California Compensation Cases July 2022

CALIFORNIA COMPENSATION CASES

Vol. 87, No. 7 July 2022

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 Case Not Originating With Appeals Board

Ewart v. County of Los Angeles,  Lexis

Employment Relationship—Volunteers—Public Entity—Indemnification—Court of Appeal, affirming trial court’s order sustaining demurrer in defendant’s favor, held that volunteer traffic control officer for Los Angeles County, who directed an automobile to turn into plaintiff’s path causing injury to plaintiff during triathlon, was statutorily excluded from definition of employee under Labor Code § 3352(a)(9), when Court of Appeal rejected plaintiff’s claim of entitlement to statutory indemnification under Labor Code § 2802, noting that claims against public entities, including claim of noncontractual indemnity for employee’s torts, are governed exclusively by...

Digests of WCAB Decisions Denied Judicial Review

Countrywide Home Loans v. W.C.A.B. (Bufalino, Carolyn),  Lexis

Temporary Disability—Rate of Payment—WCAB, amending WCJ’s decision, held that applicant who suffered period of temporary disability following cumulative injury while employed as computer programmer during period 7/31/2000 through 8/9/2002, was entitled to retroactive temporary disability indemnity at rate in place when payment was made pursuant to Labor Code § 4661.5, and WCAB rejected defendant’s assertion...

Psychiatric Injury—Good Faith Personnel Actions—Rolda Analysis—WCAB affirmed WCJ’s finding that applicant, while employed as computer programmer, suffered compensable psychiatric injury during period 7/31/2000 through 8/9/2002, and that psychiatric claim was not barred by Labor Code § 3208.3(h)’s good faith personnel action defense, when applicant’s treating physician assigned causation of...

Rohrbach v. W.C.A.B.,  Lexis

Petitions for Reconsideration—Orders Granting Reconsideration—Time to Issue Final Decision—Court of Appeal denied Petition for Writ of Mandamus filed by four professional athletes whose cases were pending on appeal before WCAB, to compel WCAB to issue final decisions in all cases on appeal within 60 days pursuant to Labor Code in order to accomplish substantial justice and preserve parties’ due process rights.

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.

Hansell (Gregory) v. Arizona Diamondbacks,  Lexis

WCAB Jurisdiction—Professional Athletes—Exemptions—WCAB, granting reconsideration, rescinded WCJ’s decision wherein WCJ concluded that applicant’s claim for cumulative injuries incurred while employed as professional baseball player for multiple teams between 6/5/89 and 10/15/2004 could not be brought in California due to application of Labor Code § 3600.5(c) and (d), exempting claims by professional athletes from California jurisdiction under certain specified conditions, and WCAB held instead that Labor Code § 3600.5(c) and (d) were not...

Levrault (Allen) v. Milwaukee Brewers,  Lexis

WCAB Jurisdiction—Professional Athletes—Exemptions—WCAB, granting reconsideration, rescinded WCJ’s decision and held that (1) exemption in former Labor Code § 3600.5(b) did not apply to applicant’s claim against Miami Marlins (Marlins), alleging cumulative injury while playing professional baseball for Marlins during period 12/12/2002 to 10/15/2003, when WCAB reasoned that former Labor Code § 3600.5(b) (applicable to applicant’s claim filed in 2013) expressly requires that conditions for application of exemption, including reciprocity provisions in Labor Code § 3600.5(b)(1)(A) and (B), apply “while such employee...

Discovery—Closure—WCAB, granting reconsideration, rescinded WCJ’s finding that qualified medical evaluator reports addressing applicant’s right shoulder surgery were inadmissible because they were obtained after discovery cut-off in Labor Code § 5502(d)(3), when WCAB found that medical reports could not have been obtained...

Robles (Alex) v. Southern California Gas Company,  Lexis

Employment Relationships—Dual Employment—Union Members—WCAB, granting reconsideration, rescinded WCJ’s finding that applicant was employed only by Southern California Gas Company (SCGC) when he was injured in automobile accident while driving to office of Utility Workers Union of America, Local 132 (union) on 10/17/2011 to participate in union business, as union’s regional officer, and WCAB held instead that, at time of accident, applicant was employed...

Sheppard (Lee) v. County of Kern,  Lexis

Psychiatric Injury—Post-Termination Defense—Exceptions—WCAB, denying reconsideration in split panel opinion, held that defendant failed to establish that Labor Code § 3208.3(e) post-termination defense barred applicant’s claim for 2/7/2018 psychiatric injury resulting from incident during which his supervisor physically grabbed his arm and forcibly directed him back to his work area, when WCAB panel majority concluded that...

Valdez (William) v. Orange County Fire Authority,  Lexis

Permanent Disability—Rating—Combining Multiple Disabilities—WCAB, denying reconsideration, affirmed WCJ’s award of 89 percent permanent disability for injuries to applicant’s hands/thumbs, shoulders, feet/toes, upper digestive tract/hiatal hernia, and in forms of hypertension and coronary artery disease, and found that WCJ correctly combined applicant’s orthopedic disability with his internal medicine disability using Combined Values Chart (CVC) rather than adding them as recommended by orthopedic physician, when WCAB found that orthopedic physician’s opinion was not substantial medical evidence...

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.

CM22-0007222,  Lexis

Home Healthcare—Traumatic Brain Injury—Applicant, 60 years old, suffered a gunshot wound to the head on 5/2/2013, resulting in a traumatic brain injury. His treating physician requested 3600 hours (equating to 20 hours per day over 180 days) of home healthcare, 480 hours (equating to fewer than three hours per day over 180 days) of which were authorized by UR. The IMR reviewer, overturning the UR decision, found that the 3600 hours of care requested was supported... [LexisNexis Commentary: This IMR explains how and why 3600 of home healthcare for applicant with a traumatic brain injury following a gunshot wound meets the MTUS criteria for medical necessity. The decision is also illuminating in that it explains that the family of an injured worker is under no obligation to provide home healthcare which would otherwise be the employer’s responsibility. See Henson v. W.C.A.B. (1972) 27 Cal. App. 3d 452, 103 Cal. Rptr. 785, 37 Cal. Comp. Cases 564.]

CM22-0021181,  Lexis

Chiropractic Treatment—Myofascial Therapy for Hip—Applicant, 54 years old, suffered an industrial injury on 10/14/2017, and was not working. She subsequently began experiencing worsening spasms in the hip, buttocks and lower back. In 2022, her treating physician requested chiropractic myofascial therapy for her left hip once a week for six weeks. UR noncertified the request based on non-MTUS ODG guidelines indicating that chiropractic therapy for the hip and pelvis is not recommended based on lack of specific supporting evidence. Citing the 2019 MTUS for hip, groin and knee disorders, and the non-MTUS ODG for the treatment of hip and pelvis conditions, the IMR reviewer overturned the UR noncertification and... [LexisNexis Commentary: This IMR is interesting because chiropractic care was prescribed for the first time more than four years after the date of injury, and because the proposed treatment was for the hip and knee rather than that spine. The decision is a useful reminder that the IMR reviewer has discretion regarding application of the guidelines and also that the ODG should be used where the MTUS makes no recommendations regarding a requested treatment modality.]