California Compensation Cases December 2023

CALIFORNIA COMPENSATION CASES

Vol. 88, No. 12 December 2023

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

Velasquez (Jose) v. W.C.A.B., Lexis

Employment Relationships—Excluded Employers—Court of Appeal, in split opinion, granted applicant’s petition for writ of review and affirmed WCAB’s finding that The Salvation Army, operating as private, nonprofit organization sponsoring applicant during his participation in residential treatment program mandated as condition of his court-ordered probation, was statutorily excluded from being applicant’s employer for workers’ compensation purposes under Labor Code § 3301(b), when Court of Appeal found that legislative intent supported application of Labor Code § 3301(b) in this case, as did reasoning in Arriaga v. County of Alameda (1995) 9 Cal. 4th 1055, 892 P.2d 150, 40 Cal. Rptr. 2d 116, 60 Cal. Comp. Cases 316, where Supreme Court distinguished community service work performed for government entity from that performed for nonprofit organization...

Appellate Court Case Not Originating with Appeals Board

Abraham v. Wells Fargo Bank, Lexis

Workers’ Compensation Exclusive Remedy Rule—Commercial Travelers—Court of Appeal, affirming trial court’s grant of summary judgment in favor of employer Wells Fargo Bank, held that plaintiffs’ action against employer for wrongful death of their daughter killed in car accident while employed by Wells Fargo Bank and traveling on business was barred by workers’ compensation exclusive remedy doctrine, when employee was killed in automobile accident while returning to her hotel after having gone out for dinner and drinks with colleagues, and Court of Appeal found that employee was “commercial traveler” at time of her death...

Digests of WCAB Decisions Denied Judicial Review

California Department of Corrections and Rehabilitation v. W.C.A.B. (Baker, Derek), Lexis

Presumption of Compensability—Heart Trouble—Correctional Officers—Anti-Attribution—WCAB, denying reconsideration, affirmed decision in which WCJ found that applicant sustained industrial injury to his cardiovascular system in form of hypertension and to his right eye while employed as parole agent during period 12/27/2010 to 4/28/2021, and that permanent disability related to applicant’s right eye injury, which resulted from obstruction of retinal blood flow reasonably related to applicant’s hypertension, was exempt from apportionment under Labor Code § 4663(e), because applicant’s hypertensive heart disease constituted “heart trouble” covered by presumption in Labor Code § 3212.2, and WCAB reasoned that because applicant’s eye injury was caused by his hypertension, it also was covered by heart presumption and was immune from apportionment.

4Leaf, Inc. v. W.C.A.B. (Sanchez, Starlit), Lexis

Injury AOE/COE—Non-Occupational Diseases—COVID-19—WCAB, denying reconsideration, affirmed WCJ’s finding that applicant, while employed as permit technician, suffered injury AOE/COE in form of COVID-19 on 1/27/2021, when WCAB reasoned that in cases where employee’s injury is caused by communicable disease, such as COVID-19, essential questions of when and where employee contracted disease may be unanswerable with certainty, and in those cases employee can establish industrial causation by demonstrating that it is more likely employee acquired disease at work and that employment subjected employee to special risk of exposure in excess of that of general public, that applicant in this case met burden...

Luiz (Christian) v. W.C.A.B., Lexis

WCAB Jurisdiction—Tribal Entities—Sovereign Immunity—WCAB, granting reconsideration and reversing WCJ’s finding, held that defendant United Native Housing Development Corporation (United Native Housing) enjoyed sovereign immunity and was not subject to WCAB jurisdiction with respect to applicant’s claim for cumulative injuries to his neck and upper extremity ending on 3/30/2018, while employed by tribal entity Northern Circle Indian Housing Authority (Northern Circle), and while allegedly employed by United Native Housing, which was entity formed by Northern Circle for purposes of accessing funds that were not available to tribal entities, when WCAB reasoned that...

Pasadena Unified School District v. W.C.A.B. (Hendricks, Anastasia), Lexis

Discovery—Close of Discovery—WCAB, denying reconsideration, affirmed WCJ’s finding that applicant suffered industrial injury to her cervical spine, lumbar spine, and knees while employed as teaching assistant from 9/10/2009 through 12/31/2019, and found that WCJ did not err by admitting into evidence report of panel qualified medical evaluator (PQME) obtained by applicant after Priority Conference and after matter was set for trial, over defendant’s objection, when PQME’s original reporting was inconsistent with his deposition testimony regarding industrial nature of applicant’s injury, and WCAB found that obtaining supplemental report...

Other WCAB Decisions Denied Judicial Review

Bundy (Tylor) v. W.C.A.B., Lexis

Petitions for Writ of Mandate—Moot Petitions—Court of Appeal dismissed applicant’s 9/20/2023 Petition for Writ of Mandate seeking to compel WCAB, after granting reconsideration on 3/16/2020, to issue decision in this matter, when WCAB issued its Opinion and Decision After Reconsideration on 9/25/2023 and Court of Appeal found that WCAB’s action rendered applicant’s Petition for Writ of Mandate moot.

Riaz (Samreen) v. W.C.A.B., Lexis

Workers’ Compensation Judges—Disqualification—WCAB denied pro per applicant’s Petition to Disqualify WCJ based on allegations that WCJ’s decision demonstrated bias or appearance of bias “shown by the vocabulary and symbols used and that the name ‘Debra Sandoval’ is controversial and is associated with organized stalking and privacy invasions,” when WCAB reasoned that...

Psychiatric Injury—Burden of Proof—Substantial Medical Evidence—WCAB, denying reconsideration, affirmed WCJ’s finding that qualified medical evaluator’s (QME) reporting was substantial evidence to support finding that applicant did not sustain compensable psychiatric injury, when WCAB found that QME’s reports and deposition testimony detailed evidence indicating that applicant suffered from psychotic illness and was out-of-touch with reality with respect to allegations of harassment by defendant, that QME opined, within reasonable medical probability, that actual events of applicant’s employment were not predominant cause of her psychiatric injury, and that QME’s opinion was well-reasoned and supported by medical record, doctor’s examination and diagnostic testing.

Smith (Marva) v. W.C.A.B., Lexis

Petitions for Reconsideration—Untimely Petitions—WCAB dismissed applicant’s Petition for Reconsideration as untimely, when Petition was filed 27 days after service of WCJ’s Order Dismissing Application for Adjudication, and if Petition were not dismissed as untimely, WCAB would have denied it on merits, where applicant failed to set forth good cause as to why Application should not be dismissed.

Woods (Paulette) v. W.C.A.B., Lexis

Petitions for Writ of Mandate—Moot Petitions—Court of Appeal denied applicant’s 9/20/2023 Petition for Writ of Mandate seeking to compel WCAB, after granting reconsideration on 3/16/2020, to issue decision in this matter, when WCAB issued its Opinion and Decision After Reconsideration on 11/8/2022, making applicant’s Petition for Writ of Mandate moot.

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.

Becerra (Linda) v. Conifer Health Solution, Lexis

Permanent Disability—Apportionment—Substantial Evidence—WCAB, granting reconsideration, rescinded WCJ’s apportioned permanent disability award and held that applicant who suffered industrial orthopedic, heart and psychiatric injuries while employed as financial assistant from 4/20/2002 through 11/22/2011 was entitled to unapportioned award of 92 percent permanent disability, when WCAB determined that apportionment analyses described by four qualified medical evaluators (QME) were not substantial evidence to support...

Gaul (Thomas) v. Department of Corrections Inmate Claims, Lexis

Permanent Disability—Offers of Work—Adjustment in Compensation for Prison Inmates—WCAB, after granting reconsideration, affirmed WCJ’s finding that applicant prison inmate was entitled to 15 percent increase in permanent disability benefits in accordance with Labor Code § 4658(d), based on defendant’s failure to make return-to-work offer after applicant suffered industrial injuries, and WCAB rejected defendant’s reliance on…

Gonzalez (Rigoberto) v. Team Infinity, Lexis

Permanent Disability—Apportionment—WCAB, granting reconsideration, rescinded WCJ’s unapportioned award of 100 percent permanent disability for cumulative injuries to applicant’s heart, upper and lower extremities and spine during period 8/28/2001 through 3/25/2010, and remanded matter to WCJ for further proceedings and new decision, when all physicians evaluating applicant’s condition apportioned permanent disability to nonindustrial factors pursuant to Labor Code § 4663, and although applicant’s vocational expert discussed factors of apportionment described by medical evaluators, he ultimately concluded that applicant was 100 percent permanently disabled due to his industrial cumulative injury, and WCAB, citing its recent decision...

Mora (Gabriel, Dec’d) v. Custom Fresh Cuts, Inc., Lexis

Injury AOE/COE—Assault By Co-Worker—Special Risk Exception to Going and Coming Rule—WCAB, granting reconsideration and rescinding WCJ’s decision, held that preponderance of evidence established that decedent’s death arose out of and in course of his employment, when decedent suffered fatal injury on 2/9/2017 when he was shot and killed by co-worker on public street just after finishing work and exiting employer’s parking lot, and WCAB reasoned that...

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.

CM22-0168596, Lexis

Home Health Care Services—Spine Injury—Applicant, 76 years old, suffered an industrial lumbar spine injury on 6/17/96. He reported insomnia and low back pain which radiated down his legs, with numbness, tingling, and muscle weakness. He rated the pain at 3/10 with medications and 6/10 without medications. Applicant reported episodes of incapacitating radicular pain and weakness in his left leg, nearly causing him to fall. A physical examination of the lumbar spine revealed severely decreased range of motion and decreased leg strength. Applicant’s treating physician noted that applicant needed home care assistance, as he had difficulty managing ADLs due to pain and functional limitations from his injury. However, the physician’s request for a home assistance evaluation was denied by UR. The IMR reviewer overturned the UR denial based on... [LexisNexis Commentary: This IMR decision reminds readers that under the MTUS/ACOEM guidelines, a home evaluation is necessary to develop the home health care treatment plan. UR’s denial of such an evaluation in this case, where applicant was almost totally incapacitated, homebound and unable to perform many ADLs, underscores the necessity of IMR.]

CM23-0023973, Lexis

Home Health Care Services—Applicant, 78 years old, suffered an industrial injury on 7/23/87, and underwent treatment for injuries to his hip, shoulder, knees, back, and carpal tunnel. He reported 6/10 pain in his shoulders, aggravated by overhead activities, lifting, and pushing, 3/10 pain in the left elbow, 9/10 low back pain that radiated into both hips and down both legs into the feet, 8/10 pain in his knees, and 5/10 bilateral hip pain. The medical records revealed that applicant was sitting in a wheelchair during his most recent physical examination and had difficulty rising. Additionally, applicant ambulated with a slow and labored gait using a cane. Applicant had decreased range of motion in his lumbar spine and knees, a recent history of debilitating pain, instability, and multiple falls. Applicant’s treating physician requested a home health aide to assist applicant four hours per week for six months, totaling 96 visits. The request was denied by UR. The IMR reviewer overturned the UR denial based on the 2022 MTUS guidelines… [LexisNexis Commentary: The IMR reviewer in this case correctly noted that applicant satisfied several of the MTUS criteria for entitlement to home health assistance, i.e., applicant could not leave his home without major assistance given his use of a wheelchair, leaving home was not advisable, and applicant had ADL deficits. In addition to the straightforward application of the MTUS guidelines, the case serves as a cautionary tale as to the potential of an applicant’s increasing, rather than decreasing, medical needs long after sustaining an industrial injury.]

CM23-0035843, Lexis

Nerve Conduction Studies—Carpal Tunnel Syndrome—Applicant, 65 years old, suffered an industrial injury on 3/21/2007, resulting in chronic neck pain. In 2023, she was evaluated for persistent upper extremity pain and paresthesias, with more severe symptoms on the left side than on the right. Applicant had previously undergone an unsuccessful right carpal tunnel release procedure. Both carpal tunnel syndrome and cervical radiculopathy were listed by the treating physician in his treatment notes as differential diagnoses. On 2/9/2023, the physician submitted an RFA for electrodiagnostic testing (EMG/NCS) of applicant’s bilateral upper extremities, noting that he was unable to offer applicant further treatment options without obtaining updated electrodiagnostic testing. UR denied the request, citing the 2017 MTUS chronic pain guidelines. The IMR reviewer overturned the UR denial based on the carpal tunnel syndrome section of... [LexisNexis Commentary: In this case, IMR used the MTUS/ACOEM to correct an erroneous UR noncertification. Because applicant was diagnosed with cervical radiculopathy and had a history of neck pain, an EMG was appropriate under the guidelines to differentiate between cervical radiculopathy and median nerve entrapment for purposes of medical treatment.]