to conclude otherwise would impermissibly place form over substance. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 35.01, 35.02; Rassp & Herlick, California Workers’ Compensation Law, Ch. 21, §§ 21.01, 21.02.]