Workers' Compensation

California: 25 Noteworthy Panel Decisions You Should Know About (July-December 2012)

Here are the publisher's picks for the top noteworthy* panel decisions recently reported in the LexisNexis services. The list is based upon feedback from our consultants about current topics and issues that are of interest to the entire workers’ compensation community. subscribers can link to the noteworthy panel decisions cited below.

Reminder: Be sure to check the status of a case before citing to it.

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Alda Mrozek-Payne, Applicant v. Spectre Air & Ground Freight, State Compensation Insurance Fund, Defendants, 2012 Cal. Wrk. Comp. P.D. LEXIS 427
Permanent Disability--Rating--AMA Guides--WCAB rescinded WCJ’s finding that applicant/vice president incurred 78 percent permanent disability as a result of injuries to her psyche, skin and in forms of headaches, chronic pain and fibromyalgia on 7/23/2001, when WCAB held that, in making permanent disability finding, WCJ improperly rejected opinion of Agreed Medical Examiner in rheumatology who had combined applicant’s WPI using Table 13-4 of AMA Guides with WPI utilizing Table 13-8 of AMA Guides based upon his interpretation that Chapter 13.2 of AMA Guides precluded combining of impairments from Tables 13-4 and 13-8, and that Agreed Medical Examiner’s opinion constituted substantial evidence and should have been followed because (1) Agreed Medical Examiner clearly incorporated descriptions of impairments in AMA Guides as required under Labor Code § 4660(b)(1), (2) since there is no impairment rating relating to fibromyalgia in AMA Guides, there was no scheduled rating to rebut and therefore the rules set forth 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 were not strictly applicable, and (3) Agreed Medical Examiner used tables within four corners of AMA Guides and explained his methodology. [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d § 32.03A; The Lawyer's Guide to the AMA Guides and California Workers' Compensation, Chs. 2-6, 8.]


Mark Williams, Applicant v. City of Pasadena, PSI, Defendant, 2012 Cal. Wrk. Comp. P.D. LEXIS 216, writ denied 8/9/2012, see City of Pasadena v. W.C.A.B. (Williams) (2012) 77 Cal. Comp. Cases 822
Res Judicata--Distinct Injuries Caused by One Exposure--WCAB affirmed its prior decision in which it found that applicant/police officer’s claim for industrial injury in form of hypertensive heart disease during period 6/1/82 to 12/1/2002, was not barred by doctrine of res judicata, when WCAB found that, although applicant’s two injuries (hypertension and hypertensive heart disease) were caused by the same work exposure, they were distinct injuries and applicant’s prior stipulated award in connection with orthopedic injuries and hypertension did not preclude subsequent hypertensive heart disease claim which was not previously litigated. [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d § 21.08[1].]


Ronald Lucero, Applicant v. City of Fontana, PSI c/o JT2 Integrated Resources, Defendants, 2012 Cal. Wrk. Comp. P.D. LEXIS 196
Presumption of Compensability--Heart Trouble--Peace Officers--WCAB affirmed WCJ’s finding that Labor Code § 3212.5 presumption of industrial heart trouble applied to applicant/retired police officer’s claim for heart injury and hypertension from 7/1/80 to 5/1/90 and from 5/12/90 to 3/18/98, when WCAB analyzed interplay between Labor Code §§ 3212, 3212.5 and 5500.5, to find that covered peace officers are entitled to count aggregate employment with multiple employers in determining whether a cumulative trauma injury manifested within post-retirement period for compensability of heart trouble, and that legislature intended that entire period of a retired police officer’s regular, full-time employment as a police officer be included in determining applicability of presumption. [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d §§ 30.22[1][c].]


William Webb, Applicant v. Sid Stone Construction Company, California Insurance Guarantee Association For California Compensation Insurance Company, In Liquidation, Defendants; Coast Plaza Doctors Hospital, Valley Plaza Doctors Hospital, Lien Claimants, 2012 Cal. Wrk. Comp. P.D. LEXIS 261
California Insurance Guarantee Association--Assignment of Liens--WCAB, affirming WCJ, held that CIGA was liable for payment of liens for medical treatment provided to applicant/forklift driver with 9/26/97 industrial back injury, and that CIGA was not shielded from liability under Insurance Code § 1063.1(c)(9)(B) based upon alleged assignment of liens to lien collection agency, when WCAB found that legal title to lien claims was not transferred to lien collection agency as an assignee, but rather collection agency was only hired to represent lien claimants in their claims before the WCAB, and that use of word “assigned” in agreement between lien claimants and collection agency did not establish that lien claimants intended to transfer legal title of their lien claims to collection agency in light of parties’ conduct and the entire agreement. [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d § 2.84[2], [3][b].]


Carlos Penaloza, Applicant v. TMP Services, Inc., Insurance Company of the West, Defendant, 2012 Cal. Wrk. Comp. P.D. LEXIS 251
Sanctions--WCAB, reversing WCJ, held that defendant was liable for sanctions for repeated failure to serve medical reports on lien claimant as mandated by 8 Cal. Code Reg. § 10608, when (1) defendant had a mandatory duty to serve lien claimant with all requested medical reports within six days of receipt of lien claimant’s initial request on 10/23/2008 upon filing of Compromise and Release Agreement on 10/9/2008, and upon receipt of lien claimant’s DOR on 4/20/2009, (2) defendant neglected to comply with lien claimant’s repeated requests for service of reports, as well as two separate orders to comply issued by WCJ, resulting in lien claimant filing a Motion to Compel Production of Documents, (3) defendant offered no explanation for its failure to comply with 8 Cal. Code Reg. § 10608, (4) the reasonable expenses incurred by lien claimant in its efforts to obtain service of medical reports, including repeated written demands, appearances and filing of motion to compel supported lien claimant’s claim of prejudice arising from defendant’s violation of its duty to comply with WCAB rule, and (5) WCAB found that failure to follow rule requiring timely service of medical reports on lien claimant constituted sanctionable conduct pursuant to Labor Code § 5813 and 8 Cal. Code Reg. § 10561. [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d § 23.15.]


Robert Viale, Applicant v. Lockheed Martin Corporation, Defendant, 2012 Cal. Wrk. Comp. P.D. LEXIS 320
Attorney’s Fees--Calculation--Compromise and Release Agreements--WCAB, rescinding WCJ’s award of $66,860.30 fee to attorney for applicant/computer controlled machinist with injuries to his back and psyche on 10/10/98 and during cumulative period ending on 8/1/2001, held that applicant’s attorney was entitled to full $90,000.00 fee requested pursuant to Labor Code § 4903(a), 8 Cal. Code Reg. § 10775 and WCAB Policy and Procedural Manual § 1.140, when WCAB found that, in calculating attorney’s fee at reduced rate, WCJ improperly determined that pursuant to Pratt v. Wells Fargo Bank, 2010 Cal. Wrk. Comp. P.D. LEXIS 499, applicant’s counsel was not entitled to any fee based upon settlement monies used to fund Medicare Set Aside account in applicant’s Compromise and Release Agreement, that panel’s holding in Pratt was not intended to set a blanket rule precluding an award of attorney’s fees based on a Medicare Set Aside when there has been a prior award of medical treatment, that WCAB was not bound by holding in Pratt to extent decision prohibits award of attorney’s fees based on Medicare Set Aside, that although disregard of Medicare Set Aside funds may be appropriate in setting a reasonable attorney’s fee in proper case, given results obtained, disregard of those funds would not be reasonable in instant case, and that WCJ in this case incorrectly found that applicant did not benefit by Medicare Set Aside for purposes of attorney’s fee award. [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d §§ 20.02[1], [2][e], 20.03[1], [2].]

Richard Anderson, Applicant v. Jaguar/Landrover of Ventura, Compwest Insurance Company, Defendants, 2012 Cal. Wrk. Comp. P.D. LEXIS 327
Attorney's Fees--Commutation--WCAB rescinded WCJ’s finding that applicant/auto mechanic’s attorney was entitled to fee of $200,000.00 based on 4.6 percent cost of living adjustment (COLA) to be commuted from far side of applicant’s permanent total disability award, and awarded attorney’s fees calculated and commuted from side of award using uniform increasing reduction method with assumption of a 3 percent COLA, when WCAB found that uniform increasing reduction method of commutation was in best interests of applicant, that 4.6 percent COLA assumed by Disability Evaluation Unit in this case was speculative given current economic conditions and foreseeable state average weekly wage (SAWW) pursuant to Labor Code § 4659(c), and that, while allowing for reasonable increase over time in order to assure that attorney is fairly compensated, a 3 percent factor places more of the economic risk of hyperinflation upon attorney instead of on injured worker which is appropriate since attorney obtains substantial benefit from commutation by being assured that fee that has already been earned is timely paid in full. [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d §§ 8.08[2], 20.02[1][a], 20.03, 32.04[3][b].]

Felix Nino Mota, Applicant v. Allgreen Landscape, National Insurance Company, Administered by Fara Adjusting Services, Defendants, 2012 Cal. Wrk. Comp. P.D. LEXIS 34, writ denied 5/17/2012, see Allgreen Landscape v. W.C.A.B. (Mota) (2012) 77 Cal. Comp. Cases 541
Attorney’s Fees--Writ of Review--WCAB declined to award applicant’s attorney requested Labor Code § 5801 attorney’s fees in amount of $51,900.00 for 100 hours of combined legal services ($500.00 per hour for Ms. Kaplan x 62 hours, $550.00 per hour for Mr. Evans x 16 hours, and $550.00 per hour for Mr. Kaplan x 22 hours) in connection with petition for writ of review, when WCAB found that applicant’s attorneys’ declarations in support of fee request were inadequate to support award of a reasonable attorney’s fee under Labor Code § 5801 because (1) declarations did not cite to itemized billings or provide any information regarding time expended on each task, (2) declarations did not give any indication as to why 100 hours were required to perform services, (3) there was no showing regarding complexity of legal or factual issues presented, and nothing to justify multiple reviews, revisions, and meetings allegedly involving all three attorneys, (4) there was no evidence justifying attorneys’ rates at $500.00 to $550.00 per hour or establishing that those rates, in excess of usual rates for certified workers’ compensation attorneys, were reasonable, and (5) Ms. Kaplan’s declaration improperly claimed $500.00 for time spent performing clerical tasks; WCAB concluded that a reasonable attorney’s fee for services in connection with petition for writ of review would range between $14,000.00 to $16,000.00 (i.e., 40 hours at $350.00 or $400.00 per hour), particularly given defense counsel’s statements that it spent a total of 43 hours preparing petition for writ of review and that usual rate for applicant’s attorneys in Anaheim area was $350.00 to $400.00 per hour; WCAB also advised that, consistent with state and federal law, it may award a fee of substantially less than $16,000.00 or no fee at all if, after applicant’s attorney submits proper documentation, WCAB finds that fee request was unreasonably inflated. [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d § 34.24.]


Angel Villatoro, Applicant v. Kern Labor Contracting, California Insurance Guarantee Association for Paula Insurance, in liquidation, Defendants, 2012 Cal. Wrk. Comp. P.D. LEXIS 321
Liens--Medical--Statute of Limitations--WCAB affirmed WCJ’s order disallowing balance of lien claimant’s lien filed on 2/3/2011 for medical treatment provided to applicant/farm laborer with 12/3/2001 industrial injury to his upper extremities on basis that lien was barred by statute of limitations in Labor Code § 4903.5(a), when WCAB found that (1) Labor Code § 4903.5 applied prospectively to lien claimant’s lien filed prior to effective date of statute in 2003, (2) lien claimant did not file lien within a reasonable time after latest date allowed for filing under Labor Code § 4903.5(a), i.e. five years from applicant’s date of injury for which services were provided and nearly four years after effective date of statute, (3) although lien claimant’s billing notified defendant of charges for purposes of effectuating a lien pursuant to Labor Code § 4904(a), defendant’s partial payment of lien required lien claimant to take further action to protect its lien rights or be subject to losing rights due to expiration of time limits in Labor Code § 4903.5(a), (4) doctrine of estoppel did not apply to preclude CIGA from asserting statute of limitations as a defense because there was no evidence that CIGA had any intent to deny that it had notice of lien, lien claimant was not ignorant of facts, and there was no detrimental reliance, so as to satisfy elements necessary for application of estoppel, (5) Labor Code § 4904(a) did not equitably toll limits of Labor Code § 4903.5(a) because lien claimant did not act reasonably and in good faith by waiting for almost nine years after partial payment of bill was made to file lien for balance, and (6) CIGA’s failure to serve Order Approving Compromise and Release pursuant to Labor Code § 4903.1(b) and 8 Cal. Code Reg. § 10886 was not sufficient to toll time limit in of Labor Code § 4903.5(a). [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d § 30.04[2][d].]

Joseph Martin, Applicant v. City of Ukiah, PSI, administered by Redwood Empire Municipal Fund, Defendants, 2012 Cal. Wrk. Comp. P.D. LEXIS 368
Liens--Official Medical Fee Schedule--Ambulance Services--WCAB affirmed WCJ’s finding that lien claimant/air ambulance carrier was entitled to full payment of its lien for services provided to applicant in 2008, when WCAB found that (1) provisions in 8 Cal. Code Reg. 9789.70(a) and(b), applicable to fees for ambulance services, were federally preempted by the Airline Deregulation Act of 1978 (ADA), applicable to air carriers including those providing air ambulance services, based upon express preemption provision in ADA precluding state regulations related to air carrier rates, (2) although regulations having only a peripheral or remote impact on prices are not preempted by federal law, those regulations having a “significant effect” on rates are preempted, (3) WCAB’s finding that laws such as 8 Cal. Code Reg. 9789.70 directly regulating costs for air ambulance services are preempted is supported by civil case law, and (4) defendant failed to rebut reasonableness of fees charged by lien claimant for air ambulance transportation or its request for full payment. [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d § 30.04[3][a], [9].]


Yesenia Guillen, Applicant v. Adir International, LLC dba LA Curacao, Travelers Insurance Company, Defendants, 2012 Cal. Wrk. Comp. P.D. LEXIS 288, writ denied 11/9/2012, see Adir International LLC v. W.C.A.B. (Guillen) (2012) 77 Cal. Comp. Cases 1124
Medical-Legal Procedure--Assignment of Qualified Medical Evaluators Panel--WCAB granted removal and rescinded WCJ’s order that applicant/sales associate who alleged industrial back, nervous system and psyche injuries during period 9/15/20025 to 6/30/2009, violated Labor Code § 4062.2(c) by striking name from panel QME list prematurely, thereby nullifying the strike, when WCAB found that (1) although Labor Code § 4062.2(c) envisions that parties will use ten-day period after assignment of a panel to meaningfully confer on an Agreed Medical Examiner, if a party strikes a name during ten-day period that strike is not automatically rendered a nullity under Labor Code § 4062.2(c), (2) if a party strikes a name from panel during ten-day period, responding party has remainder of ten days plus three working days to strike a name, (3) in such a circumstance, responding party must communicate that strike to initial striking party on or before the thirteenth day after assignment, without using additional ten days outlined in Labor Code § 4062.2(d) to simultaneously issue notice of panel QME appointment and strike implied by making appointment, and (4) although applicant requested a new panel in her petition for reconsideration, Labor Code § 4062.2(c) clearly mandates that after each party has exercised a strike, remaining QME shall serve as medical evaluator. [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d § 1.11[3][g], 22.06[1][a], 22.11[1], 26.03[4].]


Anthony Johnson, Applicant v. San Diego Chargers, Legion Insurance in liquidation by CIGA, Washington Redskins, Reliance Insurance in liquidation by CIGA, Kansas City Chiefs, TIG Specialty Insurance Co., Travelers Indemnity Company successor in interest to Gulf Insurance, Defendants, 2012 Cal. Wrk. Comp. P.D. LEXIS 354
WCAB Jurisdiction--Professional Athletes--WCAB, reversing WCJ, held that WCAB had no jurisdiction under Labor Code §§ 3600.5(a) and 5305 over applicant/professional football player’s claim against Kansas City Chiefs alleging injury to his knees, ankles, shoulders, elbows, thumbs, fingers, lumbar spine, cervical spine, hips, head, jaw/TMJ and in forms of sleep impairment, memory impairment, headaches and post traumatic head syndrome during period 6/15/86 through 9/12/95, when (1) neither applicant nor Kansas City Chiefs were located within California at time applicant’s contract for hire was accepted, (2) only connection between applicant’s contract and State of California was location of applicant’s agent, (3) agent’s signature on contract before applicant signed contract in Kansas was not determinative of contract’s acceptance, as contract for hire expressly stated that agent did not have authority to bind applicant and that applicant was only one authorized to accept contract, and (4) WCAB found that contract was not accepted by applicant’s agent in California but rather by applicant outside the state, thereby depriving WCAB of jurisdiction. [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d § 3.22[2].]

Rome Douglas, Applicant v. New York Giants, Travelers Indemnity Co., World League of American Football, TIG Insurance Co., administered by Risk Enterprise Management, The St. Louis Rams, Travelers Indemnity Co., successor in interest to Gulf Insurance Co., Defendants, 2012 Cal. Wrk. Comp. P.D. LEXIS 510
WCAB Jurisdiction--Professional Athletes--WCAB, affirming WCJ’s finding, held that WCAB had jurisdiction over applicant/professional football player’s claim against NFL Europe for injuries to his neck, back, shoulders, wrists, hands, hips, knees, ankles, feet, toes, fingers, head, cardiovascular system, elbows, and in forms of post-traumatic head syndrome and sleep disorder, during periods through 6/13/2000 and 6/30/2001, when applicant was offered employment by NFL Europe coaches by phone at his home in California and accepted essential terms of employment by phone prior to traveling to Florida, and WCAB found that (1) offer and acceptance by phone constituted contract for hire made in California for purposes of jurisdiction over applicant’s out-of-state injuries pursuant to Labor Code §§ 3600.5(a) and 5305, (2) facts that applicant signed a written contract in Florida, that applicant had to complete a physical examination outside of California, that training camp did not necessarily lead to a position, and that applicant had to prove his ability in another state before beginning work were not dispositive of whether he entered into an agreement with NFL Europe over the phone in California, and (3) fact that contract could be terminated by applicant or by NFL Europe did not negate existence of contract. [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d § 3.22[2].]


Richard Horton, Applicant v. Crown Cork and Seal American Protection Insurance Company, Adjusted by Broadspire, Travelers Property Casualty Company of America, Defendants, 2012 Cal. Wrk. Comp. P.D. LEXIS 352
Contribution--New and Distinct Benefits--WCAB rescinded arbitrator’s order denying defendant/carrier’s petition for contribution against co-defendant, when defendant did not timely petition for contribution against original Stipulated Award and arbitrator, relying upon Rex Club v. W.C.A.B. (1997) 53 Cal. App. 4th 1465, 62 Cal. Rtpr. 2d 393, 62 Cal. Comp. Cases 441, found that, while petition for contribution was timely filed from subsequent Stipulated Award which resolved applicant/forklift operator’s petition to reopen claim for cumulative trauma to his neck over period ending 1/9/2002, contribution was precluded because Stipulated Award did not award a “new and distinct class of benefits” from those awarded in original Stipulated Award, but WCAB, more broadly interpreting language in Rex Club, held that new and further permanent disability arising from applicant’s original injury and his new psyche injury were not included in original award and constituted “new and distinct” benefits which were subject to contribution. [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d §§ 24.03[8], 31.13[2].]

Gloria Campos, Applicant v. Atascadero Unified School District, the Vons Companies, PSI, Defendants, 2012 Cal. Wrk. Comp. P.D. LEXIS 504
Contribution--Division of Liability--WCAB rescinded Arbitrator’s decision to allocate liability for applicant’s knee injury between concurrent employers based upon comparative number of days applicant worked for each employer, and held that liability should be calculated based upon number of hours applicant worked for each employer, when WCAB found that, on this record, calculation based on hours was more appropriate and that, although there is no controlling precedent for this calculation method, such method of dividing liability is not precluded by Labor Code § 5500.5. [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d § 31.13[2].]


Jose Roger Aban, Applicant v. Cal Centurian Construction, Inc. dba RWR Construction, Zenith Insurance Company, Defendants, 2012 Cal. Wrk. Comp. P.D. LEXIS 326
Medical Provider Networks--Treatment Outside MPN--WCAB, reversing WCJ, held that lien claimant was not entitled to reimbursement for medical treatment self-procured outside defendant’s MPN by applicant with 5/16/2008 back injury, when WCAB found that, although defendant did not provide applicant with MPN notices prior to his industrial injury, defendant did provide proper notices at time of injury, that applicant initially treated within MPN and began treating outside MPN only after obtaining representation, that WCJ did not analyze whether defendant’s inadequate notices to applicant resulted “in a neglect or refusal to provide reasonable medical treatment” as required under Knight v. United Parcel Service (2006) 71 Cal. Comp. Cases 1423 (Appeals Board en banc opinion), and that given applicant’s treatment within MPN following his injury, it did not appear that applicant had a problem accessing medical treatment as a result of defective notices. [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d § 5.05[13].]

Felix Chavez, Applicant v. T.D. Hayes Communications, Zenith Insurance Company, Defendants, 2012 Cal. Wrk. Comp. P.D. LEXIS 403
Medical Provider Networks--Treatment Outside MPN--WCAB affirmed WCJ’s finding that defendant was not liable for medical treatment self-procured by applicant/field technician with 4/4/2008 injuries to his neck, arm, hand, and chest, when WCAB found that (1) although defendant did not provide pre-injury MPN notice or MPN notice at time of injury, defendant provided applicant with adequate post-injury MPN notice pursuant to 8 Cal. Code Reg. § 9767.12, (2) there is no authority to support a finding that failure to provide proper MPN notice means that all medical treatment procured by injured worker after leaving MPN is reimbursable, (3) under Knight v. United Parcel Service (2006) 71 Cal. Comp. Cases 1423 (Appeals Board en banc opinion) any deficiency must result in a neglect or refusal to provide reasonable medical treatment, and (4) here, even if defendant’s notice were insufficient, there was no neglect or refusal to provide reasonable medical treatment so as to justify procurement of treatment outside MPN. [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d § 5.03[4].]

Miguel Robles, Applicant v. Evolution Fresh, Inc., Majestic Insurance Company and Technology Insurance Company, Defendants, 2012 Cal. Wrk. Comp. P.D. LEXIS 434
Medical Provider Networks--Access Standards--WCAB affirmed WCJ’s finding that, although defendant’s MPN did not provide a minimum of three physicians within 15 miles or 30 minutes of applicant/truck driver’s residence, defendant’s MPN was in compliance with access standards in 8 Cal. Code Reg. §§ 9767.5(a) and (b) because it had at least three orthopedic surgeons to treat applicant’s 3/17/2011 industrial back injury located within 15 miles of applicant’s workplace and, while WCAB acknowledged conflict between Labor Code § 4616(a)(1) (requiring MPN to maintain adequate number and type of physicians within geographic area where the applicant is employed) and 8 Cal. Code Reg. § 9767.5(b) (expanding provision to require appropriate number of physicians within 30 minutes or 15 miles of employee’s residence or workplace), WCAB found that to extent 8 Cal. Code Reg. § 9767.5(b) exceeds scope of Labor Code § 4616(a)(1), the statute is controlling. [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d § 5.03[1].]


William Key, Applicant v. Production Processing, Inc., California Insurance Guarantee Association, by its servicing facility, Sedgwick CMS for Legion Insurance Company, in liquidation, Stone Stanley Productions, St. Paul Travelers Property Casualty Company of America, Defendants, 2012 Cal. Wrk. Comp. P.D. LEXIS 419
California Insurance Guarantee Association--Other Insurance--Pre-Judgment Interest--WCAB affirmed Arbitrator’s finding that CIGA, on behalf of general employer’s insolvent carrier, was not entitled to pre-judgment interest on award of reimbursement against special employer’s workers’ compensation carrier for benefits paid to applicant with 5/24/2002 industrial injury, when WCAB found that there is no authority in the Labor Code for CIGA’s claim for pre-judgment interest against provider of “other insurance” under Insurance Code § 1063.1(c)(9) and, contrary to CIGA’s assertion, Civil Code § 3287(a), entitling a party to pre-judgment interest on damage awards, does not support an award of pre-judgment interest because an award of reimbursement to CIGA does not constitute an award of “damages” as defined in Civil Code § 3287(a). [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d § 2.84[2], [3][a], [c].]
California Insurance Guarantee Association--Other Insurance--Administration of Benefits--WCAB granted reconsideration and held that special employer’s workers’ compensation carrier was required to administer applicant’s award of further medical treatment, when Arbitrator found that special employer’s carrier constituted “other insurance” under Insurance Code § 1063.1(c)(9), thereby relieving CIGA, on behalf of general employer’s insolvent carrier, from liability to applicant with 5/24/2002 industrial injury and from further administration of benefits. [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d § 2.84[2], [3][a], [c].]


Christopher Cockrell, Applicant v. Farmers Insurance, Liberty Mutual Insurance Company, Defendants, 2012 Cal. Wrk. Comp. P.D. LEXIS 456
Medical Treatment--Self-Procured Medical Marijuana--WCAB rescinded WCJ’s finding that applicant/attorney with 9/16/95 injuries to his low back, right elbow and heart was entitled under Labor Code § 4600 to reimbursement (as opposed to providing or paying supplier) for self-procured medically recommended marijuana in an amount reflected in fee schedule for medications being replaced by medical cannabis or for actual expense of marijuana, when WCAB found that neither parties nor WCJ considered application of Health & Safety Code § 11362.785(d), which states that nothing in medical marijuana program will require a health insurance provider or health care service plan to be liable for reimbursement for medical use of marijuana, and that prior to rendering a decision WCJ must consider application of this provision to applicant’s claim for reimbursement. [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d §§ 5.01[1], 5.04[1], 22.01[1][a], [b].]


Lourdes Moreno, Applicant v. Melton Franchise Systems, Inc., dba Coverall, Everest National Insurance Company, Adjusted By Gallagher Bassett Services, Defendants, 2012 Cal. Wrk. Comp. P.D. LEXIS 525
Employment Relationships--Employees--Franchisees--WCAB reversed WCJ’s finding that applicant was a janitorial franchisee/independent contractor pursuant to franchise agreement with defendant at time of 1/1/2005 injuries to her back, neck, shoulders, psyche, internal system and in form of sleep disorder, and held that based upon factors in S.G. Borello & Sons, Inc. v. Department of Industrial Relationships (1989) 48 Cal.3d 341, 769 P.2d 399, 256 Cal. Rptr. 543, 54 Cal. Comp. Cases 80, applicant was an employee of defendant on date of her injuries, notwithstanding that franchise agreement expressly stated that applicant was an independent contractor, when WCAB looked beyond label placed on parties’ relationship and analyzed applicant’s actual job duties and parties’ conduct, and found that (1) there was a significant disparity in bargaining position and sophistication between parties, (2) defendant retained pervasive control over business operation as a whole and limited applicant’s ability to manage any aspect of business, (3) franchise agreement contained many “manner and means” provisions for carrying out tasks of cleaning offices as well as negative consequences if these tasks were not complied with, (4) defendant had right to audit applicant’s personal and business tax returns and was allowed full access to list of applicant’s cleaning customers, (5) defendant retained right to discontinue applicant’s services, (6) there was no opportunity for applicant to use her own initiative, judgment or managerial abilities to create a profit, (7) contract between parties was for a term of 20 years which WCAB found reflective of an employee relationship, and (8) numerous provisions of franchise agreement limited applicant’s independence in all aspects of the business. [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d §§ 3.04-3.07, 3.130.] 


Maria De Jesus Flores, Applicant v. Carl Karcher Enterprises, Inc. dba Carl’s Jr, Travelers Insurance Co., Defendants, 2012 Cal. Wrk. Comp. P.D. LEXIS 461
Post-termination Claims—WCAB, reversing WCJ, held that applicant/fast food worker’s claim for industrial injuries to her back, upper extremities, lower extremities, neck, head, neurological system, and psyche during period 1/1/2008 to 5/22/2009, was not barred by post-termination defense in Labor Code § 3600(a)(10), when applicant was not terminated but rather quit her job with two weeks’ notice, and WCAB found that Labor Code § 3600(a)(10) does not apply to employees who voluntarily quit their jobs, and fact that employer requested that applicant leave her employment prior to expiration of the two-week notice period did not convert applicant’s voluntary resignation into a termination so as to justify application of Labor Code § 3600(a)(10). [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d §§ 3.23, 4.65[1], 25.21[3], 26.06[3].] 


Martin Trapero, Applicant v. North American Pneumatics, State Compensation Insurance Fund, Defendants, 2012 Cal. Wrk. Comp. P.D. LEXIS 541
Medical-Legal Procedure--Prohibited Communications With Agreed Medical Examiner--WCAB, granting removal on its own motion and rescinding WCJ’s finding, held that applicant’s attorney violated Labor Code § 4062.3 when attorney handed a recently-procured vocational evaluation report to defense counsel a few minutes prior to AME’s deposition and presented report to AME during deposition, when WCAB found that (1) vocational report fell within definition of “information” described in Labor Code § 4062.3, as it was a “nonmedical record relevant to determination of a medical issue” under Labor Code § 4062.3(a)(2), (2) under Labor Code § 4062.3(c) parties must agree on what information is provided to AME and by springing vocational report on defense counsel when AME was about to be deposed deprived defense counsel of opportunity to determine if he would agree to provide this information to AME, (3) vocational report should not have been provided to AME during deposition, because defense counsel objected to provision of this “information”, and (4) applicant’s attorney’s service of new vocational report on defense counsel at AME’s deposition was not merely a “subsequent communication” under Labor Code § 4062.3(e), as determined by WCJ, because report contained “information” as defined in Labor Code § 4062.3(a)(2); WCAB found that, in light of applicant’s attorney’s prohibited communication with AME, defendant had right to seek a new AME in accordance with Labor Code § 4062.3(f), and that applicant’s attorney was liable for costs resulting from prohibited communication pursuant to Labor Code § 4062.3(g). [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d § 1.11[3][g], 22.06[4], 26.03[4].]


Sandra Corona, Applicant v. Los Aptos Christian Fellowship Childcare, Church Mutual Insurance Company, Defendants, 2012 Cal. Wrk. Comp. P.D. LEXIS 459
Medical-Legal Procedure--Utilization Review--Spinal Surgery--WCAB, rescinding its prior decision and granting reconsideration on its own motion [See Corona v. Los Aptos Christian Fellowship Childcare, 2011 Cal. Wrk. Comp. P.D. LEXIS 156], affirmed WCJ’s finding that applicant/pre-school teacher was in need of further medical treatment to cure or relieve effects of her neck, back, wrist and psyche injuries during period 1986 to 2006, and held that (1) an employee is obligated to object and follow UR process set forth in Labor Code § 4062 if she disputes UR denial of authorization, (2) when treatment request is supported by substantial medical evidence it is also appropriate for injured worker to challenge UR based upon procedural deficiencies at an expedited hearing pursuant to Labor Code § 5502(d), as occurred in this case, and (3) if UR process is properly and timely followed but there is still a bona fide medical treatment dispute, it would not be proper to present dispute to a WCJ for determination at an expedited hearing without first obtaining medical evaluation as described in Labor Code § 4062.1 or Labor Code § 4062.2, depending on whether injured worker is represented; in those instances required medical evaluation by an Agreed Medical Examiner or panel Qualified Medical Evaluator may be accomplished by review of relevant documents if the physician has previously examined injured worker and concludes that another examination is unnecessary, unless an exception applies under Labor Code §§ 4062.3(j), 4067 or otherwise. [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d §§ 22.05[6][c], 22.06[2][a], [b].]

Michael Moser, Applicant v. Valli Construction, Old Republic General Insurance, Defendants, 2012 Cal. Wrk. Comp. P.D. LEXIS 590
Medical Treatment--Utilization Review--Spinal Surgery Second Opinion Process--WCAB affirmed WCJ’s finding that applicant/project manager who suffered 11/2/2010 back injury was not precluded by his failure to follow Labor Code § 4062(b) spinal surgery second opinion process from receiving temporary disability indemnity for a period of disability following spinal fusion surgery which included removal of previously placed disc replacement materials due to allergic reaction, when WCAB found that provisions of Labor Code § 4062(b) did not apply pursuant to 8 Cal. Code Reg. § 9788.01(l)(4) because applicant’s surgery was required due to a “bona fide medical emergency,” that 8 Cal. Code Reg. § 9788.01(l)(4) is not inconsistent with Labor Code § 4062(b) and is valid, that although 8 Cal. Code Reg. § 9788.01(l)(4) does not define “bona fide medical emergency” term should be construed in a manner consistent with Labor Code § 4610(g)(2) so as to apply in cases of imminent health threats, and that medical evidence establishing deterioration of applicant’s condition following initial disc replacement surgery and significant improvement after metallic disc was removed was sufficient to show that applicant’s condition constituted an imminent and serious threat to his health so as to be a “bona fide medical emergency”; WCAB found that applicant’s failure to request authorization for surgery, thereby preventing defendant from undertaking utilization review, did not preclude temporary disability indemnity award when, in contrast to Labor Code § 4062(b), Labor Code § 4610 does not relieve a defendant from liability for temporary disability indemnity if an employee proceeds with a particular treatment before a defendant has opportunity to complete utilization review. [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d § 5.02[2], 22.05[6], 22.06[2][a], [b].]

* CAUTION: None of these decisions have been designated a "significant panel decision" by the Workers' Compensation Appeals Board. Practitioners should proceed with caution when citing to these panel decisions and should also verify the subsequent history of the decision. WCAB panel decisions are citeable authority, particularly on issues of contemporaneous administrative construction of statutory language [see Griffith v. WCAB (1989) 209 Cal. App. 3d 1260, 1264, fn. 2, 54 Cal. Comp. Cases 145]. However, WCAB panel decisions are not binding precedent, as are en banc decisions, on all other Appeals Board panels and workers' compensation judges [see Gee v. Workers' Comp. Appeals Bd. (2002) 96 Cal. App. 4th 1418, 1425 fn. 6, 67 Cal. Comp. Cases 236]. While WCAB panel decisions are not binding, the WCAB will consider these decisions to the extent that it finds their reasoning persuasive [see Guitron v. Santa Fe Extruders (2011) 76 Cal. Comp. Cases 228, fn. 7 (Appeals Board En Banc Opinion)].  LexisNexis editorial consultants have deemed this panel decision noteworthy because it does one or more of the following: (1) Establishes a new rule of law, applies an existing rule to a set of facts significantly different from those stated in other decisions, or modifies, or criticizes with reasons given, an existing rule; (2) Resolves or creates an apparent conflict in the law; (3) Involves a legal issue of continuing public interest; (4) Makes a significant contribution to legal literature by reviewing either the development of workers' compensation law or the legislative, regulatory, or judicial history of a constitution, statute, regulation, or other written law; and/or (5) Makes a contribution to the body of law available to attorneys, claims personnel, judges, the Board, and others seeking to understand the workers' compensation law of California.


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