California Compensation Cases November 2022

CALIFORNIA COMPENSATION CASES

Vol. 87, No. 11 November 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 Page

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Appellate Court Compensation Case

Zenith Insurance Company v. W.C.A.B. (Alex, Abraham)  Lexis

Injury AOE/COE—Deviations from Employment—Injury from Unauthorized Activities—Court of Appeal, denying defendant’s petition for writ of review, affirmed WCAB’s finding that applicant, while employed as security guard at Greyhound Bus Lines terminal on 8/24/2017, suffered injury AOE/COE to his head when he fell outside bus terminal while pursuing individual who was disrupting passengers inside terminal, and court rejected defendant’s assertion that applicant’s injury was not compensable because his conduct constituted unauthorized departure from course of his employment in that he violated employer’s express instructions not to leave his post or chase anyone, when court distinguished between injuries sustained…

Appellate Court Case Not Originating With Appeals Board

Brown v. Beach House Design & Development,  Lexis

Peculiar Risk Doctrine/Premises Liability—Application of Privette Doctrine—Exceptions—Court of Appeal, reversing trial court’s grant of summary judgment, held that defendant general contractor who hired subcontractor to perform carpentry work on its construction site was not entitled, based on doctrine of hirer non-liability in Privette v. Superior Court (1993) 5 Cal. 4th 689, 21 Cal. Rptr. 2d 72, 854 P.2d 721, 58 Cal. Comp. Cases 420, to summary judgment in negligence action filed by subcontractor’s employee (plaintiff) for injuries he incurred when he fell from allegedly defective scaffold erected on construction site, when Court of Appeal found that while Privette doctrine shields general contractor…

Federal Circuit Court Opinion of Related Interest

Mobilize the Message, LLC v. Bonta,  Lexis

Employment Classification—ABC Test and Exemptions—First Amendment Rights—U.S. Court of Appeals, Ninth Circuit, in split opinion, affirmed district court’s denial of plaintiffs’ motion for preliminary injunction which sought to restrain California Attorney General from applying “ABC test” adopted in Dynamex Operations West, Inc. v. Superior Court (2018) 4 Cal. 5th 903, 416 P.3d 1, 232 Cal. Rptr. 3d 1, 83 Cal. Comp. Cases 817, and codified in Labor Code § 2775(b)(1) through enactment of AB5, to classify political organizations’ (collectively, plaintiffs) doorknockers and signature gatherers as either employees or independent contractors, when Court of Appeals majority rejected plaintiffs’ assertion that...

Digests of WCAB Decision Denied Judicial Review

California Highway Patrol v. W.C.A.B. (Santiago, Thomas),  Lexis

Permanent Disability—Apportionment to Prior Awards—Anti-Attribution Clause—WCAB, denying reconsideration and affirming WCJ’s decision, held that applicant highway patrol officer who suffered presumptively compensable heart injury during period 9/17/97 to 9/24/2018 was entitled to award of 55 percent permanent disability, and that defendant was not entitled to apportionment of applicant’s permanent disability under Labor Code § 4664(b) based on prior permanent disability award, when WCAB found that although defendant established...

Other WCAB Decisions Denied Judicial Review

XL Insurance America, Inc. v. W.C.A.B. (Behboudi, Behnam),  Lexis

Medical Reports—Substantial Evidence—WCAB, denying reconsideration, affirmed WCJ’s finding that applicant, while employed as pharmacist during cumulative period ending on 2/3/2018, suffered industrial injury in form of stroke, and found that WCJ properly relied on medical reporting of internal medicine qualified medical evaluator (QME), Jonathan Ellis, M.D., rather than QME in neurology, David Scharf, M.D., when WCAB found no reason to reject WCJ’s determination that Dr. Ellis’ opinions were more persuasive than those of...

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.

Jackson (Nichole) v. County of Los Angeles,  Lexis

Injury AOE/COE—COVID-19—Burden of Proof—WCAB, granting reconsideration, rescinded decision in which WCJ found that applicant, while employed as probation officer on 3/11/2020, sustained industrial injury in form of COVID-19, based on presumption of industrial causation in Labor Code § 3212.86 and on opinion of internal medicine qualified medical evaluator (QME), and WCAB returned matter to trial level for further development of record on issue of industrial causation, when WCAB found that presumption only covers cases of COVID-19 for employees who worked in person…

Markowski (Craig) v. Cedars-Sinai Medical Center,  Lexis

Subsequent Injuries Benefits Trust Fund—Eligibility Requirements—WCAB, granting reconsideration, rescinded WCJ’s finding that applicant met requirements under Labor Code § 4751 for Subsequent Injuries Benefits Trust Fund (SIBTF) eligibility, and returned matter to trial level for further development of record and reanalysis of whether applicant had labor-disabling permanent disability at time of his subsequent injury on 2/20/2008, when WCJ’s decision that applicant was entitled to SIBTF benefits was apparently based on his finding that applicant’s permanent disability was apportionable to non-industrial factors, but WCAB reasoned that finding of apportionment under Labor Code § 4663....

Muniz Villalpando (Fernando) v. Doherty Brothers,  Lexis

Settlements—Compromise and Release Agreements—Administration of Medicare Set-Aside—WCAB, granting reconsideration, rescinded WCJ’s order denying applicant laborer’s request to self-administer Medicare Set-Aside (MSA) established as part of 2011 Compromise & Release agreement settling applicant’s claim for 2002 industrial back/neck injury, and WCAB substituted new order granting applicant’s request to take over administration of MSA from professional administrator, despite WCJ’s findings that WCAB had no jurisdiction under Labor Code § 5804 to change MSA’s administrator more than five years after date of injury absent showing of fraud or mistake, and that changing administrator was not in applicant’s best interests, when WCAB concluded that although award...

Stamper (Andrew) v. Bay Area Air Quality Management District,  Lexis

Penalties—Delay in Payment of Employment Development Department Lien—WCAB, denying reconsideration, affirmed WCJ’s award of $10,000.00 penalty under Labor Code § 5814 payable to applicant, based on defendant’s unreasonably delayed payment to Employment Development Department (EDD) following its agreement to settle EDD lien for less than lien amount, when applicant conditioned Compromise and Release agreement in case-in-chief on defendant’s payment of EDD lien so applicant could resume collection of EDD benefits, and expressly sought enforcement of defendant’s agreement to pay EDD lien, yet defendant waited for more than three months to make payment, and WCAB found that WCJ...

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.

CM21-0052294,  Lexis

Cannabinoids—Marinol—Chronic Pain—Applicant, 59 years old, sustained an industrial injury on 12/4/92, and was being treated for multilevel degenerative disc disease and chronic pain, including back and leg pain rated at 6/10. His work status was unclear. There was documentation that applicant had used medical cannabis to treat his pain “for years.” The treating physician requested authorization for Marinol 10mg #90, which was denied by UR. The IMR reviewer upheld the UR denial based on the MTUS 2017 guidelines for chronic pain and the non-MTUS ODG pain chapter addressing cannabinoids. The MTUS states that evaluation of the patient before starting treatment should include documentation regarding objective physical findings and current functional abilities both at home and at work, in addition to a clear statement regarding what objective or functional goals are to be achieved with respect to ADLs and IADLs. Here, the IMR reviewer noted... [LexisNexis Commentary: The treatment request in this IMR is for Marinol, which is a synthetic form of THC approved by the FDA, unlike marijuana which is still a federally prohibited source of THC. The IMR reviewer’s decision to uphold the UR denial of Marinol is a helpful reminder that insufficient documentation could result in denial of a requested treatment. If applicant’s medical provider had adequately documented applicant’s functional limitations and the treatment goals with respect to his ADLs and IADLs, the treatment request may have been approved.]

CM22-0093749,  Lexis

Sedatives/Sleeping Aids—Lunesta—Insomnia—Applicant, 67 years old, suffered an industrial injury on 1/23/2015, and was being treated for chronic pain and psychophysiological insomnia. The treating physician requested authorization for Lunesta 2mg #10. The request was denied by UR based on the non-MTUS ODG guidelines, which allow for short-term use of sedatives such as eszopiclone (Lunesta) to treat insomnia. In upholding the UR denial, the IMR reviewer also relied on the ODG guidelines... [LexisNexis Commentary: The IMR reviewer in this case mistakenly determined that the MTUS/ACOEM was silent regarding the use of sedatives such as Lunesta to treat insomnia, when in fact the MTUS incorporates the 2/13/2020 ACOEM’s guidelines on Depressive Disorders, which states at page 24: “If treatment of insomnia beyond CBT and anti-depressants is needed, selection of a non-benzodiazepine medication is advisable (e.g., agomelatine, eszopiclone, nefazodone, zolpidem).” Despite this mistake, the IMR reviewer correctly pointed out that CBT is an important part of the treatment plan, and ultimately found that without documentation of CBT the request for Lunesta was not supported.]

CM22-0097816,  Lexis

Nonsteroidal Anti-Inflammatory Drugs (NSAIDs)—Meloxicam—Chronic Pain—Applicant, 53 years old, suffered an industrial injury on 2/7/2020 and was being treated for left shoulder, lower back, and left knee pain, with tingling at the hip/upper buttock. Symptoms increased with physical activities such as walking. Applicant’s condition had reached maximum medical improvement, but her work status was unclear. Her treating physician requested approval for Meloxicam 15mg #30, which was denied by UR. Citing the MTUS 2017 guidelines for chronic pain, the IMR reviewer found the request for Meloxicam medically necessary and overturned... [LexisNexis Commentary: This IMR decision is useful in that the IMR reviewer provides a straightforward analysis of why the requested treatment was consistent with the MTUS. It is also worth noting that Meloxicam is listed in the DWC formulary as “exempt,” meaning that it may be prescribed/dispensed without seeking authorization through prospective review if in accordance with MTUS. See https://www.dir.ca.gov/dwc/mtus/MTUS-Documents/Drug-List/November-2022/DRUG-LIST-V10-Addendum-One.pdf (page 19).]

CM22-0106731,  Lexis

Pulmonary Rehabilitation Therapy—COVID-19—Applicant, 46 years old, suffered an industrial injury on 7/17/2020 in the form of COVID-19. She underwent treatment for mild persistent asthma with acute exacerbation, pneumonia, shortness of breath, and post-COVID-19 syndrome. Applicant’s current work status was unclear, but as of 12/9/2021 she was working full duty. Previous treatment included medication, physical therapy, and pulmonary rehabilitation respiratory therapy. Applicant reported that since stopping treatment, her respiratory status has worsened with respect to wheezing and shortness of breath, fatigue has continued, and her exercise capacity was limited. On 8/9/2022, applicant’s treating physician requested approval for 36 sessions of pulmonary rehabilitation therapy in the forms of physical therapy to include neuromuscular re-education, dynamic activities to improve functional performance, manipulation of the chest wall, and therapeutic procedures to increase strength or endurance of respiratory muscles and improve respiratory function. UR approved six sessions of pulmonary rehabilitation therapy but denied the remaining 30 sessions. The IMR reviewer upheld the UR determination based on the MTUS Coronavirus (COVID-19) 2021 guidelines... [LexisNexis Commentary: This IMR provides much needed information about the current treatment protocols for COVID-19 and post-COVID syndrome. It is noteworthy that the MTUS guidelines make no specific recommendations regarding the duration or number of pulmonary therapy sessions, yet the IMR reviewer found that the request was “well above a reasonable duration of standard therapy.” Regarding termination of pulmonary therapy, the ACOEM guidelines say only that it should end upon “[c]ompletion of a treatment course, noncompliance,” or “reaching a plateau in recovery” (ACOEM Coronavirus (COVID-19) guidelines, p. 80). Thus, it appears the IMR reviewer went beyond MTUS/ACOEM criteria by determining that the number of pulmonary sessions requested was excessive, without evidentiary basis.]