Workers' Compensation

California: Top 25 Noteworthy Panel Decisions (July–December 2014)

LexisNexis has picked the top “noteworthy” panel decisions issued by the California Workers’ Compensation Appeals Board during the period July through December 2014. You’ll find many helpful cases in this list, including a recent decision on reasonable attorney’s fees, and “bonus” cases on the issue of utilization review as it applies to prescription medications and the granting of a defendant’s appeal of an IMR decision that contained plainly erroneous findings that are not subject to expert opinion.

We thank our advisory board members for their feedback on current topics and issues of interest to the workers’ compensation community.

Note: Lexis.com and Lexis Advance subscribers can link to the actual WCAB panel decisions. We’ve reported thousands of noteworthy panel decisions to date on the LexisNexis Services. Lexis online users should subscribe to our monthly noteworthy panel decisions reporter, available in PDF format, to keep abreast of the latest trends and cutting edge case law.

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APPORTIONMENT

Jeanne Ramirez, Applicant v. Los Angeles Sheriff’s Department, PSI, administered by York Risk Services Group, Defendants, 2014 Cal. Wrk. Comp. P.D. LEXIS 362 (lexis.com), 2014 Cal. Wrk. Comp. P.D. LEXIS 362 (Lexis Advance)

Permanent Disability—Apportionment—Anti-Attribution Clauses—WCAB, affirming WCJ, awarded applicant/deputy sheriff 65 percent permanent disability, without apportionment, as result of cumulative industrial injury to her right knee, lumbar spine, left hip, and in form of hypertension during period 8/31/79 through 7/12/2006, when applicant’s injury was presumed compensable pursuant to Labor Code § 3213. 2 duty belt presumption, and WCAB found that, although Labor Code § 3213. 2 does not contain express “non-attribution” clause, any disability related to peace officer’s low back injury caused by wearing duty belt was specifically excluded from apportionment to prior orthopedic award under Labor Code § 4663(e), and that WCAB need not address agreed medical examiner’s finding of apportionment in this case because even if medical evidence supports finding of apportionment, apportionment would be precluded under Labor Code § 4663(e).  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 3.113[1], [2], [4], 8.05–8.07; Rassp & Herlick, California Workers’ Compensation Law, Ch. 10, § 10.07[3].]

ATTORNEY’S FEES—LABOR CODE § 5814.5

Guillermo Hernandez, Applicant v. Spiess Construction, State Compensation Insurance Fund, Defendants; William A. Herreras, Esq., Attorney Fee Claimant, 2014 Cal. Wrk. Comp. P.D. LEXIS -- (lexis.com), 2014 Cal. Wrk. Comp. P.D. LEXIS -- (Lexis Advance)

Penalties—Unreasonably Delayed Compensation—Attorney’s Fees—WCAB affirmed WCJ’s award of Labor Code § 5814.5 attorney’s fees in sum of $4,000.00 to applicant’s attorney for enforcing payment of earlier award of Labor Code § 5811 costs, which defendant had unreasonably delayed after that award was issued, and for time spent litigating proper amount of Labor Code § 5814.5 fee after defendant had paid award of Labor Code § 5811 costs plus penalties, when WCAB concluded that (1) despite defendant’s contrary contention, when attorney files petition for Labor Code § 5814 penalties and Labor Code § 5814.5 fee because defendant unreasonably delayed making post-award payment of compensation, any subsequent litigation over proper amount of fee is part and parcel of proceedings and, therefore, Labor Code § 5814.5 fee awarded may include reasonable hours expended by attorney in connection with such litigation, (2) what constitutes “reasonable” fee under Labor Code § 5814.5 is within discretion of WCAB and, in exercising its discretion, WCAB should consider, among other things, attorney’s original Labor Code § 5814.5 fee request, defendant’s response to original fee request, and nature and extent of any subsequent litigation over Labor Code § 5814.5 fee dispute, and (3) in finding that $4,000.00 was reasonable attorney’s fee, WCJ properly exercised his discretion by allowing original $1,900.00 fee requested by applicant’s attorney for enforcing cost award, plus additional amount for applicant’s attorney to litigate issue of fee in face of defendant’s assertions that only $300.00 (rather than $400.00 hourly rate awarded) was warranted and that applicant’s attorney’s actual travel time was nine minutes less than time claimed. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 10.42; Rassp & Herlick, California Workers’ Compensation Law, Ch. 11, § 11.11[2], [3].]

CUMULATIVE INJURY

Maria Salas, Applicant v. IDS USA West, Inc., Mitsui Sumitomo Insurance Company of America, Defendants, 2014 Cal. Wrk. Comp. P.D. LEXIS 364 (lexis.com), 2014 Cal. Wrk. Comp. P.D. LEXIS 364 (Lexis Advance)

Cumulative Injury—Date of Injury—Period of Liability—WCAB affirmed WCJ’s finding that applicant/packer sustained industrial cumulative injury to her cervical spine, left hand, left wrist, and left knee, and, amending WCJ’s finding, held that (1) date of injury under Labor Code § 5412 was 1/26/2011, when WCAB found that applicant missed no time from work before being terminated on 1/14/2011 due to her immigration status, that there was no recommendation by medical practitioner that applicant required modified work with restriction until primary treating physician issued report on 1/26/2011, and applicant testified that she could physically perform her job duties and would have been able to continue working for defendant in modified capacity had she not been terminated based on her status as undocumented worker; and (2) period of liability for applicant’s cumulative trauma under Labor Code § 5500.5(a) was 1/14/2010 to 1/14/2011, because last day applicant was exposed to hazards of cumulative injury was 1/14/2011, which was before 1/26/2011 date of injury under Labor Code § 5412.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 4.01[2][a], 7.01[1], 24.03[6], 31.13[2]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 10, § 10.06[1]; Ch. 15, § 15.15.]

Permanent Disability—Offers of Regular, Modified or Alternative Employment—Undocumented Workers—WCAB, affirming WCJ, held that applicant/packer with industrial cumulative injury to her cervical spine, left hand, left wrist, and left knee, was not entitled to increased permanent disability pursuant to Labor Code § 4658(d)(3)(A) for defendant’s failure to offer modified work, when WCAB found that, although there was no indication of precisely when defendant learned that applicant was not authorized to work in United States, defendant’s failure to offer regular, modified or alternative work occurred after it learned of applicant’s immigration status and was based solely on fact that applicant was undocumented, and that defendant’s failure to offer work under these circumstances was consistent with decision in Salas v. Sierra Chemical Co., (2014) 59 Cal. 4th 407, 173 Cal. Rptr. 3d 689, 327 P.3d 797, 79 Cal. Comp. Cases 782, where Supreme Court held that SB 1818, which extends state law employee protections and remedies to all workers regardless of immigration status, is preempted by federal immigration law to extent it provides for compensation of undocumented workers for loss of employment during period after employer discovers that worker is undocumented and unauthorized to work, because forcing employer to employ undocumented worker wrongly imposes liability for failure to perform act expressly prohibited by federal law.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 3.31, 7.02[4][d][iii], 32.04[2]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 7, § 7.51[2].]

DEATH BENEFITS

Frank Jones (Deceased), Applicant v. CDCR Kern Valley State Prison, Defendant, 2014 Cal. Wrk. Comp. P.D. LEXIS 461 (lexis.com), 2014 Cal. Wrk. Comp. P.D. LEXIS 461 (Lexis Advance)

Death Benefits—Special Death Benefit—WCAB upheld WCJ’s award of special minor’s death benefit to minor child of deceased correctional officer based upon finding of need pursuant to Labor Code § 4704 and, additionally, affirmed WCJ’s denial of credit to defendant for $43,987.37 in regular death benefits advanced to decedent’s widow (minor child’s mother) purportedly before defendant was aware that widow had elected to receive CalPERS special death benefit in Labor Code § 4707, when WCAB found that widow’s election of CalPERS special death benefit in Labor Code § 4707 did not preclude minor child from receiving death benefit, that pursuant to Labor Code § 4704, workers’ compensation death benefits may be awarded to deceased employee’s dependent children upon showing of “good cause,” that, here, there was good cause to award death benefits to minor child based upon widow’s testimony regarding effect of loss of decedent’s income and military pension, including added childcare and living expenses, depleted college fund, and role of widow as sole provider, and that showing of good cause in this case was even more compelling than in prior cases involving adult children, as minor child was totally dependent on decedent, would not reach adulthood for 13 years, and was now being supported by single parent who lost husband’s full salary and military pension.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 3.115[1], 9.04; Rassp & Herlick, California Workers’ Compensation Law, Ch. 9, § 9.14[1], Ch. 22, § 22.05[4].]

Andrew Thompson (Deceased), Edith Thompson (Spouse), Applicant v. Huhtamaki Americas, Inc., ACE American Insurance Co., administered by ESIS, Defendants, 2014 Cal. Wrk. Comp. P.D. LEXIS 511 (lexis.com), 2014 Cal. Wrk. Comp. P.D. LEXIS 511 (Lexis Advance)

Death Benefits—Statute of Limitations—Asbestos Claims—WCAB, reversing WCJ in split panel opinion, held that applicant widow’s 1/2/2014 claim for death benefits arising from asbestos-related death of her husband was barred by one-year statute of limitations in Labor Code § 5406.5, when applicant filed application for death benefits more than one year after her husband’s death, and majority WCAB panel, relying on Earley v. W.C.A.B. (2003) 68 Cal. Comp. Cases 1707 (writ denied), concluded that, unlike circumstances in Arndt v. W.C.A.B. (1976) 56 Cal. App. 3d 139, 128 Cal. Rptr. 250, 41 Cal. Comp. Cases 151 (where widow’s death claim filed over one year from her husband’s death was not barred because claim was filed within one year of widow becoming aware that death was industrially caused for purposes of Labor Code § 5412 date of injury), decedent’s date of injury in this case was established inter vivos and, therefore, date applicant discovered that her husband’s death was industrial did not create new date of injury pursuant to Labor Code § 5412, and that applicant’s petition requesting that she be substituted as applicant in place of her deceased husband pursuant to Labor Code § 4700, which was filed within one year of decedent’s death, did not constitute filing of death claim for purposes of compliance with statute of limitations.  [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. 14, §§ 14.11[2], 14.18.]

DISMISSAL

Rafael Anguiano, Applicant v. Nick’s Cabinet Doors, Zurich North American Insurance, Administered by Patriot Risk Services, Defendants, 2014 Cal. Wrk. Comp. P.D. LEXIS 550 (lexis.com), 2014 Cal. Wrk. Comp. P.D. LEXIS 550 (Lexis Advance)

Dismissal—Failure to Prosecute—WCAB, granting removal on its own motion, rescinded WCJ’s order denying defendant’s petition to dismiss applicant’s case for lack of prosecution and held that neither applicant’s attorney’s objection to WCJ’s notice of intention to dismiss (NIT), which merely acknowledged that applicant could not be located, nor declaration of readiness to proceed filed by defendant on sole issue of dismissal request, served to activate case so as to prevent dismissal of case pursuant to 8 Cal. Code Reg. § 10582.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 23.11[5][c]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 16, § 16.07[5].]

EXPEDITED HEARINGS

Jesus Mendoza Sanchez, Applicant v. Enterprise Rent-A-Car, PSI, administered by York Risk Services Group, Defendants, 2014 Cal. Wrk. Comp. P.D. LEXIS 596 (lexis.com), 2014 Cal. Wrk. Comp. P.D. LEXIS 596 (Lexis Advance)

Expedited Hearings—Issues for Adjudication—Medical Treatment—WCAB affirmed WCJ’s finding that applicant rental car driver/washer suffered compensable injuries in forms of hypertension and diabetes, and was entitled to further medical treatment for resulting kidney injury, when defendant accepted applicant’s orthopedic injuries but disputed injury in form of hypertension and diabetes/kidney injury, and WCAB found that, contrary to defendant’s assertion, WCJ did not err in deciding compensability of applicant’s diabetic condition and hypertension at Expedited Hearing, that under Labor Code § 5502(b)(1) and 8 Cal. Code Reg. § 10252(a)(1) and (b), issue of entitlement to medical treatment for disputed body part was appropriate issue for Expedited Hearing, and determining compensability of disputed body part was inherent in deciding medical treatment issue, that absence of request for authorization (RFA) for medical treatment did not preclude WCJ from deciding issue, as Labor Code § 5502(b)(1) expressly authorizes WCJ to determine injured employee’s entitlement to medical treatment pursuant to Labor Code § 4600, except for specific treatment issues that must be determined through utilization review (UR) under Labor Code §§ 4610 and 4610.5, and that, here, WCJ made general medical treatment award for kidneys and did not make any award subject to UR that would require RFA.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 26.02[1]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 16, § 16.04[3].]

Sanctions—WCAB strongly admonished defense counsel for refusing to complete pretrial conference statement at Expedited Hearing when requested to do so by WCJ and for refusing to stipulate to any facts or agree to any issues to be submitted, and found that defendant’s objection to Expedited Hearing did not give defendant right to refuse to comply with judicial orders or to obstruct proceedings by refusing to cooperate, and that such behavior disregards WCAB process and compromises defendant’s interests by creating record which may not reflect everything defendant wants to include; WCAB returned matter to WCJ for award of reasonable sanctions under Labor Code § 5813 and 8 Cal. Code Reg. § 10561(b)(4) and (5)(A), based on defendant’s conduct at Expedited Hearing and defendant’s failure to fairly state evidence in its petition for reconsideration.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 23.15; Rassp & Herlick, California Workers’ Compensation Law, Ch. 16, § 16.54.]

INDEPENDENT BILL REVIEW

Aziza Sayed, Applicant v. Giorgio Armani, Federal Insurance Company, administered by Chubb Group, Defendants, 2014 Cal. Wrk. Comp. P.D. LEXIS 543 (lexis.com), 2014 Cal. Wrk. Comp. P.D. LEXIS 543 (Lexis Advance)

Medical Treatment—Utilization Review—Independent Bill Review—WCAB dismissed defendant’s petition for reconsideration as premature and also summarily dismissed defendant’s petition appealing Administrative Director’s independent bill review (IBR) determination, wherein Maximus Federal Services, following bill review pursuant to Labor Code § 4603.6, determined that lien claimant was entitled to additional payment of $1,168.72 for medical services rendered to applicant on 7/30/2013, plus reimbursement of $335.00 IBR fee, when WCAB concluded that defendant failed to comply with WCAB rules for appealing adverse IBR determinations; specifically, WCAB found that (1) defendant did not comply with 8 Cal. Code Reg. § 10957, which requires aggrieved party, before seeking reconsideration, to file IBR determination appeal at WCAB district office having venue and requires appeal to be heard and decided by WCJ, and defendant did not file appeal at Anaheim district office, where case was venued, and did not obtain final decision from WCJ before filing petition for reconsideration, thereby rendering petition for reconsideration premature, (2) defendant did not comply with specific requirements in Labor Code § 4603.6(f) and 8 Cal. Code Reg. § 10957 for IBR determination appeals, or general requirements for petitions as set forth in 8 Cal. Code Reg. § 10450, regarding verification and service, nor did defendant’s IBR determination appeal state any of five grounds for IBR appeals set forth in Labor Code § 4603.6(f), (3) compliance with proper procedure requires any aggrieved party, after ensuring that its petition meets all statutory and regulatory requirements, to file appeal at district office with proper venue, perhaps, if no case number exists, concurrently with Application for Adjudication of Claim, and then proceed with requisite steps for obtaining hearing (including filing and service of Declaration of Readiness to Proceed), if hearing is desired, and final decision by WCJ, subject to reconsideration, and (4) defendant’s failure to comply with these procedures was grounds for dismissal of defendant’s appeal.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 5.02[2][e], 22.05[6][b][iv]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 16, § 16.24, Ch. 17, § 17.70[6].]

INSIDIOUS DISEASES

Luis Gonzales, Applicant v. Robert Heely Construction, Travelers Insurance Company, Defendants, 2014 Cal. Wrk. Comp. P.D. LEXIS 497 (lexis.com), 2014 Cal. Wrk. Comp. P.D. LEXIS 497 (Lexis Advance)

WCAB Jurisdiction—Insidious Diseases—Valley Fever—WCAB, in split panel opinion, affirmed WCJ’s determination that applicant oil field worker/heavy equipment operator was entitled to interim award of 24 percent permanent disability with jurisdiction reserved over permanent disability, based upon finding that applicant’s industrial lung injury from Valley Fever over period 1/24/2006 through 8/24/2011 constituted “insidious progressive disease,” when majority WCAB panel concluded that, although agreed medical examiner determined that applicant’s condition was permanent and stationary with defined level of permanent disability and medical record established that applicant’s medications effectively controlled Valley Fever, agreed medical examiner indicated that applicant would not be kept on medications indefinitely and that there was significant potential for relapse, or even death, upon discontinuation of drug treatment so as to justify reservation of jurisdiction pursuant to General Foundry Services v. W.C.A.B. (Jackson) (1986) 42 Cal.3d 331, 51 Cal. Comp. Cases 375, for potential future permanent disability awards.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d §§ 8.03, 8.04, 22.02[1]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 7, § 7.30, Ch. 14, §§ 14.04, 14.06[3].]

LIENS

Emilio Ballardo, Applicant v. Cardenas Market, Pacific Compensation, Defendants, 2014 Cal. Wrk. Comp. P.D. LEXIS 588 (lexis.com), 2014 Cal. Wrk. Comp. P.D. LEXIS 588 (Lexis Advance)

Liens—Procedural Rights and Duties—Order Requiring Appearance of Lien Claimant’s Representative—WCAB, granting removal, rescinded WCJ’s pretrial order requiring lien claimants’ representatives to appear at trial and directed WCJ to conduct trial on merits of liens, when WCJ ordered representatives’ appearance based upon his belief that lien claimants could not establish prima facie case at trial in support of lien claims, and WCAB found that, although lien claimants are required to be prepared at trial to meet their burden to prove all elements necessary to establish their liens (including showing that they meet mandatory licensing requirements) and lien claimants may be subject to sanctions for failing meet initial burden of proof, WCJ abused his discretion by ordering appearance of person most knowledgeable about lien claimants’ licensing status and threatening imposition of sanctions prior to presentation of evidence at lien trial, that while lien claimant may decide to proceed to trial on record that appears to WCJ to be inadequate and indeed may be “utterly incapable of meeting its burden of proof” under standard in Torres v. AJC Sandblasting (2012) 77 Cal. Comp. Cases 1113 (Appeals Board en banc opinion), WCJ here improperly made pre-determination that lien claimants would appear at trial without evidence capable of meeting their burden of proof, that rather than issuing order at lien conference that particular witness must appear at trial, which suggested that WCJ was being punitive, WCJ could have informally advised lien claimants, in context of pretrial settlement discussions, that serious issue existed as to whether evidence and witnesses listed on pretrial conference statement would be sufficient to carry their burden of proof, and that whether lien claimants actually do fail to meet their burden must be determined by WCJ after case is submitted for decision and then WCJ may order record to be further developed by directing appearance of particular witness and/or may impose sanctions. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 1.11[3][g], 21.02[2], 26.03[4], 30.22[2]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 17, § 17.111, Ch. 19, § 19.37.]

MEDICAL PROVIDER NETWORKS

Marialaine Tabak, Applicant v. San Diego Unified School District, PSI, administered by York Risk Services Group, Defendants, 2014 Cal. Wrk. Comp. P.D. LEXIS 416  (lexis.com), 2014 Cal. Wrk. Comp. P.D. LEXIS 416 (Lexis Advance)

Medical Provider Networks—Location of Provider’s Office—WCAB affirmed WCJ’s finding that applicant/teacher who sustained ten specific and cumulative trauma injuries to multiple body parts between 6/2004 and 11/2010 was properly denied authorization of medical treatment with medical provider Dr. Lawrence Miller, when, although Dr. Miller was in defendant’s MPN, applicant sought medical treatment at office location of Dr. Miller that was not authorized as part of defendant’s MPN, and WCAB found that Dr. Miller was only listed as MPN provider at his Beverly Hills office location and potential patients were notified on MPN listing that other locations were not deemed in-network, that decision in Juarez v. Wm. Bolthouse Farms, 2009 Cal. Wrk. Comp. P.D. LEXIS 644 (Appeals Board noteworthy panel decision), was not controlling in this case because, in Juarez, terms of contract between physician and MPN envisioned that treatment would be provided at locations other than those listed in MPN and, therefore, WCJ did not address whether there was statutory limitation on whether physician could treat at different location, whereas, here, location at which treatment by Dr. Miller would be provided was expressly limited to Beverly Hills office listed by MPN and prospective patients were notified of such, and that as long as MPN meets access standards in 8 Cal. Code Reg. § 9767.5, MPN can limit physical location at which MPN provider is authorized to provide medical treatment.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 5.03; Rassp & Herlick, California Workers’ Compensation Law, Ch. 4, § 4.12[3].]

MEDICAL TREATMENT

Joel Ramirez, Applicant v. Kuehne and Nagel, Inc., Travelers Property Casualty Insurance, Defendants, 2014 Cal. Wrk. Comp. P.D. LEXIS 537 (lexis.com), 2014 Cal. Wrk. Comp. P.D. LEXIS 537 (Lexis Advance)

Medical Treatment—Attendant Care—Non-Medical Transportation Costs—WCAB, applying holding in Patterson v. The Oaks Farm (2014) 79 Cal. Comp. Cases 910 (Appeals Board significant panel decision), affirmed WCJ’s finding that defendant was not entitled to unilaterally terminate 24-hour home health attendant care or “non-medical transportation” (i.e., transportation of applicant to his activities of daily living) provided to applicant who was rendered paraplegic from 7/29/2009 industrial spinal cord injury, when WCAB found that both attendant care and “non-medical transportation” were forms of medical treatment that applicant’s primary treating physician found reasonable and necessary to cure or relieve from effects of industrial injury, that there was no evidence, as required under Patterson, of change in applicant’s circumstances or condition showing that those services were no longer reasonable to cure or relieve from effects of industrial injury, nor was it necessary for applicant to obtain request for authorization to challenge defendant’s unilateral termination of those services, and that there was no dispute over terms of 12/19/2011 stipulation pursuant to which defendant was prohibited from terminating transportation without supporting medical evidence from primary treating physician, panel qualified medical evaluator or agreed medical evaluator.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 5.04[6], 5.08[1]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 4, § 4.05[1], [3].]

PERMANENT DISABILITY PAYMENTS

Kelly Kouninos, Applicant v. City of Santa Rosa, PSI, Administered by Redwood Empire Municipal Insurance Fund, Defendants, 2014 Cal. Wrk. Comp. P.D. LEXIS 528 (lexis.com), 2014 Cal. Wrk. Comp. P.D. LEXIS 528 (Lexis Advance)

Permanent Disability—Offers of Regular, Modified or Alternative Employment—WCAB, affirming WCJ in split panel opinion, held that defendant was entitled to 15 percent decrease under Labor Code § 4658(d) on permanent disability payments made to applicant utility systems maintenance worker after 8/24/2011 (date defendant sent second Notice of Offer of Regular Work), but was not entitled to reduction on lump-sum, retroactive payment of permanent disability for period between 9/2/2010 (date defendant sent first Notice of Offer of Regular Work) and 8/24/2011, because defendant sent 9/2/2010 Notice of Offer of Regular Work and began paying permanent disability before applicant’s condition was permanent and stationary, and majority WCAB panel reasoned that (1) permanent and stationary requirement in Labor Code § 4658(d) allows both employee and employer to know employee’s true level of disability or impairment so that employer can have informed medical basis to decide whether to offer regular, modified or alternate work and employee has informed medical basis to decide whether to accept offer, (2) there is no legal obligation imposed on employer to offer regular work before injured worker’s condition becomes permanent and stationary, (3) nothing in language of Labor Code § 4658(d)(3) limits its application to one permanent and stationary date or to one offer within 60 days of permanent and stationary date, (4) because possibility of increase or decrease under Labor Code § 4658(d) only applies to “amounts remaining to be paid,” statute contemplates that increase or decrease in permanent disability rate based on offer will be determined prospectively, and (5) where, as here, applicant’s condition is not found to be permanent and stationary until after second period of temporary disability, offer or lack of offer and its effect on rate of payment going forward will be determined in relation to applicant’s disability on new permanent and stationary date, and not on any prior date when employer has issued return-to-work order.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 7.02[4][d][iii], 32.04[2]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 7, § 7.51[2].]

Jeff Turley, Applicant v. County of Riverside, PSI, Defendant, 2014 Cal. Wrk. Comp. P.D. LEXIS 474 (lexis.com), 2014 Cal. Wrk. Comp. P.D. LEXIS 474 (Lexis Advance) [Defendant’s petition for writ of review was subsequently denied on October 16, 2014, sub nom. County of Riverside v. Workers’ Comp. Appeals Bd. (Turley) (2014) 79 Cal. Comp. Cases 1446]

Permanent Disability—Manner of Payment—Commencement Date—WCAB affirmed WCJ’s finding that permanent disability due to applicant sheriff’s captain for industrially-related cancer was payable retroactively, pursuant to Labor Code § 4650, 14 days after applicant last received his Labor Code § 4850 benefits and not when applicant became permanent and stationary, and that defendant’s failure to pay retroactive permanent disability justified WCJ’s 10 percent penalty imposition on retroactive benefits under Labor Code § 4650(d), when WCAB found that, pursuant to Brower v. David Jones Construction (2014) 79 Cal. Comp. Cases 550 (Appeals Board en banc opinion), there was no difference between temporary disability indemnity and Labor Code § 4850 benefits given that Labor Code § 4850 benefits, although not same as temporary disability benefits, are made in lieu of temporary disability payments.  [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].]

PERMANENT DISABILITY RATING

Gerald Reese, Applicant v. Microdental Laboratories, American Home Assurance, Adjusted by AIG Claims Services, Defendants, 2014 Cal. Wrk. Comp. P.D. LEXIS 625 (lexis.com), 2014 Cal. Wrk. Comp. P.D. LEXIS 625 (Lexis Advance)

Permanent Disability—Rating—AMA Guides—Deconditioning—WCAB rescinded WCJ’s finding that applicant suffered 45 percent permanent disability from 1/5/2006 industrial injury to his lumbar spine, knees, right ankle, and in form of sleep disorder, and remanded matter to WCJ to issue new rating instructions, when WCJ rated applicant’s permanent disability without including 10 percent whole person impairment (WPI) assigned by panel qualified medical evaluator for applicant’s 75 percent loss of exercise capacity/deconditioning, based on panel qualified medical evaluator’s analogy of applicant’s “deconditioning” to Class II cardiovascular impairment, and WCAB concluded that, because AMA Guides do not assess functional classifications of conditioning except in cardiovascular disease chapter, panel qualified medical evaluator was permitted under analysis in Almaraz v. Environmental Recovery Services/Guzman v. Milpitas Unified School District (2009) 74 Cal. Comp. Cases 1084 (Appeals Board en banc opinion), and Milpitas Unified School Dist. v. W.C.A.B. (Guzman) (2010) 187 Cal. App. 4th 808, 115 Cal. Rptr. 3d 112, 75 Cal. Comp. Cases 837, and pursuant to express language in 2005 Permanent Disability Rating Schedule, to assess applicant’s WPI by analogy to cardiovascular impairment if such analogy most accurately reflected applicant’s level of impairment and was within “four corners” of AMA Guides, and, although WCJ found that loss of physical fitness or “deconditioning” is not a “body part” for purposes of finding ratable permanent disability under AMA Guides or Almaraz/Guzman analysis, WCAB determined that neither Labor Code § 4664, which requires assignment of permanent disability to body region, nor any other Labor Code provision mandates that permanent disability be assigned only to particular “body part.” [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 32.03A; Rassp & Herlick, California Workers’ Compensation Law, Ch. 7, § 7.12; The Lawyer’s Guide to the AMA Guides and California Workers’ Compensation, Ch. 8.]

PETITIONS TO REOPEN

Hugo Bolanos, Applicant v. Inland Valley Saw Services, The Hartford, administered by Athens Administrators, Defendants, 2014 Cal. Wrk. Comp. P.D. LEXIS 371 (lexis.com), 2014 Cal. Wrk. Comp. P.D. LEXIS 371 (Lexis Advance)

[Applicant’s petition for writ of review was subsequently denied on October 21, 2014, sub nom. Bolanos v. Workers’ Comp. Appeals Bd., 2014 Cal. Wrk. Comp. LEXIS 145]

Petitions to Reopen—New and Further Injury—WCAB affirmed WCJ’s order denying applicant/machine operator’s 5/17/2013 Petition to Reopen in which applicant claimed injury to his psyche, which was previously unclaimed body part, when applicant did not allege psyche injury in 1/6/2010 Application for Adjudication of Claim alleging injury to his lungs/respiratory system, nor was psyche injury included in two prior Stipulated Awards issued on 4/13/2011 and 4/25/2012, respectively, and WCAB found that applicant knew or should have known of existence of psyche injury in 2010, before Stipulated Awards were issued, based upon treating physician’s 7/2/2010 report finding compensable psyche injury with GAF score of 53 and need for psychotherapy sessions but failed to pursue claim for psyche injury, that because psyche injury was known to exist prior to issuance of Stipulated Awards (second of which included sleep disorder as additional body part) it was not “new” and further injury for purposes of reopening claim under Labor Code § 5410, that applicant’s failure to pursue claim for psyche injury was not “mutual mistake” as alluded to by applicant, that it was not defendant’s burden to pursue additional body parts on applicant’s behalf but rather applicant’s burden to pursue claims that are known to exist, and that “doctrine of invited error would seem to apply under these circumstances.”  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 31.04[1], [2], 31.05; Rassp & Herlick, California Workers’ Compensation Law, Ch. 14, § 14.09.]

PROFESSIONAL ATHLETES

Keith Booth, Applicant v. Chicago Bulls, TIG Insurance, Defendants, 2014 Cal. Wrk. Comp. P.D. LEXIS 487 (lexis.com), 2014 Cal. Wrk. Comp. P.D. LEXIS 487 (Lexis Advance)

WCAB Jurisdiction—Minimum Contacts—Professional Athletes—WCAB, reversing WCJ, held that there was no California jurisdiction over applicant professional football player’s claim against employer Chicago Bulls, when WCAB found that under Federal Insurance Company v. W.C.A.B. (Johnson) (2013) 221 Cal. App. 4th 1116, 165 Cal. Rptr. 3d 288, 78 Cal. Comp. Cases 1257, California must have sufficient interest in applicant’s claim to apply its workers’ compensation law otherwise employer/carrier would be deprived of due process, that although Johnson does not suggest rigid application of mathematical formula to determine jurisdiction based solely on number of games played in California, it does require that nature of applicant’s contact with California be sufficient to support state’s jurisdiction over his or her injury claim, that, contrary to WCJ’s determination in this case, effects of applicant’s participation in practices on three occasions when Chicago Bulls were in California during applicant’s two years of employment with team did not amount to cumulative injury in California that warranted invocation of California law as, at best, effect of those practices was de minimis, and that, consistent with holding in Johnson, California did not have legitimate interest in adjudicating applicant’s claim for workers’ compensation benefits and, consequently, lacked jurisdiction; WCAB was not persuaded that applicant’s testimony at trial presented “notable distinction between this case and the Johnson case” as urged by WCJ, because in both cases there was medical evidence that applicants were exposed to injurious trauma that contributed to their cumulative injuries, however, WCAB found that such exposure to injurious trauma is not sufficient, in itself, to support exercise of California jurisdiction under holding in Johnson, because even though one day of work may contribute to cumulative injury, applicant still has burden of proving that his or her contact with California was sufficient to invoke jurisdiction of state, and applicant here did not meet that burden.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 3.22[2], [3], 21.02, 21.06, 21.07[5]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 13, § 13.01[2].]

PSYCHIATRIC INJURY

Pablo Aguirre, Applicant v. Ekim Painting North, Inc., Redwood Fire & Casualty Insurance Company, administered by Berkshire Hathaway Homestate Companies, Defendants, 2014 Cal. Wrk. Comp. P.D. LEXIS 448 (lexis.com), 2014 Cal. Wrk. Comp. P.D. LEXIS 448 (Lexis Advance)

Psychiatric Injury—Six-Month Employment Requirement—Sudden and Extraordinary Employment Events—WCAB, reversing WCJ in split panel opinion, held that applicant painter’s claim for alleged psychiatric injury stemming from 12/1/2008 orthopedic injuries suffered when applicant fell two stories from roof was not barred by six-month employment requirement in Labor Code § 3208.3(d), when majority WCAB panel, relying on reasoning in Matea v. W.C.A.B. (2006) 144 Cal. App. 4th 1435, 51 Cal. Rptr. 3d 314, 71 Cal. Comp. Cases 1522, found that applicant met burden of showing that alleged psychiatric injury resulted from incident that was unusual, uncommon and unexpected or “sudden and extraordinary” based upon his unrebutted testimony that in his eight to nine years working as painter at similar heights he  never before fell or lost footing, coupled with traumatic nature of his injury and defendant’s failure to produce any evidence indicating that applicant’s fall was routine or ordinary employment condition.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 4.02[3][d]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 10, § 10.06[3][c].]

Yolanda Martinez, Applicant v. Mass Precision, CompWest Insurance Company, SCI @ Balance Staffing Service, Zurich North America, Defendants, 2014 Cal. Wrk. Comp. P.D. LEXIS 577 (lexis.com), 2014 Cal. Wrk. Comp. P.D. LEXIS 577 (Lexis Advance)

Psychiatric Injury—Six-Month Employment Requirement—Dual Employment—WCAB, affirming WCJ in split panel opinion, held that applicant part maker’s claim against general employer SCI @ Balance Staffing Services for psychiatric injury stemming from orthopedic injuries incurred on 11/30/2009 and cumulatively over period ending 11/30/2009, while applicant was working for special employer Mass Precision, was not barred by six-month employment requirement in Labor Code § 3208.3(d), even though applicant had been employed at Mass Precision through SCI for fewer than six months, when applicant had previously been employed by Mass Precision directly (from 3/17/2008 through 3/12/2009) before returning to employment on 6/19/2009 through SCI, and majority WCAB panel, relying on opinion in Martinez v. Tarrant Apparel dba Fashion Resource, 2010 Cal. Wrk. Comp. P.D. LEXIS 192 (Appeals Board noteworthy panel decision) (where employer was held liable for applicant’s psychiatric injury suffered after only two days of regular employment, because applicant had been performing duties for employer for more than six months as special employee), concluded that total time applicant was employed by Mass Precision by dual and regular employers counted toward six-month employment requirement, that Labor Code § 3208.3(d) extends requisite employment period in cases of dual employment to entire period of employment by both general and special employers, that purpose behind six-month employment requirement of avoiding fraudulent claims by newly hired employees is not applicable to long serving “dual employee” who has performed same job duties at same place of employment but for shifting special and general employers, and that barring employees’ claims under these circumstances would provide employers with means of “gaming the system” to avoid potential liability for temporary or leased employees without extending workers’ compensation benefits for protection of persons injured in course of their employment.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 4.02[3][d]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 10, § 10.06[3][c].]

PUBLIC EMPLOYEES

Jennifer James, Applicant v. City of Santa Rosa, PSI, Administered by Redwood Empire Municipal Insurance Fund, Defendants, 2014 Cal. Wrk. Comp. P.D. LEXIS 408 (lexis.com), 2014 Cal. Wrk. Comp. P.D. LEXIS 408 (Lexis Advance)

[Applicant’s petition for writ of review was subsequently denied on October 30, 2014, sub nom. James v. Workers’ Comp. Appeals Bd., 2014 Cal. Wrk. Comp. LEXIS 147]

Public Employees—Salary in Lieu of Benefits—WCAB, in split panel opinion, affirmed WCJ’s denial of applicant/police officer’s claim for additional Labor Code § 4850 benefits for period during which she was temporarily partially disabled and was working part-time modified duties as result of her 9/4/2012 industrial back injury, and held that Labor Code § 4850 benefits are to be paid to injured worker who returns to part-time work for one calendar year, rather than for equivalent of one year’s salary, when defendant paid applicant partial salary continuation benefits for calendar year but did not pay applicant equivalent of her full salary within that period, and majority WCAB panel found no support for applicant’s position that salary continuation should be based on overall number of hours worked instead of on number of weeks benefits have been paid, because (1) statute specifies one-year limitation period on payment of salary continuation benefits and, while this was interpreted in Eason v. City of Riverside (1965) 233 Cal. App. 2d 190, 43 Cal. Rptr. 408, 30 Cal. Comp. Cases 464, to permit payment for total of 52 weeks over non-continuous period, there is no authority to further break down period of benefit entitlement on hourly basis, (2) interpretation of Labor Code § 4850 so as to limit salary continuation to one calendar year is supported by decision in Kosowski v. W.C.A.B. (1985) 170 Cal. App. 3d 632, 216 Cal. Rptr. 280, 50 Cal. Comp. Cases 427, where court held that if employee receives full salary benefits under Labor Code § 4850, employer is entitled to credit for any self-employment earnings employee receives while employer is paying Labor Code § 4850 benefits, and by 104-week time limitation on temporary disability and equal treatment of temporary total and temporary partial disability in Labor Code § 4656, and (3) fact that Labor Code § 4850 makes no distinction between temporary partial and temporary total disability is indicative of legislative intent that limitation period for benefit payments not be predicated upon whether salary continuation benefits are being paid due to temporary partial or temporary total disability.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 3.114; Rassp & Herlick, California Workers’ Compensation Law, Ch. 6, § 6.21.]

STATUTE OF LIMITATIONS

Cynthia Krause, Applicant v. Wal-Mart Associates, Inc., Insured by American Home Assurance, Adjusted by York Risk Services Group, Inc., Defendants, 2014 Cal. Wrk. Comp. P.D. LEXIS 529 (lexis.com), 2014 Cal. Wrk. Comp. P.D. LEXIS 529 (Lexis Advance)

Statute of Limitations—Five-Year Statute—Compensable Consequence Injuries—WCAB, denying reconsideration of WCJ’s take-nothing order, held that applicant’s 2008 claim for compensable consequence injury to her right eye, which applicant alleged arose out of her industrial knee replacement surgery necessitated by 7/12/2000 injury to her left leg, could not be raised as claim of new injury filed more than five years after date of original injury, when WCAB found that, in consideration of claims for compensable consequence injuries arising more than five years from date of injury, holdings in Newton v. W.C.A.B. (1993) 17 Cal. App. 4th 147, 21 Cal. Rptr. 2d 146, 58 Cal. Comp. Cases 395, and Rodgers v. W.C.A.B. (1985) 168 Cal. App. 3d 567, 214 Cal. Rptr. 303, 50 Cal. Comp. Cases 299, were limited to injuries caused by participation in vocational rehabilitation and have not been extended to permit new claim based on new date of injury where petition to reopen has not been filed within five years of date of injury pursuant to Labor Code §§ 5410 and 5804, that, here, applicant was not engaged in activities incident to her employment when her eye was injured and, therefore, eye injury was not new and separate injury which would entitle applicant to new award of compensation, and that, although applicant would be entitled to benefits because injury was compensable consequence of earlier industrial injury, in absence of timely petition to reopen, WCAB lacked jurisdiction to award additional benefits.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 24.03[2], [3]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 14, §§ 14.04, 14.06.]

TELEPHONIC THERAPY

Cherish Oranje, Applicant v. Crestwood Behavioral Health, National Union Fire Insurance Company, Defendants, 2014 Cal. Wrk. Comp. P.D. LEXIS 602 (lexis.com), 2014 Cal. Wrk. Comp. P.D. LEXIS 602 (Lexis Advance)

Medical Treatment—Telephonic Therapy—WCAB affirmed WCJ’s finding that applicant case manager who suffered admitted industrial injury to her left arm, left hand and psyche on 3/14/2010 in California but now lives in Nevada, was entitled to further medical treatment in form of counseling, including “telephonic therapy” with California marriage and family therapist (MFT) Chris Jones, when WCAB found that, under Telehealth Advancement Act of 2011 (Business and Professions Code § 2290.5), telehealth services have broadened in California since inception of telemedicine in 1996, to include all licensed healthcare professions, that Business and Professions Code §§ 686 and 2290.5 allow California healthcare practitioners to provide “real time” telehealth services from their location (“distant site”) to location of patient (“originating site”) even if patient resides out-of-state, that if telehealth services are provided in accordance with Business and Professions Code § 2290.5, California law precludes health insurer or health care service plan from limiting type of setting for where and how telehealth services are provided, that, contrary to defendant’s contention, there is no authority for proposition that licensed medical health provider located in California, such as MFT Jones, is violating Nevada law when providing telehealth services to applicant, who is now Nevada resident, and that WCAB need not determine whether MFT Jones violated Nevada law, as WCAB’s concern is whether telephonic sessions were consistent with California law as provided in Labor Code § 3600.5(a).  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 5.04[1], [7]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 4, § 4.04[1].]

TEMPORARY DISABILITY

Kimberly Jones, Applicant v. Tulare District Hospital, PSI, Defendant, 2014 Cal. Wrk. Comp. P.D. LEXIS 593 (lexis.com), 2014 Cal. Wrk. Comp. P.D. LEXIS 593 (Lexis Advance)

Temporary Disability—Medical Evidence—Odd Lot Doctrine—WCAB rescinded WCJ’s finding that applicant registered nurse’s industrial injury to her right wrist, right hand and in forms of sleep disorder and depression caused temporary disability from 12/11/2008 to 11/12/2010, and held, instead, that applicant sustained temporary disability only from 4/26/2010 to 11/12/2010 based upon opinion of agreed medical examiner, Gilbert Kucera, M.D, when WCAB found that, although Dr. Kucera did not explain how applicant’s temporary work restrictions were any different from previously-described permanent work restrictions, given public policy to quickly resolve issues regarding temporary disability benefits, it was defendant’s burden to clarify Dr. Kucera’s findings, that public policy considerations behind Labor Code § 4062 and decision in J.C. Penney Co. v. W.C.A.B. (Edwards) (2009) 175 Cal. App. 4th 818, 96 Cal. Rptr. 3d 469, 74 Cal. Comp. Cases 826, mandate that when agreed medical examiner makes determination in first instance that injured worker is temporarily disabled, defendant has obligation to object to determination by seeking clarification from agreed medical examiner, that agreed medical examiner’s opinion should ordinarily be followed unless there is good reason to find opinion unpersuasive, that, here, there was no evidentiary support for temporary disability outside dates specified by Dr. Kucera, and that since there was no showing by defendant that applicant was working or that there was job available within applicant’s work restrictions, applicant, while partially temporarily disabled, was entitled to total temporary disability benefits for specified time period under “odd lot” doctrine.  [Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 7.01[2], 7.02[1], [4][c]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 6, §§ 6.01[1], 6.09-6.11.]

UTILIZATION REVIEW AND INDEPENDENT MEDICAL REVIEW

***BONUS CASE: WCAB GRANTS APPEAL OF IMR DECISION***

Jordan Stone, Applicant v AchieveKids, Caps-Sig, Defendants, 2014 Cal. Wrk. Comp. P.D. LEXIS – (lexis.com), 2014 Cal. Wrk. Comp. P.D. LEXIS – (Lexis Advance)

Medical Treatment—Independent Medical Review—Appeals—WCAB, reversing WCJ’s order denying defendant’s appeal from 6/30/2014 Independent Medical Review (IMR) determination that right knee cartilage transplant requested by applicant program counselor’s treating physician was “medically necessary and appropriate” to treat applicant’s 9/19/2005 right knee injury, held that IMR determination was insufficient because it was issued in excess of Administrative Director’s powers as described in Labor Code § 4610.6(h)(1) and contained plainly erroneous findings that were not subject to expert opinion as described in Labor Code § 4610.6(h)(5) and, on that basis, WCAB remanded matter to Administrative Director for submission to different IMR reviewer pursuant to Labor Code § 4610.6(h)(1), when WCAB found that IMR determination contained “patent discrepancy” in stating that requested surgery was “medically necessary and appropriate” while at same time stating that surgery request was “not medically necessary,” that, in light of such internal contradiction, either IMR determination approving surgery or IMR rationale stating that surgery was not medically necessary was in error, that, contrary to WCJ’s analysis, recognition of such error does not require expert opinion or involvement, and that IMR statute does not authorize Administrative Director to arbitrarily approve surgeries that are not medically supported nor does it allow surgeries that are medically supported to be arbitrarily denied by Administrative Director and to do either is “in excess of the administrative director’s powers” as described in Labor Code § 4610.6(h)(1). [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.]

***BONUS CASE: UR AND PRESCRIPTION MEDICATIONS***

Leo Vigil, Applicant v. Milan’s Smoked Meats, State Compensation Insurance Fund, Defendants, 2014 Cal. Wrk. Comp. P.D. LEXIS -- (lexis.com), 2014 Cal. Wrk. Comp. P.D. LEXIS -- (Lexis Advance)

Medical Treatment—Utilization Review—Prescription Medications—WCAB affirmed WCJ’s finding that defendant’s utilization review (UR) decisions, while timely made, were not timely communicated to applicant or his attorney within two business days as required under Labor Code § 4610(g)(3)(A) and for that reason were invalid pursuant to Dubon v. World Restoration, Inc. (2014) 79 Cal. Comp. Cases 1298 (Appeals Board en banc opinion) (Dubon II) and Bodam v. San Bernardino Department of Social Services (2014) 79 Cal. Comp. Cases 1519, and additionally held that, because UR decisions were untimely, WCJ was authorized to determine medical necessity of prescription refills for Norco and Pennsaid as requested by applicant truck driver’s primary treating physician to treat applicant’s 1/22/82 back and left leg injuries, that WCJ correctly determined that use of prescribed medications was supported by primary treating physician’s report indicating that both medications had proven effective in improving applicant’s pain and functionality as well as in allowing applicant to avoid surgery, and that defendant was obligated to provide applicant with medications requested by treating physician, including Pennsaid topical solution and Norco with five refills; WCAB additionally held that (1) unlike with nurse case manager services at issue in Patterson v. The Oaks Farm (2014) 79 Cal. Comp. Cases 910 (Appeals Board significant panel decision), defendant here was not obligated to show that there was change in applicant’s condition or circumstances that allowed defendant to stop providing requested medications, because ongoing use of narcotic medication such as Norco is subject to periodic review through UR due to nature of treatment as evidenced in Chronic Pain Medical Treatment Guidelines supporting only short-term use of opioids and recommending periodic evaluation of their use in order to avoid addiction and other problems associated with long-term usage, and (2) defendant may submit subsequent requests for opioid medication to UR for review. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 5.02, 22.05[6]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 4, § 4.10.]

Medical Treatment—Service of Medical Reports and Determinations—WCAB held that not only were defendant’s utilization review (UR) determinations invalid for defendant’s failure to timely communicate determinations to applicant and his attorney pursuant to timeframe in Labor Code § 4610(g)(3)(A), but also that defendant violated 8 Cal. Code Reg. § 10608 by failing to serve applicant’s attorney with copies of UR determinations and reports within 10 calendar days as required by that rule, and that, notwithstanding stipulated resolution of applicant’s claim over 20 years before UR, defendant had “continuing duty” as described in 8 Cal. Code Reg. § 10615 to timely serve applicant’s attorney with copies of UR determinations and reports pursuant to 8 Cal. Code Reg. § 10608. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 22.08[4][a], 23.14[2][g], ; Rassp & Herlick, California Workers’ Compensation Law, Ch. 15, § 15.43[1].]

Valerio Flores, Applicant v. Hvolvoll-Johnson Construction, California Insurance Guarantee Association for Fremont Indemnity Company, in liquidation, Defendants, 2014 Cal. Wrk. Comp. P.D. LEXIS 561 (lexis.com), 2014 Cal. Wrk. Comp. P.D. LEXIS 561 (Lexis Advance)

Medical Treatment—Utilization Review—Independent Medical Review—WCAB affirmed WCJ’s finding that defendant’s two utilization review (UR) determinations of primary treating physician’s request for authorization to provide certain analgesic medications to applicant for 1/27/84 industrial injury were untimely, and also affirmed WCJ’s order that defendant authorize requested medical treatment, when defendant did not challenge WCJ’s finding that UR determinations were untimely or that award of medical treatment was not supported by substantial evidence, but instead disputed WCAB’s authority over UR timeliness and medical necessity issues and validity of regulations recognizing WCAB authority over UR issues, and WCAB found that defendant waived any contention that its UR determinations were timely or that WCJ’s award of medical treatment was not supported by substantial medical evidence by failing to raise those issues in its petition for reconsideration, and that defendant’s contention that WCAB lacked authority to adjudicate issues of UR timeliness and medical necessity were rejected by WCAB in Dubon v. World Restoration, Inc. (2014) 79 Cal. Comp. Cases 1298 (Appeals Board en banc opinion) (Dubon II), where WCAB specifically held that UR decision is only invalid if it is untimely and that WCAB may determine medical treatment issues on that basis, but that all other disputes concerning UR must be resolved by independent medical review.  [Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 5.02, 22.05[6]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 4, §§ 4.10, 4.11.]

Rochelle Stock, Applicant v. Camarillo State Hospital, State Compensation Insurance Fund, Defendants, 2014 Cal. Wrk. Comp. P.D. LEXIS 471 (lexis.com), 2014 Cal. Wrk. Comp. P.D. LEXIS 471 (Lexis Advance)

Medical Provider Networks—Utilization and Independent Medical Review—WCAB, granting applicant’s petition for removal and affirming WCJ, held that defendant’s utilization review (UR) determination of request for authorization for hospital bed submitted by treating physician in defendant’s medical provider network (MPN), was admissible over applicant’s objection that report should not be admitted on basis that defendant was not permitted to contest any medical treatment prescribed by MPN physicians, when WCAB found that, contrary to applicant’s assertion, Legislature did not demonstrate intent to preclude employers from seeking UR of MPN physicians’ requests for authorization of medical treatment, that statutory and regulatory law governing UR and MPN provisions provide that treating physician’s request for authorization of medical treatment must be reviewed by physician competent to evaluate specific medical issues, without distinction as to whether treating physician is selected through MPN, that definition of “primary treating physician” in 8 Cal. Code Reg. §§ 9767.1 and 9785(a)(1) both include physicians within MPN, that when employer does not approve treatment request from applicant’s “primary treating physician,” defendant must refer request to UR, and that, here, further review of treating physician’s request for hospital bed to cure or relieve effects of applicant’s back injury must occur through independent medical review, as UR denial, which was based on “silence” of Medical Treatment Utilization Schedule guidelines  and absence of “high quality studies” and “exceptional factors” in documentation submitted, did not appear to consider other standards applicable in reviewing requests for authorization (i.e., nationally recognized professional standards, expert opinion, generally accepted standards of medical practice, and treatments that are likely to provide benefit for condition for which other treatments are ineffective) because there was insufficient documentation or explanation provided to support effectiveness of treatment in form of hospital bed.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 5.02[2], 5.03, 22.05[6][b][iv]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 4, §§ 4.10, 4.11.]

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