Workers' Compensation

California Workers’ Comp Case Roundup (8/4/2016)

CALIFORNIA COMPENSATION CASES

Vol. 81 No. 7 July 2016

A Report of En Banc and Significant Panel Decisions of the WCAB and Selected Court Opinions of Related Interest, With a Digest of WCAB Decisions Denied Judicial Review

CONTENTS OF THIS ISSUE

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Appellate Court Compensation Case

State Compensation Insurance Fund v. W.C.A.B. (Margaris, Dorothy), lexis.com, Lexis Advance

WCAB Jurisdiction—Utilization Review—Independent Medical Review—Timeframes—Court of Appeal, annulling WCAB decision, held that 30-day time limit in Labor Code § 4610.6(d), providing that independent medical review organization “shall complete its review and make its determination in writing … within 30 days of the receipt of the request for review and supporting documentation,” is directory only, not mandatory, so that independent medical review determination issued after 30-day time limit is valid and binding on parties as…

Appellate Court Case Not Originating With Appeals Board

People, The v. Gholipour (Golnaz), lexis.com, Lexis Advance

Insurance—Anti-Fraud Provisions—Perjury—Court of Appeal affirmed applicant/defendant’s jury conviction for (1) workers’ compensation fraud in violation of Insurance Code § 1871.4(a)(1), specifically, four counts related to making false or fraudulent statements about defendant’s physical and emotional conditions to obtain workers’ compensation benefits, in deposition in…

Insurance—Anti-Fraud Provisions—Perjury—Court of Appeal, affirming applicant/defendant’s jury conviction for eight counts of perjury in violation of Penal Code § 118(a), found that there was no basis to consolidate six counts, as requested by defendant, when defendant contended that six counts of perjury should be consolidated because they were based on…

Insurance—Anti-Fraud Provisions—Victim Restitution—Court of Appeal reversed portion of trial court’s restitution award, when Court of Appeal found that trial court made finding of fact that defendant’s initial claim for workers’ compensation benefits in 2007 was false and ordered restitution of…

Insurance—Anti-Fraud Provisions—Opinion Testimony—Court of Appeal held that it was not abuse of discretion for trial court to allow two witnesses to answer two questions and give opinions on whether defendant sustained industrial injury and whether employer should have paid any workers’ compensation benefits to defendant for that injury, when Court of Appeal found that…

Digests of WCAB Decisions Denied Judicial Review

Editorial Board members David Hettick, Robert G. Heywood, Richard M. Jacobsmeyer, Kenneth B. Peterson, and Robert G. Rassp recommended the following writ denied cases for summarization in this issue.

Antouri (Coline) v. W.C.A.B., lexis.com, Lexis Advance

Petition to Reopen—New and Further Disability—Five-Year Statute of Limitations—WCAB rescinded WCJ’s order granting applicant’s petition to reopen and award of 100 percent permanent disability, and issued new award of only medical treatment, when…

California Department of Corrections and Rehabilitation v. W.C.A.B. (Alviso, David), lexis.com, Lexis Advance

Presumption of Industrial Causation—Heart Trouble—Peace Officers—WCAB, relying on Reeves v. W.C.A.B. (2000) 80 Cal. App. 4th 22, 95 Cal. Rptr. 2d 74, 65 Cal. Comp. Cases 359, affirmed WCJ’s finding that Labor Code § 3212.2 presumption of compensability was…

City of Los Angeles v. W.C.A.B. (Montenegro, Arnold), lexis.com, Lexis Advance

Permanent Disability—Rating—Sexual Dysfunction—WCAB affirmed WCJ’s finding that applicant firefighter who suffered industrial injury during period 4/11/81 through 8/11/2014 in forms of diabetes, hypertension, heart disease, prostate cancer, and sexual dysfunction was not precluded by Labor Code § 4660.1(c)(1) from receiving increased impairment rating for sexual dysfunction caused by removal of his prostate to treat his prostate cancer, when WCAB…

City of Los Angeles v. W.C.A.B. (Reichelt, Lawrence), lexis.com, Lexis Advance

Compromise and Release—Scope of Settlement—Release of Liability—WCAB, affirming WCJ, held that applicant police officer’s claim for psychiatric injury as compensable consequence of chronic hepatitis C caused by needle sticks dating back as early as 1983 was not precluded by 1988 compromise and release settling applicant’s prior claim for cumulative psychiatric injury during entirety of his employment, when applicant…

CR England v. W.C.A.B. (Dupont, Jack, Dec’d), lexis.com, Lexis Advance

Injury AOE/COE—Death—Burden of Proof—WCAB affirmed WCJ’s finding that applicant met her burden of proving that decedent’s death on 10/20/2007 caused by seizure was compensable consequence of industrial head injury incurred by decedent on 7/5/2007 when he fell from his truck while working as truck driver, when WCAB concluded that (1) WCJ’s finding was supported by substantial evidence, including applicant’s testimony and medical evidence…

Green (Michael) v. W.C.A.B., lexis.com, Lexis Advance

Medical Treatment—Utilization Review—Time Deadlines—WCAB, reversing WCJ in split panel decision, held that defendant’s prospective utilization review denial of request for authorization for spinal surgery submitted by treating physician was timely and valid under Dubon v. World Restoration, Inc. (2014) 79 Cal. Comp. Cases 1298 (Appeals Board en banc opinion) (Dubon II), and Bodam v. San Bernardino County/Department of Soc. Servs. (2014) 79 Cal. Comp. Cases 1519 (Appeals Board significant panel decision), and that WCJ had no authority to award recommended spine surgery, when request for authorization was submitted after…

Green Team of San Jose v. W.C.A.B. (Nelson, Tony), lexis.com, Lexis Advance

Contribution Among Insurers—Time to File Petition—WCAB affirmed WCJ’s finding that insurer Discover RE’s 3/24/2014 Petition for Contribution seeking contribution from defendant Green Team of San Jose/Waste Connections, insured by Arrowood Indemnity Co., was timely filed pursuant to Labor Code § 5500.5(e), when applicant received stipulated award on 5/3/2006 for specific injury but injury was re-characterized in 2010 as cumulative injury and award for cumulative injury was issued on…

Northridge Hospital Medical Center v. W.C.A.B. (Guzman Hernandez, Carlos), lexis.com, Lexis Advance

Liens—Medical Treatment—Reasonableness of Medical Charges—WCAB affirmed WCJ’s finding that lien claimant Northridge Hospital Medical Center (Northridge) was not entitled to balance of its lien in amount of $225,716.36 for inpatient rehabilitation services provided to applicant, when…

Silva (Michael, Dec’d) v. W.C.A.B., lexis.com, Lexis Advance

Medical-Legal Procedure—Admissibility of Additional Comprehensive Medical-Legal Reports—WCAB affirmed WCJ’s finding that applicant’s self-procured medical report was inadmissible, when parties previously obtained report from panel qualified medical evaluator on which WCJ…

Zenith Insurance Company v. W.C.A.B. (Casillas De Vazquez, Araceli), lexis.com, Lexis Advance

Liens—Professional Copy Servces—Registration Requirements—Court of Appeal dismissed defendant’s petition for writ of review as not from final order, when defendant sought review of WCAB’s order affirming its prior decision in which WCAB found that lien claimants Western Imaging Services, Inc., and Tower Imaging, Inc., established that they provided photocopying services as independent contractors for applicant’s attorney who was member…

Other WCAB Decisions Denied Judicial Review

Bresler v. W.C.A.B. (Simonian, Sonia), lexis.com, Lexis Advance

Removal to WCAB—Moot Orders—WCAB denied petition to remove case to itself under Labor Code § 5310 or 8 Cal. Code Reg. § 10843(a), when WCAB found that petitioner/lien claimant was appealing WCAB’s 11/25/2015 order that determined issues of sanctions and cost…

Kroger Co., The v. W.C.A.B. (Marquez, Richard), lexis.com, Lexis Advance

Liability—Contribution/Reimbursement—Successive Injuries—WCAB affirmed WCJ’s findings that (1) opinions of orthopedic agreed medical evaluator were controlling on issues of liability and contribution/reimbursement between employers/insurers for applicant’s two industrial injuries because agreed medical evaluator’s opinions were more persuasive than opinions of defense qualified medical evaluator, and (2) employer/insurer at time of first injury, Kroger, was…

Safety National Insurance Co. v. W.C.A.B. (Russell, Loni), lexis.com, Lexis Advance

Injury AOE/COE—Possible Multiple Cumulative Trauma Injuries—Contribution—WCAB, affirming arbitrator, held that applicant registered nurse and director of nursing sustained one industrial injury with one employer, i.e., cumulative trauma injury with date of injury 3/24/2001 under Labor Code § 5412 during period when employer was insured by petitioner insurer, when WCAB found that (1) petitioner contended that applicant sustained three cumulative trauma industrial injuries from…

Appeals Board Panel Decisions

Billy Branham, Applicant v. Arroyo Grande Glass, State Compensation Insurance Fund, Defendants, lexis.com, Lexis Advance

Permanent Disability—Rating—Vocational Evidence—WCAB, in split panel opinion, rescinded WCJ's finding that applicant was entitled to permanent disability award of 63 percent, and returned matter to trial level for development of medical and vocational records regarding effects of applicant's medications relative to extent of his permanent disability, when WCJ had rejected opinion of applicant's vocational expert, P. Steve Ramirez, who concluded that combined effects of…

Charles Geletko, Applicant v. California Highway Patrol, Subsequent Injuries Benefits Trust Fund, Defendants, lexis.com, Lexis Advance

Subsequent Injuries Benefits Trust Fund—Calculation of Permanent Disability—Combining Disabilities—WCAB, amending WCJ's decision for sole purpose of correcting clerical error, found that applicant met his burden of proof pursuant to Labor Code § 4751 to establish that he suffered subsequent industrial injury through 6/5/2013 which caused permanent disability of at least 35 percent, considered alone and without regard to adjustment for age and occupation, and that applicant's…