CALIFORNIA COMPENSATION CASES Vol. 90, No. 1 January 2025 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...
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LexisNexis has selected some of the top “noteworthy” panel decisions issued by the California Workers’ Compensation Appeals Board during the period June through December 2024. Several of the cases address the issue of permanent disability and provide an excellent analytical framework for determining whether a scheduled permanent disability rating has been successfully rebutted per Ogilvie v. W.C.A.B. (2011) 197 Cal. App. 4th 1262, 129 Cal. Rptr. 3d 704, 76 Cal. Comp. Cases 624. These decisions elaborate on the proper legal standard for finding permanent total disability, integrate principles of apportionment as clarified in the recent en banc decision in Nunes v. State of California, Department of Motor Vehicles (2023) 88 Cal. Comp. Cases 741 (Appeals Board en banc opinion), and address how to apply the standards explained in Vigil v. County of Kern (2024) 89 Cal. Comp. Cases 686 (Appeals Board en banc opinion), when determining whether to add impairments or combine them using the CVC.
Also included here are two cases of particular interest to applicant’s attorneys and the Subsequent Injuries Benefits Trust Fund. In one of these decisions, the WCAB panel provides a summary of the Commissioners’ current position regarding how to interpret the time limitations applicable to filing SIBTF claims, which is currently one of the most contested issues arising in SIBTF litigation.
For the sports bar (so to speak), there is a panel decision applying the analysis set forth in Hansell v. Arizona Diamondbacks (2022) 87 Cal. Comp. Cases 602 (Appeals Board noteworthy panel decision), which held that a professional athlete’s contract for hire with one team made within California was sufficient to give the WCAB subject matter jurisdiction over the athlete’s entire cumulative trauma claim against multiple teams. The WCAB panel emphasized that subject matter jurisdiction applies to a claim in its entirety, not to individual defendants.
Finally, there are some particularly noteworthy decisions in this group of cases that provide valuable guidance with respect to medical treatment and utilization review, including a decision addressing the application of Patterson v. The Oaks Farm (2014) 79 Cal. Comp. Cases 910 (Appeals Board significant panel decision), a split panel opinion in which the WCAB panel majority applied the MTUS guidelines to approve spine surgery, and a decision clarifying the standard for expedited review of a medical treatment request.
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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CALIFORNIA INSURANCE GUARANTEE ASSOCIATION
■Billy Dykstra, Applicant v. Gilton Solid Waste Management, Inc., State Compensation Insurance Fund, California Insurance Guarantee Association through its servicing facility, Tristar Risk Management for Superior National Insurance, in liquidation, Defendants, 2024 Cal. Wrk. Comp. P.D. LEXIS 210
W.C.A.B. Nos. ADJ1004210 (STK 0099464), ADJ3914401 (STK 0099465), ADJ1467268 (STK 0099462), ADJ754893 (STK 0070105), ADJ1000131 (STK 0070104)—WCAB Panel: Commissioner Dodd, Chair Zalewski, Chair Razo
Workers’ Compensation Appeals Board (Board Panel Decision)
Opinion Filed June 7, 2024
California Insurance Guarantee Association—Other Insurance—WCAB, after granting reconsideration, affirmed WCJ’s findings that defendants State Compensation Insurance Fund (SCIF) and California Insurance Guarantee Association (CIGA), on behalf of now-insolvent insurer, were jointly and severally liable with respect to applicant’s 1996 Stipulated Award of 70.25 percent permanent disability for injuries to his right knee, low back and psyche, and that SCIF was responsible for administration and payment of future medical award, without reimbursement from CIGA, as well as reimbursement for any post-liquidation medical expenses paid by CIGA, because SCIF constituted “other insurance” under Insurance Code § 1063.1(c)(9)(i) such that CIGA had no obligation to pay these benefits, notwithstanding pre-liquidation stipulation apportioning 20 percent liability to SCIF and 80 percent to insolvent insurer, when WCAB disapproved holding in Gomez v. Casa Sandoval, Golden Eagle Ins. Co. [Nokes v. Placer Savings Bank] (2003) 68 Cal. Comp. Cases 753 (Appeals Board en banc opinion), noting that current state of law establishes that if CIGA and solvent insurer are jointly and severally liable for non-permanent disability benefits, WCAB cannot apportion liability between CIGA and solvent insurer, and, therefore, CIGA is not bound by pre-liquidation settlement apportioning liability; WCAB also determined that life pension constitutes permanent disability benefits and should be treated in same manner as permanent disability benefits in cases involving CIGA, and where CIGA has liability for permanent disability, it will also have liability for life pension. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 2.84[3][a], [c]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 3, § 3.33[3].]
COSTS
■Salvador Magallon, Applicant v. Ameri-Kleen Building Services, State Compensation Insurance Fund, Defendants, 2024 Cal. Wrk. Comp. P.D. LEXIS 283
W.C.A.B. No. ADJ7800884—WCJ Deborah Rothschiller (SBA); WCAB Panel: Commissioner Dodd, Chair Zalewski, Commissioner Snellings
Opinion Filed July 29, 2024
Costs—Interpreting Services—WCAB, after granting reconsideration, affirmed WCJ’s finding that cost petitioner met her burden of proof under 8 Cal. Code Reg. § 9795.3(b) and Kunz v. Patterson Floor Coverings, Inc. (2002) 67 Cal. Comp. Cases 1588 (Appeals Board en banc opinion), to establish market rate for interpreting services and was, therefore, entitled to additional payment for interpreting services provided to applicant during settlement discussions on 2/26/2021 and signing of Compromise and Release on 3/9/2021, both of which occurred at applicant’s attorney’s office, when cost petitioner billed $350.00 for each date of service and submitted documentation reflecting similar services she rendered and amount paid for those services, which WCAB found was sufficient under 8 Cal. Code Reg. § 9795.3(b) and Kunz to establish market rate and shift burden to defendant to produce rebuttal evidence, and WCAB rejected defendant’s assertion that payment of reduced rate was reasonable based on cost petitioner’s failure to submit documentation of what other interpreters accept for similar services, where WCAB found that neither rules nor Kunz require lien claimants/cost petitioners to submit evidence of payment accepted by other providers for similar services to establish market rate. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 23.13[3], 27.01[8][a]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 16, §§ 16.35[1], 16.49.]
EMPLOYMENT RELATIONSHIPS
■Victor Calderon, Applicant v. Unified Protective Services, CVS, Hampshire Insurance Company, administered by Sedgwick, State Compensation Insurance Fund, Uninsured Employers Benefits Trust Fund, Defendants, 2024 Cal. Wrk. Comp. P.D. LEXIS 175, 89 Cal. Comp. Cases --
W.C.A.B. Nos. ADJ10054510, ADJ10036961, ADJ10375254—WCJ Elisha Landman (LAO); WCAB Panel: Commissioner Capurro, Chair Zalewski, Commissioner Dodd
Opinion Filed June 25, 2024
Employment Relationships—General and Special Employers—WCAB, denying reconsideration, affirmed WCJ’s finding that applicant who suffered specific injuries on 3/16/2015 and 4/16/2015 and cumulative trauma from 10/20/2013 through 4/16/2015 while working as security guard, had dual employment relationship at time of his injuries, with illegally uninsured defendant United Protective Services (United) acting as his general employer and defendant CVS acting as his special employer, after he was placed at CVS by United to provide security services, and WCAB rejected CVS’s reliance on analysis 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, to assert that it did not exercise sufficient control over applicant’s work to demonstrate special employment relationship for purposes of having secondary liability for workers’ compensation coverage, when WCAB found Borello factors inapplicable to issue of dual employment, as Borello addresses whether workers are properly classified as independent contractors exempt from workers’ compensation, and, with respect to dual employment, WCAB found that employee may have more than one employer, and whether special employment relationship exists is generally factual question dependent largely on level of control employer exerts over details of employee’s work and benefit employer receives from employees services, that evidence in this matter established that CVS maintained and exercised substantial direction and control over applicant’s work duties so as to support finding of special employment, where applicant reported directly to CVS managers and followed their instructions during entirety of his work shift, knowing he would be subject to discipline for disobeying those instructions, and that nature of applicant’s duties as security guard demonstrated that he was integral part of CVS’s retail operations and its loss prevention program, thereby providing significant benefit to CVS. [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.]
■Jose Pineda, Applicant v. John Roser (Homeowner), D. John Roser, Inc., State Compensation Insurance Fund, and State Farm Fire & Casualty Company, administered by Sedgwick, Defendants, 2024 Cal. Wrk. Comp. P.D. LEXIS 258, petition for writ of review filed 9/13/2024
W.C.A.B. No. ADJ16907314—WCAB Panel: Chair Zalewski, Commissioners Capurro, Snellings
Opinion Filed July 30, 2024
Employment Relationships—Residential Employees—WCAB, granting reconsideration, rescinded decision in which WCJ found that applicant who alleged he was injured on 8/23/2022 while working on painting project in home of John Roser (Roser), was employed by general contractor D. John Roser, Inc. (DJR) for purposes of workers’ compensation liability, rather than by Roser as individual homeowner, despite WCJ’s findings that applicant met definition of “residential employee” under Labor Code § 3351(d) and would be excluded from workers’ compensation pursuant to Labor Code § 3352(a)(8), when WCAB concluded that WCJ erroneously relied on Labor Code § 2750.5 to find employment by DJR, based on applicant’s lack of contractor’s license, without substantial evidence that applicant was hired by DJR, that, contrary to WCJ’s finding, Labor Code § 2750.5 does not provide route to find workers’ compensation liability for claim that would otherwise be excluded pursuant to Labor Code § 3352(a)(8), that Labor Code §§ 2750.5 and 3352 operate together, with result being that when claim is excluded from workers’ compensation system by Labor Code § 3352(a)(8), it can instead be brought as civil tort claim, and Labor Code § 2750.5 can be relied upon to show employment relationship in civil tort lawsuit, that even if applicant’s claim was not exempt pursuant to Labor Code § 3352(a)(8), Labor Code § 2750.5 would not obviate need to show that applicant was actually hired by DJR, as corporate entity, and not by Roser, as individual homeowner, that evidence in this matter supported finding that applicant was residential employee under Labor Code § 3351(d) and that his claim was excluded under Labor Code § 3352(a)(8), and that, consequently, applicant’s recourse, if any, must be found in tort. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 3.36; Rassp & Herlick, California Workers’ Compensation Law, Ch. 2, § 2.05.]
INJURY AOE/COE
■Michael Kreza (Deceased), Shanna Kreza (Guardian ad Litem), Applicant v. City of Costa Mesa Fire Department, Defendant, 2024 Cal. Wrk. Comp. P.D. LEXIS 294, petition for writ of review filed 9/30/2024
W.C.A.B. No. ADJ12674446—WCAB Panel: Commissioner Razo, Chair Zalewski, Commissioner Capurro
Opinion Filed August 16, 2024
Injury AOE/COE—Off-Duty Recreational/Athletic Activities—WCAB, granting reconsideration, reversed WCJ’s decision and found that decedent, while employed as firefighter on 11/5/2018, sustained industrial injury when motorist struck and killed him while he was off-duty and riding bicycle, and that his claim was not barred by Labor Code § 3600(a)(9), when decedent regularly rode his bike while off-duty as method of exercise to meet fitness requirements of being firefighter, and WCAB, applying two-pronged test in Ezzy v. W.C.A.B. (1983) 146 Cal. App. 3d 252, 194 Cal. Rptr. 90, 48 Cal. Comp. Cases 611, held that decedent’s employer expected decedent to be physically fit, expressly allowed off-duty exercise and did not limit methods of exercise, and WCAB rejected defendant’s contention that decedent was training for triathlon, finding that fact that decedent’s motive to exercise was both personal and professional did not preclude finding of industrial injury. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 4.25; Rassp & Herlick, California Workers’ Compensation Law, Ch. 10, § 10.03[6].]
■Alberto Rubio, Applicant v. General Motors, PSI, Administered by Sedgwick Claims Management Services, Defendants, 2024 Cal. Wrk. Comp. P.D. LEXIS 319
W.C.A.B. Nos. ADJ10202584, ADJ8686996—WCJ Clint Feddersen (VNO); WCAB Panel: Commissioner Capurro, Chair Zalewski, Commissioner Dodd
Opinion Filed August 23, 2024
Injury AOE/COE—Work as Contributing Cause—Death Benefits—WCAB, denying reconsideration, affirmed WCJ’s decision that decedent, while employed by defendant as warehouseman during period 1/19/76 through 11/19/2012, sustained injury AOE/COE to his lumbar spine, neck, shoulders, thoracic spine, upper extremities, knees, hands, psyche, and in form of sleep disorder, and that industrial anxiety and depression were contributing cause of cardiopulmonary arrest that caused decedent’s death on 3/3/2020, such that decedent’s dependents were entitled to death benefits, when WCAB found that pursuant to South Coast Framing, Inc. v. W.C.A.B. (Clark) (2015) 61 Cal. 4th 291, 188 Cal. Rptr. 3d 46, 349 P.3d 141, 80 Cal. Comp. Cases 489, any contributing industrial role in employee’s death is sufficient to support finding of compensability, and that unrebutted medical opinions of decedent’s treating and consulting physicians in this case that work-related psychological stress and industrial sleep disorder contributed to decedent’s death were substantial evidence under Escobedo v. Marshalls (2005) 70 Cal. Comp. Cases 604 (Appeals Board en banc opinion), to support finding of industrial causation, and WCAB rejected defendant’s assertion that WCJ should not have awarded death benefits because agreed medical evaluator (AME) in decedent’s inter vivos case found that decedent sustained no industrial internal injury at that time, where AME’s findings ruling out cardiopulmonary problems occurred years prior to decedent’s death from acute cardiopulmonary arrest and were not sufficient to rebut specific opinions of treating and consulting physicians in death case regarding role of industrial stress-related psychological symptoms causing cardiac arrest. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 4.05, 9.01[1]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 9, § 9.02[1], [2]; Ch. 10, § 10.01[4].]
JURISDICTION
■Mark Carper, Applicant v. New York Yankees, TIG/Fairmont Premier Insurance Co., administered by Zenith Insurance Co., Baltimore Orioles, Travelers Indemnity Corp., Atlanta Braves, American Insurance Co., administered by Allianz, New York Yankees, California Insurance Guarantee Association on behalf of Legion Insurance Company, in liquidation, Defendants, 2024 Cal. Wrk. Comp. P.D. LEXIS 328
W.C.A.B. No. ADJ13657099—WCJ Josephine K. Broussard (ANA); WCAB Panel: Chair Zalewski, Commissioners Capurro, Dodd
Opinion Filed September 20, 2024
WCAB Jurisdiction—Professional Athletes—Contracts of Hire and Subject Matter Jurisdiction—Personal Jurisdiction—WCAB, denying reconsideration, affirmed WCJ’s finding that applicant’s contract for hire with Baltimore Orioles, made within California, was sufficient under Labor Code §§ 3600.5(a) and 5305 to confer subject matter jurisdiction over applicant’s claimed cumulative trauma while employed as professional baseball player from 2/15/91 to 10/15/96, that fact that team found liable for applicant’s injury, Atlanta Braves (Braves), had no contract for hire in California was not determinative, as subject matter jurisdiction applies to claim in its entirety, not to individual teams, and, consistent with analysis in Hansell v. Arizona Diamondbacks (2022) 87 Cal. Comp. Cases 602 (Appeals Board noteworthy panel decision), that Legislature did not intend Labor Code § 3600.5(c) exemption to apply to athletes who have been hired in California by at least one employer during cumulative injury period; WCAB also found that it had personal jurisdiction over Braves, where team made at least two general appearances in this matter without objecting to personal jurisdiction. [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.]
■Donte Ford, Applicant v. MC Carrier, L.L.C, Associated Risk Management, Incorporated, Defendants, 2024 Cal. Wrk. Comp. P.D. LEXIS 323, petition for writ of review filed 10/28/2024
W.C.A.B. No. ADJ16982310—WCJ Daniel Nachison (LBO); WCAB Panel: Commissioners Dodd, Capurro, Snellings
Opinion Filed September 13, 2024
WCAB Jurisdiction—Personal and Subject Matter Jurisdiction—WCAB, denying reconsideration, affirmed WCJ’s decision that WCAB had personal jurisdiction over parties in workers’ compensation proceedings, when parties agreed that applicant was California resident, injury occurred in California, applicant worked for defendant as truck driver licensed in California, and applicant filed Application for Adjudication of Claim in California, and WCAB found that defendant had sufficient “minimum contacts” with State of California to confer personal jurisdiction, where evidence established that defendant’s truck driven by applicant was stored in California and all trips started and ended there, that 10 percent of defendant’s business was in California, that applicant signed employment contract in California, and that 5 percent of applicant’s driving for defendant was allowed in California; WCAB also found subject matter jurisdiction under Labor Code §§ 5300 and 5301, when applicant executed contract for hire in California and WCAB reasoned that fact that applicant signed pay rate addendum and forum selection forms three days later in Las Vegas did not preclude finding of contract formation in California, as pay rate addendum and forum selection forms were conditions subsequent to contraction formation; WCAB further found that forum selection clause electing to proceed under Nevada workers’ compensation law was unenforceable, where applicant was California resident, injury occurred in California, employment contract was entered into in California, and other than fact that Nevada was defendant’s principal place of business, there was no evidence showing applicant had significant contacts with Nevada to support application of Nevada law. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 22.11[6], [7]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 16, § 16.53[6], [7].]
LIENS
■Donate Russell, Applicant v. Providence Health and Services, PSI, administered by Sedgwick Claims Management Services, Defendants, 2024 Cal. Wrk. Comp. P.D. LEXIS 335
W.C.A.B. No. ADJ12023298—WCJ Clint Feddersen (VNO); WCAB Panel: Commissioner Capurro, Chair Zalewski, Commissioner Dodd
Opinion Filed October 15, 2024
Liens—Medical Treatment—Reasonable Value of Services—WCAB, denying reconsideration, affirmed WCJ’s decision awarding lien claimant Dental Trauma Center $5,499.07 for medically necessary dental treatment provided to applicant who incurred work-related dental injuries while employed as EVS technician on 10/31/2017, based on opinion of defense expert regarding reasonableness of lien claimant’s fees, which WCAB found more persuasive than opinion of lien claimant’s expert, who valued lien claimant’s services at $15,548.84, when WCAB noted that value of dental services must be established based on expert testimony and evidence presented in accordance Kunz v. Patterson Floor Coverings, Inc. (2002) 67 Cal. Comp. Cases 1588 (Appeals Board en banc opinion), because they are not covered by Official Medical Fee Schedule, and WCAB found that opinion of defense expert was more convincing on issue of reasonableness of lien claimant’s fees because defense expert had greater expertise and experience in valuation of medical services than lien claimant’s expert, utilized more extensive sources to determine value of dental services, was more objective in his approach, provided significantly more detailed explanation regarding evidence he relied upon to reach his conclusions regarding lien claimant’s fees, and prepared extensive analysis under Kunz with respect to fee lien claimant usually accepted and usual fee of other dental providers in same geographical region for services provided, whereas lien claimant’s expert simply reviewed Kunz studies provided to him by his client, and WCAB concluded that, overall, evidence provided by defendant regarding value of lien claimant’s services was more persuasive than lien claimant’s evidence. [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.]
■Duong Tang, Applicant v. Solar Link International, Travelers Property Casualty Company of America, Defendants; Khristine Eroshevich, Lien Claimant/Real Party-in-Interest, 2024 Cal. Wrk. Comp. P.D. LEXIS 306
W.C.A.B. No. SAU6852145—WCAB Panel: Chair Zalewski, Commissioners Razo, Dodd
Opinion Filed August 30, 2024
Liens—Procedural Rights and Duties—Provider’s Criminal Conduct—WCAB, granting reconsideration, rescinded WCJ’s order dismissing lien claimant’s liens for medical services provided to workers’ compensation applicants in approximately 1,100 cases on basis that lien claimant was convicted of misdemeanor for fraudulently prescribing controlled substance in violation of Health and Safety Code § 139.21, and failed to rebut presumption in Labor Code § 139.21(g) that liens arose from or were connected to her criminal conduct, when WCAB reasoned that in determining lien claimant failed to rebut Labor Code § 139.21(g) presumption, WCJ too broadly extended presumption to include any potentially fraudulent conduct by lien claimant, whether or not she was convicted of or even charged with crime, and WCAB found that lien claimant successfully rebutted Labor Code § 139.21(g) presumption, where record reflected that lien claimant’s misdemeanor conviction involved single prescription for Vicodin she wrote in 2006 in name of person without that person’s knowledge, that lien claimant did not begin treating workers’ compensation patients until 2009 and was suspended from participating in workers’ compensation system in 2017, and that because it was undisputed that lien claimant did not begin treating workers’ compensation applicants whose treatment liens were at issue in these proceedings until 2009, it was not possible that liens at issue arose from lien claimant’s 2006 criminal conduct, involving single prescription, subjecting her to suspension. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 30.22[1]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 1, § 1.13[4], Ch. 17, § 17.70[1].]
MEDICAL TREATMENT
■Silvia Correa, Applicant v. Display Products, Inc., Travelers Property Casualty Company of America, Defendants, 2024 Cal. Wrk. Comp. P.D. LEXIS 198, 89 Cal. Comp. Cases 1075
W.C.A.B. No. ADJ9036010—WCAB Panel: Commissioners Snellings, Capurro, Chair Zalewski (concurring, but not signing)
Opinion Filed July 2, 2024
Medical Treatment—Utilization Review—Requirements for Expedited Review—WCAB, denying reconsideration, affirmed WCJ’s finding that defendant’s 2/21/2024 utilization review (UR) determination was untimely and that applicant’s treating physician’s request for authorization (RFA) for home caregiver was medically necessary, when RFA submitted by treating physician indicated need for expedited review, but defendant did not issue UR determination within requisite 72 hours pursuant to 8 Cal. Code Reg. § 9792.9.1(c)(4), and although defendant asserted that RFA failed to sufficiently document need for expedited review and that UR decision was appropriately and timely issued within five business days, WCAB found that whether expedited review of RFA is supported by record is inherently medical determination that should be made by medical professional, not by claims adjuster, since question of imminent harm is medical question and not subject to lay opinion, that there was no evidence in this case of any medical review of need for expedited decision within 72-hour timeframe, and that without determination by medical professional within 72 hours that applicant’s situation did not warrant expedited review, determination of applicant’s treating doctor must stand; with respect to medical necessity, WCAB found that WCJ reasonably evaluated impact of applicant’s injury on her activities of daily living and concluded that requested treatment was consistent with evidence-based treatment guidelines. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 5.02[2][c]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 4, § 4.10[5], [6].]
■Efren Lara Solano, Applicant v. Shiloh Ranch and/or Kathleen Downs, State Compensation Insurance Fund, Defendants, 2024 Cal. Wrk. Comp. P.D. LEXIS 280
W.C.A.B. No. ADJ14075660—WCAB Panel: Commissioners Capurro, Razo, Deputy Commissioner Schmitz (concurring, but not signing)
Opinion Filed July 12, 2024
Medical Treatment—Utilization Review—Termination of Inpatient Care—Change of Circumstances—WCAB, denying reconsideration, affirmed WCJ’s order denying defendant’s petition for reimbursement of payments made for inpatient residential care provided to applicant, and held that (1) applicant who suffered traumatic brain injury while employed as laborer on 11/18/2020 was entitled, per Labor Code § 4610(i)(3) and 8 Cal Code Reg. § 9792.9.1(e)(3), to “concurrent” utilization review (UR) of physician’s requests for authorization (RFA) of inpatient post-acute residential care, which requires decision within 72 hours rather than usual “5/14 day” timeframe in cases such as applicant’s involving “imminent and serious threat” to life, and that because defendant did not issue UR determinations within requisite 72 hours, UR decisions were untimely and WCAB had jurisdiction under Dubon v. World Restoration, Inc. (2014) 79 Cal. Comp. Cases 313 (Appeals Board en banc opinion) (Dubon I), and Dubon v. World Restoration (2014) 79 Cal. Comp. Cases 1298 (Appeals Board en banc opinion) (Dubon II), to determine medical necessity of requested treatment, (2) defendant was not entitled to reimbursement for payments made for residential treatment provided to applicant after treatment was denied by UR based on applicant’s failure to seek independent medical review (IMR), because WCAB may exercise jurisdiction over medical treatment requests where UR determinations are untimely or suffer from material procedural defects that undermine integrity of UR decision, irrespective of whether or not applicant seeks IMR, (3) even assuming defendant’s UR denials were timely, defendant was required, under Patterson v. The Oaks Farm (2014) 79 Cal. Comp. Cases 910 (Appeals Board significant panel decision), and National Cement Company, Inc. v. W.C.A.B. (Rivota) (2021) 86 Cal. Comp. Cases 595 (writ denied), to show change in applicant’s condition or circumstances prior to discontinuing treatment, which defendant did not do, and applicant was not required to submit RFAs to continue receiving previously-authorized treatment, even though defendant’s original authorization was limited to only 14 days, (4) there was no equitable basis to order reimbursement of payments defendant made for residential treatment during periods for which medical necessity was disputed and treatment was denied by UR, and (5) Labor Code § 4610(i)(4)(C) and 8 Cal. Code Reg. § 9792.9.1(e)(6) barred defendant from discontinuing applicant’s inpatient care until it obtained agreement from applicant’s treating physician as to safe discharge plan appropriate for applicant’s medical needs. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 5.02[2][a]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 4, § 4.05[2].]
■Gabriela Santoyo, Applicant v. Gen Korean BBQ House, Arch Insurance Company, administered by Sedgwick, Inc., Defendants, 2024 Cal. Wrk. Comp. P.D. LEXIS 342
W.C.A.B. No. ADJ16231186—WCJ Daniel Ter Veer (MDR); WCAB Panel: Deputy Commissioner Schmitz, Chair Zalewski, Commissioner Razo (dissenting)
Opinion Filed September 27, 2024
Medical Treatment—Utilization Review—Medical Treatment Utilization Schedule—WCAB, granting reconsideration and reversing WCJ’s decision in split panel opinion, held that microdiscectomy surgical procedure requested by applicant’s treating physician was reasonable and necessary medical treatment for applicant’s 12/27/2021 spine injury, based on Medical Treatment Utilization Schedule (MTUS) guidelines addressing spine surgery, and WCAB ordered that defendant authorize requested surgery, when WCAB reasoned that injured employee has burden of proof of entitlement to medical procedure either by demonstrating that treatment is appropriate under MTUS or that treatment at variance with MTUS guidelines is reasonably required to cure or relieve from effects of industrial injury, and WCAB panel majority concluded that three prongs of MTUS criteria addressing spine surgery were adequately satisfied in this matter, where medical record clearly established that applicant had radicular pain syndrome with dermatomal pain and myotomal muscle weakness and that she experienced significant pain and functional limitation over period extending beyond six weeks, and although MRI findings did not confirm nerve root compression, as described in prong two of applicable MTUS criteria, MRI did indicate that applicant had bulging disc contacting S1 nerve root, which treating physician determined was consistent with applicant’s symptoms, and WCAB panel majority found that treating physician properly exercised his clinical discretion in applying MTUS guidelines and recommending microdiscectomy; Commissioner Razo, dissenting, concurred with WCJ’s finding that microdiscectomy was not reasonable and necessary, opining that MTUS guidelines for spine surgeries require all three prongs of MTUS criteria to be met to support need for surgery, and that although applicant consistently complained of bilateral lower extremity radicular pain, there were no objective findings of herniated disc, no objective evidence by way of EMG/NCV supporting applicant’s subjective pain complaints, and no showing of nerve root compression, such that MTUS guidelines were not satisfied. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 5.02[1], [2][a][b], 22.05[6][a], [b][i], [ii]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 4, § 4.10[2], [3].]
PERMANENT DISABILITY
■Irma Avila Thomason, Applicant v. Frank D. Lanterman Development Services, State of California, legally uninsured, administered by State Compensation Insurance Fund, Defendants, 2024 Cal. Wrk. Comp. P.D. LEXIS 363
W.C.A.B. No. ADJ3120504—WCAB Panel: Commissioners Snellings, Dodd, Chair Zalewski
Opinion Filed October 7, 2024
Permanent Disability—Offers of Work—Adjustment of Permanent Disability Payments—WCAB, granting reconsideration, amended WCJ’s decision to find that neither applicant nor defendant was entitled to alteration, either by increase or decrease, of applicant’s permanent disability indemnity pursuant to Labor Code § 4658(d), when WCAB found that defendant had issued all permanent disability payments within 60 days of applicant’s 7/7/2021 permanent and stationary date and there were no permanent disability benefits remaining to be paid subject to increase pursuant to Labor Code § 4658(d)(2), but since defendant did not make offer of regular, modified or alternative work within 60 days of permanent and stationary date, defendant was not entitled to decrease under Labor Code § 4658(d)(3)(A), and applicant’s retirement did not relieve defendant of its obligation to make return-to-work offer, as it is applicant, not defendant or WCJ, who determines whether return-to-work offer can be accepted. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 7.02[4][d][iii], 32.04[2]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 7, § 7.51[2].]
■Steven Stranak, Applicant v. City of Los Angeles, PSI, administered by Tristar, Defendants, 2024 Cal. Wrk. Comp. P.D. LEXIS 179, 89 Cal. Comp. Cases --
W.C.A.B. No. ADJ8911663—WCAB Panel: Chair Zalewski, Commissioner Razo, Deputy Commissioner Schmitz
Permanent Disability—Rating—Lifetime Cap on Award for Same Body Regions—WCAB, granting reconsideration, rescinded decision in which WCJ categorized applicant’s sleep disorder, cognitive impairment and psychiatric injury as mental and behavioral disorders under Labor Code § 4664(c)(1)(C), and applicant’s disabilities in forms of hypertension, erectile dysfunction, GERD, lower extremity deep vein thrombosis, gait derangement, apraxia, agnosia, and headaches under general provisions in Labor Code § 4664(c)(1)(G), and WCAB returned matter to trial level for further proceedings, when WCAB found that while it has often taken common sense approach to assignment of disability to body systems under Labor Code § 4664(c), much like WCJ did here, if dispute exists over categorization of body systems, such dispute must be resolved based on substantial medical evidence, especially where there are issues to be decided outside knowledge of lay person, that requirements for proving application of Labor Code § 4664(c) are essentially no different than apportionment under Labor Code § 4664(b), with only distinction being that Labor Code § 4664(b) focuses on overlapping disabilities, whereas Labor Code § 4664(c) focuses on overlapping body systems which are impacted by disabilities, that where defendant seeks to apply Labor Code § 4664(c) cap on disability and there is dispute, defendant must establish existence of prior and current awards of disability and prove through expert medical evidence which body systems were impacted by prior and current disabilities, although parties may stipulate to body systems affected by disability if it is apparent, that medical evidence and parties’ stipulations in this matter were unclear as to how applicant’s disabilities to different body systems should be categorized under Labor Code § 4664(c), and that because finding of fact that disability spans multiple body systems must be supported by substantial medical evidence, and parties did not directly ask evaluators in this case to address body systems under Labor Code § 4664(c), further development of record is required. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 8.06[5][d], 8.07[2]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 7, § 7.42[3]; The Lawyer’s Guide to the AMA Guides and California Workers’ Compensation, Ch. 6.]
■Michael Fiore, Applicant v. Los Angeles Community College District, PSI, administered by Adminsure, Defendants, 2024 Cal. Wrk. Comp. P.D. LEXIS 297, 89 Cal. Comp. Cases --
W.C.A.B. No. ADJ9647382—WCAB Panel: Commissioners Snellings, Razo, Capurro
Opinion Filed August 22, 2024
Permanent Disability—Rating—Rebuttal of Scheduled Rating—WCAB, granting reconsideration, rescinded WCJ’s decision that applicant sustained 65 percent permanent disability as result of industrial injury in form of fibromyalgia and remanded case to trial level for further proceedings to determine if applicant was permanently totally disabled, when applicant produced no medical evidence that rebutted Combined Values Chart (CVC) and relied instead on reporting of his vocational expert, but because WCAB ordered development of record regarding rebuttal of scheduled permanent disability rating pursuant to Ogilvie v. W.C.A.B. (2011) 197 Cal. App. 4th 1262, 129 Cal. Rptr. 3d 704, 76 Cal. Comp. Cases 624, WCAB allowed further development of record on issue of rebuttal of CVC; WCAB noted that if injured employee seeks to rebut Permanent Disability Rating Schedule per Ogilvie, employee must provide substantial medical evidence regarding assigned work restrictions and show that work restrictions precluded employee from competing in open labor market and participating in vocational rehabilitation, which requires vocational expert evidence, and employee must further establish that work restrictions were 100 percent related to industrial injury, which requires substantial medical evidence; WCAB also held that if industrial work restrictions, standing alone, preclude injured worker from rehabilitation and from competing in open labor market, worker has met burden of proof with respect to causation of disability, that if nonindustrial work restrictions cause or contribute to worker’s preclusion from rehabilitation and work, industrial causation is not established, that applicant here failed to prove assigned work restrictions were 100 percent industrial because no party posed that question to any doctor, that if different doctors assign different work restrictions, vocational expert cannot choose which doctor’s restrictions to follow, but may offer alternative opinions depending upon whose medical opinion is found most accurate, and that for same reasons they cannot provide expert medical testimony, vocational experts cannot take it upon themselves to act as triers of fact. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 8.02[3], [4], 32.01[3], 32.03A[1]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 7, § 7.12[2]; The Lawyer’s Guide to the AMA Guides and California Workers’ Compensation, Ch. 7.]
■Jesse Cano, Sr., Applicant v. Ecology Control Industries, Inc., Zurich American Insurance Company, Defendants, 2024 Cal. Wrk. Comp. P.D. LEXIS 314
W.C.A.B. No. ADJ9983378—WCAB Panel: Commissioner Capurro, Chair Zalewski, Commissioner Snellings
Opinion Filed September 9, 2024
Permanent Disability—Rating—Rebuttal of Scheduled Rating—WCAB, granting reconsideration, rescinded WCJ’s decision that applicant sustained 85 percent permanent disability due to catastrophic industrial injuries to his lumbar spine, thoracic spine, cervical spine, right shoulder, and psyche while working as truck driver on 11/13/2014, and returned matter to WCJ for further development of medical record regarding applicant’s work restrictions and on issue of whether applicant’s impairments should be added or combined using Combined Values Chart (CVC), in light of recent decision in Vigil (Sammy) v. County of Kern (2024) 89 Cal. Comp. Cases 686 (Appeals Board en banc opinion), when (1) applicant asserted that WCJ should have found permanent total disability pursuant to Ogilvie v. W.C.A.B. (2011) 197 Cal. App. 4th 1262, 129 Cal. Rptr. 3d 704, 76 Cal. Comp. Cases 624, based on vocational expert’s opinion that applicant was unable to compete in open labor market and not amenable to vocational rehabilitation due to industrial injuries, but WCAB found that vocational expert’s reporting did not constitute substantial evidence to rebut scheduled permanent disability rating, as expert improperly interjected her own medical opinions regarding applicant’s work restrictions, rather than relying on medical restrictions imposed by doctors to reach conclusions about vocational feasibility, as required under Ogilvie and its progeny, and record lacked detailed description of applicant’s work restrictions, and (2) although applicant argued that his impairments should be added and not combined using CVC, rebuttal of CVC is medical issue requiring medical evidence, and no medical evidence was presented in this matter regarding rebuttal of CVC. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 8.02[3], [4], 32.01[3], 32.03A[1]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 7, § 7.12[2]; The Lawyer’s Guide to the AMA Guides and California Workers’ Compensation, Ch. 7.]
■Karen Robasciotti, Applicant v. Maxim Healthcare, ACE American Insurance Company, c/o ESIS, Defendants, 2024 Cal. Wrk. Comp. P.D. LEXIS 365
W.C.A.B. No. ADJ12265574—WCAB Panel: Commissioner Capurro, Chair Zalewski, Commissioner Snellings
Opinion Filed October 14, 2024
Permanent Disability—Rating—Combining Multiple Disabilities—WCAB, granting reconsideration, rescinded WCJ’s finding that applicant suffered permanent total disability as result of industrial injuries to multiple body parts while employed as psyche technician on 1/16/2019, and deferred issue of permanent disability, when WCJ found permanent total disability by adding applicant’s dental, head, and facial disabilities based on reporting of dental qualified medical evaluator (QME), but WCAB found that QME’s analysis as to whether applicant’s percentages of permanent disability should be added or combined was analytically incomplete and did not conform to en banc decision in Vigil (Sammy) v. County of Kern (2024) 89 Cal. Comp. Cases 686 (Appeals Board en banc opinion), because QME addressed impacted body part, rather than adequately addressing issue of specific activities of daily living (ADLs) impacted by each impairment to be added, and whether there was no overlap of ADLs, or ADLs overlapped in way that increased or amplified impact on overlapping ADLs. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 8.02[4][d], 32.03A[1]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 7, §§ 7.06[2], 7.11[5], 7.100; The Lawyer’s Guide to the AMA Guides and California Workers’ Compensation, Chs. 2, 6, 7.]
■L.B. Baltrip, Applicant v. AC Transit District, PSI, Adjusted by Athens Administrators, Defendants, 2024 Cal. Wrk. Comp. P.D. LEXIS 327
W.C.A.B. No. ADJ8635472—WCJ Lilla J. Szelenyi (OAK); WCAB Panel: Chair Zalewski, Deputy Commissioner Sussman, Commissioner Capurro
Opinion Filed September 4, 2024
Permanent Disability—Rating—Grip Loss—WCAB, granting reconsideration and affirming WCJ’s decision, held that WCJ did not err by incorporating in her rating instructions agreed medical examiner’s (AME) grip loss measurements in addition to range of motion and pain impairments, generating scheduled permanent disability rating of 97 percent for applicant bus driver’s cumulative injury to his bilateral upper extremities during period ending on 8/7/2012, when WCAB reasoned that under section 16.8 of AMA Guides (Fifth Edition), grip loss impairment may be considered in addition to range of motion loss in rare cases where loss of strength represents impairment factor that has not been considered adequately by other rating methods in AMA Guides, that AME here stated that range of motion impairments and pain in applicant’s upper extremities did not adequately reflect his inability to apply maximal force in these regions, which created difficulties with activities such as opening and closing bottles, fine manipulation, dressing and undressing, and grasping, and that applicant’s functional impairment was not adequately reflected without considering his loss of grip strength. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 8.02[2], 32.03A[1]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 7, § 7.12[1]; The Lawyer’s Guide to the AMA Guides and California Workers’ Compensation, Chs. 4, 7.]
Permanent Disability—Rating—Rebuttal of Scheduled Rating—Combining Multiple Disabilities—WCAB, granting reconsideration, affirmed WCJ’s finding that applicant sustained 100 percent permanent disability as result of cumulative injury to his bilateral upper extremities while employed as bus driver during period ending on 8/7/2012, when (1) applicant’s vocational expert opined that applicant’s amenability to rehabilitation was akin to that of person returning to work in sheltered workshop environment, and that even if applicant were to successfully complete vocational training program he would still be unable to work in any position in open labor market, and WCAB found that opinion of applicant’s vocational expert was substantial evidence to rebut 97 percent scheduled permanent disability rating and support finding of permanent total disability, whereas opinion of defendant’s vocational expert suggesting clerical work for applicant was not substantial evidence given that applicant could barely use his hands, and (2) WCAB found that WCJ properly added applicant’s upper extremity impairments rather than combining them using Combined Values Chart pursuant to recent decision in Vigil (Sammy) v. County of Kern (2024) 89 Cal. Comp. Cases 686 (Appeals Board en banc opinion), where impact of applicant’s bilateral upper extremity impairment on his activities of daily living was established by agreed medical examiner’s reporting, although issue of whether formal rating of applicant’s permanent disability at 97 percent resulted from inappropriate addition of impairments did not change result because WCJ did not adopt 97 percent rating but used it as guide to rely on vocational evidence which rebutted scheduled rating. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 8.02[3], [4], 32.01[3], 32.03A[1]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 7, § 7.12[2]; The Lawyer’s Guide to the AMA Guides and California Workers’ Compensation, Ch. 7.]
PETITIONS FOR RECONSIDERATION
■Chadrick Hall, Applicant v. DHL Express, AIU Insurance Company, administered by Sedgwick Claims Management Services, Defendants, 2024 Cal. Wrk. Comp. P.D. LEXIS 336
W.C.A.B. No. ADJ16212301—WCAB Panel: Commissioners Snellings, Dodd, Capurro
Opinion Filed October 29, 2024
Petitions for Reconsideration—WCAB’s Time to Act on Petition—Equitable Tolling—WCAB denied defendant’s Petition for Reconsideration on its merits, rather than deeming Petition denied by operation of law pursuant to former Labor Code § 5909 for WCAB’s failure to act on Petition within 60 days of its filing, when WCAB relied on due process principles described in Shipley v. W.C.A.B. (1992) 7 Cal. App. 4th 1104, 9 Cal. Rptr. 2d 345, 57 Cal. Comp. Cases 493, and doctrine of equitable tolling to find that 60-day period in former Labor Code § 5909 was extended until date WCAB actually received defendant’s Petition, and while WCAB recognized conflict of opinion in District Courts of Appeal regarding whether WCAB has jurisdiction to act beyond 60-day period given recent decisions in Zurich American Ins. Co. v. W.C.A.B. (2023) 97 Cal. App. 5th 1213, 316 Cal. Rptr. 3d 264, 89 Cal. Comp. Cases 1, and Mayor v. W.C.A.B. (2024) 104 Cal. App. 5th 1297, 89 Cal. Comp. Cases 853, WCAB declined to follow those cases for reasons expressed in Ja’Chim Scheuing (Sandra) v. Lawrence Livermore National Laboratory (2024) 89 Cal. Comp. Cases 325 (Significant Panel Decision), and based on its findings that decisions in both Mayor and Zurich suggest that Labor Code § 5909 is not jurisdictional statute and, therefore, WCAB has fundamental jurisdiction to act, that neither Mayor nor Zurich is controlling on issue of whether former Labor Code § 5909 is subject to equitable tolling because neither decision contains any analysis on this issue, that according to examples described by Supreme Court, statutes that are not subject to equitable tolling generally state so, and because former Labor Code § 5909 contains no express limitation on application of equitable tolling, statute is subject to doctrine where warranted by facts, and that holding in Mayor contradicts its analysis and provides no clear guidance on application of former Labor Code § 5909 and, consequently, decision should be limited to its own facts. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 28.32; Rassp & Herlick, California Workers’ Compensation Law, Ch. 19, § 19.21.]
Petitions for Reconsideration—Filing—WCAB, denying defendant’s Petition for Reconsideration on its merits, found that 60-day timeframe in former Labor Code § 5909 for acting on defendant’s Petition was extended pursuant to holding in Shipley v. W.C.A.B. (1992) 7 Cal. App. 4th 1104, 9 Cal. Rptr. 2d 345, 57 Cal. Comp. Cases 493, because WCAB did not receive defendant’s Petition within 60-day timeframe, but WCAB noted that reason it did not receive defendant’s Petition (which challenged WCAB’s decision after reconsideration) within 60 days of its filing was because defendant misfiled it through Electronic Adjudication Management System (EAMS) at DWC District Office in violation of 8 Cal. Code Reg. § 10940(a), which expressly requires that petitions for reconsideration of WCAB decisions after reconsideration be filed directly with WCAB, and WCAB explained that although petition for reconsideration of WCAB decision is deemed timely when it is filed in EAMS, EAMS adjudication file is at DWC District Office and EAMS system lacks ability to direct petition to WCAB; therefore, while petition may be timely-filed, there is no guarantee petition will be timely received and reviewed by WCAB, and parties should not rely on DWC District Office to timely transmit petition. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 28.23, 28.32; Rassp & Herlick, California Workers’ Compensation Law, Ch. 19, §§ 19.12, 19.21.]
PRESUMPTION OF COMPENSABILITY
■Rebecca Henderson, Applicant v. County of Butte Probation Department administered by LWP Claims, Defendants, 2024 Cal. Wrk. Comp. P.D. LEXIS 332
W.C.A.B. No. ADJ14997874—WCJ Mary Sulprizio (RDG); WCAB Panel: Commissioners Razo, Capurro, Snellings
Presumption of Industrial Causation—Cancer—Probation Officer—WCAB, denying reconsideration, affirmed WCJ’s finding that applicant suffered compensable injury in form of colon cancer while employed as county probation officer, when WCAB found that applicant was directed by her employer to perform peace officer duties for several days during City of Paradise wildfires, that because she was engaged in active law enforcement activities during that period, applicant qualified as peace officer under Penal Code §§ 830.1, 830.5 and 830.37 for purposes of applying cancer presumption under Labor Code § 3212.1, and that defendant failed to rebut presumption that colon cancer was industrially-caused. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 4.138[4][b]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 10, § 10.07[5][c].]
SERIOUS AND WILLFUL MISCONDUCT
■Carlos Reyes, Applicant v. Palm Desert Doors and Hardware, Praetorian Insurance Company, Defendants, 2024 Cal. Wrk. Comp. P.D. LEXIS 338
W.C.A.B. No. ADJ8349042—WCAB Panel: Chair Zalewski, Commissioner Capurro, Deputy Commissioner Schmitz
Opinion Filed September 30, 2024
Serious and Willful Misconduct of Employer—WCAB, granting reconsideration, rescinded decision in which WCJ found that applicant’s employer, acting as subcontractor on building site, did not engage in serious and willful misconduct under Labor Code §§ 4553 and 4553.1 with respect to injuries incurred by applicant to his left index, middle and ring fingers and to his psyche on 3/29/2012 while cutting wood on table saw without requisite guard, and WCAB returned matter to trial level for further proceedings, when WCAB found that it was unclear from WCJ’s decision how he determined that removal of guard from table saw used by applicant was not proximate cause of applicant’s injury, and record required further development on that issue, that if removal of guard was proximate cause of applicant’s injury, requirements of Labor Code § 4553.1 would be met because applicant’s supervisor removed guard despite knowledge that doing so violated Cal/OSHA safety order, that although WCJ found that violation of Cal/OSHA safety order related to applicant’s use of gloves provided by his supervisor was proximate cause of applicant’s injury, WCJ did not fully analyze liability under Labor Code § 4553.1 on that basis because of erroneous conclusion that applicant’s supervisor was not employer’s managing representative within meaning of Labor Code § 4553, that “executive or managing officer” under Labor Code § 4553 is person generally in charge of integral department of employer’s business who has general power or direction and control of department, as opposed to person whose supervisory authority is limited to single aspect or detail of overall job, and that applicant’s supervisor in this case was employer’s managing representative under Labor Code § 4553 even though he did not supervise entire worksite (general contractor oversaw worksite), because supervisor was lead installer of employer’s crew at building site and was individual responsible for exercising direct supervisory authority and control over integral unit of defendant’s business that was at jobsite, and no other individual employed by defendant at jobsite had greater supervisory authority. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 10.01; Rassp & Herlick, California Workers’ Compensation Law, Ch. 11, § 11.14.]
SETTLEMENTS
■Gabe Cazares, Applicant v. Associated Feed Supply Company, et al., PSI, Defendants, 2024 Cal. Wrk. Comp. P.D. LEXIS 264, 89 Cal. Comp. Cases --
W.C.A.B. Nos. ADJ7811868, ADJ8515683—WCJ Peter M. Wilkens (STK); WCAB Panel: Deputy Commissioner Schmitz, Commissioner Razo, Chair Zalewski
Settlements—Compromise and Release Agreements—Medicare Set-Aside—WCAB, after granting reconsideration, affirmed WCJ’s finding that defendant was not obligated to defend applicant at Medicare proceedings or to reimburse him for payments he was forced to make to Medicare totaling $810.59, which Medicare had taken as conditional payment for self-procured medical treatment obtained by applicant prior to approval of parties’ Compromise and Release (C&R) agreement settling applicant’s claims for industrial injuries while employed as warehouse forklift driver from 5/26/2005 to 4/1/2010 and from 5/26/2005 to 5/21/2012, when defendant agreed under C&R to pay all unpaid medical expenses incurred by applicant prior to approval of C&R, but was released from liability for applicant’s self-procured medical treatment and for medical expenses incurred after approval of C&R, and WCAB reasoned that defendant’s release of liability and its obligations under C&R were fixed at time settlement was approved, presumably based on information known to parties at time of settlement, that treating physicians’ bills for treatment self-procured by applicant without knowledge of his attorney or defendant were conditionally paid by Medicare before C&R was approved, so there were no “unpaid” bills at time of settlement’s approval, and that applicant, as part of his self-administration of Medicare Set-Aside in C&R, was required to directly proceed with Medicare regarding any questions or other issues that arose after settlement of his claims. [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.]
■Maria Rodriguez, Applicant v. Genesis HC Washington Center, AIG Insurance, adjusted by Sedgwick Claims Management Services, Defendants, 2024 Cal. Wrk. Comp. P.D. LEXIS 325
W.C.A.B. No. ADJ12739899—WCAB Panel: Commissioners Capurro, Snellings, Razo (dissenting)
Opinion Filed September 23, 2024
Settlements—Compromise and Release Agreements—Unilateral Mistake—WCAB, in split panel opinion, denied reconsideration of its prior decision in this matter [see Rodriguez v. Genesis HC Washington Center, 2024 Cal. Work Comp. P.D. LEXIS 225 (Appeals Board noteworthy panel decision)], wherein WCAB panel majority found that there was no mutual mistake, and that based on clear language of Compromise and Release (C&R) agreement and Order Approving Compromise and Release (OACR), defendant was not entitled to credit for permanent disability advances paid to applicant before execution of settlement agreement, and was liable for penalties and interest for late payment of settlement funds, when WCJ originally determined that proposed settlement in amount of $55,000.00 was adequate, without deduction for prior permanent disability advances, and WCAB concluded that based on clear language of OACR and C&R agreement, which did not specify any deductions for permanent disability advances already paid, defendant was not entitled to deductions, that both parties entered into agreement with express understanding that $55,000.00 was settlement amount, and because WCJ allowed credit for permanent disability advances altered amount payable to applicant, it was error to allow credit without addressing issue of whether settlement less credit was adequate, that allowing credit not clearly provided for in C&R may render settlement inadequate, and that to extent terms in settlement document as drafted by defendant were ambiguous, evidentiary record established that parties intended to settle without credit for past permanent disability advances; Commissioner Razo, dissenting, found that where it was undisputed that applicant received $18,270.00 in permanent disability indemnity advances and that counsel for applicant and defendant were notified of those advances, there was no reasonable basis to assert that failure to list advances in C&R was anything other than inadvertence, and that because it was clear all parties knew of nature and amount of indemnity advances by defendant in good faith, omission of dollar amount of advances from settlement agreement resulted from mutual mistake, and defendant was entitled to credit. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 29.01, 29.05; Rassp & Herlick, California Workers’ Compensation Law, Ch. 18, § 18.11[1].]
STATUTE OF LIMITATIONS
■Derrell Bracy, Applicant v. State of California, Legally Uninsured, Defendant, 2024 Cal. Wrk. Comp. P.D. LEXIS 355
W.C.A.B. No. ADJ18306857—WCAB Panel: Chair Zalewski, Commissioners Razo, Dodd
Statute of Limitations—Cumulative Injury—Tolling—WCAB, denying reconsideration, affirmed WCJ’s decision that applicant, while employed during period ending on 3/8/2022, suffered cumulative injury to his psyche, and that his claim was not barred by Labor Code § 5405 statute of limitations, when WCAB reasoned that where claim form is filed by employee, statute of limitations is tolled until employer unequivocally denies claim, that initial denial letter issued by defendant in this matter on 6/7/2022 was too equivocal to stop tolling of limitations period, in that denial letter suggested that issue of liability remained open pending evaluation by panel qualified medical evaluator (QME) and could have reasonably led applicant to believe no action was necessary on his part pending QME evaluation, that defendant’s second denial letter, issued on 10/7/2022 and fully disclaiming liability, triggered running of statute of limitations, and that applicant timely filed Application for Adjudication of Claim on 10/6/2023, within one year of defendant’s unequivocal denial. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 24.03[6], 24.04; Rassp & Herlick, California Workers’ Compensation Law, Ch. 14, §§ 14.01, 14.13.]
SUBSEQUENT INJURIES BENEFITS TRUST FUND
■Laura Pinkham, Applicant v. The Art Institute of California, Subsequent Injuries Benefits Trust Fund, Defendants, 2024 Cal. Wrk. Comp. P.D. LEXIS 223
W.C.A.B. No. ADJ10684274—WCAB Panel: Commissioners Snellings, Razo, Chair Zalewski
Opinion Filed June 3, 2024
Subsequent Injuries Benefits Trust Fund—Calculation of Permanent Disability—Combining Disabilities—WCAB, granting reconsideration, rescinded decision in which WCJ found that permanently totally disabled applicant met 35 percent permanent disability threshold for subsequent cumulative injury, without adjustment for age and occupation, for purposes of entitlement to Subsequent Injuries Benefits Trust Fund benefits under Labor Code § 4751, and WCAB returned matter to trial level, when WCJ calculated permanent disability from subsequent injury by adding applicant’s impairments, reasoning that impairments could not be combined using Combined Values Chart (CVC), per Ryder v. City of Los Angeles, 2016 Cal. Wrk. Comp. P.D. LEXIS 212 (Appeals Board noteworthy panel decision), because CVC can only be used after adjustment for age and occupation, but WCAB rejected position that Ryder requires impairments to be added in all cases for purposes of establishing level of permanent disability resulting from subsequent injury and found that standard in Dept. of Corrections & Rehabilitation v. W.C.A.B. (Fitzpatrick) (2018) 27 Cal. App. 5th 607, 238 Cal. Rptr. 3d 224, 83 Cal. Comp. Cases 1680, 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, and Athens Administrators v. W.C.A.B. (Kite) (2013) 78 Cal. Comp. Cases 213 (writ denied), allowing impairments to be added rather than combined using CVC only where substantial medical evidence establishes that adding impairments is more accurate method for determining level of permanent disability, equally applies in determining level of permanent disability resulting from subsequent injury under Labor Code § 4751, and that because WCJ in this matter found that impairments should be added without medical evidence as to whether adding them would result in more accurate permanent disability rating than combining them using CVC, medical record must be further developed on that issue. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 8.09, 31.20[4]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 8, §§ 8.01, 8.02.]
■Johnnie Schwark, Applicant v. Subsequent Injuries Benefits Trust Fund, Defendant, 2024 Cal. Wrk. Comp. P.D. LEXIS 279
W.C.A.B. No. ADJ10348745—WCAB Panel: Commissioners Razo, Snellings, Chair Zalewski
Opinion Filed August 6, 2024
Subsequent Injuries Benefits Trust Fund—Threshold Requirements—Statute of Limitations—WCAB, after granting reconsideration, ordered further development of record on issue of applicant’s permanent disability, but affirmed WCJ’s finding that applicant’s claim for Subsequent Injuries Benefits Trust Fund (SIBTF) benefits under Labor Code § 4751 was not barred by statute of limitations, when WCAB found that under Subsequent Injuries Fund v. W.C.A.B. (Talcott) (1970) 2 Cal. 3d 56, 465 P.2d 28, 84 Cal. Rptr. 140, 35 Cal. Comp. Cases 80, if applicant knew or should have known of substantial likelihood of entitlement to SIBTF benefits before five years from date of injury, then limitation period to file SIBTF claim is five years from date of injury, but if applicant did not know and could not reasonably have known there was substantial likelihood of entitlement to SIBTF benefits within five years of date of injury, limitation period to file claim is reasonable time after applicant learns from WCAB’s findings on issue of permanent disability that SIBTF had probable liability, that applicant’s date of subsequent injury in this case was 5/1/2013, and case was settled along with applicant’s prior cases by way of Compromise and Release (C&R) agreement, without final reports on permanent disability, that absent final determination as to applicant’s permanent disability, applicant was not on Talcott notice of claim for SIBTF benefits within five years of injury, that C&R agreement did not determine applicant’s permanent disability and did not put applicant on notice of potential SIBTF eligibility, and that under these circumstances, applicant’s filing of SIBTF claim three years from settlement and 10 years from date of injury was reasonable. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 8.09[2], [3], 24.03[8], 31.20[4]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 8, §§ 8.01, 8.02, 8.05; Ch. 14, § 14.10.]