Sept. 2019 Cal. Comp. Cases Issue

CALIFORNIA COMPENSATION CASES

Vol. 84 No. 9 Sept. 2019

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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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

Rodriguez (Josafat, Jr.) v. W.C.A.B., Lexis Advance

Disability Retirement Benefits—Industrial Causation—Statute of Limitations—Court of Appeal, annulling WCAB decision, held that applicant’s claim of industrial causation of his disability retirement was timely, when Court of Appeal found that applicant, combat veteran of Gulf War, suffered back injury AOE/COE while working as police officer for defendant, that he applied for disability retirement benefits, that, following six and one-half years of litigation, defendant granted applicant disability retirement benefits, that applicant, subsequently claimed that his disability took form of post-traumatic stress disorder, which was caused by both his military service and his work for defendant, that WCAB ruled that…

Skelton (Renee) v. W.C.A.B., Lexis Advance

Temporary Disability Indemnity—Applicant’s Return to Work—Medical Appointments—Court of Appeal, affirming WCAB’s decision after reconsideration, held that applicant was not entitled to receive temporary disability indemnity for time lost from work to attend medical treatment appointments following her return to work, but was entitled to compensation for wage loss for attending medical-legal evaluations, when Court of Appeal found that...

Federal Circuit Court Opinion of Related Interest

Dawson v. National Collegiate Athletic Association/PAC-12 Conference, Lexis Advance

Employment Relationships—Student-Athletes—National Collegiate Athletic Association—PAC-12 Conference—U.S. Court of Appeals, Ninth Circuit, affirming U.S. District Court, Northern District of California’s dismissal of plaintiff college football player’s claim that he was employee of defendants National Collegiate Athletic Association (NCAA) and PAC-12 Conference within meaning of Fair Labor Standards Act (FLSA), 29 U.S.C.S. §§ 201-219, and California labor law, held that plaintiff was not employee of defendants, when U.S. Court of Appeals, Ninth Circuit, found that...

Appeals Board Significant Panel Decision

Pa’u (Puni) v. Department of Forestry/Cal Fire, Lexis Advance

Utilization Review Denials—Timeliness—WCAB, in Significant Panel Decision, affirming WCJ’s finding that utilization review denials were timely, held that phrase “working days” in Labor Code § 4610 does not include Saturdays, based upon standard modern usage, as reflected in dictionary definitions, statutory and regulatory enactments, and judicial decisions, when WCAB panel found that...

Digests of WCAB Decisions Denied Judicial Review

Editorial Board members Hon. Joel K. Harter, Richard M. Jacobsmeyer, John W. Miller, and Hon. Ralph Zamudio recommended some of the following writ denied cases for summarization in this issue.

Audette (Donald) v. W.C.A.B., Lexis Advance

WCAB Jurisdiction—Professional Athletes—WCAB rescinded WCJ’s decision that California had jurisdiction over applicant’s claim for industrial injuries incurred while applicant was employed as professional hockey player for various teams between 1989 and 2004, and returned matter to trial level for further proceedings on issue of whether insurance policies issued to employers Montreal Canadiens (Montreal) and Florida Panthers (Florida) met requirements of Labor Code § 3600.5(c)(1)(A) and (B) for purposes of exemption from California jurisdiction under Labor Code § 3600.5(d), when WCAB reasoned that...

Church of the Chimes v. W.C.A.B. (Mosrie, Ghassan), Lexis Advance

Statute of Limitations—Tolling—Waiver—WCAB, reversing WCJ’s decision, found that applicant’s claim for 11/8/2008 specific injury to his heart was not barred by statute of limitations in Labor Code § 5405, when applicant originally filed claim for cumulative heart injury, but agreed medical examiner ultimately opined that applicant suffered specific injury to his heart and defendant commenced permanent disability payments based on agreed medical examiner’s opinion, and WCAB found that...

City of Tracy v. W.C.A.B. (Luckhardt, Peter), Lexis Advance

Medical-Legal Procedure—Assignment and Selection of Panel Qualified Medical Evaluators—Specialty Designation—WCAB affirmed WCJ’s finding that applicant fire captain was not precluded from obtaining qualified medical evaluator panel in specialty of pain management after becoming represented by counsel, even though Medical Unit had issued orthopedic qualified medical evaluator panel before applicant became represented, when WCAB reasoned that...

One Beacon Insurance Group v. W.C.A.B. (Dewey, Gaylynn), Lexis Advance

Medical Treatment—Utilization Review—Home Health Care—WCAB affirmed WCJ’s award of 24-hour daily home health care services for unlimited duration to cure or relieve effects of applicant’s 5/1/2013 head injury with post-concussion syndrome and psychosis, when such services were authorized by defendant’s 2017 independent medical review (IMR) determination and, pursuant to that determination, provided by defendant, and WCAB found that, contrary to defendant’s assertion, unilateral termination of home health care services was not justified by new Request for Authorization (RFA) submitted by applicant’s treating physician in 2018 requesting six months of home health care services, which defendant’s utilization review (UR) denied, when WCAB reasoned that...

St. John Knits v. W.C.A.B. (Garcia, Maria), Lexis Advance

Discrimination—Labor Code § 132a—WCAB affirmed WCJ’s finding that defendant discriminated against applicant in violation of Labor Code § 132a, when defendant alleged that it terminated applicant’s employment because applicant failed to return to work after she received work release from her doctor following 2/24/2009 industrial injury to her right knee and psyche, and WCAB, citing Department of Rehabilitation v. W.C.A.B. (Lauher) (2003) 30 Cal. 4th 1281, 135 Cal. Rptr. 2d 665, 70 P.3d 1076, 68 Cal. Comp. Cases 831, reasoned that injured worker...

Other WCAB Decisions Denied Judicial Review

Aryzta, LLC v. W.C.A.B. (Mejia, Juan, Jr.), Lexis Advance

Post-Termination Claims—Date of Injury—Exceptions—WCAB, affirming WCJ’s decision, held that applicant mixer’s claim for cumulative trauma to his low back and stomach during period 9/11/2014 through 11/20/2017 was not barred by Labor Code § 3600(a)(10) post-termination defense, when WCAB determined that...

California Correctional Peace Officers Association Benefit Trust Fund v. W.C.A.B. (Martin, David, Jr.), Lexis Advance

Liens—Procedural Rights and Duties—WCAB Jurisdiction After Withdrawal of Lien—WCAB, denying removal, affirmed WCJ’s order continuing trial on issue of applicant’s claim for costs, attorney’s fees, and sanctions against lien claimant pursuant to Labor Code § 5813, notwithstanding that lien claimant withdrew its lien, when WCAB found that, contrary to lien claimant’s assertion, withdrawal of lien did deprive WCAB of jurisdiction to determine lien claimant’s liability under Labor Code § 5813 for its prior misconduct, as WCAB jurisdiction was invoked when applicant filed petition for costs, fees, and sanctions, and jurisdiction was never released, and WCAB was not persuaded that...

Interstate Distributor Co. v. W.C.A.B. (Zozosky, Edward), Lexis Advance

Injury AOE/COE—Substantial Evidence—WCAB, in split panel decision, found that applicant suffered injury AOE/COE to his right shoulder while employed as truck driver by defendant on 7/21/2016, when applicant testified that he was injured when brakes on his truck locked up, causing truck to forcefully stop, and WCAB panel majority determined that, although there were inconsistencies in applicant’s testimony regarding precise nature of how brakes locked, and defendant challenged feasibility of applicant’s version of event, applicant’s testimony was generally credible, applicant consistently stated that he was injured when his truck stopped forcefully, and, while precise mechanism of applicant’s injury was unclear, there was substantial medical evidence in record to support applicant’s assertion that injury was caused by forceful stopping of his vehicle; Commissioner Lowe, dissenting, did not believe that applicant presented substantial evidence to support finding of industrial right shoulder injury, and would return matter to trial level for further development of record on issue of injury AOE/COE, when Commissioner Lowe found that...

Silver v. W.C.A.B. (Roth, Marlene), Lexis Advance

Petition for Writ of Review—Dismissed as Premature—Court of Appeal dismissed lien claimant’s Petition for Writ of Review as premature pursuant to...

SME Steel Contractors, Inc. v. W.C.A.B. (Watkins, Orlando), Lexis Advance

Temporary Disability—Offer of Modified Work—WCAB affirmed WCJ’s finding that applicant who suffered industrial injury to his right upper extremity, right hand, and right shoulder on 2/9/2018 while employed by defendant as production wire welder, did not unreasonably refuse modified duty and was entitled to temporary total disability for period 2/10/2018 to present and continuing, when WCAB found that...

Southern California Edison v. W.C.A.B. (Forkner, John, Dec’d,Forkner, Pamela, Widow), Lexis Advance

Injury AOE/COE—Burden of Proof—Substantial Medical Evidence—WCAB, affirming WCJ’s decision, found that, based on decedent’s deposition testimony, trial testimony of defendant’s employees, and medical opinion of agreed medical examiner, decedent’s exposure to various known carcinogenic substances and radiation while employed by defendant between 1988 and 2013, within medical probability, contributed to his development of brain cancer in form of glioblastoma multiforme, and WCAB rejected defendant’s assertion that agreed medical examiner’s opinion was not substantial evidence to support finding of industrial causation, when WCAB reasoned that...

State Compensation Insurance Fund v. W.C.A.B. (Maestas, Ruben), Lexis Advance

Petition for Writ of Mandate/Prohibition—Court of Appeal denied defendant State Compensation Insurance Fund’s Petition for Writ of Mandate and/or Prohibition or Other Appropriate Relief without prejudice, when defendant failed to...

Universal Furniture v. W.C.A.B. (Morales, Maria), Lexis Advance

Petition for Writ of Review—Denied as Premature—Court of Appeal denied defendant’s Petition for Writ of Review as premature pursuant to Labor Code §§ 5900 and 5901 because no final order was issued by WCAB regarding applicant’s claim for internal injury, as WCAB found...

Independent Medical Review Decisions

CM19-0072812, Lexis Advance

Opioid Medications—Hydromorphone and Kadian—IMR reviewer overturned UR decision reducing the quantity of Hydromorphone and Kadian ER requested by the treating physician to treat 62-year old applicant’s low back pain. According to applicant, her pain was reduced by more than half with use of opioid medication. The IMR reviewer cited the MTUS/ACOEM guidelines for opioid use for subacute and chronic pain, which require documentation of a successful opioid trial, an inadequate response to more appropriate evidence-based treatment approaches, at least 30 percent improvement in both pain and function with opioid use, and an opioid treatment agreement between doctor and patient. To support the medical necessity of prolonged opioid use under the guidelines, there must be documentation of continued functional benefit, regular urine drug screening and at least semiannual attempts to wean below 50mg MED. In this case, the treating physician documented ongoing 4As, urine drug screening, CURES assessment, and a current opioid consent. Applicant was on the lowest doses that allowed function, and weaning had been attempted. The IMR reviewer noted that... [LexisNexis Commentary: This IMR decision involves a case where there is no issue as to the medical necessity of the requested medications, but rather a question as to whether applicant should get more pills or less pills in a single prescription. UR opted for less pills, and, with respect to the Kadian, substituted a lesser quantity of the generic version, which was presumably less expensive. The decision also emphasizes that improvement in pain and function must be documented to support continued use of opioid medications, and that gradual tapering, rather than abrupt cessation, of the medication is required to safely wean patients from opioids.]

CM19-0074503, Lexis Advance

Opioid Medications—Tylenol with Codeine—IMR reviewer overturned UR decision denying treating physician’s request for prescription of Tylenol with codeine to treat 64-year old applicant’s chronic widespread pain with radiculopathy. Applicant had been using opioids for a while after she fell and sustained additional injuries, with consistent CURES results, pain contract and drug testing results. Oxycodone and Norco were trialed with improved pain and function but were discontinued due to skin rash. As noted by the IMR reviewer, the MTUS and ODG do not usually recommend opioids for chronic pain, breakthrough pain or neuropathic pain, but indicate that they may be used for chronic severe pain in certain cases such as severe radiculopathy after other treatments have failed. The IMR reviewer concluded that... [LexisNexis Commentary: This IMR decision addresses a situation where applicant was unable to tolerate more potent opioids and was prescribed Tylenol with codeine, which was sufficient to reduce pain and improve function.]

Prescription Medications—Anticonvulsants—Neurontin—IMR reviewer overturned UR decision reducing quantity of requested Neurontin by half and substituting name brand drug with generic equivalent, gabapentin 100mg. As noted by the IMR reviewer, the MTUS chronic pain guidelines moderately recommend anticonvulsants such as gabapentin for neuropathic pain as adjuncts to other medications. There is no specific recommendation for or against the use of gabapentin for radicular pain, but under the guidelines, a trial of gabapentin as a third- or fourth- line medication is reasonable. The MTUS also recommends gabapentin for an indefinite period to control chronic persistent pain. The IMR reviewer noted that... [LexisNexis Commentary: This IMR decision is particularly helpful as the IMR reviewer provides links to the MTUS guidelines he relied upon in finding that the requested treatment was medically necessary.]

CM19-0075163, Lexis Advance

Opioid Medications—Hysingla—IMR reviewer overturned UR decision allowing only 15 of the 30 tablets of Hysingla ER 20 mg requested by applicant’s treating physician. In this case, 73-year old applicant was being treated for lumbar spondylosis and lumbar disc degeneration following 3/7/2002 industrial injury. He was prescribed Hysingla ER 20 mg for pain and, according to the provider, was on the lowest possible dose. Applicant reported a decrease in pain with use of the Hysingla from a 5/10 to 1-2/10 on a scale of 10 and stated that the medication allowed him to perform ADLs. The MTUS/ACOEM guidelines relied upon by the IMR reviewer state that opioid prescriptions should be limited to cases in which other treatments are insufficient and recommend regular assessment of the patient’s function after starting opioid treatment for pain reduction. Under the guidelines, there should be at least 30 percent improvement in pain and function to justify continuation of opioid treatment. The guidelines also recommend regular urine drug screening in addition to an opioid treatment agreement between doctor and patient. Here, the IMR reviewer found that... [LexisNexis Commentary: This IMR decision provides an example of a situation in which the requested medicine was found to be medically necessary, but UR reduced the number of pills requested by the provider. The UR reviewer found that where applicant had decreased pain, increased function and was able to perform ADLs, the requested supply of pills was medically necessary.]

CM19-0090594, Lexis Advance

Opioid Medications—Buprenorphine HCL—IMR reviewer overturned UR decision allowing only 54 of the 60 tablets of Buprenorphine HCL 8mg requested by the treating physician. In this case, 53-year old applicant was being treated for chronic low back pain radiating to his right leg, following 2006 industrial injury to his lumbar spine and lumbar fusion. He had been using Buprenorphine HCL 8mg #60 for approximately 5 months prior to the current request, with decreased pain and functional improvement. The IMR reviewer cited the MTUS 2019 guidelines for opioid prescriptions, which require appropriate documentation of pain, ADLs, adverse effects, and screening for aberrant usage of the medication through CURES and urine drug screening (UDS). The opioid guidelines recommend short-term use if possible and periodic attempted weaning. Here, the IMR reviewer noted that... [LexisNexis Commentary: This IMR is instructive with regard to the MTUS guidelines to cite to get approval for opioid medication to relieve chronic pain. The decision also illustrates the importance of submitting the screening reports with the UR documentation.]