California: Top 25 Noteworthy Panel Decisions (July through December 2016)

California: Top 25 Noteworthy Panel Decisions (July through December 2016)

LexisNexis has selected some of the top “noteworthy” panel decisions issued by the California Workers’ Compensation Appeals Board during the period July through December 2016. The list features a number of decisions addressing medical-legal issues such as assignment, selection and reporting requirements applicable to qualified medical evaluators.  Additionally, there are several new cases discussing the access standards and utilization review requirements for medical provider networks, and a case of first impression interpreting the presumption of compensability in Labor Code § 3212.8 relating to blood-borne infectious disease.  Three “bonus” cases also appear, including a case published in California Compensation Cases addressing settlement of Supplemental Job Displacement Benefits, another case on the good faith personnel action defense to psychiatric claims in which the WCAB distinguishes a general stressful working condition that causes psychiatric injury from a “personnel action” specifically directed toward an individual that involves his or her employment status, and a split panel opinion holding that an injured worker who was treating outside the employer’s ADR agreement based on denial of her claim was required to transfer treatment to the ADR agreement’s exclusive provider network after her claim was accepted.  These, in addition to the other cases listed, provide a look at some evolving issues of interest currently before the Appeals Board.

CAUTION: These WCAB panel decisions have not been designated a “significant panel decision” by the Workers’ Compensation Appeals Board. Practitioners should proceed with caution when citing to these board panel decisions and should also verify the subsequent history of the decisions, as these decisions are subject to appeal. WCAB panel decisions are citeable authority, particularly on issues of contemporaneous administrative construction of statutory language. However, WCAB panel decisions are not binding precedent, as are en banc decisions on all other Appeals Board panels and workers’ compensation judges. While WCAB panel decisions are not binding, the WCAB will consider these decisions to the extent that it finds their reasoning persuasive.

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(Publisher’s Note: Lexis online subscribers can link to the full decisions to read them.)

ALTERNATIVE DISPUTE RESOLUTION

Ana Ramirez Farias, Applicant v. Able Building Maintenance, Zurich North America, Defendants, 2016 Cal. Wrk. Comp. P.D. LEXIS 440 (lexis.com), 2016 Cal. Wrk. Comp. P.D. LEXIS 440 (Lexis Advance)

Alternative Dispute Resolution—Transfer of Medical Treatment—WCAB, in split panel opinion, found that applicant who suffered industrial injury to her neck, back, right wrist, and right shoulder from 2/28/2005 through 1/22/2014, and was treating outside of alternative dispute resolution (ADR) agreement based on denial of her claim by defendant, was required to transfer treatment to ADR agreement’s exclusive provider network after defendant accepted her claim, pursuant to provisions in Labor Code § 3201.5 and terms of ADR agreement, when WCAB panel majority reasoned that agreed list of medical providers in ADR agreement differs from medical provider networks (MPN) established pursuant to Labor Code § 4616, that MPNs are regulated by Administrative Director and subject to statutory constraints such as those in Labor Code § 4603.2(a)(2) addressing transfer of treatment into MPN, that Labor Code § 3201.5 allows use of agreed list of treaters and allows parties to agreement to negotiate any aspect of medical treatment delivery, and that MPN statutes, including Labor Code § 4603.2, do not apply to medical treatment negotiated pursuant to collective bargaining agreement; Commissioner Sweeney, dissenting, opined that since ADR agreement was silent on transfer of care after employee has self-procured treatment from provider who is not on agreed provider list, and there was no dispute resolution mechanism for this dispute, MPN provisions in Labor Code, which allow employee to continue treatment with doctor outside employer’s MPN when there has been final determination that employee was entitled to treat outside MPN, should apply, or, alternatively, that requiring applicant to transfer care is diminishment of applicant’s entitlement to medical benefits and that portion of bargaining agreement that diminishes applicant’s entitlement to benefits is void.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 1.04A; Rassp & Herlick, California Workers’ Compensation Law, Ch. 3, § 3.04[3].]

CALIFORNIA INSURANCE GUARANTEE ASSOCIATION

Lorenzo Toscano Corona, Applicant v. Koosharem, doing business as as Select Staffing, California Insurance Guarantee Association (CIGA) by its servicing facility Sedgwick CMS for Ullico Casualty Insurance Company in liquidation, ACE American Insurance Company administered by ESIS, RSI Home Products, Travelers Property Casualty Company of America, Liberty Mutual Insurance Company, Defendants, 2016 Cal. Wrk. Comp. P.D. LEXIS 542 (lexis.com), 2016 Cal. Wrk. Comp. P.D. LEXIS 542 (Lexis Advance)

California Insurance Guarantee Association—General and Special Employment—Restricting and Limiting Endorsements—WCAB rescinded WCJ’s finding that ACE American Insurance Company (ACE) and Travelers Property Casualty Company of America (Travelers) had joint and several liability for injuries incurred by applicant on 4/25/2011 and from 4/25/2011 through 6/11/2011, and were “other insurance” pursuant to Insurance Code § 1063.1(c)(9) for purposes of dismissing CIGA as party defendant, and WCAB remanded matter to arbitrator to create proper record and to evaluate evidence regarding whether Travelers and ACE polices were limited and restricted to exclude coverage for applicant’s injuries, when WCAB reasoned that to properly exclude liability for injured employee’s injuries pursuant to limiting and restricting endorsement, insurer is required to show that it received approval to use endorsement from Insurance Commissioner, that special employer entered into valid and enforceable Labor Code § 3602(d) agreement with general employer, and that general employer obtained workers’ compensation coverage for excluded employees, that if these three elements are shown, special employer’s policy would not be available “other insurance” under Insurance Code § 1063.1, even if general employer’s insurer became insolvent, and special employer would not be considered uninsured employer because it obtained insurance through Labor Code § 3602(d) agreement, and that to avoid liability in this case ACE and Travelers, as insurers for applicant’s general and special employers, respectively, each had burden of showing that relevant policies contained limiting and restricting endorsement that excluded coverage for applicant and that endorsement was approved by Insurance Commissioner.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 2.60[3], 2.84[3][a], 3.142[5]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 3, §§ 3.30[2], 3.33[3].]

CUMULATIVE INJURY

Sheylla Azurdia, Applicant v. International Union of Operating Engineers, California Insurance Guarantee Association, Through its Servicing Facility Sedgwick Claims Management Services, Inc., for Ullico Casualty Company, in Liquidation, Travelers Property Casualty Company of America, Defendants, 2016 Cal. Wrk. Comp. P.D. LEXIS 414  (lexis.com), 2016 Cal. Wrk. Comp. P.D. LEXIS 414 (Lexis Advance)

Cumulative Injury—Date of Injury—WCAB amended WCJ’s finding that applicant’s date of injury was 3/6/2013 based on date agreed medical examiner declared applicant permanent and stationary with permanent disability, to find, instead, that applicant’s date of injury under Labor Code § 5412 was 6/2/2011, when WCAB reasoned that injured employee is generally not charged with knowledge that disability is job-related absent medical advice to that effect unless nature of disability and employee’s training, intelligence and qualifications are such that employee should have recognized relationship between known adverse factors involved, but that existence of medical opinion establishing industrial causation is not always necessary, and WCAB found that, here, concurrence of knowledge and disability occurred on earlier date, because combination of medical advice which led applicant to report injury to her employer in 2010, resulting in ergonomic evaluation and physical therapy for carpal tunnel syndrome, constituted knowledge of industrial causation, and knowledge concurred with disability for purposes of Labor Code § 5412 date of injury when primary treating physician found calculable permanent disability in report dated 6/2/2011.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 4.71, 24.03[6]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 10, § 10.06[1], Ch. 14, § 14.13.]

DEATH BENEFITS

Lee Woolever (Deceased), Penny Woolever, Department of Industrial Relations Death Without Dependents Unit, Applicants v. City of Long Beach, PSI and self-administered, Defendant, 2016 Cal. Wrk. Comp. P.D. LEXIS 605 (lexis.com), 2016 Cal. Wrk. Comp. P.D. LEXIS 605 (Lexis Advance)

Death Benefits—Death Without Dependents—WCAB affirmed WCJ’s decision awarding $250,000.00 in death benefits to Death Without Dependents Unit and denying decedent’s ex-wife’s claim as dependent, when ex-wife divorced decedent in 1998 but claimed that, in addition to court ordered spousal support, decedent provided financial support in form of forgiven loan and paying for gas, tires and other necessities, but WCAB reasoned that decedent never lived with his ex-wife after divorce was finalized and never reconciled with her and, therefore, ex-wife was not entitled to dependency death benefits on basis of financial support she received from decedent. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 9.02[4][d.2], 9.03[5]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 9, § 9.17.]

HEARINGS

Beatriz Moreno, Applicant v. RTJ Home Sweet Home, Inc., A California Corporation, Rosalinda Galo, A Substantial Shareholder Of RTJ Home Sweet Home, Inc., And Torino Javier, A Substantial Shareholder Of RTJ Home Sweet Home, Inc., Illegally Uninsured, Defendants, 2016 Cal. Wrk. Comp. P.D. LEXIS 436 (lexis.com), 2016 Cal. Wrk. Comp. P.D. LEXIS 436 (Lexis Advance)

Hearings—Due Process—Attendance of Party Defendant—WCAB rescinded WCJ’s finding that applicant caregiver suffered industrial injury to her neck and back from 7/31/2010 to 7/31/2011 while working for defendant, when WCAB found that defendant was denied due process by WCJ’s exclusion of defendant’s substantial shareholder, Torino Javier, from courtroom during trial of applicant’s case, and WCAB returned matter for new trial at which Mr. Javier could be present, when WCAB reasoned that, although Mr. Javier did not have absolute right to be present at trial and would not be entitled to delay proceedings had he been unavailable to attend, Mr. Javier was, as party defendant, entitled to have his interest in being present taken into consideration, that because Mr. Javier was present and affirmatively sought to attend and participate with his attorney, WCAB’s interest in having matter proceed without Mr. Javier was not compelling, and that WCJ improperly approached issue as though Mr. Javier’s interest was only that of employer representative, and did not adequately consider Mr. Javier’s strong personal interest as party defendant to assist his counsel in his own defense and not merely as employer’s representative, especially in light of Mr. Javier’s potential individual liability as well as consequences for failing to carry workers’ compensation insurance, which implicates stronger interest in participation in case than participating solely as representative of employer.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 26.01[3][a]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 16, § 16.11[1].]

INJURY AOE/COE

Ryan Schulke (Dec’d), Heidi Schulke (Widow), Brandon Ryan Schulke (Minor Son), Applicant v. Xerox Corporation, ACE American Insurance Company, administered by Sedgwick CMS, Defendants, 2016 Cal. Wrk. Comp. P.D. LEXIS 601 (lexis.com), 2016 Cal. Wrk. Comp. P.D. LEXIS 601 (Lexis Advance)

Injury AOE/COE—Injury From Work Stress—Physical vs. Psychiatric Injury—WCAB, reversing WCJ in split panel opinion, held that decedent suffered fatal heart injury on 1/5/2012 arising out of his employment as copy repair technician for Xerox Corporation and that his dependents were entitled to death benefits, when agreed medical evaluator opined that work stress was contributing cause (10 percent) of decedent’s heart attack, and, rejecting defendant’s assertion that stress causing decedent’s heart attack was psychiatric injury which did not meet threshold of compensability under Labor Code § 3208.3, WCAB reasoned that when stress causes physical injury, Labor Code § 3208.3 does not apply, that Labor Code § 3208.3 only applies to physical injuries that are solely caused by psychiatric injury as described 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, that, here, there was no claim of psychiatric injury under Labor Code § 3208.3 and no evidence that applicant’s heart attack was solely caused by psychiatric injury, and that defendant did not meet burden of proof pursuant to analysis in McCoy to establish that applicant’s heart attack was caused by non-compensable psychiatric injury so as to avoid liability for death benefits; Commissioner Razo, dissenting, opined that further development of medical record was required in this case, including psychiatric medical-legal evaluation, to determine whether applicant’s anxiety constituted psychiatric injury and whether such injury caused his heart attack, especially given that applicant was under care of psychiatrist for anxiety for years prior to heart attack and had been diagnosed with general anxiety disorder.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 4.02[3], 4.68[1]-[3], 4.69; Rassp & Herlick, California Workers’ Compensation Law, Ch. 10, §§ 10.04[1], 10.06[3][d].]

INSURANCE COVERAGE

David Berrios, Applicant v. EJ Distribution Corporation, Southern Insurance Company, administered by Markel FirstComp, Uninsured Employers Benefits Trust Fund, Defendants, 2016 Cal. Wrk. Comp. P.D. LEXIS 416 (lexis.com), 2016 Cal. Wrk. Comp. P.D. LEXIS 416 (Lexis Advance)

Insurance Coverage—Cancellation of Policy—WCAB affirmed Arbitrator’s finding that Southern Insurance Company, administered by Markel FirstComp (Markel), could not unilaterally and retroactively rescind workers’ compensation insurance policy purchased online by applicant’s employer, trucking company EJ Distribution Corporation, notwithstanding that, at time policy was purchased, employer represented that its truck drivers did not travel outside State of California, but applicant allegedly injured his back on 4/6/2009 while driving for employer in State of Tennessee, when Markel attempted to rescind employer’s policy after applicant’s claim was filed based on employer fraud and refunded $19,743.03 in premium deposits to employer, and WCAB reasoned that Markel, at very least, had affirmative duty to investigate employer’s operations prior to issuing policy but failed to conduct such investigation, that in this case record did not establish that employer made misrepresentation regarding out-of-state drivers at time it applied for policy, although at time applicant was injured in Tennessee, representation became false, that once Markel issued said policy to employer and received deposit premium, coverage under policy went into full force and effect for all of employer’s employees regardless of where employees may have suffered industrial injury, that Markel’s only remedies when it learned of misrepresentation were either to prospectively cancel employer’s policy or to adjust premiums to reflect out-of-state operations, and that without any declaratory relief or WCAB action, insurance carrier cannot rescind policy unilaterally and retroactively because doing so would violate public policy and deprive injured workers of workers’ compensation benefits.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 2.13, 2.61[2]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 3, § 3.24[2].]

LIENS

Gladys Paz, Applicant v. Tech Flex, SeaBright Insurance Company, Defendants; Tri-County Medical Group, Lien Claimant, 2016 Cal. Wrk. Comp. P.D. LEXIS 464 (lexis.com), 2016 Cal. Wrk. Comp. P.D. LEXIS 464 (Lexis Advance)

Liens—Procedural Rights and Duties—Statute of Limitations—WCAB affirmed WCJ’s finding that 18-month statute of limitations in Labor Code § 4903.5(a), and not three-year limitations period, applied to lien claim filed by lien claimant Tri-County Medical Group on 10/19/2015 for services lien claimant continuously provided to applicant from 1/21/2013 to 12/23/2013, and that lien claimant’s lien was barred for failure to timely file lien within requisite 18-month period, when WCAB found that because services were provided by lien claimant after 7/1/2013 date of implementation of 18-month statute of limitations, 18-month statute was applicable, and that applying 18-month limitation period rather than three-year period in this case was not unreasonable because amendments to Labor Code § 4903.5(a) became effective on 1/1/2013, and lien claimant had reasonable time within which to timely file its lien after effective date.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 30.04[8][a], 30.20[1], 30.21, 30.24; Rassp & Herlick, California Workers’ Compensation Law, Ch. 17, §§ 17.110[2], [3], 17.111[3], [5].]

Maria De La Luz Garcia, Applicant v. Morton Manufacturing, Wausau Insurance, adjusted by Liberty Mutual, Defendants, 2016 Cal. Wrk. Comp. P.D. LEXIS 480 (lexis.com), 2016 Cal. Wrk. Comp. P.D. LEXIS 480 (Lexis Advance)

Liens—Medical—Burden of Proof—WCAB rescinded WCJ’s order that lien claimant Sepulveda Plaza Medical Center, Inc., take nothing on its lien for medical services rendered to applicant under Labor Code § 5402(c) during period 7/2/2007 through 8/27/2007, and returned matter to WCJ to determine whether lien claimant met its burden of proof to establish that treatment provided was reasonably required to cure or relieve applicant from effects of her claimed injuries, including alleged “strain” injury, when WCAB reasoned that Labor Code § 5402(c) requires employer to provide applicant with reasonable and necessary medical treatment until claim is either accepted or rejected, that to recover on lien for treatment under Labor Code § 5402(c), lien claimant has burden to prove that its treatment of injured employee was reasonably required to cure or relieve employee from effects of injury, that WCJ here did not address all evidence produced by lien claimant nor whether lien claimant met its burden of proof as to these issues, and that, contrary to WCJ’s suggestion, where applicant listed “strain” as injury on claim form and on Application for Adjudication of Claim, lien claimant was not required to establish that applicant’s alleged injuries for which treatment was provided were industrial to recover its lien for treatment under Labor Code § 5402(c).  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 5.07[3][a], 30.25[2]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 4 § 4.03[2], [3].]

MEDICAL-LEGAL PROCEDURE

Mike Amaireh, Applicant v. Aldex Transport, Inc., Protective Insurance Company, administered by Protective Insurance Company, Defendants, 2016 Cal. Wrk. Comp. P.D. LEXIS 476 (lexis.com), 2016 Cal. Wrk. Comp. P.D. LEXIS 476 (Lexis Advance)

Medical-Legal Procedure—Assignment and Selection of Panel Qualified Medical Evaluators—Objections to Treating Physician’s Determination—WCAB, reversing WCJ, held that psychiatrist Howard Greils, M.D., was properly selected qualified medical evaluator and that his reports were admissible in this case, notwithstanding WCJ’s finding that applicant driver failed to follow proper procedure to obtain qualified medical evaluator in psychiatry in that applicant requested psychiatric panel before there was any determination by treating physician regarding psychiatric injury as required under Labor Code § 4062(a), when applicant’s claim for 12/30/2011 orthopedic injury was accepted by defendant but defendant disputed psychiatric claim, and WCAB, reasoning that substance prevails over form, concluded that recommendation of orthopedic agreed medical examiner that parties obtain psychiatric qualified medical evaluation because psychiatric claim was outside his field of expertise constituted good cause within spirit of 8 Cal. Code Reg. § 31.7 to allow qualified medical evaluator in psychiatry, and that applicant’s letter to defense counsel sent after receiving agreed medical examiner’s recommendation proposing list of potential agreed medical examiners in urology, psychiatry and neurology attempted to communicate objection to treating physician’s recommendations under Labor Code § 4062 so as to invoke process for agreement on psychiatric agreed medical examiner or request for assignment of psychiatric qualified medical evaluator panel, and that notwithstanding its vagueness and boilerplate format, letter demonstrated effort to resolve disputed psychiatric claim through required process so as to substantially comply with statute.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 22.06[2], 22.11[1]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 16, § 16.54[1].]

Beatriz Hernandez, Applicant v. Ramco Enterprises, PSI, Defendant, 2016 Cal. Wrk. Comp. P.D. LEXIS 486 (lexis.com), 2016 Cal. Wrk. Comp. P.D. LEXIS 486 (Lexis Advance)

Medical-Legal Procedure—Qualified Medical Evaluators—New Injuries—WCAB affirmed WCJ’s finding that applicant farm laborer who suffered multiple industrial injuries to various body parts was entitled to new panel qualified medical evaluator in field of pain management to evaluate 9/25/2015 injury to her back, hips, upper extremities, hand, and knee, pursuant to decision in Navarro v. City of Montebello (2014) 79 Cal. Comp. Cases 418 (Appeals Board en banc opinion), and was not required to return to same panel qualified medical evaluator who had evaluated her prior industrial injuries, when applicant filed previous four claims on or before 2/9/2015 and was evaluated for those claims by panel qualified medical evaluator Ernest Miller, M.D., on 12/2/2015, but did not file claim for 9/25/2015 injury until 2/12/2016, and WCAB found that because claimed injury was reported after other claims were filed and subsequent to initial evaluation with Dr. Miller, Applicant was entitled to new panel qualified medical evaluator for that injury, and rejected defendant’s suggestion that applicant intentionally delayed filing claim for 9/25/2015 injury until after initial evaluation with Dr. Miller in order to obtain another panel qualified medical evaluator because there was no evidence to support defendant’s assertion.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 22.11[11]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 16, § 16.54[11].]

Isidro Cervantes, Applicant v. Quality Farms Labor, Liberty Mutual Insurance Company, Defendants, 2016 Cal. Wrk. Comp. P.D. LEXIS 478 (lexis.com), 2016 Cal. Wrk. Comp. P.D. LEXIS 478 (Lexis Advance)

Medical-Legal Procedure—Non-Medical Records Provided to Qualified Medical Evaluator—WCAB, in split panel opinion, held that applicant tractor operator who suffered industrial injury to left shoulder, left upper extremity, neck, back, and psyche on 4/24/2007, could provide qualified medical evaluator with medical study abstracts and relevant citations to AMA Guides but that applicant did not show good cause to provide any other non-medical information to qualified medical evaluator, when WCAB reasoned that Labor Code § 4062.3 and 8 Cal. Code Reg. § 35 allow parties to provide medical and non-medical records relevant to determination of medical issue, that medical abstracts applicant sought to provide were relevant to applicant’s medical dispute with regard to whether Combined Values Chart should be applied to applicant’s claim, and qualified medical evaluator was required to use AMA Guides to evaluate applicant’s claim such that they could be provided by applicant, that various WCAB panel decisions applicant requested to send to qualified medical evaluator were not relevant to qualified medical evaluator’s determination of medical dispute and provision of those panel decisions by applicant’s attorney could create inference that they are controlling, and that relevance and authenticity of remaining records applicant sought to provide was unclear from record; Commissioner Sweeney, dissenting, believed that all proposed documents were relevant and could be provided to qualified medical evaluator, including proposed panel decisions and various indexed articles, which are publicly available documents and could be instructive.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 1.11[3][g], 22.11[18], 26.03[4]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 15, § 15.03[4][d], Ch. 19, § 19.37.]

Esau Hernandez, Applicant v. D.L. Bone and Sons Painting, ICW Group/Explorer Insurance Company, State Compensation Insurance Fund, Defendants, 2016 Cal. Wrk. Comp. P.D. LEXIS 531 (lexis.com), 2016 Cal. Wrk. Comp. P.D. LEXIS 531 (Lexis Advance)

Medical-Legal Procedure—Medical Examiner Reporting Timeframes—WCAB, affirming WCJ, held that defendant was not entitled to replacement qualified medical evaluator panel under 8 Cal. Code Reg. § 31.5(a)(12) based on untimeliness of panel qualified medical evaluator’s initial report under 8 Cal. Code Reg. § 38(b), when defendant did not object to late report until after receiving report, and WCAB found that defendant was not permitted to rely on applicant’s timely objection to late report to invalidate report and obtain replacement panel, that defendant should have lodged its own objection to untimeliness of report or, alternatively, could have taken affirmative steps to “join” applicant’s objection and promptly requested replacement panel but did neither and, instead, waited until approximately one month after applicant’s objection and receipt of report before requesting replacement panel, and that defendant did not demonstrate that removal was appropriate in this case, as defendant’s own actions were cause of any prejudice it claimed; WCAB panel majority agreed with WCJ that applicant, who timely objected to panel qualified medical evaluator’s late report but never requested replacement panel, was not permitted to withdraw objection to late report after receiving report, but Commissioner Zalewski, dissenting, noted that while 8 Cal. Code Reg. § 31.5(a)(12) requires party to object to untimely qualified medical evaluator report prior to date evaluator served report, it does not require that request for qualified medical evaluator replacement panel be made prior to service of qualified medical evaluator report or prior to requestor’s receipt of report.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 22.06[4], 22.13; Rassp & Herlick, California Workers’ Compensation Law, Ch. 16, § 16.54[14].]

Robin Portner, Applicant v. Costco, Liberty Mutual Insurance Company, Defendants, 2016 Cal. Wrk. Comp. P.D. LEXIS 499 (lexis.com), 2016 Cal. Wrk. Comp. P.D. LEXIS 499 (Lexis Advance)

Medical-Legal Procedure—Assignment and Selection of Panel Qualified Medical Evaluators—Specialty Designation—WCAB, granting removal, rescinded WCJ’s finding that qualified medical evaluator panel in specialty of orthopedics was proper specialty to evaluate applicant stocker’s claims of injury to her knee on 7/24/2014 and during period 10/4/2014 to 10/4/2015, and returned matter to trial level with instruction that dispute over appropriate qualified medical evaluator specialty must first be submitted to Medical Director as required by 8 Cal. Code Reg. § 31.5(a)(10), when WCAB noted that, based on parties’ simultaneous requests, two qualified medical evaluator panels were issued, one in specialty of orthopedic surgery, as requested by defendant, and another in specialty of physical medicine and rehabilitation, as requested by applicant, and that instead of submitting dispute over proper qualified medical evaluator panel specialty designation to Medical Director as required, defendant filed declaration of readiness to proceed and requested mandatory settlement conference to resolve dispute, and, while WCAB recognized that trial before WCJ would result in more expeditious determination than if dispute was first submitted to Medical Director, especially since appeal of Medical Director’s qualified medical evaluator specialty determination would ultimately have to be resolved by WCJ, WCAB concluded that applicable rules do not permit parties to bypass requirement that qualified medical evaluator specialty disputes “shall be resolved” by Medical Director, and that it was improper for WCJ to issue determination without first directing parties to submit dispute to Medical Director.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 1.11[3][g], 22.06[1][a], 22.11[2], [4], 26.03[4]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 16, § 16.54[2], [4], Ch. 19, § 19.37.]

Concepcion Vasquez, Applicant v. Providence Saint Joseph Medical Center, Sedgwick Claims Management Services, Defendants, 2016 Cal. Wrk. Comp. P.D. LEXIS 576 (lexis.com), 2016 Cal. Wrk. Comp. P.D. LEXIS 576 (Lexis Advance)

Medical-Legal Procedure—Medical Examiner Reporting Timeframes—Supplemental Medical-Legal Reports—WCAB, affirming WCJ, held that defendant was not entitled to replacement qualified medical evaluator panel in psychiatry based on failure of panel qualified medical evaluator Joshua Pretsky, M.D., to issue his supplemental report within 60-day time limit set forth in 8 Cal. Code Reg. § 38(i), when WCAB concluded that denial of panel replacement request is not, in itself, tantamount to substantial prejudice and/or irreparable harm so as to justify removal, that in this case defendant failed to demonstrate that denial of replacement panel caused substantial prejudice or irreparable harm, that Labor Code § 4062.5 only mandates replacement of qualified medical evaluator where initial medical-legal report is untimely but not where supplemental report issues beyond statutory time period, that replacement of qualified medical evaluator panel for untimely supplemental report is discretionary and must be based upon showing of good cause, as described by WCAB in Corrado v. Aquafine Corporation, 2016 Cal. Wrk. Comp. P.D. LEXIS 318 (Appeals Board noteworthy panel decision), that here defendant did not attempt to remedy Dr. Pretsky’s failure to issue supplemental report in timely manner after report was overdue, but instead waited for over six months from time it requested supplemental report to object to untimeliness and, therefore, arguably waived its objection to late report, and that given length of time that Dr. Pretsky served as psychiatric panel qualified medical evaluator in this case, replacing Dr. Pretsky would be contrary to Constitutional mandate to accomplish substantial and expeditious justice, especially in view of defendant’s failure to take steps to remedy matter.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 1.11[3][g], 22.06[4], 22.11[6], [11], [14], 26.03[4]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 16, § 16.54[6], [11], [14]; Ch. 19, § 19.37.]

Leandro Granillo, Applicant v. Southern Farmland and Cultivation, Meadowbrook Insurance, Defendants, 2016 Cal. Wrk. Comp. P.D. LEXIS 590 (lexis.com), 2016 Cal. Wrk. Comp. P.D. LEXIS 590 (Lexis Advance)

Medical-Legal Procedure—Objections to Medical Determinations of Treating Physician—WCAB rescinded WCJ’s finding that applicant machine operator’s 1/19/2013 industrial left arm injury caused temporary disability from 5/11/2013 through 6/27/2013 based on report of primary treating physician Richard Scheinberg, M.D., and held, instead, that applicant’s period of temporary disability continued through 11/13/2014 pursuant to report of panel qualified medical evaluator Craig MacClean, M.D., who was properly designated panel qualified medical evaluator selected after defendant objected to Dr. Scheinberg’s report, when WCAB rejected WCJ’s finding that applicant’s failure to independently object to Dr. Scheinberg’s permanent and stationary report pursuant to Labor Code § 4062 constituted waiver of objection to that issue based on rationale in J.C. Penney Co. v. W.C.A.B. (Edwards) (2009) 175 Cal. App. 4th 818, 96 Cal. Rptr. 3d 469, 74 Cal. Comp. Cases 826, and concluded that, contrary to circumstances in Edwards, where neither party objected to primary treating physician’s report, defendant here timely objected to Dr. Scheinberg’s report so as to trigger process in Labor Code § 4062.2, that requiring applicant to lodge his own separate objection to Dr. Scheinberg’s report would contravene entire scheme for prompt resolution of medical disputes as set forth in Labor Code §§ 4060-4062 in that it would potentially lead to multiple panel qualified medical evaluators reporting in case, depending on number of disputed issues, that as properly designated panel qualified medical evaluator, Dr. MacCLean was required to address all issues in dispute, including applicant’s permanent and stationary status, and that Dr. MacClean’s reporting constituted substantial evidence on issue of permanent and stationary date.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 22.06[2]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 15, § 15.03[4][a].]

MEDICAL PROVIDER NETWORKS

Thomas Hogenson, Applicant v. Volkswagen of America, Insurance Company of the State of Pennsylvania, Defendants, 2016 Cal. Wrk. Comp. P.D. LEXIS 488 (lexis.com), 2016 Cal. Wrk. Comp. P.D. LEXIS 488 (Lexis Advance)

Medical Provider Networks—Utilization Review—Independent Medical Review—WCAB, reversing WCJ, held that request for authorization to provide medical treatment in form of prescription medications by applicant’s MPN treating physician was subject to utilization review (UR) and independent medical review (IMR) because Legislature did not exclude MPN treatment from those processes, and submitting MPN treatment proposals to UR and IMR is consistent with legislative goal of assuring that medical treatment is provided by all defendants consistent with uniform evidence-based, peer-reviewed, nationally recognized standards of care; Commissioner Sweeney concurred separately to emphasize that there are two separate statutory tracks to dispute recommendation of MPN treating physician, consisting of UR IMR and second opinion MPN IMR process, that process triggered depends on whether applicant or defendant objects to MPN physician’s treatment recommendation, that UR IMR process (applicable when employer objects) and MPN IMR (applicable when employee objects) are not interchangeable and are not mutually exclusive, and regulatory and procedural requirements differ significantly for each, and that, here, because defendant objected to proposed treatment, UR IMR process applied to resolve treatment dispute.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 5.02[2], 5.03[4], [5], 22.05[6][b][iv]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 4, §§ 4.10, 4.11, 4.12[8], [9].]

Juan Rivas, Applicant v. North American Trailer, Travelers Property Casualty Company of America, Defendants, 2016 Cal. Wrk. Comp. P.D. LEXIS 572 (lexis.com), 2016 Cal. Wrk. Comp. P.D. LEXIS 572 (Lexis Advance)

Medical Provider Networks—Designation of Treating Physician Within Medical Group—Utilization Review—WCAB, affirming WCJ, ruled that applicant properly designated Kenneth K. Wogensen, M.D., employed by Casa Colina Transitional Living Center (Casa Colina), as his primary treating physician within defendant’s MPN, notwithstanding that Dr. Wogensen was not listed as individual physician in MPN, and that applicant was entitled to medical treatment requested by Dr. Wogensen to cure or relieve effects of his 10/16/2015 admitted injury to his head, brain, neck, ears, and eyes, including 60 days of post-acute physical rehabilitation at Casa Colina, when Casa Colina was listed in defendant’s MPN, and WCAB reasoned that under Labor Code § 4616(a)(3) and 8 Cal. Code Reg. § 9767.5.1, medical groups may be members of MPN and may employ services of physicians who do not register individually with MPN, such as Dr. Wogensen, that applicant’s designation of Dr. Wogensen as his primary treating physician specifically referred to Casa Colina, and evidence established Dr. Wogensen, in rendering treatment to applicant, acted only through Casa Colina and not in his capacity as individual physician, and that defendant’s assertion that Casa Colina was hospital that could only provide treatment upon referral from individual member of MPN was contradicted by description of Casa Colina in defendant’s MPN listing stating that Casa Colina was in MPN for purpose of providing inpatient and outpatient treatment in areas that expressly included rehabilitation from brain injury, and that no referral was required for this kind of treatment; WCAB found that since Dr. Wogensen was properly designated treating physician, defendant was required to conduct utilization review under Labor Code § 4610 before denying authorization for treatment requested by Dr. Wogensen, that because defendant failed to do so, WCAB had jurisdiction to decide medical dispute, and that reports of Dr. Wogensen and Dr. David R. Patterson, M.D., another Casa Colina physician who treated applicant, were substantial evidence to support award of requested treatment.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 5.03[1]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 4, § 4.12[2].]

Joel Rodriguez Luna, Applicant v. The Home Depot, Helmsman Management, Defendants, 2016 Cal. Wrk. Comp. P.D. LEXIS 405 (lexis.com), 2016 Cal. Wrk. Comp. P.D. LEXIS 405 (Lexis Advance)

Medical Provider Networks—Access Standards—Primary Treating Physicians—WCAB, in split panel opinion, affirmed WCJ’s finding that applicant store department supervisor was not entitled to obtain medical treatment outside defendant’s MPN for 5/24/2011 industrial injuries to his neck, shoulders, low back, and knees, when WCAB panel majority found that because applicant sought specialist in orthopedic surgery to be his primary treating physician, defendant’s MPN need only meet 30 mile/60 minute access standard for selection of specialist and not 15 mile/30 minute access standard applicable to selection of primary treating physician under 8 Cal. Code Reg. § 9767.5(a)(1), that defendant’s MPN will meet access standards if there are at least three physicians in any specialty identified as primary treating physicians within 15 mile/30 minute radius of applicant’s residence or employer’s zip code who are willing to treat applicant’s injury, and that, here, although defendant’s MPN had only one orthopedic surgeon within 15 mile/30 minute radius, record as developed by parties did not establish that defendant failed to provide medical treatment through its MPN because there was no evidence regarding whether MPN had at least three physicians of any specialty willing to act as applicant’s primary treating physician within acceptable radius; WCAB also found that parties’ stipulation that MPN had 17 orthopedic surgeons within 30 miles of applicant’s residence and employer’s zip code, did not establish their availability to provide applicant’s care as primary treating physicians, since specialists may agree to act only as secondary physicians on referral from primary treating physician; Deputy Commissioner Newman, dissenting, opined that because parties stipulated that defendant’s MPN had only one orthopedist located within 15 mile/30 minute radius applicable to primary treating physicians, MPN did not provide acceptable selection of physicians with expertise appropriate to applicant’s particular injury, consistent with Labor Code § 4616.3(d), to undertake role of primary treating physician within access standard in 8 Cal. Code Reg. § 9767.5(a)(1) and, therefore, defendant was required to provide applicant medical treatment outside MPN.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 5.03[1]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 4, § 4.12[4].]

MEDICAL TREATMENT

Esperanza Sanchez, Applicant v. Dunlap Manufacturing Inc., Travelers Property Casualty Company, Defendants, 2016 Cal. Wrk. Comp. P.D. LEXIS 407 (lexis.com), 2016 Cal. Wrk. Comp. P.D. LEXIS 407 (Lexis Advance)

Medical Treatment—Utilization Review—Time Deadlines—WCAB affirmed WCJ’s finding that defendant did not timely serve utilization review (UR) decision pursuant to timeframes in Labor Code § 4610(g)(1) and (g)(3)(A), and 8 Cal. Code Reg. § 9792.9.1(e)(3), which require that UR decision be timely made and timely communicated to requesting physician, when UR decision was communicated to applicant and to requesting physician within specified timeframes but was not served on applicant’s attorney pursuant to 8 Cal. Code Reg. § 10510; however, WCAB rejected WCJ’s conclusion that defendant’s failure to serve copy of request for authorization (RFA) on applicant created adverse inference that RFA established reasonableness and necessity of medical treatment in form of corticosteroid injection to applicant’s right wrist and eight sessions of physical therapy to treat 5/23/2015 industrial injury, when only medical evidence in record in this case addressing reasonableness and necessity of requested medical treatment was copy of defendant’s UR decision, and WCAB reasoned that even if defendant does not timely complete UR, injured employee must still prove that requested treatment is medically reasonable and necessary by demonstrating that treatment request is consistent with uniform guidelines or, alternatively, rebutting application of guidelines with preponderance of scientific medical evidence, that although RFA is medical report and should have been served on counsel, there was no evidence that defendant’s failure to serve RFA or produce copy of RFA at trial in this case constituted willful suppression of evidence, and that without any evidence to indicate whether defendant willfully suppressed production of evidence and absent evidence regarding whether requested medical treatment was reasonable and necessary, further proceedings at trial level were necessary.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 5.02[2][c], 22.05[6][b][iii]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 4, § 4.10[4].]

PERMANENT DISABILITY

James Matlock, Applicant v. State of California, Department of Transportation, State Compensation Insurance Fund, Defendants, 2016 Cal. Wrk. Comp. P.D. LEXIS 566 (lexis.com), 2016 Cal. Wrk. Comp. P.D. LEXIS 566 (Lexis Advance)

Permanent Disability—Apportionment—Overlapping Disabilities—Same Body Region—WCAB, amending WCJ’s finding that applicant equipment operator suffered 78 percent permanent disability as result of 7/14/2004 industrial injury to his low back, neck, left non-dominant shoulder, and in form of headaches, and 51 percent permanent disability as result of 8/25/2005 industrial injury to his right dominant shoulder, determined that applicant suffered 100 percent permanent total disability as result of 2004 industrial injury alone pursuant to Labor Code § 4662 based on opinions of agreed medical examiners, and emphasized that finding of 100 percent permanent total disability for 2004 injury did not negate award of 51 percent permanent disability for 2005 industrial injury because applicant’s right shoulder was not body part included in 2004 injury, when WCAB reasoned that Labor Code § 4664(c)(1) creates lifetime prohibition on combined permanent disability awards exceeding 100 percent for “any one region of the body,” that while Labor Code § 4664(c)(1) identifies “upper extremities, including the shoulders” as region of body, this does not prevent applicant from receiving separate award for injury to his right shoulder where there was separately ratable disability for right shoulder, and that under AMA Guides, separate impairment rating is obtained for each upper extremity and will be combined if caused by same injury, but since applicant’s shoulder disabilities were caused by different injuries, he should not be precluded from receiving separate award for each injury.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 8.05[1], 8.06[5][d], 8.07[2][a]-[c]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 7, §§ 7.40[1], 7.42[3]; The Lawyer’s Guide to the AMA Guides and California Workers’ Compensation, Ch. 8.]

Jose Montiel, Applicant v. Cal-Tech Precision, Inc., Defendant, 2016 Cal. Wrk. Comp. P.D. LEXIS 328 (lexis.com), 2016 Cal. Wrk. Comp. P.D. LEXIS 328 (Lexis Advance)

Permanent Disability—Rating—Permanent Total Disability—WCAB affirmed WCJ’s finding that applicant was totally permanently disabled as result of admitted 5/8/2003 injury to his back and compensable consequence injuries to his psyche, left knee, and in forms of diabetes, gastritis, sleep disorder, and sexual dysfunction, while employed as machine operator, and found that reports of physicians who found that applicant was not capable of returning to open labor market were substantial evidence to support WCJ’s award of 100 percent permanent disability even without vocational expert evidence, when WCAB concluded that determination of inability to compete in open labor market is not solely within province of vocational expert, that where there is substantial evidence of significant impairment, medical expert’s opinion regarding patient’s vocational capacity may be sufficient to establish total permanent disability, particularly where combined effects of orthopedic, internal and psychiatric impairments, such as documented in medical record here, establish employee is not capable of returning to labor market, that medical expertise of treating and evaluating physicians in discerning applicant’s inability to engage in full-time employment, in view of physical and mental disabilities related to his failed back condition, justified WCJ’s reliance upon their opinions, that absent valid apportionment, WCJ could reasonably find on this record that applicant was permanently totally disabled “in accordance with the fact” under Labor Code § 4662, and that WCJ was not required to obtain formal rating as WCJ is considered to have special expertise in performing permanent disability ratings and need not obtain formal rating before finding permanent disability provided there is substantial evidence to justify WCJ’s rating.  [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. 5, 8, 10.]

Sean Holguin, Applicant v. City of Fresno, c/o Risico Claims Management, Defendants, 2016 Cal. Wrk. Comp. P.D. LEXIS 489 (lexis.com), 2016 Cal. Wrk. Comp. P.D. LEXIS 489 (Lexis Advance)

Permanent Disability—Rating—Combined Values Chart—WCAB affirmed WCJ’s finding that applicant motorcycle police officer who suffered injury to multiple body parts on 5/15/2005 incurred 69 percent permanent disability based on analysis 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, as applied by agreed medical evaluator James Strait, M.D., and, additionally, held that WCJ properly calculated permanent disability by adding disabilities for applicant’s left and right upper extremities as recommended by Dr. Strait but using reduction formula in Combined Values Chart (CVC) to combine disabilities within each upper extremity as well as those for right knee and psychiatric disabilities, when WCAB reasoned that while presumption that use of CVC is preferred method of combining impairments/disabilities can be overcome, there must be substantial evidence to support adding disabilities rather than combining disabilities under CVC, that Dr. Strait persuasively opined that adding disabilities for both upper extremities most accurately reflected applicant’s disability but did not adequately support his opinion as to why disabilities within same upper extremity should be added rather than combined under CVC based on activities of daily living, and that calculation method employed by WCJ was consistent with Dr. Strait’s rationale by reflecting higher level of disability resulting from inability of one injured upper extremity to compensate for other injured upper extremity while providing reduction for overlapping disabilities inherent in injuries to two joints in same extremity.  [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, Ch. 6.]

PRESUMPTION OF COMPENSABILITY

Avi Azoulay, Applicant v. City of Orange, PSI, adjusted by York Services, Defendants, 2016 Cal. Wrk. Comp. P.D. LEXIS 338 (lexis.com), 2016 Cal. Wrk. Comp. P.D. LEXIS 338 (Lexis Advance) [Defendant’s Petition for Reconsideration denied 12/1/2016]

Presumption of Industrial Causation—Blood-Borne Infectious Diseases—Peace Officers—WCAB, reversing WCJ, held that applicant suffered presumptively compensable injury AOE/COE in form of blood-borne infectious disease while employed as juvenile correction officer during period 7/1/2001 through 6/11/2012, when agreed medical examiner, Dr. Green, testified that applicant’s blood infection was caused by bacteria that traveled to applicant’s bloodstream from ruptured diverticula (caused by non-industrial diverticulitis) in applicant’s colon, and WCAB concluded that (1) based upon Dr. Green’s description, applicant’s illness was covered by presumption of compensability in Labor Code § 3212.8, defining “blood-borne infectious disease” as “a disease caused by exposure to pathogenic microorganisms that are present in human blood that can cause disease in humans,” (2) statutory definition does not require that pathogenic organisms such as bacteria present in this case originate in blood or as blood disease, (3) under Labor Code § 3212.8(a) and (d), applicant’s illness falls within definition of “injury” to which presumption of industrial causation in Labor Code § 3212.8 applies because “part” of applicant’s disease, i.e., blood infection, “developed or manifested itself” during his employment, (4) presumption in Labor Code § 3212.8 reflects Legislature’s intent to protect certain safety personnel who have higher exposure to members of public who are more likely to have communicable blood-borne pathogens, (5) anti-attribution clause in Labor Code § 3212.8(c) precluded WCAB from attributing applicant’s blood-borne infectious disease to non-industrial diverticulitis, even though that was source of applicant’s injury, and (6) although Dr. Green concluded that applicant did not suffer industrial injury because onset of diverticular disease was long-term degenerative problem and was not caused by industrially-related condition, such as work-related constipation, Dr. Green’s reporting was insufficient to rebut presumption where he defined “blood-borne infectious disease” more narrowly than mandated by Labor Code § 3212.8 by finding that blood-borne infection must originate in blood for presumption to apply, and he did not address issue of whether diverticulitis was sole cause of blood-borne infectious disease.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 4.138[4][j]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 10, § 10.07[5][f].]

PSYCHIATRIC INJURY

Tanya Vayser, Applicant v. Tarzana Treatment Centers, PSI, adjusted by Adminsure, Defendants, 2016 Cal. Wrk. Comp. P.D. LEXIS 508 (lexis.com), 2016 Cal. Wrk. Comp. P.D. LEXIS 508 (Lexis Advance)

Psychiatric Injury—Good Faith Personnel Actions—WCAB affirmed WCJ’s findings that applicant suffered cumulative injury AOE/COE to her psyche while employed as patient account representative through period ending on 5/11/2015, and that defendant failed to prove that claim was barred by “good faith personnel action” defense in Labor Code § 3208.3(h), when WCAB, citing Larch v. Contra Costa County (1998) 63 Cal. Comp. Cases 831 (Significant Panel Decision), reasoned that term “personnel action” was not intended to cover all actions by any level of personnel in employment situation or all happenings in workplace, that “personnel action” is conduct by management including, but not limited to, transfers, demotions, layoffs, and certain disciplinary actions, that in determining whether psychiatric injury is substantially caused by lawful, nondiscriminatory, good faith personnel actions, distinction must be drawn between general stressful working conditions that cause psychiatric injury and “personnel action” specifically directed toward individual that involves his or her employment status, that, despite contrary view adopted by panel in Schultz v. W.C.A.B. (1998) 63 Cal. Comp. Cases 222 (writ denied), without such distinction phrase “personnel action” would encompass everything in employment environment that stems from good faith management and would be overbroad interpretation that would preclude from consideration almost all employment events, and that, here, WCJ correctly found that applicant’s significant change of work duties without adequate training, which agreed medical examiner concluded was predominant cause of applicant’s psychiatric injury, constituted general working conditions and not “personnel actions” within meaning of Labor Code § 3208.3(h).  [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

Theresa Pollex, Applicant v. Crestwood Hospital, Fireman’s Fund Insurance Company, Defendants, 2016 Cal. Wrk. Comp. P.D. LEXIS 381 (lexis.com), 2016 Cal. Wrk. Comp. P.D. LEXIS 381 (Lexis Advance)

Settlements—Compromise and Release Agreements—Medicare Set-Aside—WCAB denied applicant’s petition for removal and affirmed WCJ’s order denying approval of Compromise and Release which was contingent on approval of Medicare Set-Aside (MSA) by Centers for Medicare & Medicaid Services, when WCAB found that Compromise and Release was not binding because there was no meeting of minds between parties as to appropriate amount of MSA, and that approval of MSA is necessary prior to settlement of case.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 1.11[3][g], 26.03[4], 29.09[3][b]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 18, §§ 18.01[3], 18.07, Ch. 19, § 19.37.]

SUPPLEMENTAL JOB DISPLACEMENT BENEFITS

Juan Pablo Beltran, Applicant v. Structural Steel Fabricators, State Compensation Insurance Fund, Defendants, 2016 Cal. Wrk. Comp. P.D. LEXIS 366 (lexis.com), 2016 Cal. Wrk. Comp. P.D. LEXIS 366 (Lexis Advance)

Supplemental Job Displacement Benefits—Settlement—Thomas Findings—WCAB rescinded WCJ’s Order Approving Compromise and Release which disallowed parties’ agreement to settle any claim applicant laborer may have to Supplemental Job Displacement Benefit voucher under Labor Code § 4658.7, in connection with applicant’s industrial cumulative trauma to his head and back over period 10/20/2013 to 10/20/2014, when WCAB found that prohibition on settlement of Supplemental Job Displacement Benefit voucher in Labor Code § 4658.7(g) is analogous to settlement of vocational rehabilitation benefits, which Thomas v. Sports Chalet, Inc. (1977) 42 Cal. Comp. Cases 625 (Appeals Board en banc opinion), held could be settled in Compromise and Release only when serious and good faith issue exists which, if resolved against injured worker, would defeat all of his or her rights to compensation benefits, that, as in Thomas, where parties establish that there is good faith dispute which, if resolved against injured worker, would defeat injured worker’s entitlement to all workers’ compensation benefits, injured worker may settle his or her potential right to Supplemental Job Displacement Benefit voucher by way of Compromise and Release, and that under facts in this case parties have established that good faith dispute exists based on post-termination affirmative defense under Labor Code § 3600(a)(10), which, if accepted by WCJ, could bar applicant’s recovery of all workers’ compensation benefits.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 29.02[3][b], 35.01; Rassp & Herlick, California Workers’ Compensation Law, Ch. 21, § 21.01.]

WORKERS’ COMPENSATION APPEALS BOARD PROCEDURE

Dorothy Claiborne, Applicant v. Precious Home Companion, California Insurance Guarantee Association, FirstComp Insurance Services, Defendants, 2016 Cal. Wrk. Comp. P.D. LEXIS 343 (lexis.com), 2016 Cal. Wrk. Comp. P.D. LEXIS 343 (Lexis Advance) [Petition for Writ of Review denied 11/8/2016 sub nom California Ins. Guarantee Assoc. v. WCAB (Claiborne), 2016 Cal. Wrk. Comp. LEXIS 127 (writ denied)]

WCAB Procedure—Consolidation of Cases—WCAB affirmed WCJ’s order consolidating applicant caregiver/companion’s claims of specific injury to her left knee on 7/23/2010 and cumulative left knee injury during period ending on 7/23/2010, when WCAB found that consolidation of applicant’s two cases was proper under 8 Cal. Code Reg. § 10589, because cases involved common issues, issues were potentially complex and consolidation was necessary to avoid possibility of achieving inconsistent results in applicant’s two cases due to disparity of opinions among experts; WCAB rejected defendant’s assertion that consolidation was improper in that it allowed reports of agreed medical examiner David Pang, M.D., obtained in specific injury case involving different defendant, to be introduced in cumulative injury case even though defendant did not agree to use Dr. Pang in cumulative injury case, when WCAB reasoned that medical evaluation by Dr. Pang was properly obtained in specific injury case pursuant to Labor Code § 4062.2, and, therefore, under Labor Code § 4064(d), Dr. Pang’s reports and deposition testimony were admissible “in any proceeding before the appeals board except as provided in Section 4060, 4061, 4062, 4062.1, or 4062.2,” including applicant’s consolidated cumulative injury case.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 23.16; Rassp & Herlick, California Workers’ Compensation Law, Ch. 16, § 16.13.]

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