California: Top 25 Noteworthy Panel Decisions (July–December 2015)

California: Top 25 Noteworthy Panel Decisions (July–December 2015)

LexisNexis has picked the top “noteworthy” panel decisions issued by the California Workers’ Compensation Appeals Board during the period July through December 2015. The list features a number of decisions addressing the assignment and reporting of panel qualified medical evaluators, several cases discussing the requirements for obtaining recovery from the Subsequent Injuries Benefits Trust Fund, and a split panel decision where the panel majority found that that WCJ properly calculated applicant’s level of permanent disability by adding impairments rather than by combining ratings using Combined Values Chart. Also included is a  case in which the WCAB was split on the issue of whether the applicant was injured while working in defendant’s residence was an excluded employee under Labor Code § 3352(h) even though applicant also did work on defendant’s rental properties. These, in addition to the other cases listed, provide a look at some evolving issues of interest currently before the Appeals Board.

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CALIFORNIA INSURANCE GUARANTEE ASSOCIATION

Willie Pearson, Applicant v. State of California Department of Corrections, Legally Uninsured, Chamberlain’s Children Center, California Insurance Guarantee Association, for Superior National Insurance Company, in Liquidation, Defendants, 2015 Cal. Wrk. Comp. P.D. LEXIS 502 (lexis.com), 2015 Cal. Wrk. Comp. P.D. LEXIS 502 (Lexis Advance)

California Insurance Guarantee Association—Other Insurance—State of California—WCAB affirmed WCJ’s finding that California Department of Corrections, legally uninsured, did not constitute “other insurance” under Insurance Code § 1063.1(c)(9)(A) for purpose of relieving CIGA, on behalf of insolvent carrier Superior National Insurance Company, of liability for past and future medical care to treat back injuries suffered by applicant special education teacher while working for defendant Chamberlain’s Children Center during period Chamberlain’s was insured by Superior National, notwithstanding that Department of Corrections had stipulated to reimburse Superior National (prior to Superior National’s insolvency and CIGA’s assumption of its covered claims), for portions of applicant’s medical treatment costs based on prior injury incurred by applicant while working for Department of Corrections, when WCAB found that (1) State of California, unlike private self-insured employers or other public employers is not required to procure insurance or secure certificate of self-insurance under Labor Code § 3700 and does not come under Labor Code § 3211 definition of insurer; therefore, State of California does not constitute “other insurance,” and (2) contrary to defendant’s assertion, State of California is not deemed “other insurance” simply by virtue of adjustment services received by State Compensation Insurance Fund (SCIF), as SCIF’s inclusion as insurer under Labor Code § 3211 applies only when it is acting as actual insurer; in finding that California Department of Corrections does not constitute “other insurance” under Insurance Code § 1063.1(c)(9)(A), WCAB reasoned that CIGA is statutorily created fund with limited duties and liability, that public is better protected by fund set up for specific purpose of covering claims of insolvent insurers in limited specified circumstances rather than shifting liability onto public itself, and that there are other instances in workers’ compensation law where Legislature has treated state different from other employers and insurers.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 2.84[3][a]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 3, § 3.33[3].]

Raymundo Pitones, Applicant v. Mel Cast Litho, Inc., California Insurance Guarantee Association for Compensation Insurance Company, in liquidation, by its servicing facility, Sedgwick Claims Management Services, Defendants, 2015 Cal. Wrk. Comp. P.D. LEXIS 569 (lexis.com), 2015 Cal. Wrk. Comp. P.D. LEXIS 569 (Lexis Advance)

California Insurance Guarantee Association—Other Insurance—WCAB affirmed WCJ’s finding that CIGA did not establish entitlement to finding that St. Paul Travelers Insurance Company, carrier providing coverage for applicant’s 12/8/2005 industrial injury incurred with subsequent employer Southland Transit, was “other insurance” within meaning of Insurance Code § 1063.1(c)(9) for purposes of relieving CIGA from all liability for applicant’s three pending claims for prior injuries involving limited overlapping body parts, when neither subsequent employer nor Travelers was party to pending cases in which CIGA sought to be relieved of all liability and CIGA did not seek to join Travelers as party, there was no joint and several liability between CIGA and Travelers for predominant non-overlapping body parts, and WCAB found that, under circumstances, relieving CIGA of liability would deprive applicant of opportunity to recover full amount of benefits to which he may be entitled because, since Travelers was not party to claims for which CIGA sought to be relieved of all liability, applicant would not be able to seek recovery for his non-overlapping body parts and would be left without recourse against solvent insurer.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 2.84[3][a]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 3, § 3.33[3].]

EMPLOYMENT RELATIONSHIPS

Abel Reyes Garcia, Applicant v. Lee Lai, State Farm Insurance and Uninsured Employers Benefit Trust Fund (UEBTF), Defendants, 2015 Cal. Wrk. Comp. P.D. LEXIS 479 (lexis.com), 2015 Cal. Wrk. Comp. P.D. LEXIS 479 (Lexis Advance) [Applicant’s petition for writ of review was subsequently denied on November 30, 2015, sub nom. Reyes Garcia v. Workers’ Comp. Appeals Bd. (2015) 80 Cal. Comp. Cases --]

Employment Relationships—Residential Employees—WCAB, affirming WCJ in split panel opinion, held that defendant Lee Lai hired applicant in his capacity as homeowner and not in course of his “trade, business, profession, or occupation” within meaning of Labor Code § 3355, and that applicant was excluded from workers’ compensation coverage under Labor Code § 3352(h), when majority WCAB panel found that, although applicant had previously performed maintenance work on Mr. Lai’s three rental properties, applicant was injured while fixing water leak at Mr. Lai’s personal residence and that such work was unrelated to rental properties and not part of any business property or premises, and that because applicant fell within definition of residential employee in Labor Code § 3351(d) and was not employed by Mr. Lai for more than 52 hours during 90 calendar days immediately preceding date of injury, he was excluded from compensation coverage by Labor Code § 3352(h); Chairwoman Caplane, dissenting from majority opinion, found that Mr. Lai was in business of managing and maintaining rental properties that he owned and that applicant had ongoing relationship with Mr. Lai performing maintenance on Mr. Lai’s rental properties and also on properties owned by other employers as arranged by Mr. Lai, such that applicant was not excluded from definition of residential employee in Labor Code § 3351(d) when performing same type of work on applicant’s personal residence; Commissioner Caplane opined that majority’s distinction between Mr. Lai as homeowner/employer and Mr. Lai as business owner/employer is not supported by statutory scheme in Labor Code and Insurance Code governing liability for injuries sustained by residential employees, and that majority improperly considered only applicant’s duties at moment of injury, rather than looking at all of applicant’s work in determining employment relationship between applicant and Mr. Lai.  [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

Carlos Ivan Rodas (Deceased), Amanda Guerra & Carlos Ildefonso, Applicants v. Porcini, Incorporated dba Guido’s Restaurant, Truck Insurance Exchange, Defendants, 2015 Cal. Wrk. Comp. P.D. LEXIS 444 (lexis.com), 2015 Cal. Wrk. Comp. P.D. LEXIS 444 (Lexis Advance) [Applicant’s petition for writ of review was subsequently granted on November 12, 2015, sub nom. Rodas v. Workers’ Comp. Appeals Bd., Second Appellate District, Division 2, B266633]

Injury AOE/COE—Death—Medical Evidence—WCAB, reversing WCJ in split panel decision, held that medical opinion of qualified medical evaluator Ronald Zlotolow, M.D., regarding cause of decedent dishwasher’s death from hemorrhage in lungs was not substantial evidence to satisfy “contributing cause” standard described by Supreme Court in 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, when Dr. Zlotolow offered conclusion that decedent’s exposure to trash fumes and/or heavy lifting from taking out trash were substantial factors in his death, but, according to majority panel, there was nothing to support doctor’s conclusion because there was no evidence to corroborate that at time of his death decedent was actually exposed to trash fumes or had been engaged in heavy lifting; Commissioner Sweeney, dissenting from majority panel, concluded that WCJ correctly applied “contributing cause” standard in Clark to find industrial causation, because Commissioner Sweeney believed that, based on circumstances of decedent’s death, which occurred in parking lot of employer’s premises, and on coroner’s report, it was reasonable to conclude that decedent’s exposure to heavy fumes and/or heavy lifting caused fatal pulmonary hemorrhage, and found that Dr. Zlotolow’s opinion was substantial evidence as specific evidence in record rose to level of strong medical probability of industrial causation, and there were no other plausible explanations for decedent’s death.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 4.05[2], 27.01[1][c], 34.16[3]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 10, § 10.01[4].]

Jerry Lindsey, Applicant v. Los Angeles County Metropolitan Transportation Authority, PSI, Administered By Los Angeles County Metropolitan Transportation Authority, Defendants, 2015 Cal. Wrk. Comp. P.D. LEXIS 561 (lexis.com), 2015 Cal. Wrk. Comp. P.D. LEXIS 561 (Lexis Advance)

Injury AOE/COE—Going and Coming Rule—Exceptions—WCAB found that WCJ erred in applying premises line and travel expense exceptions to “going and coming” rule to find that applicant senior systems analyst suffered compensable injury on 9/25/2014, and held, instead, that applicant’s injury claim was barred by “going and coming” rule, when applicant’s injuries occurred in fall at Union Station after applicant completed work, left his place of employment to catch train and was on his way home, applicant’s commute was typical, local commute from fixed place of business with no benefit to employer, applicant was not on special errand or mission for employer at time of injury, applicant was not paid for his commute home and chose to use public transportation, and WCAB reasoned that, contrary to WCJ’s analysis, this case was not analogous to case where employee is injured on way from workplace to employer parking facility as applicant here was injured en route from employer’s business premises to public transit area, applicant’s use after work of Union Station, open to commuting public, provided no more risk to him on his routine commute than to any other commuter, that although Union Station is owned by employer Los Angeles County Metropolitan Transportation Authority (LACMTA), LACMTA had no management role in, possessory interest in or control over Union Station and was separate and distinct entity, and that employer’s reimbursement to applicant for part of cost of train ticket was not considered payment of wages or salary for commute period for purposes of applying travel expense exception to going and coming rule.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 4.150-4.157; Rassp & Herlick, California Workers’ Compensation Law, Ch. 10, § 10.05[3].]

LIENS

William McBurney, Applicant v. All That Glitters, Employers Compensation Insurance Company, Defendants, 2015 Cal. Wrk. Comp. P.D. LEXIS 637 (lexis.com), 2015 Cal. Wrk. Comp. P.D. LEXIS 637 (Lexis Advance)

Liens—Filing and Service—Notice of Representation—WCAB rescinded WCJ’s order disallowing liens of lien claimants Healthcare Finance Management, LLC, and PharmaFinance, LLC, based upon his findings that they did not appear at trial and that notice of representation offered by hearing representative Israel Figueroa, who attempted to appear at trial on lien claimants’ behalf, was inadequate because it did not comply with requirements of Labor Code § 4903.6(b) and 8 Cal. Code Reg. § 10774.5, when WCAB found that WCJ should have allowed Mr. Figueroa to appear at trial on lien claimants’ behalf because Mr. Figueroa worked for Landmark Medical Management, lien claimants’ designated representative, that Landmark Medical Management was responsible for assuring that Labor Code § 5700 agent represented lien claimants’ interests at hearings (similar to law firm’s provision of attorneys to represent parties at hearings), that although different individuals from Landmark Medical Management had appeared at different proceedings as Labor Code § 5700 agents, their appearance did not constitute change in representation, and that because he was appearing on behalf of Landmark Medical Management in its ongoing representation of lien claimant, Mr. Figueroa did not need to provide notice of representation.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 30.20[4], 30.22[5][b]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 17, § 17.40.]

MEDICAL-LEGAL PROCEDURE

Estela Chanchavac, Applicant v. LB Industries, Inc., Sentry Insurance, A Mutual Company, Defendants, 2015 Cal. Wrk. Comp. P.D. LEXIS 516 (lexis.com), 2015 Cal. Wrk. Comp. P.D. LEXIS 516 (Lexis Advance) [Applicant’s petition for writ of review was subsequently dismissed on November 30, 2015, sub nom. Chanchavac v. Workers’ Comp. Appeals Bd. (2015) 80 Cal. Comp. Cases --]

Medical-Legal Procedure—Additional Qualified Medical Evaluator Reports—WCAB, denying removal, held that co-defendant Sentry Insurance was entitled to obtain its own panel qualified medical evaluator report in connection with applicant’s cumulative industrial injury incurred over period 8/1/2012 to 8/1/2013, even though co-defendant Twin City Fire Insurance Company had already obtained panel qualified evaluator report, when applicant declined to elect carrier to proceed against and, instead, chose to proceed against both carriers who had coverage during her cumulative trauma period while working for same employer, and WCAB found that both carriers were able to obtain their own medical evaluations to defend applicant’s claim.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 1.11[3][g], 22.06[1], [6], 22.11[1], 26.03[4]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 16, § 16.54[1], [7].]

Manuel Ruiz, Applicant v. Schwan’s Home Services, Inc., Hartford Insurance Company, Administered by Sedgwick CMS, Defendants, 2015 Cal. Wrk. Comp. P.D. LEXIS 571 (lexis.com), 2015 Cal. Wrk. Comp. P.D. LEXIS 571 (Lexis Advance)

Medical-Legal Procedure—Medical Examiner Reporting Timeframes—Replacement Panels—WCAB, denying removal, affirmed WCJ’s order denying defendant’s request for replacement qualified medical evaluator panel in psychology based on late report from original panel qualified medical evaluator Dr. Karen Hutchinson, and further order admitting Dr. Hutchinson’s report into evidence, when Dr. Hutchinson sent “abbreviated” report concluding that applicant’s condition was predominantly caused by his employment within one week of examining applicant on 11/4/2014 and, after requesting additional time to receive results of psychological testing, sent more detailed report dated 1/2/2015 with proof of service having same date, although defendant alleged that report was not received until 1/13/2015 and produced envelope postmarked on 1/10/2015, and WCAB concluded that Dr. Hutchinson substantially complied with her obligations regarding reporting timeframes given unusual factual background in this case, including Dr. Hutchinson’s submission of initial report (albeit abbreviated and not substantial evidence) well within 30-day reporting deadline, and rejected defendant’s assertion that “bright-line” rule must be applied to reporting timeframes based on statutory language requiring qualified medical evaluator to serve initial evaluation within 30 days of examination, especially when interpreted in context of facts in this particular case and in light of fact that Dr. Hutchinson reported on threshold issue of compensability before defendant objected to timeliness of her evaluation.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 1.11[3][g], 22.11[4], [6], 22.13, 26.03[4]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 16, § 16.54[6], [14], Ch. 19, § 19.37.]

Susana Salazar, Applicant v. Motel 6, Barrett Business Services, Inc., PSI, Defendants, 2015 Cal. Wrk. Comp. P.D. LEXIS 642 (lexis.com), 2015 Cal. Wrk. Comp. P.D. LEXIS 642 (Lexis Advance)

Medical-Legal Procedure—Assignment and Selection of Panel Qualified Medical Evaluators—Time to Strike Physician’s Name—WCAB, denying removal, affirmed WCJ’s finding that applicant motel housekeeper’s strike from panel qualified medical evaluator list was timely under Labor Code § 4062.2(c), and that Frederick Nicola, M.D., was properly designated panel qualified medical evaluator, when panel qualified medical evaluator list was issued on 9/19/2013, defendant made its strike from list on 9/27/2013 and applicant made her strike on 10/2/2013, and WCAB reasoned that, pursuant to Matute v. Los Angeles Unified School Dist. (2015) 80 Cal. Comp. Cases 1036 (Appeals Board en banc opinion), and Razo v. Las Posas Country Club, 2014 Cal. Wrk. Comp. P.D. LEXIS 12 (Appeals Board Noteworthy Panel Decision), Code of Civil Procedure § 1013(a) extends time period for striking name by five calendar days so that party has total of 15 days after assignment to strike name from panel qualified medical evaluator list, thereby allowing applicant here to strike name 13 days after panel qualified medical evaluator list was issued and making Dr. Nicola properly chosen panel qualified medical evaluator.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 1.11[3][g], 22.06[1][a], 22.11[1], [6], 26.03[4]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 16, § 16.54[1], Ch. 19, § 19.37.]

Sharon Adams, Applicant v. Merced City School District, PSI, Adjusted by Intercare, Defendants, 2015 Cal. Wrk. Comp. P.D. LEXIS 649 (lexis.com), 2015 Cal. Wrk. Comp. P.D. LEXIS 649 (Lexis Advance)

Medical-Legal Procedure—Assignment and Selection of Panel Qualified Medical Evaluators—Time Deadlines—WCAB, denying removal, affirmed WCJ’s finding that defendant’s request for qualified medical evaluator panel was timely under Labor Code § 4062.2(b) and Matute v. Los Angeles Unified School Dist. (2015) 80 Cal. Comp. Cases 1036 (Appeals Board en banc opinion), when defendant had 15 days (ten days plus five days for mailing) after requesting evaluation by agreed medical examiner to request assignment of qualified medical evaluator panel, and WCAB found that because fifteenth day fell on Sunday, defendant properly made request on Monday, which was first working day after 15-day requirement.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 1.11[3][g], 22.06[1][a], 22.11[1], 26.03[4]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 16, § 16.54[1], Ch. 19, § 19.37.]

Medical-Legal Procedure—Assignment and Selection of Panel Qualified Medical Evaluators—Specialty Designation—WCAB, denying removal in split panel opinion, found that defendant’s request for panel in specialty of spine/orthopedic, although different from specialty of treating physician (physical medicine and rehabilitation), was sufficiently supported by defendant’s submission of  correspondence stating that “an orthopedic evaluator would be able to determine potential need for surgery,” when applicant bus driver claimed to have sustained industrial back injury, and WCAB panel majority found that defendant’s statement was reasonable given facts in this case, and, additionally, noted that 8 Cal. Code Reg. § 31.1(b) in effect in 2013, when panel request was made, requiring submission of supporting documentation with request for qualified medical evaluator panel in specialty different from that of treating physician, did not apply in cases where injury was denied as it was in this case; Commissioner Sweeney, dissenting, would grant removal based on her findings that defendant’s request to change to different specialty lacked support and was, therefore, invalid, when applicant’s cumulative trauma claim, dating back to 11/16/2012, not only involved applicant’s back but also involved her hips, legs and sleep, making physical medicine proper specialty to address claimed injury, and Commissioner Sweeney found that defendant’s request did not comply with 8 Cal. Code Reg. § 31.1(b) in effect in 2013, because defendant did not submit any documentation indicating that surgery was possibility or supporting request for different specialty.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 1.11[3][g], 22.06[1][a], 22.11[2], 26.03[4]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 16, § 16.54[2], Ch. 19, § 19.37.]

MEDICAL TREATMENT

Elaine Hacker, Applicant v. County of San Bernardino-Public Health Department, PSI, Defendant, 2015 Cal. Wrk. Comp. P.D. LEXIS 415 (lexis.com), 2015 Cal. Wrk. Comp. P.D. LEXIS 415 (Lexis Advance)

Medical Treatment—Independent Medical Review—Appeals—WCAB, in split panel opinion, held that WCJ’s findings that IMR determinations were not “substantial evidence” because they did not specifically identify date and author of each report reviewed as part of IMR process did not support order setting aside IMR determinations due to “plainly erroneous express or implied finding of fact” as described in Labor Code § 4610.6(h)(5), when WCAB found that nothing in IMR statute requires IMR determinations to state author and specific date of each and every report reviewed and 8 Cal. Code Reg. § 9792.10.6(d) provides only that IMR determinations contain “list of the documents reviewed,” that, here, IMR determinations sufficiently complied with rule by listing documents reviewed by name of provider and by range of provider’s dates of service, and that, even accepting WCJ’s view that IMR determinations should state specific date of each report reviewed, Labor Code § 4610.6(h)(5) is not applicable because failure to state dates of reports does not involve any findings of fact; in reversing WCJ, WCAB concluded that applicant did not establish grounds for her IMR appeals under Labor Code § 4610.6(h), and that defendant was not obligated to provide proposed treatment; Commissioner Caplane agreed with majority panel that WCJ’s decision was not properly subject to reconsideration because it was not final order, but dissented from majority’s conclusion that there was basis for ordering removal, when Commissioner Caplane reasoned that removal is extraordinary remedy that is only available if decision will result in significant prejudice or irreparable harm and that, here, defendant would incur no significant prejudice or irreparable harm if new IMRs are conducted as ordered by WCJ pursuant to Labor Code § 4610.6(i), even if IMRs determine that treatment is reasonably required, because defendant is already obligated to provide medical treatment under Labor Code § 4600.  [Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 1.11[3][g], 5.02, 22.05[6], 26.03[4]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 4, § 4.11, Ch. 19, § 19.37.]

Zayda Herring, Applicant v. Paradise Valley Hospital, PSI, adjusted by Adventist Health, Defendants, 2015 Cal. Wrk. Comp. P.D. LEXIS 526 (lexis.com), 2015 Cal. Wrk. Comp. P.D. LEXIS 526 (Lexis Advance)

Medical Treatment—Utilization Review—WCAB, reversing WCJ, held that defendant was liable for medical treatment, including six-month quantity of prescription medications Cymbalta, Ambien and Buspirone, originally requested by applicant medical biller’s treating psychiatrist, Louis Fontana, M.D., in 2013 and 2014, when defendant’s utilization review (UR) denials of medications were untimely, giving WCAB jurisdiction to determine medical necessity under Dubon v. World Restoration, Inc. (2014) 79 Cal. Comp. Cases 1298 (Appeals Board en banc opinion) (Dubon II), and WCAB concluded that WCJ erroneously denied requested medical treatment on basis that applicant did not show current need for prescriptions, which had already expired by time UR/independent medical review process was completed, and WCAB explained that even though requested prescriptions had expired, WCAB was still obligated to determine whether prescriptions were reasonable and necessary at time they were requested in order to determine whether defendant was liable to applicant for self-procured treatment or to any potential lien claimants who provided treatment, and that, here, unrebutted medical evidence indicated that applicant’s prescriptions were reasonable and necessary treatment at time requests for authorization were made.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 5.02, 22.05[6]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 4, § 4.10.]

PERMANENT DISABILITY

Laura Calvillo, Applicant v. State of California, CDCR, legally uninsured, administered by State Compensation Insurance Fund/State Contract Services, Defendants, 2015 Cal. Wrk. Comp. P.D. LEXIS 583 (lexis.com), 2015 Cal. Wrk. Comp. P.D. LEXIS 583 (Lexis Advance)

Permanent Disability—Rating—AMA Guides—WCAB rescinded WCJ’s finding that applicant correctional sergeant incurred 30 percent permanent disability as result of 7/8/2011 industrial injuries to her right wrist, right hand and psyche, and found, instead, that applicant incurred zero percent permanent disability from orthopedic injuries and 13 percent disability from injury to her psyche, when WCAB concluded that opinion of orthopedic agreed medical evaluator Alan Sanders, M.D., upon which WCJ relied, indicating that applicant suffered 12 percent whole person impairment as result of orthopedic injuries was insufficient under 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, to rebut strict AMA Guides rating of zero percent whole person impairment because Dr. Sanders did not meaningfully explain how or why he concluded that applicant’s subjective complaints warranted analogy to 20 percent loss of capacity to push, pull, lift, and grasp with right upper extremity and why resulting 12 percent whole person impairment rating was more appropriate than AMA Guides zero percent rating, particularly when Dr. Sander’s explicitly questioned applicant’s credibility and there were no and/or minimal objective factors of disability or impairment, and  Dr. Sanders’ opinion regarding 20 percent loss of capacity percentage was inconsistent with his expressed reservations as to applicant’s credibility and AMA Guides, which emphasizes objective assessment of impairment.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 8.02[3], [4][a], 32.03A; Rassp & Herlick, California Workers’ Compensation Law, Ch. 7, §§ 7.11, 7.12; The Lawyer’s Guide to the AMA Guides and California Workers’ Compensation, Chs. 3, 4, 5, 8.]

Edgar Diaz, Applicant v. State of California, Corrections & Rehabilitation Parole, legally uninsured, State Compensation Insurance Fund, Defendants, 2015 Cal. Wrk. Comp. P.D. LEXIS --

Permanent Disability—Rating—Combined Values Chart—WCAB, affirming WCJ in split panel decision, held that applicant parole officer suffered 93 percent permanent disability after apportionment as result of cumulative injury to multiple body parts from 2/1/98 through 2/22/2011, and that WCJ properly calculated applicant’s level of permanent disability for gastro-esophageal reflux disease (GERD) and irritable bowel syndrome (IBS) by adding impairments rather than by combining ratings using Combined Values Chart based on report of agreed medical examiner Richard Hyman, M.D., and decision in Athens Administration v. W.C.A.B. (Kite) (2013) 78 Cal. Comp. Cases 213 (writ denied), when Dr. Hyman, while not directly opining that additive method should be used to calculate level of impairment caused by applicant’s digestive injuries, did testify that using additive approach would not be inappropriate because there was no clear overlap in impairments, and WCAB panel majority found that WCJ was within his authority to rate applicant’s permanent disability using additive method and that method he used provided accurate rating of applicant’s level of permanent disability; Commissioner Zalewski, dissenting, opined that WCJ should not have used additive method to rate applicant’s digestive permanent disability because Dr. Hyman’s opinion on issue was equivocal and was not substantial evidence, that there was no direct medical evidence supporting use of additive method, and that, under circumstances, Combined Values Chart should have been used to rate permanent disability caused by GERD and IBS.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 8.02[3], [4][a], 32.03A; Rassp & Herlick, California Workers’ Compensation Law, Ch. 7, §§ 7.11, 7.12; The Lawyer’s Guide to the AMA Guides and California Workers’ Compensation, Chs. 3, 4, 5.]

PETITIONS TO REOPEN

Vicente Lopez, Applicant v. Chemtex Print USA, Endurance Insurance Company, administered by First Comp, Defendants, 2015 Cal. Wrk. Comp. P.D. LEXIS 563 (lexis.com), 2015 Cal. Wrk. Comp. P.D. LEXIS 563 (Lexis Advance)

Petitions to Reopen—WCAB rescinded WCJ’s finding that applicant was not entitled to reopen his claim for injury to his psyche and neurologic system because there was prior stipulated award dismissing those claims without prejudice, when WCAB found that when claim is dismissed without prejudice either party may petition to reopen case so long as WCAB retains jurisdiction to hear matter, and that here applicant was permitted to reopen his claim to litigate psyche and cognitive issues at later time because those portions of claim were dismissed without prejudice and applicant’s decision to pursue claims at later date constituted good cause to reopen.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 31.04[2]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 14, § 14.08.]

PRESUMPTION OF COMPENSABILITY

Elizabeth Rodriguez, Applicant v. County of Santa Clara Department of Correction, PSI, Defendant, 2015 Cal. Wrk. Comp. P.D. LEXIS 445 (lexis.com), 2015 Cal. Wrk. Comp. P.D. LEXIS 445 (Lexis Advance)

Presumption of Industrial Causation—Cancer Presumption—Peace Officers—WCAB affirmed WCJ’s finding that applicant sheriff’s correctional deputy suffered injury AOE/COE resulting in breast cancer, gastrointestinal reflux disorder and sleep disorder during period ending 6/1/2008, and that applicant was “peace officer” as defined in amended Penal Code § 830.1(c), effective 1/1/2011, at time of litigation for purposes of entitlement to Labor Code § 3212.1 cancer presumption, when WCAB concluded that, based on decision in Lozano v. W.C.A.B. (2015) 236 Cal. App. 4th 992, 186 Cal. Rptr. 3d 905, 80 Cal. Comp. Cases 407, amendment to Penal Code § 830.1(c) in 2011 was procedural and applies prospectively to all post-enactment litigation because applicant’s classification as “peace officer” pursuant to amendment does not change test for liability for applicant’s cancer or “change the effect of past events,” but merely reallocates burden of producing evidence by imposing burden on employer, and that, consequently, since both parties agree that applicant is “peace officer” under 2011 amendments, cancer presumption applies regardless of whether or not applicant was “peace officer” on date of injury.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 3.113[1], [2], [4][b]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 10, § 10.07[5][c].]

PSYCHIATRIC INJURY

Shimo Wang, Applicant v. Southern California Edison, Defendant, 2015 Cal. Wrk. Comp. P.D. LEXIS 511 (lexis.com), 2015 Cal. Wrk. Comp. P.D. LEXIS 511 (Lexis Advance)

Psychiatric Injury—Good-Faith Personnel Actions—Physical Injury—WCAB rescinded WCJ’s finding that applicant senior engineer’s claim for industrial heart injury caused by stress from being placed in employer’s performance improvement program was barred by lawful, good-faith, nondiscriminatory personnel action defense under Labor Code § 3208.3(h), when WCAB concluded that plain reading of Labor Code § 3208.3(h) limits its application to psychiatric injuries, that, although cumulative stress can result in injury, stress alone does not constitute psychiatric injury, that heart conditions by legal definition are physical, not psychiatric, injuries and in order for heart condition to fall within “mental-physical” definition of psychiatric injury evidence must establish that industrial causation of heart condition flows entirely from psychiatric injury, that holding in County of San Bernardino v. W.C.A.B. (McCoy) (2012) 203 Cal. App. 4th 1469, 138 Cal. Rptr. 3d 328, 77 Cal. Comp. Cases 219, upon which defendant relied in support of its position that applicant’s heart injury was barred, involved limited exception for physical condition that was solely consequence of non-compensable psychiatric injury but here no psychiatric injury was pled, that where defendant contends that applicant’s claimed physical condition is sole result of non-compensable psychiatric injury, defendant must prove that applicant suffered psychiatric injury and psychiatric injury was not compensable pursuant to Labor Code § 3208.3 and psychiatric condition was sole industrial cause of physical condition, and that record in this case requires further development on all issues relating to parties’ respective burdens of proof under McCoy, as clarified by WCAB; Commissioner Sweeney, concurring separately, found that holding in McCoy does not apply here because applicant suffered only physical injury caused by work stress and no psychiatric injury whatsoever, that physical injuries and psychiatric injuries require different burdens of proof, and that good-faith, nondiscriminatory personnel action defense does not apply to physical injuries such as heart injury incurred by applicant.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 4.02[3][a], [b], [f], 4.69[3][a], [b], [d]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 10, § 10.06[3][b], [d].]

SETTLEMENTS

Herbert Cooper (Dec’d), Pamela Cooper (Widow), Applicant v. Johns Manville, PSI employer, ESIS, TPA, Defendants, 2015 Cal. Wrk. Comp. P.D. LEXIS 585 (lexis.com), 2015 Cal. Wrk. Comp. P.D. LEXIS 585 (Lexis Advance)

Settlements—Compromise and Release Agreements—WCAB affirmed WCJ’s finding that decedent’s surviving spouse was entitled to pursue claim for death benefits arising from decedent’s death caused by malignant peritoneal mesothelioma, which involved injury to decedent’s abdomen, stomach and peritoneum and not to “lungs and respiratory system” settled in decedent’s 2008 Compromise and Release Agreement, and determined that defendant’s attempt to incorporate general release of decedent’s claim for injuries other than lungs and respiratory system into addendum to Compromise and Release was void, when Compromise and Release was expressly limited to listed body parts, conditions or systems regardless of contrary language in any addendum, general release of future claims and causes of action specifically referred back to injuries listed, and specific release of death benefits applied only to injuries covered by agreement, and WCAB concluded that release of death benefits in Compromise and Release for injury to specifically identified body parts did not release defendant from paying death benefits resulting from any injury or any body part.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d § 29.02[3]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 18, § 18.01.]

Bobby Duckworth, Applicant v. Los Angeles Rams, Travelers, San Diego Chargers, Insurance Company of the West, Zenith Insurance Company, Defendants, 2015 Cal. Wrk. Comp. P.D. LEXIS 627 (lexis.com), 2015 Cal. Wrk. Comp. P.D. LEXIS 627 (Lexis Advance)

Settlements—Compromise and Release Agreements—Scope of Settlement—WCAB, affirming WCJ, held that applicant professional baseball player’s claim for cumulative industrial injury to his brain and nervous system was not barred by 1989 compromise and release agreement settling applicant’s claim for cumulative orthopedic injury during same period as claimed brain injury, when WCAB concluded that applicant’s current claim for cumulative injury to brain was distinct from orthopedic cumulative injury claim addressed in 1989 compromise and release agreement, that, although general release in compromise and release may bar potential claims against employer that exist at time compromise and release is executed unless claim is expressly excluded from release, there was no evidence in this case that applicant knew at time he settled his case that he had claim for cumulative brain injury and no medical evidence of brain injury, as brain injury was progressive and latent in nature, so claim could not have been settled, and that plain language of 1989 compromise and release described claim being released at that time as claim for orthopedic injury.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d § 29.02[3]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 18, § 18.01.]

Andres Juarez, Applicant v. Accuride International, American Home Assurance Co. Inc., Administered by AIG Domestic Claims Inc., Federal Insurance Co., Administered by Chubb Group, Defendants, 2015 Cal. Wrk. Comp. P.D. LEXIS 438 (lexis.com), 2015 Cal. Wrk. Comp. P.D. LEXIS 438 (Lexis Advance)

Settlements—Compromise and Release Agreements—Cumulative Injury—WCAB affirmed Arbitrator’s award ordering defendant Federal Insurance Company, administered by Chubb Group, to pay defendant American Home Assurance Company, administered by AIG Claims Services, Inc., 50 percent of all medical treatment incurred by applicant for his lumbar spine on or after 1/16/2003 up through 2/14/2011, date Chubb entered into compromise and release agreement with applicant, and continuing, when WCAB concluded that compromise and release agreement did not extinguish Chubb’s liability to provide ongoing reimbursement to AIG, and that agreement was not binding on AIG or its lien claim against Chubb and could not be basis to shift continuing sole liability against AIG.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 29.06; Rassp & Herlick, California Workers’ Compensation Law, Ch. 18, § 18.18.]

STATUTE OF LIMITATIONS

Delvin Williams, Applicant v. Miami Dolphins, San Francisco Forty Niners, Firemans Fund, Defendants, 2015 Cal. Wrk. Comp. P.D. LEXIS 578 (lexis.com), 2015 Cal. Wrk. Comp. P.D. LEXIS 578 (Lexis Advance)

Statute of Limitations—Cumulative Injury—Professional Athletes—WCAB, in split panel opinion, held that applicant/professional football player’s claims for cumulative trauma were not barred by Labor Code § 5405(a) statute of limitations, when WCAB found that statute was tolled because defendant did not give applicant notice of his workers’ compensation rights as required under Reynolds v. W.C.A.B. (1974) 12 Cal. 3d 726, 117 Cal. Rptr. 79, 527 P.2d 631, 39 Cal. Comp. Cases 768, and that, although it could be inferred from applicant’s earlier filing of specific injury claims that applicant had basic and general knowledge of his workers’ compensation rights, employer was not relieved of its obligation to provide applicant with specific notice of workers’ compensation rights, including notice regarding time limits within which claims must be filed, that applicant’s credible and unrebutted testimony in this case indicated that he did not know of his legal right to file cumulative trauma claim until he attended retired players’ conference in 2010, that fact that applicant was previously represented by attorneys did not show that he gained actual knowledge of his workers’ compensation rights from attorneys more than one year before he filed claim, as no earlier proceedings involved application of Labor Code § 5405 and there was no evidence to suggest that applicant would have been informed about statute of limitation in earlier proceedings, and that because defendant did not show that applicant had actual knowledge of time limit for filing workers’ compensation claim more than one year before claims at issue were filed, statute was tolled and applicant’s claims were not barred; Chairwoman Caplane, dissenting, held that, although defendant did not provide Reynolds notice, defendant met its burden to show that applicant had knowledge of his workers’ compensation rights more than one year before filing his claim based on applicant’s extensive contact with lawyers and litigation for over 30 years following his retirement from professional football that directly involved statutes of limitations and claims for workers’ compensation and disability as result of football injuries.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 24.03[6]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 14, §§ 14.13[1], 14.16.]

SUBSEQUENT INJURIES BENEFITS TRUST FUND

Dusty Glenn Garman, Applicant v. California Department of Corrections, California Substance Abuse Treatment Facility, Subsequent Injuries Benefits Trust Fund, Defendants, 2015 Cal. Wrk. Comp. P.D. LEXIS 380 (lexis.com), 2015 Cal. Wrk. Comp. P.D. LEXIS 380 (Lexis Advance) [Defendant’s petition for writ of review was subsequently denied on October 14, 2015, sub nom. Subsequent Injuries Benefits Trust Fund v. Workers’ Comp. Appeals Bd. (Garman) (2015) 80 Cal. Comp. Cases 1359 (Lexis Advance)]

Subsequent Injuries Benefits Trust Fund—Threshold Requirements—WCAB, reversing WCJ, held that applicant correctional officer who suffered presumed industrial heart attack on 4/15/2004 for which he received stipulated award of 100 percent permanent total disability with 50 percent apportionment to preexisting heart condition based on reporting of agreed medical examiner Gerald Markovitz, M.D., was entitled to SIBTF benefits pursuant to Labor  Code § 4751, when WCAB found that there was substantial medical evidence, independent of retroactive prophylactic work restriction to avoid undue emotional stress imposed by Dr. Markovitz, that applicant had permanent disability prior to his 2004 heart attack due to stenosis of coronary arteries, that applicant was not required to show wage loss or knowledge of heart disease to find preexisting disability, that applicant and his employer had previously stipulated to permanent total disability with 50 percent apportionment of applicant’s permanent disability to preexisting condition for purposes of meeting threshold requirements in Labor Code § 4751, and that apportionment of applicant’s permanent total disability was not precluded by Labor Code § 4663(e) because although Labor Code § 4663(e) precludes apportionment in cases involving injuries presumed compensable under Labor Code § 3212 et seq., applicant did not raise Labor Code § 4663(e) in prior petition to reopen stipulated award.  [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.]

William McGaugh, Applicant v. Monterey Peninsula Unified School District, Subsequent Injuries Benefits Trust Fund, Keenan & Associates, Defendants, 2015 Cal. Wrk. Comp. P.D. LEXIS 669 (lexis.com), 2015 Cal. Wrk. Comp. P.D. LEXIS 669 (Lexis Advance)

Subsequent Injuries Benefits Trust Fund—Threshold Requirements—WCAB affirmed WCJ’s finding that applicant janitor who incurred industrial injury to his wrists, shoulders and neck on 10/22/2009 was not entitled to benefits from SIBTF because applicant did not establish threshold requirements for SIBTF liability under Labor Code § 4751, when WCAB found that applicant’s prior award of 100 percent permanent disability with 15 percent apportionment to prior high school football injury, hip and other injuries was not res judicata on issue of whether there was ratable permanent disability prior to industrial injury for purposes of SIBTF liability, and reasoned that applying apportionment of permanent disability or impairment based on causation under Labor Code § 4663 is different than finding existence of permanent disability or impairment prior to industrial injury for SIBTF liability under Labor Code § 4751, as SIBTF benefits may not be payable for apportioned pathology, asymptomatic prior conditions or retroactive prophylactic work preclusion unless there is substantial evidence that apportioned causation resulted in labor disabling or ratable permanent disability prior to industrial injury, and that there was no evidence in this case that applicant’s high school football, hip or other injuries resulted in labor disabling or ratable permanent disability prior to industrial injuries.  [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.]

TEMPORARY DISABILITY

Marla Harris, Applicant v. Nordstrom, Inc., PSI, adjusted by Nordstrom Risk Management, Defendants, 2015 Cal. Wrk. Comp. P.D. LEXIS 559 (lexis.com), 2015 Cal. Wrk. Comp. P.D. LEXIS 559 (Lexis Advance)

Temporary Disability—Self-Procured Medical Treatment—WCAB, rescinding WCJ’s decision, held that applicant retail sales associate who suffered injury to her right shoulder, cervical spine and thoracic spine on 5/25/2010 was temporarily disabled through 5/13/2015 based on reporting of primary treating physician Andrew Hartman, M.D., and deposition of secondary treating physician Benjamin Rubin, M.D., and that applicant was not precluded from receiving temporary disability indemnity for period of disability incurred after undergoing self-procured rhomboid reattachment surgery on 5/13/2015 using her private medical insurance if substantial evidence supported existence of post-surgical temporary disability, when WCAB found that WCJ improperly concluded that applicant could not claim temporary disability indemnity for period following self-procured surgery because treatment was denied by utilization review (UR) and independent medical review (IMR), and that, as explained by Supreme Court in Valdez v. W.C.A.B. (2013) 57 Cal. 4th 1231, 312 P.3d 102, 164 Cal. Rptr. 3d 184, 78 Cal. Comp. Cases 1209, determination of whether defendant is liable to provide medical treatment is separate from determination of defendant’s liability for temporary disability, that injured worker has right to treatment from private physician at his or her own expense pursuant to Labor Code § 4605, and there is no statutory authority distinguishing between temporary disability that results from self-procured treatment and temporary disability resulting from treatment authorized and paid for by defendant under Labor Code § 4600, that medical treatment and UR statutes do not address defendant’s liability for temporary disability and cannot be relied upon to deny temporary disability, and that using medical treatment dispute statutes to address separate issue of temporary disability undermines employee’s right under Labor Code § 4605 to self-procure treatment; Commissioner Sweeney, concurring, found that medical record in this case clearly demonstrated that applicant’s surgery was reasonable and necessary on industrial basis and that UR and IMR were insufficient to refute medical necessity of surgery because UR decision did not follow Medical Treatment Utilization Schedule, and defendant did not provide complete medical record to IMR reviewer.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 7.02[1]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 6, § 6.15].]

WORKERS’ COMPENSATION APPEALS BOARD PROCEDURE

Maria Beltran, Applicant v. Pepperdine University, Zurich American Insurance Company, Gallagher Bassett Services, Defendants, 2015 Cal. Wrk. Comp. P.D. LEXIS 621 (lexis.com), 2015 Cal. Wrk. Comp. P.D. LEXIS 621 (Lexis Advance)

WCAB Procedure—Declarations of Readiness to Proceed—Good-Faith Settlement Efforts—WCAB, denying removal, affirmed WCJ’s order issued at 9/10/2015 mandatory settlement conference keeping case off calendar, when defendant filed declaration of readiness to proceed on 6/11/2015 requesting mandatory settlement conference on permanent disability, medical treatment, temporary disability, and injury AOE/COE, but discovery was incomplete at time of mandatory settlement conference, and, additionally, WCAB found that settlement efforts made by parties before prior mandatory settlement conference on 2/19/2015 were stale, that there were no meaningful efforts made to resolve case before defendant filed 6/11/2015 declaration of readiness to proceed, that 8 Cal. Code Reg. § 10414 requires that parties attempt to resolve their disputes before each and every declaration of readiness to proceed is filed to ensure that discovery is complete and that case cannot otherwise be settled, and that, considering state of Los Angeles district office’s trial calendar, it would be more prudent to keep this case off calendar until discovery is complete and more recent settlement negotiations occur.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 1.11[3][G], 25.08[1], 26.03[4]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 15, § 15.41[1], [2], Ch. 19, § 19.37.]

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