California Workers' Comp Case Roundup (11/8/2017)

CALIFORNIA COMPENSATION CASES

Vol. 82 No. 10 Oct 2017

A Report of En Banc and Significant Panel Decisions of the WCAB and Selected Court Opinions of Related Interest, With a Digest of WCAB Decisions Denied Judicial Review

CONTENTS OF THIS ISSUE

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Appellate Court Compensation Cases

Bolanos v. W.C.A.B. (Zapata Jimenez, Ramiro), Lexis Advance

Statute of Limitations—Tolling—Court of Appeal annulled WCAB decision and held statute of limitations to file workers’ compensation claim against petitioner Bolanos ran one year after 5/19/2003, statute was not tolled, and claim was barred by one-year statute of limitations of Labor Code § 5401, when Court of Appeal found applicant Zapata Jimenez claimed industrial injury to his head, brain, right knee, internal system, and in form of urinary incontinence from motor vehicle accident which occurred on 5/19/2003 while applicant was working as mason for uninsured employer Aragon at property owned by Bolanos, applicant filed claim for workers’ compensation benefits on 8/1/2003 against Aragon, did not file claim against Bolanos within one year after 5/19/2003, WCAB...

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Pearson Ford v. W.C.A.B. (Hernandez, Leopoldo), Lexis Advance

Insurance Fraud—Benefits Awarded Despite Fraud—Court of Appeal, denying defendant’s petition to vacate WCAB’s award, held that there was no error in WCAB’s determination that applicant’s claim was not barred by his misdemeanor conviction for workers’ compensation fraud and in WCAB’s adoption of expert’s finding of permanent disability, when Court of Appeal found that…

Appellate Court Cases Not Originating With Appeals Board

American Cargo Express, Inc. v. The Superior Court of Sacramento County, Lexis Advance

California Self-Insurers’ Security Fund—Actions Against Clients of Insolvent Self-Insurer—Court of Appeal, affirming trial court’s grant of motion for judgment on pleadings in favor of Self-Insurers’ Security Fund, denied insolvent self-insurer’s clients’ petition for writ of mandate and/or prohibition, when Court of Appeal found that…

Cheathem v. Los Angeles Unified School District, Lexis Advance

Back Pay Awards—Mitigation of Damages—Interest—Court of Appeal, affirming trial court’s judgment, held that trial court correctly awarded plaintiff, inter alia, $690,130 in back pay, interest in amount of $257,217, representing pre-judgment interest at rate of seven percent simple interest from date each pay check was missed until date back pay was paid, and post-judgment interest at rate of seven percent per year, when Court of Appeal found that...

Ly (Va) v. County of Fresno, Lexis Advance

Claims for Discrimination, Harassment, and Retaliation—Workers’ Compensation Proceedings—Fair Employment and Housing Act Proceedings—Res Judicata

Court of Appeal, affirming trial court summary judgment in defendant’s favor, held that res judicata barred plaintiffs’ claims in present action, when Court of Appeal found that plaintiffs, three Laotian correctional officers, alleged that they were subjected to racial and national origin discrimination, harassment, and retaliation by their employer and its employees, that plaintiffs filed suit against employer pursuant to Fair Employment and Housing Act, Government Code § 12900 et seq., while simultaneously pursuing their workers’ compensation remedies, that WCJs in workers’ compensation proceedings…

Morales-Simental v. Genentech, Inc., Lexis Advance

Going and Coming Rule—Special Errand Exception—Court of Appeal, affirming trial court’s grant of summary judgment in defendant’s favor, held that plaintiffs failed to establish triable issues of material fact supporting special errand exception sufficient to overcome summary judgment, when Court of Appeal found that…

Federal District Court Opinions of Related Interest

Barajas (Adelberto) v. Consolidated Disposal Service, L.L.C., Lexis Advance

Summary Judgment—Fair Employment and Housing Act—U.S. District Court, Central District of California, granting defendant’s motion for summary judgment, held that there was no genuine dispute as to any material fact regarding plaintiff’s claims for relief, when court found that in 2010 plaintiff, employed by defendant as truck driver, accidentally killed pedestrian, which resulted in psychological trauma that disabled plaintiff from ever again driving defendant’s truck, that defendant attempted to accommodate plaintiff in alternative positions with defendant, that, after four years, defendant believed it could no longer continue…

Schulte (Mary) v. Aramark Services, Inc., Lexis Advance

Federal Court Jurisdiction—Settlements—Dismissal of Case—Intervention—U.S. District Court, Northern District of California, denying defendant’s motion for relief to set aside order of dismissal pursuant to Federal Rule of Civil Procedure 60 and motion to intervene pursuant to Federal Rule of Civil Procedure 24, held that plaintiff/applicant had settled her claims against third party tortfeasor and court had then entered order dismissing plaintiff’s action with prejudice, thereby divesting court of jurisdiction over case, when court found that…

Digests of WCAB Decisions Denied Judicial Review

Editorial Board members David Hettick, Robert G. Heywood, Kenneth B. Peterson, and Robert G. Rassp recommended the following writ denied cases for summarization in this issue.

ACE American Insurance Co. v. W.C.A.B. (Quinonez, Juan), Lexis Advance

Liens—Procedural Rights and Duties—Statute of Limitations—WCAB rescinded WCJ’s finding that lien of lien claimant was barred by statute of limitations in Labor Code § 4903.5(a), when WCJ erroneously found that last date lien claimant provided services to applicant was 7/2/2012, but WCAB found…

ACE USA Insurance Co. v. W.C.A.B. (Sena, Ernest), Lexis Advance

Permanent Disability—Apportionment—Anti-Merger Doctrine—Court of Appeal denied defendant’s Petition for Writ of Review challenging WCAB’s finding that applicant, while employed as machinist by defendant during period 3/1/95 through 3/31/2000, suffered single cumulative trauma to his cervical spine, lumbosacral spine, shoulders, elbows, wrists, knees, psyche, and internal system, causing 100 percent permanent disability based on opinion of orthopedic agreed medical examiner Alexander Angerman, M.D., which was supported by reports of vocational experts indicating that applicant had no transferable skills, and WCAB rejected defendant’s assertion that WCJ…

EDW Apffels Co., Inc. v. W.C.A.B. (Goodwin, Lance), Lexis Advance

Evidence—WCAB's Duty to Develop Medical Record—Due Process—Court of Appeal denied defendant’s Petition for Writ of Review challenging WCAB’s finding that WCJ properly ordered further development of medical record pursuant to McDuffie v. Los Angeles County Metropolitan Transit Authority (2002) 67 Cal. Comp. Cases 138 (Appeal Board en banc opinion), and Tyler v. W.C.A.B. (1997) 56 Cal. App. 4th 389, 65 Cal. Rptr. 2d 431, 62 Cal. Comp. Cases 924, by requesting agreed medical examiner Andrew Rah, M.D., to submit supplemental report addressing issue of apportionment, when WCJ found, after trial, that existing medical reports prepared by Dr. Rah did not adequately address apportionment, and WCAB concluded…

Permanent Total Disability—Rating—Apportionment—Court of Appeal denied defendant’s Petition for Writ of Review challenging WCAB’s finding that applicant suffered 100 percent permanent disability without apportionment pursuant to Labor Code § 4662(b) as result of industrial back injury incurred while employed as route driver/salesman on 8/17/2016, and that supplemental medical report of orthopedic agreed medical examiner Andrew Rah M.D., obtained by WCJ…

Foxworthy (Margaret) v. W.C.A.B., Lexis Advance

Permanent Disability—Rating—Combining Disabilities Using Combined Values Chart—Court of Appeal denied applicant’s Petition for Writ of Review challenging WCAB panel majority’s findings that Combined Values Chart in 2005 Permanent Disability Rating Schedule, rather than addition method, was correct method of combining applicant park ranger’s disabilities caused by 6/11/2010 industrial injuries to her low back, psyche, internal system, and in form of sexual dysfunction, and that applicant’s permanent disability rated at 67 percent based on Combined Values Chart, as opposed to 92 percent permanent disability obtained by adding disabilities as suggested by WCJ due to his finding that there was no overlap between applicant’s disabilities, when WCAB recognized that…

Mid-State Steel Erectors, Inc. v. W.C.A.B. (Esquivel, Rene), Lexis Advance

Serious and Willful Misconduct by Employer—Violation of Safety Order—Court of Appeal denied defendant’s Petition for Writ of Review challenging WCAB’s finding that defendant’s failure to utilize “tag line” (nylon rope attached to beam that allows workers to control beam) on steel beam that struck and injured applicant ironworker’s leg on 7/9/2014 while beam was being lowered by tower crane, constituted serious and willful misconduct, when WCAB found that...

San Mateo County Transit District v. W.C.A.B. (Owens, Sterling), Lexis Advance

Credit—Overpayment of Permanent Disability—Court of Appeal denied defendant’s Petition for Writ of Review challenging WCAB’s award of only limited credit of $586.50 for overpayment of permanent disability indemnity in applicant’s 3/23/2009 case involving right shoulder injury, in which no permanent disability was awarded, against defendant’s liability for permanent disability awarded in applicant’s 2011 case involving neck and right shoulder injuries, when WCAB rejected…

Travelers Indemnity Co., The v. W.C.A.B. (Clemons, Crance), Lexis Advance

WCAB Jurisdiction—Professional Athletes—Contracts for Hire—WCAB, reversing WCJ in split panel decision, held that WCAB had jurisdiction pursuant to Labor Code §§ 3600.5(a) and 5305 over applicant’s claim for industrial injury sustained while employed as professional football player by defendant Indianapolis Colts (Colts) during period 1/5/2004 through 10/12/2004, when WCAB panel majority concluded that…

Appeals Board Panel Decisions

Carrera Lugo (Ruth) v. County of Los Angeles, Lexis Advance

Evidence—Medical Reports—Suspended Physicians—WCAB, affirming WCJ's finding that applicant nursing aid suffered 44 percent permanent disability as result of 8/25/2009 industrial injury to her right elbow and wrist, held that WCJ did not err in relying on report of Philip Sobol, M.D., to determine extent of applicant's orthopedic impairment, notwithstanding that Dr. Sobol was ultimately suspended from workers' compensation system based on fraud conviction pursuant to Labor Code § 139.21, when WCAB reasoned that Labor Code § 139.21 does not make reports prepared prior to suspension inadmissible and declined to read Labor Code § 139.21 as blanket prohibition on use of reports from suspended doctors, and WCAB found that...

Escovedo (Johnny) v. California Community News, Lexis Advance

Medical Treatment—Independent Medical Review—Appeals—WCAB, granting removal, held that WCJ erred by concluding that he had no jurisdiction to rule on 8/25/2016 independent medical review (IMR) determination which upheld defendant's utilization review (UR) denial of home health care services prescribed by applicant's treating physician to treat 10/12/2005 industrial injury, when WCJ believed he lacked jurisdiction to decide appeal of IMR reviewing timely UR decision pursuant to Dubon v. World Restoration, Inc. (2014) 79 Cal. Comp. Cases 1298 (Appeals Board en banc opinion) (Dubon II), but WCAB, citing Stevens v. W.C.A.B. (2015) 241 Cal. App. 4th 1074, 194 Cal. Rptr. 3d 469, 80 Cal. Comp. Cases 1262, noted that WCAB…

Guerrero (Daniel) v. Ramcast Steel Fabrication, Lexis Advance

Psychiatric Injury—Violent Acts and Catastrophic Injury—Increased Permanent Disability—WCAB, amending WCJ's decision, held that applicant machine repairer suffered industrial injury to his psyche in addition to admitted injuries to his left hand, left upper extremity, left fingers, and left forearm on 1/24/2013 when his fingers were amputated by hydraulic punch press, and that applicant was entitled to additional permanent disability award for his psychiatric injury pursuant to “violent act” and “catastrophic injury” exceptions to provision in Labor Code § 4660.1(c)(1) precluding increased permanent disability for psychiatric injuries arising out of compensable physical injuries, when WCAB found that…

Megalla (Hanan) v. County of San Bernardino, Lexis Advance

Medical Treatment—Utilization Review—Time Deadlines—WCAB, affirming WCJ, held that WCAB had authority to determine medical necessity of treatment consisting of physical therapy and acupuncture requested by secondary treating physician to treat applicant's upper extremity injury resulting from gunshot wound received during 12/2/2015 terrorist attack at San Bernardino County Department of Public Health, when defendant's service of utilization review (UR) determination onapplicant's attorney was incomplete as signature page of determination, which included identification of UR physician's specialty and UR physician's signature, was omitted from fax transmission, and WCAB concluded that…

Medical Treatment—Physical Therapy—Postsurgical Visits—WCAB affirmed WCJ's finding that applicant who was injured from gunshot wound received during 12/2/2015 terrorist attack at San Bernardino County Department of Public Health and received 24 physical therapy visits within six month period following left humerus open reduction surgery, met burden of proving that she was entitled to 12 additional physical therapy visits for wrist and hand after conclusion of six-month postsurgical period, notwithstanding 24-visit cap on physical therapy visits under Labor Code § 4604.5(c)(1) and MTUS guidelines in 8 Cal. Code Reg. § 9792.24.3 limiting 24-visit cap exception to six-month postsurgical period, when WCAB found that…

Independent Medical Review Decisions

CM17-0015943, Lexis Advance

Nonsteroidal Aniti-Inflammatory Drugs—Shoulder Injury—IMR expert reviewer overturned UR denial of primary treating physician’s request for authorization to treat applicant’s shoulder condition with NSAID Voltaren XR 100 mg, #30, with 2 refills. Applicant was diagnosed as having osteoarthritis of left AC joint, impingement syndrome and left rotator cuff tendonitis. Her treatment included Tylenol and left shoulder surgery, but she continued to complain of shoulder pain, weakness and limited motion. The IMR expert reviewer pointed out that defendant’s claims administrator did not cite any evidence for its denial of the NSAID, and the reviewer found that…

CM17-0017640, Lexis Advance

Opioid Medication—Thoracic/Lumbar Spine Injury—IMR reviewer overturned UR decision authorizing only 90 of the 120 Oxycontin 30 mg pills requested by applicant’s treating physician. In finding that the additional 30 pills were supported by the 2016 MTUS opioid treatment guidelines and were medically necessary, the IMR reviewer noted that applicant…

CM17-0019979, Lexis Advance

Opioid Medication—Thoracic/Lumbar Spine Injury—IMR expert reviewer overturned UR determination limiting treating physician’s request for 90 days of Norco 10/325mg by authorizing Norco prescription for weaning purposes only. In this case applicant was deemed permanent and stationary following treatment for thoracolumbar neuritis/radiculitis and lumbosacral disease, but continued to experience periods of significant pain, ranging from 2 to 9 on a scale of 10, and functional limitations. Prior treatment included…

CM17-0020048, Lexis Advance

Opioid Medication—Lumbar/Cervial Spine Injury—IMR expert reviewer overturned UR denial of treating physician’s request for Norco 10/325 mg for 120 days to treat applicant’s lumbar spine, cervical spine and shoulder pain. Applicant’s previous treatments included surgery, medications and injections. His pain rated at 9 out of 10. Applicant’s treating physician reported…

CM17-0020236, Lexis Advance

Muscle Relaxant—Back Injury—IMR expert reviewer overturned UR denial of muscle relaxant Flexeril (cyclobenzaprine) 10 mg for 30 days as recommended by treating physician to treat applicant’s back pain following industrial injury. The treating physician reported that applicant suffered from low back pain rated at 5 out of 10 with medication and 7 out of 10 without, radiating neck pain and insomnia. Objective findings included…

Sleep Medication—Pain-Related Insomnia—IMR expert reviewer upheld UR determination authorizing Ambien 5mg for 20 days rather than the requested 30 days to treat applicant’s pain-related insomnia, based on 2016 MTUS guidelines for insomnia related to chronic pain which approve medication on short-term basis for 2-6 weeks. In this case, the medical records did not discuss cognitive behavior therapy and other non-pharmacologic treatment options such as education regarding sleep hygiene, which are typical first lines of treatment as outlined in MTUS guidelines. Moreover, the medical records…

CM17-0022009, Lexis Advance

Opioid Medications—Back Injury—IMR expert reviewer overturned UR denial of treating physician’s request for Norco 10/325 mg #90 and MS Contin 30 mg #60, based on the 2016 MTUS guidelines for opioid treatment of chronic pain. In this case, applicant reported pain in his low back and right buttocks with burning in his right thigh that was reduced from 10 out of 10, to 9 out of 10 with use of medication. He had been taking Norco and MS Contin for approximately 6 or 7 months at time of UR denial. The IMR reviewer noted that…