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Workers' Compensation

California: Top 25 Noteworthy Panel Decisions (January through June 2022)

LexisNexis has selected some of the top “noteworthy” panel decisions issued by the California Workers’ Compensation Appeals Board during the period January through June 2022. The first part of this year yielded a number of cases involving claims by professional athletes, including several clarifying the exemptions from California jurisdiction set forth in Labor Code § 3600.5(c) and (d). The list also includes decisions addressing the selection of panel QMEs, a death benefits case in which the WCAB panel explains how Berkebile v. W.C.A.B. (1983) 144 Cal. App. 3d 940, 193 Cal. Rptr. 12, 48 Cal. Comp. Cases 438, must be applied to determine “date of injury” for purposes of the statute of limitations, and several cases on the issue of permanent disability ratings, including cases describing when it is appropriate to add multiple impairments to determine permanent disability and when impairments should be combined using the CVC. Finally, there is a case of first impression involving an employer’s serious and willful misconduct in which the WCAB determined that IDL payments made to applicant during his temporary disability period was “compensation” for purposes of calculating increased compensation pursuant to Labor Code § 4553.

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 However, WCAB panel decisions are not binding precedent, as are en banc decisions on all other Appeals Board panels and workers’ compensation judges.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.

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CALIFORNIA INSURANCE GUARANTEE ASSOCIATION

■ Juan Suarez, Applicant v. Haley Bros/TM Cobb Company and California Insurance Guarantee Association through its servicing facility, Sedgwick Claims Management Services, for Fremont Indemnity Company, in liquidation, Defendants, 2022 Cal. Wrk. Comp. P.D. LEXIS 25, 87 Cal. Comp. Cases 448

California Insurance Guarantee Association—Other Insurance—Reimbursement and Contribution—WCAB, granting reconsideration, rescinded WCJs finding that Liberty Mutual Insurance Company (Liberty Mutual) was “other insurance” under Insurance Code § 1063.1(c)(9) and was required to undertake administration of applicant’s medical care in connection with 7/27/86 and 9/8/93 industrial injuries, and to resolve reimbursement and contribution issues with California Insurance Guarantee Association (CIGA), which had assumed liability for insurer Unicare’s covered claims after Unicare became insolvent, and WCAB substituted new decision finding that Liberty Mutual was not available “other insurance” for applicant’s claim, when WCAB reasoned that in order to obtain reimbursement or change administrators based on existence of “other insurance,” CIGA was required to show that Liberty Mutual was jointly and severally liable with Unicare for applicant’s medical treatment, but because Unicare had previously settled its contribution rights as part of Stipulated Award issued solely against Unicare, which included stipulation that only Unicare was liable for benefits, Liberty Mutual was no longer jointly and severally liable for applicant’s medical treatment, and, therefore, CIGA was not entitled to reimbursement from Liberty Mutual. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 2.84[3][a], [c]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 3, § 3.33[3].]

CUMULATIVE INJURY

■ Rafael Saavedra, Applicant v. Country Fresh Herbs, Republic Underwriters, Falls Lake Insurance Company, and Preferred Professional Insurance Company, Defendants, 2022 Cal. Wrk. Comp. P.D. LEXIS 145

Cumulative Trauma—Date of Injury—WCAB, denying reconsideration, affirmed WCJ’s finding that applicant who suffered industrial injury to his lumbar spine, neck, shoulders, knees, feet, and thoracic spine while working as laborer had 9/12/2017 date of injury pursuant to Labor Code § 5412 (with Labor Code § 5500.5 liability period running from 9/12/2016 through 9/12/2017), when WCAB found that applicant satisfied disability requirement in Labor Code § 5412 as of 9/12/2017, even though his condition was not yet permanent and stationary, because applicant had physical findings that justified a permanent disability rating as identified by qualified medical evaluator’s 9/12/2017 report setting forth factors of impairment, and WCAB reasoned that although extent of permanent disability is normally reported when permanent and stationary status is achieved, physician is not precluded from reporting that permanent disability exists before that time, that notice requirement in Cal. Code Reg. § 9812(e)(1) also contemplates that permanent disability can exist prior to permanent and stationary date, and that existence of permanent disability plus knowledge that disability was work-related, which applicant first obtained upon receiving doctor’s 9/12/2017 report discussing impairment, established 9/12/2017 date of injury under Labor Code § 5412. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 4.71, 24.03[6], 31.13[2]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 10, § 10.06[1], Ch. 14, § 14.13, Ch. 15, § 15.15.]

■ Lorenzo Arevalo, Applicant v. Limoneira Company, Inc., Main Limoneira Co., Zurich American Insurance Company administered by Gallagher Bassett Services, Inc., Defendants, 2022 Cal. Wrk. Comp. P.D. LEXIS 127

Cumulative Injury—Election by Employee—WCAB, denying removal, affirmed WCJ’s order approving applicant’s election against defendant Zurich American Insurance Company/Gallagher Bassett (Zurich) in claim involving cumulative injury to his knee during period 1/1/2004 through 2/28/2020, when both Zurich and co-defendant California Insurance Company/Applied Risk Services (Applied Risk) had coverage for portions of cumulative injury period, and WCAB found that fact that Applied Risk had majority of liability for applicant’s claim based on period of coverage did not preclude applicant’s election against Zurich to administer claim, when WCAB, distinguishing panel’s decision in Barillas v. Cellar Masters, Inc., 2014 Cal. Wrk. Comp. P.D. LEXIS 452 (Appeals Board noteworthy panel decision), concluded that though carrier’s share of liability based on length of coverage is one factor to consider in determining proper carrier to administer claim absent other “compelling reasons,” additional factors must also be considered in selecting carrier to administer claim, that in this case there were compelling reasons to elect against Zurich over Applied Risk despite Zurich’s shorter period of coverage, on basis that Zurich had coverage on two denied claims (applicant’s cumulative injury and 2/27/2020 specific injury) and had already obtained evaluation from panel qualified medical evaluator (PQME), who found compensable cumulative injury, and that because liability for applicant’s cumulative injury was clear based on PQME’s report and pursuant to Labor Code §§ 5412 and 5500.5, there was no reason for Applied Risk to obtain additional medical reports and further delay applicant’s receipt of benefits. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 1.11[3][g], 26.01[2][c], 26.03[4], 31.13[2]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 10, § 10.06[1][d][v], Ch. 15, § 15.15, Ch. 19, § 19.37.]

DEATH BENEFITS

■ Dorothy Gonzales, Michael Gonzales (deceased), Applicant v. City of Montebello, PSI, administered by York Risk Services Group, Inc., Defendants, 2022 Cal. Wrk. Comp. P.D. LEXIS 38

Death Benefits—Statute of Limitations—WCAB, granting reconsideration, rescinded decision in which WCJ found that decedent’s date of injury was 12/19/96 for purposes of 240-week limitations period in Labor Code § 5406(b), and that applicant’s Application for Adjudication of Claim for decedent’s death was barred by statute of limitations, when WCAB found that WCJ erroneously determined “date of injury” based on decedent’s “date of injury” rather than applying analysis in Berkebile v. W.C.A.B. (1983) 144 Cal. App. 3d 940, 193 Cal. Rptr. 12, 48 Cal. Comp. Cases 438, which is controlling on issue and holds that Labor Code § 5412 “date of injury” in death claim is determined by reference to applicant’s, not decedent’s, knowledge of industrial nature of injury, and that because WCJ disregarded WCAB’s prior direction in this case [see Gonzales v. City of Montebello, 2019 Cal. Wrk. Comp. P.D. LEXIS 500 (Appeals Board noteworthy panel decision)], to apply Berkebile to determine “date of injury,” and also failed to determine whether case was subject to 420-week limitation period in Labor Code § 5406.7, matter must be returned to WCJ for further proceedings and new decision. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 9.01[4], 24.03[4]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 9, § 9.05, Ch. 14, § 14.11.]

■ Patrick Jamerson (Dec’d), Applicant v. Commercial Metals Company, American Zurich Insurance Company, Defendants, 2022 Cal. Wrk. Comp. P.D. LEXIS 64, 87 Cal. Comp. Cases 530

Death Benefits—Sufficiency of Applications—WCAB, granting reconsideration, affirmed WCJ’s finding that applicant’s 9/6/2019 application for death benefits was not rendered invalid based on fact that applicant listed three claims on single application rather than filing separate applications for each claim, when WCAB reasoned that workers’ compensation pleadings are to be liberally construed when determining whether pleadings are effective to invoke WCAB’s jurisdiction, that longstanding policy favors, whenever possible, adjudication on merits rather than on technical sufficiency of pleadings, that 8 Cal. Code Reg. § 10617 provides considerable latitude in accepting nonstandard pleadings, so long as pleadings contain sufficient information regarding case to open adjudication file, and 8 Cal. Code Reg. § 10517 allows amendment of pleadings to conform to proof or to parties’ stipulations, and that defendant had adequate notice of applicant’s claims in all three cases and, therefore, was not prejudiced by filing of all three case numbers on one application, and WCAB found that because 9/6/2019 application applied to all three of applicant’s claims, defendant failed to meet burden of proving that Labor Code § 5406(b) barred compensation in Case Nos. ADJ11011618 (date of injury 5/4/2016) and ADJ11011740 (injury through 6/10/2016). [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 9.01[4]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 17, § 17.70[1][b].]

EMPLOYMENT RELATIONSHIPS

■ Alex Robles, Applicant v. Southern California Gas Company, PSI, Utility Workers Union of America, Local 132, State Compensation Insurance Fund, Defendants, 2022 Cal. Wrk. Comp. P.D. LEXIS 92, 87 Cal. Comp. Cases --

Employment Relationships—Dual Employment—Union Members—WCAB, granting reconsideration, rescinded WCJ’s finding that applicant was employed only by Southern California Gas Company (SCGC) when he was injured in automobile accident while driving to office of  Utility Workers Union of America, Local 132 (union) on 10/17/2011 to participate in union business, as union’s regional officer, and WCAB held instead that, at time of accident, applicant was employed by both SCGC, as general employer, and by union, as special employer, and that SCGC and union were jointly and severally liable for applicant’s workers’ compensation benefits, when WCAB found that applicant’s status as SCGC’s employee at time of injury was decided by WCAB in earlier opinion, which was not appealed, and that weighing all relevant factors, evidence supported finding that applicant was also employee of union, where union had requisite amount of control over applicant’s activities while engaged in union business, and majority of secondary factors demonstrated special employment by union. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 3.65, 3.141, 3.142; Rassp & Herlick, California Workers’ Compensation Law, Ch. 2, §§ 2.02, 2.07.]

EVIDENCE

■ Juan Licea, Applicant v. Screwmatic, Insurance Company of the West, Defendants, 2022 Cal. Wrk. Comp. P.D. LEXIS 12, 87 Cal. Comp. Cases 326

Evidence—Surveillance Video—Submission of Nonmedical Records to Medical Evaluator—WCAB, granting reconsideration and rescinding WCJ’s decision, held that WCJ erroneously applied Civil Code § 1708.8 to find that defendant, having established “articulable suspicion” to support filming applicant, was permitted to submit sub rosa surveillance video to qualified medical evaluator (QME) for review, and WCAB substituted new finding that Civil Code § 1708.8 did not apply in these proceedings, when WCAB reasoned that per Labor Code §§ 5708 and 5709, WCAB is not bound by common law or statutory rules of evidence and may decide issues in more informal, flexible manner in order to achieve substantial justice, that Civil Code § 1708.8, which restricts filming of individuals without their permission, describes prerequisites to civil cause of action and does not apply as evidentiary bar in workers’ compensation proceedings, and that although applicant retains fundamental right to privacy under California Constitution, applicant did not establish reasonable expectation of privacy for conduct filmed in front yard of home that was plainly visible from street and sidewalk or in publicly accessible parking lots where he was surveilled; WCAB further found that pursuant to Labor Code § 4062.3(a)(2), sub rosa films obtained by defendant were nonmedical records relevant to determination of medical issue, and, on that basis, must be provided to QME. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 22.06[3], 25.29[2]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 15, § 15.03[4][e], Ch. 16, § 16.65.]

■ Larry Flosi, Applicant v. Selco Heating and Air Conditioning, Arch Insurance Company, Defendants, 2022 Cal. Wrk. Comp. P.D. LEXIS 16, 87 Cal. Comp. Cases 315

Evidence—Medical Evidence—WCAB’s Duty to Develop Record—WCAB, granting reconsideration, rescinded decision wherein WCJ ordered further development of medical record with new physician, and returned matter to trial level for further proceedings, when WCAB found that while WCJ correctly determined that opinion of existing qualified medical evaluator (QME) was not substantial evidence on issue of applicant’s permanent disability, WCJ did not identify any deficiencies regarding QME’s causation opinions and could have relied on those opinions to find injury AOE/COE to certain body parts while ordering development of record with respect to other issues in dispute that were not adequately addressed by QME, that preferred procedure to develop deficient record under McDuffie v. Los Angeles County Metropolitan Transit Authority (2002) 67 Cal. Comp. Cases 138 (Appeals Board en banc opinion), is to return to existing physicians first, before considering selection of new physicians to conduct medical evaluations, and that while there are circumstances where returning to existing physician is unlikely to create record that constitutes substantial evidence and is, consequently, futile, current record does not support WCJ’s conclusion that existing QME is incapable of curing deficiencies in her opinions, and, therefore, pursuant to procedure in McDuffie, parties should initially conduct further discovery with QME before obtaining opinion from agreed medical evaluator or regular physician. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 22.06[6], 25.40[1], 27.01[1][c]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 15, § 15.03[4][h], Ch. 16, § 16.51[2].]

INSURANCE COVERAGE

■ Ken Stabler, Applicant v. KS Adams, dba Houston Oilers, New Orleans Louisiana Saints, Travelers Indemnity Company, Defendants, 2022 Cal. Wrk. Comp. P.D. LEXIS 129

Insurance Coverage—Illegally Uninsured Employer—WCAB, granting reconsideration, rescinded WCJ’s finding that defendant New Orleans Saints (Saints) were covered by First Horizon Insurance Company (First Horizon) from 4/1/84 through 9/17/84 and was, therefore, not unlawfully uninsured during applicant’s last year of injurious exposure while playing professional football, and WCAB entered new finding that First Horizon did not provide coverage during relevant time period, and that Saints were, in fact, illegally uninsured during applicant’s last year of injurious exposure and were required to reimburse Travelers Indemnity Company (Travelers) (which insured Saints between 8/25/82 and 4/1/83) for monies paid to applicant pursuant to award, when WCAB found that First Horizon was not licensed to write workers’ compensation insurance in California, but rather was responsible for providing benefits to applicant under Louisiana workers’ compensation laws, that First Horizon had agreed, under policy, to reimburse Saints for liability imposed on them under workers’ compensation laws of states other than Louisiana, but agreement did not require First Horizon to pay benefits directly to California applicant, and, consequently, Saints/Travelers could only obtain reimbursement from First Horizon, that because First Horizon promised reimbursement, not payment, coverage provided by First Horizon was similar to excess insurance policy, which may be limited and restricted without compliance with regulations applicable to California workers’ compensation policies, and that under these circumstances, Saints did not secure payment of compensation as required by Labor Code § 3700 and were illegally uninsured despite existence of First Horizon policy. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 2.10[1]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 3, §§ 3.01[2], 3.19[1].]

■ Minas Gharakhanian, Applicant v. Cool Air Supply, California Insurance Guarantee Association for Ulico Casualty Company in liquidation, Zurich American Insurance Company, Defendants, 2022 Cal. Wrk. Comp. P.D. LEXIS 141

Insurance Coverage—Limiting and Restricting Endorsements—Site-Specific Policies—WCAB, granting reconsideration, reversed arbitrator’s finding that Zurich American Insurance Company (Zurich) only provided coverage for applicant’s employer on 5/14/2012 at specific job site, and did not provide coverage for applicant’s industrial injury which occurred at different job site on that date, and WCAB substituted new finding that Zurich policy was not site-specific and covered applicant’s injury, when Zurich presented no evidence that policy was limited or restricted, and without evidence of approved limiting and restricting endorsement WCAB was compelled to find that policy was unlimited and covered all of employer’s construction sites. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 2.50[4][c], 2.60; Rassp & Herlick, California Workers’ Compensation Law, Ch. 3, §§ 3.25, 3.27.]

JURISDICTION

■ Gregory Hansell, Applicant v. Arizona Diamondbacks, et al., Defendants, 2022 Cal. Wrk. Comp. P.D. LEXIS 83, 87 Cal. Comp. Cases --, petition for writ of mandate denied 5/5/2022

WCAB Jurisdiction—Professional Athletes—Exemptions—WCAB, granting reconsideration, rescinded WCJ’s decision wherein WCJ concluded that applicant’s claim for cumulative injuries incurred while employed as professional baseball player for multiple teams between 6/5/89 and 10/15/2004 could not be brought in California due to application of Labor Code § 3600.5(c) and (d), exempting claims by professional athletes from California jurisdiction under certain specified conditions, and WCAB held instead that Labor Code § 3600.5(c) and (d) were not applicable to applicant’s claim because although he was hired outside of California by teams asserting exemption from California jurisdiction, he was hired by multiple teams in California during cumulative injury period, creating jurisdiction over claim pursuant to Labor Code §§ 3600.5(a) and 5305, when WCAB acknowledged that phrase “a professional athlete who has been hired outside of this state” in Labor Code § 3600.5(c) is ambiguous as applied to cumulative injury claims such as applicant’s, where injured employee has California contracts of hire, though not with particular employer or employers asserting exemption from California jurisdiction, but WCAB concluded that, based on purpose of statute, legislative intent and public policy, most reasonable interpretation of Labor Code § 3600.5(c) and (d) is that these subdivisions are intended to apply only to athletes who have extremely minimal California contacts and cannot establish jurisdiction under Labor Code §§ 3600.5(a) and 5305, and that because it was undisputed applicant was born and raised in California, was employed by Los Angeles Dodgers for five years, and signed multiple contracts of hire in California during his cumulative injury period, California had jurisdiction over his claim. [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].]

■ Andrew Rohrbach, Applicant v. Colorado Rockies, ACE American Insurance, administered by Sedgwick, Defendants, 2022 Cal. Wrk. Comp. P.D. LEXIS 102, petition for writ of mandate denied 5/5/2022 

WCAB Jurisdiction—Professional Athletes—Contracts of Hire—WCAB, granting reconsideration, rescinded WCJ’s finding that WCAB lacked jurisdiction over applicant’s claim for industrial injury to multiple body parts while employed as professional baseball player by Colorado Rockies (Rockies) from 6/6/2014 through 3/4/2016, and substituted new findings that parties formed oral contract for hire within California, conferring California jurisdiction over applicant’s claimed injury pursuant to Labor Code §§ 3600.5(a) and 5305, when WCAB concluded that applicant negotiated and finalized all essential and reasonably negotiable terms of employment contract with Rockies and accepted offer of employment via telephone from his home in California, and evidence demonstrated contemporaneous subjective belief by parties that contract for hire had been formed at that time, prior to applicant’s execution of written employment contract in Colorado, and that once valid contract for hire was formed in California and jurisdiction was conferred, California could not be deprived of jurisdiction by ratification of subsequent written employment contract containing integration clause. [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].]

■ Allen Levrault, Applicant v. Milwaukee Brewers, Miami Marlins, ACE American Insurance/Chubb, administered by Gallagher Bassett Services, Seattle Mariners, ACE American Insurance/Chubb, administered by Sedgwick Claims Management Services, Oakland A’s, USF&G, administered by Gallagher Bassett Services, Federal Insurance c/o Chubb/Milwaukee Brewers, Zenith for Fairmont, Milwaukee Brewers, Continental Casualty Company by CNA Claims Plus/Milwaukee Brewers, Defendants, 2022 Cal. Wrk. Comp. P.D. LEXIS 116, 87 Cal. Comp. Cases --

WCAB Jurisdiction—Professional Athletes—Exemptions—WCAB, granting reconsideration, rescinded WCJ’s decision and held that (1) exemption in former Labor Code § 3600.5(b) did not apply to applicant’s claim against Miami Marlins (Marlins), alleging cumulative injury while playing professional baseball for Marlins during period 12/12/2002 to 10/15/2003, when WCAB reasoned that former Labor Code § 3600.5(b) (applicable to applicant’s claim filed in 2013) expressly requires that conditions for application of exemption, including reciprocity provisions in Labor Code § 3600.5(b)(1)(A) and (B), apply “while such employee is temporarily within this state doing work for his or her employer,” that based on Labor Code § 3600.5(b)’s plain language, statute’s reciprocity requirements must be satisfied at time of injurious exposure, and it is not sufficient that reciprocity exists at time claim is filed, and that because Florida’s reciprocity statute, enacted in 2011, did not exist at time applicant was temporarily within California while working for Florida employer, exemption was not applicable to applicant’s claim, and (2) WCJ misapplied Federal Insurance Co. v. Workers’ Comp. Appeals Bd. (Johnson) (2013) 221 Cal. App. 4th 1116, 165 Cal. Rptr. 3d 288, 78 Cal. Comp. Cases 1257, to bar applicant’s claim against Marlins based on lack of subject matter jurisdiction by focusing not upon relationship of applicant’s entire claim (alleging injury while employed by multiple teams between 6/10/96 and 6/27/2003) to State of California, but instead on relationship of particular employer, Marlins, to this state, that applicant here was regularly employed in California during 1998 and 2002 while playing for minor league affiliates of Milwaukee Brewers and Oakland Athletics, and that this employment constituted sufficient relationship between applicant’s injuries and State of California to satisfy Johnson due process requirement of significant nexus between applicant’s injuries and this state. [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

■ Maria Garcia-Cervantes, Applicant v. Pitman Farms, PSI, administered by Risico Claims Management, Defendants, 2022 Cal. Wrk. Comp. P.D. LEXIS 3

Medical-Legal Procedure—Unrepresented Employees—Participation In Medical-Legal Examination—WCAB, denying reconsideration in split panel opinion, affirmed WCJ’s finding that defendant was not precluded from requesting new qualified medical evaluator (QME) panel pursuant to Labor Code § 4062.2 after applicant, who suffered industrial injury to her right shoulder and elbow on 10/18/19 and claimed injury to her neck while employed as production worker, became represented by counsel, when applicant attended and attempted to participate in two scheduled medical examinations with QME while unrepresented but was unable to participate due to lack of interpreter, and WCAB panel majority found that because no examination was actually conducted by QME, defendant was entitled to request new panel pursuant to Romero v. Costco Wholesale (2007) 72 Cal. Comp. Cases 824 (Appeals Board Significant Panel Decision); Chair Zalewski, dissenting, would have granted reconsideration and issued new decision finding that defendant was precluded from requesting new QME panel pursuant to Labor Code § 4062.2 because it was defendant’s errors in scheduling interpreter that prevented examination with original QME, and applicant’s inability to be examined was due to no fault of her own. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 22.06[1][b], 32.06[2][b]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 15, § 15.03[3], Ch. 16, § 16.53[18].]

■ Mina Lewinstein, Applicant v. ABRA Management, ACE American Insurance Company, Defendants, 2022 Cal. Wrk. Comp. P.D. LEXIS 54, 87 Cal. Comp. Cases 432

Medical-Legal Procedure—Ex Parte Communications—WCAB, granting removal, rescinded WCJ’s order for replacement qualified medical evaluator (QME) panel in psychiatry, and concluded that QME’s post-examination telephone calls with applicant did not constitute impermissible ex parte communications as found by WCJ, and, therefore, applicant was not entitled to replacement QME in psychiatry per her request, when WCAB reasoned that although ex parte communication with QME is generally prohibited by Labor Code, communications by employee with QME “in the course of the examination or at the request of the evaluator in connection with the examination” are permissible under Labor Code § 4062.3(i), and WCAB found that QME’s calls with applicant following examination during which QME asked applicant follow-up questions regarding various “potentially disturbing” issues and their effect on her condition were appropriately connected with his evaluation of industrial and non-industrial psychiatric stressors, and that mere fact phone calls, which occurred with applicant’s permission, occurred after examination rather than during examination did not render them unconnected with examination so as to fall outside scope of permissible communications under Labor Code § 4062.3(i).  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 22.06[3]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 15, § 15.03[4][e].]

■ Gus Kowal, Applicant v. County of Los Angeles, PSI, Defendant, 2022 Cal. Wrk. Comp. P.D. LEXIS 109

Medical-Legal Procedure—Selection of Qualified Medical Evaluators—WCAB, granting reconsideration and rescinding WCJ’s decision, found that applicant roofer who alleged he sustained two industrial injuries, one through 1/22/2018 and another through 2/28/2012, was permitted to schedule examination with doctor he untimely struck from qualified medical evaluator (QME) panel, when WCAB found that applicant’s untimely strike was invalid and applicant had legal right to schedule appointment with doctor under Labor Code § 4062.2(d) and 8 Cal. Code Reg. § 31.3(d), which allow either party to schedule appointment with QME at any time after initial 10-day post-selection period elapses, that 8 Cal. Code Reg. § 31.3(e) provides party scheduling evaluation with unilateral right to waive 60-day scheduling timeframe and accept appointment within 90 days of initial appointment request, that non-scheduling party may not seek replacement QME panel if scheduling party has waived 60-day requirement and accepted appointment within 90 days, and that applicant properly exercised his right by accepting appointment with doctor he untimely and invalidly struck within 90 days of his appointment request. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 22.11[5]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 16, § 16.53[5].]

MEDICAL TREATMENT

■ Reyna Castillo, Applicant v. Midnight Impressions, Security National Insurance, c/o AmTrust America, Defendants, 2022 Cal. Wrk. Comp. P.D. LEXIS 68, 87 Cal. Comp. Cases 511

Medical Treatment—Utilization Review—Traumatic Brain Injury—WCAB, granting reconsideration, affirmed WCJ’s finding that applicant production line worker is entitled to continued outpatient treatment in Casa Colina Hospital Transitional Living Center’s (Casa Colina) multi-disciplinary neuro-rehabilitation program (with interpreter and transportation) following 10/13/2017 traumatic brain injury, when defendant’s 7/16/2019 utilization review (UR) denying continued treatment was untimely and, therefore, invalid, and WCAB found that because UR was invalid, WCJ properly exercised jurisdiction over medical necessity dispute, that substantial medical evidence supported WCJ’s award of continued outpatient treatment, where reports of applicant’s treating physician and medical team indicated that while applicant’s condition had improved during course of treatment, she required continued participation in outpatient program to address remaining cognitive deficits and to sustain progress she had already made, that defendant was aware of applicant’s ongoing need for requested services, as evidenced by fact that it had provided outpatient rehabilitation services at Casa Colina for period 12/11/2018 to 7/16/2019, and voluntarily approved services for six-month period even though treating physician had requested only 20 additional visits, and that WCJ correctly applied holding in Patterson v. The Oaks Farm (2014) 79 Cal. Comp. Cases 910 (Appeals Board significant panel decision), in finding that applicant requires continued participation in multi-disciplinary neuro-rehabilitation program unless defendant establishes such treatment is no longer reasonably required based on change of applicant’s condition or circumstances. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 5.02[2][a]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 4, § 4.10[7].]

PERMANENT DISABILITY

■ Leonel Quiroz, Applicant v. State of California, Legally Uninsured, Defendant, 2022 Cal. Wrk. Comp. P.D. LEXIS 43

Permanent Disability—Apportionment—Joint Awards—WCAB, denying reconsideration, affirmed WCJ’s finding that applicant suffered presumptively compensable hypertensive heart disease with diastolic dysfunction while working as correctional officer on 10/27/2017 and during cumulative period ending on 10/27/2017, based on opinion of panel qualified medical evaluator, and found that WCJ properly issued joint award of 75 percent permanent disability for applicant’s specific injury, which, in addition to heart injury, included multiple other body parts, and for applicant’s cumulative injury, rather than issuing two separate awards as sought by defendant, when WCAB reasoned that where, as here, two presumptive injuries contribute to permanent disability, joint award of permanent disability is appropriate to avoid violating Labor Code § 4663(e), even if non-overlapping, non-presumptive body parts are involved. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 8.02[3], 8.05[1]-[3], 8.07[2][d][ii], 32.03A[1]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 7, §§ 7.12[2], 7.42[2]; The Lawyer’s Guide to the AMA Guides and California Workers’ Compensation, Chs. 5, 6.]

■ Jaime Sanchez, Applicant v. California Department of Corrections, legally uninsured, administered by State Compensation Insurance Fund, Defendants, 2022 Cal. Wrk. Comp. P.D. LEXIS 35, 87 Cal. Comp. Cases 344

Permanent Disability—Apportionment—Benson Exception—WCAB, granting reconsideration, rescinded WCJ’s separate awards of permanent disability for two industrial injuries incurred by applicant while working as correctional officer, one on 6/23/2016 and another during period 1/1/99 through 6/23/2016, and returned matter to WCJ for further proceedings on issues of permanent disability and apportionment, when WCAB noted that this case presented unusual circumstance in which defendant, rather than applicant, attempted to establish Benson exception [see Benson v. WCAB (2002) 170 Cal. App. 4th 1535, 89 Cal. Rptr. 3d 166, 74 Cal. Comp. Cases 113], pursuant to which single permanent disability award may be issued for two separate injuries, and WCAB found that under these circumstances, defendant had burden of proof to establish application of exception, and that, on remand, WCJ must consider defendant’s trial stipulation that applicant sustained two distinct injuries, even though medical evidence showed significant relationship between injuries, and must address issue of whether defendant’s attempt to establish Benson exception of one award on premise that applicant’s two injuries were “inextricably intertwined,” requires defendant to make showing of good cause to disregard its stipulation to two distinct injuries. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 8.02[3], 8.05[1]-[3], 8.07[2][d][ii], 32.03A[1]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 7, §§ 7.12[2], 7.42[2]; The Lawyer’s Guide to the AMA Guides and California Workers’ Compensation, Chs. 5, 6, 7.]

■ Luis Garcia (deceased), Marlene Garcia, Applicant v. Los Angeles County Probation Department, PSI, administered by Sedgwick Claims Management Services, Inc., Defendants, 2022 Cal. Wrk. Comp. P.D. LEXIS 55, aff’d Garcia v. Los Angeles County, 2022 Cal. Wrk. Comp. P.D. LEXIS 147

Permanent Disability—Rating—Combining Multiple Disabilities—WCAB, granting reconsideration, rescinded WCJ’s finding that applicant’s multiple impairments should be combined using Combined Values Chart (CVC) rather than added due to lack of evidence establishing synergistic effect between impairments, resulting in award of 65 percent permanent disability, and WCAB found, instead, that opinion of agreed medical examiner (AME) constituted substantial evidence to support addition of impairment caused by applicant’s renal insufficiency and impairment caused by his hypertension pursuant to Athens Administrators v. W.C.A.B. (Kite) (2013) 78 Cal. Comp. Cases 213 (writ denied), resulting in 95 percent permanent disability when combined with psychiatric impairment, when WCAB reasoned that existence of “synergistic effect” is not prerequisite to using additive rating method, provided that substantial medical evidence supports physician’s opinion that adding employee’s impairments will result in more accurate rating of employee’s disability than use of CVC, that overlap of impairments is factor to consider in determining whether disability of different body parts should be combined or added, that AME in this case found no overlap in impairments caused by applicant’s renal insufficiency and his hypertension, and that AME’s opinions were unrebutted and should be followed. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 8.02[4][d], 32.03A[1]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 7, §§ 7.06[2], 7.11[5], 7.100; The Lawyer’s Guide to the AMA Guides and California Workers’ Compensation, Chs. 2, 6, 7.]

■ William Valdez, Applicant v. Orange County Fire Authority, PSI, Defendant, 2022 Cal. Wrk. Comp. P.D. LEXIS 100, 87 Cal. Comp. Cases --

Permanent Disability—Rating—Combining Multiple Disabilities—WCAB, denying reconsideration, affirmed WCJ’s award of 89 percent permanent disability for injuries to applicant’s hands/thumbs, shoulders, feet/toes, upper digestive tract/hiatal hernia, and in forms of hypertension and coronary artery disease, and found that WCJ correctly combined applicant’s orthopedic disability with his internal medicine disability using Combined Values Chart (CVC) rather than adding them as recommended by orthopedic physician, when WCAB found that orthopedic physician’s opinion was not substantial medical evidence sufficient to rebut use of CVC pursuant to Athens Administrators v. W.C.A.B. (Kite) (2013) 78 Cal. Comp. Cases 213 (writ denied), because physician did not provide any compelling reason why orthopedic and internal medicine impairments should be added other than to state that disabilities did not overlap, which WCAB found was not pertinent to whether disabilities should be combined or added, and questions beyond applicant’s orthopedic impairment, including applicant’s overall impairment or operation of CVC, were beyond orthopedic physician’s expertise. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 8.02[4][d], 32.03A[1]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 7, §§ 7.06[2], 7.11[5], 7.100; The Lawyer’s Guide to the AMA Guides and California Workers’ Compensation, Chs. 2, 6, 7.]

PSYCHIATRIC INJURY

■ Lee Sheppard, Applicant v. County of Kern, PSI, Defendant, 2022 Cal. Wrk. Comp. P.D. LEXIS 74, 87 Cal. Comp. Cases --

Psychiatric Injury—Post-Termination Defense—Exceptions—WCAB, denying reconsideration in split panel opinion, held that defendant failed to establish that Labor Code § 3208.3(e) post-termination defense barred applicant’s claim for 2/7/2018 psychiatric injury resulting from incident during which his supervisor physically grabbed his arm and forcibly directed him back to his work area, when WCAB panel majority concluded that (1) defendant’s 8/28/2018 notice of proposed disciplinary action against applicant detailing allegations of wage theft and advising applicant that defendant sought to terminate his employment did not constitute notice of termination or layoff under Labor Code § 3208.3(e), as likelihood or expectation of termination is insufficient to establish post-termination defense, and defendant is required to provide actual notice of termination to establish defense, (2) post-termination defense did not apply because applicant voluntarily resigned from his job on 9/18/2018, one day following Skelly hearing, and case law establishes that post-termination defense is inapplicable following voluntary resignation, and (3) exceptions to post-termination defense set forth in Labor Code § 3208.3(e)(1) and (2) applied to applicant’s claim, because actions of applicant’s supervisor resulting in psychiatric injury constituted “sudden and extraordinary” employment event, and, additionally, defendant was aware of supervisor’s actions leading to psychiatric injury and modified applicant’s duties, establishing defendant’s knowledge of injury prior to applicant’s resignation; Commissioner Razo, dissenting, concluded that defendant met burden of establishing post-termination defense, where applicant was informed of defendant’s decision to terminate his employment on 8/28/2018, subject only to Skelly hearing and final decision regarding disciplinary action as afforded to civil service employees in keeping with due process, applicant did not file claim for psychiatric injury until 9/26/2018, after defendant had already taken personnel action involving termination of his employment, and Commissioner Razo found that conduct of applicant’s supervisor, albeit unprofessional, could not be considered “sudden and extraordinary” and that defendant’s awareness of applicant’s incident with his supervisor was insufficient to confer knowledge of psychiatric injury, making exceptions to post-termination defense inapplicable. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 4.02[3][e], 4.65[1]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 10, § 10.06[3][e].]

SANCTIONS

■ Terri Scott, Applicant v. City of Los Angeles, PSI, administered by Tristar Risk Management, Defendants, 2022 Cal. Wrk. Comp. P.D. LEXIS 107

Imposition of Sanctions—Due Process—WCAB, granting reconsideration, rescinded WCJ’s order imposing sanctions of $1,500.00 against applicant’s attorneys and awarding costs to defendant of $6,800.00 under Labor Code § 5813, based on WCJ’s finding that applicant’s attorneys engaged in conduct intentionally designed to harass defense counsel in order to obtain strategic litigation advantage, and WCAB returned matter to WCJ for evidentiary hearing on issue of sanctions, when WCAB recognized that applicant’s attorneys must be given notice and opportunity to be heard at evidentiary hearing, consistent with due process, prior to imposition of sanctions, and concluded that instead of issuing notice of intention (NOI) to impose sanctions and determining sanctions issue based on applicant’s attorneys’ written objection to NOI, WCAB should have obtained pretrial conference statement from parties on sanction issue, held pretrial conference at which specific issues and stipulations on petitions could be framed, and held hearing, that because NOI’s allegations originated with defendant’s attorney and concerned conduct outside of court which WCJ did not observe, it did not fully apprise applicant’s attorneys of evidence against them or provide meaningful opportunity for them to offer evidence in opposition to sanctions, and that on remand record requires further development as to sanction issue. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 23.15; Rassp & Herlick, California Workers’ Compensation Law, Ch. 16, § 16.35.]

SERIOUS AND WILLFUL MISCONDUCT

■ Michael Ayala, Applicant v. Department of Corrections and Rehabilitation/Lancaster State Prison, legally uninsured, State Compensation Insurance Fund/State Contracts Service, Defendants, 2022 Cal. Wrk. Comp. P.D. LEXIS 101, petition for writ of review filed 5/27/2022

Employer’s Serious and Willful Misconduct—Calculation of Increased Compensation Due—Industrial Disability Leave—WCAB, granting reconsideration, rescinded WCJ’s decision calculating 50 percent increase in compensation awarded to applicant correctional officer under Labor Code § 4553 based on his temporary disability rate, and though WCAB conceded it did not have jurisdiction to order payment of industrial disability leave (IDL), WCAB had authority to award 50 percent increase calculated based on enhanced IDL applicant received in lieu of temporary disability benefits following 8/12/2002 industrial injury, when WCAB reasoned that language in Labor Code § 4553 providing for 50 percent increase in amount of “compensation otherwise recoverable” by applicant because of employer’s serious and willful misconduct is expansive with potential to contemplate compensation received outside Division 4 of Labor Code, that Court of Appeal has deemed IDL equivalent to temporary disability compensation for purposes of determining statutory cap in Labor Code § 4656, indicating that IDL payments must also be considered compensation for purpose of inclusion as extra compensation awarded under Labor Code § 4553, that objective of Labor Code § 4553 to more fully compensate employee for injury caused by employer’s serious and willful misconduct is best served by construing “compensation otherwise recoverable” to include enhanced IDL payments, as this construction results in greater compensation awarded to applicant than calculating Labor Code § 4553 based on temporary disability rate, that there was no evidence in this case that serious and willful misconduct award calculated based on enhanced IDL would be constitutionally excessive as defined in Ferguson v. W.C.A.B. (1995) 33 Cal. App. 4th 1613, 39 Cal. Rptr. 2d 806, 60 Cal. Comp. Cases 275, because record did not reflect such award would result in larger recovery than applicant’s potential civil recovery, and that liberal construction of Labor Code advocates in favor of calculating serious and willful misconduct award based on enhanced IDL benefits as part of applicant’s “compensation otherwise recoverable” under Labor Code § 4553. [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], [7].]

TEMPORARY DISABILITY

■ Ernesto Mora, Applicant v. Benihana National Corporation, Zurich American Insurance Company, administered by Broadspire, a Crawford Company, Defendants, 2022 Cal. Wrk. Comp. P.D. LEXIS 32, 87 Cal. Comp. Cases 441

Temporary Disability—Termination for Cause—WCAB, granting reconsideration, amended WCJ’s decision to reflect that applicant who sustained industrial injury to his wrists in form of ganglion cysts and alleged he also sustained injury to his left knee while working as cook/chef during period 4/1/2012 through 12/5/2019, suffered period of temporary total disability from 1/15/2020 through 9/14/2021, based on medical evidence, and WCAB found that applicant’s termination for cause (being late and making more food than food ticket indicated) did not preclude his entitlement to temporary disability benefits, where applicant was temporarily totally disabled and it was his temporary total disability that took him out of labor market and caused his wage loss. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 7.02[4][b], [c]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 6, §§ 6.10, 6.11.]