California Compensation Cases October 2023

CALIFORNIA COMPENSATION CASES

Vol. 88, No. 10 October 2023

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

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.

Appellate Court Cases Not Originating with Appeals Board

Perez (Anel) v. Galt Joint Union Elementary School District,  Lexis

Employees Covered by Workers’ Compensation—School District Volunteers—Court of Appeal, affirming trial court’s judgment, held that plaintiff who was seriously injured in fall on 12/4/2015 while volunteering at elementary school spelling bee could not pursue personal injury action against defendant school district, but was limited to workers’ compensation as her exclusive remedy under Labor Code § 3364.5, which provides that, upon governing board’s adoption of resolution, school district volunteer authorized by and under direction and control of school district’s governing board or county superintendent to act as district volunteer is deemed to be district employee for purposes of workers’ compensation, when Court of Appeal rejected plaintiff’s...

Ranger v. Alamitos Bay Yacht Club,  Lexis

Longshore and Harbor Workers’ Compensation Act—Yacht Club Employees—Workers’ Compensation Exclusive Remedy Rule—Court of Appeal, affirming trial court’s order dismissing maintenance employee’s claims of negligence and unseaworthiness brought against employer yacht club under federal admiralty law after employee was injured in fall while stepping from dock onto boat, held that employee’s federal tort claims were barred by workers’ compensation exclusive remedy rule, when Court of Appeal reasoned that...

Vandorien v. Department of Transportation,  Lexis

Peculiar Risk Doctrine/Premises Liability—Application of Privette Doctrine—Exceptions—Court of Appeal, affirming trial court’s judgment sustaining defendant’s demurrer, held that defendant Department of Transportation (CalTrans) was not liable for injuries/fatality incurred by bulldozer operators working for private entities that contracted with Department of Forestry and Fire Protection (CalFire), in wildfire that overtook their bulldozers during attempted fire suppression, when Court of Appeal...

Digests of WCAB Decisions Denied Judicial Review

County of Los Angeles v. W.C.A.B. (Garrison, William),  Lexis

Permanent Disability—Rating—Rebuttal of Scheduled Rating—WCAB, after granting reconsideration, affirmed WCJ’s finding that applicant was entitled to unapportioned award of 100 percent permanent disability for industrial injury to multiple body parts on 10/17/2017 and during period 9/20/99 through 10/18/2017, when WCAB found that applicant...

United Airlines v. W.C.A.B. (Van Dyne Parmet, Jitka),  Lexis

Medical Treatment—Utilization Review—Change in Material Facts—WCAB, denying reconsideration, held that 8 Cal. Code Reg. § 9792.9.1(h) did not apply to render 10/22/2021 utilization review (UR) decision bar against physician’s 3/2/2022 request for authorization (RFA) for licensed vocational nurse (LVN) because physician clearly documented change in applicant’s...

Other WCAB Decisions Denied Judicial Review

Tokio Marine America Insurance Company v. W.C.A.B. (Sandoval, Miguel),  Lexis

Statute of Limitations—Cumulative Injuries—WCAB, after granting reconsideration, held that applicant’s 12/21/2021 claim for cumulative injury to abdomen (hernia) and other body parts ending on 4/26/2019, due to repetitive lifting while working as landscaper/laborer, was not barred by one-year statute of limitations in Labor Code § 5405(a), when WCAB found that applicant’s date of injury under Labor Code § 5412 based on date applicant first suffered disability and knew disability was work-related was not in 2019 as asserted by defendant, but was on 1/11/2021, which was applicant’s first notice he had cumulative trauma in form of hernia from reporting of panel qualified medical evaluator, and applicant filed claim within one year of that date.

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.

Garcia (Elsa) v. U.S. Bank,  Lexis

Injury AOE/COE—COVID-19—Burden of Proof—WCAB, granting reconsideration, rescinded decision in which WCJ found that defendant failed to rebut presumption of industrial causation and that decedent suffered compensable injury AOE/COE in form of COVID-19, which resulted in his death one week after testing positive for virus, and WCAB returned matter to trial level for further proceedings, when WCAB reasoned that, contrary to WCJ’s determination, decedent’s injury was not covered by COVID-19 presumption of industrial causation because his employment...

Orberg (Jasmine) v. Inter Sources, Inc.,  Lexis

Employment Relationships—Employees—WCAB, granting reconsideration and rescinding WCJ’s decision, held that applicant was defendant’s employee when she was injured in motor vehicle accident on 7/22/2015 while traveling to defendant’s unpaid internship program to train to become business analyst, when WCAB reasoned that evidence demonstrated applicant...

Injury AOE/COE—Going and Coming Rule—Employer-Provided Transportation—WCAB, granting reconsideration, held that applicant was not barred from recovering workers’ compensation benefits for injuries sustained on 7/22/2015 in motor vehicle accident while traveling to her place of employment because applicant’s employer-provided transportation in form of van service to and from defendant’s office constituted exception to “going and coming” rule, such that benefits were not barred.

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.

CM21-0157695,  Lexis

Antipsychotics/Antidepressants—Geodon—Applicant, 63 years old, suffered an industrial injury on 11/14/2019, and underwent treatment for major depression and an anxiety disorder. As of 10/11/2021, she was not working. Applicant had been prescribed the antipsychotic medication Geodon since at least 10/2020. In late 2021, she reported severe symptoms of anxiety and depression. She also indicated a history of hearing voices, which had reportedly subsided with the use of Geodon. Applicant’s treating physician requested authorization for Geodon 80 mg #30, which was denied by UR on 11/11/2021. The IMR reviewer reversed... [LexisNexis Commentary: This IMR is particularly interesting because the medication Geodon, which was at issue here, was the subject of a $301 million settlement between Pfizer, Inc. and the U.S. DOJ, because Pfizer marketed Geodon for “off-label” uses [See https://www.justice.gov/archive/usao/pae/News/2009/sep/pfizerrelease.pdf)]

CM22-0010803,  Lexis

Antipsychotics/Antidepressants—Vraylar—Applicant, 52 years old, suffered an industrial orthopedic injury on 9/4/2008 and was being treated for back pain in addition to various psychiatric symptoms, including depression, anxiety disorder, and adjustment disorder. He had been prescribed Vraylar since at least 4/2021. The medication was discontinued but restarted after applicant reported increased mood swings and depression, leading to hospitalization for depression with suicidal ideation. On 08/26/2021, it was noted that applicant’s depression continued, and he was experiencing auditory hallucinations. Vraylar was increased to 4.5mg at night, which resulted in improvement of applicant’s symptoms. On 1/20/2022, applicant’s treating physician requested authorization for Vraylar 4.5mg #30. UR non-certified the request. The IMR reviewer overturned... [LexisNexis Commentary: Although applicant did not specifically suffer from any of the psychiatric conditions for which Vraylar is typically used, the IMR reviewer relied on the fact that the medication was effective in reducing applicant’s psychiatric symptoms to support its medical necessity. Note, the IMR reviewer’s path to authorization may be of interest to the community because Vraylar is relatively expensive (about $1,500 for the 30 capsules prescribed here) and is probably not available in generic form.]

CM22-0104339,  Lexis

Antipsychotics/Antidepressants—Latuda and Zoloft—Traumatic Brain Injury—Applicant, 50 years old, suffered a work-related traumatic brain injury (TBI) on 1/4/2017, and underwent treatment for symptoms including severe depression, psychotic episodes, change in personality, PTSD, generalized anxiety disorder, occipital pain, and multiple fractures. He experienced severe cognitive symptoms, auditory and visual hallucinations, and ongoing nightmares, and remained off work. On 6/16/2022, applicant reported symptoms of depression, feelings of unhappiness, and becoming easily argumentative, irritable, frustrated, anxious, and agitated, with problems sleeping at night. Lexapro was discontinued, Zoloft 50mg was started, and Latuda was increased to 40mg. On 07/08/2022, applicant’s treating physician requested authorization for Latuda 40mg #30 with 2 refills (increase dose), and Zoloft 50mg #30 with 2 refills. UR non-certified both requests. With respect to the Latuda, the IMR reviewer overturned the UR denial based on the MTUS TBI 2018 guidelines, which selectively recommend antipsychotics such as Latuda in TBI patients with agitation from mood disorders. The IMR reviewer noted that applicant... [LexisNexis Commentary: Traumatic brain injury cases appear to be on the rise post-COVID, and this IMR decision overturning the UR denial of Latuda and Lexapro provides guidance regarding how to treat this type of injury. Note, both medications approved by the IMR reviewer, Latuda and Zoloft, are exempt drugs on the MTUS Formulary.]

CM22-0130008,  Lexis

Opioids—Norco—Applicant, 59 years old, sustained an industrial injury on 2/26/2012. She underwent medical treatment for cervical spine and right shoulder symptoms and for insomnia, anxiety and depression, and was temporarily totally disabled from working. As of 8/15/2022, applicant reported sharp, aching severe neck pain radiating to both shoulders accompanied by spasms, numbness, and reduced range of motion. She also reported low back pain with radiation to her lower extremities. Applicant rated the pain at 8/10 without medications and 6/10 with medications. The pain limited applicant’s ability to perform ADLs. Among other medications, applicant had been prescribed Norco since at least 10/25/2021. On 9/1/2022, Applicant’s treating physician requested authorization for Hydrocodone/Acetaminophen (Norco) 10/325Mg #60. UR approved 48 of the requested 60 pills but denied the remaining 12. The IMR reviewer overturned... [LexisNexis Commentary: Here, 8/10 to 6/10 improvement in pain is technically a 25 percent improvement, not 30 percent as recommended by the MTUS guidelines. Nonetheless, applicant showed a meaningful improvement in pain and in several areas of ADL function, and the IMR reviewer soundly exercised discretion in determining that the requested Norco prescription was medically necessary, especially absent adverse effects or misuse by applicant.]

CM22-0167308,  Lexis

Opioids—Norco—Applicant, 56 years old, sustained an industrial injury on 12/10/2007 and was undergoing treatment for pain in her right hip, leg and ankle. Applicant’s medications included Norco, which was prescribed since at least June 2022. In December 2022, applicant’s treating physician prescribed Hydrocodone/Acetaminophen (Norco) 10/325mg #120, with no refills. The request was denied by UR. However, the IMR reviewer overturned the... [LexisNexis Commentary: This IMR decision is a good reminder that long-term use of opioids should not be abruptly discontinued but rather should be tapered by the treating physician based on the patient’s unique situation. Additionally, the decision reminds the reader that the pain/function improvement of at least 30 percent criterion in the MTUS/ACOEM guidelines means improvement as between without medication and with medication and is not a requirement that the condition constantly improve.]

CM22-0169995,  Lexis

Opioids—Percocet—Applicant, 60 years old, sustained an industrial back injury on 3/30/2001, and underwent lumbar spine surgery in 2014. She was able to work full-time with the use of medication, including Percocet which had been prescribed since at least June 2022. In December 2022, applicant’s treating physician requested Percocet 10/325mg #79 to treat applicant’s chronic low back pain with radiculopathy. The request was denied by UR. However, the IMR reviewer overturned... [LexisNexis Commentary: In this IMR decision, the treating physician provided detailed documentation of applicant’s functional improvement with the use of opioid medication, and showed that with minimal use of medication applicant could continue working full-time. The percentage of functional improvement is only one of many criteria that must be satisfied to support continued opioid use to treat chronic pain. Although the IMR reviewer did not address all of the other indications, it is implied that the other criteria were met in this case.]