The U.S. Department of Labor has issued new data showing California's State Average Weekly Wage (SAWW) edged down 0.48 percent from $1,650 to $1,642 in the 12 months ending March 31, 2023. As a result...
CALIFORNIA COMPENSATION CASES
Vol. 88, No. 11 November 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...
By Hon. Susan V. Hamilton, Former Assistant Secretary and Deputy Commissioner, California Workers’ Compensation Appeals Board
Nearly two decades ago Senate Bill 899 was enacted and ushered in a...
LexisNexis has selected some recently issued noteworthy IMR decisions that illustrate the criteria that must be met to obtain authorization for a variety of different medical treatment modalities. LexisNexis...
By Hon. Susan V. Hamilton, Former Assistant Secretary and Deputy Commissioner, California Workers’ Compensation Appeals Board
Early in the COVID-19 pandemic we learned that nursing care facilities...
LexisNexis has selected some of the top “noteworthy” panel decisions issued by the California Workers’ Compensation Appeals Board during the period January through June 2020. The list highlights several cases in which the WCAB interprets new laws limiting California jurisdiction over claims by professional athletes. One of the top panel decisions issued this year holds that parties may take their QME panel specialty disputes directly to the WCJ without first going to the Medical Director. There, the WCAB acknowledged its disagreement with a prior panel decision and with the language in 8 Cal. Code Reg. § 31.5(b). Another decision emphasizes that employers have a duty to investigate, reasonably and in good faith, the medical needs of injured employees, and found that a faulty fax transmission requesting treatment did not relieve the employer of this duty. Finally, the list includes a case where applicant properly asserted a specific injury claim after contracting West Nile Virus from a single mosquito bite, even though he did not know the precise date on which he was infected. (Part Two of this blog post will appear the following week.)
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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LEXIS ADVANCE ONLINE USERS CAN LINK ON THE CITATIONS TO READ THE PANEL DECISIONS.
ALTERNATIVE DISPUTE RESOLUTION
■ Marta Sanchez Jimenez and Mercedes Perez, Applicants v. Samuel Hale, LLC, insured by State National Insurance Company, administered by Travelers Property Casualty Company of America, Defendants, 2020 Cal. Wrk. Comp. P.D. LEXIS 150
Alternative Dispute Resolution—WCAB Jurisdiction—WCAB affirmed WCJ’s finding that WCAB lacked jurisdiction over applicants’ claims against defendant Samuel Hale, LLC (Hale) for cumulative injuries incurred from 7/2013 to 7/2018, during which period applicants were employed by Hale and by Doc Johnson Enterprises (Doc Johnson), when defendant established that claims against Hale were subject to valid alternative dispute resolution carve-out (ADR) Agreement between Hale and UFCW-8 Golden State Union (UFCW), and although applicants asserted that they were not subject to ADR Agreement because they were not members of UFCW, were never notified or made aware of union’s existence and never benefitted from union representation, and that because UFCW was not bona fide labor organization under 8 Cal. Code Reg. 10200(e), ADR agreement was invalid, WCAB concluded that (1) defendant produced sufficient evidence to establish that applicants became members of union when their employment “rolled over” from Doc Johnson to Hale and they began paying union dues, (2) WCAB did not have authority to invalidate ADR agreement based on applicants’ allegations of unfair labor practices by Hale and UFCW, although applicant may have remedies in other tribunals, (3) ADR agreement was recognized as valid by Administrative Director pursuant to Labor Code § 3201.7 and 8 Cal. Code Reg. § 10200 et seq., and WCAB lacked jurisdiction to review Administrative Director’s determination of agreement’s validity, and (4) applicants have option of electing against employer Doc Johnson, which did not have union and is within WCAB jurisdiction. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 1.04A; Rassp & Herlick, California Workers’ Compensation Law, Ch. 16, § 3.04.]
■ Edelia Cardona, Applicant v. Valjen, Inc. dba Caesars Pizza, State Farm California Workers’ Compensation, Defendants, 2019 Cal. Wrk. Comp. P.D. LEXIS 578
Attorney’s Fees—Unreasonably Delayed Payment of Attorney’s Fee Award—WCAB rescinded WCJ’s decision that applicant’s attorney was not entitled to attorney’s fees under Labor Code § 5814.5 for attorney’s efforts to enforce payment of stipulated attorney’s fee award which WCJ found was unreasonably delayed by defendant in violation of Labor Code §§ 5813 and 5814, and WCAB returned matter to trial level with recommendation that WCJ follow analytical frameworks outlined in Turner v. Baltimore Ravens, 2013 Cal. Wrk. Comp. P.D. LEXIS 30 (Appeals Board noteworthy panel decision), to evaluate whether and to what extent attorney’s fees should be awarded to applicant and/or her attorney pursuant to Labor Code §§ 5813, 5814 and 5814.5, respectively, when WCAB found that in instant case, as in Turner, where applicant’s attorney attempted to obtain attorney’s fees that had been previously awarded, mandatory language of Labor Code § 5814.5 required that award of reasonable attorney’s fees be made directly to applicant’s attorney in addition to fees awarded separately under Labor Code §§ 5813 and 5814. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 10.42, 20.02[e]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 11, § 11.11.]
CALIFORNIA INSURANCE GUARANTEE ASSOCIATION
■ Maria Miranda, Applicant v. Select Staffing, Evans Manufacturing, CIGA, Defendants, 2020 Cal. Wrk. Comp. P.D. LEXIS 127
California Insurance Guarantee Association—Other Insurance—Restricting and Limiting Endorsements—WCAB affirmed arbitrator’s decision that defendant ACE American Insurance Company, who provided coverage for non-leased employees of applicant’s general employer Select Staffing, was liable for industrial injuries incurred by applicant in 2011 while assigned to work for special employer Evans Manufacturing, when carrier providing workers’ compensation coverage to Select Staffing’s leased employees, including applicant, was liquidated and its covered claims were assumed by California Insurance Guarantee Association, and WCAB found that endorsement in ACE insurance policy excluding employees of Select Staffing who worked at specific locations, including Evans Manufacturing, was invalid because ACE did not show that it obtained approval from Insurance Commissioner to use endorsement and, therefore, ACE policy constituted “other insurance” providing coverage for applicant’s injuries. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 2.60, 2.84[a], 3.142; Rassp & Herlick, California Workers’ Compensation Law, Ch. 3, §§ 3.30, 3.33.]
■ Greg Eisert, Applicant v. City of Vacaville, PSI and administered by Innovative Claims Solutions, Inc., Defendants, 2020 Cal. Wrk. Comp. P.D. LEXIS 63
Discovery—Subpoena Duces Tecum—Police Officer Personnel/Medical Records—WCAB granted defendant’s Petition for Removal and rescinded WCJ’s Order Quashing Subpoenas Duces Tecum, wherein WCJ disallowed defendant’s subpoenas seeking personnel records, including Police Officer Standards and Training (POST) documents, pre-employment physical documents, physical fitness tests, and “on-the-job” injury reports, from applicant police officer’s former employers, based on defendant’s failure to comply with requirements of Evidence Code §§ 1043-1046, and WCAB issued new order denying Petition to Quash, except with regard to request for POST documents, when WCAB, relying on decision in Collins v. City of Vacaville (2019) 84 Cal. Comp. Cases 340 (Appeals Board noteworthy panel decision), found that compliance with Evidence Code §§ 1043-1046 is not required where defendant in workers’ compensation proceeding seeks routine discovery of medical records and injury-related records that applicant put into issue by filing claim, but WCAB returned matter to trial level to determine whether defendant’s request for POST documents should be similarly exempt as “routine discovery,” or whether compliance with Evidence Code §§ 1043-1046 is required to obtain these documents. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 1.11[g], 25.40, 25.43, 26.03; Rassp & Herlick, California Workers’ Compensation Law, Ch. 15, § 15.45, Ch. 19, § 19.37.]
■ Jaime Arambul, Applicant v. Alejandra Ortiz, State Farm Insurance Company, Defendants, 2020 Cal. Wrk. Comp. P.D. LEXIS 33
Employment Relationships—Residential Employees—WCAB, reversing WCJ’s decision, held that applicant who alleged that he suffered industrial injuries to his head, lumbar spine, thoracic spine, cervical spine, right arm, and right shoulder while working as painter on 6/5/2018, did not come within statutory exclusion from employment codified in Labor Code § 3352(a)(8), notwithstanding that he had worked fewer than 52 hours at time of his injury, when WCAB found that law was changed in 2017 by amendment to Labor Code § 3352 to include as employees residential workers who have worked or have contracted to work for 52 hours or more, even if they have not actually worked 52 hours, and have earned or have contracted to earn $100.00 or more, and that evidence in this case established that applicant was contracted to work for more than 52 hours and had contracted to render his services for wages well over $100. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 3.36; Rassp & Herlick, California Workers’ Compensation Law, Ch. 2, § 2.05.]
■ Nate Leggette, Applicant v. CPS Security, PSI, Defendant, 2020 Cal. Wrk. Comp. P.D. LEXIS 3 [In April 2020 CCC, see Leggette v. CPS Security (2020) 85 Cal. Comp. Cases 321 (Appeals Board noteworthy panel decision)]
Injury AOE/COE—Pleading Injury as Specific Injury or Occupational Illness—West Nile Virus—WCAB rescinded WCJ’s finding that applicant, while employed as security guard on 9/23/2018, did not sustain industrial injury in form of West Nile Virus (spread by mosquitos), and issued new decision finding industrial injury, when WCAB concluded that WCJ erred in finding no injury on basis that applicant failed to specify and prove exact date he was bitten by infected mosquito for purposes of supporting claim of specific injury, and determined that (1) where Application for Adjudication of Claim form had options to plead either specific injury or cumulative injury, applicant correctly asserted specific injury given that his West Nile Virus arose out of single mosquito bite rather than longer period of exposure, (2) industrial injury may be specific and at same time constitute occupational disease, which is separate concept from cumulative injury and may result either from single exposure or exposure over extended period of time, (3) in alleging industrial injury on 9/23/2018, applicant here was alleging last date he was employed in occupation exposing him to hazardous condition, i.e., mosquitos and daily mosquito bites to which he was subjected based on location of his job site, (4) injured employees do not generally need to distinguish between date of potential exposure and Labor Code § 5412 date of injury unless it is relevant to issue in case, nor is there statutory requirement to show exact date of exposure, especially in cases such as this, where pinning down precise date would be nearly impossible, and (5) applicant met burden of proof to establish injury AOE/COE in form of West Nile Virus. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 4.05, 4.71, 25.05; Rassp & Herlick, California Workers’ Compensation Law, Ch. 10, §§ 10.01, 10.06[a], [c].]
■ Mark Worrell, Applicant v. San Diego Padres, ACE American Insurance Company/Chubb, administered by Sedgwick Claims Management, Defendants, 2020 Cal. Wrk. Comp. P.D. LEXIS 1 [In March 2020 CCC, see Worrell v. San Diego Padres (2020) 85 Cal. Comp. Cases 246 (Appeals Board noteworthy panel decision)]
WCAB Jurisdiction—Professional Athletes—WCAB rescinded WCJ’s decision that applicant’s claim for industrial injury incurred while playing professional baseball from 6/19/2004 to 5/8/2013 for various California and non-California teams, including defendant California-based San Diego Padres and its minor league affiliate Portland Beavers, was not exempt from California jurisdiction under Labor Code § 3600.5(d), and WCAB returned matter to trial level for determination of whether applicant worked 20 percent or more of his duty days as professional athlete in California or for California-based teams, when WCAB reasoned that (1) under Labor Code § 3600.5(d)(1), professional athlete’s claim is exempt from California jurisdiction if all of his or her employers during last year of work as professional athlete are exempt pursuant to Labor Code § 3600.5(c) or any other law, unless athlete worked two or more seasons for California-based team, or worked 20 percent or more of his or her duty days either in California or for California-based team, and worked fewer than seven seasons for any team or teams other than California-based team or teams, (2) although lack of personal jurisdiction over defendant is not “exemption” from California law, lack of subject matter jurisdiction over defendant is exemption under Labor Code § 3600.5(d), (3) in this case, applicant’s only employer during last year he played professional baseball (and last year of injurious exposure under Labor Code § 5500.5), Diablos Rojos del Mexico, was exempt because applicant was not hired in California by this employer, and there was no injurious exposure in California during this employment, (4) evidence also showed that applicant did not work two or more seasons for California-based team, and worked fewer than seven seasons for teams other than California-based teams, making his claim exempt under Labor Code § 3600.5(d) unless he worked 20 percent or more of his duty days either in California or for California-based team, (5) Labor Code § 3600.5(d)(1)(A) mandates that percentage of duty days be calculated by dividing number of duty days athlete worked for California-based teams, plus number of duty days he or she worked as professional athlete in California for any team other than California-based team, by total number of duty days athlete was employed anywhere as professional athlete, (6) record in this case does not allow for day-by-day accounting of applicant’s professional career as mandated by Legislature to determine whether applicant met 20 percent threshold, and requires further development on this issue, and (7) on remand, WCJ should keep in mind that “duty days” are days athlete actually performed work under employer’s direction or control, include days working outside United States, and are not limited to days during professional season, but also include employment (such as Winter Ball) outside that period, and, further, duty days working for non-California minor league affiliates of California-based teams for which athlete is employed should be counted as days played for California-based team. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 3.22, , 21.02, 21.06, 21.07; Rassp & Herlick, California Workers’ Compensation Law, Ch. 13, §§ 13.01, 13.02.]
■ Thomas Wilson, Applicant v. Florida Marlins, et al., ACE American Insurance administered by Sedgwick Claims Management Services, Defendants, 2020 Cal. Wrk. Comp. P.D. LEXIS 30
WCAB Jurisdiction—Professional Athletes—WCAB affirmed WCJ’s finding that applicant’s claim for cumulative injury incurred while playing professional baseball for various teams, including defendant Florida Marlins, during period 6/20/91 to 9/4/2006, was not exempt from California jurisdiction under Labor Code § 3600.5(c) and (d), when WCAB rejected defendant’s assertion that Labor Code § 3600.5(c) and (d) override general jurisdictional provisions of Labor Code §§ 3600.5(a) and 5305 that provide for jurisdiction where there is California hire during period of injury, and only apply to claims where there is no California hire, and WCAB reasoned that (1) language in Labor Code § 3600.5(c) exempting “a professional athlete who has been hired outside of this state and his or her employer” is ambiguous as applied to claim such as this, where applicant has California contracts of hire but not with particular employer that is asserting exemption from California jurisdiction, (2) to resolve ambiguity, WCAB must consider purpose of statute, legislative history, and public policy behind provisions, (3) stated purpose of amending Labor Code § 3600.5 was to limit ability of “out of state professional athletes” with “extremely minimal California contacts” to file workers’ compensation claims in California, (4) Legislature did not intend for § 3600.5(c) and (d) exemption to apply to athletes who had been hired in California by at least one employer during cumulative trauma period, (5) because applicant in this case was lifelong resident of California prior to 2000, signed contracts with various teams in California and was regularly employed by California-based teams, his contact with California could not be characterized as “extremely minimal,” (6) it was unlikely Legislature had claims such as applicant’s in mind when it sought to limit access to California compensation system by out-of-state athletes with minimal connections to state, (7) most reasonable interpretation of Labor Code § 3600.5(c) and (d) is that they are intended to apply only to athletes who cannot establish jurisdiction under Labor Code §§ 3600.5(a) and 5305, and (8) given that applicant was hired in California by multiple teams during cumulative trauma period, WCAB may properly exercise jurisdiction over his claim. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 3.22, , 21.02, 21.06, 21.07; Rassp & Herlick, California Workers’ Compensation Law, Ch. 13, §§ 13.01, 13.02.]
■ Gloria Lopez Contreras, Applicant v. Randstad North America dba Placement Pros West, ACE American Insurance, adjusted by ESIS, Defendants, 2020 Cal. Wrk. Comp. P.D. LEXIS 12
Medical-Legal Procedure—Replacement Qualified Medical Evaluator Panels—Specialty Designation—WCAB affirmed WCJ’s decision that chiropractic was not medically or otherwise inappropriate specialty to evaluate disputed medical issues associated with applicant laborer’s 10/27/2018 orthopedic injury claim, and that Medical Director’s issuance of replacement panel in specialty of orthopedic surgery at defendant’s request was improper, when WCAB noted that it has ultimate authority to determine appropriate medical specialty and that Medical Director’s determination is not dispositive and may be disregarded if it is not supported by substantial evidence, and WCAB found that under 8 Cal. Code Reg. § 31.5(a)(10), Medical Director can issue replacement panel only if specialty originally selected is “medically or otherwise inappropriate,” and that in this case Medical Director indicated that orthopedic specialist was appropriate to evaluate applicant because of education and experience evaluators in this specialty possess, but did not explain why chiropractor’s education and experience would be insufficient to address disputed medical issues, and without adequate explanation from Medical Director regarding specialty, WCJ was not obligated to follow Medical Director’s determination and correctly determined that chiropractic was not medically or otherwise inappropriate panel specialty to address disputed issues. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 22.11, ; Rassp & Herlick, California Workers’ Compensation Law, Ch. 16, § 16.54, .]
■ Ronald Porcello, Applicant v. State of California Department of Corrections & Rehabilitation, legally uninsured, adjusted by State Compensation Insurance Fund, Defendants, 2020 Cal. Wrk. Comp. P.D. LEXIS 9 [In April 2020 CCC, see Porcello v. State of California Department of Corrections & Rehabilitation (2020) 85 Cal. Comp. Cases 327 (Appeals Board noteworthy panel decision)]
Medical-Legal Procedure—Replacement Qualified Medical Evaluator Panels—Specialty Designation—WCAB rescinded decision in which WCJ found that defendant’s dispute regarding qualified medical evaluator specialty was premature for decision by WCAB, and that parties must await determination by Medical Unit regarding defendant’s objection to chiropractic specialty before proceeding with qualified medical evaluations to address medical issues in connection with applicant correctional officer’s 4/4/2016 and 2/7/2019 orthopedic injury claims, and WCAB returned matter to trial level for WCJ to address panel specialty dispute in first instance, when WCAB reasoned that nothing in Labor Code precludes party from submitting panel specialty dispute to WCJ prior to or instead of submitting dispute to Medical Director, and WCJ may address this dispute pursuant to general authority to adjudicate workers’ compensation claims and to address discovery disputes arising in those claims, and to extent decision in Portner v. Costco, 2016 Cal. Wrk. Comp. P.D. LEXIS 499 (Appeals Board noteworthy panel decision), indicated that party must submit panel specialty dispute to Medical Director before submitting dispute to WCJ, WCAB disagreed with its analysis. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 22.11, ; Rassp & Herlick, California Workers’ Compensation Law, Ch. 16, § 16.54, .]
■ Brandy Miller, Applicant v. Apple One Employment Services, Chubb Insurance, Administered By Gallagher Bassett Services, Inc., Defendants, 2020 Cal. Wrk. Comp. P.D. LEXIS 95
Medical Treatment—Utilization Review—Time Deadlines—WCAB affirmed WCJ’s decision awarding applicant administrative coordinator who suffered 2/4/2010 industrial injuries to her neck, upper and lower extremities, psyche, spinal cord, and in form of Brown-Seguard Syndrome, reasonable and necessary medical treatment, including wheelchair accessible van, home health care services, hospital bed and mattress, and wheelchair cushion, when defendant’s utilization review (UR) denials of requested treatment were untimely, and WCAB found that faulty fax transmission of request for authorization (RFA) for treatment sent by applicant’s primary treating physician did not relieve defendant of responsibility to investigate applicant’s need for requested medical treatment and issue timely UR determinations, where WCAB reasoned that defendants have regulatory duty to conduct reasonable and good faith investigation to determine whether benefits are due, that with respect to specific request for home health care services, defendant, upon receiving notice that home health care may be needed or is being provided, has duty under Labor Code § 4600 to investigate such need, that in this case treating physician’s report and home health assessment accompanying RFA provided sufficient information regarding applicant’s condition and her need for home health care/durable medical equipment to establish defendant’s duty to investigate, despite faxing problem, that defendant was obligated to review entire RFA and accompanying documents, and that because defendant did not properly investigate facts to determine extent of its obligation and needs of applicant, and instead simply waited for further service of RFA missing from fax, defendant did not timely conduct UR, and WCAB had jurisdiction to determine medical necessity of requested treatment. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 5.02[c], 22.05[b][iii]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 4, § 4.10.]
■ Angelique Diaz, Applicant v. Southern California Gas Company, PSI, Defendant, 2020 Cal. Wrk. Comp. P.D. LEXIS 68
Medical Treatment—Utilization Review—Penalties—WCAB rescinded WCJ’s decision that medical treatment rendered to applicant customer service representative for industrial injuries to her upper extremities, psyche, and in form of hypertension from 10/26/2006 through 2/20/2009 involved four instances in which there was inaccurate/improper application of utilization review (UR) statutory guidelines by UR physician, but WCAB concurred with WCJ’s finding that applicant was not entitled to recover penalties under Labor Code § 5814 for unreasonable delays in medical treatment caused by improper UR, when WCAB found that (1) under Dubon v. World Restoration, Inc. (2014) 79 Cal. Comp. Cases 1298 (Appeals Board en banc opinion) (Dubon II), where UR was timely, WCAB lacked jurisdiction over applicant’s allegations of inaccurate/improper application of UR’s mandatory guidelines, and parties’ stipulation purporting to allow WCJ to exercise jurisdiction over challenge could not confer jurisdiction where WCAB otherwise had none, and (2) applicant was barred by Labor Code § 4610.1 from recovering penalties under Labor Code § 5814 for delays in medical treatment based on alleged inaccurate/improper application of mandatory guidelines during completion of UR process. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 5.02, 22.05; Rassp & Herlick, California Workers’ Compensation Law, Ch. 4, § 4.10.]