California Compensation Cases September 2022

CALIFORNIA COMPENSATION CASES

Vol. 87, No. 9 September 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

Ayala v. Tyler Development Company, Inc.,  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 general contractor based on Privette doctrine barring employee of independent contractor from recovering damages from hirer of contractor for worksite injury, held that defendant was not liable for fatal injuries sustained by employee of subcontractor hired by defendant to perform various remedial tasks on residential construction site, when Court of Appeal concluded that defendant...

Manuel (Rigoberto Jose) v. Superior Court of Santa Clara County; BrightView Landscape Services, Inc.,  Lexis

Undocumented Workers—Discovery Regarding Immigration Status—Court of Appeal, ruling on plaintiff’s petition for writ of mandate in wrongful termination action against his former employer, issued peremptory writ of mandate directing trial court to vacate its order compelling plaintiff to respond to written discovery propounded by his former employer regarding plaintiff’s immigration status, when Court of Appeal, citing Supreme Court’s analysis in...

McCullar v. SMC Contracting Incorporated,  Lexis

Peculiar Risk Doctrine/Premises Liability—Application of Privette Doctrine—Retained Control Exception—Court of Appeal, affirming trial court’s grant of summary judgment in favor of defendant general contractor based on Privette’s doctrine of hirer nonliability, held that defendant was not liable for injuries suffered by subcontractor’s employee when, while installing fire sprinkler system at defendant’s development site, he slipped and fell on ice that had formed on floor, when Court of Appeal concluded that...

Digests of WCAB Decisions Denied Judicial Review

Dzambik (John) v. W.C.A.B.,  Lexis

Medical-Legal Procedure—Stipulation to Use Agreed Medical Examiner—WCAB, rescinding WCJ’s decision in split panel opinion, held that applicant who alleged he suffered industrial injury while employed as driver/warehouseman on 8/21/2019 was bound by his agreement to utilize agreed medical examiner (AME) in neurology, Daniel Shalom, M.D., when WCAB panel majority found that pursuant to…

Volt Information Sciences, Inc. v. W.C.A.B. (Thomas, Teresa),  Lexis

Petitions for Reconsideration—Time to File Petition—WCAB, granting reconsideration and reversing WCJ’s finding, held that applicant’s Petition for Reconsideration filed within 30 days (20 days plus 10 days for mailing) of WCJ’s issuance of decision was timely filed, when WCAB found that while applicant and her attorney received...

Other WCAB Decisions Denied Judicial Review

Brijall (Glendon) v. W.C.A.B.,  Lexis

Serious and Willful Misconduct of Employer—Burden of Proof—Applicant did not meet burden of proof to establish elements of claim for serious and willful misconduct of employer, when WCAB found no corroborating evidence that employer affirmatively put applicant in harm’s way.

Evidentiary Record—Admission of Documents—WCAB rejected applicant’s contentions that certain medical records and Internet reviews of employer be admitted into evidence, when WCAB found that medical documents in question had no relevance to...

Watson (Nerissa) v. W.C.A.B.,  Lexis

Petitions for Removal—Interlocutory Issues—WCAB, affirming WCJ’s decision to take case off calendar in order to further develop medical record on issue of apportionment, found that no significant prejudice or irreparable harm would result if removal was denied and/or that reconsideration would not be an adequate remedy.

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.

Cantillo (Erlinda) v. Amazon.Com, Inc.,  Lexis

Medical Treatment—Independent Medical Review—Appeals—WCAB, granting reconsideration, rescinded WCJ’s order denying applicant’s appeal of independent medical review (IMR) determination upholding utilization review denial of treating physician’s request for home healthcare at four hours per day for three months, and WCAB remanded dispute to Administrative Director for submission to different IMR organization…

Espino (Javier) v. Fullerton Foods,  Lexis

Medical Treatment—Home Healthcare—Employer’s Duty to Investigate—WCAB, granting reconsideration, affirmed WCJ’s finding that applicant who suffered industrial injury to multiple body parts while employed as laborer during period 8/2000 to 8/2001 was entitled to home healthcare, both retroactively and prospectively, as provided by his daughter, when WCAB found that defendant’s utilization review determinations...

Gharakhanian (Minas) v. Cool Air Supply,  Lexis

Insurance Coverage—Limiting and Restricting Endorsements—Site-Specific Policies—WCAB, granting reconsideration, reversed arbitrator’s finding that Zurich American Insurance Company (Zurich) only provided coverage for applicant’s employer on 5/14/2012 at specific job site, and did not provide coverage for applicant’s industrial injury which occurred at different job site on that date, and WCAB substituted new finding that...

Saavedra (Rafael) v. Country Fresh Herbs,  Lexis

Cumulative Trauma—Date of Injury—WCAB, denying reconsideration, affirmed WCJ’s finding that applicant who suffered industrial injury to his lumbar spine, neck, shoulders, knees, feet, and thoracic spine while working as laborer had 9/12/2017 date of injury pursuant to Labor Code § 5412 (with Labor Code § 5500.5 liability period running from 9/12/2016 through 9/12/2017), when WCAB found that applicant satisfied disability requirement...

Zepeda (Armando) v. Starview Adolescent Center,  Lexis

Medical Treatment—Utilization Review—Assisted Living Facility—WCAB, granting reconsideration and rescinding WCJ’s decision, held that applicant teacher is entitled to continued outpatient treatment in Casa Colina Hospital Transitional Living Center’s residential rehabilitation program following 7/30/2018 traumatic brain injury until such time as...

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.

CM22-0038008,  Lexis

Chiropractic Treatment—Back Injury—Applicant, 32 years old, suffered an industrial injury on 2/27/2017, and was diagnosed with cervicalgia, low back pain and thoracic spine pain. He underwent several periods of chiropractic treatment with noted improvement in pain and function. However, after completion of chiropractic treatment, applicant complained of neck pain rated at 6/10. Applicant’s treating physician requested additional chiropractic treatment twice per week for four weeks for applicant’s cervical spine, thoracic spine, and lumbar spine. UR certified… [LexisNexis Commentary: In this IMR decision, UR denied the treatment request based on its erroneous finding that applicant’s prior chiropractic treatment did not produce functional improvement. In fact, the documentation noted improvement with previous chiropractic sessions. The IMR reviewer corrected the error, potentially avoiding an IMR appeal based on a plainly erroneous express or implied finding of fact under Labor Code § 4610.6(h).]

CM22-0040047,  Lexis

Chiropractic Treatment—Back Injury—Applicant, 50 years old, suffered an industrial injury on 7/25/2019, and was placed on modified duty. He reported low back pain that radiated to the right lower extremity, and daily numbness and tingling in the right foot with walking and standing for longer periods. The treating physician requested six sessions of chiropractic treatment to help with his symptoms. UR denied the requested treatment. The IMR reviewer overturned… [LexisNexis Commentary: This IMR describes the guideline criteria that must be met to support a request for chiropractic treatment. The fact that applicant underwent prior chiropractic treatment that did not resolve his complaints was not fatal to his subsequent request for chiropractic care based on an exacerbation of back pain, where applicant noted an improvement after the prior chiropractic treatment.]