California: Top 25 Noteworthy Panel Decisions (January through June 2023)

LexisNexis has selected some of the top “noteworthy” panel decisions issued by the California Workers’ Compensation Appeals Board during the period January through June 2023. The first part of this year yielded a number of cases involving COVID-19 claims, in which the WCAB addressed the parties’ burdens of proof in situations where the presumption of industrial causation applies and in those where it does not. The list also includes several decisions addressing ex parte communications with medical evaluators, including one where the WCAB panel was split regarding the significance of the ex parte communication and whether appointment of a new physician was required, and a decision explaining when an insurer can be substituted as the sole defendant for the employer in workers’ compensation proceedings, thereby relieving the employer from liability. Finally, there is a case involving home health care services in which the WCAB found that applicant was permitted to choose her own caretaker and explained why it was inappropriate for defendant to unilaterally change a previously approved home care provider without applicant’s consent.

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, as these decisions are subject to appeal. 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 However, WCAB panel decisions are not binding precedent, as are en banc decisions on all other Appeals Board panels and workers’ compensation judges.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.

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EMPLOYMENT RELATIONSHIPS

■ Ortega Gonzalez, Applicant v. Major Transportation Services, Inc., a California Corporation, Baljinder S. Gill, individually, and dba Major Express Logistics, Peoplease LLC, National Interstate Richfield, Defendants, 2023 Cal. Wrk. Comp. P.D. LEXIS 98

Employment Relationships—Dual Employment—WCAB, denying reconsideration, affirmed WCJ’s finding that applicant, while working as truck driver on 9/2/2018, was employed by trucking company Major Transportation Services (Major Transportation) and by Professional Employer Organization (PEO) Peoplease LLC (Peoplease), and that Peoplease was required to provide workers’ compensation for Major Transportation’s joint employees, when WCAB reasoned that dual employment exists where employee is sent by one employer (general employer) to work for another employer (special employer), and both employers have direction and control over details of employee’s work and benefit from that work, that in lease-back situations involving PEOs, such as existed in this case, special employer generally receives workers’ compensation coverage for joint employees from PEO through “client policy” that covers claims for their joint employees under single policy pursuant to Labor Code § 3602(d), that it was undisputed applicant was employed by Peoplease (general employer) and Major Transportation (special employer) both before and after his date of injury, and that in context of applicant’s dual employment relationship, fact that Peoplease did not issue applicant’s paycheck covering his date of injury did not make applicant sole employee of Major Transportation on that date for purposes of workers’ compensation coverage, because Peoplease employed applicant in order to provide workers’ compensation insurance for Major Transportation’s employees and agreed to obtain insurance pursuant to Labor Code § 3602(d), Peoplease policy was only available insurance, and there was no factual support for finding of temporary suspension of employment relationship between applicant and Peoplease simply because Major Transportation issued paycheck for date of injury due to late payment by Peoplease for pay period covering date of injury. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 3.142; Rassp & Herlick, California Workers’ Compensation Law, Ch. 2, § 2.07, Ch. 3, § 3.30.]

■ Jasmine Orberg, Applicant v. Inter Sources, Inc., State Farm Fire and Casualty Company, Defendants, 2023 Cal. Wrk. Comp. P.D. LEXIS 111

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 rendered “services” for defendant by participating as intern in its training program, such that she successfully established prima facie case of employee status, and that burden then shifted to defendant to demonstrate applicant was either independent contractor or was expressly excluded from legal definition of employee, which defendant did not do, and WCAB, applying factors set forth in S. G. Borello & Sons, Inc. v. Dept. of Industrial Relations (1989) 48 Cal. 3d 341, 769 P.2d 399, 256 Cal. Rptr. 543, 54 Cal. Comp. Cases 80, determined that defendant retained “all necessary control” over its training program, involved applicant in integral part of company’s business, provided applicant with place of work, as well as transportation to and from office, and would have paid her between $60,000.00 to $68,000.00 per year, thereby supporting finding of employee status. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 3.06, 3.07, 3.130, 3.131; Rassp & Herlick, California Workers’ Compensation Law, Ch. 2, § 2.06.]

COVID-19 PANDEMIC

■ Joffre Garcia (Deceased), Applicant v. U.S. Bank, Old Republic, Defendants, 2023 Cal. Wrk. Comp. P.D. LEXIS 91

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 as banker was not covered employment under Labor Code § 3212.87, and Labor Code § 3212.88 did not apply because decedent’s positive COVID-19 test did not occur during COVID-19 outbreak at his workplace, as defined in Labor Code § 3212.88(m)(4), that because presumption of industrial causation did not apply, WCJ was required to determine issue of causation without applying presumption, that in cases where employee’s injury is caused by communicable disease, such as decedent’s case, essential questions of when and where employee contracted disease may be unanswerable with certainty, and medical evidence is required to establish industrial causation by demonstrating that it is more likely employee acquired disease at work or that employment subjected employee to special risk of exposure in excess of that of general population, that here, determination of injury AOE/COE must be based on substantial medical evidence, and that because no medical-legal evaluation has yet been completed in this case, further development of record is necessary before WCJ can make determination regarding industrial causation based on substantial medical evidence. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 4.05[2][a]-[c], 27.01[1][c]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 10, § 10.01[4].]

■ Angela Dawson, Applicant v. Patton State Hospital, State Compensation Insurance Fund, Defendants, 2023 Cal. Wrk. Comp. P.D. LEXIS 62

Injury AOE/COE—COVID-19—Burden of Proof—WCAB, granting reconsideration, rescinded decision in which WCJ found that applicant did not sustain injury AOE/COE to her psyche and internal system as result of COVID-19 infection allegedly contracted during her employment as hospital dietician, and returned matter to trial level for further development of medical record, when WCAB reasoned that in cases of communicable diseases such as COVID-19, where it may be impossible to establish exactly when and where disease was contracted, employee can establish industrial causation by demonstrating that it was more likely than not disease was acquired at work or that employment subjected employee to special risk of exposure in excess of that of general population, that because presumption did not apply to applicant’s claim, WCJ was required to determine, based on substantial evidence, whether it was reasonably probable that applicant acquired COVID-19 as result of workplace exposure, that applicant’s primary treating physician and panel qualified medical evaluator both based their opinions as to when applicant was most likely exposed to virus on applicant’s symptoms, not date of positive COVID-19 test, that because WCJ followed neither physician’s opinion regarding latency period, WCJ’s opinion was not based on substantial evidence, that medical record requires further development in light of applicant’s trial testimony about timing of development of her more severe symptoms, and that each doctor should provide expert medical opinion on when applicant developed COVID-19, and after establishing probable date should then provide opinion as to probability applicant was exposed to virus at work. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 4.05[2][a]-[c], 27.01[1][c]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 10, § 10.01[4].]

■ Sofia Sevillano, Applicant v. State of California, IHSS, legally uninsured, administered by York Risk Services Group, a Sedgwick Company, Defendants, 2023 Cal. Wrk. Comp. P.D. LEXIS 71, petition for writ of review denied 6/16/2023

Injury AOE/COE—COVID-19—Burden of Proof—Rebuttal of COVID-19 Presumption—WCAB, denying reconsideration, affirmed its prior decision [see Sevillano v. State of California, 2022 Cal. Wrk. Comp. P.D. LEXIS 255 (Appeals Board noteworthy panel decision)] that Labor Code § 3212.86 presumption of industrial causation applied, that defendant did not rebut presumption and that applicant sustained injury AOE/COE in form of COVID-19-related illness, and to her lungs in form of pneumonia, when WCAB agreed with defendant that rebuttal standard of “other evidence” set forth in Labor Code § 3212.86(e) allows for broad range of evidence, and that such evidence may include factors described in Labor Code § 3212.88, including measures taken to reduce potential transmission and non-industrial risk factors, but WCAB observed that once Labor Code § 3212.86 presumption attaches, defendant bears affirmative burden of rebutting presumption with such “other evidence” as may be relevant, and WCAB found that defendant here did not present evidence sufficient to meet its affirmative burden of overcoming presumption of industrial causation. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 4.05[2][a]-[c], 27.01[1][c]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 10, § 10.01[4].]

INJURY AOE/COE

■ Karen Miller, Applicant v. State of California, Ventura Youth Correctional Facility, legally uninsured, adjusted by, State Compensation Insurance Fund/State Contract Services, Defendants, 2023 Cal. Wrk. Comp. P.D. LEXIS 73

Injury AOE/COE—Diagnosis of Sleep Disorder—Formal Sleep Studies—WCAB, denying reconsideration, affirmed WCJ’s finding that applicant substitute teacher suffered sleep disorder as result of industrial orthopedic injury incurred on 1/6/2012 and during cumulative period 6/10/2010 through 1/6/2012, and determined that panel qualified medical evaluator’s (PQME) opinion that applicant suffered sleep disorder as result of her industrial injuries was substantial evidence to support WCJ’s finding even though PQME’s opinion was based on applicant’s subjective reporting of her sleep problems and not on formal sleep study, when WCAB, relying on The Lawyer’s Guide to the AMA Guides and California Workers’ Compensation (LexisNexis), concluded that formal sleep study is not necessary for diagnosis of sleep disorder, and clarified that diagnosis of sleep disorder is different than ratability under AMA Guides, that AMA Guides’ mandate that sleep study be conducted applies to impairment determinations, not diagnosis, and that even were AMA Guides applicable for purpose of diagnosis, deviation from AMA Guides is permitted under Almaraz v. Environmental Recovery Services/Guzman v. Milpitas Unified School District (2009) 74 Cal. Comp. Cases 1084 (Appeals Board en banc opinion), aff’d sub nom. Milpitas Unified School Dist. v. W.C.A.B. (Guzman) (2010) 187 Cal. App. 4th 808, 115 Cal. Rptr. 3d 112, 75 Cal. Comp. Cases 837. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 4.05[2][a], 32.02[2][a]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 10, § 10.01[4][c]; The Lawyer’s Guide to the AMA Guides and California Workers’ Compensation, Ch. 4.]

■ Grant Ellison, Applicant v. City of San Buenaventura, PSI and adjusted by Athens Administrators, Defendants, 2023 Cal. Wrk. Comp. P.D. LEXIS 64

Injury AOE/COE—Dual Purpose Rule—Personal Convenience—WCAB, denying reconsideration, affirmed WCJ’s decision that applicant fire captain sustained injury AOE/COE on 2/6/2021 from serious side effects incurred as result of obtaining Moderna COVID-19 vaccination which was strongly encouraged by employer, but was not mandatory, when WCAB found that applicant’s injury fell under “dual purpose” rule because employer encouraged vaccination to reduce number of employee absences, such that applicant’s decision to be vaccinated substantially benefitted employer and was not purely personal decision, and that injury was also covered under personal convenience doctrine because, by availing himself of offered vaccine, applicant’s effort to avoid illness that would impair his ability to perform his employment duties was reasonably contemplated and incidental to his employment. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 4.139, 4.157; Rassp & Herlick, California Workers’ Compensation Law, Ch. 10, § 10.05.]

JURISDICTION

■ Marcus Robinson, Applicant v. Chicago Bears, Fairmont Premier Insurance Company, administered by Zenith and Travelers Indemnity Company, successor in interest to Gulf Insurance, Minnesota Vikings, self-insured and administered by Gallagher Bassett Services, Baltimore Ravens, Travelers Indemnity Company, successor in interest to Gulf Insurance, Defendants, 2023 Cal. Wrk. Comp. P.D. LEXIS 33

WCAB Jurisdiction—Professional Athletes—Due Process—WCAB, after granting reconsideration and partially amending WCJ’s decision, affirmed WCJ’s finding that cumulative injury incurred by applicant while playing professional football for various teams between 1997 and 2006 lacked sufficient connection to state of California to support exercise of California jurisdiction over applicant’s claim, and found that exercise of jurisdiction would violate due process, when WCAB determined that applicant, who neither signed contract in California nor was regularly employed in this state during relevant period, did not meet “minimum contacts” requirement to support California jurisdiction as described in Federal Insurance Co. v. Workers’ Comp. Appeals Bd. (Johnson) (2013) 221 Cal. App. 4th 1116, 165 Cal. Rptr. 3d 288, 78 Cal. Comp. Cases 1257, where applicant played only four games in California, amounting to at best 3 percent of his total career games, and evidence showing that applicant sustained injuries and received medical treatment in California was not, in itself, enough to establish sufficient connection between applicant’s injuries and this state because evidence did not show applicant’s cumulative trauma injury was particularly attributable to his work in California as opposed to his work in other states. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 3.22[2], [3], 21.02, 21.06, 21.07[5]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 13, §§ 13.01[2], 13.02.]

■ Elizabeth Arbogast, Applicant v. California Highway Patrol, legally uninsured, administered by State Compensation Insurance Fund, Defendants, 2023 Cal. Wrk. Comp. P.D. LEXIS 80

WCAB Jurisdiction—Permanent Disability—Reservation of Jurisdiction for Progressive Insidious Diseases—WCAB, after granting reconsideration, affirmed WCJ’s finding that applicant who suffered industrial injury to multiple body parts while employed as California Highway Patrol officer from 8/13/84 through 5/13/2014 suffered insidious progressive disease in form of ovarian cancer, such that WCAB’s reservation of jurisdiction over applicant’s permanent disability beyond jurisdictional limitations in Labor Code §§ 5410 and 5804 was warranted in accordance with General Foundry Service v. W.C.A.B. (Jackson) (1986) 42 Cal. 3d 331, 721 P.2d 124, 228 Cal. Rtpr. 243, 51 Cal. Comp. Cases 375, and based on factors in Ruffin v. Olson Glass Co. (1987) 52 Cal. Comp. Cases 335 (Appeals Board En Banc Opinion), when WCAB found that applicant’s cancer was caused by remote and undramatic work exposure, that she was exposed to vehicular fumes and fires, that her cancer had long latency from time of exposures to ultimate diagnosis, and that although it was unclear whether applicant’s cancer was currently worsening, qualified medical evaluator found there was at least 50 percent chance cancer would recur and cause additional impairment, and this potential for worsening was sufficient to justify reservation of jurisdiction. [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d §§ 8.03, 8.04, 32.02[1]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 7, § 7.30, Ch. 14, §§ 14.04, 14.06[3].]

■ Jalan Davie, Applicant v. Greater Bay Protection Services, Accredited Surety and Casualty Company, Inc., administered by Brentwood Services Administrators, Inc., for U.S. Administrators Claims, Defendants, 2023 Cal. Wrk. Comp. P.D. LEXIS 131

WCAB Jurisdiction—Concurrent State and Federal Jurisdiction—Maritime Workers—WCAB, denying reconsideration, affirmed WCJ’s finding that WCAB had jurisdiction to hear parties’ dispute regarding applicant’s claim for temporary disability stemming from 8/11/2022 industrial injury, and rejected defendant’s assertion that applicant’s claim fell solely within federal Longshore and Harbor Workers’ Compensation Act (LHWCA), when WCAB reasoned that, per 33 U.S.C.S. §§ 902(3) and 903(a), LHWCA covers injuries suffered by maritime employees on navigable waters or on any adjoining pier or other area customarily used by employer in loading, unloading, repairing, or building vessels, that applicant here worked entirely land-based job as security guard in terminal at docks, and was not involved in any maritime activities, applicant had no longshoreman credentials, experience, or benefits, nor did his job include loading or unloading ships, and applicant was injured inside terminal, and WCAB concluded that applicant was not longshoreman for purposes of workers’ compensation benefits, that his injury was covered by California workers’ compensation, and that even if applicant’s job arguably fell within “twilight zone,” WCAB would have concurrent jurisdiction over his injury. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 21.01[5][b]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 13, §§ 13.04[4], 13.06.]

MEDICAL-LEGAL PROCEDURE

■ Lon Martinsen, Applicant v. H&H Enterprises, Inc., Zenith Insurance Company, Defendants, 2023 Cal. Wrk. Comp. P.D. LEXIS 16, 88 Cal. Comp. Cases 638

Medical-Legal Procedure—Ex Parte Communications—WCAB, granting reconsideration in split panel opinion, rescinded WCJ’s finding that panel qualified medical evaluator (PQME) engaged in improper ex parte communication with applicant, thereby requiring replacement PQME in psychology, and WCAB panel majority, citing Alvarez v. W.C.A.B. (2010) 187 Cal. App. 4th 575, 114 Cal. Rptr. 3d 429, 75 Cal. Comp. Cases 817, found instead that 9/23/2016 communication between PQME’s office and applicant’s attorney’s office was simple request for clarification on when and whether PQME should review surveillance videos rather than nefarious attempt to conspire with applicant’s attorney, and that because communication was insignificant and inconsequential as described in Alvarez, replacement of PQME was not supported; Commissioner Razo, dissenting, agreed with WCJ that 9/23/2016 communication between applicant’s attorney’s office and PQME’s office was improper ex parte communication in violation of Labor Code § 4062.3(g), where Commissioner Razo found that, standing alone, communication may appear inconsequential, but taken together with PQME office’s earlier phone call to  applicant’s attorney’s office regarding videos, PQME’s denial of documentation of communication during his deposition, and PQME’s lack of disclosure of this documented communication to defendant in response to its subpoena, evidence in record was sufficient to tip scale to reflect appearance of impropriety by PQME that may only be remedied by new physician. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 22.11[18]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 15, § 15.03[4][e].]

■ Rochelle Boyd, Applicant v. Visser, National Interstate Richfield, Defendants, 2023 Cal. Wrk. Comp. P.D. LEXIS 117

Medical-Legal Procedure—Additional Qualified Medical Evaluator Panels—WCAB, granting reconsideration and rescinding WCJ’s decision, held that applicant who suffered admitted industrial injury to her cervical spine and lumbar spine while employed as bus driver on 9/18/2018, established good cause under 8 Cal. Code Reg. § 31.7(b) for issuance of additional qualified medical evaluator panels in internal medicine and psychiatry, when orthopedic panel qualified medical evaluator (PQME) deferred issue of causation of applicant’s non-orthopedic complaints to appropriate specialists who were outside of his area of expertise, and WCAB rejected WCJ’s assertion that medical referral by treating physician was required to establish good cause for obtaining additional panels in other specialties, and found instead that orthopedic PQME’s referral to other specialties constituted good cause for additional panels, noting that without additional panels in relevant specialties, applicant was essentially prevented from conducting medical-legal discovery necessary to determine nature and extent of her admitted injury. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 22.11[7]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 16, § 16.53[7].]

■ William Arey, Applicant v. Magic Mountain, LLC, Hartford Accident and Indemnity Company, administered by Broadspire, Defendants, 2023 Cal. Wrk. Comp. P.D. LEXIS 122

Medical-Legal Procedure—Ex Parte Communications—WCAB, after granting reconsideration, affirmed WCJ’s finding that there was no ex parte communication between applicant and agreed medical examiner (AME) based on fact that applicant’s sister provided information regarding applicant’s medical history and symptoms at AME evaluation, when WCAB, relying on reasoning in Belling v. United Parcel Service, Inc., 2015 Cal. Wrk. Comp. P.D. LEXIS 738 (Appeals Board noteworthy panel decision), and Trujillo v. TIC-The Industrial Company, 2019 Cal. Wrk. Comp. P.D. LEXIS 90 (Appeals Board noteworthy panel decision), found that family member conveying essential information to medical evaluator on behalf of injured employee under circumstances in which employee is unable to do so is considered to be communication by employee and does not constitute either ex parte or otherwise-prohibited communication under Labor Code § 4062.3, that applicant’s 9/10/2015 industrial head/brain injury significantly compromised his ability to recall his medical history and, according to AME, assistance of applicant’s sister was essential to medical-legal evaluation, that reasoning in Belling and Trujillo supported WCJ’s determination that, given applicant’s impairment, participation of applicant’s sister in AME’s evaluation was both necessary and permissible, and that to prohibit applicant from effectively conveying, through his sister, his symptoms and medical history as part of medical-legal evaluation would risk “absurd results,” which Court of Appeal has cautioned against; WCAB further observed that defendant misapplied doctrine of collateral estoppel in asserting that propriety of communication between applicant’s sister and medical-legal evaluator was previously litigated and resolved in defendant’s favor, because issue was never tried or decided on its merits but rather was subject of off-record discussion between WCJ and parties. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 22.11[18]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 15, § 15.03[4][e].]

MEDICAL PROVIDER NETWORKS

■ Sherrill Claytor, Applicant v. Alexander Latteri, M.D., State Compensation Insurance Fund, Defendants, 2023 Cal. Wrk. Comp. P.D. LEXIS 4, 88 Cal. Comp. Cases 628

Medical Provider Networks—Transfer of Care—Employer’s Liability for Outside Treatment—WCAB, after granting reconsideration, affirmed WCJ’s finding that applicant who suffered orthopedic industrial injury while employed as doctor’s assistant on 6/12/2014 was permitted to treat with Curtis Spencer, M.D., outside defendant’s medical provider network (MPN), when Dr. Spencer had acted as applicant’s primary treating physician with defendant’s authorization from 7/2014 to 6/2019, and defendant failed to establish effective transfer of applicant’s care to MPN per 8 Cal. Code Reg. §§ 9767.9 and 9767.12 after applicant selected new physician, Scott Small, M.D., as primary treating physician, when evidence showed applicant treated with Dr. Spencer for years and continued to treat with him even after she began treating with Dr. Small, and WCAB found that if Dr. Small were member of defendant’s MPN, there may be viable argument that applicant voluntarily returned herself to MPN by selecting him as her primary treating physician and that she may not now treat outside MPN absent denial of care, but because there was no substantial evidence in record establishing that Dr. Small was actually in defendant’s MPN, defendant failed to establish that applicant was treating within MPN when she requested that Dr. Spencer resume his role as primary treating physician. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 5.03; Rassp & Herlick, California Workers’ Compensation Law, Ch. 4, § 4.12.]

MEDICAL TREATMENT

■ Minnie Byrd, Applicant v. City of Los Angeles, PSI, Defendant, 2023 Cal. Wrk. Comp. P.D. LEXIS 49

Medical Treatment—Home Healthcare Services—Replacement of Previously-Approved Providers—WCAB, granting reconsideration, rescinded WCJ’s decision and held that defendant failed to meet its burden of proving change in applicant’s circumstances or condition showing that previously-approved home healthcare services provided by applicant’s daughter were no longer reasonably required to cure or relieve applicant from effects of her industrial injury, and that defendant must pay applicant’s daughter for her services, when WCAB found that applicant was permitted to choose her daughter to provide home healthcare services and, contrary to defendant’s assertion, was not required to obtain home healthcare services from provider selected by defendant, that defendant had previously approved provision of home healthcare by applicant’s daughter, supplemented by services provided by professional caretaker with whom applicant felt comfortable, that defendant failed to investigate or inquire into how termination of applicant’s home healthcare providers and replacement with new provider would affect applicant’s treatment, and while defendant may have considered replacement mere change of vendors, home healthcare services constituted not only treatment within meaning of Labor Code § 4600 but also care of personal and sensitive nature requiring applicant’s confidence with respect to her own personal dignity as well as to threat of exposure to COVID-19, that per Patterson v. The Oaks Farm (2014) 79 Cal. Comp. Cases 910 (Appeals Board significant panel decision), defendant was required to continue providing previously-approved home healthcare services until there was evidence of change in applicant’s condition or circumstances showing that those services were no longer reasonably required to cure or relieve from effects of applicant’s industrial injury, and that because defendant did not investigate how ceasing to provide services of applicant’s prior caretakers would affect her treatment, defendant failed to show change in circumstances or condition suggesting that those services were no longer reasonably required. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 5.04[6]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 4, § 4.06[3].]

■ Earl Moss, Applicant v. Kaiser Foundation Health Plan, PSI and adjusted by Sedgwick CMS, Defendants, 2023 Cal. Wrk. Comp. P.D. LEXIS 140

Medical Treatment—Independent Medical Review—Appeals—WCAB, after granting reconsideration, affirmed WCJ’s order remanding parties’ medical dispute to Administrative Director for evaluation by new independent medical reviewer after finding that 2/2/2022 independent medical review (IMR) determination upholding utilization review (UR) non-certification of requested medical treatment (platelet rich plasma injections) to treat applicant’s 1/3/2006 right shoulder injury was based on clearly erroneous finding of fact which was matter of ordinary knowledge, when WCAB found that IMR determination essentially adopted UR’s erroneous rationale for denial of treatment, which ignored applicant’s history of failed prior conservative treatment modalities, without sufficiently analyzing submitted medical records, applicant’s history of failed noninvasive treatments or UR’s rationale for non-certification and, therefore, IMR reviewer did not arrive at independent conclusions regarding medical necessity, and that to extent IMR determination was based on applicant not having “trialed and failed” all noninvasive conservative measures, IMR decision was based on clearly erroneous facts not otherwise subject to expert opinion and was properly set aside by WCJ per Labor Code § 4610.6(h)(5). [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 5.02, 22.05[6]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 4, § 4.11.]

PERMANENT DISABILITY

■ Christina Hirsch, Applicant v. Physicians for Healthy Hospitals, Arch Insurance Company Healthcare, Inc., Defendants, 2023 Cal. Wrk. Comp. P.D. LEXIS 54

Permanent Disability—Apportionment—Disability Caused by Medical Treatment—WCAB, denying reconsideration, affirmed WCJ’s finding that applicant suffered 100 percent permanent disability arising out of industrial medical treatment she received following admitted injury consisting of laceration to her right thumb while working as registered nurse on 2/26/2019, and agreed with WCJ’s determination that applicant’s disability was not subject to apportionment based on principles espoused in Hikida v. W.C.A.B. (2017) 12 Cal. App. 5th 1249, 219 Cal. Rptr. 3d 654, 82 Cal. Comp. Cases 679, when substantial medical evidence showed that industrial medical treatment for applicant’s thumb injury in form of administration of antibiotic Bactrim to prevent infection directly precipitated significant adverse reaction resulting in conditions including allergic dermatitis and chronic regional pain syndrome (CRPS), and that sequelae of medical treatment were sole cause of allergic dermatitis and CRPS resulting in applicant’s permanent total disability, and because industrial medical treatment is not subject to apportionment, as described in Hikida, additional disability solely caused by treatment likewise cannot be apportioned. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 8.05[1]-[3], 8.06[5]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 7, §§ 7.40, 7.41, 7.42[3]; The Lawyer’s Guide to the AMA Guides and California Workers’ Compensation, Chs. 4, 6.]

■ Roberta Hernandez, Applicant v. Ventura Post Acute, Starstone National Insurance Company, Administered By Cannon Cochran Management Services, Inc., Defendants, 2023 Cal. Wrk. Comp. P.D. LEXIS 123, petition for reconsideration filed 6/5/2023

Permanent Disability—Rating—Rebuttal of Scheduled Rating—WCAB, granting reconsideration and amending WCJ’s decision in split panel opinion, held that reporting of applicant’s vocational expert was sufficient, pursuant to Ogilvie v. W.C.A.B. (2011) 197 Cal. App. 4th 1262, 129 Cal. Rptr. 3d 704, 76 Cal. Comp. Cases 624, and LeBoeuf v. W.C.A.B. (1983) 34 Cal. 3d 234, 193 Cal. Rptr. 547, 666 P.2d 989, 48 Cal. Comp. Cases 587, to rebut 45 percent scheduled permanent disability rating awarded by WCJ, and support finding that applicant, while employed as medical records director, suffered 100 percent permanent disability as result of 8/21/2019 industrial back injury, when applicant’s vocational expert opined that very restrictive work preclusions (including no bending, stooping or twisting) imposed by orthopedic qualified medical evaluator (QME) rendered applicant unemployable and not amenable to vocational rehabilitation, and WCAB panel majority found that applicant’s vocational expert was more persuasive than defendant’s vocational expert, who did not contradict determination that applicant was unemployable but rather apportioned part of applicant’s disability to nonindustrial factors without substantial medical evidence to support such apportionment, and WCAB further found that opinion of applicant’s vocational expert that applicant’s chronic pain could make her less employable, which was basis for WCJ’s rejection of vocational expert’s opinion, was irrelevant since expert ultimately based his finding of unemployability solely on applicant’s medical work preclusions; Commissioner Razo, dissenting, would affirm WCJ’s permanent disability award based on his finding that applicant’s vocational expert took unreasonably restrictive view of applicant’s work preclusions, and that medical evidence did not support finding of permanent total disability, where QME’s report stated that applicant could do sedentary work for four hours per day, with some walking and standing, and did not include any pain add-on or mention any use of opiates. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 8.02[3], [4], 32.01[3][a][ii], 32.03A; Rassp & Herlick, California Workers’ Compensation Law, Ch. 7, §§ 7.05[3][d], 7.12[2][a], [d][iii], 7.42[2]; The Lawyer’s Guide to the AMA Guides and California Workers’ Compensation, Ch. 7.]

PRESUMPTION OF INDUSTRIAL CAUSATION

■ Christophe Lelong, Applicant v. Beverly Hills Police Department, PSI, administered by Corvel, Defendants, 2023 Cal. Wrk. Comp. P.D. LEXIS 30

Presumption of Industrial Causation—Blood-Borne Infectious Diseases—Peace Officers—WCAB, after granting reconsideration, affirmed decision in which WCJ found that applicant, while employed as police officer from 12/18/2019 through 1/9/2020, sustained industrial injury to his sinuses and respiratory system, and that his injury arose from blood-borne infectious disease, triggering Labor Code § 3212.8 presumption of industrial causation which defendant did not rebut, when WCAB reasoned that under Labor Code § 3212.8(d), presumption applies to infectious disease caused by “exposure to pathogenic microorganisms that are present in human blood that can cause disease in humans,” that “blood-borne” infectious disease does not mean originating in blood but rather carried or transmitted by blood, that in this case plain language of Labor Code § 3212.8 compelled finding that applicant sustained presumptively compensable injury where medical record established applicant’s sinus and lung infections resulted from exposure to pathogenic microorganism Citrobacter koseri, which qualified medical evaluator confirmed was transmissible via blood, that applicant, therefore, met burden of proof necessary for presumption of industrial causation to attach, and that defendant’s speculation that applicant could have acquired infection outside of work did not meet affirmative burden of proof required to rebut presumption. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 4.138[4][j]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 10, § 10.07[5][f].]

PSYCHIATRIC INJURY

■ Ezra Centeno, Applicant v. Harbor Freight Tools, Safety National Casualty Corporation, administered by Corvel Corporation, Defendants, 2023 Cal. Wrk. Comp. P.D. LEXIS 8, 88 Cal. Comp. Cases 618

Psychiatric Injury—Good Faith Personnel Actions—WCAB, granting reconsideration, rescinded WCJ’s finding that applicant’s claim for psychiatric injury was not barred by Labor Code § 3208.3(h) good faith personnel action defense, and returned matter to WCJ to revisit issue, when WCAB found that WCJ utilized overly restrictive standard in determining whether events causing applicant’s psychiatric injury were good faith personnel actions, that contrary to WCJ’s finding, it is not necessary that event involve termination, formal disciplinary action, or any adverse action against applicant in order to be considered personnel action for purposes of Labor Code § 3208.3(h), that in his analysis, WCJ failed to recognize that per Larch v. Contra Costa County (1998) 63 Cal. Comp. Cases 831 (Significant Panel Decision), “personnel actions” include broader conduct attributable to management in managing its business, including reviewing, criticizing, demoting, transferring, or disciplining employee, that on remand WCJ must apply broader standard to each employment event identified by agreed medical examiner (AME) in determining whether events were attributable to management in managing its business, that in addition to using overly narrow standard to evaluate good faith personnel action defense, WCJ did not adequately conduct required multi-level analysis in Rolda v. Pitney Bowes, Inc. (2001) 66 Cal. Comp. Cases 241 (Appeals Board en banc opinion), and must do so on remand, and that while AME’s report relied upon by WCJ assigned percentages of causation for each employment event identified, AME failed to provide any explanation or analysis as to how those percentages were calculated and, therefore, record may need to be further developed in order to assess whether good faith personnel actions were substantial cause of applicant’s psychiatric injury so as to bar her claim pursuant to Labor Code § 3208.3(h). [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 4.02[3][a], [b], [f], 4.69[3][a], [b], [d]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 10, § 10.06[3][b], [d].]

■ Marleny Canahui De Buraye, Applicant v. Smithfield Foods, Inc., Safety National Casualty, administered by ESIS, Defendants, 2023 Cal. Wrk. Comp. P.D. LEXIS 128

Psychiatric Injury—Entitlement to Increased Impairment Rating—WCAB, granting reconsideration, amended decision in which WCJ found that applicant meat processing worker who injured her fingers on 4/5/2019 while cleaning meat cutter was not entitled to increased impairment rating for psychiatric injury based on qualified medical evaluator’s (QME) finding that psychiatric injury was compensable consequence of orthopedic injury, and WCAB returned matter to WCJ for further proceedings on issue of increased impairment, when WCAB found that QME’s opinion was not substantial evidence on which WCJ could rely because it was insufficient for QME, who determined that applicant’s psychiatric injury was predominantly caused by employment events for purposes of compensability under Labor Code § 3208.3(b), to simply state that psychiatric injury was compensable consequence of orthopedic injury but rather QME must explain which of applicant’s psychiatric symptoms were directly caused by 4/5/2019 incident and which were compensable consequence of physical injury, and also must identify what percentage of psychiatric injury was directly caused by specific incident and what percentage was compensable consequence, that because there was no medical evidence in existing record regarding causation percentages and applicant did not testify at trial as to her symptoms or explain how her injury occurred, WCAB could not make preliminary determination regarding whether Labor Code § 4660.1 (barring increased impairment for compensable consequence psychiatric injuries other than those caused by violent acts or catastrophic injuries) applied to bar award of increased impairment, that record should be developed by way of witness testimony and medical reporting as to applicant’s symptomatology and how injury occurred, and that should further-developed record establish that applicant’s psychiatric injury was predominantly compensable consequence of her physical injury rather than direct result of incident, issue of whether applicant may be entitled to increased impairment rating based on violent act or catastrophic injury exception to bar against increased impairment should be developed with witness testimony regarding nature and extent of force involved in applicant’s injury, and by further medical reporting analyzing factors in Wilson v. State of CA Cal Fire (2019) 84 Cal. Comp. Cases 393 (Appeals Board en banc opinion). [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 4.02[3][a], [b], 4.69[1], [3][a]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 10, § 10.06[3][a].]

■ Jason Hunter, Applicant v. Safety National Casualty Company, administered by American Claims Management, Inc., Defendants, 2023 Cal. Wrk. Comp. P.D. LEXIS 119

Psychiatric Injury—Violent Acts—Substantial Cause Standard—WCAB, denying reconsideration, affirmed WCJ’s finding that applicant, while employed as nurse on 1/22/2021 and during period 4/2021 through 11/11/2021, suffered compensable psychiatric injury, when WCAB determined that applicant was victim of violent act when he was assaulted by patient at work on 1/22/2021 and, therefore, was not subject to predominant cause standard of proof for that injury but rather was required under Labor Code § 3208.3(b)(2) to show that work events on 1/22/2021 were “substantial cause” (35 to 40 percent) of injury, and WCAB concluded that qualified medical evaluator’s (QME) opinion was substantial evidence establishing that (1) applicant’s 1/22/2021 specific injury, which aggravated his previous non-industrial post-traumatic stress disorder from his combat service in Marines, caused 40 percent of psychiatric injury and met “substantial cause” standard under Labor Code § 3208.3(b)(2), (2) applicant’s cumulative injury was inextricably intertwined with specific injury and both arose from being victim of violent act, (3) cumulative injury resulted in 30 percent causation, with 5 percent added for separate work incident QME viewed as part of cumulative trauma claim, and (4) because 35 percent of cumulative trauma was work-related, cumulative injury claim was also compensable under Labor Code § 3208.3(b)(2). [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 4.02[3][a], [b], 4.69[1], [3][a]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 10, § 10.06[3][a].]

SETTLEMENTS

■ Irma Dufelmeier, Applicant v. Kaiser Foundation Hospitals, PSI, administered by Sedgwick Claims Management Services, Defendants, 2023 Cal. Wrk. Comp. P.D. LEXIS 139

Settlements—Compromise and Release Agreements—Medicare Set-Aside—WCAB, denying reconsideration, affirmed WCJ’s Order Approving Compromise and Release but rejecting language in Compromise and Release agreement which would have settled all rights of Centers for Medicare & Medicaid Services against parties and would have required applicant to reimburse defendant if Medicare sought relief, when WCAB found that WCJ was not required to provide blanket approval of parties’ settlement, which totaled 17 pages and included language regarding Medicare obligations that were outside of WCAB’s jurisdiction, and that WCJ correctly declined to approve language in settlement shifting Medicare liability to applicant. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 29.09[3][b]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 18, §§ 18.01[3], 18.07.]

SUPPLEMENTAL JOB DISPLACEMENT BENEFIT

■ Lillian Lona, Applicant v. The Disneyland Resort, PSI, Disney Anaheim, Defendants, 2023 Cal. Wrk. Comp. P.D. LEXIS 55

Supplemental Job Displacement Benefit—Training Vouchers—Extension of Time Limitations—WCAB, granting reconsideration and reversing WCJ, held that applicant merchandise host who suffered industrial orthopedic injury on 5/17/2014 was entitled to extension of time to utilize Supplemental Job Displacement Benefit (SJDB) voucher (which applicant wished to use for computer training and which expired 3/18/2021) beyond two-year time limit provided in Labor Code § 4658.7(f), when WCAB reasoned that unforeseen COVID-19 pandemic and Governor Newsom’s resulting stay-at-home order fundamentally altered life beginning March 2020, that statute may be exempt from compliance due to legal impossibility, and COVID-19 pandemic created such legal impossibility with respect to SJDB voucher time limitation, that if intent of Labor Code § 4658.7(f) is to give limited amount of time for workers to use voucher, this limited time was expanded by pandemic closures, and that given applicant’s age, her testimony establishing that she did not have necessary skills to apply for jobs online, and her underlying health conditions placing her at risk for COVID-19, justice dictated that expiration of voucher be tolled for 15 months, which was duration of stay-at-home order. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 35.03; Rassp & Herlick, California Workers’ Compensation Law, Ch. 21, § 21.03.]

TEMPORARY DISABILITY

■ Jose Luis Varas, Applicant v. Teresa Lobatos, Allstate Insurance, administered by Sedgwick Claims Management Services, Defendants, 2023 Cal. Wrk. Comp. P.D. LEXIS 146

Temporary Disability—Calculating Rate of Payment—Earning Capacity—WCAB, granting reconsideration, amended decision in which WCJ applied current local minimum wage of $16.04 per hour to applicant house painter’s 1992 injury in order to determine that applicant’s earning capacity was $641.60 per week, producing temporary disability benefit rate of $427.73 per week, and WCAB instead awarded applicant temporary disability at current statutory minimum rate of $242.86 per week, when WCAB, citing Grossmont Hospital v. W.C.A.B. (Kyllonen) (1997) 59 Cal. App. 4th 1348, 69 Cal. Rptr. 2d 842, 62 Cal. Comp. Cases 1649, reasoned that in determining employee’s earnings capacity over course of disability, WCAB should consider only those factors existing at time of injury or those that could reasonably be anticipated at that time based on specific, demonstrable evidence, and that because local minimum wage in 2023 was not reasonably anticipated factor at time of applicant’s 1992 injury, applicant did not establish through specific, demonstrable evidence that wage capacity analysis based on current minimum wage was appropriate basis for WCJ’s wage capacity determination; however, WCAB explained that Labor Code § 4661.5 and Hofmeister v. W.C.A.B. (1984) 156 Cal. App. 3d 848, 203 Cal. Rptr. 100, 49 Cal. Comp. Cases 438, require application of current temporary disability rates to payments made more than two years after date of injury, and that, accordingly, applicant was entitled to statutory rates available as of date of payment of temporary disability benefits for periods of temporary disability incurred more than two years from date of his 1992 injury, which in this case was statutory minimum rate of $364.29 per week, with corresponding weekly temporary disability rate of $242.86. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 6.01, 6.02, 7.04[1][b]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 5, § 5.04; Ch. 6, §§ 6.01, 6.08.]

WORKERS’ COMPENSATION APPEALS BOARD PROCEDURE

■ Virginia Saavedra, Applicant v. Michael Sullivan Associates, LLP, Employers Assurance, Defendants, 2023 Cal. Wrk. Comp. P.D. LEXIS 12

WCAB Procedure—Substitution of Insurer for Employer—WCAB, after granting reconsideration, rescinded WCJ’s order dismissing defendant Michael Sullivan & Associates (Michael Sullivan) as party to workers’ compensation proceeding pursuant to Labor Code § 3755, and instead dismissed Michael Sullivan pursuant to Labor Code §§ 3757 and 3759, when record showed that Employers Assurance Group (Employers Assurance) joined proceeding as Michael Sullivan’s workers’ compensation carrier and assumed liability for any potential compensation owed to applicant and, therefore, WCAB was permitted to substitute Employers Assurance for Michael Sullivan as sole defendant in this case pursuant to Labor Code §§ 3757 and 3759, which allows WCAB to substitute insurer for employer in workers’ compensation proceedings, thereby relieving employer from liability, where insurer has assumed liability for compensation to applicant, and despite Michael Sullivan’s contrary assertion, WCAB found that there was no conflict of interest between Michael Sullivan and Employers Assurance regarding compensation issues which would require Michael Sullivan to remain as party for purposes of conducting discovery and participating in workers’ compensation proceeding, and further found that dismissing Michael Sullivan from case did not preclude it from attending proceedings and participating in discovery conducted by Employers Assurance, although Michael Sullivan was not entitled to conduct its own separate discovery after being dismissed as party. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 25.28; Rassp & Herlick, California Workers’ Compensation Law, Ch. 16, § 16.07[7].]