Powell v. Fatte’s Pizza (2016 Cal. Wrk. Comp. LEXIS P.D. 133) (BPD):

 

Defendant filed a petition to dismiss for lack of prosecution. Defendant filed a Declaration of Readiness to proceed on the issue of dismissal only.

The matter proceeded to hearing before the Worker’s Compensation Judge who issued an order denying defendant’s petition to dismiss applicants claim for lack of prosecution because applicant did not receive the required notice of intention to dismiss or hearing notice and defendant did not serve applicant all known addresses or utilize alternative methods of notifying applicant as suggested by the WCJ.

The WCAB granted removal to in the judge’s dismissal order which indicated that defendant reactivated the case by filing a declaration of readiness to proceed and would have to wait one year before filing the petition for dismissal for lack of prosecution.

The WCAB concluded that filing a declaration of readiness to proceed solely limited to dismissal pursuant to a petition to dismiss does not serve to activate the case regarding other issues.

Santa Clara Valley Transportation Authority v. WCAB (W/D) (81 CCC 382):

Applicant sustained an admitted injury to his low back.

EDD paid applicant disability payments at the rate of $568 covering the period from March 20, 2014 through May 28, 2014, for a total $2300.

Defendants also paid temporary disability benefits and $2300 for the same period.

Subsequently, the case-in-chief was settled by Stipulation’s with a disability rating of 46%, which took into account 15% non-industrial apportionment. The apportionment was based on the reporting of the Agreed Medical Evaluator.

At the time of settlement, EDD requested that it’s a lien against applicant’s permanent disability in the amount of $2,300.00 be deducted from applicant’s recovery.

Defendants agreed to pay, just or litigate EDD’s lien on applicant’s behalf.

The WCJ approved the settlement and ratified the apportionment found by the Agreed Medical Evaluator.

The WCJ awarded EDD, following a hearing, $2,300.00 from permanent disability owed the applicant because the applicant was awarded permanent disability.

Defendant sought reconsideration, contending in relevant part that, prior to 1993, Labor Code §4904 did not allow EDD to claim a lien against permanent disability advances, and that after 1993 §4904 was amended to allow EDD to assert a lien against permanent disability. Defendant contended, however that, pursuant to the Legislative changes, EDD is allowed the lien against overlapping PD benefits only to the extent that EDD’s payment or solely from the same injury or illness. Defendants contended that, because applicant’s permanent disability had been apportioned, the permanent disability payments were not for the same injury or illness for which EDD paid benefits.

Defendant also contended that EDD it failed to establish the injury or illness from which they had paid benefits to applicant, but that, assuming that EDD benefits had been paid in connection with applicant’s low back condition, that condition had been apportioned to nonindustrial causes and that, therefore EDD could not claim and its payments were so we do to the industrial injury at issue.

Defendant continued that Labor Code §4904 was meant to prevent duplicate compensation, and that the amendments to the Code Section recognize that PD and TD serve different purposes, that TD compensated for wage loss, where PD compensated for the loss of future earning capacity, and that Labor Code §4904 (b) acknowledged that PD was subject to apportionment whereas TD was not.

Defendant stated that, when an applicant’s award of PD was reduced by apportionment, it would be fundamentally unfair to allow applicant’s award to be further reduced by EDD’s lien claim.

The WCJ recommended that reconsideration be denied. The WCJ indicated in relevant part that the Legislative intent apparent in Labor Code §§4903 and 4904 was an employee was not to recover under both the unemployment benefits program and the worker’s compensation program for the same wage loss, whatever the reason for the wage loss. The WCJ further indicated that the law was, that EDD paid benefits for the same day’s applicant also received TD benefits, and that EDD was, therefore entitled to reimbursement in the total amount of $2,300.00, payable by defendant.

The WCAB granted reconsideration because defendant raised the issue that EDD did not offer any testimony or evidence at trial to support its lien. Without any evidence in the record and without any express stipulation as to compensability of EDD’s lien the WCAB could not find a lean compensable. They did recon and return the matter to the trial level to develop the record on this issue.

The WCAB noted that defendant’s primary argument was that EDD was not entitled to a lien when PD disability have been apportioned. The WCAB indicated that defendants misinterpreted the laws resulting solely from the same injury or illness in Labor Code §4904 (b) (1) as requiring that EDD liens come from and on apportioned award of permanent disability indemnity. The WCAB indicated Labor Code §4904 (b) require only that EDD lien attached to the same injury or illness for which permanent disability was awarded.

The WCAB added that defendants had improperly confused the two concepts of causation and apportionment. The defendant improperly concluded that 15% of the cause of applicant’s permanent disability was nonindustrial, therefore the cause of applicant’s injury that resulted in EDD benefits was also 15% nonindustrial. Such an assumption is incorrect.

The WCAB stated that causation of injury is not apportionable. However, it is possible in appropriate circumstances to apportion causation of disability. The WCJ concluded that the fact that applicants PD had been apportioned to nonindustrial causes had no bearing on whether EDD was entitled to reimbursement on its lien.

The writ was denied.

Rancaneli v. Farmers Insurance Group (BPD) (2016 Cal. Wrk. Com. P.D. LEXIS 134):

 

The WCJ held that the Employment Development Department was not entitled to recover benefits paid to applicant’s insurance adjuster, when EDD’s payments, although they overlapped with retroactive permanent disability awarded and applicants workers compensation case, were only for nonindustrial conditions and were not related to applicant’s industrial injury.

The WCAB found that Labor Code § 4904 (b) (1) allows for reimbursement of benefits paid by EDD for workers’ compensation permanent disability award resulting solely from the same injury or illness.

Based on the language in Labor Code §4904(b)(1) the Legislature did not contemplate reimbursement of EDD liens in situation where the condition which prompted payment of the disability was independent of the condition or injury from which workers comp was awarded.

Even if there was arguably overlapped some disability between applicant’s industrial condition and his nonindustrial condition, applicant did not file a workers’ compensation claim for the nonindustrial condition, and there is no question that EDD’s payments to applicant were not solely the result of the same injury or illness which is subject to the industrial claim so as to justify award of reimbursement pursuant to Labor Code §4904(b)(1).

 Perez v. Universe Facilities (BPD) (2016 Cal. Wrk. Comp. P.D. LEXIS 101):

 

This case holds that the lien Statute of Limitations pursuant to Labor Code §4903.5 (a) requires that the lien be received by the WCAB within the time frame set forth in the Code Section or the case is barred by the Statute of Limitations.

In this case lien claimant served their lien upon defendants. The lien was filed with the WCAB or six years after the date of last medical treatment.

The WCAB held the lien was not timely even though was served on the opposing party. The WCAB held liens are deemed filed only on the date they are received by the WCAB.

Ozuma v. Kern County Superintendent of Schools (BPD) (2016 Cal. Wrk. Comp. P.D. LEXIS 98)

 

The WCJ denied full reimbursement of the lien of a photocopy service because there was no evidence that the Agreed Medical Evaluator reviewed all of the copied records.  Lien claimant filed a petition for reconsideration.

The WCAB held there is no requirement that it lien claimant prove that each of the records that it copied was specifically relied on to resolve any issue in dispute in order to have a valid lien claim for copying the records.  Photocopying is compensable if it was reasonably undertaken in an effort to discover information that is relevant are potentially relevant to the case.

Compensation may be claimed even if the service of a subpoena yields no records because that fact is itself information that may be relevant to an attorney’s evaluation and understanding of the case.

The matter was remanded to determine the reasonable fee for the services.

Torok v. County of San Diego (BPD) (2018 Cal. Wrk. Comp. P.D. LEXIS 6)

 

The Workers Compensation Judge issued an order disallowing a lien for back surgery by a private healthcare plan before applicant filed a claim with the employer.

The lien claimant filed a Petition for Reconsideration that was granted by the Appeals Board which remanded the matter for the taking of further evidence. The WCAB held there was no evidence lien claimant knew or should have known that the treatment was provided for a work-related condition.

The WCAB noted that pursuant to Labor Code §4903.1 (b), if the medical treatment provider “either knew or in the exercise of reasonable diligence should have known that the condition being treated was caused by the employers present or prior employment,” the medical treatment provider could not recover from either the injured worker or the employer and unless specified exceptions were met.

The Appeals Board held that the defendant had the initial burden of establishing that either the applicant or the lien claimant had knowledge of industrial injury prior to surgery.

The WCAB remanded the matter for the WCJ to determine the dates of knowledge and whether lien claimant could recover pursuant to Labor Code §4903.1.

Ramirez v. Rancho Harvest (BPD) (83 CCC399:

 

The WCJ found lien claimant, interpreting service entitled to $1,905.00 for services rendered prior to January 1, 2003 and not entitled payment for services rendered after January 1, 2003.

The WCJ applied Regulation 9795 for the interpreter fees prior January 1, 2013. The WCJ then ruled that although 9795 would not normally be considered a fee schedule these provisions do provide for fees for interpreters. The WCJ then ruled that interpreter bills after January 1, 2003 are subject to IBR and lien claimant did not file for second review and therefore was bound by the first bill review.

Lien claimant and defendant filed Petitions for Reconsideration. The WCAB found that lien claimant was entitled to the $1,905.00 for services provided prior to January 1, 2013 and deferred the issue of lien claimant’s entitlement to fees after January 1, 2013 and returned the matter to the trial level.

The WCAB stated that Labor Code §4600 (g), which was enacted effective January 1, 2013 provides that the administrative director shall adopt a fee schedule for interpreter services in accordance with this section. A fee schedule for interpreter services has not been adopted pursuant to the authority granted by this section.

Labor Code §§4603.2, 4603.3 and 4603.6 provides for the system for payment of medical treatment bills per the fee schedule and provides for bill review, second review an independent medical review.

Rule 9795 sets forth the medical-legal fee schedule, provides that the schedule of fees set forth in that section shall be prima facie evidence of the reasonableness of fees charged for medical-legal evaluation reports and fees for medical-legal testimony.

The WCAB stated that even if they were to construe rule 9795.3 as a “fee schedule”, because the rule pre-dates SB 863, it was not adopted as an applicable fee schedule for purposes of IBR.

Therefore, disputes or fees under rule 9795.3 are not subject IBR.

The WCAB then indicated they are returning the matter to the trial level for the WCJ to determine the amount due lien claimant for services rendered after January 1, 2013. As to defendant’s argument regarding the statute of limitations the Appeals Board stated that defendant’s contention that lien is barred by the statute of limitations relies on the premise that billing disputes for services rendered after January 1, 2013 or subject IBR. Because the disputes are not subject IBR, the lien was timely filed.

Pedro Hernandez v. Henkel Loctite Corporation; Zurich American Ins. Co., administrated by Zurich North America (Appeals Board en banc)(___CCC____):

On December 29, 2017, a WCJ issued a Findings of Fact wherein she found that lien claimant Monrovia Memorial Hospital (lien claimant) is not barred from proceeding on its lien in the above captioned matter due to a “dismissal” notation in the Electronic Adjudication Management System (EAMS) pursuant to Jose Guillermina Rodriguez v. Garden Planting Co., et al. (2017) 82 Cal.Comp.Cases 1390 (Appeals Bd. en banc).

The WCJ then found that lien claimant had until the close of business at 5:00 p.m. on Monday, July 3, 2017 to file a lien claim declaration pursuant to Labor Code section 4903.05.

Defendant contends that lien claimant’s lien is dismissed by operation of law because its §4903.05(c) declaration was not timely filed before the close of business, i.e., 5:00 p.m., on Friday, June 30, 2017 pursuant to §4903.05, subsection (c)(2); and because it was unsigned in violation of subsection (c)(3).

Rodriguez held Lien claimants who filed declarations pursuant to §4903.05(c) and WCAB Rule 10770.7 on July 1, 2 and 3, 2017 may proceed to litigate liens pending an evidentiary finding that the declaration was not timely filed.

The Appeals board noted that Rodriguez did not address whether or not §4903.05(c) declarations filed after the close of business at 5:00 p.m. on Friday, June 30, 2017, through the close of business at 5:00 p.m. on Monday July 3, 2017, were timely filed.

Labor Code §4903.05(c)(2) states that lien claimants “shall have until July 1, 2017” to file the declaration identified in Labor Code section 4903.05(c)(1), thereby establishing the last date for performance of an act required by statute as July 1, 2017, a Saturday.

When the last date for performance of an act required by any workers’ compensation statute falls on a weekend or holiday, “the act or response may be performed or exercised upon the next business day.” (Cal. Code Regs., tit. 8, § 10508; see Code Civ. Proc., § 12a(a) and Gov. Code, § 6707.)

Section 4903.05(c)(2) states that lien claimants “shall have until July 1, 2017” to file the declaration identified in §4903.05(c)(1), thereby establishing the last date for performance of an act required by statute as Saturday, July 1, 2017.

Given that July 1, 2017 fell on a Saturday, lien claimant had until 5:00 p.m. on Monday, July 3, 2017 to file the declaration. (See Code Civ. Proc., §§ 12, 12a, 12b; Gov. Code, § 6707; and Cal. Code Regs., tit. 8, §§ 10508, 10392.) It is undisputed that lien claimant succeeded in filing the declaration before 5:00 p.m. on Monday, July 3, 2017. Therefore, lien claimant’s Supplemental Lien Form and Section 4903.05(c) Declaration was timely filed.

The Appeals Board not address the merits of defendant’s contention that an electronics signature is insufficient to comply with §4903.05(c)(3) because the issue was deferred by the WCJ.

The WCAB did note that their rules require all liens, including the supportive required documentation, to be electronically filed on an e-form approved by the Appeals Board and submitted by the Administrative Director’s electronic filing or JET-filing procedures. (Cal. Code Regs., tit. 8, § 10770(b)(1)(A), (B), and (C)(i).) The Administrative Director’s approved electronic filing technical requirements allow the use of an “S Signature,” which shall be “rebuttably presumed to be that of the individual whose name is on the document signature line.” (BR-16 S Signatures; Guide, p. 42.)

  1. Lopez v. City of San Francisco (BPD) (44 CWC 140):

Applicant, a police officer, sustained an admitted industrial injury to his low back.

The defendants primary treating physician requested defendant authorize a consultation with a spinal surgeon.

The consulting physician, in a detailed report, indicated the applicant needed surgery and submitted an RFA for x-rays and disc replacement and fusion surgery, which the consulting physician would himself perform.

Defendant received the RFA the same day, August 3, 2015. Defendant issued a UR denial on August 12, 2015. The consulting surgeon submit an internal UR appeal which was denied.

The primary treating physician submitted an RFA for the surgery recommended by the consulting physician which defendant did not submit to UR, apparently relying on the prior denial of the RFA of the consulting surgeon.

The matter proceeded to expedited hearing on the issue of timeliness of the utilization review.

Defendant contended that the consulting physician was not a secondary treating physician and that it had no obligation to submit his RFA to its UR reviewer.

The WCJ ruled the consulting surgeon, acting at the direction of the PTP, could properly submit an RFA as a secondary treating physician and the defendant had an affirmative obligation to conduct a timely UR of the request.

Because the review was not timely, the WCAB determined that she had jurisdiction to determine medical necessity. She found based on the facts before her, substantial medical evidence supported the reasonable medical necessity of both the x-rays and the surgery.

Defendant filed a petition for reconsideration.

The WCAB’s decision was affirmed.

The panel noted that the statutory provisions in the Labor Code that instituted UR do not specify that the physician requesting authorization must be the PTP.

 

The AD, consistent with authority from the Legislature, through the statutory provisions, has implemented rules to further the purpose of UR. Among those rules is 9792.6 .1 (t), which applies to dates of injury after January 1, 2013, and requires that an RFA set forth on a specified form and be completed by a treating physician.

The RFA must specifically identify the requested treatment and be accompanied by a report or reports substantiating the need for the requested treatment. In addition, rule 9792.6.1(t)(3) mandates that a treating physician (not necessarily a PTP must sign an RFA).

In this case, however, the Board noted that the date of injury is March 13, 2012, before the 2013 rules came applicable. The Board however indicated the analysis remains the same.

A.D. rule 9792.9 applied and it refers to requesting physicians and does not specify or distinguish whether a primary or secondary physician must issue the RFA. In addition, rule 9785 defines a primary treating physician as the physician primarily responsible for managing the medical care for an injured worker and rule 9785 (a) (2) defines secondary treating physician as a physician other than the primary treating physician who examines or provides treatment to the employee but is not primarily responsible for continuing management of the care the employee.

The Board rejected defendant’s contention that the PTP’s role as defined in the Rules does not allow delegation of the PTP’s duties including the power to issue RFAs. The panel points to prior Appeals Board decisions that have determined that request by a secondary physician trigger a defendant’s obligation to timely do UR. (DeRosa 43 CWC are 38).

In the DeRosa case the Board relied on the absence of statutory authority requiring a PTP to issue an RFA to overturn a WCJ’s determination that a defendant was not obligated to submit a secondary treating physician’s RFA to UR.

In subsequent cases the Board has seen an affirmative obligation to submit secondary treating physician’s RFAs to UR.

The central issue in those cases, as in the instant case, was whether a PTP’s referral to a consultant made the consultant a secondary treating physician. Those cases decided the question in the affirmative, importantly noting that the consultants affirmatively undertook to care for the patient, including performing the actual surgery. The panel could identify only one contrary decision, distinguishable as based on a factual discrepancy whereby applicant could not prove that the secondary physician submitted the RFA to defendant or that, in submitting the request, the secondary physician use the proper form.

The Board concluded that because the consulting surgeon was enlisted to evaluate applicant’s need for surgery and to perform said surgery if necessary, he qualified as a secondary treating physician under rule 9785(a)(2). Applicant’s primary treating physician, a pain medicine specialist, recognize the need for specialist to evaluate and perform surgery if medically necessary. The consulting physician accepted that treatment role.

The panel further concluded there is no express requirement in the Labor Code, or the rules, that an RFA may only be submitted by a primary treating physician, there is little support for the contention that an RFA submitted by a secondary treating physician can be disregarded and not submitted to UR.

Therefore, in this case the Board concluded the defendant failed to timely conduct UR of the secondary treating physician report which then open the door to the WCJ to assert jurisdiction over medical treatment.

Because defendant did not challenge the reasonable medical necessity of the treatment on reconsideration, the Board affirmed the WCJ.

In an editor’s note it was pointed out correctly that the rules dealing with injuries on or after January 1, 2014 apply not only to injuries on or after that date but also earlier injuries of the RFA decision was communicated after July 1, 2013 which was in this case. The result would not have changed had the Board come to this conclusion.

  1. Bissett-Garcia v. Peace and Joy Center (BPD) (44 CWCR 112):

Applicant sustained an admitted injury to her bilateral upper extremities and shoulders.

The case was settled by Compromise and Release with open future medical care.

Prior to the approval of the agreement, applicant’s primary treating physician communicated to defense counsel that applicant required home assistance with activities of daily living of eight hours a day seven days a week for cooking, cleaning, self-grooming and transportation.

The request did not appear on the DWC form RFA required by A.D. rule 9792.9.1 or a substitute described in A.D. rule 9792.9.1 (c) (2) (B).

Nevertheless, defense counsel sent the report to UR and non-certification issued on September 17, 2016.

The UR denial stated that the reviewer had left a message for the physician on both the afternoon of September 16, 2015, and the morning of September 17, 2015. As a result of a telephone call between applicant’s counsel and the reviewer, a second denial issued on October 2, 2015, this one stating the reviewer had successfully communicated with the physician on September 17, 2015, informing him about the reasoning for the denial.

Applicants attorney contested the validity of the UR decision.

The WCJ held that the September 17, 2015 UR had not been timely communicated because it had not recited the content of the telephone call between the reviewer and the primary treating physician.

Defendant filed a petition for reconsideration.

The WCAB observed that there does not appear to be any requirement that a utilization review denial recite the contents of a telephone conference between the reviewer and the treating physician, and explain the rationale behind the utilization review decision.

Even assuming such requirement existed, said the panel, that requirement would be subsumed under the “material procedural defect” rule and would not, consistent with the en banc decision in Dubon II constitute a valid reason to overturn a UR determination.

Dubon II held that the Board has jurisdiction over a UR determination only if the determination was untimely. The decision squarely retracted the proposition that any procedural defect other than timeliness vested the WCAB with jurisdiction to review the propriety of a utilization review denial.

The panel added that the WCJ’s determination that the lack of denial and the UR decision regarding the conversation between the reviewer in the primary treating physican rendered it defective, is too closely related to the reasoning rejected in Dubon II.  the WCJ’s decision if it were to stand, would implicitly resurrect the material procedural defect theory rejected in Dubon II.

The WCAB stated that the UR determination had been timely made within five business days of its communication to the defendant and timely served, and so became reviewable under the IMR process.

The WCAB held that the determination dated September 17, 2015, had been timely and the WCAB lacked jurisdiction to review it.

This case appears to hold that a failure to communicate the UR denial to the medical provider within 24 hours is not a timeliness issue but a procedural issue. This case appears to be contrary to other cases including Bodam that held timeliness requires that the UR be timely conducted and timely communicated within 24 hours to the provider by phone, or fax and two days in writing to applicant, applicant’s attorney and the physician.

  1. California Highway Patrol v. WCAB (Margaris) (Court of Appeal) (___CCC____):

Labor Code §4610.6(d) provides that the organization conducting the IMR shall complete its review and make its determination in writing within 30 days of the receipt of the request for review and supporting documentation, or within less time as prescribed by the administrative director.

The issue presented in this case was whether the Appeals Board was correct in concluding that an IMR determination that issued after the 30-day period is invalid in thereby this jurisdiction with the Appeals Board decide whether the proposal is medically necessary and appropriate.

The court indicated their analysis turns, in large part, and whether the language of the Statute is mandatory-such that a failure to comply with the Statute’s directive renders the resulting government action invalid, or merely directory.

The Court of Appeal disagreed with the Appeals Board and concluded the 30-day time limit in Labor Code §4610.6 (d), is directory and, accordingly, an untimely IMR determination is valid and binding upon the parties as the final determination of the director. The Court of Appeal indicated their interpretation of the Statute in this manner is consistent with long-standing case law regarding the mandatory-directory dichotomy, and implements the Legislature’s stated policy the decisions regarding the necessity and appropriateness of medical treatment should be made by doctors, not judges. They therefore annul the decision of the Appeals Board and remanded the matter for further proceedings.

The facts of the case show that the treating physician submitted a request for authorization in the form of a lumbar epidural injection. The utilization review timely denied the request. Applicant requested independent medical review. State Fund sent the necessary medical records to Maximus Federal Services for review on November 26, 2014. January 8, 2015, Maximus issued its IMR determination, upholding the denial of the proposed medical termination. The IMR determination became the determination of the director as a matter of law. (Labor Code §4610 (g)) The applicant’s attorney appealed the IMR determination to the Appeals Board, which was directed to be heard by a WCJ.

The WCJ, at the hearing, agreed the IMR determination was issued 13 days late, but nevertheless found the determination was valid and binding on the parties, concluding that an untimely IMR determination does not confer jurisdiction on the Appeals Board to decide any medical treatment issue. Applicant filed a petition for reconsideration which was granted by the Appeals Board and found that the WCAB did have jurisdiction and there was substantial evidence to support the treatment. One panel member dissented and would have found the IMR determination, though untimely, was valid and binding on the parties. A petition for writ of review was filed.

The Court of Appeal first discussed the legislative enactments pertaining to the evaluation of an injured worker’s request for authorization of medical treatment. They specifically review the legislation regarding utilization review and the Sandhagen case and the injured worker’s opportunity to challenge an adverse utilization review determination by independent medical review.

The Court of Appeal then indicated that Labor Code §4610.6(d), provides that the organization performing the independent medical review “shall complete its review and make its determination in writing, and in layperson’s terms to the maximum extent practicable, within 30 days of the receipt of the request for review and supporting documentation, or within less time as prescribed by the administrative director…. Subject to the approval of the Administrative Director, the deadlines for analysis and determinations involving both regular and expedited reviews may be extended for up to three days and extraordinary circumstances or for good cause. The parties dispute the meaning and effect of the word “shall” in this provision.

According to the Appeals Board, “shall” is mandatory and any IMR determination issued after the 30-day time frame is necessarily invalid. The Appeals Board concluded that construing “shall” is mandatory, such that an untimely IMR determination is invalid, comports with both the ordinary meaning in the statutory definition of “shall.”

The Court of Appeal indicated that in statutes directing government action “shall” may be used in two different ways: the mandatory, directory context, or the mandatory-permissive context. The court noted that, in mandatory-permissive context, the term mandatory refers to an obligatory procedure which a government entity is required to follow as opposed to a permissive procedure which a government entity may or may not as it chooses. By contrast, the directory mandatory designation does not refer to whether a particular statutory requirement is permissive or obligatory, but instead simply denotes whether the failure to comply with a particular procedural step will or will not have the effect of invalidating the government action to which the procedural requirement relates. In other words, where a government action is mandatory and the obligatory-permissive sense and the government fails to act, the government can be compelled (mandated) to act in accordance with the statute. But where a government action is mandatory and the mandatory-directory and the government fails to act, it effectively loses jurisdiction to act in accordance with the statute.

Generally, time limits applicable to government action are deemed to be directory unless the legislator clearly expresses a contrary intent. In ascertaining probable intent, California courts have expressed a variety of tests. In some cases, focus has been directed at the likely consequences of holding a particular time limitation mandatory, in an attempt to ascertain whether those consequences would defeat or promote the purpose of the enactment. Other cases have suggested that a time limitation is deemed merely directory unless a consequence or penalty is provided for failure to do the act within the time command. Applying either of these tests the court concluded that the Legislature intended the 30-day provision in section 4610.6 (d), to have a directory, rather than a mandatory, effect.

As noted, statutory time limits are usually deemed to be directory in the absence of a penalty or consequence for noncompliance. Statute setting forth time frames for government actions that do not include a self-executing consequence are almost universally construed to be directory, rather than mandatory or jurisdictional.

The court then applying the analysis to the present case concluded that the 30-day period provided in Labor Code 4610.6(d) is directory, rather than mandatory and jurisdictional. Neither Section 4610.5, which relates to the initiation of IMR, nor Section 4610.6, which relates to the execution of IMR, provides any consequence or penalty in the event the IMR organization, under the auspices of the director, fails to issue an IMR determination within the 30-period.  Moreover, the Legislature provided that the exclusive means to challenge an IMR determination is by appeal, and expressly limited the grounds upon which any appeal may proceed. Notably, untimeliness of the IMR determinations is not one of the statutory grounds for appeal. The absence of a penalty or consequence for failure to comply with the 30-day time limit, coupled with the limited grounds for appeal, indicate the Legislature did not intend to develop the director of jurisdiction to issue an IMR determination after the 30-day window expires.

The court went on to indicate that construing the 30-day provision as directory furthers the legislative objective of S.B. 863.  In S.B. 863 made express findings regarding the purpose of IMR. First, it found the prior system of dispute resolution concerning an injured worker’s core request for medical treatment did not uniformly result in the provision of treatment that adhere to the highest standards of evidence-based medicine, adversely affected the health and safety of workers injured in the course of employment. By creating IMR, a system in which medical professionals ultimately determine the necessity of requested treatment, the Legislature intended to further the social policy of the state in reference to using evidence-based medicine provide injured workers with the highest quality of medical care.

Further, the Legislature observed that the prior system of dispute resolution, the process of appointing qualified medical evaluators to examine patients and resolve disputes was not only costly and time-consuming, but it prolonged disputes and caused delays in the medical treatment for injured workers. The Legislature also noted that the use of medical evaluators hired by the parties often resulted in bias on the part of the examiners, and therefore found that the independent and unbiased medical expertise of specialists was necessary to ensure timely and medically sound determinations of disputes over appropriate medical treatment.

The Court of Appeal concluded from these findings that the Legislature intended to remove the authority to make decisions about medical necessity of the proposed treatment for injured workers from the Appeals Board and place it in the hands of independent, unbiased medical professionals. Construing section 4610.6 (d) as directory best furthers the Legislature’s intent in this regard. The Appeals Board’s conclusion in this case that an ultimately untimely IMR determination terminates the IMR process and vest jurisdiction in the Appeals Board’s to determine medical said necessity is wholly inconsistent with the legislator stated goals and their evident intent.

Other provisions of S.B. 863 support the conclusion that the Legislature did not intend compliance within the time limits in section 4610.6 (d) to effectively devist the director of jurisdiction to conduct IMR. Labor Code section 4604 provides that controversies between employer and employee arising under this chapter shall be determined by the Appeals Board, upon request of either party, except as otherwise provided by section 4610.5. Labor Code section 4062 provides that if the employee objects to a decision based pursuant to section 46 tend to modify, delay, deny a request for authorization of medical treatment recommendation made by a treating physician, the objection shall be resolved in accordance with the independent medical review process established in 4610.5. Taken together, these enactments remove disputes over the medical necessity of requested treatment from the jurisdiction of the Appeals Board, at least in so far as they are within the scope of section 4610.5.

Further the Legislature provided that the IMR determination is presumptively correct and appeal is strictly limited. Further, even if an appeal from an IMR determination is successful, the case does not go to the Appeals Board for its review, instead, successful appeal results in a second IMR. The statutory provisions further indicate the Legislature intended to limit the jurisdiction of the appeals Board to determine medical necessity a proposed treatment.

Finally, and perhaps most tellingly, the Legislature provided that in no event shall a worker’s compensation administrative law judge, the Appeals Board, or any higher court make a determination of medical necessity contrary to the determination of the independent medical review organization. (4610.6 (i)) the court found this portion of the statute, particularly the use the phrase “in no event”, to be a frank expression of the Legislature’s desire to remove the issue of medical necessity a proposed treatment from the jurisdiction of the Appeals Board in all cases subject to IMR. The Legislature’s intent would be defeated by giving section 4610.6 (d), mandatory effect, as the Appeals Board did in the present case.

As to the issue raised by the applicant’s attorney that the primary goal was the applicant receive prompt medical treatment, the Court of Appeal stated that the statutory construction adopted by the Appeals Board would not reduce delay; it will perpetuate the time-consuming litigation process Legislature set out to eliminate. The court pointed out that in this case Maximus issued the IMR decision 79 days after the UR determination and 13 days after the 30-day time frame however, the Appeals Board did not render its decision until 13 months after the UR rejected the treatment and more than 10 months after Maximus render the IMR determination.

The court indicated they found no evidence in the statute or legislative history to indicate the Legislature intended to vest the director of jurisdiction to conduct IMR simply because the IMR determination is untimely.

Furthermore, the court said in construing the 30-day time frame provided in section 4610.6 (d) as mandatory would lead to absurd results. Specifically, the Legislature has provided that weren’t applicant successfully challenges and IMR determination on appeal, the remedy is a second IMR determination by a different IMR organization, or by a different reviewer at the same organization. Thus, even if an IMR is procured by fraud or affected by conflict of interest on the part of the reviewer, the applicant is only entitled to a new IMR and cannot litigate the issue of medical necessity before the Appeals Board.  Meanwhile, under the Appeals Board construction, an injured worker who receives an untimely IMR determination would be required in every case to engage in costly and time-consuming litigation before the Appeals Board, even if the IMR determination is only one daylight and authorizes the requested treatment. We do not believe the Legislature would sanction such an outcome.

The court went on to indicate that an injured worker may bring a petition for writ of mandate to compel the director to issue an IMR determination. The Legislature created a duty on the part of the director and to ensure that IMR determinations are timely provided to injured workers seeking to overturn their employer’s adverse utilization review determinations. They therefore presumed that when the Legislature Legislature enacted S.B. 863 it was aware of Code of Civil Procedure section 1085 and its availability to compel administrative agency action. The court found no indication that the Legislature intended to bar injured workers from seeking to compel the director to fill his or her statutory obligation to render IMR determination. They therefore held that to the extent the director fails to render an IMR determination within the time frame provided by 4610.6 (d), fails to ensure the IMR organization complies with the applicable statutes and regulations, a writ of mandate under Code of Civil Procedure 1085 will lie, in appropriate circumstances, to compel the directors to issue an IMR determination.

The decision of the Appeals Board after reconsideration was annulled. The matter was remanded with instructions to cut duck further proceedings consistent with this decision.

  1. De Guevara v. La Golondrina BPD) (2016 Cal. Wrk. Comp. P.D. LEXIS 84):

 

The evidence established that the applicant called five doctors from the MPN list who did not accept her as a patient. The WCAB ruled that the five phone calls did not meet applicant’s burden of proof that the applicant was denied medical care and therefore entitled to treat outside defendant’s MPN.

The WCAB took note of the fact that there were more and 65 doctors within 15 miles of applicant’s ZIP Code who are qualified to treat her for her condition. The WCAB found that her efforts to contact only five of the doctors did not shift the burden to the defendants to establish that reasonable treatment was available within the MPN.

An additional important issue appeared to be that the applicant did not avail herself of the medical access assistance available pursuant to Labor Code § 4616 (a) (5). The WCAB appeared to have a problem with allowing treatment outside the defendant’s MPN when the applicant did not avail themselves of this service.

 

  1. Romero v. Stones and Tradition(SCIF) (BPD) (44 CWCR 91):

The WCJ found a UR decision dated September 14, 2015 was timely as to two treatment modalities but was untimely as to oxycodone and H-wave supplies. The WCJ found that the oxycodone and H-wave supplies are reasonable necessary to cure from applicant’s injury.

Defendant filed a petition for reconsideration. The Board stated that Labor Code §4610(g)(1) requires that prospective or concurrent UR decisions shall be made in a timely fashion not to exceed five working days from receipt of the information reasonably necessary to make that determination, but in no event more than 14 days from the date of the medical treatment recommendation by the physician.

The Board stated that Labor Code § 4610 (g) (1) provides two alternative timelines within which the Utilization review determination must be made.

AD rule 9792.9 .1 states a request for authorization must be made on a DWC Form RFA. Rule 9792.9 .1 (c) provides that the UR timeframe is extended when additional information is requested necessitating an extension under subdivision (f).

Rule 9792.9 .1 (f) (1) (A) provides that once an RFA is submitted the timeframe for UR decision may be extended if the claims administrator or reviewer is not in receipt of all the information reasonably necessary to make a determination.

In cases where additional information is necessary, a reviewer or non-physician reviewer shall request the information from the treating physician within five business days from receipt of the request for authorization. Once the additional information is requested, if the additional information requested is not received within 14 days from the receipt of the completed request for authorization for prospective or concurrent review the reviewer cell deny the request with the stated condition the request will be considered upon receipt of the information.

Dubon v. World Restoration (Appeals Board en banc) (79 CCC 1298 held that when the UR determination is timely made, Independent Medical Review is the sole mechanism for reviewing the UR physician expert opinion regarding the medical necessity of propose procedure.

The WCJ found the August 12, 2015 UR decision was timely and the WCAB upheld that decision. The WCAB found therefore defendant was not aggrieved by this decision.

The September 14, 2015 UR decision was a perspective review of four different treatment modalities. UR physician requested additional information pertaining to two of the treatment modalities and issued a decision within 14 days as required by Labor Code 4610. The WCJ reason that the UR decision should have issued a decision regarding the two treatment modalities for which no additional information was required within five days.

The WCAB provides that an RFA triggers the timelines for completing utilization review and does not contemplate different timelines for different treatment request within an RFA. Accordingly, the September 14, 2015 UR decision is timely as to all modalities requested five the RFA.

The WCAB reversed found that the applicant was not entitled to treatment denied by the August 12, 2015 utilization review.

  1. Beltran v. Structural Steel Fabrications (BPD) (2016 Cal. Wrk. P.D. LEXIS __):

Defendant, seeks reconsideration of an Order Approving Compromise and Release in which a Worker’s Compensation Judge approved the Compromise and Release Agreement but added language stating that “parties may not settle or commute SJDB per LC §4658.7(g) and CCR §10133.31 (h).  The order effectively disallowed the parties’ agreement to settle any claim applicant may have to a Supplemental Job Displacement Benefit Voucher pursuant to Labor Code §4658.7.

Defendant contends that they are permitted to settle the Supplemental Job Displacement Benefit voucher were a good faith dispute exists could potentially defeat applicant’s entitlement to all worker’s compensation benefits.

The WCAB held that where the parties establish there is a good faith dispute which, if resolved against the applicant, would defeat his entitlement to all workers’ compensation benefits, applicant may settle his claim by a Compromise and Release Agreement that also settles his potential right to the Supplemental Job Displacement Voucher.

The WCAB found that in this case the parties establish that a good faith dispute exists.

Labor Code §4658.7(g) provides that settlement or commutation of a claim for the supplemental job displacement benefit shall not be permitted.

Defendant argues that where there is a good faith dispute of compensability of a claim of injury, the party should be permitted to settle applicant’s entitlement to the Supplemental Job Displacement Benefit voucher, analogizing to the situation which existed with respect to the settlement of vocational rehabilitation benefits pursuant to the case of Thomas v. Sports Chalet (42 CCC 625). Labor Code §5100.6 provided that the Appeals Board shall not permit the commutation or settlement of compensation indemnity payments or other benefits to which the employee is entitled under rehabilitation.

In Thomas the WCAB concluded that the statutory prohibition against the settlement of vocational rehabilitation benefits did not preclude the approval of a Compromise and Release Agreement that provided for a complete release of vocational rehabilitation benefits, the Appeals Board relying upon the policy favoring settlement of disputed cases.

The WCAB concluded that the prohibition against settlement of the Supplemental Job Displacement Benefit voucher is analogous to the prohibition against settlement of vocational rehabilitation benefits, which Thomas held could be resolved in a Compromise and Release Agreement only where a serious and good faith issue exists, which if resolved against the applicant would defeat all right to compensation.

An injured worker’s entitlement to the Supplemental Job Displacement Benefit voucher is conditioned upon both the acceptance of liability for a claimed industrial injury by the employer and the existence of permanent partial disability, or a determination of these issues after trial. Where an employer denies liability and raises an affirmative defense that could potentially defeat all right compensation, a prohibition or settlement of the Supplemental Job Displacement Benefit voucher would require a trial to determine injury and the existence of permanent partial disability in every case. The Board in Thomas recognize that that would result in (effectively doing away with settlements) despite the existence of good faith disputes that could totally bar recovery.

The WCAB held, that has in Thomas, where the trier fact makes an express finding based upon the record that there is a serious and good faith issue that exists to justify a release, a compromise and release agreement may be approved by the Board which will relieve the employer from liability for the Supplemental Job Displacement voucher.

The parties in the Compromise and Release in this case set forth the basis for an express finding that is serious and good faith issue exists that would justify the release of the Supplemental Job Displacement Benefit voucher. Defendant cited its affirmative defense under Labor Code §3600 (a) (10), that applicant did not give notice of his injury, and did not file his claim, until after his employment was terminated for cause, while applicant contended that he did give notice prior to his termination. This affirmative defense, if so found by a trier of fact, would far applicant’s recovery for all workers’ compensation benefits.

The Board concluded that a review of the record demonstrated the existence of a good faith dispute over applicant’s entitlement to Supplemental Job Benefit voucher, such that the party settlement of that benefit should be approved.

  1. Volk v. Little Company (BPD) (44 CWCR 164:

The applicant was evaluated by a psychiatric PQME.

The applicant’s attorney requested an order compelling the deposition of the Qualified Medical Evaluator in the presence of the injured worker. Applicant argued an absolute right to be present in any deposition related to his case and that is exclusion would be a deprivation of due process.

The WCJ denied the petition without prejudice. In the ruling the judge noted the Qualified Medical Evaluator had not refused to be deposed, but had declined to do so if the applicant were present.

The WCJ open the door for the applicant to file a new petition to be addressed at a subsequent hearing, but applicant chose to petition the Board for removal, without however, serving the petition on the Qualified Medical Evaluator.

The WCJ first emphasized the applicant’s failure to serve the petition for removal on the Qualified Medical Evaluator was in itself a denial of due process that was enough to support a denial of removal. The applicant seeking to compel the appearance of the applicant at the deposition of the physician directly affected his rights.

The WCJ then discussed the physician’s declination to have his deposition taken with the applicant present reasoning that the PQME’s objection may have been to protect applicant, as many psychiatric medical-legal evaluators include admonitory language in their reports regarding affirmative steps to avoid applicants direct access to the report. According to the judge, the evaluator, in his reports, had commented that it would be potentially medically devastating to applicant to be present to hear the physician answer questions about the applicant’s medical health.

The WCJ disagreed with the crux of applicant’s argument for removal because there is neither statutory or case law unambiguously against his position therefore he must prevail. The WCJ cited CCP §2025.420 which discusses judicial authority to impose reasonable protective orders.

Specifically, the WCJ observed, the court has the power to determine that a deposition not be taken at all and to compel the scope of questioning. The WCJ stated that applicant’s reliance on CCP § 2025.420 (b) (12), which states that persons other than the parties to the action and their officers and counsel can be excluded from a deposition, struck the WCJ as an absolutist view of the subsection, at odds with the preceding subsections, which indicate the courts have the power to either in a reasonable protective orders and mandate that a deposition take place by interrogatories or not take place at all. The WCJ concluded that applicant’s argument that he had an absolute right to be present at the deposition was inconsistent with the overall language of CCP 2025.420.

The WCAB denied removal concluding the applicant had not proved that substantial prejudice or irreparable harm would result from his exclusion from the

  1. Sanchez v. Grapevine Catering (BPD) (2016 Cal. Wrk. Comp. P.D. LEXIS 136)

The defendant issued a delay letter. The applicant requested a panel QME pursuant to Labor Code § 4060 within the 90-day investigation. Pursuant to Labor Code § 5402 (b).

The defendants objected to the panel.

The WCAB concluded that Rule 30(d)(1) states that a defendant may request a QME panel during the 90-day period to investigate the claim pursuant to Labor Code §5402 (b).

The WCAB went on to state the Labor Code and rules were silent regarding the applicant’s right to request a panel.

The WCAB ruled the Medical Unit incorrectly interpreted rule 30(d)(1) as limiting the right to request a panel to the employer or insurer during the 90-day investigation.

The WCAB stated that such an interpretation would conflict with Labor Code § 4060, which states that a medical evaluation required to determine compensability at any time after the filing of a claim form shall be obtained pursuant to Labor Code § 4062.2. The section indicates “at any time” after filing a claim form. The WCAB further stated that Labor Code §4062.2 states that either party may request the assignment of a three-member panel of qualified medical evaluators to conduct a comprehensive medical evaluation.

The WCAB concluded that interpreting rule 30(d)(1) to allow only the defendant but not applicant to request a QME panel during the investigation would be invalid.

  1. Parker v. DSC Logistics (BPD) (2016 Cal. Wrk. P.D. LEXIS:

 

The applicant filed the first application on May 7, 2014. Defendant filed an answer denying injury.

On September 11, 2014 applicant filed two additional applications.

The party litigants in all three cases are identical and the parts of body alleged to have been injured overlap.

A panel of Qualified Medical Evaluators issued in the parties selected a Qualified Medical Evaluator following the striking procedure who evaluated the applicant on on January 9, 2015 and issued a report of the same date.

On February 23, 2015 the Applicant requested the issuance of two additional panels from the DWC medical unit regarding the two subsequently filed applications.

The medical unit issued two new panels.

Defendants filed a petition to vacate the two panels.

The WCJ issued an order denying defendant’s petition to vacate QME panels.

Defendant filed a Petition for Reconsideration.

Defendant contends that the factual circumstances are distinguishable from the “Navarro” case and that Labor Code 4062.3 requires the Qualified Medical Evaluator already selected should evaluate the applicant for all injuries and additional panels should not have issued.

Defendant argues that a QME was properly selected and because applicant filed three separate claims of injury prior to the physician’s evaluation, the Qualified Medical Evaluator is required to evaluate for all three claims.

The WCAB stated that Labor Code section 4060 (a), (c), and (d) all referred to a single claim form, injury or claimed injury and require that any medical-legal evaluations to determine compensability of that injury or claimed injury occur under the procedure provided for in Labor Code 4062.1.

Labor Code §§ 4062.3 (j) and 4064 (a) require the medical-legal evaluation to address “all medical issues arising from all injuries reported on one or more claim forms” while section 4064 (a) differs from 4062.3 (j) in that it does not include the phrase, “prior to the date of the employee’s initial appointment with the medical evaluator,” such requirement is clearly included by reference because the claim of injury must of been reported. A claim of injury is “reported” under section 5401 when the employee files the claim form with the employer.

Thus, the “reported date” under Labor Code §§4062.3 (j) and 4064 (a) is the filing date of the claim form under Labor Code 5401. The date of filing a claim form determines which injury claims must be considered by the medical-legal evaluator.

Labor Code §4062.3(k) provides if, after a medical evaluation is prepared, the employer or employee subsequently objects to any new medical issues, the parties, to the extent possible, shall utilize the same medical evaluator who prepared the previous evaluation to resolve the medical dispute.

Labor Code §4067 applies to those matters in which the jurisdiction of the Appeals Board is invoked by the filing of a Petition to Reopen on the grounds that the effects of the injury have recurred, increased, diminished or terminated.  Where there is already been a medical evaluation and other evaluation is needed pursuant to Labor Code 4067, the subsequent evaluation must be conducted by the same QME or AME who previously evaluated.

Labor Code §§ 4062.3 (k) and 4067 generally direct the employee to return to the same medical-legal evaluator who conducted the previous evaluation and prepared a report when a new medical issue arises related to the previously reported and evaluated injury claims.

The Navarro case makes clear that the QME is required to address all contested medical issues arising from all injuries reported on one or more claim forms prior to the initial QME evaluation. That case after reviewing all the relevant labor code sections concluded that the Labor Code requires that all medical-legal evaluations be obtained as set forth pursuant to sections 4062.1 or 4062.2 and that the Labor Code requires that an evaluator discuss all medical issues arising from all report claims of injury at the time of the evaluation.

The WCAB in that case further determined then in the case of subsequently filed claims of injury, a claim of injury filed after the initial QME evaluation, the Labor Code does not require an employee to return to the original evaluator, even when the subsequent claim of injury involves the same body parts in the same parties. The Board held that Rule 35.5(e) was invalid to the extent it imposes the additional requirement that an employee return to the same evaluator when a new injury or illness’s claim that involves the same body parts in the same parties.

The WCAB in this case stated that the applicant filed three separate applications, and defendant disputed each of them. Each of those application was filed prior to the evaluation by the QME. Thus, section 4062.3 (j) and Rule 35(c) (1) require the QME to address each claim of injury is part of his evaluation of the applicant.

The WCJ aired when he denied defendants petition to vacate the QME panels. The Board consistent with Navarro granted reconsideration and rescinded the WCJ’s order and issued a new order directing the medical-legal evaluation of the disputed medical issues in all three cases be conducted by the are ready chosen Qualified Medical Evaluator.

Iniguez v. WCAB (Court of Appeal, Not Published) (45 CWCR 93) (82 CCC 310: 

 

Applicant claimed an industrial injury on April 5, 2010 to his head, and, back, both shoulders and lower extremities.

 

In March 2011 the applicant was evaluated by a panel Qualified Medical Evaluator in Orthopedic Surgery found injury to applicants left knee, right shoulder and low back. The physician concluded the low back strain had basically resolved but found a 70% apportionment to the industrial back injury.

 

When the Qualified Medical Evaluator prepared his report in 2011 he was not given 2010 electro-diagnostic evidence of the nerve damage.

 

On re-evaluating the applicant in August 2013, the evaluator found radiculopathy in the neck and low back.

 

At a pretrial conference in November 2011 the issue of injury arising out of and occurring in the course of employment was raised, along with the ancillary issue regarding reporting and notice. Parts of the body injured were not specified, nor were they delineated at the trial on February 13, 2012, at which applicant testified to shoulder and knee problems.

 

The Worker’s Compensation Judge on February 24, 2012 found the applicant sustained injury to his left shoulder and right knee but there was no finding that they were the only parts of the body that were injured. The WCJ held the matter was not barred either by Labor Code §§3600(a)(10) or 5400.

 

 

 

Any further trial in May 2015, injury to other body parts was raised, including neck, back, and sleep disorder. The WCJ found injury to only the shoulder and knee, holding that although the neck and back had been claimed in 2011, those body parts were not mentioned at the initial trial. Because no petition for reconsideration had been filed, the 2012 findings had become final and the claim for back and neck injury was barred by collateral estoppel and was deemed to have been adversely decided pursuant to Labor Code §5815.

 

The applicant filed a petition for reconsideration and the WCJ recommended denying reconsideration adding res judicata as a basis for precluding the neck and back claim.

 

The WCAB in a two to one decision adopted, incorporated and affirmed the judge’s decision, noting that by not seeking reconsideration of the 2012 findings, applicant waived his later claim of the neck and back injury.

 

The dissenting Commissioner would have rescinded the judge’s decision and remanded the case to revisit the body parts issue for two reasons: (1) that the 2012 decision violated Labor Code §5313 by failing to resolve all body parts claim, and (2) that by adding res judicata, a different theory, to her recommendation, the WCJ arrived applicant to process. The dissent also disagreed with the judge’s reasoning that was up to applicant to correct the 2012 decision by seeking reconsideration.

 

Applicant filed a petition for writ of review which was granted by the Court of Appeal.

 

The Court of Appeal granted review and an annulled the decision of the WCAB.

 

While the case was before the appellate court, the Board admitted that its decision on reconsideration had been erroneous.

 

The court began by noting that the injury to specific body parts was not an issue listed decision before the 2012 hearing, the purpose of which was to decide threshold issues, leaving for later proceedings the determination of the nature of the injuries.

 

Nevertheless, the WCJ found in 2012 that industrial injuries the shoulder and knee have been sustained.

 

Contrary to defendant’s contentions that this determination was a finding of no injury to the back and neck, the WCJ did not hold that the shoulder and knee were the only industrial injury suffered. If so, the case would’ve ended, but it is clear to all that it was far from over in 2012, since parts of body injured was an issue at the 2015 hearing, no objection from defendant.

 

The court expressed no doubt that the 2012 determination by the WCJ was not a final award, with preclusive effect by a collateral estoppel or res judicata.

 

A decision that injuries to the right shoulder and left knee were the only industrial injuries was in fact never made in 2012; that’s it is pointless to consider whether it had a pretty act.

 

The court strongly agreed with the Boards present position that a finding of industrial injury to certain body parts does not bar applicant from presenting evidence of injury to other body parts at a subsequent proceeding

 

The court accepted the Boards request to annul the decision and to remand the printer hearing

 

County of Riverside v. WCAB (Sylves) (Court of Appeal, published) (82 CCC 4 ):

 

From December 12, 1998 to October 28, 2010 applicant was employed by the County as a deputy sheriff. He took his retirement and then work for the Pauma Police Department on a reservation belonging to the Pauma Band of Indians, which is a federally recognized Indian tribe. He was employed by the Pauma Common Pleas Department from December 28, 2010 through July 4, 2014.

 

The applicant filed an application for adjudication of claim on July 16, 2014. The applicant claimed a continuous trauma injury in the form of hypertension, GERD, left shoulder, low back and both knees.

 

On July 16, 2015 the Workers Compensation Judge issued a findings of fact. The WCJ found pursuant to Labor Code §5500.5, applicant’s continuous trauma is limited to last year of injurious exposure, even if it was with the Pauma Tribal Police. The WCJ found that applicants knee and left shoulder injuries GERD and sleep disorder were not compensable injuries arising out of employment. The WCJ found the applicant’s hypertension and back were compensable and rose out of his employment with the County of Riverside.

 

The County of Riverside and the Applicant filed petitions for reconsideration.

 

The WCAB granted reconsideration study and issued a decision after reconsideration finding substantial medical evidence of industrial injury to applicants left shoulder, bilateral knees, GERD and sleep disorder.

 

With respect to the statute of limitations, the WCAB found that the time in which to file a claim did not begin to run until a doctor told the applicant’s symptoms for which he had been receiving medical treatment were industrially related. The medical confirmation did not occur until 2013 and therefore the filing of the application in 2014 was timely.

 

The WCAB further found that Labor Code §5500.5 is not a statute of limitation but provides for a supplemental proceeding in which multiple defendants have an opportunity to portioned liability.

 

The WCAB agreed with the applicant that Labor Code §5500.5 cannot limit liability to the Pauma Police Department in this case because the WCAB lacks jurisdiction over the tribe.

 

 

 

The WCAB found that applicant while employed during the period December 27, 1998 through October 28, 2010, as a deputy sheriff, by the County of Riverside, sustained injury arising out of occur in the course of his employment in the form of hypertension, injuries to the lower back, left shoulder, both needs, GERD and sleep disorder, as well as the fact that the County failed to meet its burden of proof on the statute of limitations defense raised.

 

A petition for writ of review was filed.

 

The Court of Appeal stated that the applicant was required to file his application for adjudication of claim within one year the date of injury. The date of injury and accumulative injury case shall be the date set forth in Labor Code §5412. The date of injury pursuant to Labor Code §5412 is the date upon which the employee first suffered disability and either new or in the exercise of reasonable diligence should have known that such disability was caused by his present or prior employment.  The county has the burden of proof on the issue.

 

Citing the City of Fresno (163 Cal App 3d 467) stated the applicant will not be charged with knowledge that his disability is job-related without medical evidence to that effect and less the nature the disability and applicants training, intelligence and qualifications are such that the applicant should recognize the relationship between the known adverse factors involved in his employment and his disability.

 

In this case the facts established that the doctors first told applicant’s medical condition was related to employment within one year of his filing an application for adjudication of claim. The applicant did not receive an opinion that his condition was work-related until 2013. Therefore, the finding of the appeals Board is based on substantial evidence.

 

5500.5 allows an employee to select one or more employers against whom to proceed, and then permitting, any employer held liable under the award may institute proceedings before the appeals Board for the purpose of determining an apportionment of liability or right of contribution.

 

The purpose of the one-year limitation period in 5500.5 was to alleviate the difficulties encountered by the parties in complying with the requirements of former section 5500.5 whereby employees and their attorneys were frequently compelled to expend much time, effort and money in tracing applicant’s employment history over the entire course of his adult life. Limiting the liability of the defendants and worker’s compensation case is not the same as prescribing the time in which the case can be filed. Labor Code §5500.5 does not relate to the statute of limitations for filing an application for adjudication of claim.

 

The second issue the Court of Appeal dealt with was the issue of Labor Code §5500.5. Labor Code §5500.5 states that liability for occupational disease or cumulative injury claims shall be limited to those employers who employ the employee during a one-year period immediately preceding either the date of injury pursuant to section 5412 or the last date on which the employee was employed in occupation exposing him or her to the hazards of the occupational disease or cumulative injury, whichever occurs first.

 

The Court of Appeal found that the WCAB did not violate section 5500 (a) when it imposed liability on the county.

 

It is undisputed that the applicant was employed by the Pauma Police Department and not the County of Riverside for the period December 28, 2010 through July 4, 2014 and that the applicant did not have another employer after that time.

The court assumed that the job with the Pauma Police Department was injurious.   The court went on to indicate the applicant’s date of injury did not occur until 2013, when the doctors first told the applicant that his ailment was industrially related.

 

Therefore, the indicated it appears the liability was limited to the Pauma Police Department.

 

However, the Court stated this result does not follow in this case for two reasons. First the WCAB noted that the Pauma Police Department is not a party, and no claim has been made as to it.

 

Section 5500.5 expedite matters by allowing a claimant to proceed against one or a small number of employers or carriers, while still allowing those employers and carriers to join and seek contribution from other employers and carriers. What it does not do is allow the County to diminish, restrict or alter in any way the recovery previously allowed the employee or his dependence.

 

Labor Code §5500.5(a) provides in the event that none of the employers during the last year of occupational disease or cumulative injury are insured for worker’s compensation coverage or an approved alternative thereof, liability shall be imposed upon the last year of employment exposing the employee to the hazards of the occupational disease or cumulative injury for which an employer is insured for worker’s compensation coverage or an approved alternative.

 

The County does not contest that the Pauma Police Department belongs to a federally recognized Indian tribe, and the answers in the record both indicate this is in fact so. The WCAB lacks jurisdiction over federally recognized Indian tribes.

 

The appeals Board does not possess subject matter jurisdiction over the tribe as a matter of law. It seems to the court that the fact the Pauma Police Department is not subject to the WCAB’s jurisdiction means the department was not insured for worker’s compensation coverage or an approved alternative.

 

Consequently, liability is imposed on the next employer in line that had worker’s compensation insurance. In this case that is the County of Riverside.

 

The order of the WCAB was affirmed.

 

Arce v. Phillips-Van Heusen (BPD) (2017 Cal. Wrk. P.D. LEXIS 656):

 

Applicant’s claim by the Statute of Limitations.

 

Facts showed that the applicant was injured on January 7, 2011. Defendants paid no benefits. The defendant upon notice and knowledge of the injury failed to notify the applicant for worker’s compensation rights and serve her with the proper notices.

 

A claim form and application were signed by the applicant on November 17, 2010 and were served on the defendant.

 

The Application was not filed until February 12, 2014.

 

The WCAB found that the Statute of Limitations was not tolled after the applicant gained actual knowledge of her worker’s compensation rights on November 17, 2010.

 

Therefore, the filing of the application on February 12, 2014 was barred by the one-year statute of limitations in five-year statute did not apply as no benefits paid.

Madson v. Caraletto Ranches (BPD) (45 CWCR 65):

 

This case held that as follows:

 

  1. The WCAB, citing the case of City of Los Angeles vs. WCAB (81 CCC 611) (W/D), the panel stated that the Code Section does not preclude increased impairment ratings when the psyche injury arises directly from the events of employment. The applicant’s psychiatric disorder was not indirectly from the compensable physical injury. Therefore, the preclusion of §4660.1 (c) does not apply to applicant’s psyche injury.
  1. The WCJ had limited the definition of violent act to a volitional act set in motion by human being.  The panel citing the case of Larson v.  Securitas Security Service (44 CWC R111) rejected a criminal or quasi criminal definition of violent act and defined the term for purposes of section 4660.1 as an act that is characterized by either strong physical force, extreme or intense force, or an act that is vehemently or passionately threatening.

In this case the Board observed that the vehicle accident resulted in a fracture in the applicant’s neck and considerably threatened his life, and trapped him in an overturned tractor trailer for 35 to 40 minutes, requiring the “jaws of life” to extradite him from the wreckage.  Such circumstances, in the opinion of the Board, can be characterized as “resulting from extreme or intense force and as vehemently threatening.”  Thus, the mechanism of the injury constituted a “violent act” within the definition of §3208.3 (b), entitling the applicant to compensable site disability as an exception to §4660.1 (c).

 

The applicant, a truck driver, was involved in industrial motor vehicle accident, when another vehicle turned onto the highway without using a dedicated merge line, causing applicant to swerve to avoid the collision. The truck rolled over, pinning the applicant inside the cab, upside down. The applicant could not be removed from the cab for 35 to 40 minutes and the claustrophobic applicant could take only shallow breast.

The applicant testified at trial that he was afraid the truck would catch fire because the engine was still running in the truck had two full tanks of fuel.

Applicant was freed from the wreckage by the “jaws of life” and described the event as “terrific”.

Defendants admitted injury to applicant’s head, neck, shoulders and nervous system.

Applicant testified he did not think he was hurt until he learned of the fracture of his see two vertebrae and he could’ve died fractured gone further.

Applicant testified he developed emotional symptoms slowly after the injury.

The panel Qualified Medical Evaluator in psychiatry diagnose the applicant with a post-traumatic stress disorder as a direct result of the incident that threatened applicant with death or serious injury.

The WCJ did not award the applicant psychiatric disability finding that the motor vehicle accident was not a violent act perpetrated by a human being.

Applicant filed a petition for reconsideration.

The Worker’s Compensation Appeals Board reversed the Worker’s Compensation Judge and found the psychiatric injury compensable.

The WCAB started by indicating Labor Code §4660.1(c) provides that there shall be no increase in impairment rating for sleep dysfunction, sexual dysfunction, or psychiatric disorder, or any combination thereof, arising out of compensable physical injury. Section goes on to provide that an increased impairment rating for a psychiatric disorder shall not be subject to the limitation if the applicant was a victim of violent act or direct exposure to a significant violent act within the meaning of section 3208.3 or a catastrophic injury, including but not limited to loss of limb, paralysis, severe burn or severe head injury.

The WCAB citing the case of City of Los Angeles vs. WCAB (81 CCC 611) (W/D), the panel stated that the Code section does not preclude increased impairment ratings when the psyche injury arises directly from the events of employment.

Panel concluded based on the report of the Qualified Medical Evaluator that the traumatic stress of the motor vehicle accident resulted in the post-traumatic stress disorder and was the industrial injury itself. The applicant’s psychiatric disorder was not indirectly from the compensable physical injury. Therefore, the preclusion of §4660.1 (c) does not apply to applicant psych injury.

The WCAB also agreed with applicant that even if the psyche injury were found to have arisen from his physical injuries, it would be compensable because the mechanism of injury itself was a violent act.

The WCJ had limited the definition of violent act to a volitional act set in motion by human being.  The panel citing the case of Larson v. Securitas Security Service (44 CWC R111) rejected a criminal or quasi criminal definition of violent act and defined the term for purposes of section 4660.1 as an act that is characterized by either strong physical force, extreme or intense force, or an act that is vehemently or passionately threatening.

In this case the Board observed that the vehicle accident resulted in a fracture in the applicant snack and considerably threatened his life, and trapped him in an overturned tractor trailer for 35 to 40 minutes, requiring the “jaws of life” to extradite him from the wreckage.

Such circumstances in the opinion of the Board can be characterized as “resulting from extreme or intense force and as vehemently threatening”

Thus, the mechanism of the injury constituted a “violent act” within the definition of §3208.3 (b), entitling the applicant to compensable site disability as an exception to 4660.1 (c).

The WCAB then rated applicant’s overall disability at 60%. The WCAB rescinded WCJ’s award and awarded the applicant 60% permanent disability.

Matlock v. Department of Transportation (BPD) (45 CWCR 4):

Applicant sustained an industrial injury to his neck, low back, left shoulder and headaches in 2004 and to his right shoulder in 2005.

The parties used an Agreed Medical Evaluator in Orthopedic Surgery who for the 2004 injury to applicant’s neck, low back, left shoulder and headaches precluded the applicant from a return to gainful employment. The physician added, even absent consideration of the 2005 date of injury, the 2004 injury had rendered applicant permanently totally disabled. The WCJ concluded that the medical evidence established that applicant’s permanent disability included a separate 2005 injury.

The Worker’s Compensation Judge ruled that the applicant sustained a 78% permanent partial disability for the 2004 injury and 51% permanent partial disability for the 2005 injury.

Applicant filed a petition for reconsideration arguing that the Agreed Medical Evaluator that the 2004 injury alone, precluded return to gainful employment and the 2005 date of injury was not a major factor in his overall permanent disability.

The WCJ in his report and recommendation changed his opinion and recommend that a finding of permanent total disability for the 2004 injury.

The WCAB initially granted reconsideration and overturned the trial decision. The WCAB rescinded the 78% finding in the 2004 injury case and entered a finding of permanent total disability. In addition, the panel stated that the permanent total disability finding in the 2004 case does not negate the award in the 2005 injury of 51% permanent partial disability, as that injury was to a body part that is not implicated in the award of 2004 industrial injury.

The Panel stated that the hundred percent cap on permanent disability is codified in Labor Code §4664(c)(1) as interpreted in the en banc decision in Sanchez the County of Los Angeles applied towards an excess of 100% to any one region of the body.

The panel reasoned that the second award was not for an injury to the same body region because there were two dates of injury and those injuries do not overlap, separate awards were justified.

Defendant filed a petition for reconsideration and the same panel disagreed with defendant’s contention that the two permanent disability awards violated Labor Code §4664(c)(1).  The Appeals Board saw no evidence in the record that the permanent disability for one body region exceeded 100%, and reasoning that Section 4664(c)(1) does not prohibit aggregate permanent disability award exceeding 100% where there is more than one injury.

Defendant had the burden to show that Labor Code §4664(c)(1) limited applicant’s entitlement to permanent disability benefits, but had not proved the overlap necessary to trigger Section 4664. Thus, the two separate awards were proper.

Defendant raised applicant’s stipulation in the 2015 hearing minutes that if permanent total disability were found as a result of the 2004 injury, he would not be entitled any permanent partial disability for the 2005 injury.

The panel concluded the language in the minutes did not find applicant to waive the 51% PD award for the 2005 injury.

The panel distinguish the instant case from Schapiro v. WCAB (49 CCC 579) (W/D) in which the parties were held bound by stipulation to waive their rights to appeal. The stipulation in Schapiro was supported by consideration by both parties, as they received an expeditious trial and determination of rights and liabilities. The present case there was no consideration given for the concession stated in the minutes of hearing

Accordingly, the panel denied defendant’s petition for reconsideration and affirmed its prior decision that applicant had sustained permanent total disability as a result of the 2004 injury and was entitled to an award of 51% partial disability for the 2005 injury.

According to the panel, defendant appeared in assuming that the hundred percent award was for injury to the upper extremities. A finding of total permanent disability in the 2004 case was based upon the combined effects of injuries to multiple regions of the body, his upper extremity being just one element of the award. To prove up the lifetime for permanent disability to the upper extremities, defendant would have to, but did not, establish that the permanent disability for the left shoulder from the 2004 injury combined with that 51% permanent disability for the right shoulder from the 2005 injury was 100% or greater.

City of Jackson v. WCAB (Rice) (Court of Appeal Published) (82 CCC 437) (45 CWCR 89):

The applicant was employed as a police officer.

The applicant sustained injury to his neck arising out of a course of employment has resulted in a continuous trauma injury and in April 22, 2009. That time the applicant was 29 years-old.

Before undergoing neck surgery, the applicant was examined by a Qualified Medical Evaluator. The Qualified Medical Evaluator found a cumulative injury as a consequence of repetitive bending and twisting his head.

The physician indicated X-rays showed degenerative disc disease. The physician diagnosed the applicant with cervical radiculopathy and cervical degenerative disc disease.

The physician found that applicant’s condition was caused by his (1) work activities for the city, (2) his prior work activities, (3) his personal activities, including prior injury and recreational activities, (4) his personal history, in which the physician included “heritability and genetics”. The physician apportioned 25% to each of the four factors.

The applicant and then had neck surgery.

Following the neck surgery, the Qualified Medical Evaluator re-evaluated the applicant. Her diagnosis was unchanged and the four causes contributing to the diagnosis remained unchanged.

The physician did change the apportionment.   The physician indicated since his last evaluation there were specific publications that have given even more support to causation of genomics/ genetics/heritable.  The physician listed three such studies and stated supported genomics as a significant causation factor in cervical spine disability. Her apportionment changed to 17% each to applicant’s employment with the city, previous employment, and personal activities, and personal activities, and 49% to his personal history, including genetic issues.

The physician in response to question from applicant’s attorney prepared a supplemental report in which she affirmed that she could state to a reasonable degree of medical probability that genetics has played a role in the applicant’s injury.  The physician stated that one of the studies said that heritability was 73% in the cervical spine.  Another article cited the role of heritability as 75%, and the other studies stated it was 73%. The physician then cited a study and claimed degeneration adults in may be explained up to 75% by genes along. The same study found environmental factors to contribute little or not at all. The physician stated while the study supported apportionment of 75% to personal history, she decided to air on the side of the patient in this case because there was some unknown “inherent weakness” in the study, decided that 49% was the “lowest level that could be reasonably be stated.” The physician stated that even without knowing the cause of applicant’s father’s back problems, the evidence of applicant’s degenerative disc disease having a predominant genetic cause was “fairly strong” where there is no clear traumatic injury as an applicant’s case.

The matter proceeded to trial and the WCJ found that the Qualified Medical Evaluator did not provide sufficient information to identify the nature of any cervical problems and how and why any such problems are related to applicant’s current level of disability. Accordingly, the WCJ concluded that the physician’s apportionment of 70% the prior work activities and 17% the prior activities was not based on substantial evidence. This conclusion is not part of the of the writ proceedings.

The WCJ found that defendant had met its burden of proof showing apportionment as the 49% attributable to genetic factors.

The applicant filed a petition for reconsideration.

The WCAB granted the petition for reconsideration and eventually ordered the matter returned to the trial level for non-apportioned award of permanent disability. The WCAB reasoned that finding causation on applicant’s genetics opens the door to apportionment of disability to impermissible imputable factors. Without proper apportionment to specific identifiable factors WCAB indicated they could not rely upon the determination of 49% applicant’s disability to non-industrial factors has not been based on substantial evidence.

A writ of review was only filed as to the 49% apportionment.

The Court of Appeal indicated they could find no impermissible apportionment and the WCAB’s prior apportionment decisions under similar circumstances supports validity of this statement.

The Court of Appeal indicated that since the enactment of SB 899 apportionment of permanent disability is based on causation, and the employer is liable only for the percentage of permanent disability directly caused by the industrial injury. Apportionment may now be based on “other factors” that cause the disability, including the natural progression of nonindustrial condition or disease, pre-existing disability, or post-injury debilitating event, pathology, asymptomatic prior conditions, and retroactive for preclusions. (Escobedo, 70 CCC 604).

Precluding apportionment based on impermissible immutable factors would preclude apportionment based on the very factors that the legislature now permits, apportionment based on pathology and asymptomatic prior conditions for which the worker has an inherited predisposition.

The WCAB ruling indicates that it believes that “genetics” is not a proper factor on which to base causation. However, since 2004 the WCAB has allowed apportionment based on such a factor, even though it may not have the term “genetics”.

The Court of Appeal cited the case of Kos v. WCAB (73 CCC 529) in which the WCAB reversed the WCJ and stated that in degenerative disease cases, it is incorrect to conclude that the worker’s permanent disability is necessarily entirely caused by the industrial injury without apportionment. In this case the Board had no trouble apportioning disability where the degenerative disc disease was caused by a pre-existing genetic predisposition. The medical evidence showed that the applicants prolonged sitting at work lit up her pre-existing disc disease.

The medical evaluator testified that the workers pre-existing genetic predisposition for degenerative disc disease would have contributed 75% to her overall level of disability.  The WCJ found no basis for apportionment and as set forth above WCAB reverse.

In the case of Escobedo, the WCJ apportioned 50% of the worker’s knee injury to non-industrial causation based on the medical evaluator’s opinion that the worker suffered from significant degenerative arthritis.  The WCAB stated the issue is whether an apportionment of permanent disability can be made based on pre-existing arthritis and applicant needs. The Board went on to state that apportionment can now be based on nonindustrial pathology, if it can be demonstrated by substantial medical evidence that the non-industrial pathology caused permanent disability. Thus, the pre-existing disability may arise from any source congenital, developmental, pathological or traumatic.

The Court of Appeal indicated they perceive no relevant distinction between allowing apportionment based on a pre-existing congenital or pathological condition and allowing apportionment based on a pre-existing degenerative condition caused by heredity or genetics.

The WCAB’s opinion stated that reliance upon applicant’s genetic makeup leads the physician to apportion the causation of applicant’s injury rather than apportionment of the extent of disability. The facts of this case do not support the Board’s legal conclusion. Labor Code §4663 provides for apportionment of permanent disability shall be based on causation. In Escobedo, the Board came to the obvious conclusion that causation in this context means causation of permanent disability. The Board stated that “the percentage to which an applicant’s injury is causally related to his or her employment is not necessarily the same as the percentage to which an applicant’s permanent disability is causally related to his or her injury. While this might be true, the QME’s analysis was not mistaken in this case.

Disability as used in the worker’s compensation context includes two elements: actual incapacity to perform the tasks usually encountered in one’s employment and the weight loss resulting there from and physical impairment of the body that may or may not be incapacitating. Permanent disability is the irreversible residual of an injury and permanent disability payments are intended to compensate for physical loss and loss of earning capacity.

In this case the Qualified Medical Evaluator identified applicant’s disability is neck pain and left arm, hand and shoulder pain, which prevented him from sitting more than two hours per day, lifting more than 15 pounds and any vibratory activities such as long distances.

Applicant’s injury was a cumulative trauma injury which was not an exact or isolated injury, but which he believed was a consequence of repetitive motion primarily resulting from employment. Thus, the injury was repetitive motion. The physician did not include, as the Board apparently determined, that the repetitive motion was caused by genetics. Rather, the physician properly concluded that applicant’s disability, his debilitating neck, arm, hand and shoulder pain prevented him from performing his job activities, was caused only partially by his work activities, and was caused primarily by his genetics. Contrary to the Board’s opinion, the physician did not apportion causation to injury rather than disability.

The Court of Appeal went on to conclude that the Qualified Medical Evaluators report was based on substantial evidence.

The Court Appeal annulled the Board’s decision and remanded the matter for the Board to deny reconsideration. Petitioner was awarded costs.

Hikida v. Workers’ Compensation Appeals Board (Court of Appeal) (___CCC____)

 

The applicant was evaluated by an Agreed Medical Evaluator who found the applicant permanently and totally disabled from the labor market. The physician found her permanent total disability was due entirely to the effects of the CRPS that she developed as a result of the failed carpal tunnel surgery. He further concluded that petitioners carpal tunnel condition itself was 90% due to industrial factors and 10% nonindustrial factors.

The WCJ found permanent total disability that was 90% due to the industrial injury.

The applicant filed a petition for reconsideration arguing that he was 100% permanently disabled as a result of the industrial injury without apportionment because the disability derived from the medical treatment. In a two to one decision the WCAB affirmed the apportionment.

The Court of Appeal concluded that the WCAB erred in not awarding 100%, because the permanent disability resulted from Complex Regional Pain Syndrome that developed after applicant had surgery to treat her industrial carpal tunnel condition, and medical treatment for which the employer is responsible under Lab. Code 4600 is not subject to apportionment, notwithstanding the changed law of apportionment wrought by Senate Bill 899 in 2004 (Lab. Code 4663, 4664).

The Court of Appeal stated that under the changes made in 2004 to the apportionment law the disability arising from petitioner’s carpal tunnel syndrome would be apportionment between industrial and nonindustrial causes.  However, the applicant’s permanent total disability was not caused by her carpal tunnel condition, but by the CRPS resulting from the medical treatment her employer-provided.

The issue presented was whether an employer is responsible for both medical treatment and any disability arising directly from unsuccessful medical intervention, without apportionment.

The Court of Appeal concluded that Labor Code §4600 requires the employer to provide all medical treatment reasonably required to cure or relieve the injured worker from the effects of the injury, even though the wording of this section has changed over the years, it has consistently been interpreted to require the employer to pay for all medical treatment once it has been established that an industrial injury contributed to the employees need for the treatment.

In the case of Granado (69 Cal.2d 399) the Supreme Court held that medical treatment is not apportionable.  If medical expenses reasonably necessary to relief from the industrial injury were apportionable, and injured worker would not be able to pay his share of the expenses and thus forgo the treatment.

It has also long been the rule that the aggravation of industrial injury or infliction of a new injury resulting from its treatment are examination are compensable.

The court went on to state there is no dispute that in this case the disabling carpal tunnel syndrome for which the applicant suffered was largely the result of her many years of clerical employment. It then follows that the employer was required to provide medical treatment to resolve the problems without apportionment.

The surgery went badly, leaving applicant with a permanent disabling condition, the CRPS, that will never be alleviated.

California workers compensation law relieves the employer liability for any negligence in the provision of medical treatment that led to the CRPS. It does not relieve the employer of the obligation to compensate the applicant for this disability without apportionment.

The courts review of the law and authorities convinces them that the new apportionment based on causation did not intend to transform the law requiring employers to pay for all medical treatment caused by an industrial injury, including the foreseeable consequences of such medical treatment.

Long-standing rule that employers are responsible for all medical treatment necessitated in any part by an industrial injury, including new injuries resulting from the medical treatment, derived not from those statutes, but from (1) the concern that applying apportionment principles to medical care would delay and potentially prevent an injured employee from getting medical care; and (2) the fundamental proposition that workers compensation should cover all claims between the employee and employer arising from work-related injuries, leaving no potential for any independence sued for negligence against the employer.

Nothing in the 2004 legislation had any impact on the reasoning that has long supported the employer’s responsibility to compensate for medical treatment and the consequences of medical treatment without apportionment

Accordingly, the Court of Appeal found that the WCJ erred in apportioning the award and the Appeals Board of holding that decision. The decision of the Board was annulled.

The Court also addressed the timeliness of applicant’s petition for writ of review in the context of a supposed prior “final order” by the Board.  In a footnote, the Court stated that appellate “Courts should be cautious in finding a “threshold issue” where such finding will deprive a party of the right to an appeal.”

Viray v. Pacific Gas & Electric (BPD) (45 CWCR 238):

Applicant alleged a cumulative trauma injury through March 1, 2011 to is cervical spine, lumbar spine and psyche.  The parties agreed to an Agreed Medical Evaluator for the psychiatric portion of the case.

The Agreed Medical Evaluator apportioned psychiatric disability 70% to industrial causes and 30% to pre-existing or nonindustrial factors.

The parties used an orthopedic Qualified Medical Evaluator who found the applicant’s cervical spine permanent disability was 80% industrial and 20% caused by a prior industrial injury to his upper extremities.

The WCJ rejected the reporting physician’s permanent disability determination, ruling the applicant had successfully rebutted the scheduled ratings, and that: (a) his overall condition after this injury was one of permanent total disability in accordance with facts pursuant to Labor Code 4662 (b).   The WCJ also found that the evaluating physician’s apportionment was substantial evidence.

The WCJ, rather than applying the apportionment of the applicant’s psychiatric and orthopedic disabilities separately to reach the applicant’s permanent disability award, concluded that he had authority to apportion according to the range of evidence.  Because the orthopedic apportion was 80% and the psychiatric was 70%, WCJ split the difference and concluded that applicant’s award after apportionment was 75%.

The WCJ did not cite the source of his authority to apportion based on a range of evidence that supersedes the findings of the AME and QME.

Applicant filed Petition for Reconsideration contending that the medical evidence supported 100% permanent disability award without apportionment.

The WCAB granted reconsideration and rescinded the WCJ’s finding on apportionment.

The panel, after noting a problem with the lack of any reports by applicant’s vocational expert, listed as exhibits, in EAMS, the panel expressed substantial concerns with the apportionment finding.

The WCAB suggested the WCJ should have applied the differing percentage of apportionment in the calculation of the applicant’s PD award.  The panel concluded there was no legal support for the WCJ’s range of evidence methodology.

While the Appeals Board recognized the WCJ was attempting to fashion a result that provided applicant with a fair award, the Appeals Board concluded the apportionment analysis was nevertheless not made in accordance with Labor Code §4663, which requires that apportionment determination be made by the reporting physicians, not the WCJ.

The Appeals Board further concluded that the orthopedic QME found apportionment to the neck based on overlapping pain from the upper extremity while the psychiatric AME apportioned to factors such as nonindustrial vision loss and a relocation of applicant’s family to the Philippines. The panel concluded that these two sources of apportionment could not be combined and split.

The Appeals Board stated there was no evidence of a connection between the nonindustrial and pre-existing factors a psychiatric in orthopedic disability.

Finally, because there was no evidence offered of a prior PD award, the WCAB ruled that the WCJ could not properly apply apportionment pursuant to Labor Code §4664 and thus did not address the issue of overlap of permanent disability from a prior industrial injury because the lack of evidence.

Accordingly, the Board panel rescinded the decision and returned the matter to the trial level encouraging referral to the DEU for formal ratings and for a final decision.

Matlock  v. Department of Transportation (BPD) 45 CWCR 4

Applicant sustained an industrial injury to his neck, low back, left shoulder, and headaches in 2004 and to his right shoulder in 2005. The parties used an Agreed Medical Evaluator in Orthopedic Surgery who found the 2004 injury to applicant’s neck, low back, left shoulder and headaches precluded the applicant from a return to gainful employment. The physician added that, even absent consideration of the 2005 date of injury, the 2004 injury had rendered applicant permanently totally disabled.

The WCJ concluded that the medical evidence established that applicant’s permanent disability included a separate 2005 injury. The Workers’ Compensation Judge ruled that the applicant sustained 78% permanent partial disability for the 2004 injury and 51% permanent partial disability for the 2005 injury.

Applicant filed a petition for reconsideration arguing that the Agreed Medical Evaluator found that the 2004 injury alone precluded return to gainful employment and that the 2005 date of injury was not a major factor in his overall permanent disability. The WCJ in his report and recommendation changed his opinion and recommend a finding of permanent total disability for the 2004 injury.

The WCAB initially granted reconsideration and overturned the trial decision. The WCAB rescinded the 78% finding in the 2004 injury case and entered a finding of permanent total disability. In addition, the panel stated that the permanent total disability finding in the 2004 case did not negate the award in the 2005 injury of 51% permanent partial disability, as that injury was to a body part that was not implicated in the award of 2004 industrial injury.

The panel stated that the 100% cap on permanent disability as codified in Labor Code §4664 (c) (1), as interpreted in the en banc decision in Sanchez v. the County of Los Angeles applied towards an excess of 100% to any one region of the body. The panel reasoned that the second award was not for an injury to the same body region because there were two dates of injury and those injuries do not overlap, separate awards were justified.

Defendant filed a petition for reconsideration and the same panel disagreed with defendant’s contention that the two permanent disability awards violated Labor Code §4664(c) (1). The appeals Board saw no evidence in the record that the permanent disability for one body region exceeded 100%, and reasoned that §4664(c)(1) does not prohibit aggregate permanent disability awards exceeding 100% where there is more than one injury.  Defendant had the burden to show that Labor Code §4664(c)(1) limited applicant’s entitlement to permanent disability benefits, but had not proved the overlap necessary to trigger §4664. Thus, the two separate awards are proper.

Defendant raised applicant’s concession in the 2015 hearing Minutes that if permanent total disability were found as a result of the 2004 injury, he would not be entitled any permanent partial disability for the 2005 injury. The panel concluded that the language in the Minutes did not waive the 51% PD award for the 2005 injury.

The panel distinguished the instant case from Schapiro v. WCAB (49 C.C.C. 579) (W/D) in which the parties were held bound by a stipulation to waive their right to appeal. In Shapiro, the stipulation was supported by consideration by both parties, as they received an expeditious trial and determination of rights and liabilities. In the present case there was no consideration given for the concession stated in the Minutes of Hearing. Accordingly, the panel denied defendant’s petition for reconsideration and affirmed its prior decision that applicant had sustained permanent total disability as a result of the 2004 injury and was entitled to an award of 51% partial disability for the 2005 injury.

According to the panel, defendant appeared to assume that the hundred percent award was for injury to the upper extremities. A finding of total permanent disability in the 2004 case was based upon the combined effects of injuries to multiple regions of the body, his upper extremity being just one element of the award. To prove up the lifetime cap for permanent disability to the upper extremities, defendant would have to, but did not, establish that the permanent disability for the left shoulder from the 2004 injury combined with that 51% permanent disability for the right shoulder from the 2005 injury was 100% or greater.

Foxworthy v. WCAB (W/D) (82 CCC 1192)

Applicant was evaluated by 3 AME’s in orthopedics, psychiatry in internal medicine. Evaluators found the applicant suffered impairment to the body parts they evaluated, with 13% WPI attributable to the lumbar spine with a 3% add-on for pain, 20% attributable to the psychiatric system, and 15% WPI for the hypertension.

The orthopedic AME opined the combined value chart should be used to combine the disability because the impairments did not overlap. The other two Agreed Medical Evaluators did not believe the use of the combined value chart provided an accurate measure of applicant’s combined impairment.

The WCJ issued a decision finding 71% permanent disability after apportionment based on the use of multiple disability table.

Defendant filed a petition for reconsideration arguing the judge should have used the combined value chart not the MDT and the opinions of the two AME’s are not sufficient to justify departure from the combined value chart because applicant’s disabilities did not overlap and the report of the orthopedic Agreed Medical Evaluator constituted substantial evidence that the combined value chart should be used to combine the disability.

Applicant filed a petition for reconsideration on the apportionment issue.

The WCJ in his report admitted he should not use the MDT and stated that adding applicant’s disabilities, which would produce a rating of 92%, was the appropriate method of rating the applicant’s disability. The WCJ rejected use of the combined value chart is an appropriate method of calculating the permanent disability based on the findings there was no overlap or no redundancy between applicant’s various impairments and the applicant’s overall disability was less than 100%.

The WCAB granted reconsideration in a split decision and affirmed the WCJ’s finding on apportionment, but determined the WCJ should have used the combined value chart to determine applicant’s overall level of disability. The WCAB calculated applicant’s overall level of disability at 76% using the combined value chart and amended the WCAB’s decision.

The WCAB first found no basis to use the MDT to combine applicant’s disabilities because the 2005 PDRS was applicable to this case.

The WCAB went on to state that the 2005 PDRS which is prima facie evidence of permanent disability pursuant to Labor Code §4660 (c), was applicable to applicant’s injury and the schedule contains a combined value chart for combining impairments and disabilities that is based on the AMA guides.

While the WCAB recognized that the combined value chart as a guide to determining overall impairment or disability when multiple injuries are involved, the WCAB explained that the combined value chart should be used unless there is evidence that another method of combining impairments, such as adding them, produces a more accurate reading.

In this case the WCAB panel relied on the opinion of the orthopedic agreed medical evaluator indicating that the use of the combined value chart was justified and found no substantial evidence to rebut use of the combined value chart to combine applicant’s disabilities.

The WCAB went on to state that the combined value chart is a guide, but it should ordinarily be applied unless there is some overriding reason to use a different method of accounting for multiple impairments.

Although a permanent disability rating based on the 2005 PDRS can be rebutted, there has been no showing of a reason not to use the combined value chart to calculate applicant’s permanent disability in this case.

They found the report of the Agreed Medical Evaluator in orthopedic surgery to be the most persuasive in this regard. That report opines that the combined value chart should be applied to determine applicant’s overall permanent disability.

The WCAB discusses the rationale set forth by the physician for application of the combined value chart to most accurately reflect applicant’s disability, and accepted as substantial evidence his conclusion regarding the lack of a synergistic effect among applicant’s internal, sexual dysfunction, psychiatry and orthopedic injuries.

The WCAB noted that, contrary to the WCJ’s reasoning, reporting of the orthopedic agreed medical examiner supported a finding that there was overlap in this case between applicant’s orthopedic restrictions regarding her ability to lift and carry and in her psychiatric impairments in interacting and communicating, as these restrictions would both affect applicant’s ability to perform her former job and engage in rescue activities with her coworkers as she did when she was injured.

Furthermore, the WCAB pointed out once an injured worker has an impairment in one body system that injured worker no longer has 100% of her abilities, but something lesser and the combined value chart takes this factor into account.

The dissenting Commissioner agreed with the WCJ that the most accurate description of applicant’s overall disability was achieved by adding each disability together. According to the dissenting Commissioner the opinions of the 3 AM knees in this case confirmed that there was no overlap or redundancy in the impairments to applicant’s lumbar, psychiatric, internal and sexual symptoms because each impairment in these four separate body regions impacted applicant differently. Consequently, the Commissioner concluded that application of the combined value chart did not produce an accurate reflection of applicant’s true residual disability, but instead diminished it.

Applicants petition for reconsideration on apportionment was denied and that issue is not being discussed in this summary.

Tuesdell v. Vons Grocery (BPD) (45 CWCR 67):

The WCJ found the applicant permanent and totally disabled as a result of the cumulative trauma injury based on the report of the Agreed Medical Evaluator.  The WCJ found medical evidence sufficient to award permanent total disability pursuant to Labor Code §4662(b) (in accordance with the fact).

Defendant filed a Petition for Reconsideration.

The WCAB upheld the WCJ.

The WCAB indicated all decisions made by a WCJ or the Appeals Board must be supported by substantial evidence.

Where the parties use an AME, the AME’s opinion should ordinarily be followed.

The applicant has the burden of proof to establish the level of permanent disability through substantial evidence.

In some cases, permanent total disability is presumed; when it is not, the permanent total disability can be proved “in accordance with the fact,” pursuant to Labor Code §4662 (b).

For the date of injury in this case where permanent disability is less than total, the panel indicated that rating was to be per the 2005 PDRS as established by Labor Code §4660.

The PDRS is prima facie evidence of permanent disability but may be rebutted.

In the present case the report of the Agreed Medical Evaluator constituted substantial evidence that the applicant sustained permanent total disability pursuant to Labor Code §4662(b). The factors the AME considered in reaching this conclusion included the applicant’s surgical history, objective evidence from diagnostic testing, clinical testing results, and effects of medication. The evidence of the existence of those conditions, was substantial and well supported.

As to the issue of whether a physician rather than a vocational expert was qualified to give an opinion on permanent total disability the Appeals Board indicated that the WCJ and the Appeals Board could rely on medical evidence alone to find permanent total disability.

The panel noted that physicians routinely provide opinions on work restrictions and capabilities.

The opinion that an applicant is permanently totally disabled from competing in the open labor market can properly be made by a medical expert.

The panel also noted the AME opinion did not stand alone, was was supported by two other physicians reporting in the case.

The WCAB upheld the decision of the WCAB.

Irving v. J.P Morgan Chase (BPD) (2017 Cal. Wrk. Comp. P.D. LEXIS 93):

 

The WCJ found the applicant’s sleep disability was non-compensable and the medical report of the physician was not substantial evidence on the issue of a sleep injury.

The Appeals Board found the report of the physician was not substantial evidence even though a sleep study was performed. The Appeals Board found the report of the sleep specialists was not substantial evidence because the report lacked a history describing the onset of the applicant’s various sleep disturbances and any treatment provided for them, and merely repeating the applicant’s narrative that the sleep problems began after his industrial injury was not sufficient.

The Appeals Board indicated the report was not substantial evidence because it lacked a history of applicant’s medication usage and a discussion of specific medications he might have taken to treat the industrial injury.

The report was also not based on substantial evidence because it lacked a review of medical records other than the doctors own sleep study.

The WCAB denied the applicant’s allegation that the decision was based on a negative impression of the doctor’s reputation, but added that it was not improper to consider a physician’s reputation in considering whether his or her reports constitute substantial evidence.

The WCAB rejected the applicants request to develop the record on the sleep disorder because they had four years to correct the problems with the sleep specialist reporting and failed to do so.

After deducting the applicant sleep disability, the Appeals Board, reduced the award from 76% permanent disability to 69% permanent disability.

The dissenting Commissioner believe the record should be further developed concerning the sleep disorder.

  1. MONTENEGRO V. CITY OF LA (BPD) (2016 Cal. Wrk. Comp. P.D. LEXIS 128):

 

Labor Code §4660.1(c)(1) provides there shall be no increase in impairment rating for sleep dysfunction, sexual dysfunction, or psychiatric disorder, or any combination thereof, arising out of a compensable physical injury.

The facts of this case establish that the applicant suffered erectile dysfunction as a result of surgery to remove his prostate to treat his industrial prostate cancer.

The WCAB found that Labor Code §4660.1(c)(1) was created to eliminate questionable claims of disability.

The WCAB ruled that section did not preclude consideration of impairments which are directly related to the injury as opposed to being a consequence of the injury.

The WCAB held that an injury to the prostate, in terms of sexual dysfunction, is not considered a compensable consequence of the physical injury.

 

  1. Allred v. RST Cranes (BPD) (44 CWCR 138):

 

The applicant sustained a work-related injury to the left middle and ring fingers.

The parties obtained a Qualified Medical Evaluator in orthopedic surgery.

The physician opined the applicant sustained a 4% whole person impairment as a result of the crush injury.

Applicant requested a supplemental report on the permanent disability rating. The physician in the supplemental report indicated the applicant’s injuries were significant and that he has difficulty using the affected fingers in any type of normal fashion.  The physician noted the maximum impairment value for each affected finger under AMA guides table 16 – 18 and provided a new rating that deviated from a strict application of the guides.

The physician stated that given the significance of the injury suffered it is felt that in considering Almaraz/Guzman allowances an appropriate impairment rating would be 11% for the middle finger and 5% for the ring finger plus a 3% add-on for the pain, and that no other chapter or section of the AMA guides would be more appropriate. The physician observed is 4% whole person impairment opinion have been derived from a strict interpretation of the guides.

The WCJ awarded PD indemnity of 31% disability consistent with the supplemental report of the Qualified Medical Evaluator.

Defendant filed a petition for reconsideration.

The WCAB indicated that a medical report must be based on substantial evidence. The opinion must be predicated on reasonable medical probability. The opinion cannot be based on incorrect legal theories, devoid of factual basis for conclusion and or extend beyond the physician’s expertise.

The Board went on to state whether an opinion is substantial evidence is a case-by case inquiry that must be assessed by reference to the material facts upon which the physician’s opinion was based in by the reasons given for his opinion.

The Board then stated that Labor Code §4660 provides that the schedule for rating permanent disability is prima facie evidence of the percentage of permanent disability to be attributed to each injury covered by the schedule.

The Board then went on to indicate in the en banc decision in Almaraz/Guzman to a departure from the strict interpretation of the rating schedule and the AMA guides is appropriate for cases that do not fit neatly into the diagnostic criteria and descriptions of the guides. The Board reasoned the physician should be allowed to use their clinical judgment to evaluate the impairment most accurately even if that is possible only by resorting to comparable conditions described in the AMA guides.

Any deviation from the guides must be based on substantial evidence. Where a condition is not covered by the AMA guides, a physician should compare the non-covered conditions impairment level to a measurable impairment covered by the AMA guides, including by reference the activities of daily living.

The Board then concluded the medical report of the qualified medical evaluator was not sufficient. The report did not state that the AMA guides did not cover the applicant’s condition, nor did he address whether and to what extent applicant’s activities of daily living are effected by the industrial injury.

Although the physician did state the applicant sustained a significant injury and had difficulty using his fingers in any type of normal fashion, the panel concluded that his reporting was insufficient to support a deviation from the strict rating.

Finding the judge and itself under an obligation to develop the record further where there is insufficient medical evidence on an issue, the panel remanded the case to the trial level with instructions to develop the Qualified Medical Evaluator’s opinion on the issue of permanent disability. The WCAB cited the case of Kuykendall 65 CCC 264 which requires development of the record to ensure substantial justice in all cases.

The WCAB indicated the parties needed to solicit a supplemental explanation or to depose the physician.