California Compensation Cases June 2020

CALIFORNIA COMPENSATION CASES

Vol. 85 No. 6 June 2020

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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LexisNexis Online Subscribers: You can link to your account on Lexis Advance to read the complete headnotes and court decisions, en banc decisions, writ denied summaries, panel decisions and IMR decisions.

Appellate Court Compensation Cases

County of Santa Clara v. W.C.A.B. (Justice, Barbara), Lexis Advance

Injury AOE/COE—Permanent Disability—Apportionment—Court of Appeal, annulling Appeals Board’s decision, held that unrebutted substantial medical evidence demonstrated that applicant’s permanent disability was caused, in part, by extensive preexisting knee pathology, so that apportionment was required, when Court of Appeal found that…

Perani (Michael) v. W.C.A.B., Lexis Advance

Stipulated Awards—Medical Treatment—Body Parts Injured—Upper Extremities—Court of Appeal, annulling Appeals Board’s opinion and decision, held that stipulated award stating that body parts injured were “bilateral upper extremities” included injury in nature of thoracic outlet syndrome, when Court of Appeal found that…

Appellate Court Case Not Originating With Appeals Board

Horne (Shirley), Dickerson (Ruben, Dec’d), Dickerson (Rashawna), Dickerson (Rashad), Dickerson (Rashell) v. Ahern Rentals, Inc., Lexis Advance

Privette Doctrine—Exceptions—Hirer’s Retention of Control—Court of Appeal, affirming trial court’s summary judgment in defendant’s favor, held that no triable issue of material fact existed as to whether exception to Privette v. Superior Court (1993) 5 Cal. 4th 689, 21 Cal. Rptr. 2d 72, 854 P.2d 721, 58 Cal. Comp. Cases 420, saved plaintiffs’ negligence claim from summary judgment, when Court of Appeal found that decedent…

Digests of WCAB Decisions Denied Review

Gorostieta (Marcelino, Dec’d) v. W.C.A.B., Lexis Advance

Serious and Willful Misconduct of Employer—WCAB, affirming WCJ’s decision, found that widow of laborer who was killed in 2017 while assisting unlicensed tree trimmer cut trees on property of employer Ranch of the Golden Hawk (Ranch) failed to meet her burden of proving that Ranch engaged in serious and willful misconduct…

Marshall (David) v. W.C.A.B., Lexis Advance

Injury AOE/COE—Peace Officers—Applicability of Pneumonia Presumption to Pneumonitis—WCAB, in split panel opinion, affirmed WCJ’s finding that applicant did not sustain cumulative injury to his lungs in form of chronic hypersensitivity pneumonitis while working as peace officer from 1977 through 2003, when qualified medical evaluator opined that…

Discovery Closure—WCAB’s Duty to Develop Record—WCAB affirmed WCJ’s order denying applicant’s attorney’s request made at trial to reopen record to allow applicant to obtain supplemental report from qualified medical evaluator to address whether applicant’s…

Old Republic Insurance Co. v. W.C.A.B. (Cortes, Jesus), Lexis Advance

Statute of Limitations—Cumulative Injuries—Date of Injury—WCAB rescinded WCJ’s findings that applicant had 2014 date of cumulative injury and that his 3/16/2016 claim for injury to his back, knees, right shoulder, hands, elbows, and in form of headaches from 2/26/2015 to 2/26/2016 was barred by one-year statute of limitations in Labor Code § 5405(a), and WCAB substituted new finding that applicant’s claim was not barred by statute of limitations, when WCAB reasoned that…

WCAB’s Duty to Develop Record—Insufficiency of Medical Evidence—WCAB, having found that applicant’s claim for cumulative injury to multiple body parts from 2/26/2015 to 2/26/2016 was not barred by statute of limitations, returned matter to trial level for further development of medical record on issue of causation, when WCAB found that…

Tejada (Victor) v. W.C.A.B., Lexis Advance

Subsequent Injuries Benefits Trust Fund—Threshold Requirements for Liability—WCAB affirmed WCJ’s finding that applicant who suffered specific injury to his low back on 6/8/2006, resulting in 24 percent permanent disability, but did not suffer compensable psychiatric injury due to six-month employment requirement in Labor Code § 3208.3(d), was not entitled to…

Independent Medical Review Decisions

CM19-0094676 Lexis Advance

[LexisNexis Commentary: The IMR reviewer in this case overturned the UR decision when applicant had no negative side effects and was benefitting from use of the prescribed medication.]

CM19-0124292 Lexis Advance

[LexisNexis Commentary: The IMR reviewer denied applicant’s request for Movantik where the ODG recommends its use only as a second-line therapy for opioid induced constipation. However, because the documentation provided by applicant’s physician did not mention that first-line treatments were attempted, the documentation was insufficient to support the requested medication. This is a good reminder for physicians to attempt and also document first-line treatments before requesting second-line therapies.]

CM19-0134991 Lexis Advance

[LexisNexis Commentary: The IMR reviewer provided a clear and well-reasoned explanation for denying medical treatment that was not supported under the ODG criteria.]

[LexisNexis Commentary: The treating physician did an excellent job documenting applicant’s improvement in pain and function with use of Hydrocodone/Acetaminophen for her knee pain and, therefore, fulfilled the MTUS criteria for prescribing the medication.]

CM19-0137096 Lexis Advance

[LexisNexis Commentary: The IMR reviewer in this case provided a detailed explanation for why the UR denial of a cannabis drug was upheld. The reviewer pointed out that use of cannabis for pain is not supported by studies and is risky. Further, marijuana use is still illegal under federal law, and insurers generally are not required to pay for the drug].

CM19-0137209 Lexis Advance

[LexisNexis Commentary: The IMR reviewer denied the treating physician’s request for Belbuca, FDA approved as a long-acting opioid for pain, because applicant was able to function well without using the drug and the request was not supported by the ODG. The IMR reviewer clearly indicated that his determination was not intended as a recommendation for or against how applicant should be medically treated, and that it should be the treating physician who ultimately originates and initiates all medical orders regarding this worker’s care, including any opioid tapering.]