California: Top 25 Noteworthy Panel Decisions (July-December 2017)

LexisNexis has selected some of the top “noteworthy” panel decisions issued by the California Workers’ Compensation Appeals Board during the period July through December 2017. The list features a number of split panel decisions, including a case interpreting the Labor Code § 5406 statute of limitations applicable to death benefit claims, a decision (in which the Court of Appeal has recently granted writ of review) where the WCAB awarded payment of temporary disability indemnity pursuant to Labor Code § 4656(c)(2) more than five years from applicant’s date of injury, and another decision discussing the UEBTF’s obligations with respect to reimbursement of an insurance carrier for benefits mistakenly paid to applicant.  Also included are several cases addressing which method, the CVC or additive method, should be applied to combine permanent disability in various situations, a decision describing the factors that may be considered to rebut the scheduled DFEC factor for purposes of rating permanent disability, and a case discussing withdrawal from agreements to use an AME pursuant to Labor Code § 4062.2(f).  Additionally, there is a “bonus” case, where the WCAB awarded temporary disability resulting from surgery self-procured by applicant after authorization for the surgery was denied by UR/IMR. 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 However, WCAB panel decisions are not binding precedent, as are en banc decisions on all other Appeals Board panels and workers’ compensation judges.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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CUMULATIVE INJURY

Robert Gravlin, Applicant v. City of Vista, PSI, and AdminSure Diamond Bar (Claims Administrator), Defendants, 2017 Cal. Wrk. Comp. P.D. LEXIS 413 [Petition for Writ of Review denied 12/21/2017 sub nom. City of Vista v. WCAB (Gravlin) (2017) 83 Cal. Comp. Cases -- (writ denied)]

Cumulative Injury—Date of Injury—Injurious Exposure—Multiple Injuries—WCAB, after granting reconsideration of its prior decision [see Gravlin v. City of Vista, 2017 Cal. Wrk. Comp. P.D. LEXIS 133 (Appeals Board noteworthy panel decision)] on its own motion, affirmed WCJ’s finding that applicant’s employment as firefighter from 1/6/75 through 4/25/2002 caused single cumulative injury in forms of skin cancer and heart condition/hypertension, causing combined permanent disability of 74 percent, and WCAB rejected defendant’s assertion that applicant had two separate dates of injury under Labor Code § 5412, one to his heart/hypertension and another to his skin in form of skin cancer, based on different dates injuries became permanent and stationary, and, therefore, under anti-merger provisions in Labor Code §§ 3208.2 and 5303 and Labor Code § 4663(a), which requires apportionment of permanent disability caused by separate injuries, applicant’s skin and heart/hypertension disabilities must be rated separately, when WCAB held that separate disabilities arising out of single injuries are rated together, even if those disabilities do not become permanent and stationary at same time, that, generally, where employee suffers contemporaneous injury to different body parts over extended period of employment, employee has suffered one cumulative injury, that although there can be separate periods of cumulative injury over extended employment if employment caused compensable temporary or permanent disability followed by return to work and new and additional temporary or permanent disability, there was no evidence in this case establishing separate periods of disability, and that although applicant continued to work until 2005 there was no evidence that applicant suffered any new injurious exposure after he was declared permanent and stationary in 2002. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 4.71, 24.03[6], 31.3[2]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 10, § 10.06[1], Ch. 14, § 14.13.]

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DEATH BENEFITS

Raymond Timmons (Dec’d), Sandra Timmons (Wife), Applicant v. County of Los Angeles, PSI, Defendant,  2017 Cal. Wrk. Comp. P.D. LEXIS 504

Death Benefits—Accrual of Claim—WCAB, in split panel opinion, affirmed WCJ’s finding that applicant was entitled to death benefits following 10/25/2005 death of her husband, who suffered industrial injury to multiple body parts while employed as deputy sheriff, and found that applicant’s claim for death benefits was not barred under Labor Code § 5406(b), even though it was filed more than 240 weeks after dates of injury as stipulated by decedent, when WCAB panel majority found that date of decedent’s injury was in dispute in applicant’s death claim, thereby placing burden on defendant to establish when applicant knew or in exercise of reasonable diligence should have known that decedent’s disability was caused by his industrial injury, that pursuant to Arndt v. W.C.A.B. (1976) 56 Cal. App. 3d 139, 128 Cal. Rptr. 250, 41 Cal. Comp. Cases 151, and Berkebile v. W.C.A.B. (1983) 144 Cal. App. 3d 940, 193 Cal. Rptr. 12, 48 Cal. Comp. Cases 438, if date of cumulative injury is in dispute, such as here, date is determined based on dependent’s knowledge, not decedent’s knowledge or stipulation, that here WCJ correctly concluded based on evidence that applicant was not aware that her husband’s fatal hypertension was industrial until after his death, and that  it was not sufficient for defendant merely to show that applicant knew her husband suffered from hypertension, but rather defendant was required to establish that she knew it was related to his employment; Commissioner Lowe, dissenting, opined that applicant’s death claim was barred under Labor Code § 5406(b), when Commissioner Lowe reasoned that 240-week time period in Labor Code § 5406(b) is not normal statute of limitations, as suggested by majority panel, but rather is qualifying condition that must be met in order to receive death benefits, that prior to his death decedent in this case had inter vivos claim for industrial injuries and he died more than 15 years after his stipulated dates of injury, that because 240 weeks expired years before decedent’s death, applicant’s right to death benefits never arose, and that this result is consistent with public policy behind 240-week qualifying condition as decedent’s stipulated dates of injury are too remote for his dependents to qualify for death benefits.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 9.01[4], 24.03[4]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 9, § 9.05, Ch. 14, § 14.11.]

Paul Douglas Cooke (Deceased), Belinda Cooke (Dependent/Guardian Ad Litem), Applicant v. County of Los Angeles, PSI and Administered by Tristar, Defendants, 2017 Cal. Wrk. Comp. P.D. LEXIS 408

Death Benefits—Amount of Death Benefit—Totally Dependent Minor Children—WCAB, affirming WCJ, held that applicant’s award of death benefits for death of her husband was subject to state average weekly wage increases as set forth in Labor Code § 4661.5, when death benefits were awarded pursuant to Labor Code § 4703.5(b)(1), and were not subject to caps contained in Labor Code § 4702, and WCAB found that Labor Code § 4661.5 mandates that any temporary total disability paid more than two years after date of injury must be paid at rate in place at time payment is made, that, here, decedent’s death occurred more than two years before payments were made such that every death benefit payment remaining must be paid at maximum temporary total disability rate in effect for year in which payment is made, and that defendant is required to pay death benefits at maximum temporary total disability rate based on decedent’s maximum earnings, until decedent’s youngest child turns 19 years old if child is still attending high school.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 9.02[5]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 9, § 9.07[3].]

DISMISSAL

Katherine Staudt, Applicant v. University of California Los Angeles, PSI, administered by Sedgwick CMS, Defendants, 2017 Cal. Wrk. Comp. P.D. LEXIS 324 [see Staudt v. University of California Los Angeles (2017) 82 Cal. Comp. Cases 1441 (Appeals Board noteworthy panel decision)

Dismissal—Failure to Appear—WCAB rescinded WCJ’s order dismissing applicant’s cases due to applicant’s failure to personally appear at 2/8/2017 mandatory settlement conference, and remanded matter for further proceedings, when WCAB found that applicant’s attorney’s appearance at mandatory settlement conference was sufficient to satisfy Labor Code § 5700, and observed that in cases where applicant’s testimony is required, parties can stipulate to applicant’s appearance or, if parties cannot stipulate, defendant can subpoena applicant or issue written notice to appear at least ten days before trial, and if applicant fails to appear after subpoena or written notice is issued, defendant may request contempt order or order compelling applicant’s attendance, request sanctions, or request adverse inference based on applicant’s failure to testify and submit case on merits, and WCAB noted that, here, there is nothing in record to indicate that defendant complied with any provision that would have compelled applicant’s appearance, and that if applicant is, at some future time, subpoenaed or ordered to appear at trial and fails to personally appear, WCJ may proceed with trial on merits even without applicant’s testimony.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 26.01[3][b], 26.04[1][c]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 16, § 16.07[2][b].]

INJURY AOE/COE

Salvatore Puccio, Applicant v. Online Graphics and Finishing, Employers Compensation Insurance Company, Defendants, 2017 Cal. Wrk. Comp. P.D. LEXIS 377 [Petition for Writ of Review denied 12/6/2017 sub nom. Online Graphics and Finishing v. WCAB (Puccio) 83 Cal. Comp. Cases -- (writ denied)]

Injury AOE/COE—Compensable Consequence Injuries—WCAB affirmed its prior decision [see Puccio v. Online Graphics & Finishing, 2017 Cal. Wrk. Comp. P.D. LEXIS 245 (Appeals Board noteworthy panel decision)], wherein it found that stroke applicant maintenance worker suffered in hospital while being treated for 4/20/2012 admitted orthopedic injuries was compensable consequence of his industrial injury, when (1) applicant’s stroke was caused by nonindustrial atrial fibrillation experienced by applicant immediately following his injury-causing fall from ladder, (2) agreed medical evaluator in cardiology, Stuart Fischer, M.D., reported that it was standard procedure in cases where patient suffers atrial fibrillation to administer anticoagulation therapy to lower significant risk of suffering stroke, but due to severity of applicant’s fractures, physicians decided not to provide prescribed treatment for atrial fibrillation to avoid excessive bleeding, and (3) WCAB found that because of applicant’s industrial injury (severe fractures) applicant was denied medical treatment necessary to avoid risk of stroke brought about by atrial fibrillation and then he suffered stroke, and that since medical decision to withhold treatment for nonindustrial atrial fibrillation was based upon applicant’s industrial injury, resulting stroke was compensable consequence of injury.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 4.05[2][a]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 10, § 10.04.]

Debora Tidwell, Applicant v. Santa Clara VTA, PSI, By Tristar Risk Management, Defendants, 2017 Cal. Wrk. Comp. P.D. LEXIS 325 [Petition for Writ of Review denied 11/1/2017 sub nom. Santa Clara Valley Transportation Authority v. WCAB (Tidwell) (2017) 82 Cal. Comp. Cases 1514 (writ denied)]

Injury AOE/COE—Personal Comfort Doctrine—Home as Workplace—WCAB affirmed WCJ's finding that applicant suffered injury AOE/COE to her right thigh on 3/1/2016 while working from her home as management analyst, and found that fact that injury occurred while using the restroom at home did not preclude finding of injury AOE/COE, when applicant was in wheelchair due to nonindustrial disability and employer accommodated applicant’s disability by allowing her to work from home where restroom was set up to meet her needs, applicant’s home had been her exclusive worksite for approximately ten months prior to her injury and she was injured in restroom while taking break from her work, and WCAB found that although employer did not require applicant to work at home, employer allowed applicant to work at home to accommodate her disability, that contrary to defendant’s assertion, applicant’s home was her workplace even though she was not required to work from home, and that applicant's injury fell within ambit of personal comfort doctrine because injury occurred during time applicant was working and while using bathroom, which was basic personal need during work day. [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d § 4.139; Rassp & Herlick, California Workers' Compensation Law, Ch. 10, § 10.05[2][a].]

Artemecia Minarik, Applicant v. Del Taco, ACE American Insurance, adjusted by Corvel, Defendants, 2017 Cal. Wrk. Comp. P.D. LEXIS 390 [see Minarik v. Del Taco (2017) 82 Cal. Comp. Cases 1545 (Appeals Board noteworthy panel decision)]

Injury AOE/COE—Injury En Route To or From Doctor’s Office—WCAB affirmed WCJ’s finding that injury suffered by applicant in automobile accident on 12/16/2016 while returning from medical examination by agreed medical examiner for 9/1/2012 admitted industrial back injury, was compensable consequence of 2012 injury, when WCAB concluded that applicant’s participation in agreed medical examination was akin to medical treatment in that parties were not obtaining evidence to dispute whether or not applicant sustained industrial injury, but were seeking medical opinion on nature and extent of applicant’s disability and her need for medical treatment, and WCAB rejected defendant’s assertion that applicant was precluded from recovering compensation because her injuries arose out of workers’ compensation “litigation process” similar to employee in Rodriguez v. W.C.A.B. (1994) 21 Cal. App. 4th 1747, 27 Cal. Rptr. 2d 93, 59 Cal. Comp. Cases 14, where psychological stress incurred by employee from defendant’s termination of vocational rehabilitation was non-compensable, when applicant in this case was required to attend medical appointment in order to obtain workers’ compensation benefits, and unlike situation in Rodriguez, applicant here was not claiming injury caused by stress of litigation process.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 4.67; Rassp & Herlick, California Workers’ Compensation Law, Ch. 10, § 10.04[4][c].]

Paul Douglas Cooke (Deceased), Belinda Cooke (Dependent/Guardian Ad Litem), Applicant v. County of Los Angeles, PSI and Administered by Tristar, Defendants, 2017 Cal. Wrk. Comp. P.D. LEXIS 408

Injury AOE/COE—Suicide—WCAB affirmed WCJ’s findings that applicant was entitled to death benefits in connection with 3/18/2014 death of her husband by suicide, and that death claim was not barred under Labor Code § 3600(a)(6), when WCAB found, based on reporting of psychiatric panel qualified medical evaluator, that decedent’s suicide resulted from stressful work environment and lingering, undiagnosed psychiatric sequelae from 2009 admitted industrial back injury incurred while decedent was working as firefighter, and that death claim was not precluded by fact that decedent never alleged psychiatric component to industrial injury or sought treatment for psychiatric injury prior to committing suicide and was never diagnosed with psychiatric condition prior to his death, where medical evidence established that psychiatric disorder, in fact, existed prior to suicide and proximately caused decedent to commit suicide.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 4.21; Rassp & Herlick, California Workers’ Compensation Law, Ch. 10, § 10.03[2].]

JURISDICTION

Jamie Huscroft, Applicant v. Calgary Flames, Fresno Falcons, Stockton Thunder, Tampa Bay Lightning, Vancouver Canucks, Phoenix Coyotes, Washington Capitals, Federal Insurance Company, Defendants, 2017 Cal. Wrk. Comp. P.D. LEXIS 367 [see Huscroft v. Calgary Flames (2017) 83 Cal. Comp. Cases – (Appeals Board noteworthy panel decision)]

WCAB Jurisdiction—Professional Athletes—Subject Matter Jurisdiction—WCAB, denying defendant’s Petition for Reconsideration, affirmed its prior decision [see Huscroft v. Calgary Flames, 2017 Cal. Wrk. Comp. P.D. LEXIS 220 (Appeals Board noteworthy panel decision)] in which it found that it had jurisdiction pursuant to Labor Code §§ 3600.5(a) and 5305 over applicant’s claim that he suffered cumulative injury while employed as professional hockey player by several teams from 1/17/88 to 1/12/2000, when WCAB found that (1) although applicant was in state of Washington when he verbally accepted employment with California-based Fresno Falcons over telephone in 1994, applicant’s actual hiring by Fresno Falcons occurred in California when he signed written employment contract, (2) applicant’s hiring in California, by itself, was sufficient connection with California to support finding of subject matter jurisdiction by WCAB, (3) applicant’s regular employment in California during cumulative trauma period further supported finding of subject matter jurisdiction by WCAB, even though portion of injurious exposure occurred while applicant was employed outside of California, and (4) proof of California employment did not require that Fresno Falcons be named or appear in case as argued by defendant, because Labor Code § 5500.5 allows for initial determination of injury and jurisdiction in cumulative injury cases without all potentially liable defendants being named or served, and it allows party defendants to later join other employers in litigation.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 3.22[2], [3], 21.02, 21.06, 21.07[5]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 13, § 13.01[2].]

LIENS

Rosa Ramirez, Applicant v. Rancho Harvest, Inc., Star Insurance Company, Defendants, 2017 Cal. Wrk. Comp. P.D. LEXIS 499

Liens—Interpreting Fees—WCAB, rescinding WCJ’s decision, found that lien claimant Lorena Ortiz Schneider Interpreting was entitled to payment of $1,905.00 for services rendered prior to 1/1/2013 and returned matter to trial level for WCJ to determine amount due to lien claimant for services rendered after 1/1/2013, when WCJ had denied payment for lien claimant’s services rendered after 1/1/2013 on basis that lien claimant did not avail herself of applicable review process within defendant’s internal review system for bills disputed by defendant for exceeding Official Medical Fee Schedule (OMFS), but WCAB found that interpreter fees were not subject to OMFS because no fee schedule for such fees was adopted pursuant to Labor Code § 4600(g), and that since interpreter fees were addressed in 8 Cal. Code Reg. § 9795.3, which predated independent bill review (IBR) process created under SB 863, interpreter fees were not subject to IBR.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 23.13[3]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 16, § 16.49.]

Miguel Gomez, Applicant v. Bay Ship and Yacht, Co., Chartis Specialty Insurance Company, Defendants, 2017 Cal. Wrk. Comp. P.D. LEXIS 411 [see Gomez v. Bay Ship and Yacht Co. (2017) 82 Cal. Comp. Cases 1531 (Appeals Board noteworthy panel decision)]

Liens—Procedural Rights and Duties—Collateral Estoppel—Consolidation of Lien Cases—WCAB rescinded WCJ’s finding that lien claimant Enstar Group/SeaBright (Enstar) was estopped from litigating its lien filed in applicant’s specific injury case because same lien was ordered to mandatory arbitration in applicant’s cumulative injury case, and remanded matter to presiding workers’ compensation judge to consider whether to consolidate Enstar’s lien cases, when issue of whether Enstar was entitled to lien recovery in specific injury case (where Enstar was required show that it paid benefits to which applicant was entitled) was different, albeit related, to issue of whether Enstar was entitled to contribution in cumulative injury case (where Enstar was required to establish right to contribution under Labor Code § 5500.5), and WCAB concluded that WCJ incorrectly found that Enstar was collaterally estopped from litigating its lien since issues in specific and cumulative injury lien cases were not identical and there had not yet been final decision in arbitration of lien in cumulative injury case, but WCAB found sufficient similarity between issues in two cases such that consolidation may be appropriate to preserve judicial resources and prevent repetitive litigation of issues; WCAB pointed out that before consolidation is ordered, consideration must be given to fact that cumulative injury lien case is subject to mandatory arbitration while specific injury lien case is not, so unless parties agree to voluntary arbitration of lien in specific injury case, specific injury lien must be adjudicated at trial level of WCAB.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 21.08[1], 23.16, 30.22[2]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 13, § 13.10, Ch. 16, §§ 16.04[1], 16.13, Ch. 17, § 17.113.]

MEDICAL-LEGAL PROCEDURE

Olivia Drummer, Applicant v. Oak Valley Hospital District, PSI, administered by Beta Healthcare Group, Defendants, 2017 Cal. Wrk. Comp. P.D. LEXIS 282 [see Drummer v. Oak Valley Hospital District (2017) 83 Cal. Comp. Cases – (Appeals Board noteworthy panel decision)]

Medical-Legal Procedure—Medical Examiner Reporting Timeframes—Replacement Panels—WCAB, granting removal in split panel opinion, rescinded WCJ’s order finding that report of qualified medical evaluator Eduardo Lin, M.D., was untimely and that replacement qualified medical evaluator panel should be issued on that basis, when WCAB reasoned that replacement of panel qualified medical evaluator for late supplemental report pursuant to 8 Cal. Code Reg. § 31.5(a)(12) is not mandatory, but rather is discretionary upon showing of good cause, with timeliness of supplemental report being only one of several factors to consider, and WCAB panel majority concluded that Dr. Lin’s six-day delay in issuing supplemental report was de minimis and caused no significant prejudice to defendant when compared to restarting qualified medical evaluator process, which would cause further delays, that there was no evidence of efforts by defendant to remedy late reporting before objecting to Dr. Lin’s report as untimely, with defendant waiting until first date report could be considered late and then immediately seeking replacement panel, that it was most appropriate to keep Dr. Lin as qualified medical evaluator since he had already evaluated applicant twice, reviewed substantial amount of records, and provided several opinions on permanent impairment, apportionment, work restrictions, and future treatment recommendations, and that there was no good cause to replace Dr. Lin, especially in light of such de minimis delay; Commissioner Razo, dissenting, would have affirmed WCJ’s finding, when Commissioner Razo determined that applicant failed to show that substantial prejudice or irreparable harm would result if removal was not granted, that there was good cause to replace Dr. Lin based on factors in Corrado v. Aquafine Corp., 2016 Cal. Wrk. Comp. P.D. LEXIS 318 (Appeals Board noteworthy panel decision), and that WCJ acted within his discretion by ordering parties to utilize replacement panel, and WCAB should not disturb finding in absence of substantial prejudice or irreparable harm to petitioning party.  [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.]

Syrus Yarbrough, Applicant v. Southern Glazer’s Wine and Spirits, Trumball Insurance Company, Administered By Sedgwick Claims Management Service, Defendants, 2017 Cal. Wrk. Comp. P.D. LEXIS 508

Medical-Legal Procedure—Qualified Medical Evaluators—Stipulation to Use Agreed Medical Examiner—WCAB, granting removal, rescinded WCJ’s order compelling applicant to attend evaluation with agreed medical examiner Roger Sohn, M.D., over applicant’s objection, when WCAB disagreed with WCJ’s reasoning that applicant was precluded under Labor Code § 4062.2(f) from unilaterally withdrawing from agreement to utilize Dr. Sohn as agreed medical examiner, and concluded that by its plain language Labor Code § 4062.2(f) only precludes withdrawal from agreed medical examiner after agreed medical examiner has conducted evaluation, but does not preclude unilateral withdrawal by party before submitting to evaluation.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 1.11[3][g], 22.06[1][a], 22.11[11], 26.03[4]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 15, § 15.03[1], [2], Ch. 16, § 16.54[11], Ch. 19, § 19.37.]

Lawrence Reichelt, Applicant v. City of Los Angeles – Police Department, PSI, Defendant, 2017 Cal. Wrk. Comp. P.D. LEXIS 500

Medical-Legal Procedure—Release of Psychiatric Records—WCAB, granting removal, rescinded WCJ’s order denying pro per applicant’s request for release of psychiatric report from court-appointed psychiatrist Benjamin Carey, M.D., and returned matter to trial level, when both WCJ and defendant reviewed Dr. Carey’s report, and WCAB found that denying applicant opportunity to review report based solely on Dr. Carey’s admonition against releasing report to him would result in substantial prejudice to applicant and potentially violate applicant’s due process rights; WCAB instructed that, upon return of this matter to trial level, WCJ should provide Dr. Carey with specified documents and ask him to comment specifically on releasing his report to applicant and provide guidance on any conditions, restrictions or instructions regarding how to release report, as governed by Health & Safety Code § 123115(b) and 8 Cal. Code Reg. § 36.5, to specifically describe how release of report “will or is likely to result in a substantial risk of significant adverse or detrimental medical consequences” to applicant, and to fill out DWC Form QME 121, which gives applicant opportunity to designate his primary treating physician or another doctor to receive report and review it with him.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 1.11[3][g], 22.11[13], 26.04[3]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 16, § 16.54[13], Ch. 19, § 19.37.]

MEDICAL TREATMENT

Constanza Medina Vargas, also known as Claudia Gonzalez, Applicant v. Barrett Business Services, Inc., L/C/F/ Coast Plating, Inc., PSI, Defendants, 2017 Cal. Wrk. Comp. P.D. LEXIS 317 [see Medina Vargas v. Barrett Business Services, Inc. (2017) 83 Cal. Comp. Cases – (Appeals Board noteworthy panel decision)]

Medical Treatment—Assignment of Qualified Medical Evaluator Panels—Requests For Different Specialties—WCAB, granting removal and reversing WCJ, held that referral referenced in report of panel qualified medical evaluator Nima Yavari, M.D., recommending additional panels to determine whether applicant sustained industrial injuries to additional body parts, was not medical treatment referral as determined by WCJ but rather was medical-legal referral because body parts injured were disputed by defendant, and while WCAB agreed with WCJ that primary treating physician must perform comprehensive medical-legal evaluation in order for evaluations by other physicians to be recoverable as medical-legal expenses, WCAB found that Labor Code does not require that comprehensive medical-legal evaluation be performed before medical-legal expense can be incurred, that construing relevant statutes and regulations together shows that comprehensive medical-legal evaluation will often be produced after medical-legal expenses are incurred, that WCJ was incorrect that applicant’s primary treating physician, Arbi Mirzaians, D.C., needed to produce comprehensive medical-legal report prior to recommending course of action for obtaining additional referrals, and that although Dr. Yavari’s report combined with Dr. Mirzaians’ report requesting same referrals provided good cause for WCJ to order Medical Unit to issue additional panels, issue of additional panels was not raised at trial and matter must be returned; WCAB also observed that, in essence, there are at least two tracks for injured employee to obtain medical-legal evaluations of disputed body parts—panel qualified medical evaluator track and treating physician track, that parties may pursue either or both tracks, that if, as occurred here, panel qualified medical evaluator recommends additional evaluations and treating physician also recommends those evaluations, there is direct and efficient path to obtain additional panels in recommended specialties pursuant to 8 Cal. Code Reg. § 31.7(b), that in addition to obtaining panel qualified medical evaluations, if primary treating physician ultimately issues comprehensive medical-legal report, additional evaluations may also be considered medical-legal expenses if they are incorporated by primary treating physician into comprehensive medical-legal report.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 1.11[3][g], 22.11[7], 26.03[4]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 16, § 16.54[7], Ch. 19, § 19.37.]

Belinda Go, Applicant v. Sutter Solano Medical Center, PSI, Defendant, 2017 Cal. Wrk. Comp. P.D. LEXIS 412 [Petition for Writ of Review filed 11/7/2017, sub nom. Sutter Solano Medical Center v. WCAB (Go), A152814]

Medical Treatment—Self-Procured Treatment—Temporary and Permanent Disability—WCAB, affirming WCJ, held that applicant who suffered industrial neck injury while working for defendant as registered nurse on 6/9/2013, was entitled to temporary disability as result of surgery she self-procured to treat her injury after authorization for surgery was denied by utilization review (UR)/independent medical review (IMR), when WCAB reasoned that because UR/IMR statutes are silent on question of temporary disability indemnity, employee is not precluded from claiming it even if disability results from reasonable medical treatment that is self-procured pursuant to Labor Code § 4605, even though this may expose employer to liability for consequences of medical treatment that does not meet standards of reasonableness established by Legislature for Labor Code § 4600 medical treatment through UR/IMR process, that same uniform standards applicable under Labor Code § 4600 designed to assure that employees receive “reasonable and necessary” treatment to cure or relieve effects of industrial injury are not statutorily applied to self-procured treatment pursuant to Labor Code § 4605, and that it is for Legislature to determine if standards that apply to Labor Code § 4600 should also apply to self-procured medical treatment for purpose of determining entitlement to temporary and permanent disability.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 5.01, 7.01[1]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 4, § 4.14, Ch. 6, § 6.01[1].]

PENALTIES

Theresa McFarland, Applicant v. Redlands Unified School District, PSI, Defendant, 2017 Cal. Wrk. Comp. P.D. LEXIS 495

Penalties—Delay in Payment of Supplemental Job Displacement Voucher—Return-to-Work Supplemental Payments—WCAB affirmed WCJ’s finding that defendant was not entitled to second Labor Code § 5814 penalty for delay in providing Labor Code § 4658.7 supplemental job displacement voucher pursuant to Compromise and Release agreement, which allegedly resulted in applicant’s delayed application for Labor Code § 139.48 return-to-work supplemental payment, when parties stipulated that applicant’s penalty claim for defendant’s delay in providing Labor Code § 4658.7 voucher was resolved by agreement of parties, and WCAB reasoned that Labor Code § 139.48 supplemental payments are not employer’s liability but are made from fund administered by Administrative Director and, therefore, are not compensation subject to penalty as defined by Labor Code § 3207 or within meaning of Labor Code § 5814(a), that defendant cannot claim two penalties for one act of delaying Labor Code § 4658.7 benefits, and that delay in applicant’s subsequent submission of claim for Labor Code § 139.48 supplemental payments did not give rise to second penalty claim against defendant for its delay in providing Labor Code § 4658.7 voucher.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 10.40[1], [3], 27.12[2][c]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 11, § 11.11[1]-[3].]

PERMANENT DISABILITY

Danny Hill, Applicant v. State of California Department of Transportation, legally uninsured and adjusted by State Compensation Insurance Fund, Defendants, 2017 Cal. Wrk. Comp. P.D. LEXIS 340

Permanent Disability—Apportionment—Disclosure of Prior Disabilities—WCAB, granting removal, rescinded WCJ’s order denying defendant’s petition to compel applicant to disclose all prior permanent disabilities and physical impairments pursuant to Labor Code § 4663(d), and returned matter to WCJ for further proceedings, when applicant failed to respond to defendant’s multiple requests that applicant disclose past medical treatment, and WCAB, while observing that defendant’s requests were not pursuant to Labor Code § 4663(d) (which only requires disclosure of previous permanent disabilities or physical impairments, not of all medical treatment), found that defendant’s petition to compel did seek disclosure carefully modeled on language in Labor Code § 4663(d) and required applicant to disclose prior permanent disabilities and physical impairments, within timeframe and by method to be determined upon return to trial level.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 8.05[1], 8.06[4]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 7, § 7.40.]

Silvia Martinez, Applicant v. Pack Fresh Processors, LLC, Midwest Insurance Company, Defendants, 2017 Cal. Wrk. Comp. P.D. LEXIS 492

Permanent Disability—Rating—Combining Multiple Disabilities—WCAB, in split panel opinion, affirmed WCJ’s finding that applicant’s 6/30/2011 industrial injuries to her psyche and right upper extremity/chronic regional pain syndrome (CRPS) caused permanent total disability based on scheduled rating under Labor Code § 4660, and concluded that WCJ properly determined extent of applicant’s permanent disability by adding her psychiatric permanent disability to permanent disability caused by her upper extremity injury and CRPS, rather than combining her disabilities using Combined Values Chart (CVC), when WCAB reasoned that Permanent Disability Rating Schedule (PDRS) is only guide and that adding permanent disabilities caused by injury to separate body parts is proper to determine overall level of permanent disability where addition results in more accurate rating than using CVC to combine disabilities, and that here adding impairments was more accurate because applicant’s orthopedic/CRPS impairment precluded her from performing physical work she had previously done and her psychiatric impairment limited her ability to enter new occupation, and there was no evidence that impairment to different regions of applicant’s body overlapped so as to support use of CVC; Commissioner Lowe, dissenting, disagreed with panel majority’s finding that record in this case supported deviation from use of CVC by adding orthopedic and psychiatric permanent disabilities, when Commissioner Lowe found no medical evidence indicating that adding disabilities would provide more accurate permanent disability rating than combining disabilities using CVC, and noted that in absence of substantial medical evidence or other evidence supporting use of additive method, PDRS provides for use of CVC to obtain accurate rating of combined effect of orthopedic and psychiatric disabilities, and that if disabilities are simply added together without supporting medical evidence instead of combined using CVC, resulting award of permanent disability indemnity would exceed amount employer is legally obligated to pay.  [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.]

Permanent Disability—Rating—Permanent Total Disability—WCAB, in split panel opinion, affirmed WCJ’s finding that applicant’s 6/30/2011 industrial injuries to her psyche and right upper extremity/chronic regional pain syndrome caused permanent total disability “in accordance with the fact” under Labor Code § 4662(b), based on reporting of panel qualified medical evaluator Mark Howard, M.D., which WCAB found was substantial evidence, and on opinion of applicant’s vocational expert, Tom Linvill, who provided analysis of individualized factors identified in Argonaut Insurance Co. v. I.A.C. (Montana) (1962) 57 Cal. 2d 589, 21 Cal. Rptr. 545, 371 P.2d 281, 27 Cal. Comp. Cases 130, which showed that before her injury applicant was well qualified for agricultural work she was performing but that effects of her industrial injury limited her ability to continue such work, and her limited skills and lower academic achievement impacted degree she could participate in labor market, and WCAB panel majority, while recognizing that decisions in Ogilvie v. W.C.A.B. (2011) 197 Cal. App. 4th 1262, 129 Cal. Rptr. 3d 704, 76 Cal. Comp. Cases 624, and Contra Costa County v. W.C.A.B. (Dahl) (2015) 240 Cal. App. 4th 746, 193 Cal Rptr. 3d 7, 80 Cal. Comp. Cases 1119, appear to reject consideration of nonindustrial individualized factors described in Montana as way of rebutting diminished future earning capacity factor in Permanent Disability Rating Schedule, determined that these individualized factors are relevant in evaluating injured worker’s amenability to vocational rehabilitation as discussed in Dahl, and that Mr. Linvill properly considered them in determining that applicant could not participate in open labor market; Commissioner Lowe, dissenting, opined that there was insufficient evidence to support finding of permanent disability under Labor Code § 4662(b), and that applicant’s permanent disability should have been determined pursuant to Labor Code § 4660, when Commissioner Lowe reasoned that reporting of Mr. Linvill was not sufficient to rebut scheduled rating under Ogilvie, because he acknowledged that applicant’s inability to find alternative work was due to nonindustrial factors, including lack of academic skill and lack of fluency in English, and that under Ogilvie evidence that injured worker’s loss of future earning capacity was caused by nonindustrial factors, such as general economic conditions, illiteracy, English proficiency, or lack of education, cannot rebut scheduled permanent disability rating.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 8.02[3], [4], 32.02[2], 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, 10.]

PRESUMPTION OF COMPENSABILITY

Eduardo Abea, Applicant v. Parco, Inc. PSI, Administered by ClaimQuest, Inc., Defendants, 2017 Cal. Wrk. Comp. P.D. LEXIS 302 [see Abea v. Parco, Inc. (2017) 82 Cal. Comp. Cases 1415 (Appeals Board noteworthy panel decision)]

Presumption of Compensability—Discovery After Denial of Claim—WCAB, granting removal, rescinded WCJ’s Minute Order wherein WCJ set matter for trial on issue of injury AOE/COE over defendant’s objection on basis that it had not yet completed discovery, including depositions of applicant and panel qualified medical evaluator, and WCAB issued order taking matter off calendar, when WCJ, in setting matter for trial, erroneously found that matter was ripe for trial without need for further discovery given defendant’s denial of injury within 90-day period in Labor Code § 5402, and WCAB explained that although presumption of compensability in Labor Code § 5402 precludes defendant from disputing liability for injury using evidence which could have been obtained with exercise of reasonable diligence within initial 90-day period, defendant’s timely denial of claim does not mean defendant is permanently precluded from discovery and deemed ready to proceed to trial on issue of injury at expiration of 90-day period, and that under circumstances in this case, where applicant was not cooperative with discovery and defendant timely objected to panel qualified medical evaluator’s report and noticed his deposition before applicant filed Declaration of Readiness to Proceed, WCJ’s trial setting was significantly prejudicial to defendant and should not have occurred.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 24.01[2]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 10, § 10.02.]

Sandra Kimber (Deceased), Applicant v. City of Los Angeles, PSI, Defendant, 2017 Cal. Wrk. Comp. P.D. LEXIS 387 [see Kimber v. City Los Angeles (2017) 82 Cal. Comp. Cases 1538 (Appeals Board noteworthy panel decision)]

Presumption of Industrial Causation—Pneumonia—Peace Officers—WCAB rescinded WCJ’s finding that decedent, while employed as Los Angeles police officer on 8/28/2013, suffered industrially-related bronchiotracheopneumonitis resulting in her death, based on presumption of industrial causation applicable to pneumonia under Labor Code § 3212, when WCAB found that WCJ erred in concluding that pneumonitis is disease covered by presumption of industrial injury for police officers who develop pneumonia, and that contrary to WCJ’s finding, agreed medical evaluator Jeffrey Caren, M.D., expressly stated that pneumonia was distinct from pneumonitis, with pneumonitis being inflammatory disease that destroys lining of trachea, bronchi and lung air cells, and pneumonia being pneumonitis combined with consolidation and exudation due to infection, that statute cannot be read to include presumption of industrial causation for medical condition that is not expressly covered by statute, that conditions that are related to those covered by presumption are not equally entitled to presumption, and that matter must be returned to determine compensability of decedent’s injury absent application of pneumonia presumption.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 4.138[4][f]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 10, § 10.07[5][b].]

Michele Ligouri, Applicant v. City of Concord, PSI, adjusted by York Risk Services Group, Defendants, 2017 Cal. Wrk. Comp. P.D. LEXIS 491

Presumption of Industrial Causation—Cancer Presumption—Peace Officers—WCAB rescinded WCJ’s finding that defendant rebutted Labor Code § 3212.1 presumption by demonstrating with medical probability that it was highly unlikely that applicant’s breast cancer, allegedly incurred during applicant’s approximately nine years of employment as police officer, was industrially caused because latency period for breast cancer exceeded period of applicant’s industrial exposure, and held, instead, that defendant failed to establish that ten-year latency period was applicable to rebut presumption in this case, when panel qualified medical evaluator Ira Fishman, M.D., upon whom WCJ relied, could not rule out that latency period for applicant’s cancer was less than generally-accepted minimum ten-year period based on its particularly aggressive nature, and WCAB reasoned that (1) latency is one method to establish absence of reasonable link between exposure and cancer as discussed in Faust v. City of San Diego (2003) 68 Cal. Comp. Cases 1822 (Appeals Board en banc opinion), but as noted by Dr. Fishman, latency in any given case is variable and does not follow strict time period, (2) under rationale in Faust, to successfully rebut cancer presumption in this case defendant was required to introduce medical/scientific evidence explicitly demonstrating that latency period was not shortened by aggressive nature of applicant’s cancer as described by Dr. Fishman, and (3) since defendant did not introduce such evidence, defendant was unable to rebut presumption in Labor Code § 3212.1.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 4.138[4][b]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 10, § 10.07[5][c].]

STIPULATIONS

Sonia Washington, Applicant v. Department of Social Services IHSS, legally uninsured and administered by York Risk Services, Defendants, 2017 Cal. Wrk. Comp. P.D. LEXIS 429 [see Washington v. Dept. of Social Services, IHSS (2017) 83 Cal. Comp. Cases – (Appeals Board noteworthy panel decision)]

Stipulations—WCAB, affirming WCJ, held that defendant was bound by its stipulation in pre-trial conference statement that it paid applicant permanent disability advances in amount of $2,343.00, and that defendant was not entitled to credit for all permanent disability advances, including $16,879.75 payment it made in 2013 prior to negotiating 2015 stipulated award for permanent disability in sum of $18,050.00 “less credit for such payments previously made,” when WCAB found that (1) because language in award itself did not clearly state parties’ intention with regard to credit, and stipulation was subject to different interpretations, WCAB must look beyond language of stipulation to circumstances under which stipulation was executed, (2) evidence submitted in this case indicated that defense counsel was not aware of $16,879.75 in permanent disability advances paid in 2013 at time stipulated award was negotiated, and that defense counsel affirmatively represented to applicant’s counsel at time of negotiation that permanent disability advances were $2,343.00, (3) there was no evidence to support defendant’s contention that parties intended to contract for possibility that other permanent disability advances may later be discovered, and that those advances could be subtracted from award, and (4) at time stipulated award was negotiated, applicant expected to receive $13,000.00 after deduction of credit, and to extent applicant received “windfall” from stipulated award, windfall was bargained for and agreed upon and could not serve as basis to reduce settlement amount.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 26.06[2]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 16, § 16.23.]

SUBSEQUENT INJURIES BENEFITS TRUST FUND

James Kwasigroch, Applicant v. City of Los Angeles, PSI, Defendant, 2017 Cal. Wrk. Comp. P.D. LEXIS 344 [Petition for Writ of Review dismissed 9/28/2017, sub nom. Kwasigroch v. City of Los Angeles (2017) 82 Cal. Comp. Cases 1520]

Subsequent Injuries Benefits Trust Fund—Calculating Permanent Disability—Combining Prior and Subsequent Impairments—WCAB, affirming WCJ, held that WCJ properly calculated applicant’s permanent disability for purposes of Subsequent Injuries Benefits Trust Fund benefits by combining his prior impairment with his impairment from subsequent injury using Combined Values Chart (CVC), rather than by adding his prior award of 63 percent permanent disability and his subsequent award of 74 percent permanent disability to find in excess of 100 percent permanent disability as urged by applicant, when WCAB interpreted Labor Code § 4751 to require combining impairments using CVC unless there is clear and substantial medical, factual, or vocational evidence to support addition of disabilities or finding of permanent total disability under Labor Code § 4662(a) or (b), which there was not in this case, and WCAB found that interpreting Labor Code § 4751 to require addition of prior and subsequent impairments/disabilities as asserted by applicant would lead to absurd results by creating significantly disparate awards for workers with same injuries based on whether those injuries were subject of one claim or multiple claims, and that WCAB’s interpretation of statute satisfies purpose of Labor Code § 4751 to encourage employers to hire workers with preexisting disability and to provide previously injured workers with additional benefits if they sustain substantial subsequent injury.  [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

Kyle Pike, Applicant v. County of San Diego, PSI, Defendant, 2017 Cal. Wrk. Comp. P.D. LEXIS 321 [Petition for Writ of Review granted 9/28/2017, sub nom. County of San Diego v. WCAB (Pike), D072648]

Temporary Disability—Five-Year Statute of Limitations—WCAB, in split panel opinion, affirmed WCJ’s award of temporary total disability that arose within five years of applicant deputy sheriff’s 7/31/2000 date of injury and extended beyond five-year period, when applicant filed timely petition to reopen under Labor Code § 5410, and WCAB panel majority reasoned that (1) where proceedings to recover temporary disability benefits are initiated within five years from date of injury and do not exceed 104-week limitation on receipt of temporary disability benefits pursuant to Labor Code § 4656(c)(2), applicant is entitled to recover full amount of benefits notwithstanding statutory language that benefits must be paid “within a period of five years from the date of injury,” because language does not expressly preclude temporary disability benefits from being paid more than five years from date of injury, (2) Legislature did not intend to prohibit otherwise temporarily disabled injured workers from receiving full 104 weeks of benefits if temporary disability initially occurred within five years from date of injury, and (3) although some panel decisions have disagreed with WCJ’s interpretation of Labor Code § 4656(c)(2) as applied to dates of injury after 1/1/2008, where statutory language is susceptible of interpretation either beneficial or unfavorable to injured worker, Labor Code § 3202 requires WCAB to construe statutory language in manner most beneficial to injured worker; Commissioner Razo, dissenting, would have rescinded award of temporary disability as being contrary to language in Labor Code § 4656(c)(2), which Commissioner Razo found expressly limited temporary disability award to five years from date of injury for injuries occurring on or after 1/1/2008.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 7.02[2]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 6, § 6.12.]

Yelena Zakaryan, Applicant v. Glendale Community College, PSI, Defendant; Keenan & Associates, Adjusting Agent, 2017 Cal. Wrk. Comp. P.D. LEXIS 403

Temporary Disability—Sick and Vacation Pay—WCAB affirmed WCJ’s finding that applicant who suffered industrial injury to her lungs, respiratory system and pulmonary system while working as lab technician on 2/29/2016 was entitled to receive temporary disability indemnity benefits pursuant to parties’ 10/20/2016 stipulated award, under which parties agreed that applicant was temporarily disabled from 3/1/2016 and continuing, and that defendant was liable for sanctions for failure to pay temporary disability after date of stipulated award, when WCAB found that, contrary to defendant’s assertion, applicant’s use of accrued sick leave and vacation pay to cover her paychecks was not payment by defendant in lieu of paying temporary disability, as applicant was entitled to have accrued leave time she used to pay herself while temporarily disabled reimbursed by defendant.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 7.04[6]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 6, § 6.20[2].]

UNINSURED EMPLOYERS BENEFITS TRUST FUND

Francisco Prieto, Applicant v. O.C. Contracting, Inc., American International Group, Inc., Uninsured Employers Benefits Trust Fund, Defendants, 2017 Cal. Wrk. Comp. P.D. LEXIS 498

Uninsured Employers Benefits Trust Fund—Liability for Reimbursement—WCAB, in split panel opinion, rescinded WCJ’s order of reimbursement and held that Uninsured Employers Benefits Trust Fund (UEBTF) was not legally obligated under Labor Code § 3715 to reimburse Granite State Insurance Company (Granite State) for workers’ compensation benefits mistakenly provided to applicant for 9/1/2005 industrial injury on behalf of illegally uninsured employer who reported incorrect date of injury to Granite State, when WCAB concluded that Labor Code § 3715 only contemplates payment of benefits to employees and does not contain any provision that could be construed as allowing payment of UEBTF funds to insurance companies as reimbursement; Commissioner Lowe, dissenting, would amend WCJ’s decision to clarify that applicant must reimburse Granite State from funds payable to him by UEBTF for periods during which Granite State paid in error and, noting that UEBTF was awarded credit for permanent disability advances made by Granite State, opined that in exercising discretion to allow credit pursuant to Labor Code § 4909, it is not equitable for WCAB to allow UEBTF to take credit for payments made to applicant in error by entity which had no liability for payments, that UEBTF cannot avoid reimbursement to Granite State by improperly characterizing such payments as direct reimbursement when reimbursement is directly flowing from UEBTF’s obligation to pay applicant all benefits due, and that WCJ’s order of reimbursement did not violate Labor Code as reimbursement flowed from applicant to Granite State, albeit via funds payable by UEBTF.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 22.13; Rassp & Herlick, California Workers’ Compensation Law, Ch. 3, § 3.19.]

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