California Compensation Cases March 2024

CALIFORNIA COMPENSATION CASES

Vol. 89, No. 3 March 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

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CONTENTS OF THIS ISSUE

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JUST CLICK ON THE CASE NAMES BELOW…

Appellate Court Case Not Originating with Appeals Board

Riaz (Samreen) v. Hoffman (5th—F085321)

Workers’ Compensation Exclusivity—Civil Liability of Medical Providers—Court of Appeal affirmed trial court’s judgment sustaining defendant’s demurrer to plaintiff’s complaint alleging negligence and other causes of action against defendant qualified medical evaluator (QME) who evaluated plaintiff in connection with her workers’ compensation claim for psychiatric injury, and issued 71-page medical report concluding that plaintiff’s mental health issues were attributable to “chronic psychotic illness,” and, although plaintiff asserted that defendant’s medical report contained various inaccuracies and fabrications regarding her mental condition, ultimately resulting in WCJ’s finding that there was no industrial psychiatric injury, Court of Appeal held that plaintiff’s civil claims...

Digests of WCAB Decisions Denied Judicial Review

Garcia (Efrain) v. W.C.A.B. (5th—F08570), Ouk (Sam) v. W.C.A.B. (5th—F085713); Castaneda (Victor) v. W.C.A.B. (5th—F085717)

Employment Relationships—County Inmates—WCAB, after granting reconsideration, affirmed WCJ’s finding that applicants were employees of County of Fresno (County) while rendering services as inmate workers at...

Hartford Casualty Insurance Company v. W.C.A.B. (Mauser, Christina) (4th—G063403)

Third-Party Actions—Employer’s Entitlement to Credit—Penalties—WCAB, denying reconsideration, affirmed WCJ’s findings that defendant improperly terminated payment of death benefits awarded to applicants...

Stipulations—Identity of Employer—WCAB, denying reconsideration, affirmed WCJ’s order compelling deposition of Vanessa Bryant, having found that Mrs. Bryant was employer representative with potential knowledge regarding...

Parra (Jose) v. W.C.A.B. (2nd—B331311)

Deposition Attorney’s Fees—Delayed Payment—Penalties and Sanctions—WCAB, granting reconsideration, rescinded decision in which WCJ found that applicant’s attorneys were barred by doctrine of laches...

Ventura Post Acute v. W.C.A.B. (Vigil-Hernandez, Roberta) (2nd—B333571)

Permanent Disability—Rating—Rebuttal of Scheduled Rating—WCAB, amending WCJ’s decision in split panel opinion, held that reporting of applicant’s vocational expert was sufficient,...

Other WCAB Decisions Denied Judicial Review

Perry (Kevin) v. W.C.A.B. (4th—D083368)

Petitions for Writ of Review—Vexatious Litigants—Court of Appeal denied pro per applicant’s application for permission to file writ petition, per Code of Civil Procedure § 391.7(b), and dismissed petition for writ of mandate/review…

Pleasants (Delina) v. W.C.A.B. (2nd—B330312)

Petitions for Writ of Review—Annulment of WCAB’s Decision—Court of Appeal annulled WCAB’s 6/6/2023 Opinion and Order Denying Petition for Reconsideration and remanded matter to WCAB for further proceedings, when WCAB confessed error after applicant filed petition for writ of review and requested that matter be returned.

Torres Zamora (Juvenal) v. W.C.A.B. (1st—A169128)

Medical Evidence—Substantial Evidence—Interpreting Services—WCAB, denying reconsideration, affirmed WCJ’s findings that applicant did not sustain industrial injury to his right foot or knees and that injuries applicant did sustain resulted in 42 percent permanent disability, and WCAB found that WCJ did not err in relying on medical opinion of physical medicine and rehabilitation qualified medical evaluator (QME), without further developing medical record, when WCAB rejected applicant’s assertion that...

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.

Cain (Nannette) v. California Department of Forestry and Fire Protection (WCAB—ADJ16642926, ADJ16642919, ADJ16642843, ADJ10791190)

Temporary Disability—Amount of Benefit—Differential with Industrial Disability Leave—WCAB, denying reconsideration, affirmed WCJ’s decision that WCAB did not have authority to pay applicant differential...

Ferioli (Nikolas) v. NASSCO (WCAB—ADJ10385820)

Medical-Legal Procedure—Comprehensive Medical-Legal Reports—Admissibility—WCAB, granting reconsideration, rescinded decision in which WCJ found that supplemental report of toxicologist...

Gaska (David, Dec’d) v. Searles Valley Minerals (WCAB—ADJ14258730)

Injury AOE/COE—Substantial Medical Evidence—COVID-19—WCAB, granting reconsideration, rescinded decision in which WCJ found that decedent sustained injury in form of COVID-19 while employed by defendant as buyer...

Hunter (Daniel) v. Louisiana Workers’ Compensation Corporation (WCAB—ADJ9078233)

Insurance Coverage—Construction of Policy—WCAB, denying reconsideration, affirmed arbitrator’s decision that insurance policy issued by Louisiana Workers’ Compensation Corporation (LWCC) did not have clear and legal exclusion of coverage...

Khammash (Hoda) v. State of California Department of Transportation (WCAB—ADJ7358979, ADJ7183934, ADJ7358844, ADJ7358858)

Permanent Disability—Apportionment—Benson Exception—WCAB, granting reconsideration, amended WCJ’s decision to clarify that applicant senior engineer was entitled to combined award...

Permanent Disability—Rating—Combining Multiple Disabilities—WCAB, after granting reconsideration, affirmed WCJ’s award of permanent total disability to applicant senior engineer...

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.

CM23-0119873 (10-3-2023)

Brain Injury Program—Initial Evaluation—Applicant, 54 years old, sustained a traumatic brain injury on 7/26/2022, resulting in chronic post-traumatic headaches, post-concussion syndrome, cervicalgia, and right shoulder pain... [LexisNexis Commentary: In this case, the request for authorization was for an initial evaluation, not enrollment in the brain injury program itself. This IMR reviewer correctly concluded that there is more than enough evidence of “[s]ufficient residual symptoms and/or signs of post-TBI to necessitate ongoing treatment” (MTUS/ACOEM Traumatic Bain Injury Guideline, 11/15/2017, p. 208) to look more closely at the appropriateness of a brain injury program. Since the guidelines state that the brain injury programs must be tailored to the particular patient, this non-invasive initial evaluation appears to be justified.]

CM23-0134082 (11-10-2023)

Weight Management Program—COVID-19 Syndrome—Applicant, 56 years old, contracted COVID-19 at her workplace in 2020, and developed post-COVID-19 syndrome. As of 10/2/2023, applicant was temporarily totally disabled... [LexisNexis Commentary: This IMR opinion is interesting because even though the clinical case summary does not indicate a diagnosis of fibromyalgia, the IMR reviewer applies the MTUS/ACOEM chronic pain guideline’s recommendation of weight loss for that condition (at page 224) “by analogy.” This seems to be an appropriate use of MTUS/ACOEM, which are guidelines, and it seems unlikely that any reasonable analogy would be challenged as “in excess of the administrative director’s powers” or “a plainly erroneous express or implied finding of fact” under Labor Code § 4610.6(h)(1) and (5). Note, the IMR decision mistakenly indicates that the UR cited no MTUS guidelines in support of its non-certification, and that “non-MTUS, ACOEM” was used instead. However, the ACOEM are in fact MTUS, as the MTUS guidelines incorporate the ACOEM.]

CM23-0138991 (11-13-2023)

Work Conditioning Program—Chronic Pain—Applicant, 37 years old, suffered an industrial injury on 2/6/2021, and underwent arthroscopic left knee surgery in December 2022. On 8/14/2023, applicant returned to full duty with accommodations, but continued to experience left knee pain. Applicant’s doctor requested... [LexisNexis Commentary: This decision provides a useful example of the application of the criteria that must be satisfied to support authorization of a work conditioning program. Although the IMR reviewer did not apply all eight of the criteria set forth in the MTUS/ACOEM chronic pain guidelines, p. 337, the reviewer explained why work conditioning was reasonable and necessary in applicant’s case. Further, the ACOEM does not expressly state that all the criteria must be met to support the medical necessity of work conditioning.]

CM23-0145097 (11-27-2023)

Surgical Procedures—Lumbar Facet Joint Radiofrequency Ablation—Applicant, 69 years old, suffered an industrial injury on 10/3/97. According to the medical record, applicant was diagnosed with lumbar spondylosis and... [LexisNexis Commentary: The MTUS/ACOEM guidelines indicate that radiofrequency neurotomy or ablation is generally not recommended for chronic low back pain or other lumbar spinal conditions. However, this case is a useful reminder that there are exceptions to the general guideline recommendations and room for discretion in applying the guidelines. The ablation requested by applicant’s doctor is a relatively simple procedure, with minimal recovery time and few side effects. There is little downside in approving the procedure, especially given its potential to provide applicant with years of pain relief.]

CM23-0146608 (12-1-2023)

Surgical Procedures—Right Knee Arthroplasty—Applicant, 53 years old, suffered an industrial injury on 6/17/2022, resulting in a fractured fibula. A 9/26/2023 MRI revealed severe degenerative changes involving applicant’s right knee... [LexisNexis Commentary: Applicant in this case clearly appears to have met the MTUS/ACOEM criteria to support right knee arthroplasty, and the IMR reviewer was correct to find surgical intervention medically necessary. It would be interesting to know how the UR reviewer distinguished applicant’s case history in order to justify non-certification. Of some note, the IMR decision does not address applicant’s limitations in ADLs, although given the apparent severity of his condition, some limitations can be presumed.]