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California Compensation Cases: March 2022

March 29, 2022 (8 min read)


Vol. 87, No. 3 March 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


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Appellate Court Cases Not Originating With Appeals Board

Calantropio (Michael) v. Devcon Construction, Incorporated, Lexis

Peculiar Risk Doctrine/Premises Liability—Retained Control Exception to Privette Rule—Court of Appeal reversed trial court’s entry of summary judgment in favor of defendant Devcon Construction, Inc. (Devcon), in action by plaintiff for negligence and premises liability stemming from injuries plaintiff suffered after falling from ladder he placed on piece of cardboard covering hole on jobsite at which Devcon was general contractor and hired independent contractor (plaintiff’s employer) to perform certain work, when Court of Appeal reasoned that decisions in...

Northern California Collection Service, Inc. v. Perez, Lexis

Workers’ Compensation Insurance Policies—Premium Collection—Court of Appeal, affirming trial court’s grant of summary judgment in favor of plaintiff Northern California Collection Service, Inc., held that there were no triable issues of material fact and that defendant was obligated to pay plaintiff nearly $100,000.00 in outstanding workers’ compensation premiums owed under 2014 insurance policy issued by State Compensation Insurance Fund (State Fund) to defendant, then doing business as sole proprietorship ALP Construction, when it was undisputed that defendant underpaid...

Digests of WCAB Decision Denied Judicial Review

San Mateo County Transit District v. W.C.A.B. (Brazil, Sherry), Lexis

Permanent Disability—Rating—Rebuttal of Scheduled Rating—WCAB affirmed WCJ’s finding that applicant suffered 100 percent permanent disability from 9/11/2008 industrial injury to her back, right knee and psyche while employed as bus operator, when WCAB determined that reporting of applicant’s vocational expert complied with all requirements for vocational reports set forth in 8 Cal. Code Reg. § 10865(b) and constituted substantial evidence under...

Permanent Disability—Apportionment—Disability From Medical Treatment—WCAB affirmed WCJ’s finding that there was no basis for apportionment of permanent total disability caused by applicant’s 9/11/ 2008 industrial injury to her back, right knee and psyche, when WCAB determined that medical evidence in record was insufficient...

Injury AOE/COE—Compensable Consequence Injuries—WCAB affirmed WCJ’s finding that applicant’s right knee injury and psychiatric condition were compensable consequences of her 9/11/2008 industrial back injury, based on reporting of orthopedic agreed medical evaluator indicating that applicant’s right knee pain was...

Other WCAB Decisions Denied Judicial Review

Araujo (Nieves) v. W.C.A.B., Lexis

Petitions for Writ of Review—Dismissal of Untimely Petitions—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, and, therefore, Court of Appeal had no jurisdiction to act on petition.

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.

Basi (Jasbir) v. A Plus Academics, Lexis

Discovery—Depositions—WCAB, granting removal, rescinded WCJ’s orders quashing defendant’s subpoena for deposition of applicant’s treating podiatrist in connection with applicant’s denied claim for industrial injury to her legs, ankles, feet, and toes while working as teacher during period 6/2/2014 through 3/16/2020, when WCAB found that Labor Code’s medical-legal provisions suggest expansive rather than limiting approach regarding admissibility of medical evidence, and that doctor’s testimony in this case fell under broad discovery standard of evidence...

Estrella (Maria) v. State of California, Lexis

Permanent Disability—Rating—Almaraz/Guzman Analysis—WCAB, denying reconsideration in split panel opinion, affirmed WCJ’s finding that applicant, while working as correctional officer during period ending on 5/17/2017, suffered industrial injury to her right shoulder and spine, resulting in 58 percent permanent disability based on strict AMA Guides impairment rating as provided by panel qualified medical evaluator (PQME), and concluded that WCJ correctly rejected PQME’s alternative impairment analysis under…

Mendez (Sacarias) v. Better Living SoCal Group Corp., Lexis

WCAB Procedure—Joinder of Parties—WCAB, denying applicants’ Petition for Removal, affirmed WCJ’s order taking matter off calendar to join as party defendants additional parties/employers with potential liability for applicants’ claim, when WCAB rejected applicants’ assertion that they should be permitted to proceed only against employer they selected and named as sole defendant, even though they alleged joint and several liability of named defendant and other unnamed employers/parties, and WCAB found that it would be inappropriate to conduct trial without...

Ortiz (Robert) v. Department of Motor Vehicles, Lexis

Injury AOE/COE—Going and Coming Rule—Peace Officers—WCAB, granting reconsideration, rescinded WCJ’s decision and held that applicant, while employed as safety officer for Department of Motor Vehicles, suffered injury AOE/COE to his back and neck when he was struck by car on 4/22/2019 while purchasing lunch off-premises, and found that applicant’s injury was not barred by “going and coming” rule as determined by WCJ, when WCAB reasoned that, based on “dual purpose” rule…

Unto (Vincent) v. Dromy International Investment Corporation, Lexis

Medical-Legal Procedure—Assignment and Selection of Panel Qualified Medical Evaluators—WCAB, denying removal, affirmed WCJ’s finding that where both applicant and defendant strike same physician from assigned qualified medical evaluator panel, applicant is entitled to select either of two remaining physicians from panel pursuant to Labor Code § 4062.2(d), which WCAB interpreted liberally per Labor Code § 3202, and WCAB further found that defendant is not entitled to replacement panel in such circumstances, and that WCJ’s order in this matter did not result in substantial prejudice or irreparable harm.

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.

CM21-0098566, Lexis

Steroid Injections—Lumbar Sympathetic Block—Applicant, 39 years old, suffered an industrial injury on 2/4/2020 and subsequently underwent treatment for a right lateral malleolar fracture and CRPS of the right foot and ankle. Prior treatment included surgery, physical therapy, and a lumbar sympathetic block on 5/14/2021 which decreased applicant’s pain from 9/10 to 2/10 for two days, before the pain returned to baseline. Medications included… [LexisNexis Commentary: The ACOEM guidelines applicable to low back disorders, incorporated by the MTUS, do not specifically address lumbar sympathetic blocks. The ODG appears to disfavor use of the sympathetic blocks to treat pain but approves the treatment as a last resort under specified conditions. The IMR reviewer in this matter believed that applicant’s significant pain reduction and functional improvement for a period of two days following an injection was enough to satisfy the criteria, indicating that IMR reviewers have some degree of discretion in applying the evidence-based medical guidelines. This IMR decision clearly details the criteria for approval of a sympathetic block per the ODG.]

CM21-0109454, Lexis

Opioid Medication—Oxycodone—Applicant, 62 years old, sustained an industrial spine injury on 7/15/2004, resulting in chronic pain and impaired function. According to the documentation, she was able to work for only two hours per day. In addition to surgery, which was unsuccessful, previous treatments applicant tried and failed included gabapentin, Lyrica and Cymbalta. Applicant has been taking Oxycodone since at least 1/28/2021. Although she rated her neck and back pain at a 7-8/10 with radiation to the upper and lower extremities while taking the Oxycodone, she reported greater than 50 percent pain relief and ability to function and perform ADLs with use of the medication. On 6/28/2021, applicant’s treating physician requested authorization for Oxycodone Hcl 15mg #90. The request was denied by UR. The IMR expert overturned… [LexisNexis Commentary: The ACOEM guidelines, incorporated by the MTUS, 8 Cal. Code Reg. § 9792.24.4, recommend weaning or tapering of opioids only in situations that do not apply in this case, such as where lost function has been essentially recovered, or where there is a lack of any functional improvement, adverse effects, or the dosage is over 50mg MED. Accordingly, the IMR reviewer was correct to overturn the UR denial of the requested treatment in this case if the denial was based on the lack of a tapering plan. The IMR reviewer found the documentation of improved function and the showing of appropriate surveillance sufficient to support the medical necessity of the opioids per the MTUS guideline criteria.]

CM21-0110563, Lexis

Opioid Medication—Norco—Applicant, 55 years old, sustained an industrial injury on 11/7/2004, and developed a chronic pain syndrome including low back pain with radiculopathy, spondylosis, and muscle spasms. He reported constant pain, rated at 7/10, that affected his ability to sleep. Applicant’s medications included Norco since at least 1/26/2021, tramadol, Celebrex, and baclofen. His treating physician requested authorization for Norco 10/325mg #90, which UR denied on 8/5/2021. The IMR expert upheld UR’s non-certification… [LexisNexis Commentary: This IMR serves as a reminder to physicians to clearly document in their RFAs the medical necessity of recommended treatment consistent with the applicable treatment guidelines. Additionally, the IMR reviewer in this case noted the fact that an appropriate weaning protocol must be followed per the MTUS guidelines despite denial of the treatment request. In order to put a weaning plan in place, the claims adjuster should send a weaning request to the PTP who, in turn, can recommend a tapering protocol per the MTUS guidelines. After a weaning plan is put in place based on the PTP’s recommendations, the insurance carrier should pay for the requested medications during the tapering process.]