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Workers' Compensation

California: Top 25 Noteworthy Panel Decisions (July through December 2019)

LexisNexis has selected some of the top “noteworthy” panel decisions issued by the California Workers’ Compensation Appeals Board during the period July through December 2019. The list includes one of the many new “hybrid” decisions issued by the WCAB involving rulings on both interlocutory and threshold issues. In this case, and the others, the WCAB holds that a petition for reconsideration is the appropriate mechanism to challenge a “hybrid” decision, but that petitions involving only interlocutory challenges will be evaluated under the “significant prejudice and irreparable harm” standard. Also included on the “most noteworthy” list is a case involving one of the largest workers’ compensation settlements and attorney’s fee awards in history, several decisions addressing hotly debated issues that frequently arise in SIBTF claims, a decision exemplifying the impact of long delays in the QME process and the WCAB’s reliance on the California Constitution to create a remedy, and a host of cases in which the WCAB rules on various medical-legal disputes that have become commonplace in current workers’ compensation practice.

One of the top panel decisions issued this year addresses issues under Labor Code § 4662 and Ogilvie v. W.C.A.B. (2011) 197 Cal. App. 4th 1262, 129 Cal. Rptr. 3d 704, 76 Cal. Comp. Cases 624, and essentially suggests that the holding in Dept. of Corrections & Rehabilitation v. W.C.A.B. (Fitzpatrick) (2018) 27 Cal. App. 5th 607, 238 Cal. Rptr. 3d 224, 83 Cal. Comp. Cases 1680, was a factual anomaly. Another significant case addresses the much-debated issue of whether parties can use vocational evidence of DFEC to rebut a scheduled PD rating for post-1/1/2013 injuries given the standard 40 percent increase set forth in Labor Code § 4660.1. Finally, two bonus cases are included. In one, the WCAB recognized the importance of distinguishing psychiatric injuries caused by stressful working conditions from those caused by “personnel actions” directed specifically towards an individual’s employment status in deciding whether a psychiatric injury claim is barred under Labor Code § 3208.3(h). The other is one of a number of recent cases in which the WCAB holds that QME panels in the specialty of chiropractic medicine will not be found inappropriate on the sole basis that the injured worker requires treatment modalities (e.g., prescription medication or surgery) that chiropractors are not licensed to perform.

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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ATTORNEY’S FEES

■ Antonio Enriquez, Applicant v. Willie’s Painting, State Compensation Insurance Fund, Defendants, 2019 Cal. Wrk. Comp. P.D. LEXIS 226 [Writ denied 11/1/2019, sub nom. Shandler & Associates v. W.C.A.B. (Enriquez), Civ. No. B299803]

Attorney’s Fees—Division of Fees—WCAB affirmed WCJ’s $1.335 million attorney’s fee award on $8.9 million settlement obtained by applicant with traumatic brain injury, to be split $1,182,357.00 to applicant’s attorneys Asvar, Odjaghian & Associates (AOA) (who represented applicant from 9/30/2009 through date of settlement on 1/25/2012), and $152,643.00 to applicant’s former attorneys Shandler & Associates (Shandler) (who represented applicant from 5/20/2004 until 9/30/2009), when WCJ divided fee based on reimbursement for opening file, value of permanent disability, and value of different components of applicant’s settlement agreement, and then evaluated services provided by AOA and Shandler with respect to each component based on factors set forth in 8 Cal. Code Reg. § 10775 and Bentley v. I.A.C. (Martin) (1946) 75 Cal. App. 2d 547, 171 P.2d 532, 11 Cal. Comp. Cases 204, including responsibility assumed by each attorney, care exercised in representing applicant, time involved in representation, and results obtained, and, based on his evaluation, WCJ determined that AOA was entitled to significantly higher fee than Shandler, where Shandler failed to take steps to investigate third-party claim for defective scaffold within statutory timeframe; conducted initial intake interview through clerical employee, rather than through attorney; failed to provide “hands on” involvement in applicant’s case throughout entirety of attorney-client relationship, as evidence by repeated inability by applicant and his family to make contact with any attorney at Shandler; did not adequately manage applicant’s complex medical treatment or sufficiently pursue medical-legal evidence; took no steps to resolve applicant’s case after receiving permanent and stationary report; failed to notify applicant when attorney handling case was suspended from state bar for two months; and engaged in representation with which applicant and his family expressed frustration and dissatisfaction; on other hand, AOA undertook representation with impressive degree of responsibility and care, including but not limited to, providing applicant with guardian and court-appointed conservator and assisting in maintaining this relationship well after settlement was finalized, reviewing voluminous medical records and coordinating applicant’s medical treatment needs, pursuing medical-legal evidence and making detailed plans regarding how to litigate applicant’s case, undertaking extraordinary efforts to negotiate and structure record-setting $8.9 million settlement, including working with various settlement specialists. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 20.02[1], 20.03[1], 20.05; Rassp & Herlick, California Workers’ Compensation Law, Ch. 17, §§ 17.31, 17.32.]

COSTS

■ Pablo Perez, Applicant v. Taylor Farms, Zurich North America Insurance Company, Defendants, 2019 Cal. Wrk. Comp. P.D. LEXIS 263 [In October 2019 CCC, see Perez v. Taylor Farms (2019) 84 Cal. Comp. Cases 950 (Appeals Board noteworthy panel decision)]

Costs—Medical-Legal—Functional Capacity Evaluations—WCAB, granting removal, rescinded WCJ’s finding that Functional Capacity Evaluation (FCE) was not reasonable and necessary medical-legal expense, when FCE was requested by panel qualified medical evaluator to address issue of permanent impairment stemming from applicant laborer’s right hand and wrist injuries, and WCAB rejected WCJ’s finding that FCE conducted by physical therapist was prohibited by Labor Code § 4628(a), which WCJ asserted precluded anyone other than evaluating physician from conducting medical-legal evaluation, and WCAB reasoned that in this case FCE was separate diagnostic tool apart from qualified medical evaluator’s examination, and was necessary for qualified medical examiner to have better understanding of impact of applicant’s injury in potential Almaraz/Guzman analysis, that Labor Code § 4628 did not apply here, and that qualified medical evaluator’s medical reporting and deposition testimony were substantial evidence to support his request for FCE, especially given detailed explanation he provided as to why FCE was necessary and regarding how FCE differed from his medical-legal examination. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 5.08[2], 29.09; Rassp & Herlick, California Workers’ Compensation Law, Ch. 17, § 17.72.]

CREDIT

■ Ronald Ehman, Applicant v. American Civil Constructors, Old Republic Insurance Company, administered by Gallagher Bassett Services, Defendants, 2019 Cal. Wrk. Comp. P.D. LEXIS 432

Credit—Longshore and Harbor Workers’ Compensation Proceedings—WCAB, rescinding WCJ’s decision, found that defendant was not entitled to credit against workers’ compensation benefits owed to applicant based on applicant’s $189,000.00 settlement of his Longshore and Harbor Workers’ Compensation Act (33 U.S.C.S § 901 et seq. (Longshore Act)) claim against California Engineering Contractors (CEC), when applicant settled his state workers’ compensation case against defendant before he settled Longshore Act case against CEC, thereby entitling CEC to credit under 33 U.S.C.S § 903(e), which mandates that Longshore Act defendant receive credit for injured employee’s prior settlement with different defendant in state workers’ compensation case, and WCAB was not persuaded by defendant’s assertion that, because CEC did not seek credit in Longshore Act case, denying credit to defendant in state case would allow applicant to receive impermissible double recovery, where WCAB reasoned that defendant offered no proof that CEC’s credit rights were not considered when CEC settled applicant’s Longshore Act case, that any double recovery received by applicant, if double recovery did occur, was result of applicant’s advantageous settlement, to which he was entitled, and that fact that CEC did not pursue credit for applicant’s workers’ compensation settlement did not equitably entitle defendant to receive credit for sole purpose of preventing applicant from benefitting from windfall recovery. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 7.04[9][b], 20.01[5][b]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 6, § 6.19[3], Ch. 7, § 7.45, Ch. 13, § 13.04[4].]

DEATH BENEFITS

■ Mary Leon (Deceased), Applicant v. DSS (In Home Support County of LA), legally uninsured and administered by York Risk Services Group, Meals on Wheels, insured by State Compensation Insurance Fund, Defendants, 2019 Cal. Wrk. Comp. P.D. LEXIS 332

Death Benefits—Death Without Dependents—WCAB affirmed WCJ’s finding that Death Without Dependents unit of Department of Industrial Relations (DWD) failed to meet its burden of proof to establish that applicant, who suffered industrial injury resulting in her death on 11/20/2012, had no dependents at time of death, when WCAB reasoned that to receive death benefits under Labor Code § 4706.5(a), DWD must affirmatively establish that deceased employee has no dependents, either total or partial, at time of his or her death, and without such affirmative proof DWD is not entitled to death benefits, that substantial evidence in this case established that decedent’s two sons were partially dependent on decedent for financial support at time of her death, thereby precluding recovery of death benefits by DWD, and that, contrary to DWD’s assertion, fact that decedent’s sons chose to receive civil settlement in lieu of workers’ compensation death benefits and withdrew their claims for death benefits did not require finding that DWD was entitled to death benefits, because death benefits do not escheat to DWD simply because dependent did not receive benefits. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 9.02[4][d.2], 9.03[5]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 9, § 9.17.]

EMPLOYMENT RELATIONSHIPS

■ Dennis Gray, Applicant v. Pathway Group Incorporated, Employers’ Compensation Ins., Solvis Staffing Services Inc., State Compensation Insurance Fund, Zurich American Ins. of Illinois, Commercial Cooling Par Engineering, Inc., Argonaut Insurance Company, Defendants, 2019 Cal. Wrk. Comp. P.D. LEXIS 336

Employment Relationships—General and Special Employers—WCAB affirmed WCJ’s finding that applicant was jointly employed by Pathway Group Incorporated (Pathway), as general employer, and Commercial Cooling Par Engineering, Inc. (Commercial Cooling), as special employer, at time of his 7/21/2016 industrial lumbar spine injury, and was not employed by Solvis Staffing Incorporated (Solvis) on date of injury, when substantial evidence supported dual employment between Pathway and Commercial Cooling, but WCAB was not persuaded that employment contract between Pathway and Commercial Cooling was “hybrid of a general-special agreement with three parties instead of two” for purposes of imposing liability on Solvis, as urged by Pathway; although WCAB agreed with WCJ’s finding of joint employment, WCAB noted that WCJ applied incorrect legal analysis to reach finding, and specifically declined to adopt WCJ’s discussion of employment where, in addition to “control” test, WCJ relied on “suffer or permit” to work language in cases arising from wage and hour claims, which address only whether workers should be classified as employees or independent contractors for wage and hour purposes as described in Dynamex Operations West, Inc. v. Superior Court (2018) 4 Cal. 5th 903, 416 P.3d 1, 232 Cal. Rptr. 3d 1, 83 Cal. Comp. Cases 817; WCAB emphasized that “eight factor test” 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, remains standard in California to determine whether injured worker is employee or independent contractor; WCAB also amended WCJ’s decision to remove specific finding that Pathway and Commercial Cooling had joint and several liability for workers’ compensation benefits, as issue of insurance coverage was not before WCAB. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 3.06, 3.07, 3.130, 3.131, 3.142, 33.01[1]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 2, § 2.06, Ch. 16, § 16.05[b].]

JURISDICTION

■ Mark Carreon, Applicant v. Cleveland Indians, PSI, San Francisco Giants, insured by CIGA, for Legion Insurance, in liquidation, and National Union Fire Insurance Company of Pittsburgh PA, administered by Gallagher Bassett Services, Defendants, 2019 Cal. Wrk. Comp. P.D. LEXIS 428

WCAB Jurisdiction—Professional Athletes—Requirements for Exemption—WCAB affirmed WCJ’s finding that applicant’s claim for industrial injury while employed as professional baseball player by various teams, including defendant Cleveland Indians (Indians), was not exempt from California jurisdiction under Labor Code § 3600.5, when WCAB rejected defendant’s assertion that applicant’s last year of employment as professional athlete for purposes of Labor Code § 3600.5 was 2000, during which year applicant was employed by Mississippi-based independent minor league team Jackson Diamond Kats (Diamond Kats), rather than one-year period ending on 10/27/96 as determined by WCJ, and WCAB concluded that even had defendant established that applicant’s career ended in 2000, defendant failed to carry its burden to prove exemption under Labor Code § 3600.5, due to its failure to introduce evidence showing that applicant’s employment for Diamond Kats was employment as professional athlete pursuant to Labor Code § 3600.5(g)(1), and because it admitted that applicant never actually worked in California while employed by Diamond Kats and, therefore, applicant could never have been “temporarily” in state or have suffered injury in state for purposes of exemption under Labor Code § 3600.5(d). [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

■ Fernando Calderon, Applicant v. Matharu Assisted Living, State Compensation Insurance Fund, Defendants, 2019 Cal. Wrk. Comp. P.D. LEXIS 376 [Petition for Writ of Review filed 10/25/2019]

Liens—Filing and Service—Lien Declarations—Laches—WCAB affirmed WCJ’s finding that lien claimant failed to timely file Labor Code § 4903.8(d) lien declaration and, therefore, was not entitled to recover on its 11/7/2012 lien, when lien claimant did not file declaration until 11/15/2017, and WCAB reasoned that based on specific facts in this case, lien claimant’s decision to file its Labor Code § 4903.8(d) declaration over four years and six months after 1/1/2013 amendments to Labor Code § 4903.8 became effective, requiring lien declaration to be filed by 1/1/2014, was egregious and rose to level of “unjustifiable delay,” and that although there was no statutory remedy for lien claimant’s untimely filing of declaration, equitable doctrine of laches was applicable in this particular case due to lengthy period of time that elapsed between filing of lien and filing of declaration, and based on intervening events that should have prompted lien claimant to file declaration. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 30.20[1], 30.25[1]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 17, § 17.10[4].]

■ Maria Becerra, Applicant v. Slik Apparel, Employers Compensation Insurance Company, Defendants, 2019 Cal. Wrk. Comp. P.D. LEXIS 341

Liens—Interpreting Services—WCAB, rescinding WCJ’s decision, returned matter to trial level for further proceedings regarding market rate of lien claimant’s interpreting services as defined in 8 Cal. Code Reg. § 9795.1(e), when market rate evidence submitted by lien claimant at trial was insufficient to establish market rate because it only included information from accounts which were paid in full by defendants and none where lien claimant accepted less than full payment, and WCAB found that lien claimant’s market rate evidence should include all invoices recently paid for similar services, as determined by WCJ; however, WCAB determined that WCJ erred when he required lien claimant to produce “substantial evidence” to support market rate of its interpreting services, and noted that lien claimant has burden of proving market rate of its interpreting services, and must produce substantial evidence to satisfy burden of proof. [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[2].]

MEDICAL-LEGAL PROCEDURE

■ Hortencia Sanchez, Applicant v. Employ Bridge aka Select Staffing, XL Insurance, administered by Corvel, Defendants, 2019 Cal. Wrk. Comp. P.D. LEXIS 254

Medical-Legal Procedure—Replacement Panel Qualified Medical Evaluators—WCAB, granting removal, rescinded WCJ’s order for replacement panel qualified medical evaluator and returned matter to trial level for further proceedings, when WCAB found that WCJ exceeded his authority by ordering replacement qualified medical panel based on original panel qualified medical evaluator’s lack of preparation for deposition, which WCJ found equated to unavailability for deposition within statutory timeframe, and WCAB reasoned that although 8 Cal. Code Reg. § 35.5(f) requires qualified medical evaluator to be available for deposition within 120 days of notice of deposition, unavailability is not one of enumerated circumstances for obtaining replacement panel pursuant to 8 Cal. Code Reg. § 31.5(a), and, moreover, qualified medical evaluator in this case did make herself available for deposition within requisite 120 days and was cross-examined by applicant, and doctor’s failure to review records prior to her deposition did not amount to unavailability. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 1.11[3][g], 22.11[6], 26.03[4]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 16, § 16.54[6], Ch. 19, § 19.37.]

■ John Campbell (deceased), Applicant v. City of Red Bluff Fire Department, PSI, as administered by York Risk Services Group, Inc., Defendants, 2019 Cal. Wrk. Comp. P.D. LEXIS 314

Medical-Legal Procedure—Replacement Panel Qualified Medical Evaluators—WCAB, granting removal, held that four medical evaluator panels issued by Medical Unit between 6/15/2017 and 11/1/2017 were invalid, and gave parties 10 days to agree on medical evaluator or, if parties could not reach agreement, schedule evaluation with regular physician appointed by WCJ pursuant to Labor Code § 5701, when WCAB found that first two panels issued by Medical Unit were invalid based on inability of selected physicians to schedule examination within 60 days of initial appointment request, that third panel was improperly issued as new qualified medical evaluator panel rather than replacement panel, which led to panel that included physician from prior panel, and that fourth panel was invalid due to defendant’s failure to submit timely strike from that panel, and, in determining proper remedy, WCAB reasoned that it has constitutional mandate under Cal. Const., art. XIV, § 4, to “accomplish substantial justice in all cases expeditiously, inexpensively, and without incumbrance of any character,” that two years elapsed since employee filed Application for Adjudication of Claim alleging that he suffered industrially-related prostate cancer through 11/30/2016 while working as fire captain, and during that time four medical panels were issued, employee passed away, and no evaluation regarding whether deceased employee suffered injury AOE/COE has occurred, and that given delays in moving case forward and obstacles in parties’ attempts to obtain valid qualified medical evaluator panel to evaluate claim, it was appropriate to order parties to agree to medical examiner or submit to evaluation by regular physician in lieu of returning parties to panel qualified medical evaluator process. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 1.11[3][g], 22.11[6], 26.03[4]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 16, § 16.54[6], Ch. 19, § 19.37.]

■ Juanita Ponce De Leon, Applicant v. Southern California Edison, PSI and self-administered, Defendant, 2019 Cal. Wrk. Comp. P.D. LEXIS 316

Medical-Legal Procedure—Self-Procured Medical-Legal Reports—WCAB, reversing WCJ’s decision, held that report obtained by applicant from consulting physician in rheumatology to address applicant’s claim of fibromyalgia that was not addressed by orthopedic panel qualified medical evaluator, was admissible evidence, as was report of applicant’s treating physician discussing consulting physician’s report, when WCAB, citing Valdez v. W.C.A.B. (2013) 57 Cal. 4th 1231, 164 Cal. Rptr. 3d 184, 312 P.3d 102, 78 Cal. Comp. Cases 1209, and Batten v. W.C.A.B. (2015) 241 Cal. App. 4th 1009, 194 Cal. Rptr. 3d 511, 80 Cal. Comp. Cases 1256, reasoned that Labor Code § 4064(d) expressly permits party to obtain medical consultation at party’s own expense, that although self-procured medical reports may not be obtained solely to rebut qualified medical evaluator’s opinion and cannot be sole basis of compensation award (Labor Code §§ 4061(i) and 4605), these reports are generally admissible for other purposes pursuant to Labor Code § 4605 and Batten, that here consulting physician’s report could not be characterized as rebuttal of panel qualified medical evaluator’s opinion because orthopedic panel qualified medical evaluator did not address applicant’s claimed injury in form of fibromyalgia, that, furthermore, consulting physician’s report was not offered by applicant to support award of compensation, nor did applicant seek to circumvent required procedure to obtain comprehensive medical evaluation to address disputed issue of fibromyalgia under Labor Code § 4062.2, that applicant attempted to use consulting physician’s report to avail herself of procedure to obtain medical evaluation regarding dispute over fibromyalgia claim through additional qualified medical evaluator panel in rheumatology, that consulting physician’s report was adopted and incorporated by applicant’s treating physician as required under Labor Code § 4605, and that, consequently, both consulting physician’s report and treating physician’s report discussing consulting physician’s report were admissible evidence. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 22.06[1][a], [6]-[8]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 16, § 16.51[6].]

■ Daniel Martinez, Applicant v. Consolidated Partitions, Markel Corporation of America, Southern Insurance, Zurich Insurance, Defendants, 2019 Cal. Wrk. Comp. P.D. LEXIS 415

Medical-Legal Procedure—Qualified Medical Evaluator Appointments—Office Location—WCAB affirmed WCJ’s finding that defendant was not entitled to replacement panel qualified medical evaluator after panel qualified medical evaluator Michel Henry, M.D., who had previously evaluated applicant’s injuries, moved her office from Oakland to Los Angeles, when WCAB reasoned that 8 Cal. Code Reg. § 34 permits qualified medical evaluator to schedule evaluations at another office that is within reasonable geographic distance from applicant’s residence, that because Dr. Henry previously evaluated applicant, she remains reporting panel qualified medical evaluator unless defendant establishes that Los Angeles is not reasonable geographic distance to travel for evaluation, that, as discussed in Esquivel v. W.C.A.B. (2009) 178 Cal. App. 4th 330, 100 Cal. Rptr. 3d 380, 74 Cal. Comp. Cases 1213, there is no definitive rule regarding what is considered to be within reasonable geographic distance or area within which employer ordinarily should bear risk of incurring liability in event employee incurs injury during travel, and determination must be made on case-by-case basis, with consideration of reasons for employee’s travel beyond reasonable geographic area, that in this case applicant’s travel to Los Angeles was reasonable given multiple evaluations performed by Dr. Henry since 2012, Dr. Henry’s appearance for deposition, statutory mandate to utilize previous medical evaluator, fact that applicant’s travel to Los Angeles was due to Dr. Henry’s office move and not by his own choosing, and defendant may control applicant’s means of transportation to and from appointments, and that defendant did not demonstrate that denial of replacement panel or permitting evaluation with Dr. Henry in Los Angeles caused significant prejudice or irreparable harm. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 22.11[5], [10]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 16, § 16.54[5], [10].]

■ Paul Ivison, Applicant v. Designed Metal Connections, Travelers Property Casualty Company of America, Defendants, 2019 Cal. Wrk. Comp. P.D. LEXIS 400

Medical-Legal Procedure—Vocational Expert Reports—Skype/Telephonic Evaluation—WCAB affirmed WCJ’s order requiring applicant residing outside of California to submit to vocational examination via Skype or telephonically, as set by defendant, when applicant obtained his own vocational evaluation telephonically and provided no basis as to why defendant could not use same mechanism to obtain rebuttal report, and WCAB reasoned that there is no requirement in Labor Code that examination occur in person or at certain time and/or location, and that applicant did not show that WCJ’s order compelling evaluation as set by defendant would cause significant prejudice or irreparable harm. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 22.08[7], 25.41[2]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 15, § 15.45[2].]

■ Valerie Dailey, Applicant v. Scripps Health, PSI, Defendant, 2019 Cal. Wrk. Comp. P.D. LEXIS 391

Medical-Legal Procedure—Admissibility of Qualified Medical Evaluator Reports—Replacement Panels—WCAB, rescinding WCJ’s decision, returned matter to WCJ for further development of record and further proceedings regarding whether applicant who suffered industrial injury to her neck and elbows while employed as surgical technician on 1/19/2010 and from 5/26/2009 through 1/19/2010 also suffered compensable consequence psychiatric injury, when WCAB reasoned that WCJ, in finding no compensable psychiatric injury, improperly excluded report of panel qualified medical evaluator Leine Delker, Ph.D., where report was obtained in compliance with Labor Code § 4062.2, and although Dr. Delker was replaced by new panel qualified medical evaluator at request of both parties based on Dr. Delker’s failure to issue timely supplemental report pursuant to 8 Cal. Code Reg. § 38(i), record did not reflect that either party objected to Dr. Delker continuing to act as qualified medical evaluator on any basis other than his failure to comply with 8 Cal. Code Reg. § 38(i), nor that parties agreed on whether Dr. Delker’s report would be admissible or submitted to replacement panel qualified medical evaluator, and WCAB concluded that, on this record, report must be admitted into evidence and considered by WCJ in deciding whether or not applicant suffered compensable psychiatric injury; WCAB further found that opinions of replacement panel qualified medical evaluator upon which WCJ relied in reaching his conclusions regarding compensability of applicant’s alleged psychiatric injury were not substantial evidence because replacement panel qualified medical evaluator did not review Dr. Delker’s report, which WCAB determined was legally obtained and admissible evidence. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 22.08[3], 22.11[6]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 16, §§ 16.51[6], 16.54[6].]

■ Robert Encinas, Applicant v. M. Gaw, Inc., dba Jet Sets, Enstar, Inc., Defendants, 2019 Cal. Wrk. Comp. P.D. LEXIS 427

Medical-Legal Procedure—Replacement Qualified Medical Evaluator Panels—Specialty Designation—WCAB, amending WCJ’s decision, held that defendant did not establish that chiropractic panel qualified medical evaluator was inappropriate specialist to evaluate applicant material handler’s claim for industrial injuries to his back, lower extremities, knees, nervous system, psyche, and internal system, and that Medical Director’s issuance of replacement panel in specialty of orthopedics was improper, when sole reason provided by Medical Director for finding chiropractic specialty to be inappropriate was applicant’s use of prescription medication, which chiropractor may not prescribe, but WCAB reasoned that chiropractor’s inability to prescribe medications was irrelevant because qualified medical evaluator may not provide treatment to injured worker while also acting as qualified medical evaluator or opine on any disputed medical treatment issues, and, therefore, Medical Director failed to give sufficient basis for finding chiropractor to be medically or otherwise inappropriate specialist for disputed medical issues in this matter, and, additionally, although WCJ opined that chiropractor was inappropriate specialist to address disputed medical issues due to complexity of applicant’s medical history, qualified medical evaluator, in this case chiropractor, must advise parties if there are issues outside his or her area of expertise so that parties may obtain additional panels; Commissioner Lowe, concurring separately, noted that although complexity of applicant’s medical history and potentially complicated issue of causation may have led Medical Director to conclude that orthopedic surgery panel was more medically appropriate to address disputed issues in this matter, Medical Director’s letter, referring only to applicant’s use of prescription medication as basis for finding chiropractor inappropriate, was not sufficient justification to issue new panel in orthopedic surgery. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 22.11[6], [7]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 16, § 16.54[6], [7].]

MEDICAL TREATMENT

■ Marsha Rosenblum, Applicant v. Lompoc Unified School District, PSI, Administered By Workers’ Compensation Administrators, Defendants, 2019 Cal. Wrk. Comp. P.D. LEXIS 288

Medical Treatment—Utilization Review—WCAB Jurisdiction—WCAB, amending WCJ’s decision, held that WCAB has no jurisdiction to determine necessity of medical treatment authorized by timely utilization review (UR) determination, when WCAB reasoned that contrary to defendant’s assertion, decision in Dubon v. World Restoration, Inc. (2014) 79 Cal. Comp. Cases 1298 (Appeals Board en banc opinion) (Dubon II), does not deprive WCAB of authority to order treatment approved by timely UR determination, because authorized medical treatment is not disputed treatment and there is no mechanism under Labor Code § 4610.5 for employee or employer to challenge treatment approved through UR, that although Labor Code § 4610(l) allows for deferral of UR while employer disputes liability for injury or treatment, here defendant did not dispute liability for hip replacement surgery to treat applicant’s 9/4/2008 right hip/groin injury until three days after defendant issued timely UR authorizing surgery, that there is no “alternative track” under Labor Code § 4062 for employer to dispute UR determination, and employer in this case could not bypass UR process and invoke this provision to dispute employee’s treatment request, and that when defendant approved requested treatment through UR, there was no further dispute as to necessity of treatment, and WCJ had jurisdiction to enforce authorized treatment and award hip surgery pursuant to authority vested by Labor Code §§ 5300(b) and 5304, which includes authority to award medical treatment that was specifically approved by employer either without UR or pursuant to UR determination. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 5.02[2][c], 22.05[6][b][iii]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 4, § 4.10[4].]

■ Diane Cecena, Applicant v. Walt Disney Company, PSI, Administered By Liberty Mutual Insurance Company, Defendants, 2019 Cal. Wrk. Comp. P.D. LEXIS 403

Medical Treatment—Independent Medical Review—Appeals—WCAB, affirming WCJ’s decision, held that independent medical review (IMR) determination upholding utilization review denial of prescription for Norco did not exceed powers of Administrative Director and was not result of plainly erroneous express or implied finding of fact that was matter of ordinary knowledge, when WCAB found applicant’s claim that IMR reviewer failed to follow Medical Treatment Utilization Schedule (MTUS) guidelines and likely misread primary treating physician’s reports tantamount to disagreement over interpretation of medical records, and reasoned that IMR reviewer in this case considered documents submitted and used his or her medical expertise to determine which standards within MTUS chronic pain and opioid guidelines were most relevant to disputed treatment request, that whether or not medical reports adequately addressed “four A’s” was medical determination that required medical expertise and not matter of ordinary knowledge, and that WCAB did not have jurisdiction to review medical reports and make determination of whether IMR reviewer in this case correctly concluded that treatment request failed to meet MTUS guideline criteria because medical records did not document compliance with “four A’s” of ongoing monitoring. [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.]

PERMANENT DISABILITY

■ Rafael Sandoval, Applicant v. The Conco Companies, Zurich Insurance Company, administered by Athens, Defendants, 2019 Cal. Wrk. Comp. P.D. LEXIS 299 [Petition for Writ of Review filed 9/4/2019]

Permanent Disability—Rating—Rebuttal of Scheduled Rating—WCAB affirmed WCJ’s findings that applicant suffered 100 percent permanent disability as result of 1/23/2015 admitted industrial injury to his cervical and lumbar spine while employed as iron worker, and that there was no basis for defendant’s objection to admissibility of applicant’s vocational expert report, when WCAB found that applicant was entitled to use vocational evidence to attempt to rebut permanent disability rating under permanent disability rating schedule, and rejected defendant’s assertion that changes in Labor Code § 4660.1, removing language regarding consideration of future diminished earning capacity, made vocational expert evidence irrelevant and inadmissible for post-1/1/2013 dates of injury, where amendment of Labor Code § 4660.1 did not eliminate adjustment factor but rather standardized factor to multiple of 1.4, which, according to WCAB, when read in context of Labor Code § 4660 and entire permanent disability scheme premised on AMA Guides, refers to diminished future earning capacity, and WCAB further concluded that WCJ’s finding of permanent total disability due to applicant’s inability to return to gainful employment or benefit from vocational rehabilitation was properly based on physical limitations described in medical record, reporting of applicant’s vocational expert, and applicant’s unrebutted testimony regarding his limitations. [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, Ch. 7.]

■ Mohammed Bagobri, Applicant v. AC Transit, PSI, Defendant, 2019 Cal. Wrk. Comp. P.D. LEXIS 384

Permanent Disability—Rating—Rebuttal of Scheduled Rating—WCAB affirmed WCJ’s finding that applicant bus driver sustained 100 percent permanent disability “in accordance with the fact” under Labor Code §§ 4660 and 4662(b), without basis for apportionment, as result of 3/24/2005 admitted industrial injuries to his lumbar spine, nose and psyche, when orthopedic agreed medical examiner and applicant’s vocational expert opined that applicant was unable to sustain gainful employment and had total loss of future earning capacity due to his industrial injuries, and WCAB rejected defendant’s assertion that holding in Dept. of Corrections & Rehabilitation v. W.C.A.B. (Fitzpatrick) (2018) 27 Cal. App. 5th 607, 238 Cal. Rptr. 3d 224, 83 Cal. Comp. Cases 1680, precluded finding of permanent total disability “in accordance with the fact” based on applicant’s work restrictions, and limited permanent total disability findings to whole person impairment ratings calculated pursuant to permanent disability rating schedule, when WCAB reasoned that 2005 Permanent Disability Rating Schedule (PDRS), which was issued pursuant to Labor Code § 4660, expressly defines permanent total disability as disability causing total loss of earning capacity, that because award of permanent disability based on injured worker’s inability to work/loss of earning capacity is consistent with Labor Code § 4660 and PDRS, holding in Fitzpatrick (i.e., that WCAB must follow PDRS in assigning permanent total disability, unless scheduled rating is rebutted), cannot be interpreted to preclude award of permanent total disability in cases of inability to work and must be limited to specific facts in that case, that interpreting Fitzpatrick to preclude award of permanent total disability where applicant is unable to work is further unjustified as such interpretation conflicts with all other published case law addressing issue, including decision in Ogilvie v. W.C.A.B. (2011) 197 Cal. App. 4th 1262, 129 Cal. Rptr. 3d 704, 76 Cal. Comp. Cases 624, that where applicant has lost all future earning capacity (and absent apportionment), WCAB must issue award of permanent total disability and may reference Labor Code § 4662(b), even though award, in fact, is issued pursuant to PDRS and Labor Code § 4660, that PDRS Future Earning Capacity tables were created for calculation of permanent partial disability and do not apply in cases of permanent total disability, that finding of permanent total disability “in accordance with the fact” can be based on medical evidence, vocational evidence or both, and that in this case there was substantial medical and vocational evidence to support finding of 100 percent permanent disability based on applicant’s work restrictions and preclusion from gainful employment. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 8.02[3], [4], 32.01[3][a][ii], 32.03A; Rassp & Herlick, California Workers’ Compensation Law, Ch. 7, §§ 7.05[3][d], 7.12[2][a], [d][iii], 7.42[2]; The Lawyer’s Guide to the AMA Guides and California Workers’ Compensation, Ch. 7.]

Permanent Disability—Apportionment—Preexisting Conditions—WCAB, affirming WCJ’s decision, held that applicant bus driver suffered 100 percent permanent disability as result of 3/24/2005 admitted industrial injuries to his lumbar spine, nose and psyche, and that there was no basis for apportionment pursuant to Labor Code § 4663, when WCAB found that apportionment was not justified where evidence indicated that applicant’s failed back surgery related to his industrial injury was sole cause of his inability to work and participate in vocational rehabilitation, and that evidence provided by defendant indicating that applicant had nonindustrial conditions that put him at greater risk of sustaining permanent total disability was insufficient to meet defendant’s burden of proving apportionment to nonindustrial factors. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 8.05[1]-[3], 8.06[1], [4], 8.07[1]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 7, §§ 7.40, 7.41, 7.42; The Lawyer’s Guide to the AMA Guides and California Workers’ Compensation, Ch. 8.]

PETITIONS FOR RECONSIDERATION

■ Daniel Martinez, Applicant v. Consolidated Partitions, Markel Corporation of America, Southern Insurance, Zurich Insurance, Defendants, 2019 Cal. Wrk. Comp. P.D. LEXIS 415

Petitions for Reconsideration—Reconsideration vs. Removal—Hybrid Decisions—WCAB found that WCJ’s decision in this case was final and subject to reconsideration rather than removal because decision contained finding on threshold issue, but because defendant only challenged interlocutory finding/order in WCJ’s decision, WCAB applied removal standard to affirm WCJ’s decision; WCAB explained that where party challenges “hybrid” decision by WCJ, i.e., decision with findings regarding both threshold issues (those subject to reconsideration) and interlocutory issues (those subject to removal), petition seeking relief is treated as petition for reconsideration because decision resolves threshold issue; however, if petition challenging hybrid decision only disputes WCJ’s determination regarding interlocutory issues, WCAB will evaluate issues raised by petition based on removal standard applicable to non-final decisions, i.e., significant prejudice or irreparable harm. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 1.11[3][g], 26.03[4], 28.04, 28.25; Rassp & Herlick, California Workers’ Compensation Law, Ch. 19, §§ 19.01, 19.37.]

PSYCHIATRIC INJURIES

■ Tiffany Merritt, Applicant v. CDCR-California Institute for Women, Legally Uninsured, Adjusted By State Compensation Insurance Fund, Defendants, 2019 Cal. Wrk. Comp. P.D. LEXIS 420

Psychiatric Injury—Good Faith Personnel Actions—WCAB affirmed WCJ’s finding that applicant did not sustain injury AOE/COE to her psyche while working for defendant as office technician through 8/12/2017, when defendant met burden of proving that applicant’s injury was substantially caused by lawful, nondiscriminatory good faith personnel action pursuant to Labor Code § 3208.3(h); in finding that defendant established good faith personnel action defense, WCAB noted that 25 percent of applicant’s injury was caused by defendant stripping applicant of her job responsibilities and tasks, 10 percent of injury was caused by defendant taking applicant’s keys away, and remaining 65 percent of applicant’s injury was caused by transfer to new department, as determined by panel qualified medical evaluator, and WCAB reasoned that where defendant raises good faith personnel action defense under Labor Code § 3208.3(h), as defendant did here, WCJ must determine whether employment events causing psychiatric injury were “personnel actions,” that not all employment events constitute personnel actions under Labor Code § 3208.3, and recognizing distinction between psychiatric injury caused by stressful working conditions and injury caused by good faith, nondiscriminatory personnel actions directed specifically towards individual’s employment status is important and necessary because, without distinction, phrase “personnel action” would encompass everything in employment environment that stems from good faith management actions, that WCAB panel’s contrary view in Schultz v. W.C.A.B. (1998) 63 Cal. Comp. Cases 222 (writ denied), is overly broad and is not adopted here, that in this case, first two employment events described by panel qualified medical evaluator were not personnel actions since record did not reflect that either defendant’s alleged stripping of applicant’s responsibilities nor defendant’s taking of applicant’s keys was action directed towards applicant’s employment status, but transferring applicant to new department was personnel action, and, based on evidence, was lawful, nondiscriminatory and in good faith, and predominantly caused applicant’s psychiatric injury. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 4.02[3][a], [b], [f], 4.69[3][a], [b], [d]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 10, § 10.06[3][b], [d].]

SETTLEMENTS

■ Lily Lopez, Applicant v. St. Paschal Baylon Catholic Church, administered by York Risk Services Group, Defendants, 2019 Cal. Wrk. Comp. P.D. LEXIS 342

Settlements—Compromise and Release Agreements—Medicare Set-Aside—WCAB rescinded WCJ’s order nullifying parties’ Compromise and Release agreement based on parties’ alleged mutual mistake in failing to address Medicare Set-Aside (MSA) and Centers for Medicare & Medicaid Services (CMS) approval, and WCAB returned matter to trial level for further proceedings, when WCAB, citing Alvarenga v. Scope Industries (2016) 81 Cal. Comp. Cases 850 (Appeals Board noteworthy panel decision), found that there was no mutual mistake as determined by WCJ because CMS does not require review of any MSAs, but rather recommends review under certain conditions, that, as in Alvarenga, evidence in this matter was unclear regarding whether applicant was adequately advised of effect of parties’ failure to conduct CMS review of MSA, and, on that basis, WCJ’s decision must be rescinded, and that if, upon return to trial level, parties wish to enter into Compromise and Release with MSA arrangement without obtaining CMS review, applicant should be advised of potential impact to her future Medicare benefits if CMS deems settlement to be inadequate. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 29.09[3][b]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 18, §§ 18.01[3], 18.07.]

STATUTE OF LIMITATIONS

■ Catherina De Lay, Applicant v. California Insurance Guarantee Association for Superior National, in liquidation, Dignity Health, PSI, Travelers, Defendants, 2019 Cal. Wrk. Comp. P.D. LEXIS 260 [In October 2019 CCC, see De Lay v. California Insurance Guarantee Association (2019) 84 Cal. Comp. Cases 934 (Appeals Board noteworthy panel decision)]

Statute of Limitations—Successive Injuries—Furnishing of Benefits—WCAB rescinded WCJ’s finding that California Insurance Guarantee Association’s (CIGA) 1/20/2011 Application for Adjudication of Claim (Application) requesting reimbursement from Dignity Health (Dignity) as “other insurance” for benefits paid in connection with applicant’s 1/28/2002 back injury pursuant to 2001 Award, was barred by statute of limitations in Labor Code § 5405 because Dignity last paid benefits to applicant in 2002, and WCAB returned matter to trial level for further proceedings regarding timeliness of 2011 Application based on principles set forth in Plotnick v. W.C.A.B. (1970) 1 Cal. 3d 622, 463 P.2d 387, 83 Cal. Rptr. 163, 35 Cal. Comp. Cases 13, when applicant suffered successive industrial back injuries between 1994 and 2012, and, based on medical evidence, medical treatment provided by CIGA following 2002 specific injury may have been provided to relieve applicant from effects of injuries for which Dignity (and potentially Travelers) was liable, and WCAB reasoned that in cases of successive injuries where multiple injuries contributed to need for medical treatment and/or temporary disability indemnity, insurers or self-insured employers are jointly and severally liable for those benefits, that in situations of joint and several liability between defendants, statute of limitations runs from last payment of any compensation no matter which defendant made payment, that because parties stipulated that CIGA paid medical benefits within one year of filing 2011 Application, statute of limitations in this case may have run from last payment of compensation by CIGA and, therefore, Application may have been timely filed within one year of provision of medical treatment to relieve applicant from effects of her injuries pursuant to Labor Code § 5405(c), and that it was necessary to return matter to WCJ to consider holding in Plotnick (and other relevant case law) to determine whether CIGA’s Application was timely. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 24.04; Rassp & Herlick, California Workers’ Compensation Law, Ch. 14, § 14.03.]

STIPULATIONS

■ Guy Lee, Applicant v. UOP/McGeorge School of Law, Subsequent Injuries Benefits Trust Fund, Defendants, 2019 Cal. Wrk. Comp. P.D. LEXIS 374

Subsequent Injuries Benefits Trust Fund—Threshold Requirements for Entitlement to Benefits—Stipulations—WCAB affirmed WCJ’s finding that applicant janitor failed to establish entitlement to benefits from Subsequent Injuries Benefits Trust Fund (SIBTF) under Labor Code § 4751, notwithstanding parties’ 3/23/2011 stipulated award of 35 percent permanent disability for 5/11/2005 carpal tunnel injury, when stipulated award included stipulation that applicant dismissed all claims alleging sleep disturbance, sexual dysfunction and psychiatric injury, and WCAB found that applicant was bound to stipulated dismissal of these claims for purposes of determining his eligibility for SIBTF benefits, that despite stipulation to 35 percent disability, proper method for computing permanent disability pursuant to Labor Code § 4751 is to adjust each component of subsequent injury for diminished future earning capacity and then add resulting components, and that in this case, adding compensable components of permanent disability attributable to applicant’s subsequent injury resulted in lower total permanent disability than stipulated amount, which in turn was less than required threshold for eligibility for SIBTF benefits under Labor Code § 4751. [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.]

SUBSEQUENT INJURIES BENEFITS TRUST FUND

■ Christopher Kudelka, Applicant v. City of Costa Mesa, PSI, administered by Adminsure Ontario, Subsequent Injuries Benefits Trust Fund, 2019 Cal. Wrk. Comp. P.D. LEXIS 436

Subsequent Injuries Benefits Trust Fund—Threshold Requirements for Entitlement to Benefits—Combining Multiple Disabilities—WCAB affirmed WCJ’s finding that applicant firefighter suffered permanent total disability as result of industrial heart injury (aortic valve replacement) from 1/13/84 to 1/22/2007 and injury to multiple body parts, including cardiovascular system, from 1/13/84 to 5/2/2013, and held that applicant was entitled to benefits from Subsequent Injuries Benefits Trust Fund (SIBTF) under Labor Code § 4751, when WCAB found that applicant’s prior heart injury, for which he received stipulated award of 36 percent permanent disability, was labor-disabling based on opinion of agreed medical evaluator and on applicant’s testimony, that there was no evidence that applicant rehabilitated himself or that his condition improved following valve replacement, that injury underlying prior award (aortic valve replacement) was separate injury from subsequent hypertensive cardiovascular injury for which applicant received 76 percent permanent disability award, and that combination of prior and subsequent disabilities was greater than that which would have resulted from subsequent injury alone and exceeded 70 percent requirement under statute; WCAB further determined that pursuant to Labor Code § 4751 and Court of Appeal’s holding in Bookout v. W.C.A.B. (1976) 62 Cal. App. 3d 214, 132 Cal. Rptr. 864, 41 Cal. Comp. Cases 595, WCJ properly added applicant’s prior and subsequent disabilities to determine overall combined disability, rather than using Combined Values Chart (CVC), where WCAB reasoned that CVC was intended to address overlap of disabilities resulting from single injuries, not disabilities resulting from separate injuries, and that using CVC to combine rating of pre-existing disability with rating of subsequent disability would result in improper reduction of SIBTF benefits. [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.]

■ Victoria Enriquez, Applicant v. County of Santa Barbara, PSI, Subsequent Injuries Benefits Trust Fund, 2019 Cal. Wrk. Comp. P.D. LEXIS 265

Subsequent Injuries Benefits Trust Fund—Prior Labor-Disabling Conditions—WCAB rescinded WCJ’s finding that applicant was entitled to benefits from Subsequent Injuries Benefits Trust Fund (SIBTF) pursuant to Labor Code § 4751, and returned matter to trial level for further proceedings so that record could be developed regarding whether applicant had any labor-disabling permanent disability at time of her industrial injury and amount of any such disability, when WCJ’s finding that applicant was entitled to SIBTF benefits was based on WCAB’s apportionment (in prior decision) of 40 percent of applicant’s permanent total disability from subsequent injury to other factors under Labor Code § 4663, but WCAB reasoned that finding of apportionment under current (or former) Labor Code § 4663 is not correlated to SIBTF liability, so while apportionment could previously be made only to labor-disabling disability (former Labor Code § 4750) or to natural progression of pre-existing condition (former Labor Code § 4663), under current Labor Code § 4663 apportionment can be made to any factor causing permanent disability, including labor-disabling conditions and natural progression of pre-existing condition, pathology, asymptomatic prior condition, and retroactive prophylactic work preclusion, and, therefore, finding that applicant had 40 percent disability apportionable to other factors pursuant to current Labor Code § 4663 was in no way tantamount to finding that applicant had 40 percent (or any) labor-disabling permanent disability at time of industrial 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.]

■ Carol Workman, Applicant v. St. Theresa/St. Joseph School, PSI and adjusted by LWP Claims Solutions, Defendants, 2019 Cal. Wrk. Comp. P.D. LEXIS 362

Subsequent Injuries Benefits Trust Fund—Threshold Requirements for Entitlement to Benefits—WCAB, reversing WCJ’s decision, held that applicant who suffered industrial injury to both shoulders while working as facility maintenance person during period ending on 12/1/2011, and also had preexisting right shoulder impairment from prior work injury and arthritis, was entitled to benefits from Subsequent Injuries Benefits Trust Fund (SIBTF), when applicant’s 12/1/2011 injury resulted in 3 percent whole person impairment to each shoulder, which was 6 percent whole person impairment after impairments were combined, and WCAB found that pursuant to Subsequent Injuries Fund v. W.C.A.B. (Post) (1976) 41 Cal. Comp. Cases 436 (writ denied), applicant was permitted to combine impairments from subsequent work injury that included opposite and corresponding member to establish 5 percent threshold for entitlement to SIBTF benefits under Labor Code § 4751(a), that applicant also met other requirements of Labor Code § 4751 for SIBTF liability, and, additionally, that if diminished future earning capacity adjustment factor is applied to applicant’s left shoulder whole person impairment before adjustment for occupation or age, impairment would be 4.5 percent, which rounds up to 5 percent minimum required for entitlement to SIBTF benefits. [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

■ Jorge Hernandez, Applicant v. Burgerim, State Farm Rancho Cordova, Sedgwick 3110 Rancho Cordova, Defendants, 2019 Cal. Wrk. Comp. P.D. LEXIS 392

Supplemental Job Displacement Benefits—Settlement—WCAB, denying defendant’s Petition for Removal, affirmed WCJ’s decision declining to approve Compromise and Release agreement that included language WCJ viewed as impermissible settlement of supplemental job displacement benefits (SJDB), when proposed language stated, “Parties agree that the applicant is not entitled to the SJDB Voucher and Applicant understands that such Voucher will not be issued,” and WCAB found that, although record in this case did not demonstrate that applicant would be entitled to SJDB, Labor Code § 4658.7(g) and 8 Cal. Code Reg. § 10133.31(h) specifically prohibit settlement of SJDB by compromise and release, and WCAB was not persuaded by defendant’s assertion that proposed language was not intended to settle SJDB, nor that WCJ’s decision caused significant prejudice or irreparable harm so as to justify removal. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 35.01, 35.02; Rassp & Herlick, California Workers’ Compensation Law, Ch. 21, §§ 21.01, 21.02.]