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LexisNexis has selected some of the top “noteworthy” panel decisions issued by the California Workers’ Compensation Appeals Board during the period January through July 2021. Several of these cases address new rules and guidelines instituted in response to the COVID-19 pandemic. There are also a number of decisions regarding supplemental job displacement benefits. They include a case in which the WCAB panel found that a physician’s return-to-work report satisfied the requirements of 8 Cal. Code Reg. § 9785(i) for purposes of proving entitlement to the SJDB voucher, and a decision in which the panel was split with respect to whether or not settlement of the SJDB is always, no matter the circumstance, precluded under Labor Code § 4658.7(g).
Other cases of particular interest include a decision setting forth the obligations of IMR reviewers in determining the medical necessity of recommended treatment, a split panel opinion in which the WCAB was required interpret whether applicant’s psychiatric injury was caused by a “violent act” under Labor Code § 4660.1(c)(2)(A) for purposes of compensability, and two cases addressing whether vocational expert evidence submitted by applicant was sufficient to rebut applicant’s scheduled permanent disability rating. A bonus case included in the “Top 25” addresses defendant’s entitlement to a third-party credit when the employee’s civil settlement was subject to MICRA.
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 However, WCAB panel decisions are not binding precedent, as are en banc decisions on all other Appeals Board panels and workers’ compensation judges.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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COVID-19 PANDEMIC
■ Kenneth Rosenbrook, Applicant v. Knight-Swift Transportation Holdings, Inc., PSI, administered by Gallagher Bassett Services, Inc., Defendants, 2021 Cal. Wrk. Comp. P.D. LEXIS 16, 86 Cal. Comp. Cases 440
Medical-Legal Procedure—Telehealth Evaluations—Emergency Regulations—COVID-19 Pandemic—WCAB, affirming WCJ’s decision, found that defendant’s refusal to allow applicant to undergo panel qualified medical evaluation for 6/27/2013 internal injury claim via telehealth rather than in person was unreasonable pursuant to emergency regulation 8 Cal. Code Reg. § 46.2(a)(3), when applicant resided in State of Washington and medical evaluation was set in California, thereby requiring applicant to travel to attend in-person evaluation, qualified medical evaluator confirmed he was willing and able to conduct telehealth evaluation of applicant’s condition, and WCAB found that contrary to defendant’s contention, there was insufficient evidence in record to conclude that portions of medical evaluation had to be performed by qualified medical evaluator in person, that if necessary applicant could, under 8 Cal. Code Reg. § 46.2(e), undergo in-person physical evaluation to address disputed issues once Governor Newsom’s executive Order N-33-20 is lifted or terminated and stay-at-home order is no longer in effect, that telehealth evaluation did not violate due process, especially in light of current COVID-19 pandemic and underlying purpose of emergency regulation 8 Cal. Code Reg. § 46.2 to preserve integrity of medical-legal evaluation process while at same time protect public from harm and expeditiously resolve workers’ compensation disputes, and that applicant met elements of 8 Cal. Code Reg. § 46.2(a)(3) for telehealth evaluation for his internal medicine complaints, and should not be ordered to risk his health, health of his household, or health of other members of public, to attend in-person evaluation with panel qualified medical evaluator. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 22.07[2][a], 22.11[16]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 16, § 16.54[17].]
■ Napoleon Harris, Applicant v. Oakland Raiders, Defendant, 2021 Cal. Wrk. Comp. P.D. LEXIS 17, 86 Cal. Comp. Cases 502
Medical-Legal Procedure—In-Person Examinations—COVID-19 Pandemic—WCAB, denying removal, affirmed WCJ’s order instructing parties to arrange appointments for applicant who lived outside of California to be evaluated by qualified medical evaluators in California, despite defendant’s objection that order was contrary to California’s public policy and CDC health guidelines related to COVID-19, and that all discovery involving travel to California for medical evaluations be postponed until it is safe to travel, when applicant was willing and eager to travel to California for medical-legal examinations to expedite resolution of his workers’ compensation case, and WCAB reasoned that given CDC guidelines in place to maximize safety during travel, applicant’s ability to comply with those guidelines, and importance of discovery in workers’ compensation cases, discovery process should not be stalled indefinitely and applicant should be permitted to undergo medical evaluation in California as he desired, especially where, as here, there was no evidence that physicians were unable or unwilling to examine applicant, and WCAB further found that defendant’s reliance on Governor Newsom’s shelter-in-place order applied only to California residents, not to residents of other states such as applicant, that WCJ’s order was broad as it did not impose specific dates or timeframes within which evaluations were to occur, thereby allowing parties option of scheduling examinations for future date, and that defendant did not show WCJ’s order resulted in substantial prejudice or irreparable harm to justify removal. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 22.07[2][a], 22.11[16]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 16, § 16.54[17].]
■ Nelson Zaldana, Applicant v. Cali Concrete, Inc., AmTrust North America, Defendants, 2021 Cal. Wrk. Comp. P.D. LEXIS 29, 86 Cal. Comp. Cases 325
Hearings—Continuances—COVID-19 Restrictions—Due Process—WCAB, denying applicant’s Petition for Removal, held that WCJ did not err in setting applicant’s case for remote video trial due to COVID-19 restrictions and refusing to continue trial until it could be conducted in-person with live testimony, when WCAB applied standard set forth in Gao v. Chevron Corporation (2021) 86 Cal. Comp. Cases 44 (Appeals Board Significant Panel Decision), and found that in light of Governor Newsom’s 5/7/2020 Executive Order N-63-20 suspending in-person testimony, purposes of workers’ compensation system, and current conditions, trials should proceed remotely unless there is some clear reason why facts of specific case require continuance, that burden was on applicant, as party seeking continuance in this case, to show clear reason why facts of his case required continuance, that although applicant raised various theoretical objections to proceeding via remote testimony, he did not allege any particular facts about his case that would require continuance to provide for in-person hearing, and that because applicant failed to identify clear reason why facts of this case require continuance, he failed to demonstrate that he would suffer significant prejudice or irreparable harm if required to proceed via remote video trial. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 26.02[3]; Rassp & Herlick California Workers’ Compensation Law, Ch. 16, §§ 16.03, 16.06.]
DISCOVERY
■ Sharon Angell, Applicant v. Subsequent Injuries Benefits Trust Fund, Defendant, 2021 Cal. Wrk. Comp. P.D. LEXIS 34, 86 Cal. Comp. Cases 419
Discovery—Disclosure of Social Security Information—Credit Rights of Subsequent Injuries Benefits Trust Fund—WCAB, affirming WCJ’s finding, held that WCJ had authority to order applicant seeking benefits from Subsequent Injuries Benefits Trust Fund (SIBTF) to disclose information regarding her social security disability benefits so that credit to which SIBTF may be entitled under Labor Code § 4753 could be determined, when WCAB rejected applicant’s assertion that deposition was sole discovery procedure permitted in workers’ compensation proceedings, and determined that WCAB may order discovery, other than depositions, as appropriate to allow expeditious litigation of claim, that, contrary to applicant’s assertion, WCJ’s order requiring applicant to provide social security information did not improperly shift burden of proof from SIBTF to applicant to establish whether SIBTF was entitled to credit, and that WCJ’s order requiring applicant to disclose certain social security information did not cause applicant to suffer significant prejudice or irreparable harm. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 8.09[4], 25.40; Rassp & Herlick, California Workers’ Compensation Law, Ch. 8, § 8.04[3], Ch. 15, § 15.45[1].]
EMPLOYMENT RELATIONSHIPS
■ Mike Mateus, Applicant v. High Sierra Pack Station, State Compensation Insurance Fund, Defendants, 2021 Cal. Wrk. Comp. P.D. LEXIS 5
Employment Relationships—Employees—WCAB affirmed WCJ’s finding that applicant failed to meet his burden of proving that he was employed by defendant on 9/17/2018, which was date he claimed to have suffered injury to his feet and toes, when evidence indicated that applicant owned horseshoeing business and occasionally worked as packer for defendant, that on date of applicant’s injury he accompanied group of campers on pack trip arranged by defendant, stayed with group and worked at campsite cooking and tending to camp, that after trip defendant’s owner paid applicant finder’s fee of $300.00 but did not pay applicant for his time at campsite, that applicant believed he would be paid for his work time, but at no time did he actually discuss payment with defendant’s owner, and that defendant’s owner never requested applicant to stay with group or hire him to do so, and, based on this evidence, WCAB panel majority determined that record did not support existence of employment relationship under Labor Code § 3351 because there was no agreement regarding employment between applicant and defendant given lack of offer and acceptance, lack of consideration and absence of meeting of minds; Commissioner Dodd, dissenting, would rescind WCJ’s decision and return matter to trial level, when Commissioner Dodd found that while employer may overcome Labor Code § 3357 presumption of employment by showing there was no contract of hire, there must be further analysis in this case to determine nature of parties’ relationship, especially given applicant’s belief that he was employee and lack of explanation in record as to why applicant would undertake to work on camping trip without pay, and fact that WCJ made no specific findings regarding whether applicant’s services benefitted defendant, whether applicant was independent contractor, or whether applicant’s services fell within any exclusion to coverage. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 4.138[4][f], 8.05[2][c], 8.06[5][d]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 7, §§ 7.40[1], 7.42[3], 7.45[2]; Ch. 10, § 10.07[3]; The Lawyer’s Guide to the AMA Guides and California Workers’ Compensation, Chs. 3, 6.]
HEARINGS
INSURANCE COVERAGE
■ Efrain Nevarez, Applicant v. American Choice Van Lines, Go East Movers, Vlad Somov, Employers’ Compensation Insurance Company, Valley Forge Insurance Company/CNA, and American Casualty Insurance, Defendants, 2021 Cal. Wrk. Comp. P.D. LEXIS 65
Insurance Coverage—Restricting and Limiting Endorsements—WCAB amended arbitrator’s decision for purposes of clarity regarding whether insurer’s policies were limited in their coverage, and to excise portions of decision that addressed issues not subject to mandatory arbitration, such as those related to employment or date of injury, but WCAB affirmed arbitrator’s finding that insurer had coverage for workers’ compensation benefits that may ultimately be awarded to applicant who filed claim for cumulative injury through 8/30/2015 while working for employer, when WCAB found that workers’ compensation policies provide coverage to all employees of employer unless employees are explicitly excluded in insurance contract with limiting and restricting endorsement in accordance with Insurance Commissioner’s regulations, that employer’s failure to report payroll to insurer is not basis for excluding employees from coverage, that insurer in this case was not permitted to enter into workers’ compensation insurance contract covering only some of employer’s employees without following applicable regulations, and that contrary to insurer’s assertion, insurer’s policy could not be construed to cover only clerical employees without endorsement explicitly limiting policy to those employees. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 2.60[3], 3.142[5]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 3, § 3.30[2].]
LIENS
■ Yolanda Sablan, Applicant v. County of Los Angeles, Acclamation Santa Clarita, Defendants; Marisa Schermbeck Nelson, South Bay Surgical Spine, South Bay Surgical and Spine Institute, Accounts Receivable LTD, Accounts Receivable Acquisitions and Frontline Medical Associates, Inc., Real Parties in Interest, 2021 Cal. Wrk. Comp. P.D. LEXIS 11, 86 Cal. Comp. Cases 524
Liens—Procedural Rights and Duties—Suspended Providers and Special Lien Proceedings—Due Process—WCAB granted lien claimants’ Petitions for Removal and rescinded WCJ’s order requiring multiple lien claimants to proceed to special lien proceedings under Labor Code § 139.21(e) et seq., regarding liens filed by or on behalf of suspended provider Marisa Schermbeck Nelson, and also rescinded WCJ’s order denying lien claimants’ petition to vacate 2/21/2019 trial date and original and amended orders of consolidation issued by Chief Judge of Division of Workers’ Compensation, when WCAB concluded that lien claimants’ liens were consolidated for adjudication in Ms. Nelson’s special lien proceedings in violation of Labor Code § 139.21 and lien claimants’ fundamental right to due process, where (1) Administrative Director failed to provide and post notice of Ms. Nelson’s suspension as required under Labor Code § 139.21(c)-(d) and 8 Cal. Code Reg. § 9788.4(a)(1)-(3) and (b), and lien claimants were never otherwise notified of her suspension, (2) no separate order of suspension ever issued against any of lien claimants as entities “controlled” by Ms. Nelson or any other individual convicted of requisite type of crime that would subject them to special proceedings, (3) lien claimants received no actual or constructive notice that their liens could be stayed under Labor Code § 4615, consolidated and subject to special lien proceedings, which includes negative presumption against their liens pursuant to Labor Code § 139.21(g), and (4) even assuming lien claimants had received notice of Ms. Nelson’s suspension proceedings, it was unclear whether Labor Code § 139.21 alone could have put lien claimants on notice of potential implications of her suspension, and WCAB found that clear language of Labor Code § 139.21(b) and Legislature’s explicit inclusion of due process protections for any individual or entity subject to suspension proceedings supported lien claimants’ position that joining them into Ms. Nelson’s special lien proceedings without prior notice and opportunity to be heard was improper, that in order to subject liens of any provider, whether individual or entity, to special lien proceedings Administrative Director is required to first suspend provider pursuant to Labor Code § 139.21(b), that, in fact, Labor Code § 139.21(a)(1)(D) provides direct mechanism for Administrative Director to seek suspension of entities such as lien claimants that are “controlled” by individuals convicted of requisite crimes, and to conclude that Labor Code § 139.21(e) only requires that individual alleged to control entity be suspended prior to instituting special lien proceedings against all entities “controlled” by individual would render Labor Code § 139.21(a)(1)(D) meaningless, that because lien claimants here were never suspended by Administrative Director, Chief Judge had no jurisdiction under Labor Code § 139.21(e) and (f) to consolidate their liens in Ms. Nelson’s special lien proceedings, and that lien claimants suffered significant harm and prejudice as result of cascade of erroneous processes initiated by Administrative Director’s decision to suspend Ms. Nelson and not lien claimants. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 30.22[1]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 1, § 1.13[4], Ch. 17, § 17.70[1].]
MEDICAL-LEGAL PROCEDURE
■ Binu Brar, Applicant v. County of Fresno, PSI, administered by AIMS, Defendants, 2021 Cal. Wrk. Comp. P.D. LEXIS 36, 86 Cal. Comp. Cases 430
Medical-Legal Procedure—Selection and Assignment of Qualified Medical Evaluators—WCAB, affirming WCJ’s decision, held that applicant’s letter to defendant was sufficient to trigger 10-day period in which to request qualified medical evaluator panel from Medical Unit, that panel in pain medicine issued by Medical Unit in response to applicant’s request was valid, and that parties were required to utilize qualified medical evaluator selected from panel following strike process, when applicant, who suffered injury to cervical spine, hands, left shoulder, thoracic spine, and in forms of headache, sleep dysfunction, TMJ, constipation, and palpitations while employed as finance division chief through 7/24/2020, sent defendant letter requesting medical evaluation on 7/9/2020 and waited 10 days, plus five days for mailing, before requesting qualified medical evaluator panel from Medical Unit on 7/24/2020, pursuant to procedure in Labor Code §§ 4060 and 4062.2, and WCAB found that Labor Code § 4060 did not require represented applicant to wait until defendant denied applicant’s claim to request qualified medical evaluator panel to address compensability of injury, and that requiring party to await notice of denial of injury or notice of delay in determining liability for injury to trigger qualified medical evaluator panel process creates unnecessary delay and undercuts stated purpose of SB 863 amendments to Labor Code §§ 4060 and 4062.2 to eliminate such delay, and conflicts with broad language of Labor Code § 4060(c) permitting request for panel “at any time after the filing of the claim form.” [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 22.06[1][a], [b]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 16, § 16.54[1], [3].]
■ Amarjeet Gill, Applicant v. County of Fresno, PSI, administered by AIMS, Defendants, 2021 Cal. Wrk. Comp. P.D. LEXIS 51
Medical-Legal Procedure—Qualified Medical Evaluator Panel Requests—Compensability Disputes—WCAB, rescinding WCJ’s decision, held that applicant’s initial qualified medical evaluator panel request was proper pursuant to Labor Code §§ 4060 and 4062.2, and ordered parties to utilize panel issued as replacement qualified medical evaluator panel from initial request to evaluate compensability of applicant’s separate claims for cumulative injury to his neck, low back, shoulders, wrists, hands, and in forms of diabetes, alopecia and hiatal hernia through 12/18/2019, and to his wrists and hands through 1/23/2020, when WCAB found that under Labor Code §§ 4060 and 4062.2, parties may request qualified medical evaluator panel at any time after claim has been filed, that applicant’s letter requesting medical evaluation sent to defendant on day after he filed 2019 cumulative injury claim was sufficient triggering event for requesting qualified medical evaluator panel pursuant to Labor Code §§ 4060 and 4062.2, even though defendant had not yet sent delay/denial notice, that after sending letter, applicant waited appropriate ten days plus five days for mailing before requesting qualified medical evaluator panel, and that because applicant filed both 2019 and 2020 cumulative injury claims prior to his initial appointment with qualified medical evaluator selected from assigned panel, medical evaluator must address both injury claims pursuant to Labor Code § 4062.3(j). [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 22.06[1][a], [2], [7], 22.11[1]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 15, § 15.03[2], Ch. 16, § 16.54[1].]
MEDICAL PROVIDER NETWORKS
■ Karla Gonzalez, Applicant v. AC Transit, York Risk Services, Defendants, 2021 Cal. Wrk. Comp. P.D. LEXIS 71
Medical Provider Networks—Continuity of Care—WCAB affirmed WCJ’s finding that applicant who suffered industrial injury to her right ankle while employed as janitor on 12/10/2013 and on 3/9/2017 was entitled to completion of care outside defendant’s medical provider network (MPN) consisting of right ankle surgery with physician at NMCI Medical Clinic (NMCI), pursuant to Labor Code 4616.2 and under 8 Cal. Code Reg. § 9767.9(e)(4), which provides for continuity of care when surgery has been “recommended and documented by the provider to occur within 180 days from the MPN coverage effective date,” when MPN coverage effective date (date defendant first acquired right to transfer applicant’s treatment to its MPN) in this case was 7/1/2020, NMCI physician requested surgery on 9/8/2020 and defendant approved surgery through utilization review on 9/23/2020, all well within 180 days of date on which defendant gained control over applicant’s medical treatment, and WCAB rejected defendant’s assertion that statutory provisions pertaining to terminated physicians should apply in this matter, where defendant’s late admission of liability for applicant’s injuries and not doctor’s change in status triggered events leading to medical treatment dispute. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 5.03[3]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 4, § 4.12[7].]
MEDICAL TREATMENT
■ Paul Aguilar, Applicant v. City of Los Angeles, PSI, Defendant, 2021 Cal. Wrk. Comp. P.D. LEXIS 3
Medical Treatment—Physician’s Reporting Requirements—Substantial Evidence of Medical Necessity of Requested Treatment—WCAB, affirming WCJ’s decision, held that applicant failed to prove disputed medical treatment recommended by his treating physician to cure or relieve effects of 12/13/2007 industrial injury was medically necessary, when treating physician’s report contained no citations to Medical Treatment Utilization Schedule (MTUS), nor did doctor cite to any other evidence-based treatment guidelines in support of his treatment recommendations, and WCAB found that physicians requesting treatment are required to demonstrate pursuant to Labor Code §§ 4600(b) and 5307.27 that requested treatment is consistent with MTUS or other evidence-based guidelines in order to establish reasonableness and necessity of treatment, that while requesting physician is not specifically required to cite MTUS or other guidelines regarding effectiveness of treatment, report is not substantial evidence if these citations are not provided, and that contrary to applicant’s assertion, treating physician’s listing of ICD-10 diagnosis codes did not relieve physician from obligation to provide support for treatment recommendations in accordance with Labor Code §§ 4600(b) and 5307.27. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 5.01[1], 22.01[1][a], 22.05[6]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 4, §§ 4.01[1], [3], 4.03[3].]
■ Kenneth Mackie, Applicant v. Planada Elementary School District, PSI, adjusted by Claims Management, Inc., Defendants, 2021 Cal. Wrk. Comp. P.D. LEXIS 19, 86 Cal. Comp. Cases 245
Medical Treatment—Independent Medical Review—Appeals—WCAB, amending WCJ’s decision, granted applicant’s appeal of 5/19/2020 independent medical review (IMR) determination pursuant to Labor Code § 4610.6(h)(1) and (5), and remanded parties’ utilization review (UR)/IMR dispute to Administrative Director for new IMR, with recommendation that IMR reviewing physician be in specialty of audiology, which was same specialty as applicant’s treating physician, when medical treatment denied by defendant’s UR consisted of treatments for tinnitus that resulted from cumulative trauma during applicant’s employment as music teacher from 3/24/2003 to 2/27/2004, and WCAB, citing Sanchez v. Central Contra Costa Transit, 2020 Cal. Wrk. Comp. P.D. LEXIS 189 (Appeals Board noteworthy panel decision), found that IMR reviewing physician’s failure to review three research studies submitted by applicant despite physician’s obligation to look at all submitted reports and consider entire record rather than picking and choosing portions of record to review, was plainly erroneous and in excess of Administrative Director’s authority, and WCAB also noted that while UR/IMR statutes do not require IMR reviewing physician to be in same specialty as treating physician, and there was not clear evidence that IMR reviewing physician here, with specialties in anesthesiology and palliative/pain medicine, was unqualified to conduct review of disputed treatment, because disputed treatment was within expertise of hearing/ear specialist, second IMR review conducted by physician with such expertise would be preferable. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 5.02, 22.05[6]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 4, § 4.11.]
■ Korey Rivota, Applicant v. National Cement Company, Inc., Arch Insurance Company, administered by Gallagher Bassett Services, Inc., Defendants, 2021 Cal. Wrk. Comp. P.D. LEXIS 31, petition for writ of review filed 3/18/2021
Medical Treatment—Utilization Review—Assisted Living Facility—WCAB affirmed WCJ’s decision that applicant cement truck driver who was previously awarded 100 percent permanent disability with need for further medical treatment following 5/5/2014 industrial injury to multiple body parts, was entitled to further medical treatment in form of continued interdisciplinary post-acute rehabilitation at Casa Colina’s Transitional Living Center (Casa Colina) absent any change in circumstances, when defendant had been providing ongoing authorization for applicant to reside at Casa Colina since 1/23/2020, but had denied request for his continued stay on 10/1/2020, and WCAB, relying on Patterson v. The Oaks Farm (2014) 79 Cal. Comp. Cases 910 (Appeals Board significant panel decision), held that applicant was not required to provide ongoing requests for authorization and that defendant could not force applicant to be discharged from facility by obtaining utilization review denial absent any change of circumstances, and found that ensuring applicant’s continued stay at Casa Colina absent change in circumstances and without defendant’s constant demands for ongoing requests for authorization, would prevent disruption of applicant’s medical care and promote continuity in his living situation. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 5.02[2][a]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 4, § 4.10[7].]
■ Kenneth Hoadley, Applicant v. American Airlines, New Hampshire Insurance Company, Defendants, 2021 Cal. Wrk. Comp. P.D. LEXIS 92
Medical Treatment—Expenses of Treatment—Collecting Payment From Employee—WCAB, amending WCJ’s decision, rejected WCJ’s finding that applicant was entitled to recover reimbursement in excess of Official Medical Fee Schedule (OFMS) for surgical expenses he paid out-of-pocket prior to surgery related to 11/2/2011 knee injury, based on defendant’s failure to make payment arrangements prior to surgery, and held that applicant was limited to reimbursement of pre-paid expenses in accordance with OMFS, when WCAB found that defendant had authorized surgery and was not required to pay surgeon before surgery was provided or to pay amount in excess of OMFS, that per Labor Code § 3751 physician cannot recover medical treatment expenses for industrial injury directly from injured employee where claim has been accepted by employer, that WCJ’s award of reimbursement in excess of OMFS deprived defendant of opportunity to dispute bill with provider or engage in independent bill review process pursuant to Labor Code §§ 4603.2 and 4603.6, and that although process for determining whether fee for medical treatment is reasonable differs depending on whether applicant or provider is seeking reimbursement, fee allowed by OMFS remains constant and neither Labor Code § 4600 nor 5307.1 provides that reasonableness of fee is determined differently if applicant rather than medical provider is seeking reimbursement. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 22.05[1]-[4]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 4, § 4.21.]
■ Shauna Van Brunt, Applicant v. VCA Antech, Inc., The Hartford, administered by Broadspire, Defendants, 2021 Cal. Wrk. Comp. P.D. LEXIS 114
Medical Treatment—Utilization Review—Opioid Medications—WCAB affirmed WCJ’s finding that WCAB lacked jurisdiction to address utilization review (UR)/independent medical review (IMR) decisions certifying progressively reduced quantities of previously-authorized Buprenorphine prescribed by treating physician for applicant’s industrial lumbar spine/left leg injury, when URs were timely issued and applicant did not appeal IMR determinations, and WCAB found that applicant did not show that UR doctors acted improperly by modifying treating physician’s requests for authorization for quantity of 450 Buprenorphine pills and slowly tapering dosage of this medication, and rejected applicant’s assertion that UR could not be used to wean her from previously-authorized medication absent change in condition, noting that recurring prescriptions are not sort of ongoing care that cannot be unilaterally terminated, that each new prescription requires new request for authorization that must be submitted to UR, that authorization of one prescription does not automatically mean recurring prescriptions of that medication must be authorized, and that treating physician has obligation to document need for each recurring prescription, especially when prescriptions are for heavily regulated opioid medications. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 5.02[2][a]-[e], 22.05[6][b][i]-[iv]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 4, §§ 4.10, 4.11.]
■ Zilverio Rivera, Applicant v. City of Petaluma, PSI, administered by Keenan & Associates, Defendants, 2021 Cal. Wrk. Comp. P.D. LEXIS 132
Medical Treatment—Reasonable Refusal of Treatment—WCAB, rescinding WCJ’s decision, found that opinion of panel qualified medical evaluator in internal medicine was not substantial evidence to support WCJ’s finding that applicant, while employed as police officer on 2/20/2017, sustained injury AOE/COE to his circulatory system/stroke, and WCAB returned matter to trial level for supplementation of panel qualified medical evaluator’s medical opinion, when panel qualified medical evaluator reported that applicant “most likely” suffered from congenital vascular defect known as Bow Hunter’s Syndrome (BHS), but stated she could not confirm diagnosis or offer opinion on causation of injury without conducting Digital Subtraction Angiography (DSA) test, which applicant refused to undergo, and WCAB found that applicant’s refusal to undergo DSA test was not unreasonable given risk posed by test as described by panel qualified medical evaluator, and consequently second prong of Labor Code § 4056, which provides that employee’s refusal to undergo medical treatment is deemed unreasonable if risk of treatment is inconsiderable in light of employee’s medical condition, was not satisfied, that applicant could proceed with his claim and recover compensation without undergoing DSA test, and that panel qualified medical evaluator must provide opinion without DSA test, based on reasonable medical probability, as to whether applicant’s diagnosis is BHS and whether his employment as police officer contributed to his stroke. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 5.07[9][b]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 4, § 4.17[1].]
PENALTIES
■ Michael Neufeld, Applicant v. County of San Bernardino Fire Department, PSI, Defendant, 2021 Cal. Wrk. Comp. P.D. LEXIS 2, aff’d/amended by Neufeld v. County of San Bernardino Fire Department, 2021 Cal. Wrk. Comp. P.D. LEXIS 67
Penalties—Delay in Payment of Compensation—WCAB, in split panel opinion, rescinded WCJ’s finding that defendant was not liable for penalties under Labor Code § 5814, and substituted new finding that applicant was entitled to award of penalties based on defendant’s unreasonable delay in restoring applicant’s sick leave and vacation time following his 2/12/2019 award of temporary disability indemnity under Labor Code § 4850 in connection with 1/1/2018 industrial low back injury, when WCAB found that because defendant did not challenge portion of WCJ’s 2/12/2019 decision awarding Labor Code § 4850 benefits in its subsequent Petition for Reconsideration of decision, award of Labor Code § 4850 benefits became final on 2/12/2019, that defendant’s 158-day delay in paying award was unreasonable and subjected defendant to Labor Code § 5814 penalty, that had Labor Code § 5814 penalty not been awarded, penalty under Labor Code § 4650 would be justified, that if defendant was unclear as to whether it owed applicant benefits under Labor Code § 4850 as defendant asserted, defendant should have taken steps to clarify its obligation to applicant instead of delaying payment for several months, and that confusion on part of defendant’s claims adjuster is not acceptable basis to delay payment; Commissioner Lowe, dissenting, found that complexity and confusion regarding defendant’s payment obligations as reflected in trial record supported finding that defendant’s delay in restoring benefits was not unreasonable and did not warrant imposition of penalty. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 10.40[1], [3]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 11, § 11.11[2], [3], [5].]
PERMANENT DISABILITY
■ Patrick Walsh, Applicant v. Skyline Steel Erectors, Zurich, Defendants, 2021 Cal. Wrk. Comp. P.D. LEXIS 84, petition for reconsideration filed 4/22/2021
Permanent Disability—Rating—Rebuttal of Scheduled Rating—WCAB amended WCJ’s decision to reflect that applicant suffered 91 percent permanent disability as result of 12/15/2014 industrial injury to multiple body parts while employed as ironworker, based on scheduled impairment rating, when WCAB found that WCJ’s award of permanent total disability was based on misapplication of apportionment law and reliance upon report of vocational expert that was not substantial evidence to rebut scheduled rating of 91 percent permanent disability, and WCAB explained that vocational expert’s opinion that applicant was unemployable and not amenable to vocational rehabilitation was insufficient because it failed to account for agreed medical examiner’s apportionment of 25 percent permanent disability to applicant’s nonindustrial, degenerative spondylolisthesis, as mandated by Acme Steel v W.C.A.B. (Borman) (2013) 218 Cal. App. 4th 1137, 160 Cal. Rptr. 3d 712, 78 Cal. Comp. Cases 751, that WCJ’s failure to consider agreed medical examiner’s apportionment based on her finding that there was no evidence applicant’s preexisting disability was labor-disabling was contrary to principles in Labor Code § 4663, which require apportionment to pathology and asymptomatic conditions, and that even in cases where there is substantial vocational evidence that applicant has 100 percent loss of earning capacity and is permanently totally disabled, per Ogilvie v. W.C.A.B. (2011) 197 Cal. App. 4th 1262, 129 Cal. Rptr. 3d 704, 76 Cal. Comp. Cases 624, substantial medical evidence of apportionment must be considered and applied by vocational experts and WCJ. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 8.02[3], [4], 32.01[3], 32.03A[1]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 7, § 7.12[2]; The Lawyer’s Guide to the AMA Guides and California Workers’ Compensation, Ch. 7.]
■ Arturo Diaz, Applicant v. E&F Demolition and Benchmark Insurance Company, Defendants, 2021 Cal. Wrk. Comp. P.D. LEXIS 82
Permanent Disability—Rating—Rebuttal of Scheduled Rating—WCAB found that record in this case was not sufficient to support WCJ’s award of 50 percent permanent disability for applicant’s 1/17/2018 injury to his right foot and toes, and instead awarded 21 percent permanent disability based on agreed medical examiner’s reporting, when WCAB found that opinion of vocational expert relied upon by WCJ was insufficient to rebut scheduled permanent disability rating under Ogilvie v. W.C.A.B. (2011) 197 Cal. App. 4th 1262, 129 Cal. Rptr. 3d 704, 76 Cal. Comp. Cases 624, LeBoeuf v. W.C.A.B. (1983) 34 Cal. 3d 234, 193 Cal. Rptr. 547, 666 P.2d 989, 48 Cal. Comp. Cases 587, and Contra Costa County v. W.C.A.B. (Dahl) (2015) 240 Cal. App. 4th 746, 193 Cal Rptr. 3d 7, 80 Cal. Comp. C3ases 1119, because evidence established that applicant was amenable to vocational rehabilitation to enable him to return to labor market, and that contrary to applicant’s assertion, vocational reporting did not provide sufficient evidence to successfully rebut scheduled rating based on alternate method in Ogilvie, under which scheduled rating may be rebutted when employee demonstrates that nature or severity of injury is not captured within sampling of disabled workers that was used to compute adjustment factor, and fact that applicant had injury to his right foot and toes leading to amputation of his second toe, did not establish that scheduled rating failed to account for severity of applicant’s injury. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 8.02[3], [4], 32.01[3], 32.03A[1]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 7, § 7.12[2]; The Lawyer’s Guide to the AMA Guides and California Workers’ Compensation, Ch. 7.]
PSYCHIATRIC INJURY
■ Charlene Sturm, Applicant v. Coronado Unified School District, administered by Athens Administrators, Defendants, 2021 Cal. Wrk. Comp. P.D. LEXIS 4, 86 Cal. Comp. Cases 253
Psychiatric Injury—Increased Permanent Disability—Violent Acts—WCAB, in split panel opinion, affirmed WCJ’s finding that applicant who required amputation of her left index finger after sustaining industrial crush injury on 12/11/2017 was entitled to increased impairment rating for psychiatric injury, when WCAB panel majority concluded that mechanism of applicant’s injury constituted “violent act” pursuant to Labor Code § 4660.1(c)(2)(A) as it resulted from strong physical force when applicant closed heavy gate on her finger, thereby falling within exception to bar against separate impairment rating for psychiatric injury arising out of compensable physical injury, and WCAB found no meaningful distinction between mechanism of applicant’s injury and finger amputations described in Guerrero v. Ramcast Steel Fabrication (2017) 82 Cal. Comp. Cases 1222 (Appeals Board noteworthy panel decision), and Lopez v. General Wax Co., Inc., 2017 Cal. Wrk. Comp. P.D. LEXIS 291 (Appeals Board noteworthy panel decision), which were caused by machines and were determined to be “violent acts,” and noted that mechanism of injury is focus in evaluating whether injury falls under Labor Code § 4660.1(c)(2)(A), that nothing in Labor Code § 4660.1(c)(2)(A) indicates finding of “violent act” is governed by whether injurious object is within employee’s control or is automated machine, and that applicant’s own conduct in closing gate on her finger was irrelevant in “violent act” analysis; Commissioner Lowe, dissenting, determined that applicant’s accidental closing of gate on her own finger did not involve sufficiently extreme force to be characterized as “violent act,” and that panel majority’s finding that applicant’s injury resulted from “violent act” expands application of Labor Code § 4660.1(c)(2)(A) in manner that allows exception to swallow rule. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 4.02[3][a], [b], [f], 4.69[1], [3][a], 8.02[4][c][ii], [5], 32.02[2][a]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 7, §§ 7.05[3][b][i][ii], 7.06[6], Ch. 10, § 10.06[3][a], [b][i].]
STATUTE OF LIMITATIONS
■ Akbar Matani, Applicant v. IHSS, California Department of Social Services, administered by York, Defendants, 2021 Cal. Wrk. Comp. P.D. LEXIS 57, 86 Cal. Comp. Cases 507
Statute of Limitations—Tolling—Defendant’s Duty to Provide Notice—WCAB affirmed WCJ’s finding that applicant’s claim for injury sustained in motor vehicle accident on 9/12/2014 was barred by statute of limitations in Labor Code § 5405(a), when applicant’s claim was untimely filed more than three years after his date of injury, and WCAB found that applicant failed to establish that statute of limitations was tolled pursuant to Reynolds v. W.C.A.B. (1974) 12 Cal. 3d 726, 117 Cal. Rptr. 79, 527 P.2d 631, 39 Cal. Comp. Cases 768 and Kaiser Foundation Hospitals v. W.C.A.B. (Martin) (1985) 39 Cal. 3d 57, 702 P.2d 197, 216 Cal. Rptr. 115, 50 Cal. Comp. Cases 411, based on defendant’s failure to notify him of his potential right to benefits as required by Labor Code § 5401(a), where there was no credible evidence that defendant had actual or constructive notice that motor vehicle accident was work-related incident that caused applicant to lose time from work or required medical treatment so as to trigger defendant’s duty to provide applicant with DWC-1 claim form and notice of his potential workers’ compensation claim, and that even assuming defendant’s duty to provide notice was somehow triggered before applicant filed Application for Adjudication of Claim, applicant’s testimony demonstrated that he had actual knowledge he sustained potential industrial injury as result of motor vehicle accident more than one year prior to that filing. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 24.03[1], 24.04[6]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 14, §§ 14.01[4], 14.02[1].]
SUBSEQUENT INJURIES BENEFITS TRUST FUND
■ Cisco, Applicant v. Subsequent Injuries Benefits Trust Fund, Defendant, 2021 Cal. Wrk. Comp. P.D. LEXIS 128
Subsequent Injuries Benefits Trust Fund—Payment of Funds to Special Needs Trust—WCAB, affirming WCJ’s decision, held that WCJ had authority to order defendant to pay applicant’s Subsequent Injuries Benefits Trust Fund (SIBTF) proceeds into special needs trust pursuant to applicant’s request, when WCAB reasoned that due to applicant’s severe impairments following 10/2/2007 industrial injury and reliance on other governmental benefits, proceeds of her Stipulated Award in underlying workers’ compensation case were ordered directly payable to special needs trust, that SIBTF benefits are governed by Labor Code and are under exclusive jurisdiction of WCAB and, additionally, they constitute “compensation” for purposes of invoking WCJ’s power to fix awards and dictate how they are paid, and that WCJ has broad discretion to determine how benefits are paid out, and despite defendant’s contrary assertion, neither Labor Code § 4900 nor Labor Code § 4902 precluded WCJ’s order in this case directing payment of SIBTF proceeds into special needs fund. [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.]
SUPPLEMENTAL JOB DISPLACEMENT BENEFITS
■ Zenaida Garcia, Applicant v. Riverside Magnolia Corporation dba Extended Care Hospital of Westminster, and Cypress Insurance Company, administered by Berkshire Hathaway Homestate Companies, Defendants, 2021 Cal. Wrk. Comp. P.D. LEXIS 69
Supplemental Job Displacement Benefits—Applicant’s Entitlement to Voucher—Treating Physician’s Return-to-Work Report—WCAB, rescinding WCJ’s decision, held that applicant who claimed industrial injury to her left upper extremity while employed as housekeeper on 10/22/2017, met burden of establishing entitlement to supplemental job displacement benefits (SJDB) voucher under Labor Code § 4658.7 based on treating physician’s Return-to-Work & Voucher Report (DWC-AD 10133.36) which stated that applicant’s condition was permanent and stationary, that injury caused permanent partial disability, and that applicant had work restrictions, and WCAB found that applicant was not required to obtain separate permanent and stationary report to prove entitlement to voucher, when WCAB found that treating physician’s Return-to-Work & Voucher Report met requirements of 8 Cal. Code Reg. § 9785(i) and provided parties all necessary information to determine applicant’s entitlement to SJDB voucher, that since applicant settled her claim and was not seeking temporary disability indemnity, permanent disability indemnity, or medical treatment, neither party would benefit from obtaining permanent and stationary report and report would serve no purpose, and that under circumstances of this matter, to determine that permanent and stationary report was “mandatory” would deny applicant voucher to which she would otherwise be entitled, would place form over substance, and would be inconsistent with Legislature’s intent in enacting Labor Code § 4658.7, which was to make SJDB (in form of voucher) more easily accessible to injured workers. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 35.01; Rassp & Herlick, California Workers’ Compensation Law, Ch. 21, § 21.01.]
■ Marisa Singerman, Applicant v. Nike, Inc., Old Republic Insurance Company, Defendants, 2021 Cal. Wrk. Comp. P.D. LEXIS 81, petition for writ of review filed 4/22/2021
Supplemental Job Displacement Benefits—Discovery—WCAB rescinded WCJ’s decision that applicant who suffered industrial spine injury on 3/4/2018 was not entitled to supplemental job displacement benefits (SJDB) voucher, and returned matter to trial level for further development of record regarding applicant’s entitlement to voucher, when WCAB noted that while WCJ correctly found that treating physician’s 9/30/2019 permanent disability report was deficient, this report was only evidence offered at trial suggesting applicant was permanently partially disabled, yet WCJ declined to develop record because applicant had settled her claim prior to completion of discovery and had procured medical report post-settlement addressing permanent disability despite settlement of this issue, but WCAB determined that prohibiting applicant from conducting further discovery on issue of permanent disability effectively prohibited her from conducting necessary discovery to prove entitlement to SJDB voucher, which was not settled, and further found that forcing employee to wait until permanent and stationary medical report is issued before employee can settle workers’ compensation claim, or else forgo right to SJDB voucher, impairs employee’s right to settle claim in violation of Labor Code § 5000, and that prohibiting employee from engaging in discovery post-settlement to prove entitlement to SJDB voucher effectively abrogates employee’s right to this benefit. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 35.01; Rassp & Herlick, California Workers’ Compensation Law, Ch. 21, § 21.01.]
■ Adalberto Urias, Applicant v. PT Gaming, Limited Liability Company, Mitsui Sumitomo Insurance Company, administered by Gallagher Bassett Services, Incorporated, Defendants, 2021 Cal. Wrk. Comp. P.D. LEXIS 76, 86 Cal. Comp. Cases 557
Supplemental Job Displacement Benefits—Settlement of Benefit—WCAB, in split panel opinion, affirmed WCJ’s finding that applicant who suffered industrial injury while working as gaming table associate from 9/4/2014 to 9/4/2015, was not precluded from receiving supplemental job displacement benefits (SJDB) voucher based on parties’ Compromise and Release agreement, when WCAB panel majority found that issue of voucher was not addressed or settled in Compromise and Release, that furthermore under Labor Code § 4658.7(g), settlement of SJDB is generally not permitted, and that although WCAB’s holding in Beltran v. Structural Steel Fabricators (2016) 81 Cal. Comp. Cases 1224 (Appeals Board noteworthy panel decision), permits settlement of SJDB voucher in limited circumstance where facts exist to potentially defeat right to workers’ compensation, no such facts existed in this case because defendant admitted liability; Chair Zalewski found that employee’s entitlement to SJDB voucher cannot be settled under any circumstances due to language in Labor Code § 4658.7(g), and dissented to extent majority suggested that, under different facts, exception to statutory prohibition precluding settlement may be applicable pursuant to Beltran, when Chair Zalewski rejected decision in Beltran, opining that language in Labor Code § 4658.7(g) clearly reflects Legislature’s intent to prohibit settlement of voucher in all circumstances, and that WCAB in Beltran erroneously relied on Thomas v. Sports Chalet, Inc. (1977) 42 Cal. Comp. Cases 625 (Appeals Board en banc opinion), which involved vocational rehabilitation benefits and much narrower statute than SJDB statute. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 35.01; Rassp & Herlick, California Workers’ Compensation Law, Ch. 21, § 21.01.]
Supplemental Job Displacement Benefits—Employee’s Resignation—WCAB, affirming WCJ’s decision, held that consistent with holding in Dennis v. State of California (2020) 85 Cal. Comp. Cases 389 (Appeals Board en banc opinion), applicant’s resignation from his employment as gaming table associate following industrial injury during period 9/4/2014 to 9/4/2015, did not defeat his entitlement to supplemental job displacement benefits (SJDB) voucher pursuant to Labor Code § 4658.7(b), because without bona fide offer of regular, modified, or alternative work, regardless of employer’s ability to make such offer and regardless of employee’s ability to accept such offer, employee is entitled to SJDB voucher. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 35.01; Rassp & Herlick, California Workers’ Compensation Law, Ch. 21, § 21.01.]
THIRD PARTY ACTIONS
■ Amanda Quintanilla, Applicant v. Sun Healthcare Group dba ProCare One, National Union Insurance, administered by Broadspire, Defendants, 2021 Cal. Wrk. Comp. P.D. LEXIS 94
Third-Party Actions—Employer’s Claim for Credit—Application of Medical Injury Comprehensive Reform Act as Bar to Credit—WCAB rescinded WCJ’s award of third-party credit in amount of $184,547.28 against defendant’s workers’ compensation liability for injuries suffered by applicant on 8/3/2012 while working as nurse, and, relying on Graham v. W.C.A.B. (1989) 210 Cal. App. 3d 499, 258 Cal. Rptr. 376, 54 Cal. Comp. Cases 160, held that defendant was barred from obtaining third-party credit pursuant to Medical Injury Comprehensive Reform Act of 1975 (MICRA), codified in Civil Code § 3333.1, when applicant’s civil lawsuit against third party Mission Hospital Regional Medical Hospital, which was resolved via settlement, stated claim for professional negligence under Civil Code § 3333.1, and WCAB found substantial evidence that settlement of civil action was “demonstrably reduced” to reflect collateral source contributions, where applicant produced declaration and sworn testimony from her civil attorney that he agreed to reduced settlement based on his belief applicant’s civil action would be subject to MICRA, which would include general damages cap and reduction of special damages due to MICRA’s exception to prohibition against introducing evidence of collateral source payments, applicant also produced correspondence contemporaneous with civil action clarifying that carrier chose not to assert its lien at time of civil settlement, which explained why there was no deduction from lien from civil action settlement amount, and defendant offered no evidence rebutting evidence produced by applicant, and WCAB noted that contrary to WCJ’s conclusion, it was not necessary that MICRA settlement agreement allocate amount of settlement for general damages and amount for special damages in order for Civil Code § 3333.1 to bar subrogation. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 8.02[6], 11.21[2][c][i]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 12, § 12.10[2].]