California Compensation Cases May 2022

CALIFORNIA COMPENSATION CASES

Vol. 87, No. 5 May 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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LexisNexis Online Subscribers: You can link to your account on Lexis+ to read the complete headnotes and court decisions, en banc decisions, writ denied summaries, panel decisions and IMR decisions.

NOTICE OF CORRECTIONS

It has come to our attention that the headnotes for these two writ denied cases were reported incorrectly in the February 2022 issue of Cal. Comp. Cases. The correct headnotes are set forth below. The online versions of the cases have already been corrected. The annual hardbound volume next year will contain the corrected headnotes. We apologize for any inconvenience this has caused our readers.

Carey Fanning v. W.C.A.B., 87 Cal. Comp. Cases 91 

Evidence—Medical Evidence—WCAB’s Duty to Develop Record—WCAB, denying removal, affirmed WCJ’s decision un-submitting case and ordering further development of record through appointment of regular physician, when reports of panel qualified medical evaluator (PQME) submitted at trial did not constitute substantial evidence on issue of apportionment of applicant’s permanent disability to nonindustrial factors or to other industrial injuries, and since PQME could not determine if applicant’s three industrial injuries were inextricably intertwined or apportion permanent disability between them after providing six medical reports and deposition testimony, WCAB believed new physician was necessary.

Deshay David Ford v. W.C.A.B., 87 Cal. Comp. Cases 92 

WCAB Procedure—Venue—WCAB denied applicant’s Petition for Change of Venue from Ventura County to Los Angeles County, when applicant did not establish good cause to support change of venue pursuant to Labor Code § 5501.6, as applicant lives in Oxnard, which is located in Ventura County, injury occurred in Ventura County at defendant’s place of business, and applicant’s belief that he could not get fair trial in Ventura County was not ground for change of venue.

Appellate Court Cases Not Originating With Appeals Board

Aveau (Tiffany) v. 23 Bottles of Beer, LLC,   Lexis

Wrongful Termination—Violation of Public Policy—Statutes of Limitation—Court of Appeal, reversing trial court’s judgment, held that plaintiff’s complaint alleged sufficient essential facts apprising defendant of plaintiff’s cause of action for wrongful termination in violation of public policy against disability discrimination as embodied in Fair Employment and Housing Act (FEHA), Government Code § 12900 et seq., that complaint was timely filed, and that defendant’s reliance on Shoemaker v. Myers (1990) 52 Cal. 3d 1, 801 P.2d 1054, 276 Cal. Rptr. 303, 55 Cal. Comp. Cases 494, was misplaced, when Court of Appeal found that (1) after defendant terminated...

Feltham v. Universal Protection Service, LP,   Lexis

Employer’s Vicarious Liability—Going and Coming Rule—Court of Appeal, affirming trial court’s grant of summary judgment in defendant’s favor, held that defendant was not vicariously liable for serious injuries plaintiff sustained when defendant’s employee was driving home from her job as hospital security guard and crossed into oncoming traffic, colliding with plaintiff’s car, when Court of Appeal found that “going and coming” rule applied in this case…

People, The v. Czirban,   Lexis

Workers’ Compensation Insurance Fraud—Restitution Orders—Appellate Court Jurisdiction—Court of Appeal, remanding matter to trial court with directions, reversed trial court’s award of interest but otherwise affirmed court’s victim restitution order imposed as condition of defendant’s probation pursuant to Penal Code § 1203.1 following his conviction for multiple business-related crimes, including failure to secure payment of workers’ compensation insurance, when Court of Appeal found that (1) although it had fundamental jurisdiction to review…

Federal Circuit Court Opinion of Related Interest

Kuciemba v. Victory Woodworks, Inc.,   Lexis

Workers’ Compensation Exclusivity—Derivative Injury Doctrine—COVID-19—U.S. Court of Appeals, Ninth Circuit, staying all further proceedings in this case pending final action by California Supreme Court, certified questions for determination by California Supreme Court pursuant to California Rules of Court, Rule 8.548(b)(2), regarding whether California’s derivative injury doctrine bars spouse’s claim against employer if employee contracts COVID-19 at workplace and brings virus home to spouse, and whether, under California law, employer owes duty to households of its employees to exercise ordinary care to prevent spread of COVID-19, when Court of Appeals believed certification was warranted...

Digests of WCAB Decisions Denied Judicial Review

County of Fresno v. W.C.A.B. (Brar, Binu),   Lexis

Medical-Legal Procedure—Qualified Medical Evaluator Panel Selection Process—WCAB, affirming WCJ’s decision, held that applicant’s 7/9/ 2020 letter to defendant requesting comprehensive medical-legal evaluation to determine compensability of her claim for industrial injury through 7/24/2020 was sufficient to trigger qualified medical evaluator panel selection process in Labor Code §§ 4060 and 4062.2, and that, therefore, panel in pain medicine issued by Medical Unit at applicant’s request was valid, when applicant waited 10 days plus five days for mailing from date of 7/9/2020 letter before requesting qualified medical evaluator panel from Medical Unit on 7/24/2020, and WCAB found that…

Tikhonoff (Tracey) v. W.C.A.B.,   Lexis

Medical Treatment—Utilization Review/Independent Medical Review—WCAB, denying reconsideration, affirmed WCJ’s findings that defendant’s utilization review (UR) was timely, depriving WCAB of jurisdiction to act on request for authorization for home health care services, and that there was no basis under Labor Code § 4610.6(h) to disturb independent medical review (IMR) determination upholding UR, and while WCAB acknowledged that UR and IMR processes do not abrogate claims administrator’s duty to investigate whether benefits are due, WCAB found that medical/vocational reports…

Other WCAB Decisions Denied Judicial Review

Ayala (Jose Luis) v. W.C.A.B.,  Lexis

Permanent Disability—Substantial Evidence—WCAB, denying reconsideration, affirmed WCJ’s finding that applicant cabinet maker suffered 65 percent permanent disability as a result of injuries to his spine, right shoulder, wrists, and psyche on 11/12/98, and 23 percent permanent disability from cumulative injury to his spine, right shoulder, and psyche ending on 9/12/2000, and WCAB found that WCJ did not err…

Ralphs Grocery Company v. W.C.A.B. (Nitta, Dexter),  Lexis

Permanent Total Disability—Substantial Medical Evidence—WCAB, denying reconsideration and affirming WCJ’s decision, held that WCJ did not err by relying on reporting of rheumatologist to find that applicant’s fibromyalgia stemming from industrial injuries incurred while he was employed as produce manager between 1991 and 2002 resulted in permanent total disability and inability to compete in open labor market, when WCAB found that WCJ, as trier of fact…

Permanent Disability Indemnity Rate—Court of Appeal granted defendant’s Petition for Writ of Review with respect to permanent disability indemnity rate only, and remanded matter to WCAB to issue amended award at statutorily prescribed permanent total disability indemnity rate of $490.00 per week, rather than $507.16 per week.

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.

Gallegos (Elizabeth) v. National Mentor Holdings,  Lexis

Workers’ Compensation Judges—Automatic Reassignment—Notice—WCAB, granting removal, rescinded WCJ’s order denying defendant’s Petition for Automatic Reassignment of WCJ presiding at 9/9/2021 expedited hearing on basis that defendant waived right to seek reassignment by failing to do so at or prior to 3/25/2021 expedited hearing, and, interpreting 8 Cal. Code Reg. § 10788 as it applied to specific facts in this case, WCAB concluded that no provisions in 8 Cal. Code Reg. § 10788 were triggered to require defendant to move for automatic reassignment at or prior to 3/25/2021 expedited hearing in order to preserve right to seek reassignment of 9/9/2021 expedited hearing, where WCAB found that defendant…

Lewinstein (Mina) v. ABRA Management,  Lexis

Medical-Legal Procedure—Ex Parte Communications—WCAB, granting removal, rescinded WCJ’s order for replacement qualified medical evaluator (QME) panel in psychiatry, and concluded that QME’s post-examination telephone calls with applicant did not constitute impermissible ex parte communications as found by WCJ, and, therefore, applicant was not entitled to replacement QME in psychiatry per her request, when WCAB reasoned that although ex parte communication…

Mora (Ernesto) v. Benihana National Corporation,  Lexis

Temporary Disability—Termination for Cause—WCAB, granting reconsideration, amended WCJ’s decision to reflect that applicant who sustained industrial injury to his wrists in form of ganglion cysts and alleged he also sustained injury to his left knee while working as cook/chef during period 4/1/2012 through 12/5/2019, suffered period of temporary total disability from 1/15/2020 through 9/14/2021, based on medical evidence, and WCAB found that applicant’s…

Suarez (Juan) v. Haley Bros/TM Cobb Company,  Lexis

California Insurance Guarantee Association—Other Insurance—Reimbursement and Contribution—WCAB, granting reconsideration, rescinded WCJs finding that Liberty Mutual Insurance Company (Liberty Mutual) was “other insurance” under Insurance Code § 1063.1(c)(9) and was required to undertake administration of applicant’s medical care in connection with 7/27/86 and 9/8/93 industrial injuries, and to resolve reimbursement and contribution issues with California Insurance Guarantee Association (CIGA), which had assumed liability for insurer Unicare’s covered claims after Unicare became insolvent, and WCAB substituted new decision…

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.

CM22-0007694,  Lexis

Surgery—Carpal Tunnel Release—Applicant, 64 years old, suffered an industrial injury on 5/6/2010 and sought authorization for right endoscopic carpal tunnel release. UR denied the surgical procedure on the basis that applicant did not obtain a cortisone injection prior to considering surgery, as recommended by the applicable guidelines. The IMR reviewer upheld the UR denial, citing the 2019 MTUS guidelines applicable to carpal tunnel syndrome. The guidelines recommend… [LexisNexis Commentary: This IMR is a helpful reminder to applicant’s attorneys and doctors to ensure there is proper documentation provided to UR regarding the trial and failure of conservative care prior to requesting a surgical procedure.]

CM22-0012144,  Lexis

Arthroscopic Shoulder Surgery—Mumford Procedure—Retrospective Utilization Review—Applicant, 64 years old, suffered an industrial injury to his left shoulder on 4/19/2019. He reported constant rotator cuff pain in both shoulders between 2–10/10, which was worse with activity, had numbness and tingling, and was unable to raise his arms above shoulder level. Applicant’s treating physician requested authorization for left shoulder arthroscopic surgery with subacromial decompression, rotator cuff repair, possible Mumford procedure, possible labral repair, and possible bicep tenotomy/tenodesis. UR authorized the decompression and rotator cuff repair but... [LexisNexis Commentary: This IMR is a helpful reminder that surgical providers can seek retrospective UR if supplemental procedures appear necessary on an intraoperative basis, even if they do not appear to be necessary based on a preoperative MRI. The IMR does not preauthorize the supplemental procedures, but it does not close the door on them either.]

CM22-0012978,  Lexis

Electrical Stimulation—H-Wave Device—Lumbar Spine Injury—Applicant, 37 years old, suffered an industrial injury on 4/17/2021 and underwent treatment for a lumbar spine strain. An MRI showed bilateral pars defect at L5 and grade 1–2 spondylolisthesis at L5-S1, with moderately severe bilateral foraminal stenosis. Applicant used an H-Wave device for a 22-day trial, during which time his pain decreased by 40–50 percent, he had increased function and activity, could perform housework, and experienced greater symptom relief than he did with medications, TENS unit and physical therapy. Applicant’s treating physician subsequently requested approval for rental/purchase of an H-Wave for 10-months of use. UR non-certified the request. Citing the 2020 MTUS guidelines for the treatment of low back disorders, and the non-MTUS ODG addressing use of an H-Wave for pain relief, the IMR reviewer overturned the UR decision… [LexisNexis Commentary: This IMR determination is interesting in that it construes the MTUS provisions of “no recommendation” in favor of, and not against, the extension of benefits. The reviewer appropriately turned to the ODG for guidance, and thoughtfully indicated how all the criteria were met to justify use of the H-Wave.]

CM22-0021589,  Lexis

Transcranial Magnetic Stimulation—Treatment-Resistant Major Depressive Disorder—Applicant, 56 years old, suffered an industrial injury on 7/19/2019, and underwent treatment for major recurrent depressive disorder and post-traumatic stress disorder. He was prescribed multiple different anti-depressants and participated in psychotherapy without benefit. Applicant reported continued feelings of depression, anxiety, crying spells, poor appetite, flashbacks, and difficulty sleeping. Testing placed his condition in the severe range for both depression and anxiety, with a high degree of hopelessness and psychomotor slowing. Given the persistence of Applicant’s severe depression, his treating physician requested approval for 30 initial sessions and six taper-off sessions of transcranial magnetic stimulation (TMS), a non-invasive brain stimulation treatment. UR denied the request. The IMR reviewer overturned the UR denial… [LexisNexis Commentary: This IMR, approving transcranial magnetic stimulation for applicant’s treatment-resistant severe depression, addresses medical treatment with which the legal community may be unfamiliar, and provides guidance regarding the MTUS criteria that must be met for approval of the treatment.]