California Workers' Comp Case Roundup (4/5/2018)

CALIFORNIA COMPENSATION CASES

Vol. 83 No. 3 Mar 2018

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

© Copyright 2018 LexisNexis. All rights reserved. 

LexisNexis Online Subscribers: You can link to your account on Lexis Advance to read the complete headnotes and court decisions, en banc decisions, writ denied summaries, panel decisions and IMR decisions.    

Appellate Court Compensation Cases

City of South San Francisco v. W.C.A.B. (Johnson, Richard), Lexis Advance
Statutory Presumptions of Industrial Injury—Allocation of Liability Between Employers—Burdens of Proof Standards—Court of Appeal, affirming WCAB order denying petition for reconsideration, held that, while Labor Code § 3212.1 creates heavy burden for employer to rebut presumption that cancer manifesting during, and for specified period following, employment in certain public safety positions, including firefighters, arose out of and in course of employment, for Labor Code § 5500.5(a), allocating potential liability between employers, applicable standard of proof is preponderance of evidence, when Court of Appeal found that…

County of San Diego v. W.C.A.B. (Pike, Kyle), Lexis Advance

Temporary Disability—Periods of Disability—Five Years After Date of Injury—Court of Appeal, annulling WCAB’s order denying defendant’s petition for reconsideration and remanding matter to WCAB with directions to grant defendant’s petition for reconsideration, held that “plain language” of Labor Code § 4656(c)(2) precludes WCAB from awarding temporary disability payments for periods of disability occurring more than five years after date of underlying injury, when Court of Appeal found that…

">

Federal District Court Opinions of Related Interest

De Peralta v. Fox Restaurant Concepts, LLC, Lexis Advance

Federal Diversity Jurisdiction—Intentional Infliction of Emotional Distress Claims—Workers’ Compensation Act Preemption—U.S. District Court for Central District of California granted plaintiff’s motion to remand matter to state court based on its finding that complete diversity of citizenship between parties did not exist for purposes of federal jurisdiction, where plaintiff, a citizen of California, filed suit against multiple defendants, including his supervisor Andrew Vratil, also a California citizen, asserting violations of Fair Employment and Housing Act and California Labor Code in addition to cause of action for intentional infliction of emotional distress (IIED), after he was denied work accommodation and was terminated from his employment…

King (Deborah) v. C&K Market, Inc., Lexis Advance

Federal Court Civil Actions Against Employers—Fair Employment and Housing Act—Americans With Disabilities Act—Dismissal under Rule 12(b)(6) —U.S. District Court for the Eastern District of California granted employer’s motion to dismiss plaintiff’s thirteen causes of action under FEHA and ADA (Fair Employment and Housing Act, Gov. Code § 12900 et seq. and Americans with Disabilities Act, 42 U.S.C.S. § 12101, et seq.), for failure to state claims under Federal Rules of Court, Rule 12(b)(6), when court found…

Federal Court Civil Actions Against Employers—Labor Code § 132a Claims—WCAB Exclusive Jurisdiction—U.S. District Court for the Eastern District of California held WCAB has exclusive jurisdiction to resolve plaintiff’s claims under Labor Code § 132a, citing City of Moorpark v. Superior Court, 18 Cal. 4th 1143, 77 Cal. Rptr. 2d 445, 959 P.2d 752, 63 Cal. Comp. Cases 994 (1998) and court noted that…

Lawson v. Grubhub, Inc., Lexis Advance

Employment Relationships—Employee vs. Independent Contractor—Wage and Hour and Expense Claims—U.S. District Court for the Northern District of California held defendant met burden of proving it properly classified plaintiff as independent contractor, not employee, during plaintiff’s four months of work for employer as restaurant delivery driver in late 2015/early 2016, based on entire record and application of factors of S.G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal. 3d 341, 769 P.2d 399, 256 Cal. Rptr. 543, 54 Cal. Comp. Cases 80, when district court found…

Rios v. Wells Fargo Bank, Lexis Advance

Federal Diversity Jurisdiction—Intentional Infliction of Emotional Distress Claims—Workers’ Compensation Act Preemption—U.S. District Court for Central District of California granted plaintiff’s motion to remand matter to state court based on its finding that complete diversity of citizenship between parties did not exist for purposes of federal jurisdiction, where plaintiff, a citizen of California, filed suit against defendants Wells Fargo under multiple theories of liability and against his former supervisor Hassan Reheem, also a California citizen, for intentional infliction of emotional distress (IIED) based on allegations that Reheem pressured him to force employees to work overtime without compensation, and, although defendants argued that Reheem was fraudulently joined to defeat complete diversity and that plaintiff’s IIED claim against Reheem must fail on basis that Reheem’s conduct constituted “personnel management activity” and was preempted by Workers’ Compensation Act, District Court found that...

Digests of WCAB Decisions Denied Judicial Review

Editorial Board members Hon. Jacqueline C. Duncan, Susan Hamilton, James Pettibone, and Kenneth M. Sheppard recommended some of the following writ denied cases for summarization in this issue.

California Department of Corrections and Rehabilitation Parole and Community Services v. W.C.A.B. (Gomez, Jose), Lexis Advance

Medical Treatment—Utilization Review—Time Deadlines—WCAB affirmed WCJ’s finding that defendant’s utilization review denial of treating physician Kamshad Raiszedeh, M.D.’s Request for Authorization to perform cervical injection to treat applicant parole officer’s 4/6/2001 industrial orthopedic injury was untimely under former Labor Code § 4610(g)(1) (operative prior to 1/1/2018) and 8 Cal. Code Reg. § 9792.9.1(c)(3), which allow five “working days” or “business days” from receipt of necessary information, but not more than 14 days from receipt of Request for Authorization, to make utilization review determination, when defendant received Request for Authorization on 11/23/2016, which was day before Thanksgiving, and requested additional information on 12/2/2016, and WCAB determined that…

Catheline (Teresa) v. W.C.A.B., Lexis Advance

Medical Treatment—Independent Medical Review Process—Retroactive Application—WCAB affirmed WCJ’s finding that, pursuant to express provisions of Labor Code § 4610.5(a)(2), independent medical review process applies to all disputes over utilization review decisions communicated to physician requesting authorization for treatment on or after 7/1/2013, regardless of date of injury, and that, therefore, 2016 utilization review determination denying authorization for medical treatment related to applicant’s 10/17/2000 orthopedic injuries was subject to independent medical review; WCAB rejected applicant’s assertions that...

Lopez (Francisco) v. W.C.A.B., Lexis Advance

Subsequent Injuries Benefits Trust Fund—Threshold Requirements for Liability—WCAB, reversing WCJ, held that applicant, who suffered industrial injury to his low back, left hip, and left knee on 6/27/2010, resulting in stipulated award of 48 percent permanent disability, was not entitled to Subsequent Injuries Benefits Trust Fund benefits under Labor Code § 4751 based on prior injury to “equal and opposite member” as determined by WCJ in reliance on opinion of agreed medical examiner Sova Khuong, D.C., when WCAB found that...

Star Insurance Co. v. W.C.A.B. (Sanchez, Irma), Lexis Advance

Petitions to Reopen—New and Further Disability—Extrinsic vs. Intrinsic Fraud—WCAB affirmed WCJ’s finding that there was good cause to reopen applicant’s award of 20 percent permanent disability for her admitted 4/16/2012 industrial psychiatric injury and award applicant 100 percent permanent disability based on substantial medical evidence, when WCAB determined that (1) applicant’s failure to affirmatively state in her Petition to Reopen that she suffered new and further disability did not deprive WCAB…

Other WCAB Decisions Denied Judicial Review

Bradley (Ruby) v. W.C.A.B., Lexis Advance

Discovery—Close of Discovery—WCAB affirmed WCJ’s order excluding from evidence medical-legal report obtained by applicant after close of discovery to rebut panel qualified medical evaluator’s report indicating that applicant’s psychiatric injury was nonindustrial, when applicant made no attempt to obtain rebuttal report prior to close of discovery at mandatory settlement conference on issue of injury AOE/COE or attempt to cross-examine panel qualified medical evaluator, and WCAB concluded that, under these circumstances, applicant was not denied due process by WCJ’s order.

Rose International Group v. W.C.A.B. (Carter, Donna), Lexis Advance

Injury AOE/COE—Causation—Substantial Evidence—WCAB affirmed WCJ’s finding that applicant suffered injury AOE/COE to her right knee and left wrist in slip-and-fall accident on 5/18/2016, when WCAB found that, although there were inconsistencies in applicant’s testimony and written statement regarding precise events surrounding her fall in employer’s restroom, inconsistencies were not material enough to defeat her claim of industrial causation, especially given that applicant’s testimony was essentially corroborated by co-worker who witnessed aftermath of injurious fall, that applicant’s claim of injury at work…

Salazar (Teresa) v. W.C.A.B., Lexis Advance

Penalties and Sanctions—Physician Pre-Authorization—WCAB affirmed WCJ’s finding that applicant, who alleged that she suffered cumulative industrial injury to her neck, back, and psyche while employed as welding inspector for defendant, was not entitled to Labor Code § 5814 penalties and/or sanctions under Labor Code § 5813 based on defendant’s alleged failure to provide written pre-authorization to physician Philip H. Conwisar, M.D., whom applicant selected as her primary treating physician and claimed would not schedule initial appointment with her, absent written authorization, when WCAB found...

Siller (James, Jr.) v. Contra Costa County, Lexis Advance

Discrimination—Labor Code § 132a—WCAB affirmed WCJ’s finding that defendant did not discriminate against applicant in violation of Labor Code § 132a by counseling applicant and docking his pay based on applicant’s unpermitted absences from work, when WCAB found that credible testimony at trial established that defendant had long-standing office policy requiring all leaves and/or vacation requests aside from sick days to be approved by management in advance, that applicant…

Supplemental Job Displacement Benefits—WCAB affirmed WCJ’s finding that applicant, who suffered admitted industrial orthopedic injury while working as senior auditor-appraiser for County assessor on 5/14/2014, was not entitled to supplemental job displacement benefit voucher, when WCAB found that...

Silver v. W.C.A.B. (Clink, Michael), Lexis Advance

Sanctions—WCAB, amending WCJ’s decision, reduced WCJ’s award of Labor Code § 5813 sanctions against lien claimant David Silver, M.D., and his hearing representative, Daniel Escamilla, from $2,500.00 each to $950.00 each, and rescinded WCJ’s award of attorney’s fees against Dr. Silver and Mr. Escamilla, when WCAB found that...

Appeals Board Panel Decisions

Camacho (Marcos) v. Pirate Staffing, Lexis Advance

WCAB Procedure—Disclosure of Social Security Number—WCAB rescinded WCJ's finding that applicant, while working as welder on 5/13/2011, suffered injury AOE/COE to his back but not to his hips, lower extremities or psyche, and remanded matter for further proceedings, when WCAB determined that…

De La Cerda (Joel) v. Martin Selko & Co., Lexis Advance

Permanent Disability-Rating—Combining Multiple Disabilities—WCAB rescinded WCJ's finding that applicant suffered 93 percent permanent disability, after apportionment, as result of industrial injuries to his neck, low back, right shoulder, cardiovascular system (hypertension), gastrointestinal system (GERD), pulmonary system (RAD), central nervous system (sleep disorder), neurological system (headaches), and psyche, while employed as laborer on 6/27/2003, and remanded matter to trial level for further proceedings on issue of permanent disability, when WCJ used Combined Values Chart (CVC) to combine applicant's impairments despite opinion of agreed medical evaluator Timothy Reynolds, M.D., that additive method should be used instead to most accurately calculate extent of applicant's disability, and WCAB found that…

Hobson (Deric) v. Bechtel Group, Inc., Lexis Advance

Permanent Disability Rating—AMA Guides—Rebuttal of Scheduled Rating—WCAB rescinded WCJ's finding that applicant suffered 88 percent permanent disability as result of internal injury in form of Valley Fever incurred while he was employed as laborer over period 8/29/2011 through 7/23/2012, based on impairment findings of agreed medical examiner Todd Fearer, M.D., and instead awarded applicant 100 percent permanent disability based on vocational expert opinion of David Van Winkle, which WCAB found...

Val (Tony) v. Southern California Edison, Lexis Advance

Presumption of Compensability—Time to Act on Claim—WCAB affirmed WCJ's finding that Labor Code § 5402(b) presumption of compensability did not apply to applicant's alleged psychiatric injury, notwithstanding applicant's assertion that Labor Code § 5402(b) was applicable because defendant failed to deny his claimed orthopedic and psyche injuries within 90 days of original Application for Adjudication alleging orthopedic injury or Amended Application for Adjudication adding psychiatric injury, and, although WCAB found that...

Psychiatric Injury—Good Faith Personnel Actions—WCAB rescinded WCJ's finding that applicant did not suffer injury AOE/COE to his psyche, and returned matter to trial level for further proceedings on that issue, when psychiatric panel qualified medical evaluator Ara Anspikian, M.D., concluded that applicant's psychiatric injury was predominantly related to industrial factors for purposes of establishing compensable psychiatric injury under Labor Code § 3208.3(b), and WCAB concluded that…

Whitson (Sonya) v. Dept. of Social Services-In Home Supportive Services, Lexis Advance

Settlements—Compromise and Release Agreements—Scope of Settlement—WCAB, in split panel opinion, affirmed WCJ's order denying defendant's Petition for Dismissal of applicant's claim for 4/10/2015 specific injury to her shoulders, neck, hand, head, arm, and back filed on 11/25/2016 on basis that specific injury claim was resolved as part of 12/14/2015 Compromise and Release settling applicant's claim for cumulative injury during period from 8/6/2011 through 6/15/2014, when paragraph 1 of pre-printed DWC Compromise and Release form used in this case only identified applicant's cumulative injury claim and did not mention her specific injury, and WCAB reasoned that...

Independent Medical Review Decisions

CM17-0105931, Lexis Advance

Home Health Care—Unskilled Caregivers—Spine Injury—IMR expert reviewer overturned UR decision denying applicant’s request for home health care by an unskilled caregiver (rather than trained medical professional) for 7 hours per day, 7 days per week. In finding that home health care was medically necessary and appropriate, the IMR expert relied on the 2016 MTUS chronic pain treatment guidelines, which do not require skilled care by a licensed medical professional… [LexisNexis Commentary: This IMR decision provides guidance for individuals seeking home health care services from non-medical, “unskilled” caregivers such as family members. Applicant in this case lived with his brother’s family members, who will likely be providing the requisite care for applicant and will benefit from receiving reimbursement for the care they provide.]…

CM17-0108704, Lexis Advance

Home Health Care—Post-Shoulder Surgery—IMR expert reviewer overturned UR decision denying treating physician’s request for home health care at rate of 8 hours per day for 21 days in conjunction with applicant’s right shoulder arthroscopic rotator cuff repair and subacromial decompression surgery. The IMR expert observed that although the MTUS addressed post-surgery home health care services, UR denied the request for home health care in this case based on the non-MTUS ODG guidelines. In finding the treating physician’s request for post-operative home health care medically necessary, appropriate, and in-line with applicant’s needs, the IMR reviewer relied upon the 2016 MTUS chronic pain guidelines allowing home health care visits commensurate with a patient’s needs following major surgical procedures, such as the procedure planned for applicant. The IMR expert concluded that... [LexisNexis Commentary: This IMR decision is helpful as an example of a decision in which UR used incorrect non-MTUS guidelines to determine that home health care was not medically appropriate. The IMR reviewer, however, relied on the MTUS to find that home health care was medically necessary and appropriate for applicant post-shoulder surgery, especially given that the surgery affected applicant’s dominant arm.]…

CM17-0109730, Lexis Advance

Home Health Care—Domestic Services—Evaluations—IMR expert reviewer overturned UR denial of treating physician’s request for home health care evaluation, but upheld UR’s noncertification of home health care in the form of housekeeping services 4 hours per day, 2 days per week, based on the 2016 MTUS chronic pain guidelines. The IMR expert noted... [LexisNexis Commentary: This IMR decision is helpful because it illustrates the need for a home health care evaluation before a determination is made regarding the specific home health care services required on an indefinite as opposed to a short-term basis. The decision also provides a detailed explanation as to why an in-home evaluation should occur in this case and indicates that applicant may be entitled to the requested home health aide after the requisite evaluation occurs.]…

CM17-0113066, Lexis Advance

Board and Care—Thoracic Spine Injury/Paraplegia—IMR expert reviewer overturned UR denial of applicant’s request for board and care with available 24-hour assistance, when expert found that requested treatment was medically necessary and appropriate based on the non-MTUS ODG for lumbar and thoracic spine conditions. The applicable non-MTUS ODG allows... [LexisNexis Commentary: This IMR decision is helpful because it illustrates a situation in which the IMR reviewer did not apply the guidelines mechanically but rather resolved the dispute more expeditiously by finding that if a caregiver was not adequate, board and care would be medically necessary.]…

CM17-0131370, Lexis Advance

Home Health Care—IMR expert reviewer overturned UR denial of treating physician’s request for home health care for 8 hours per day, 7 days per week based on 2016 MTUS chronic pain guidelines. Applicant in this case suffers from... [LexisNexis Commentary: This IMR decision is helpful because it provides a detailed discussion of the criteria that must be met for entitlement to home health care services. It also serves as a guide to practitioners/medical providers with respect to what they should include in an RFA to meet the MTUS criteria for home health care services.]

CM17-0133927, Lexis Advance

Home Health Care—Domestic Services—IMR expert reviewer upheld UR denial of treating physician’s request for 3 months of home care assistance for 4 hours per day, 7 days per week, based on the 2016 MTUS chronic pain guidelines. Under the applicable guidelines, home health care services are recommended on a short-term basis following major surgery or in-patient hospitalization, to prevent hospitalization, or to provide longer-term nursing care and support services for those whose condition is such that they would otherwise require in-patient care. Home health care services... [LexisNexis Commentary: This IMR decision is helpful in that it alerts practitioners/providers to the necessity of providing detailed documentation regarding why an injured worker is homebound and requires domestic services to comply with the MTUS guidelines and illustrates that failure to provide adequate explanation could result in denial of the services requested.]…

Medical Transportation—IMR expert reviewer upheld UR denial of treating physician’s request for transportation for applicant to and from medical appointments, based on non-MTUS ODG for knee and leg injuries. The applicable guidelines recommend... [LexisNexis Commentary: This IMR decision is helpful in that it describes the requirements for entitlement to medical transportation.]…