California Compensation Cases October 2022

CALIFORNIA COMPENSATION CASES

Vol. 87, No. 10 October 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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Appellate Court Cases Not Originating With Appeals Board

Kaur (Gurdip) v. Foster Poultry Farms LLC,  Lexis

Fair Employment and Housing Act—Collateral Estoppel—Effect of Other Proceedings on Claims Under Fair Employment and Housing Act—Court of Appeal, reversing trial court’s judgment, held that WCAB’s decision denying employee’s discrimination claim under Labor Code § 132a did not preclude her civil action against employer under provisions of Fair Employment and Housing Act (FEHA), Government Code § 12900 et seq., based on doctrine of collateral estoppel/issue preclusion, which precludes re-litigation of issues decided in prior proceedings even if second suit raises different causes of action, when Court of Appeal found...

Fair Employment and Housing Act—Time to File Complaint—Court of Appeal, reversing trial court’s judgment, held that employee could maintain FEHA discrimination claims based on race/nationality as to only one supervisor because administrative remedies were timely exhausted under former Government Code § 12960(d) within one year following occurrence of alleged unlawful conduct, but administrative complaint was untimely as to other persons because it was not brought within limitations period and employee did not establish “continuing violation.”

Miller v. Roseville Lodge No. 1293,  Lexis

Peculiar Risk Doctrine/Premises Liability—Application of Privette Doctrine—Exceptions—Court of Appeal, affirming trial court’s grant of summary judgment in favor of defendant based on Privette’s doctrine of hirer nonliability, held that defendant, who hired plaintiff’s employer to move ATM machine on its premises, was not liable for injuries sustained by plaintiff when he fell from scaffold with unlocked wheel while performing his work, when Court of Appeal concluded that...

Digest of WCAB Decision Denied Judicial Review

Perez Velasquez (Roberto) v. W.C.A.B.,  Lexis

Death Benefits—Reimbursement of Payment to Death Without Dependents Unit—Interest For Delayed Reimbursement—WCAB, granting reconsideration, rescinded WCJ’s award of $11,369.86 in interest to applicant for Death Without Dependents Unit’s (DWD) delay in reimbursing employer’s insurer Labor Code § 4706.5(a) payment, and held that WCJ lacked authority to award interest, when WCAB found that while Labor Code § 4706.5(g)…

Other WCAB Decisions Denied Judicial Review

Blackwell (Michael) v. W.C.A.B.,  Lexis

Medical-Legal Procedure—Qualified Medical Evaluator Panel Requests—WCAB, denying reconsideration based on removal standard, affirmed WCJ’s order invalidating qualified medical evaluator (QME) panel obtained by parties under Labor Code § 4062.1 and instructing parties to utilize procedures in Labor Code § 4062.2 to obtain new panel, when applicant obtained original QME panel while unrepresented and although QME was selected from that panel and appointment was set, appointment was canceled after applicant secured counsel, and WCAB found that because applicant never received…

Dominguez (Martin) v. W.C.A.B.,  Lexis

Petitions for Writ of Review—Untimely Petitions—Court of Appeal dismissed applicant’s Petition for Writ of Review as untimely when applicant failed to file Petition within 45-day time period allowed under Labor Code § 5950.

Rebar International, Inc. v. W.C.A.B. (Haynes, Steven),  Lexis

Petitions for Writ of Review—Premature Petitions—Court of Appeal denied defendant’s Petition for Writ of Review without prejudice, finding that Petition was premature under Labor Code § 5950 as it was filed before WCAB issued its decision and order after reconsideration, and there was not yet any final decision by WCAB.

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.

Anaya (Ysidro) v. State of California,  Lexis

Presumption of Compensability—Heart Trouble—Correctional Officers—Anti-Attribution—WCAB, granting reconsideration, rescinded WCJ’s finding that applicant correctional officer was entitled to award of 29 percent permanent disability, after apportionment, for cumulative injury to his heart and in form of hypertension ending on 6/6/2017, and held instead that applicant was entitled to unapportioned award of 54 percent permanent disability, when WCAB found that Labor Code § 3212.2 heart presumption applied to...

Bergman (Robert) v. Barrett Business Services Inc.,  Lexis

Permanent Disability—Apportionment—Preexisting Factors—WCAB, denying reconsideration, affirmed WCJ’s decision that applicant suffered 73 percent permanent disability as result of industrial injury to his back, right lower extremity (resulting in amputation), left ankle, left knee, and psyche while working as tractor diesel mechanic on 2/11/2014, and that reports of psychiatric panel qualified medical evaluator (PQME) were not substantial evidence to support apportionment of applicant’s permanent disability under Labor Code § 4663 and Escobedo v. Marshalls (2005) 70 Cal. Comp. Cases 604 (Appeals Board en banc opinion), when WCAB reasoned that while physician no longer has to…

Burk (Brian) v. Sarens International,  Lexis

WCAB Jurisdiction—Regular Work in California—WCAB, following grant of reconsideration, affirmed WCJ’s finding that California had jurisdiction over applicant rigging superintendent’s claim for 1/19/2016 industrial back injury, notwithstanding that applicant was resident of Nebraska at time of injury, made employment contract in Nebraska, and suffered injury while in Jamaica, when WCAB reasoned that under Labor Code § 3600.5(a), employee who sustains injury...

Hazen (Daniel) v. Porterville Unified School District,  Lexis

Medical-Legal Procedure—Selection and Assignment of Panel Qualified Medical Evaluators—WCAB, denying reconsideration, affirmed WCJ’s finding that replacement qualified medical evaluator (QME) panel issued by Medical Unit at defendant’s request was invalid, when replacement panel was issued after applicant became represented by counsel, and WCAB found that although either party was entitled to request new QME panel once applicant...

Sevillano (Chantel) v. Kore 1 Inc.,  Lexis

Medical Treatment—Utilization Review—Employer’s Duty to Investigate Treatment Requests—WCAB, denying reconsideration, affirmed finding that WCJ had jurisdiction to address primary treating physician’s request for medical treatment in form of outpatient rehabilitation program for balance and pain management because utilization review (UR) determination denying request was untimely, when WCAB found that although primary treating physician’s treatment request was not subject to Labor Code § 4610’s UR time deadlines....

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.

CM22-0054762,  Lexis

Home Healthcare—Home Assistance—Applicant, 75 years old, suffered an industrial injury on 8/21/2022, including a fracture of her left femur. She was subsequently treated for left hip pain and underwent left hip arthroplasty. In March of 2022, applicant reported moderate, intermittent left hip pain, and an examination revealed hip tenderness and a decreased range of motion. Her treating physician requested authorization for 24 sessions of home assistance, only eight of which were approved by UR. Citing the MTUS 2017 treatment guidelines, the IMR reviewer overturned the UR determination and concluded that the 24 home assistance sessions... [LexisNexis Commentary: This IMR decision reminds the workers’ compensation community that the MTUS guidelines do not specifically require an assessment of family or other support systems or of the applicant’s pre-injury activities to evaluate the medical necessity of home healthcare. Additionally, the decision emphasizes that there is no specific limit to the amount of home healthcare that can be authorized.]

CM22-0056185,  Lexis

Antidepressants—Amitriptyline—Chronic Neuropathic Pain and Sleep Impairment—Applicant, 37-years old, suffered an industrial back injury on 11/20/2019. He received medical treatment for a chronic lumbosacral strain with degenerative disc disease, radiculitis, and chronic lumbago secondary to the industrial injury. In March of 2022, applicant reported 4/10 radiating low back pain into the left buttock, upper thigh and left hip, along with sleep interference which was partially relieved by Amitriptyline. His treating physician requested authorization to continue Amitriptyline 50mg #30 at bedtime. The request was non-certified by UR based on the MTUS 2020 treatment guidelines for low back/radicular pain and on the non-MTUS, ODG treatment guidelines. The IMR reviewer overturned the UR determination and found... [LexisNexis Commentary: The UR reviewer in this case relied on the incorrect MTUS guidelines and non-certified applicant’s request for Amitriptyline, despite evidence that the medication was effective in relieving applicant’s neuropathic pain. The IMR reviewer, citing the correct MTUS guidelines, did a good job of explaining why the record and the guidelines supported the request for Amitriptyline.]

CM22-0088355,  Lexis

Home Healthcare—Home Assistance and Caregiver—Applicant, 49 years old, suffered an industrial lumbar spine injury on 7/19/2008. She subsequently developed, among other conditions, chronic pain, CRPS of the right upper extremity and failed back syndrome. As of 6/24/22, she was temporarily totally disabled. She reported worsening pain in the low back, rated 6−9/10, with radiation to the bilateral lower extremities, and persistent symptoms of CRPS. Applicant used a walker for ambulation and reported being unable to perform any meaningful ADLs due to her pain and limited range of motion. Her treating physician recommended home care assistance and a caregiver, which UR denied. The IMR reviewer upheld the UR determination... [LexisNexis Commentary: Although applicant in this case had signification limitations with ADLs and was homebound, the IMR reviewer upheld the UR denial of her home healthcare request because she did not obtain a home health evaluation, and the documentation submitted was insufficient to comply with the MTUS guidelines. It should be noted, however, that defendant’s receipt of the documentation regarding applicant’s condition triggered its duty to investigate applicant’s need for home healthcare, despite the lack of a home evaluation and the problems with the documentation submitted.]

CM22-0096146,  Lexis

Sedatives—Ambien—Insomnia—Applicant, 53 years old, suffered an industrial back injury on 12/9/2010, and was being treated for chronic pain due to trauma, lumbosacral radiculopathy, and spondylosis. Applicant’s waxing and waning pain limited his functioning and ability to work. In July of 2022, applicant’s treating physician requested a refill of Ambien 10mg #30, which applicant had been taking for approximately six months. The request was denied by UR based on the non-MTUS ODG guidelines, which allow for short-term use of sedatives such as Ambien (Zolpidem) to treat insomnia. The IMR reviewer also relied on the ODG guidelines, stating in their decision that the “MTUS/ACOEM are silent regarding the use of non-benzodiazepine sedative hypnotics for the treatment of insomnia.” Applying the ODG criteria, the IMR reviewer upheld the UR denial… [LexisNexis Commentary: The IMR reviewer in this case mistakenly determined that the MTUS/ACOEM was silent regarding the use of sedatives such as Ambien to treat insomnia, when in fact that 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 makes valuable points regarding why there is insufficient documentation to support the request for Ambien, and ultimately reaches the correct conclusion.]

CM22-0098928,  Lexis

Antidepressants—Trazadone—Depression with Sleep Disruption—Applicant, 43 years old, sustained an industrial injury on 7/1/2021, and was undergoing treatment for PTSD. As a result of the injury, applicant developed insomnia, among other conditions, and was prescribed sertraline and prazosin, which decreased his anxiety and nightmares and improved his sleep. Trazodone 50mg was started due to ongoing middle insomnia. As of 6/7/2022, the trazodone had improved applicant’s sleep and he was taking one to two tablets per night. Although daytime flashbacks continued, applicant reported improved mood and energy, and felt that in a few months he would be ready to return to work. On 6/30/2022, applicant’s treating physician requested authorization for trazadone 50mg #60 with one refill. UR modified the request, authorizing trazadone 50mg #60 with no refills. Relying on the MTUS 2020 treatment guidelines for depressive disorders, which recommend some antidepressants (including trazadone) to treat insomnia due to their sedative effects, the IMR reviewer found that… [LexisNexis Commentary: Here, the UR determination did not show grounds for prospective discontinuation of trazadone. The MTUS indicates discontinuation only for lack of efficacy, adverse effects, non-compliance, and resolution of depression such that medication is not required. None of these factors were present in applicant’s case, and the medication was effective without apparently causing any adverse effects.]