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California Compensation Cases December 2019

January 09, 2020 (11 min read)


Vol. 84 No. 12 Dec 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


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Appellate Court Compensation Case

Meadowbrook Insurance Co. v. W.C.A.B. (Velazquez, Miguel; Velazquez, Servando), Lexis Advance

Lien Claims—Procedure—Interpreter Services—Court of Appeal, annulling WCAB’s opinion and decision on reconsideration, held that lien claimant’s liens were barred by its failure to request second review, as required by regulation, making those liens deemed satisfied, when Court of Appeal found that…

Appellate Court Case Not Originating With Appeals Board

Boone (James) v. Salcedo, Lexis Advance

Injury AOE/COE—Exclusive Remedy Rule—Prisoner Worker—Court of Appeal, affirming trial court’s summary judgment dismissing plaintiff’s action, held that plaintiff’s claims were barred by exclusive remedy rule, when Court of Appeal found that: (1) plaintiff qualified as “employee” under definition in Labor Code Section 3351 and, therefore, was subject to workers’ compensation statute and its exclusive remedy rule; (2) Labor Code Section 3852 did not authorize plaintiff to sue individuals who qualified as...

Appeals Board En Banc Decision

Colamonico (Ashley) v. Secure Transportation, Lexis Advance

Lien Claims—Medical-Legal Liens—Burden of Proof—Appeals Board en banc, rescinding findings and orders of WCJ and returning matter to trial level, held that medical-legal provider had initial burden of proof that: (1) contested claim existed at time expenses were incurred, and expenses were incurred for purpose of proving or disproving contested claim pursuant to Labor Code § 4620; and (2) its medical-legal services were reasonably, actually, and necessarily incurred pursuant to Labor Code § 4621(a); Appeals Board en banc also held that defendant…

Digests of WCAB Decisions Denied Judicial Review

Editorial Board members Hon. Joel K. Harter, Richard M. Jacobsmeyer, John W. Miller, and Hon. Ralph Zamudio recommended some of the following writ denied cases for summarization in this issue.

The Conco Companies v. W.C.A.B., Lexis Advance

Permanent Disability—Rating—Rebuttal of Scheduled Rating—WCAB affirmed WCJ’s findings that applicant suffered 100 percent permanent disability as result of 1/23/2015 admitted industrial injury to his cervical and lumbar spine while employed as iron worker, and that there was no basis for defendant’s objection to admissibility of applicant’s vocational expert report, when WCAB concluded that...

Lefiell Manufacturing Co. v. W.C.A.B. (Maxton, John), Lexis Advance

Permanent Disability—Apportionment—Preexisting Nonindustrial Conditions—WCAB, granting reconsideration, rescinded WCJ’s award of 80 percent permanent disability, after 20 percent apportionment to nonindustrial factors, and found that applicant was permanently and totally disabled and entitled to unapportioned award of permanent total disability for cumulative injury to his lungs and heart while he was employed as lead heat treater over period 10/24/75 to 11/19/2007, when WCAB concluded that...

Other WCAB Decisions Denied Judicial Review

Benitez (Cresencio, Dec’d); Gaona (Beatriz, Widow) v. W.C.A.B., Lexis Advance

Medical-Legal Procedure—Self-Procured Medical-Legal Reports—WCAB affirmed WCJ’s order excluding medical-legal report self-procured by applicant to rebut opinion of qualified medical evaluator that her husband’s death was nonindustrial, when WCAB reasoned that...

G2 Secure Staff, LLC v. W.C.A.B. (Moore, Terry), Lexis Advance

Medical-Legal Procedure—Selection and Assignment of Panel Qualified Medical Evaluators—Specialty Designation—WCAB, denying removal, affirmed WCJ’s findings that Medical Unit improperly issued replacement panel and that original chiropractic panel was appropriate to evaluate applicant’s industrial injuries, when WCAB found that...

Horn (Joshua) v. W.C.A.B., Lexis Advance

Evidence—Admissibility—WCAB affirmed WCJ’s order denying admission of certain documents offered by applicant as evidence for trial, when documents sought to be admitted were not filed within seven days of trial date as ordered by WCJ at settlement conference, and WCAB found that WCJ...

Kim (Hyunmi) v. W.C.A.B., Lexis Advance

Petitions for Reconsideration—Skeletal Petitions—Dismissal—WCAB dismissed applicant’s Petition for Reconsideration as skeletal pursuant to Labor Code § 5902 and 8 Cal. Code Reg. §§ 10842, 10846, and 10852, when Petition failed...

L.A. Vegatable, Inc. v. W.C.A.B. (Bibian, Gabriel), Lexis Advance

Petitions for Contribution—Statute of Limitations—WCAB affirmed arbitrator’s finding that defendant Star Insurance Co. (Star) waived statute of limitations in Labor Code § 5500.5(e) as defense to co-defendant Security National Insurance Co.’s (Security National) untimely Petition for Contribution, when Star asserted for first time in 11/28/2018 supplemental arbitration brief that Security National’s 12/30/2015 Petition for Contribution was barred based on Security National’s failure to file Petition within one year from Findings and Award issued on 10/14/2014, but WCAB found that...

Martinez (Ernest) v. W.C.A.B., Lexis Advance

Permanent Disability—Apportionment—Preexisting Conditions—WCAB, in split panel decision, affirmed WCJ’s finding that applicant’s cumulative injury to his psyche, teeth, and in form of stress resulted in 67 percent permanent disability, and held that opinion of psychiatric qualified medical evaluator was substantial evidence supporting WCJ’s 25 percent apportionment of psychiatric disability to preexisting personality disorder as described by psychiatric qualified medical evaluator, when WCAB panel majority determined that qualified medical evaluator provided adequate reasons for his apportionment findings, when doctor explained that...

Mora (Jose) v. W.C.A.B., Lexis Advance

Petition for Writ of Review—Dismissal of Untimely Petition—Court of Appeal dismissed applicant’s petition for writ of review as untimely, when petition was filed after 45-day time limit in Labor Code § 5950 had expired, and, therefore, WCAB...

Sportsmark LLC v. W.C.A.B. (McMullen, Jennifer), Lexis Advance

Stipulations—Setting Aside—WCAB affirmed WCJ’s order denying defendant’s motion to withdraw from 5/22/2014 trial stipulation to injury AOE/COE to applicant’s psyche, when WCAB reasoned that, although parties’ also stipulated that defendant could withdraw from its stipulation with regard to body parts injured if record did not support finding of injury to such body parts, WCJ was not...

State National Insurance Co. v. W.C.A.B. (Gonzalez, Jesus), Lexis Advance

Petition for Writ of Review—Dismissed as Premature and Unverified—Court of Appeal dismissed defendant’s Petition for Writ of Review as premature pursuant to Labor Code §§ 5900 and 5901 because no final order was issued by WCAB, and also found that...

Appeals Board Panel Decisions

Campbell (John) v. City of Red Bluff Fire Dept., Lexis Advance

Medical-Legal Procedure—Replacement Panel Qualified Medical Evaluators—WCAB, granting removal, held that four medical evaluator panels issued by Medical Unit between 6/15/2017 and 11/1/2017 were invalid, and gave parties 10 days to agree on medical evaluator or, if parties could not reach agreement, schedule evaluation with regular physician appointed by WCJ pursuant to Labor Code § 5701, when WCAB found that...

Leon (Mary) v. DSS, Lexis Advance

Death Benefits—Death Without Dependents—WCAB affirmed WCJ's finding that Death Without Dependents unit of Department of Industrial Relations (DWD) failed to meet its burden of proof to establish that applicant, who suffered industrial injury resulting in her death on 11/20/2012, had no dependents at time of death, when WCAB reasoned that...

Independent Medical Review Decisions

CM19-0092259, Lexis Advance

Prescription Medications—Anticonvulsants—Topiramate (Topamax)—IMR reviewer overturned UR decision reducing the number of Topiramate (Topamax) pills from the requested 90 pills to 81 pills. Here, 50-year old applicant had chronic pain involving her cervical/upper back region and right shoulder. The MTUS/ACOEM 2019 guidelines cited by the IMR reviewer recommend the anticonvulsant Topiramate to treat cervical/thoracic pain after failure of other modalities, including trials of different NSAIDs, aerobic exercise, stretching exercise, strengthening exercise, tricyclic antidepressants, and manipulation. The documentation in this case indicated that applicant had been using the prescribed anticonvulsant medication for approximately 2 months, and her level of pain was decreased by half. Applicant had tried multiple other first-line modalities with only limited or short-term benefit. The IMR reviewer noted that... [LexisNexis Commentary: This IMR decision provides guidance regarding situations in which UR finds that a prescribed medication is medically necessary, but reduces the quantity allowed. In this case, UR reduced the number of pills by 9 and, at a cost of approximately $1.50 per pill, the cost savings was less than $15.00 over one and a half months.]

CM19-0094621, Lexis Advance

Physical Therapy—Traumatic Brain Injury—IMR reviewer overturned UR denial of 12 physical therapy (PT) sessions, once or twice per week for 6 weeks, to treat 72-year old applicant’s injuries to his head, right leg, left arm, left shoulder, and mild gait disorder. Applicant in this case had residual functional deficits after a traumatic intracranial hemorrhage in late 2017. He had previously undergone physical therapy both outside and inside the workers’ compensation system but was denied additional PT based on the perception that his condition was not significantly improving. The IMR reviewer relied on... [LexisNexis Commentary: The IMR reviewer in this case did a very good job explaining why additional PT was reasonable and necessary under the MTUS guidelines when applicant, who had a traumatic brain injury affecting his gait and balance, had slowly improved with prior PT and was continuing to improve.]

In-Home Care—Traumatic Brain Injury—IMR reviewer overturned UR denial of home-care assistance for 3 hours per visit, 4 times per week, where applicant had residual functional deficits following a traumatic brain injury (intracranial hemorrhage), including expressive aphasia, altered gait, balance problems, and partial loss of extremity function. The applicable MTUS guidelines recommend short-term home health care services following hospitalizations or surgical procedures and in other specific circumstances for those who would otherwise require inpatient care. Here, applicant was able to leave his home as needed for appointments only with significant assistance. He also had problems with ADLs and other tasks. Applicant’s wife was his primary caretaker, but she herself was becoming more debilitated with painful arthritis in her hands and stress from caring for her husband and was unable to continue performance of caretaking duties at the level she had been performing. Under the circumstances, the IMR reviewer found... [LexisNexis Commentary: This IMR decision provides guidance to the community regarding the showing that must be made for approval of home assistance. Here, applicant’s spouse could no longer care for applicant due to her own poor physical condition, and the IMR reviewer found that, under the circumstances, home assistance with daily activities while applicant’s condition continued to improve was reasonable.]

CM19-0102556, Lexis Advance

Skilled Nursing Facilities—Total Knee Revision Surgery—IMR reviewer overturned UR decision authorizing 65-year old applicant to spend only 7 days in skilled nursing facility following total knee revision, rather than 14 days as requested by applicant’s treating physician. In this case, applicant was travelling from her home to undergo right knee arthroscopy and planned to stay in an RV after the surgery, with no available caregivers. According to her treating physician, applicant needed skilled nursing placement for 2 weeks post-surgery as she would be at risk for a fall living in the RV, [*1117] especially given that she would have to climb 5 steps to enter the RV. The IMR reviewer... [LexisNexis Commentary: In this IMR decision, the IMR reviewer thoroughly explained why applicant needs 14 days in a skilled nursing facility post-knee replacement surgery, instead of the 7 days authorized by UR. The explanation provides significant guidance for the community regarding how to properly request skilled nursing care and clearly describes the criteria that must be met to get the requested care approved.]

CM19-0132830, Lexis Advance

Opioid Medications—Oxycodone HCl—IMR reviewer overturned UR decision denying treating physician’s request for 120 tablets of Oxycodone HCl 10mg. In this case, 51-year old applicant suffered a 2017 industrial back injury and was undergoing treatment for low back pain, thoracic spine pain, cervicalgia, and cervical spondylosis without myelopathy or radiculopathy. Part of his treatment regime since at least May of 2019 included a prescription for the opioid medication Oxycodone. The IMR reviewer noted that the MTUS 2017 guidelines for subacute and chronic pain recommend an opioid trial if other evidence-based approaches to improve pain and restore function have failed. Ongoing opioid treatment beyond a trial period depends on the results of the trial. Additionally, the MTUS provides a number of criteria that must be met to support ongoing treatment. The MTUS further states that... [LexisNexis Commentary: In this decision, the IMR reviewer summarized the MTUS requirements for approval of opioids and also enumerated each of the MTUS criterion that must be met to support ongoing usage of opioid medication for chronic pain. Indeed, the IMR expert’s rationale could be used as a template for medical providers seeking authorization for opioid prescriptions.]

Prescription Medications—Muscle Relaxants—Tizanidine HCl—IMR reviewer upheld UR decision denying treating physician’s request for 120 tablets of the muscle relaxant Tizanidine HCl 4mg to treat applicant’s back pain. Citing the MTUS 2017 guidelines for chronic pain and the ODG, the IMR reviewer noted that muscle relaxants are selectively recommended for brief use as a second- or third-line medication for exacerbations of chronic low back pain with muscle spasms but are generally not recommended for ongoing usage (more than a few weeks). Although the ODG states that Tizanidine has been shown to be effective for low back pain and is, in fact, recommended as a first-line option to treat myofascial pain, in this case the medication was prescribed far in excess of the guideline recommendations. The IMR reviewer pointed out... [LexisNexis Commentary: This IMR decision provides significant guidance regarding the criteria that must be met to support a request for muscle relaxants to treat chronic pain. The IMR reviewer detailed both the MTUS and ODG criteria that must be met and ultimately concluded that the provider’s request for Tizanidine far exceeded the recommended usage of the medication and was, therefore, not medically necessary.]