August 2019 Issue of California Compensation Cases

CALIFORNIA COMPENSATION CASES

Vol. 84 No. 8 Aug 2019

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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LexisNexis Online Subscribers: You can link to your account on Lexis Advance to read the complete headnotes and court decisions, en banc decisions, writ denied summaries, panel decisions and IMR decisions.   

Appellate Court Cases Not Originating With Appeals Board

Abarca (Noe) v. Citizens of Humanity, LLC, Lexis Advance

Fair Employment and Housing Act—Court of Appeal, affirming trial court’s judgment, held that trial court properly entered judgment on jury’s special verdict awarding plaintiff employee compensatory damages for lost earnings and mental suffering, as well as punitive damages, when Court of Appeal found that plaintiff worked for defendant and was injured AOE/COE, that plaintiff was instructed to see doctor and referred to defendant’s head of human resources, that this employee did not advise plaintiff...

Hollingsworth (Kris, Dec’d); Hollingsworth, Leanne, Widow) v. The Superior Court of Los Angeles County, Lexis Advance

Jurisdiction to Determine Jurisdiction—Superior Court—Workers’ Compensation Appeals Board—Court of Appeal, granting plaintiffs’/applicants’ petition for writ of mandate, held, following Scott v. Industrial Acc. Commission (1956) 46 Cal. 2d 76, 293 P.2d 18, 21 Cal. Comp. Cases 55, that, as between superior court and Appeals Board, when civil action and workers’ compensation proceeding are concurrently pending, tribunal first assuming jurisdiction should determine exclusive jurisdiction, when Court of Appeal found that decedent was involved in fatal accident while working for defendant Heavy Transport, Inc., that decedent’s survivors filed wrongful death action in superior court...

People, The v. Petronella, Lexis Advance

Workers’ Compensation Insurance—Payroll Fraud—Restitution—Court of Appeal, affirming trial court’s restitution order, held that trial court’s order had factual and rational basis, was not abuse of discretion, and was supported by substantial evidence, when Court of Appeal found that...

Digests of WCAB Decisions Denied Judicial Review

Editorial Board members Hon. Jacqueline C. Duncan, Susan Hamilton, James Pettibone, and Kenny Sheppard recommended some of the following writ denied cases for summarization in this issue.

Gonzalez (Louie) v. W.C.A.B., Lexis Advance

Injury AOE/COE—Going and Coming Rule—Application of Exceptions to Rule—WCAB, reversing WCJ in split panel decision, held that applicant’s claim for 11/28/2016 industrial injury incurred when he tripped and fell in parking lot one block from his workplace, was barred by going and coming rule, when WCAB panel majority reasoned that...

Lee’s Concrete Materials, Inc. v. W.C.A.B. (Smith, Lonnie), Lexis Advance

Average Weekly Wages—Earning Capacity—Calculation—WCAB affirmed WCJ’s finding that applicant cement truck driver who suffered industrial injury on 7/23/2012 was entitled to temporary disability indemnity and lifetime permanent disability indemnity at rate of $402.61 per week based on his average weekly wage for first seven months of 2012, plus 11 percent increase, when WCAB concluded that...

Other WCAB Decisions Denied Judicial Review

City of Oceanside v. W.C.A.B. (Nicholas, Osmond), Lexis Advance

Presumption of Industrial Causation—Cancer—Firefighters and Peace Officers—WCAB, affirming WCJ’s decision, held that applicant, while employed as police officer by defendant City of Oceanside (City) from 10/31/2013 through 6/22/2017, suffered industrial injury in form of brain cancer, and found that...

Green (Jacqueline) v. W.C.A.B., Lexis Advance

Petitions for Writ of Review—Successive Petitions—Court of Appeal dismissed applicant’s Petition for Writ of Review, when both applicant’s underlying Petition for Reconsideration and her Petition for Writ of Review...

Guzman-Sanchez (Marla) v. W.C.A.B., Lexis Advance

Petitions to Reopen—New and Further Disability—WCAB affirmed WCJ’s decision that applicant, who claimed that she sustained industrial injury in forms of fibromyalgia, sleep dysfunction, and emotional disorder while employed as manager for defendant from 4/7/2001 through 12/13/2009, did not show...

Sanchez (Marcelino) v. W.C.A.B., Lexis Advance

Injury AOE/COE—Substantial Evidence—Due Process—WCAB affirmed WCJ’s finding that applicant suffered industrial injury to his right middle finger, heart, head (in form of headaches), right eye, neurological system, and in forms of hypertension and sleep disorder on 8/2/2006, but did not suffer injury to his psyche, when there was no substantial medical evidence to support finding of psychiatric injury, and, although applicant claimed he was denied due process because he did not select specialties of qualified medical evaluators, WCAB found that...

Average Weekly Wages—Calculation of Earnings for Temporary Disability Indemnity Rate—WCAB affirmed WCJ’s finding that applicant’s average weekly wages were $500 per week, producing temporary disability indemnity rate of $334.33, based on applicant’s actual demonstrated earnings pursuant to Labor Code § 4453(c)(3), and determined that WCJ properly excluded...

Stanley Automotive Enterprises, Inc. v. W.C.A.B. (Peebles, Darrell), Lexis Advance

Insurance Coverage—Estoppel—WCAB affirmed Arbitrator’s decision that Service Lloyds Insurance Company (Service Lloyds) did not have coverage in California for applicant’s claims of specific injuries sustained on 11/5/2014 and 12/30/2014 while working for defendant Stanley Automotive Enterprises, Inc., in Texas, when Service Lloyds was located and conducted business in Texas and was not authorized to write workers’ compensation policies in California, and WCAB rejected...

Appeals Board Panel Decisions

Hennessey (Michael) v. Compass Group, Lexis Advance

Permanent Disability—Rating—Rebuttal of Scheduled Rating—WCAB affirmed WCJ's finding that applicant suffered 25 percent permanent disability as result of injuries he incurred to his left wrist, left hand, left arm, left elbow, left shoulder, and left knee while employed as cook on 8/14/2013, and that reports of vocational expert did not constitute substantial evidence to rebut scheduled permanent disability rating, when WCAB reasoned that to rebut permanent disability rating, vocational expert must explain whether or not apportionment, as identified in medical evidence, was considered and how it affected his or her conclusions, and that vocational expert here did not explain why he failed to apply apportionment described by orthopedic agreed medical examiner; although WCAB determined that vocational expert's reports obtained by applicant were not substantial evidence, WCAB found that...

Independent Medical Review Decisions

CM19-0018506, Lexis Advance

Hearing Aids—Hearing Loss—IMR reviewer overturned UR denial of request for right and left hearing aids to treat 69-year old applicant’s industrially-related binaural sensorineural hearing loss. In finding that the hearing aids were medically necessary, the IMR reviewer cited the MTUS 2017 guidelines applicable to traumatic brain injuries indicating that use of hearing aids is the most effective treatment for hearing loss. The IMR reviewer concluded that... [LexisNexis Commentary: This IMR is a rare decision addressing the use of hearing aids. The IMR reviewer recognized that good quality hearing aids are necessary for applicant’s hearing to improve and provided a good rationale for why the requested hearing aids should be authorized.]

CM19-0018584, Lexis Advance

H-Wave Stimulation—Low Back Pain—IMR reviewer overturned UR decision denying treating physician’s request for 10-month use of a home H-wave unit to help with 46-year old applicant’s low back pain. Although the MTUS 2017 chronic pain guidelines and ODG indicate that there are no quality studies evaluating the efficacy of H-wave stimulation for chronic pain conditions, the ODG provides that the H-wave unit may be considered on a trial basis if other noninvasive, conservative modalities for the treatment of chronic pain have failed. The ODG recommends a one-month trial of H-wave stimulation to assess functional improvement and reduction in pain and use of the unit for a longer period if there is demonstrated improvement in pain and function. The medical records... [LexisNexis Commentary: The IMR reviewer in this case provided a thorough explanation regarding why H-wave stimulation was medically necessary treatment for applicant in spite of limited support for its use in the MTUS guidelines and ODG.]

CM19-0020235, Lexis Advance

Cryotherapy—Vascutherm Rental—Knee Osteoarthritis and Surgery—IMR reviewer upheld UR decision allowing only 7 days of the requested 28-day vascutherm rental with purchase of a thermal wrap for 50-year old applicant's left knee, post-operatively. Applicant was undergoing treatment for severe tricompartmental osteoarthritis of the left knee. The ODG guidelines cited by the IMR reviewer recommend continuous-flow cryotherapy units for up to 7 days postoperatively. In upholding the UR modification of the treating physician’s request, the IMR reviewer noted that the treating physician did not provide rationale for vascutherm use in excess of the guideline recommendations. Further, the IMR reviewer noted that... [LexisNexis Commentary: This IMR illustrates that a physician must provide a solid rationale to support treatment requests, particularly those that exceed the applicable guideline criteria.]

Hinged Knee Brace—Post-Operative—IMR reviewer overturned UR denial of treating physician’s request for purchase of a post-operative hinged knee brace. Applicant in this case suffered from chronic left knee pain due to severe tricompartmental osteoarthritis and was scheduled to undergo left knee arthroscopy after conservative treatment failed. The treating physician recommended use of the hinged knee brace following applicant’s surgery. The applicable MTUS guidelines... [LexisNexis Commentary: The IMR reviewer clearly set forth the guidelines that must be met to justify usage of a hinged knee brace and explained why the guideline criteria was satisfied in this case.]

CM19-0020752, Lexis Advance

Interferential Current Stimulation Therapy—Cervical Pain and Radiculopathy—IMR reviewer overturned UR denial of treating physician’s request for R5-4i interferential stimulator rental for 30 days, based on the MTUS 2017 chronic pain guidelines. The reviewer noted that the guidelines do not recommend for or against interferential current stimulation (ICS) therapy as an isolated intervention, that there are no standardized protocols for use of such therapy, and that the evidence does not support clear value to treatment. However, the reviewer pointed out... [LexisNexis Commentary: The IMR reviewer found that rental of an ICS device for a 1-month trial is reasonable especially if it reduces applicant’s need for medications or more expensive therapies, however, emphasizes that use of the device for a longer period must be supported by objective evidence of improvement.]