California Compensation Cases April 2024

CALIFORNIA COMPENSATION CASES

Vol. 89, No. 4 April 2024

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

Appellate Court Case Not Originating with Appeals Board

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JUST CLICK ON THE CASE NAMES BELOW…

NorGUARD Insurance Co. v. Velazquez (6th—H050725)

Civil Actions—Employer’s Lien Rights—Jurisdiction—Court of Appeal, affirming trial court’s denial of appellant’s anti-SLAPP (Strategic Lawsuit Against Public Participation) motion seeking to strike workers’ compensation insurance carrier’s (carrier) breach of contract claim, held that appellant, who filed personal injury action against homeowners...

Civil Actions—Employer’s Lien Rights—Breach of Contract—AntiSLAPP Motions—Court of Appeal affirmed trial court’s order denying appellant’s anti-SLAPP (Strategic Lawsuit Against Public Participation) motion seeking to strike workers’ compensation insurance carrier’s (carrier) breach of contract claim against appellant...

Evidence—Judicial Notice—In breach of contract action brought by workers’ compensation insurance carrier (carrier) against appellant for failure to reimburse workers’ compensation benefits pursuant to civil settlement agreement, Court of Appeal denied...

Appeals Board Significant Panel Decision

Ja’Chim Scheuing (Sandra) v. Lawrence Livermore National Laboratory (WCAB—ADJ8655364, ADJ14830172)

Petitions for Reconsideration—WCAB’s Time to Act on Petition—Shipley—WCAB relied on rationale in Shipley v. W.C.A.B. (1992) 7 Cal. App. 4th 1104, 9 Cal. Rptr. 2d 345, 57 Cal. Comp. Cases 493, and due process principles to hold that it had authority to act upon and consider applicant’s...

Petitions for Reconsideration—Filing of Supplemental Pleadings—WCAB, granting reconsideration, accepted two letters submitted by applicant for filing as supplemental pleadings even though applicant did not seek permission to file supplemental pleadings...

Permanent Disability—Apportionment—Vocational Expert Evidence—WCAB, granting reconsideration, rescinded decision in which WCJ awarded applicant 28 percent permanent disability for injuries incurred on 2/23/2007 to her hands, feet, ankles, right elbow, and in form of complex regional pain syndrome based on opinions of agreed medical examiner....

Digests of WCAB Decisions Denied Judicial Review

Liberty Mutual Insurance Group v. W.C.A.B. (Lopez, Leonel; Sablan, Yolanda) (2nd—B330602)

Liens—Procedural Rights and Duties—Suspended Providers and Dismissal of Liens Based on Criminal Disposition—Due Process—WCAB, granting reconsideration, rescinded order in which WCJ vacated prior order consolidating all liens of Frontline Medical Associates, Inc. (Frontline)…

Massachusetts Bay Insurance Company v. W.C.A.B. (Kelly, Bruce) (2nd—B332438)

Medical Treatment—Utilization Review—Medical Treatment Utilization Schedule Guidelines for Traumatic Brain Injury—WCAB, denying reconsideration, affirmed WCJ’s finding that applicant who suffered traumatic brain injury on 1/24/2019 while employed as wire and cable installer was entitled to inpatient neurorehabilitation....

Other WCAB Decisions Denied Judicial Review

Schmitzer (Danae) v. W.C.A.B. (5th—F087001)

Medical Evidence—Substantial Evidence—Conflicting Medical Opinions—WCAB, denying reconsideration, affirmed WCJ’s findings that applicant suffered industrial injury to her respiratory system (cough, airway mucosal irritation) and psyche due to her exposure to mold while employed as account executive...

Appeals Board Panel Decisions

CAUTION: These WCAB panel decisions have not been designated a “significant panel decision” by the Workers’ Compensation Appeals Board. Practitioners should proceed with caution when citing to these board panel decisions and should also verify the subsequent history of the decisions. WCAB panel decisions are citeable authority, particularly on issues of contemporaneous administrative construction of statutory language. However, WCAB panel decisions are not binding precedent, as are en banc decisions, on all other Appeals Board panels and workers’ compensation judges. While WCAB panel decisions are not binding, the WCAB will consider these decisions to the extent that it finds their reasoning persuasive.

Holmberg (Robert) v. Oakland Raiders (WCAB—ADJ10874193, ADJ10874229)

WCAB Jurisdiction—Professional Athletes—WCAB, after granting reconsideration, affirmed WCJ’s finding that California had jurisdiction over applicant professional football player’s claim of industrial injury while employed by multiple football teams between 1994 and 2002...

Medical-Legal Procedure—Medical Evaluations—WCAB, after granting reconsideration, held that WCJ properly admitted medical reporting obtained by applicant and defendant pursuant to Labor Code § 4062 as it existed prior to 2005, and found that parties were not required to use medical-legal process...

Hunt (Matthew) v. California Highway Patrol (WCAB—ADJ13285870)

Permanent Disability—Rating—Lifetime Cap on Award for Same Body Regions—WCAB, denying reconsideration, affirmed WCJ’s award of 43 percent permanent disability for industrial injuries to applicant’s low back, heart (hypertension)…

Richter (Mark) v. Frontier Communications (WCAB—ADJ12335903)

Temporary Disability—Credit for Disability Benefits Paid by Employment Development Department—WCAB, granting reconsideration, amended WCJ’s decision to reflect that defendant was required to pay applicant statutory maximum of 104 weeks of temporary disability benefits...

Valdez (Annette) v. Southern California Gas Company (WCAB—ADJ1991445)

Compromise and Release Agreements—Setting Aside—Competency Determinations—WCAB, after granting reconsideration, affirmed WCJ’s finding that there was no good cause to set aside Order Approving Compromise & Release (OACR) resolving applicant’s psychiatric injury claim...

Independent Medical Review Decisions

CAUTION: The Publisher’s Staff has reviewed both overturned and upheld independent medical review (IMR) decisions beginning in 2017. Criteria for selection include discussion of relevant medical topics, including but not limited to prescription medicine, home health care, orthopedic issues, physical therapy, opioid prescriptions, etc. The Publisher’s selection is not meant to be reflective of the proportion of all IMR decisions that overturn utilization review (UR) denials.

CM21-0156443 (12-7-2021)

Statins—Atorvastatin—Hyperlipidemia—Applicant, 63 years old, suffered an industrial injury on 9/12/2018, and was undergoing treatment for hypertension, hyperlipidemia, traumatic brain and spinal cord injuries, sleep apnea, neurogenic bladder and bowel, atrial fibrillation, and chronic constipation. The treatment plan included a rehabilitation day program... [LexisNexis Commentary: The focus of the IMR in this case is in the right place: the utilization guidelines for a prescription, and not whether the prescription is based on industrial causation or an admitted body part. The employer appears to acknowledge that applicant is treating hyperlipidemia on an industrial basis. The only question for IMR is whether the request for authorization is supported by the MTUS criteria, or in other sources of evidence using the medical evidence search sequence in 8 Cal. Code Reg. § 9792.21.1. Note, however, that the claims examiner is free to authorize the medication notwithstanding the UR noncertification upheld by IMR and may want to do so if the benefit of lowering the risk of potentially expensive compensable consequences outweighs the relatively low cost of statins.]

CM23-0131111 (10-28-2023)

Spinal Cord Stimulators—Chronic Pain—Applicant, 60 years old, sustained an industrial injury on 9/8/95 and was undergoing treatment for chronic pain and radiculopathy in her lumbar region… [LexisNexis Commentary: This case is useful to show that IMR reviewers have some discretion to interpret the strict criteria of the guidelines, as there was no clear indication in the clinical case summary that applicant had participated in a functional restoration program per the guidelines. However, the reviewing doctor in this case was aware of the MTUS/ ACOEM requirements as summarized in the IMR opinion, and apparently felt that applicant’s history of treatment provided equivalent proof of failure of multidisciplinary treatment over a long period of time, even if not in the exact kind of program described in the applicable MTUS/ ACOEM guidelines.]

CM23-0135150 (11-21-2023)

Surgical Procedures—Deviated Septum Repair—Crooked Nose—Applicant, 43 years old, sustained an industrial injury on 4/25/2022, and was undergoing treatment for nasal trauma. The injury resulted in a crooked nose and a deviated septum... [LexisNexis Commentary: The IMR reviewer in this case provides a detailed explanation as to why surgery is necessary to correct applicant’s trauma-related deviated septum. Here, surgery was applicant’s only treatment option. The decision provides a useful reminder that the ODG should be searched for guidelines where the MTUS/ACOEM does not address a specific injury or condition.]

CM23-0140166 (11-15-2023)

Surgical Procedures—Lumbar Laminectomy—Spinal Stenosis—Applicant, 79 years old, suffered an industrial injury on 3/21/91, resulting in ongoing severe (rated at 9/10) and chronic pain in her low back and buttock, radiating down her left leg. Applicant was also undergoing treatment... [LexisNexis Commentary: The MTUS guidelines for spine decompression surgery advise using caution in cases of elderly patients with comorbidities. Applicant here was 79 years old and had multiple comorbidities, including complex regional pain syndrome. However, all other criteria were met and applicant’s pain of 9/10 seemed to justify the risk of undergoing a complicated surgery. The IMR reviewer did a good job of explaining why the surgery should be approved.]

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