CALIFORNIA COMPENSATION CASES
Vol. 83 No. 5 May 2018
A Report of En Banc and Significant Panel Decisions of the WCAB and Selected Court Opinions of Related Interest, With a Digest of WCAB Decisions Denied Judicial Review
CONTENTS OF THIS ISSUE
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Supreme Court Case Not Originating With Appeals Board
Dynamex Operations West, Inc. v. The Superior Court of Los Angeles County, Lexis Advance
Employment Relationships—Employees vs. Independent Contractors—Wage and Hour Class Action—Supreme Court affirmed Court of Appeal’s finding that in wage and hour class action alleging that plaintiffs had been misclassified as independent contractors when they should have been classified as employees, class may be certified based on wage order definitions of “employ” and “employer” as construed in Martinez v. Combs (2010) 49 Cal. 4th 35, 231 P.3d 259, 109 Cal. Rptr. 3d 514, 75 Cal. Comp. Cases 430, and that test for distinguishing between employees and independent contractors discussed in S. G. Borello & Sons, Inc. v. Dept. of Industrial Relations (1989) 48 Cal. 3d 341, 769 P.2d 399, 256 Cal. Rptr. 543, 54 Cal. Comp. Cases 80, is not exclusive standard that applies in this setting; in affirming Court of Appeal, Supreme Court concluded that...
Appellate Court Cases Not Originating With Appeals Board
Hernandez (Marisa) v. Rancho Santiago Community College District, Lexis Advance
Fair Employment and Housing Act—Reasonable Accommodation and Interactive Process—Probationary Employees—Court of Appeal affirmed trial court’s ruling that defendant college district violated Government Code § 12940(m) and (n) by failing to make reasonable accommodation for plaintiff’s disability and failing to engage in good faith interactive process as required by Fair Employment and Housing Act (FEHA), when plaintiff went off work on temporary total disability during her 12-month probationary period to have industrially-related surgery to replace knuckle on injured finger, and while she was on approved leave district terminated her employment, taking position that it had to terminate plaintiff’s probation and employment because if it did not, plaintiff would have become permanent employee on anniversary of her hiring under Education Code § 88013(a) without having had her performance evaluated, but Court of Appeal concluded that...
Lewis (Fergus) v. Los Angeles County Metropolitan Transportation Authority, Lexis Advance
Government Tort Claims—Statute of Limitations—Equitable Tolling—Court of Appeal, affirming judgment of Superior Court dismissing plaintiff’s claims, held that plaintiff’s claim filed under Government Claims Act, Government Code § 810 et seq., was untimely, and that plaintiff’s subsequent filing of present lawsuit, alleging whistleblower retaliation, Labor Code § 1102.5(b), (c), was also untimely, when Court of Appeal found that plaintiff bus driver was dismissed from employment by defendant after plaintiff refused to drive bus without his equipment bag containing his verification of transit training card, medical card, wheelchair key, maps, stop sheets, punch card, and accident envelope, which he was unable to retrieve from his originally-assigned bus, that plaintiff alleged...
Federal District Court Opinions of Related Interest
People of the State of California ex rel. TIG Insurance Co., et al. v. Culpepper (Brad), Does 1-100, et al., Lexis Advance
Reinsurance Policy—Date of Employee Injury—Right to Litigate—U.S. Court of Appeals, Ninth Circuit, affirming judgment of U.S. District Court, Northern District of California, in favor of General Reinsurance Corp., in San Francisco Bay Area Rapid Transit District v. General Reinsurance Corp., 111 F. Supp. 3d 1055, 80 Cal. Comp. Cases 712 (N.D. Cal. 2015), held that...
Digests of WCAB Decisions Denied Judicial Review
Editorial Board members Frederick W. Bray, David Hettick, Robert G. Heywood, Kenneth B. Peterson, and Hon. Robert G. Rassp recommended some of the following writ denied cases for summarization in this issue.
American Zurich Insurance Co. v. W.C.A.B. (Ali, Sheik Zahid), Lexis Advance
Insurance Coverage—Scope of Coverage—Exclusions—WCAB affirmed Arbitrator’s finding that American Zurich Insurance Co. (American Zurich), not Lexington Insurance Co. (Lexington), had coverage for injuries incurred by applicant on 7/19/2006 while driving tractor-trailer rig for defendant Trimac Transportation Services (Trimac), when (1) applicant was found to be jointly employed by Trimac and by Intaz Ali dba Ali’s Trucking (Intaz), who contacted with Trimac to lease equipment and drivers to Trimac for transportation services, (2) Intaz did not maintain workers’ compensation coverage for applicant but Trimac was insured for workers’ compensation…
Federal Insurance Co. v. W.C.A.B. (Shemet, Patrick), Lexis Advance
Injury AOE/COE—Due Process—WCAB affirmed WCJ’s finding that applicant suffered injury AOE/COE to his neck and shoulders during period 2000 to 4/11/2014, and found that defendant was not denied due process based on its inability to cross-examine applicant, who did not testify at trial on Fifth Amendment grounds, when defendant challenged applicant’s claim of industrial injury, based on its assertion that applicant’s injuries resulted not from him his work for defendant but rather from his physical activities in his nonwork-related marijuana growing operation, for which he was ultimately arrested, but WCAB found that...
Pronto Express & Services, Inc. v. W.C.A.B. (Quintanilla, Victor), Lexis Advance
Presumption of Compensability—Period to Deny Liability—WCAB affirmed WCJ’s findings that decedent sustained injury AOE/COE resulting in his death on 2/3/2016, and that applicant widow’s claim for death benefits was presumed compensable pursuant to Labor Code § 5402(b) based on defendant’s failure to timely deny claim within 90 days after it was filed and failure to rebut presumption of compensability with evidence that could not have been obtained with reasonable diligence prior to expiration of 90-day period, when WCAB found that…
Sandoval (Fermin) v. W.C.A.B., Lexis Advance
Permanent Disability—Rating—AMA Guides—Rebuttal of Scheduled Rating—WCAB, affirming WCJ, found that applicant’s 6/21/2011 industrial injury to his back and right knee caused 50 percent permanent disability pursuant to Labor Code § 4660 and AMA Guides, based on reporting of qualified medical evaluator and treating physician, and that applicant did not rebut AMA Guides rating, when WCAB reasoned that…
United States Fire Insurance v. W.C.A.B. (Kamakeeaina, Alexander), Lexis Advance
Permanent Disability—Rating—Permanent Total Disability—Medical Treatment—Home Health Care Services—WCAB affirmed WCJ’s finding that applicant was permanently totally disabled “in accordance with the fact” under Labor Code § 4662(b), without basis for apportionment, from industrial injuries incurred on 11/23/2006 resulting in quadriparesis and rendering applicant wheelchair bound, when agreed medical examiner determined that applicant was likely unemployable given his ongoing pain, need for heavy narcotic medication, significant neurologic deficit in his lower extremities, and bowel and bladder dysfunction, and WCAB found that…
Medical Treatment—Home Health Care Services—WCAB affirmed WCJ’s finding that defendant was liable for applicant’s home health care beginning 14 days before receipt of agreed medical examiner’s 2010 report, wherein agreed medical examiner clearly stated that applicant, who was almost completely paralyzed and wheelchair bound following 11/23/2006 industrial injuries, would need home health care attendant for remainder of his life and recommended that assessment be provided as to his specific home health care needs, when WCAB concluded that...
Other WCAB Decisions Denied Judicial Review
Ameritech Business Systems v. W.C.A.B. (Balian, Armen), Lexis Advance
Permanent Disability—Substantial Evidence—WCAB, affirming WCJ, found that opinion of applicant’s primary treating physician constituted substantial evidence to support WCJ’s finding that applicant...
Barnes (Ronnie) v. W.C.A.B., Lexis Advance
Petition for Writ of Review—Dismissal of Untimely Petition—Court of Appeal dismissed applicant’s petition for writ of review as untimely, when petition, which challenged WCAB’s finding that…
Pride Industries v. W.C.A.B. (Bates, Cherie), Lexis Advance
Petitions for Reconsideration—Verification—Court of Appeal dismissed defendant’s Petition for Writ of Review without prejudice, when defendant filed unverified Petition for Reconsideration with WCAB, and, while WCAB recognized that failure to file verification of Petition for Reconsideration as required under Labor Code § 5902 is not jurisdictional requirement and does not mandate dismissal, WCAB found that...
Walle (Estela) v. W.C.A.B., Lexis Advance
Injury AOE/COE—Burden of Proof—Credibility Determinations—WCAB affirmed WCJ’s finding that applicant did not meet burden of proving that she suffered injury AOE/COE to her back on 6/22/2017 while working as medical assistant for defendant, when applicant testified that injury occurred when she caught her foot on trash receptacle and stumbled, but WCJ did not find mechanism of injury as described by applicant to be plausible and, therefore, found alleged injury non-compensable, and WCAB concluded that…
Appeals Board Panel Decisions
Havay (Robert) v. State of California, Lexis Advance
Presumption of Industrial Causation—Heart Trouble—Correctional Officers—WCAB rescinded WCJ's finding that applicant, while employed as correctional sergeant during cumulative period ending on 3/28/2013, suffered industrial injury to his heart, and returned matter to WCJ to reanalyze compensability of applicant's heart injury applying correct evidentiary standards, when agreed medical examiner Samuel L. Sobol, M.D., and WCJ in his decision cited to Labor Code § 3212 presumption in finding applicant's heart trouble to be industrial, despite Dr. Sobol's opinion that applicant's heart trouble was due to congenital abnormality, rather than physical industrial stress, and WCAB determined that…
Maldonado (Julian) v. Beverly Hilton Hotel, Lexis Advance
Medical Treatment—Nurse Case Manager Services—WCAB, granting removal, rescinded WCJ's Order removing Debbie Lee, RN/CPDM, as Nurse Case Manager in this matter, when WCAB, applying principles in Lamin v. City of Los Angeles Police Department (2004) 69 Cal. Comp. Cases 1002 (Appeals Board significant panel decision), reasoned that although there was no evidence in this case that Nurse Case Manager was reasonably required medical treatment to which applicant was entitled to cure or relieve effects of his 9/1/2005 industrial injury, Ms. Lee's testimony indicated that her duties were more in nature of claims administration than nursing care in that she was tasked with verifying applicant's attendance at medical appointments, ensuring that applicant's treating doctors understood and complied with their reporting requirements, ensuring claims personnel were made aware of requests for authorization of medical treatment and responded in timely manner, and that utilization review approvals and denials were timely communicated to applicant's treating physicians, and WCAB determined that...
Molar (Fermin) v. California Department of Corrections and Rehabilitation, Lexis Advance
Presumption of Industrial Causation—Blood-Borne Infectious Diseases—Herpes/Epstein-Barr Virus—WCAB affirmed WCJ's finding that applicant, who suffered industrial injury to his heart, cardiovascular system, and in forms of hypertension, chronic fatigue, atrial fibrillation, and herpes/Epstein-Barr virus exposure while employed as correctional officer from 4/8/90 through 3/26/2014, was entitled to presumption of compensability applicable to blood-borne infectious diseases pursuant to Labor Code § 3212.8, regarding his herpes/Epstein-Barr virus exposure, when WCAB noted that “bloodborne pathogens” are defined in 8 Cal. Code Reg. § 5193(b) as “pathogenic microorganisms that are present in human blood and can cause disease in humans[,]” including but not limited to hepatitis B virus, hepatitis C virus and human immunodeficiency virus, and that panel qualified medical evaluator David Baum, M.D., explicitly testified that herpes and Epstein-Barr virus can be transmitted via blood such that they fall within definition of “bloodborne pathogens” and are covered by presumption; WCAB found…
Rayo (Plutarco) v. Certi-Fresh Foods, Inc., Lexis Advance
Medical-Legal Procedure—Assignment and Selection of Panel Qualified Medical Evaluators—WCAB, denying removal, affirmed WCJ's finding that chiropractic qualified medical evaluator panel obtained by applicant to evaluate industrial back injury was premature and invalid under 8 Cal. Code Reg. § 30, when WCAB concluded that applicant obtained chiropractic panel in violation of Labor Code § 4062.2(b) because there was no “request for a medical evaluation pursuant to [Labor Code] Section 4060” to trigger ten-day waiting period in Labor Code § 4062.2(b), and WCAB found that…
Wyant (Crystal) v. American Medical Response, Lexis Advance
Medical Treatment—Utilization Review—Change in Material Facts—WCAB affirmed WCJ's finding that applicant who suffered admitted industrial back injury while employed as paramedic on 6/23/2014 was entitled to lumbar spinal fusion as approved by defendant's 9/11/2017 utilization review (UR), and disagreed with defendant's position that 9/11/2017 UR certification was invalid based on prior UR decision issued by defendant on 6/22/2017 denying spinal surgery, which defendant asserted should remain effective for 12 months from date of decision under Labor Code § 4610(k), when second request for authorization (RFA) submitted by treating physician provided additional information in support of spinal surgery, and defendant accepted second RFA as new information and sent it to UR reviewer who issued 9/11/2017 decision certifying surgery as reasonable and necessary medical treatment, and WCAB found that...
Independent Medical Review Decisions
CM17-0178182, Lexis Advance
Opioid Medications—Lower Back Injuries—Tapering—IMR reviewer overturned UR decision authorizing only 68 of the 75 Oxycodone 30mg pills requested by applicant’s treating physician, based on the 2016 MTUS opioid treatment guidelines. Following treatment for a lower back injury, including lumbar laminectomy and microdiscectomy, 29-year old applicant complained of increasing lower back pain rated at level 9 out of 10 with radiation to the left lower extremity. With use of Oxycodone, applicant’s pain decreased to level 4 out of 10. The IMR expert noted that Oxycodone was prescribed to applicant at a daily morphine equivalent dose (MED) of 135mg and that applicant was being weaned from 30mg #90 to #75, with additional prescriptions of Flexeril and Elavil to help with radicular symptoms and muscle spasms in order to facilitate weaning. The IMR expert found that... [LexisNexis Commentary: This IMR decision serves as a good reminder that abrupt cessation of opioid use may be dangerous for the injured worker, that slow tapering is recommended, and that there are specific MTUS guidelines in place regarding opioid tapering and monitoring for opioid abuse.]
Prescription Medications—Muscle Relaxants—Lower Back Injuries—IMR reviewer overturned UR decision denying treating physician’s request for authorization for 30 Flexeril pills at a 10mg dosage to treat applicant’s worsening back pain/spasms following lumbar laminectomy and microdiscectomy. In overturning the UR decision, the IMR expert relied on the 2016 MTUS chronic pain guidelines for Cyclobenzaprine (Flexeril)/muscle relaxants, which recommend short courses of Flexeril as a second-line option for treatment of acute exacerbations in patients with muscle spasms... [LexisNexis Commentary: This IMR decision was published to provide insight into the IMR reviewer’s analysis, considering the relevant guidelines, in determining that the muscle relaxant Flexeril was medically necessary for this injured worker.]
CM17-0178459, Lexis Advance
Opioid Medications—Lower Back Injury—Tapering—IMR reviewer overturned UR decision authorizing only 45 of the 90 (#45 with 1 refill) Buprenorphine 2mg pills requested by applicant’s treating physician, based on the 2016 MTUS opioid treatment guidelines. Here, 32-year old applicant suffered collapsed vertebra in his lumbar spine, an injury to the L1 spinal level, and injury of the cauda equina. He reported continued back pain at a level of 5 out of 10 in addition to muscle spasms. Applicant was prescribed several pain medications and had been tapered on Buprenorphine from 8mg per day to 1.5-4mg per day. Applicant reported a 60-70% reduction in pain with use of Buprenorphine and lidocaine patches and demonstrated an improvement in function. Additionally, applicant was compliant to the controlled substance agreement with no signs of abuse or diversion. The IMR reviewer noted that.... [LexisNexis Commentary: This IMR decision serves as a good reminder that abrupt cessation of opioid use may be dangerous for the injured worker, that slow tapering is recommended, and that there are specific MTUS guidelines in place regarding opioid tapering and monitoring for opioid abuse.]
Prescription Medications—Anti-Epilepsy Drugs—Lower Back Injury—IMR reviewer upheld UR decision authorizing only 93 of the 240 75mg Lyrica pills (#120 with 1 refill) requested by the treating physician, based on the 2016 MTUS chronic pain guidelines for anti-epilepsy drugs. The guidelines recommend... [LexisNexis Commentary: This IMR decision serves as a good reminder to doctors regarding the importance of providing sufficient information/documentation to demonstrate that the MTUS criteria have been met.]
Prescription Medications—Topical Analgesics—Lower Back Injury—IMR reviewer overturned UR decision denying treating physician’s request for Lidoderm patches 5% #60 (#30 with 1 refill), based on the 2016 MTUS chronic pain guidelines for topical analgesics. The guidelines state that... [LexisNexis Commentary: This IMR decision serves as a good example of a request for a largely experimental treatment.]
Prescription Medications—NSAIDs—Lower Back Injury—IMR reviewer upheld UR decision denying treating physician’s request for Naprosyn 500mg #20 as not medically necessary or appropriate based on 2016 MTUS chronic pain guidelines for non-steroidal anti-inflammatory drugs (NSAIDs). The guidelines recommend... [LexisNexis Commentary: This IMR decision serves as a good reminder to doctors regarding the importance of providing sufficient information/documentation to demonstrate that the MTUS criterial have been met.]
CM17-0183316, Lexis Advance
Opioid Medications—Chronic Pain Syndrome—Tapering—IMR reviewer overturned UR decision denying treating physician’s request for Morphine 15mg #120, to treat 27-year old applicant who was diagnosed with right shoulder pain and decreased range of motion, chronic pain syndrome, reflex sympathetic dystrophy of the upper limb, and depression. Applicant complained of neck and right shoulder pain rated at 9 out of 10 without medication and 8 out of 10 with medication. The 2016 MTUS opioid guidelines relied upon by the IMR reviewer state that... [LexisNexis Commentary: This IMR decision provides a very comprehensive overview of the standards an IMR reviewer will consider in deciding whether opioid treatment is medically necessary and serves as a very helpful roadmap to providers who prescribe opioids because it provides step-by-step instructions on what information to provide the IMR reviewer in order to meet the MTUS criteria for opioid usage.]
CM17-0186889, Lexis Advance
Opioid Medications—Cervical Pain—IMR reviewer overturned UR decision authorizing only 45 of the 60 Hydrocodone/Apap 10/325mg pills requested by applicant’s treating physician, based on the 2016 MTUS opioid guidelines. In this case, 52-year old Applicant was being treated for cervical radiculopathy, foraminal stenosis in the cervical region and insomnia. Under the MTUS guidelines, opioid treatment is satisfactory when there is decreased pain and the patient can demonstrate an increased level of function or improved quality of life with use of medication. A clinically meaningful improvement in condition is when there is a 30% or more improvement in pain and function. Here, the IMR reviewer found that... [LexisNexis Commentary: This IMR decision in helpful because the IMR reviewer clearly documents the relevant factors justifying treatment with opioid medication, sets forth the applicable MTUS criteria, and explains how the criteria was met in this case.]
CM17-0187433, Lexis Advance
Opioid Medication—Failed Back Syndrome—Tapering—IMR reviewer overturned UR decision denying treating physician’s request for Norco 10/325mg #60, but upheld UR denial of request for Ultram 50mg #60, based on 2016 MTUS opioid guidelines. In this case, 45-year old applicant was undergoing treatment for multiple conditions, including failed cervical spine fusion, radicular pain in arms, lumbar disc herniation with lower extremity radiculopathy, internal derangement of the left hip, and right knee myoligamentous injury. Applicant reported that Norco provided 30 to 50% improvement of pain, range of motion, and ability to function, and Ultram provided 30 to 40% improvement. Urine drug testing results showed positive results for opiates. With respect to the request for Norco, the IMR reviewer noted that... [LexisNexis Commentary: This IMR decision provides an example of a case where the IMR reviewer upheld the UR denial of an opioid prescription because of the lack of biopsychosocial testing and documentation of improvement, leading the reviewer to conclude that applicant should be weaned.]
Prescription Medications—Anti-Epilepsy Drugs—Failed Back Syndrome—IMR reviewer overturned UR decision denying treating physician’s request for Topamax 25mg #60, based on the 2016 MTUS chronic pain guidelines for anti-epilepsy drugs. The guidelines state that Topiramate has not been effective to treat neuropathic pain of “central” etiology but is still considered for use for neuropathic pain when other anticonvulsants have failed. According to the MTUS guidelines... [LexisNexis Commentary: This IMR decision provides a good overview of the MTUS criteria for use of anti-epilepsy drugs to treat neuropathic pain. The IMR reviewer indicated that, based on the guideline criteria, the focus should be on functional restoration rather than decreasing pain.]
CM17-0190448, Lexis Advance
Opioid Medications—Low Back and Knee Injuries—IMR reviewer overturned UR decision authorizing only 84 of the 120 ER formulation Tramadol 100mg pills requested by applicant’s treating physician, based on 2016 MTUS guidelines for opioids. In this case, 57-year old applicant suffered injury to his lumbar spine and a left knee meniscal tear, causing him to suffer persistent pain and limited range of motion. The IMR reviewer noted that...[LexisNexis Commentary: This IMR decision highlights the 30% standard for improvement in pain to justify opioid use under the MTUS guidelines.]
CM17-0191463, Lexis Advance
Opioid Medications—Lumbar Spine Injury—Tapering—IMR reviewer overturned UR decision authorizing only 90 of the 120 50mg Ultram pills requested by applicant’s treating physician, based on the 2016 MTUS opioid treatment guidelines. Here, 48-year old applicant was undergoing treatment for lumbar spinal canal stenosis. He complained of continued calf cramping and reported a 70% reduction in pain while taking medications, which included Norco, Ultram and Ambien. A urine drug screen showed positive results for Hydrocodone, Ambien and Tramadol. The 2016 MTUS opioid guidelines relied upon by the IMR reviewer state that.... [LexisNexis Commentary: This IMR decision serves as a good reminder that abrupt cessation of opioid use may be dangerous for the injured worker, that slow tapering is recommended, and that there are specific MTUS guidelines in place regarding opioid tapering and monitoring for opioid abuse.]
Prescription Medication—Sleep Medication—Ambien—IMR reviewer upheld UR decision denying provider’s request for Ambien 10mg #60, based on the non-MTUS ODG guidelines. The ODG guidelines indicate that Zolpidem (Ambien) is a short-acting nonbenzodiazepine hypnotic, which is approved for short-term (usually 2 to 6 weeks) treatment of insomnia. The IMR reviewer noted that... [LexisNexis Commentary: This IMR decision is helpful in that it demonstrates the criteria that must be met, including a diagnosis of insomnia, for approval of a sleep medication.]
CM17-0191506, Lexis Advance
Opioid Medication—Cervical Radiculopathy and Headaches—Tapering—IMR reviewer overturned UR decision denying provider’s request for Norco 5/325mg 1 tablet twice per day #60, based on the 2016 MTUS opioid treatment guidelines. Here, 70-year old applicant was undergoing treatment for cervical radiculopathy and post-traumatic head syndrome/headaches and has used Norco for pain since 12/2015. The provider indicated that... [LexisNexis Commentary: This IMR decision serves as a good reminder that abrupt cessation of opioid use may be dangerous for the injured worker, and that slow tapering is recommended.]
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