California Compensation Cases February 2024

CALIFORNIA COMPENSATION CASES

Vol. 89, No. 2 February 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

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JUST CLICK ON THE CASE NAMES BELOW…

Appellate Court Case Not Originating with Appeals Board

Morgenthaler v. Pacific World Corporation (2nd—B321975)

Third Party Actions—Negligent Hiring—Agency Relationships—Court of Appeal, affirming trial court, held that defendants Pacific World Corporation (PWC) and Zircon Corporation (Zircon) were entitled to summary judgment in lawsuit filed against them by plaintiffs whose…

Federal Circuit Court Opinion of Related Interest

Thomas v. Nationwide Mutual Insurance Company (23-55225)

Uninsured Motorist Coverage and Workers’ Compensation—U.S. Court of Appeals, Ninth Circuit, affirmed district court’s grant of summary judgment in favor of defendant insurer on plaintiff’s breach of implied covenant of good faith and fair dealing and breach of contract claims…

Digests of WCAB Decision Denied Judicial Review

Zelnik (Gerard) v. W.C.A.B. (1st—A169000)

Presumption of Compensability—Admissibility of Evidence—Good Faith Personnel Action Defense to Psychiatric Injury—WCAB, granting reconsideration, rescinded decision in which WCJ applied Labor Code…

Other WCAB Decisions Denied Judicial Review

Ivy at the Shore dba L.A. Desserts, Inc. v. W.C.A.B. (Duenas, Miguel) (2nd—B331037)

Evidence—WCAB’s Duty to Develop Record—Appointment of Regular Physician—WCAB, denying removal, affirmed WCJ’s order appointing Stewart Lonky, M.D., as regular physician per Labor Code § 5701 to…

Matrix Document Imaging Inc. v. W.C.A.B. (Cuevas, Laurencio) (2nd—B330268)

Costs—Medical-Legal Fees—Delayed Payment—WCAB, denying reconsideration, affirmed WCJ’s finding that defendant was not liable under 8 Cal. Code Reg. § 10786(i)(1) for medical-legal evaluator’s attorney’s fees and costs…

Shamsian (Eliza) v. W.C.A.B. (2nd—B331989)

Petitions for Writ of Review—Untimely Petitions—Court of Appeal dismissed applicant’s Petition for Writ of Review as untimely, when applicant failed…

Appeals Board Panel Decisions

Bradford (Eiren) v. R&D Westwing, Inc. (WCAB—ADJ12116378)

Injury AOE/COE—Assaults by Third Parties—WCAB, granting reconsideration, rescinded WCJ’s finding that applicant’s injuries did not arise out of her employment because they were sustained during personally…

Butts (Thomas) v. Butts & Johnson (WCAB—ADJ14033416)

Injury AOE/COE—Special Risk Exception to Non-Compensability of Non-Occupational Diseases—COVID-19—WCAB, denying reconsideration…

Duran (Cecilia) v. County of Imperial (WCAB—ADJ14966902)

Injury AOE/COE—Substantial Medical Evidence—WCAB, denying reconsideration, held that reporting of applicant’s treating neurosurgeon was substantial evidence under standards in Escobedo v. Marshalls (2005) 70 Cal. Comp. Cases 604 (Appeals Board en banc opinion), to…

Pacheco (Adriana) v. Calico Building Services, Inc. (WCAB—ADJ11662102)

Medical-Legal Procedure—Exchange of Information—Remedies for Violation of Labor Code § 4062.3(b)—WCAB, granting removal, affirmed WCJ’s finding that applicant’s letter to qualified medical evaluator…

Rodriguez (Alicia) v. Dynamic Edge Consulting (WCAB—ADJ10884813)

Medical Treatment—Home Healthcare Assessment—Employer’s Control Over Treatment—Employee’s Refusal of Treatment—WCAB, granting reconsideration, rescinded decision in which WCJ ordered applicant…

Shaw (Lynne) v. Automobile Club of Southern California (WCAB—ADJ8996318)

Stipulations—Enforcement of Medical Treatment Award—WCAB, granting reconsideration, amended WCJ’s decision to indicate that defendant did not timely defer utilization review of applicant’s requests for medical treatment, but…

Independent Medical Review Decisions

CM23-0014317 (3-16-23)

Electrodiagnostic Studies—Upper Extremities—Applicant, 35 years old, suffered an industrial injury on 10/27/2017. In a telemedicine progress report dated 1/23/2023, applicant reported head, face, spine, and upper…[LexisNexis Commentary: The IMR reviewer makes clear that something as slight as a report of symptoms by telemedicine, paired with the right medical history, can justify electrodiagnostic studies under MTUS/ACOEM, which recommends quality studies “to differentiate between cervical radiculopathy and entrapment” or “to assist in securing a firm diagnosis” (ACOEM Hand, Wrist, and Forearm Disorders Guideline, June 28, 2023, p. 34, last paragraph).]

CM23-0014752 (3-8-2023)

Electrodiagnostic Studies—Upper and Lower Extremities—Applicant, 54 years old, suffered an industrial injury on 9/1/2017 and sought authorization for electrodiagnostic/nerve conductions studies (EMG/NCS) of the…[LexisNexis  commentary: This IMR shows that even in the absence of surgery (injections are the proposed next step in treatment here), electrodiagnostic studies can be recommended “to differentiate between cervical radiculopathy and entrapment” or “to assist in securing a firm diagnosis” as well as “to objectively secure a diagnosis of carpal tunnel syndrome prior to surgical release” (ACOEM Hand, Wrist, and Forearm Disorders Guideline, June 28, 2023, p. 34, last paragraph).]

CM23-0034805 (4-13-2023)

Electrodiagnostic Studies—Carpal Tunnel Syndrome—Applicant, 34 years old, suffered an industrial injury on 12/14/2017, and was undergoing treatment for cervical radiculopathy…[LexisNexis Commentary: The MTUS/ACOEM guidelines recommend electrodiagnostic studies “to objectively secure a diagnosis of carpal tunnel syndrome prior to surgical release” (ACOEM Hand, Wrist, and Forearm Disorders Guideline, June 28, 2023, p. 34, last paragraph). In this case, applicant’s treating physician proposed an additional anterior cervical discectomy and fusion, recognizing the importance of distinguishing whether the source of applicant’s symptoms was the cervical spine or the carpal tunnel.]

CM23-0069500 (6-26-2023)

Home Health Care Services—Traumatic Brain Injury—Applicant, 34 years old, suffered an industrial traumatic brain injury on 9/20/2021, resulting in significant physical and cognitive symptoms…[LexisNexis Commentary: The MTUS/ACOEM Traumatic Brain Injury Guidelines have a section entitled “Home Healthcare” that states only: “See Initial Approaches to Treatment Guideline” (ACOEM Traumatic Brain Injury Guidelines, November 15, 2017, p. 225, paragraph 2). Fortunately, the ACOEM Initial Approaches to Treatment does provide criteria that can be applied beyond short-term needs, acknowledging that home healthcare is “selectively recommended to prevent (re)hospitalization, to overcome deficits in activities of daily living (ADLs), and/or to provide nursing, therapy and/or supportive care services for those who would otherwise require inpatient care” (ACOEM Initial Approaches to Treatment, October 22, 2021, p. 16, last paragraph).]

CM23-0134279 (10-29-2023)

Topical Non-Steroidal Anti-Inflammatory Drugs (NSAIDs)—Diclofenac—Chronic Pain—Applicant, 58 years old, suffered an industrial injury on…[LexisNexis Commentary: The MTUS/ACOEM Chronic Pain Guidelines selectively recommend topical NSAIDs for chronic pain, and the ACOEM states at p. 295 that “Diclofenac 1.5% lotion T.I.D. was used in one quality trial.” If the use of a topical NSAID keeps an injured worker off opioid medication, it seems logical to authorize the medication.]

CM23-0139914 (11-16-2023)

Functional Restoration Program—Chronic Pain Syndrome—Applicant, 58 years old, suffered an industrial injury on 9/26/2020, and was undergoing treatment for chronic pain syndrome, which involved physical as…[LexisNexis Commentary: The IMR reviewer in this case set forth the MTUS criteria that must be satisfied to support a functional restoration program, and clearly explained why applicant in this case met those criteria. It is also interesting to note that the ACOEM Chronic Pain Guideline, incorporated into the MTUS, seems to indicate that it is not only the patient’s suitability for a functional restoration program that should be reviewed, but also the suitability of the exact program to which the patient is being referred.]

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