California Compensation Cases November 2024

CALIFORNIA COMPENSATION CASES

Vol. 89, No. 11 November 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

CONTENTS OF THIS ISSUE

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Appeals Board En Banc Decision

Hoddinott (Steve) v. Bravo Security Services, Inc.

Attorney’s Fees—Division of Fees—Notice of Status Conference in Consolidated Proceedings—WCAB, en banc, after consolidating five cases involving dispute over division of attorney’s fees and ordering parties to meet and confer...

Other WCAB Decisions Denied Judicial Review

Farnham (Bryant) v. W.C.A.B.

Trial Setting Order—Employment—WCAB’s Duty to Develop Record—WCAB, denying removal, affirmed WCJ’s order setting applicant’s case for trial on issue of employment and for determination of whether further discovery is necessary on that issue, when WCAB concurred with WCJ that there was no risk of irreparable harm...

Ortega (Maria Alicia) v. W.C.A.B.

Medical Evidence—WCAB’s Duty to Develop Record—WCAB, denying reconsideration in split panel opinion, affirmed WCJ’s decision that applicant did not suffer industrially-related hematological condition or psychiatric injury while employed as housekeeper during period ending 7/8/2019, based on opinion of internal medicine qualified medical evaluator (QME) that applicant’s hematological condition (Immune Thrombocytopenia) was nonindustrial…

Sebastian (Christopher) v. W.C.A.B.

Petitions for Reconsideration/Removal—Non-Final Orders—WCAB dismissed applicant’s petition to extent applicant sought reconsideration, as WCJ’s order continuing status conference to 3/5/2024 did not determine threshold...

Stephens (Carter) v. W.C.A.B.

Petitions for Reconsideration and Disqualification of WCJ—Untimely Petitions—WCAB dismissed applicant’s Petition for Reconsideration as untimely under Labor Code § 5903, as it was not filed within 25 days of service of WCJ’s decision...

Warner (Kenyon) v. W.C.A.B.

Injury AOE/COE—Substantial Evidence—WCAB, denying reconsideration, affirmed WCJ’s finding that applicant, while employed as laborer/production manager, did not suffer cumulative injury to his lower extremities during period ending on 9/26/2013, notwithstanding application of Labor Code § 5402 presumption of compensability, when WCAB determined that presumption of cumulative injury was...

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.

Acevedo (Robert) v. Old Dominion Freight Line, Inc.

Medical Treatment—Utilization Review—WCAB Jurisdiction—WCAB, after granting reconsideration, affirmed WCJ’s finding that diagnostic medical testing requested by consulting neurologist in connection with applicant truck driver’s 9/26/2019 injury to his brain and other body parts, did not constitute...

Correa (Silvia) v. Display Products, Inc.

Medical Treatment—Utilization Review—Requirements for Expedited Review—WCAB, denying reconsideration, affirmed WCJ’s finding that defendant’s 2/21/2024 utilization review (UR) determination was untimely and that applicant’s treating physician’s...

Glick (Andrew) v. Swift Transportation Services, LLC

Attorney’s Fees—Permanent Total Disability Awards—Cost of Living Adjustments—WCAB, granting reconsideration, rescinded decision in which WCJ awarded applicant’s attorney fee of $97,275.16, based on present value of applicant’s...

Montes (Rosario) v. Westside Children’s Center

Evidence—Admissibility of Medical Reports—WCAB, granting removal, rescinded WCJ’s order striking reports of agreed medical examiner (AME) who was no longer available for further reporting or cross-examination, and held that AME’s reporting...

Serrano (Ruth) v. Nova Commercial Company, Inc.

Medical-Legal Procedure—Disputed Medical Treatment—WCAB, granting reconsideration and amending WCJ’s decision, held that report from medical provider network independent medical review (MPN-IMR) physician was substantial...

Spencer (Eyana) v. Oakland Unified School District

Permanent Disability—Apportionment—Prior Awards—WCAB, after granting reconsideration, affirmed WCJ’s finding that although applicant suffered industrial injury to her psyche while employed as school principal on 5/3/2019, her injury did not...

Vlasis (Steven) v. County of Fresno

Presumption of Compensability—Cancer—Peace Officers—Rebuttal—WCAB, denying reconsideration, affirmed WCJ’s findings that decedent suffered industrially-related brain cancer (glioblastoma) during his employment as deputy sheriff...

Penalties—Unreasonable Rejection of Presumptively Compensable Claims—WCAB, denying reconsideration, upheld WCJ’s award of penalty under Labor Code § 5814.3 of five times unpaid temporary total disability and unpaid permanent disability, and separate penalty...

Average Weekly Wage—Earnings—Presumption of Maximum Earnings for Retired Public Safety Members—WCAB, denying reconsideration, upheld WCJ’s award of temporary disability, permanent disability and death benefits at maximum rate...

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.

CM24-0002391

Pilates—Back Pain—Applicant, 44 years old, sustained an industrial injury on 3/29/2021, and underwent treatment for intervertebral disc disorders with lumbar radiculopathy, pain in the right wrist, cervicalgia, and dorsalgia... [LexisNexis Commentary: This case is useful because it correctly treats Pilates as a form of exercise and, although there are no guidelines specifically addressing Pilates, exercise is generally recommended for the treatment of low back pain. The IMR reviewer appropriately applied the available criteria for exercise programs in the absence of criteria specifically applicable to Pilates.]

CM24-0049635

Massage Therapy—Back and Shoulder Pain—Applicant, 59 years old, sustained an industrial injury on 08/18/2020, and underwent treatment for neck, shoulder and low back pain. Imaging studies revealed a mild bulging disc in applicant’s lumbar spine… [LexisNexis Commentary: This case is a good example of a situation in which the IMR reviewer considered applicant’s reduction in pain medication to be an important factor in approving massage therapy to increase applicant’s functionality. The fact that applicant previously benefited from massage therapy provided additional support for approval.]

CM24-0058934

Acupuncture—Back and Neck Pain—Applicant, 65 years old, suffered an industrial injury on 9/23/2021, and underwent treatment for her neck and lower back which included a home exercise program, steroid injection, physical therapy… [LexisNexis Commentary: This IMR decision provides another good example of a non-invasive treatment prescribed to alleviate pain. The IMR reviewer appropriately applied the relevant MTUS guidelines, which recommend acupuncture for chronic to severe pain, and emphasized that applicant met the criteria for acupuncture because she continued to experience symptoms despite undergoing prior treatment modalities.]

CM24-0068463

Aquatic Therapy—Back Pain/Radiculopathy—Applicant, 55 years old, suffered an industrial injury on 8/20/2021 and was undergoing treatment for cervicalgia, lumbago, cervical radiculopathy, and a sprain of the thoracic spine ligaments…[LexisNexis Commentary: This IMR decision provides a good example of a non-invasive treatment, aquatic therapy, prescribed to alleviate pain. These types of non-invasive treatments often result in functional improvement and may reduce the need for medication.]

CM24-0069919

Cold Therapy—Knee Injury—Applicant, 59 years old, sustained an industrial knee injury on 9/19/2022. He was treated for chronic left knee pain and post-traumatic osteoarthritis and had difficulties with ADLs involving squatting/kneeling and with walking… [LexisNexis Commentary: This IMR decision emphasizes that the ACOEM Knee Disorders guidelines, incorporated into the MTUS by 8 Cal. Code Reg. § 9792.23.6, recommend cooling devices or cryotherapies “if efficacious for the temporary relief of osteoarthrosis or acute, subacute, or chronic knee pain” (p.85). The decision also illustrates that there are effective non-invasive treatments for pain that can be used in place of or to reduce medication intake.]