California Compensation Cases March 2022

CALIFORNIA COMPENSATION CASES

Vol. 88, No. 3 March 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 Cases Not Originating With Appeals Board

Delgadillo (Philip) v. Hilmar Cheese Company, Inc.,  Lexis

Peculiar Risk Doctrine/Premises Liability—Application of Privette Doctrine—Concealed Hazard Exception—Court of Appeal, affirming trial court, held that defendant cheese company was entitled to summary judgment in negligence/premises liability action brought by plaintiff employee of independent contractor milk hauling company for injuries plaintiff sustained when he fell after stepping into deep pothole while delivering load of milk to defendant, when Court of Appeal concluded that doctrine of hirer non-liability...

Marin v. Department of Transportation,  Lexis

Peculiar Risk Doctrine/Premises Liability—Application of Privette Doctrine—Retained Control Exception—Court of Appeal, affirming trial court, held that Department of Transportation (DOT) was entitled to summary judgment in wrongful death action filed by family of highway worker killed while working for independent contractor hired by DOT to perform construction work along I-580 corridor, when Court of Appeal concluded that doctrine of hirer non-liability in Privette v. Superior Court...

Morgan (Gloria) v. Board of Retirement of the Kern County Employees’ Retirement Association,  Lexis

Disability Retirement—Burden of Proof—Appellate Review—Court of Appeal, affirming trial court, held that trial court did not err by denying appellant employee’s petition for writ of administrative mandate challenging retirement board’s denial of her application for service-connected disability retirement, after independently reviewing evidence and concluding that employee failed to carry her burden of proving she was permanently incapacitated from performing her job duties of sheriff’s department dispatcher due to stress and anxiety caused by her job, when Court of Appeal rejected employee’s assertion that...

Rojas (Jonathan) v. Orion Plastics Corporation,  Lexis

Workers’ Compensation Exclusivity Doctrine—Dual Employers—Court of Appeal, affirming trial court’s summary judgment in favor of defendant Orion Plastics Corporation (Orion) on plaintiff’s action for personal injuries, held that trial court did not err in determining Orion was plaintiff’s employer as matter of law at time of injury and that plaintiff was, therefore, statutorily barred based on workers’ compensation exclusivity doctrine from bringing tort action against Orion, when record revealed that Chartwell Staffing Agency (Chartwell)...

Sadeghi v. Yen-Chun Chen,  Lexis

Exceptions to Workers’ Compensation Exclusivity Doctrine—Sufficiency of Pleadings—Sham Pleading Doctrine—Court of Appeal, reversing trial court’s judgment of dismissal, held that trial court erroneously applied sham pleading doctrine to dismiss plaintiff’s second amended complaint (SAC) alleging causes of action for battery, invasion of privacy and intentional infliction of emotional distress against three of his coworkers who, at employer’s instruction, physically restrained plaintiff from leaving office building, forced him to ground and took work laptop from his backpack after plaintiff was fired from his job, when Court of Appeal concluded that...

Workers’ Compensation Exclusivity Doctrine—Tort Claims Against Coworkers—Battery, Intentional Infliction of Emotional Distress and Invasion of Privacy—WCAB, reversing trial court’s judgment of dismissal, held that trial court erred in sustaining demurrer to plaintiff’s causes of action for battery and intentional infliction of emotional distress against three of his coworkers who, at employer’s instruction, physically restrained plaintiff from leaving office building, forced him to ground and took laptop from his backpack after plaintiff was fired from his job, when Court of Appeal concluded that...

State of California ex rel. Anna Maria Christina Sills v. Bahar Gharib-Danesh,  Lexis

Insurance Fraud—Qui Tam Actions—Procedural Requirements—Court of Appeal, reversing trial court’s judgment of dismissal and ordering plaintiff’s action reinstated, held that plaintiff’s prosecution of qui tam action under False Claims Act (Government Code § 12650 et seq.) and Insurance Frauds Prevention Act (Insurance Code § 1871 et seq.), alleging that defendants medical providers engaged in medical insurance fraud which resulted in victimization of California workers’ compensation system, was stayed under Code of Civil Procedure § 583.340(b) for purposes of mandatory requirement to bring action to trial within five years pursuant to Code of Civil Procedure §§ 583.310 and 583.360(b), when Court of Appeal reasoned that...

Digests of WCAB Decisions Denied Judicial Review

County of Los Angeles v. W.C.A.B. (Sweetnam, Donald),  Lexis

Discovery—Closure—WCAB, denying reconsideration, affirmed WCJ’s finding that 4/7/2021 supplemental report of independent medical evaluator (IME) obtained by applicant after closure of discovery was admissible at trial, when applicant obtained report in response to Consultative Rating issued by Disability Evaluation Unit at defendant’s request and served on applicant after Mandatory Settlement Conference (MSC) and after close of discovery, and WCAB reasoned that under Labor Code...

Permanent Disability—Rating—Combining Loss of Motion and Loss of Strength—WCAB, denying reconsideration, affirmed WCJ’s finding that applicant who suffered cumulative injury to multiple body parts, including his shoulders, while employed as firefighter by County of Los Angeles from 4/23/83 through 9/1/2016, suffered 73 percent permanent disability based on impairment ratings of independent medical evaluator (IME), when WCAB rejected defendant’s assertion...

County of Sonoma/Health Services Department v. W.C.A.B. (Helper, Vincent),  Lexis

Permanent Disability—Apportionment—Vocational Evidence—WCAB, denying reconsideration, affirmed WCJ’s finding that applicant suffered 100 percent permanent disability as result of 7/22/2010 industrial injury to his right foot and ankle, based on opinions of applicant’s vocational expert, when vocational expert concluded that applicant was not amenable to vocational rehabilitation and was precluded from employment based on medical work restrictions necessitated by his industrial injury, and WCAB found that vocational expert’s opinion was substantial…

Other WCAB Decisions Denied Judicial Review

Bakhtjou (Bita) v. W.C.A.B.,  Lexis

Petitions for Removal—Trial Setting—WCAB, denying removal, affirmed WCJ’s order setting matter for trial on sole issue of whether there was improper ex parte communication between defendant and panel qualified medical evaluator, when WCAB found that applicant’s contention that further discovery was required on limited issue to be tried was not supported by legal authority, that applicant did not specify what discovery she was seeking on this issue, and that applicant did not meet standard for removal because she did not show that WCJ’s order resulted in substantial prejudice or irreparable harm or that reconsideration would not be adequate remedy if decision ultimately issued against her.

Crumb (Ealise) v. W.C.A.B.,  Lexis

Petitions for Writ of Review—Moot and Premature Petitions—Court of Appeal dismissed applicant’s Petition for Writ of Review challenging WCAB’s dismissal of Petition for Disqualification of WCJ, when WCJ previously assigned to applicant’s case was no longer presiding over matter, thereby rendering Petition for Writ of Review moot, and, additionally, WCAB did not issue final order or award, making applicant’s Petition premature under Labor Code §§ 5900 and 5901.

Gross (Deborah Jean) v. W.C.A.B.,  Lexis

Statute of Limitations—Cumulative Injury—WCAB, denying reconsideration, affirmed WCJ’s finding that applicant’s claim for industrial injury to her neck, back, ears, shoulder, left hip, psyche, and in form of hernia during period 6/24/2010 to 6/24/2011 was barred by statute of limitations, when applicant had history of industrial injuries and related medical treatment dating back to 1990, and was familiar with filing workers’ compensation claims over her lengthy employment with defendant, but inexplicably did not file Application for Adjudication of Claim for date of injury at issue until 1/13/2020, over eight years later after her last exposure.

Scaffold Solutions v. W.C.A.B. (Paredes, Angelo),  Lexis

Petitions for Reconsideration—WCAB’s Time to Act on Petition—WCAB, granting reconsideration, found that applicant’s Petition for Reconsideration challenging Arbitrator’s finding of no compensable injury was timely, although WCAB did not timely act upon Petition within requisite 60 days, when, through no fault of applicant, timely-filed Petition did not come to attention of WCAB until after expiration of statutory time period, and WCAB found that per Shipley v. W.C.A.B. (1992) 7 Cal. App. 4th 1104, 9 Cal. Rptr. 2d 345, 57 Cal. Comp. Cases 493, under these circumstances period for reviewing and acting upon Petition for Reconsideration began to run no earlier than WCAB’s actual notice of Petition.

Injury AOE/COE—Substantial Evidence—WCAB, granting reconsideration, rescinded Arbitrator’s finding that applicant did not sustain injury AOE/COE while employed as scaffolder on 4/15/2018, and found that applicant sustained compensable injury to his left forearm and left thumb, deferred issue of whether applicant suffered injury AOE/COE to his neck, left shoulder and back, and returned matter to Arbitrator for further development of record, based on reports of orthopedic qualified medical evaluator indicating that after examining applicant and reviewing medical record he believed applicant sustained industrial injury to left thumb and forearm, and that mechanism of injury was one that could have produced shoulder injury, with referred pain to neck.

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.

CM22-0074554,  Lexis

Post-Operative Temporary Housing—Applicant, 30 years old, suffered an industrial injury on 3/1/2021, and was undergoing treatment for a left tibia fracture. As of 5/23/2022, applicant reported doing well following removal of hardware from his tibia and left ankle surgery but was residing in a hotel due to an inability to use the stairs in his apartment. The post-operative treatment plan included, among other things, two months (60 days) of hotel accommodations from the time of surgery. UR non-certified the hotel request. The IMR reviewer noted that the MTUS and ACOEM are silent on the issue of post-operative hotel accommodations and also regarding inpatient rehabilitation facilities. Therefore, the IMR reviewer relied on... [LexisNexis Commentary: The IMR reviewer in this case did a good job of analogizing the much more costly in-patient rehabilitation facility recommended in the ODG, to authorize a hotel room with an elevator for applicant who was unable to climb stairs following surgery. Because the MTUS and ACOEM are silent on this issue, the reviewer utilized the most current version of the ODG, consistent with the medical search sequence in 8 Cal. Code Reg. § 9792.21.1(a)(2)(A), to find that using an in-patient rehabilitation facility after surgery was the recommendation most applicable to applicant’s medical condition, and the reviewer chose this recommendation as the one that was supported with the best available evidence.]

CM22-0083470,  Lexis

Durable Medical Equipment—Power Wheelchair Car Lift—Applicant, 42 years old, sustained an industrial injury on 1/30/2019, and was temporarily totally disabled. He was being treated for a spinal cord injury, paraplegia and traumatic brain injury which resulted in significant physical and cognitive impairment. Applicant, who experienced ongoing shoulder, hip, groin, knee, and spine pain, had received prior authorization for a power wheelchair. Motor testing revealed decreased strength in applicant’s upper and lower extremities. The treatment plan included a rehabilitation program five days per week, continuation of medication and consultations with multiple medical specialists. Applicant’s treating physician submitted an RFA dated 5/18/2022 for a power wheelchair car lift, which UR denied. The IMR reviewer noted... [LexisNexis Commentary: The IMR reviewer’s explanation for finding the DME medically necessary is succinct and helpful. Given applicant’s need to travel five or more days per week to rehabilitation and various medical appointments, defendant likely must provide the power lift and a modified vehicle, provide medical transportation with a company that uses this kind of lift, or provide access to an inpatient or outpatient program for applicant. The power lift is probably the least expensive of these options.]

CM22-0133526,  Lexis

Outpatient Transitional Living—Traumatic Brain Injuries—Applicant, 64 years old, suffered a traumatic brain injury (TBI) at work. He was subsequently diagnosed with post-concussion syndrome, which significantly affected his physical, emotional and cognitive functioning. On 9/26/2022 his physician submitted an RFA requesting authorization for 20 visits to an outpatient transitional living center day treatment program, which included up to six hours of per day of physical, occupational, and speech therapy, as well as neuropsychology services. UR denied the request, stating that applicant should exhaust all conservative measures prior to considering this type of program. The IMR reviewer overturned the UR non-certification based on... [LexisNexis Commentary: The IMR reviewer in this case clearly laid out why applicant’s participation in the outpatient program was consistent with the MTUS guidelines, given the extent of applicant’s functional and cognitive deficits. Ultimately, it makes sense for defendants to authorize this kind of care in order to reduce ADL deficits and facilitate an injured worker’s return to work, without the much greater cost of inpatient rehabilitation programs.]

CM22-0134517,  Lexis

Assisted Living Facility—Traumatic Brain Injury—Applicant, 64 years old, sustained work-related traumatic brain and spinal cord injuries on 9/12/2018, and lived on-and-off in assisted/transitional living facilities due to his impairments, which included spasticity, muscle spasms, chronic pain syndrome, and psychological factors. Applicant required a wheelchair for ambulation. In a 6/20/2022 discharge summary from a transitional living center, applicant reported continued weakness in the left lower extremity and feeling as though the leg would not support his weight with standing. Applicant was, at his own expense, living in a hotel with nursing assistance and paying out of pocket for medication. He was subsequently re-admitted to transitional living secondary to an unsafe living situation. On 9/26/2022, applicant’s treating physician requested authorization for continued assisted living for a period of three months due to applicant’s cognitive and physical deficits. UR denied the request. The IMR reviewer overturned... [LexisNexis Commentary: This IMR decision is well-reasoned and concisely explains why applicant needed assisted living at the time of the request. Note, under the rationale in Patterson v. The Oaks Farm (2014) 79 Cal. Comp. Cases 910 (Appeals Board significant panel decision), it would be unnecessary for the assisted living facility to submit a second RFA to continue such care absent a change in applicant’s circumstances, which defendant would have the burden of proving.]

CM22-0140346,  Lexis

Post-Operative Temporary Housing—Homelessness—Applicant, 72 years old, sustained an industrial injury on 5/24/2019 and was scheduled to undergo right shoulder surgery. The surgery was initially delayed for a number of reasons, including the fact that applicant was homeless and there was difficulty securing him post-operative temporary housing. Apparently, the provider received verbal authorization for temporary housing, but needed to determine a surgical date to obtain formal authorization from defendant. Applicant was eventually approved to undergo right shoulder arthroscopy, and his treating physician submitted an RFA dated 10/14/2022 for eight weeks of post-operative temporary housing. UR non-certified the request. The IMR reviewer noted that neither the MTUS guidelines nor the... [LexisNexis Commentary: This IMR decision addresses an issue that does not frequently arise—whether to provide temporary housing to a homeless applicant post-operatively. Neither the MTUS guidelines nor ODG address the issue, so the IMR reviewer relied on a peer-reviewed study consistent with the medical evidence search sequence under 8 Cal. Code Reg. § 9792.21.1(a)(2)(C), to find that temporary housing was medically necessary to facilitate applicant’s successful recuperation from shoulder surgery. This approach may also be beneficial to defendants who wish to avoid failed surgeries that may be compensable without apportionment per Hikida v. W.C.A.B. (2017) 12 Cal. App. 5th 1249, 219 Cal. Rptr. 3d 654, 82 Cal. Comp. Cases 679.]