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Kahn’s Comments on the Law

In the case law summaries, the author has attempted to present an accurate summary of each case. However, the summaries are dependent on the interpretation of the author, and cases are often subject to more than one interpretation. It is the responsibility of the reader to review the cases before citing them as authority since summaries may contain errors. Never cite a case as authority unless the person citing the case has read the actual case and checked the subsequent case history, as cases are subject to being revised by the WCAB or the courts after publication of the case summary. Any reliance you place on the case law summaries is therefore strictly at your own risk.


AME/QME Process
Headnote here

Catlin v. J.C. Penny (BPD) Espinzoa V. GFC holdings (BPD) (2017 Cal. Wrk. Comp. P.D. LEXIS (106):

 

The WCJ issued an order to attend a consultation re-examination regarding ongoing medical treatment with an Agreed Medical Evaluator, pursuant to Labor Code §4050.

 

The WCAB rescinded the decision and found that medical treatment and medical legal disputes, examination and reporting process has been modified to the point that the original purpose of Labor Code §4050 was subsumed by more specific statutes, including Labor Code §§4060, 4061, 4062 and 4610, and medical examinations pursuant to Labor Code §4050 cannot circumvent process set forth in these provisions.

 

However, where there was no evidence in the record as to whether additional examination by Agreed Medical Evaluator was necessary, the WCAB return the matter to the WCJ for further proceedings on that issue.

 

Espinoza V. GFC Holdings (BPD) (2017 Cal. Wrk. Comp. P.D. LEXIS (239):

 

The WCJ issued an order invalidating a panel of Qualified Medical Evaluators on the basis that the panel was prematurely obtained prior to receipt and review of the report from the primary treating physician.

 

The WCAB rescinded the order and found that because defendant disputed applicant’s claim of injury AOE/COE, objection to a treating physician’s report was not necessary prior to obtaining a panel of Qualified Medical Evaluators pursuant to Labor Code §§4060 and 4062.2.

 

The WCAB found that because defendant disputed applicant’s claim of injury, objection to a treating physician’s report was not necessary prior to obtaining panel of Qualified Medical evaluators pursuant to Labor Code §§4060 and 4062.2.

 

The Labor Code §4060 process leading to issuance of a panel of Qualified Medical Evaluators can be initiated any time after filing a claim form.

 

 

Dorantes v. Dirito Brothers (BPD) (2017 Cal. Wrk. Comp. P.D. LEXIS 237):

 

The WCJ denying applicant’s request for a replacement panel of Qualified Medical Evaluators in the field of orthopedic medicine.

 

The applicant filed a petition for removal.

 

The WCAB denied removal even though the Qualified Medical Evaluator’s supplemental report was untimely and despite applicant’s assertion that the report was not substantial evidence.

 

The WCAB reasoned that although Reg. §38 (i) creates guidelines which require supplemental reports to issue within 60 days, the rule must be read in conjunction with Labor Code §4062.5, which does not mandate replacement of Qualified Medical Evaluator for untimely supplemental reports.

 

The WCAB has discretion to order a replacement panel for good cause when supplemental report is untimely.  Here, there was no good cause for replacement panel because there was no evidence that delay in supplemental report caused any prejudice to applicant. The prejudice against the time lost from starting over with a new panel of Qualified Medical Evaluators and that fact that the Qualified Medical Evaluator had evaluated on the case for over two years, evaluated applicant twice and issued five reports during that time.

 

The WCAB further found the issue of whether the report was substantial evidence was not grounds for a replacement panel.

Granillo, Applicant v. Southern Farmland (BPD) 2016 Cal. Wrk. Comp. P.D. LEXIS 590):

The WCJ found that applicant’s industrial injury caused temporary disability from 5/11/2013 through 6/27/2013, based on report of primary treating physician, Richard Scheinberg, M.D.

The WCAB reversed and held that applicant’s period of temporary disability continued through 11/13/2014 pursuant to report of panel qualified medical evaluator Craig MacClean, M.D.

Defendant objected to Dr. Scheinberg’s report and Craig MacClean, M.D. was chosen to evaluate the applicant as panel qualified medical evaluator.

The WCAB rejected the WCJ’s finding that applicant’s failure to independently object to Dr. Scheinberg’s permanent and stationary report pursuant to Labor Code §4062 constituted waiver of objection to that issue based on rationale in J.C. Penney Co. v. WCAB (Edwards) (2009) (74 Cal. Comp. Cases 826)

The WCAB concluded that, contrary to circumstances in Edwards, where neither party objected to primary treating physician’s report, defendant here timely objected to Dr. Scheinberg’s report so as to trigger process in Labor Code §4062.2.

 

 

Requiring that applicant make his own separate objection to Dr. Scheinberg’s report would contravene entire scheme for prompt resolution of medical disputes as set forth in Labor Code §§4060-4062 because it would potentially lead to multiple panel qualified medical evaluators reporting in case, depending on number of disputed issues.

Dr. MacClean, as properly designated panel qualified medical evaluator was required to address all issues in dispute, including applicant’s permanent and stationary status, and that Dr. MacClean’s reporting constituted substantial evidence on the issue of permanent and stationary date.

Gonzales v. ABM Industries (BPD) (45 CWCR 42):

 

The applicant sustained an admitted industrial injury.

 

The parties requested a panel of Qualified Medical Evaluators in the specialty of pain management. As the one of the physician’s named in the panel was an indication “via telemedicine”. A footnote on the panel list states: “via telemedicine”, Evaluation will take place through the use of telehealth using interactive audio, video or data communication.

 

After the striking process the physician would evaluate: “via telemedicine” was the physician chosen to evaluate the applicant.

 

Applicant objected to the evaluation via telemedicine and requested a replacement panel. Defendant objected.

 

The matter was set for status conference and the WCJ issued an order for a replacement panel.

 

Defendant filed a petition for removal.

 

A panel incorporated the WCJ’s report and recommendation in its entirety. The report stated that the parties are not ordinarily told whether a telemedical QME would participate by e-mail, by computer screen with the camera (with or without audio), or by telephone.

 

In this case the medical director provided documents indicating that the physician supervises a designee throughout the exam and the designee would have a chiropractic license and a QME certification and would have completed other educational requirements under QME via telemedicine requirements standard of care.

 

The physician provided a consent form making it clear that a patient may refuse to participate in the valuation via telemedicine.

 

Defendant argued that QME rule 49.2’s requirement the medical evaluation concerning an uncomplicated neuro- skeletal injury must include no less than 20 minutes of face-to-face time may be satisfied by a live video feed.

 

The WCJ, however, saw no assurance in the provided documents that the physician would actually participate in the live feed, or would be one of the faces for a minimum of 20 minutes.

Further, applicant pointed out that the regulations require face-to-face time actually spent with the injured worker.

 

The WCJ reasoned there was a strong inference that virtual face-to-face does not qualify derives from the statute use of the word actually.

 

Additionally, pursuant to Labor Code §4628(a) no person, other than the physician who signs the report shall examine the injured employee.

 

The WCJ also reasoned that even if all statutory conditions had been considered when reviewing and weighing the QME’s application, the consent form with the opt out provision must’ve been a compromise in granting the application.

 

Finally, the WCJ believed it significant that the QME’s designee was not named on the panel list or in any other documents provided and that nowhere is the designee’s name or specialty disclosed and only later revealed by the physician to be a chiropractor, not a pain management physician. Without that information at the time the panel issued either party can make a knowing decision.

 

The panel points out that there was no demonstration by defendants that substantial prejudice or irreparable harm would occur if replacement QME panel issued. Given the absence of prejudice removal was not warranted.

 

Garza v. O’Reily Auto Parts (BPD) (1017 Cal. Wrk. Com. P.D. LEXIS 3):

 

The WCJ held that a panel in Orthopedic Surgery was appropriate for an applicant who submitted a panel request naming the specialty of chiropractic.

 

The WCJ reasoned that the right to select a panel specialty is not absolute, because the legislature qualified this right by making it subject to being a selection in the appropriate specialty.

 

Following a request for a replacement panel, the medical director issued an orthopedic panel as being in the applicant’s best medical interest because of the evidence of diabetes and an infection and necrosis of the total.

 

Applicant filed a petition for reconsideration.

 

The WCAB found that the applicant failed to show irreparable harm by the WCJ’s reasoning upholding the appropriateness of the medical specialty.

 

AOE-COE (1/3)
Headnote here

State Comp. Ins. Fund v. Workers’ Comp. Appeals Bd. (Guzman) (Court of Appeal, Published) (83 CCC 185):

 

The Court of Appeal held that the applicant, Jose A. Guzman, failed to meet his burden of proving that his psychiatric injury was caused by a “sudden and extraordinary employment condition” under Labor Code §3208.3(d).

 

Guzman, a construction laborer, sustained industrial injury while operating a compactor used to pack down soil.  The compactor hit a rock while Guzman was working on a hillside with a 45-degree slope; the compactor rose in the air, caused Guzman to fall backwards, and then fell on top of him.

 

According to the Court, Guzman failed to prove this “employment condition” was “sudden and extraordinary.”

 

The Court annulled the Board’s decision, which had affirmed that compensation for Guzman’s psyche injury was not barred by §3208.3(d).

 

Contra Costa Water District v. WCAB (Kirby) (W/D) (83 CCC 366)

 

Workers compensation claim alleging a psychiatric injury on a continuous trauma basis.

 

Defendant denied applicant’s claim, asserting that applicant did not meet his burden of proof that actual events of employment caused a psychiatric disability, as opposed to perceive events, which were the predominant cause of his psychiatric injury and even if applicant met his predominant cause threshold the psychiatric injury was barred by the good-faith personnel action of Labor Code §3208.3 (h).

 

The applicant was evaluated by a Qualified Medical Evaluator in psychiatry. The physician, regarding causation, stated that applicant’s psychiatric condition was 50% caused by harassment by defendant’s operation and maintenance supervisor, 10% by harassment by defendant superintendent of distribution, 10% harassment by two of applicant’s subordinates, 5% to a negative performance appraisal.

 

The matter proceeded to trial and the WCJ ruled that applicant had met his burden of proof of predominant cause threshold of Labor Code 3208.3 (b) (1).

 

The WCJ indicated the applicant’s right to compensation could be precluded if defendant established that a substantial cause of applicant’s injury was due to lawful discriminatory, good-faith personnel actions pursuant to Labor Code §3208.3 (h).

 

The WCJ describe various actions that may or may not constitute a personnel actions and explained that whether an action constitutes a personnel action largely depends on the circumstances in which the action occurs.

 

The WCJ stated there is no controlling law regarding what constitutes a personnel action in the context of Labor Code §3208.3 (h). The WCJ, citing the case of Larch v. WCAB (63 CCC 831), a significant panel decision, the Board held a personnel action depends on the subject matter and factual setting for each case. The term includes, but is not limited to, a termination, disciplinary action short of termination may constitute personnel actions even if they are harsh, however the term does not encompass all actions by any level of personnel in the employment situation or all happenings in the workplace done in good faith.

 

A personnel action is conduct either by or attributable to management, including such things is done by one who has the authority to review, criticize, demote, or discipline an employee. It is not necessary for the personnel action to have a direct or immediate effect on the employment status. Personnel actions may include, but are not necessarily limited to transfers, demotions, layoffs, performance evaluations and disciplinary action such as warnings, suspensions and termination of employment.

 

The WCJ turning to the facts of this case indicated that defendant failed to meet its burden of proof that at least 35% of the causation of applicant’s injury was a personnel action.

 

Defendant filed a Petition for Reconsideration.

The WCJ recommended reconsideration be denied.

 

The WCJ noted that based on the report of the Qualified Medical Evaluator the physician apportioned 25% of the applicant psychiatric injury applicant’s own maladaptive traits and misperception.

 

The WCJ further found that 75% was caused by actual events of employment.

 

The WCJ then concluded that defendant did not meet its burden of proof that applicant’s psychiatric injury was substantially caused by a good-faith personnel action.

 

As a matter of law the defendant has to prove that good-faith personnel actions constitute at least 35% of the causation of injury.

 

The Qualified Medical Evaluator found 50% of the causation was the reaction with one person. The WCJ found that this 50% included both personnel actions and non-personnel actions. The term personnel action does not encompass all actions by any level of personnel in the employment situation or all happenings in the workplace done in good faith. The WCJ stated defendant did not have the Qualified Medical Evaluator parcel out the causation of personnel action versus non-personnel action and therefore defendant is not met their burden of proof.

 

 

 

The evidence established that the applicant was given a job supervising to churlish, meaning insubordinate individuals who sought to subvert him at every turn. These events were not a personnel action. The applicant was acknowledged to be a hard worker and a leader. Part of the stress was a dispute about the applicant taking sides which may have been friendship was not a good-faith personnel action.

 

The petition for reconsideration and writ of review were denied.

 

Delgado v. County of Santa Barbara (Court of Appeal/Noncertified) (83 CCC 25):

 

Matthew Delgado, a deputy of the Santa Barbara Sheriff’s Department, caused an automobile accident, injuring Darren Flath.

 

At the time of the accident Delgado was not on duty as a deputy sheriff, but was driving the vehicle by Senate Barbara County. Delgado was attending a training conference in another county and was driving from a personal event back to the residence at which he was staying the accident occurred.

 

The facts showed that Delgado was an employee of the County as a deputy sheriff, caused an automobile accident while attending a training conference in another county, that at the time of the accident Delgado was not on duty as a deputy sheriff but was driving a vehicle owned by the county, that the accident occurred while he was driving for a personal event (wedding rehearsal barbecue), was driving back to the residence where he was staying while attending the training conference, that Delgado’s participation in the training conference the use of his car to attend the trading conference were approved by County.

 

The trial court granted summary judgment in favor of the County and against Flath and Delgado on the grounds that Delgado was not acting within the scope of his employment at the time the accident occurred, and the doctrine of respondeat superior did not apply.

 

The Court of Appeal granted the writ of review and found that the special errand exception to the going and coming rule applied and the deviation was not material.

 

The Court of Appeal indicated that under the going and coming, an employee not regarded as acting within scope of his employment while going to or coming from the workplace.

 

An exception to the rule occurs if the employee is on a special errand.  If the employee is not simply on his way from his home to his place of work or returning from said place to his home for his purposes, but is coming from his home or his returning to it on a special errand either as part of his regular duties or at a specific order or request the employer, the employee is considered to be in the scope of his employment from the time that he starts on the errand until he is returned or until he deviates therefrom for personal reasons.

 

The special errand exception applies during the entirety of the errand unless the employee deviates from the errand in such a material manner as to constitute a departure from the course of employment.

 

To constitute an abandonment, however, the deviation or departure from the employer’s business to pursue a personal errand must be substantial and complete. A mere deviation for personal reasons will be insufficient.

Where the employee may be deemed to be pursuing a business errand and a personal objective simultaneously, he will still be acting within the scope of his employment.

 

In determining whether an employee has departed from the course and scope of employment, a variety of factors must be considered in weight, including the intent of the employees; the nature, time and place of the employees conduct; the work the employee was hired to do; the incidental acts the employer should reasonably expect the employee to do; the amount of freedom allowed to the employee in performing his or her duties; and the amount of time consumed in the personal activity.

 

All of the relevant circumstances must be considered and weighed in relation to one another.

 

In this case Delgado was on a special errand for the County while attending the training class. To determine whether Delgado’s driving to a private party in that county-owned vehicle was a departure from his special errand and, if so, whether it was a complete abandonment as a matter of law the court look to the facts of the case and the factors in court.

 

In this case Delgado was looking for a way to get a meal without spending too much money or imposing on his host. Delgado was authorized to use the county owned vehicle to obtain meals during the week, in addition to driving to and from the training class, and driving home after the conclusion of the class.

 

It was reasonable for Delgado to use the County owned vehicle to travel to the event as he did not have a private vehicle while attending the training class. Delgado was using the County owned vehicle because he was personally paying for and arranging for his tuition, and lodging.

 

Significantly, Delgado went back to the house in which she was staying and remained there for at least two hours before departing for the event.  The gathering was farther from the residence then was the training class, but only by two or 3 miles. Eating dinner clearly is reasonably necessary for the employee’s comfort and convenience during an out-of-town training session, and the only means for Delgado to purchase dinner was to use the County owned vehicle.

 

The County reasonably expected Delgado to obtain food during the week-long training session. Of particular significance in the court’s analysis is the discipline imposed on Delgado by the county due to what it described as Delgado’s “non-duty conduct” that was “in the course of employment.” While Delgado’s supervisor later attempted to downplay the legal significance of this language, Delgado’s discipline was never revoked, and the written notice of suspension was not corrected.

 

Delgado supervisor believed it was reasonable for Delgado to drive in the vehicle to the training event. Delgado’s direct supervisor testified the trip was reasonable, and that Delgado did not need the supervisor’s permission to go to the event. A lieutenant from the county and resources department stated in an e- mail after the accident that he had previously approved other employees attending personal events like the event Delgado attended, if it is within reason.

 

Delgado left for the gathering at 8 PM and arrived before 9 PM. He then left the gathering at about 11 PM. Gathering had no connection to Delgado’s employment or training. Delgado was paid for the period from 7:30 AM to 5:30 PM that day. The accident occurred well outside the time for the training class in the time allotted for computing to and from the training class.

 

The court concluded the evidence, when considered as a whole, did not show a clear abandonment by Delgado’s special errand so that the trial court could determine as a matter of law that he was outside the scope of his employment at the time of the accident.

 

The judgment was reversed and appellate was to recover the costs of appeal.

 

AOE-COE (2/3)
Headnote here

Villacis v. County of Los Angeles Sheriff’s Department (BDP) (45 CWCR 95)  

Applicant was injured in a fall from a four-story building on August 6, 2014 sustaining injury to various body parts. The applicant claimed he had slipped, causing the fall. Defendant contended that applicant jumped off the roof in an apparent suicide attempt.

The applicant testified at trial that he did not attempt suicide and was injured when he slipped on loose gravel and fell off the roof and he did not hear or see anyone else on the roof when he fell.

Two defense witness testified that they saw applicant on the roof.  One of the witnesses described applicant’s face as expressionless and playing before he kind of like casually leapt over the side as if it was nonchalant type of thing. The second witness testified that applicant looked surprised and startled when he turned and saw them, went to the edge of the roof, and hopped down onto something and see if he knew something was on the other side of the ledge that he could land on. A third witness, the last person to exit from the stairs onto the roof, after ensuring that the door would not lock once close, then turned to see applicant’s head striking up over the edge of the roof before ducking down. He described looking over the edge of the roof, seeing applicant’s hands touching the legs and just falling away from the latch.

Defendant attempted to call applicant’s wife is an adverse witness. Applicant objected, citing marital privilege.  Defendant argued that the wife can wave that privilege when she responded to questions and deposition but conceded that she had invoked the privilege for many of the questions asked although answering others. The WCJ, citing Evidence Code 971, did not allow her to testify. Defendant did not offer deposition and evidence.

The WCJ found that the three defense witness’s testimony was credible, but was not consistent and not corroborated, but found applicant’s testimony credible and the defendant had not met its burden of proof that applicant’s fall had been intentional.

Defendant filed a petition for reconsideration.

The WCAB began by concluding that the record lacks medical evidence regarding whether the applicant was suicidal and if so whether the attempted suicide was industrial. There was no psychiatric assessment in the record and none of the medical studies cited by defendants was reviewed by any physician nor offered into evidence.

 

Citing the in bank decision in Hamilton v. Lockheed Corporation (66 CCC 473), the panel concluded that whether an act is suicidal is a medical question, which requires medical evidence.

Pursuant to the case of Searle v. Allstate Life Insurance Company (38 CA3d 425), the burden of proving intent is properly allocated to the party charge with proving suicide (here, intent to self-inflict injury) an applicant should be permitted to present evidence to navigate suicidal intent. According to that case, if the applicant did not understand the physical nature and consequences of the act, whether he was sane or insane, then he did not intentionally kill himself. The panel concluded without any evidence of mental capacity at the time of the fall, it could not determine whether applicant’s fall was attempted suicide.

The panel conceded that great weight is ordinarily ascribed to the WCJ’s determination on credibility of the witnesses, but concluded that applicant’s wife’s testimony should have been received. Under evidence code 970, 971 and 980 in the case of People v. Bradford (70 CA2d 333), there are two areas of marital privilege: first, a testifying spouse cannot be compelled to testify against another spouse, with certain exceptions. That privilege is vested solely in the testifying spouse. The second area, vested in either spouse if one spouse does testify, is that the testifying spouse cannot disclose confidential marital communications.

This case, applicant’s wife already waived her privilege by answering some questions in the deposition, while asserting the confidential communication privilege as to others. The WCJ should’ve allowed applicant’s wife to testify to the questions that did not contain confidential marital communications. Any further privilege assertions would’ve been analyzed by the WCJ as to whether the privilege would apply. Given the wife’s deposition testimony, defendant should have had the opportunity to cross-examine her at trial.

The panel rescinded the matter and returned it for a Status Conference to allow the parties how to best proceed.

In a footnote the panel remarked that the wife had apparently previously given recorded statements to an insurance investigator to support her husband’s claim. These were not transcribed or offered into evidence. The panel suggested, on remand, that the parties consider whether the wife’s recorded statements constitute a waiver of any confidential communication privilege she holds and, moreover, whether a complete waiver occurred under Evidence Code 973.

It should be noted that the WCAB is bound by the Evidence Code regarding the issue of privilege.

Zhu v. Workers’ Compensation Appeals Board (Court of Appeal) (  ____CCC_____):

The applicant, an in-home caregiver, was riding her bicycle from one private home where she worked to another home where we she was scheduled to work when she was struck and injured by a car. She was paid for working at both locations.

The WCAB concluded that the going and coming rule barred the applicant’s claim for worker’s compensation benefits.

 

The dissenting Commissioner and the WCJ found an exception to the going coming rule.

The Court of Appeal concluded that an applicant who was injured while riding her bicycle between the homes of disabled clients to care for them on behalf of her employer (the state) was within the course of employment.

The going and coming rule does not apply when the employee is in transit between points other than the home and the workplace.

In these cases, the real issue is not whether the going and coming applies, but whether transit is part of the employment or the employment relationship.

When it is clear that the transit is not a commute between home and work at a fixed time, the inquiry should be whether the transit was the employer’s choice or was for some benefit to the employer or the employment relationship.

The Court of Appeal ruled that under the facts of this case, the going and coming rule does not apply because the applicant was not commuting between her home and the workplace at a fixed time (Hinojosa v. Workers’ Comp. Appeals Bd. (1972) (8 Cal.3d. 150, 157]).   Zhu’s transit bestowed a direct benefit on the Department, as the Department knew that Zhu had to transit between homes to service more than one home a day, her transit was at the implied request of the Department and was thus a part of her employment relationship.

The applicant’s transit for the Department was for the benefit of the Department and was impliedly requested by the department.

In addition, the Court of Appeal agreed did not disagree with Commissioner Razo that the “required vehicle” exception to the going and coming rule applied if the case facts had come under the going and coming rule.

Carrillo v. Workers’ Compensation Appeals Board (W/D) 82 C.C.C. 372)

Applicant, on 4/17/2011, was sent home form his shift as a busboy because business was slow that night. Applicant returned to the restaurant later than evening and went to the patio and bar to socialize. The restaurant did not ask him to return and the manager/owner was not there.

Applicant remained at the restaurant consuming alcohol, until he was asked to leave due to his rowdy behavior. Applicant, after leaving the restaurant, drove his car to a gas station to attempt to buy cigarettes. The gas station refused to sell him cigarettes and he drove to another gas station. Applicant was involved in a single-car accident while driving shortly after midnight.

The WCJ found that applicant did not sustain injury AOE/COE. Applicant filed for reconsideration asserting that the employer condoned the use of alcohol by its employees such that the employer should be found liable for applicant’s intoxication and injury. Applicant cited McCarty v. WCAB. The WCJ in the R&R pointed out that the instant case was distinguishable from McCarty since applicant’s post-shift drinking was not hosted by the employer.

The WCAB denied reconsideration and adopted and incorporated the WCJ’s R&R. They also pointed out that under Labor Code § 3600(a)(9), injuries caused by “off duty” recreational social, or athletic activities are compensable only if the activities are a reasonable expectancy of employment or are expressly or impliedly required by the employment. Pointing out the “reasonable expectancy” test in Ezzy v. WCAB, the panel concluded that applicant did not establish that he had a reasonable belief that his conduct; returning to work to socialize and drink after his shift had ended, was expected or condoned by his employer.

Applicant’s petition for writ of review was denied.

Iniguez v. Workers’ Compensation Appeals Board (Court of Appeal, not published) 82 C.C.C. 310)

Applicant claimed an industrial injury on April 5, 2010 to his head, back, both shoulders and lower extremities. In March 2011, the applicant was evaluated by a panel Qualified Medical Evaluator in Orthopedic Surgery who found injury to applicant’s 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 electro-diagnostic evidence of the nerve damage from 2010. 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 Workers’ 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.

At 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 and 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 claimed, and (2) that by adding res judicata, a different theory, to her recommendation, the WCJ should have given applicant an opportunity to respond. The dissent also disagreed with the judge’s reasoning that it was up to the 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 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 for 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 to the shoulder and knee had 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 injuries suffered. If so, the case would have ended, but it was clear to all that it was far from over in 2012, since parts of body injured was an issue at the 2015 hearing, without 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; it is pointless to consider whether the court had authority to act.

The court strongly agreed with the Board’s present position that a finding of industrial injury to certain body parts did not bar applicant from presenting evidence of injury to other body parts at a subsequent proceeding. The court accepted the Board’s request to annul the decision and to remand for further proceedings.

County of Sacramento v. Workers’ Compensation Appeals Board (McCartney)(Court of Appeal, not published) 82 C.C.C. 672

The court majority concluded that the appeals Board erred in reversing the WCJ, who found that applicant, a deputy sheriff, did not sustain injury arising out of and occurring in the course of employment to his skin in the form of actinic keratosis. The Board had applied the “contributing cause” standard of South Coast Framing, Inc. v. Workers’ Comp. Appeals Bd. (Clark) (2015) 61 Cal.4th 291 (80 C.C.C. 489), while relying upon the PQME’s opinion that sun exposure was a contributing factor to the development of applicant’s actinic keratosis though she could not formulate the precise numerical percentage of the contributing effect.

According to the majority of the court, however, the PQME “never acknowledged that there was a causative role of unknown degree arising out of McCartney’s employment. Rather, she took great pains to explain (repeatedly) that it was not possible to attribute the cause of applicant’s condition to any particular period of exposure to the sun, and therefore it was nothing more than speculation to identify the work-related exposure as a contributing cause.” The Court of Appeal ruled on this evidence, they found the WCJ properly concluded that the applicant failed to establish that work-related sun exposure contributed to his condition by a reasonable probability.

The dissent countered, among other things, that the sun exposure McCartney received throughout his life, including his years on the police force, was cumulative and contributory, and that the sun exposure applicant received while employed as a law enforcement officer played some role in the development of actinic keratosis, but the PQME could not give a definitive percentage of how much it caused. The majority disagreed that the PQME’s testimony could be read as supporting the latter point.

 

AOE-COE (3/3)
Headnote here

Torres v. Greenbrae (BPD) (45 CWCR 152):

 

The applicant was employed as a tree trimmer, fell from a tree, hit his head on the tree trunk and lost consciousness. The applicant was transported to hospital and diagnosed with a closed head injury, loss of consciousness, and a cervical strain.

The applicant complained of dizziness, nausea, problems standing, severe pain in the head, neck pain, confusion when driving. The applicant complained of nightmares about falling generally and falling out of a tree.

 

The parties stipulated that he sustained physical injuries to his head, neck, back, and ears.

 

The applicant was seen by a psychiatrist who diagnosed a mild traumatic brain injury and concluded the applicant had sustained a psychiatric injury secondary to the brain injury. He signed the applicant with a 14% whole person impairment. The applicant was also seen by Agreed Medical Evaluator in neurology: found post traumatic headaches, cognitive, vestibular, neck impairments.

 

The matter proceeded to trial and the parties stipulated applicant sustained a psychiatric injury, disagreed on whether there was compensable permanent disability.

 

The WCJ determine the applicant sustained an industrial injury to his head, neck, back, hears, and psyche, with resulting cognitive difficulties, but also determined that the psychiatric permanent disability was not compensable because applicant had not incurred a catastrophic injury. According to the record, LC §4660.1 was raised at trial, but the violent act exception to the prohibition of psychiatric compensable consequence permanent disability was not specifically addressed.

 

Applicant filed a petition for reconsideration.

 

The WCAB concluded that applicant psychiatric injury arose directly from the event that caused this injury. The panel considered the applicant’s nightmares as suggestive that applicant sustained a direct psychiatric injury and noted that the psychiatrist had not addressed whether applicant’s psychiatric injury was direct or compensable consequence of the physical injury.

 

Labor Code §4660.1(c)(1) denies an increase in permanent disability for psychiatric, sleep and sexual dysfunction that arose from a compensable physical injury, but does not bar psychiatric impairment that directly arises from the injury.

 

The panel indicated there was conflicting evidence on whether the psychiatric injury was a direct result of the fall and thus required medical-legal clarification for determination on this issue.

 

The panel concluded that, because applicant raised Labor Code §4660.1 at trial, the issue of violent act exception to the bar of increase ratings for psychiatric disability was preserved even though is not specifically addressed.

 

The panel next determined that applicant’s injury fit filed an act exception. Pursuant to Labor Code §4660.1(c)(2)(A), even where the psychiatric injury as a compensable consequence of the physical injury, is compensable if it resulted from being a victim of a violent act or direct exposure to a significant violent act within the meaning of Section 3208.3.

 

To fall under the violent act exception, the act pursuant to the cases of Larsen (44 CWCR 111) and Madson (45 CWCR 65) must be (1) be characterized by strong physical force, (2) characterized by extreme or intense force, or (3) vehemently or passionately threatening.

 

The panel rejected defendant’s contention that the term victim is used in the Labor Code Section, showed a legislative intent to limit the section to person’s harm by criminal acts. Panel noted the word victim was not commonly so narrowly construed.  Persons are victims of natural disasters, diseases and political oppression which are not criminal acts.

 

Further, the legislature had not expressly limited the violent act exception to criminal acts, as it had in Labor Code §4650.5, which conditions its application to situations where the injury as a result of a criminal act of violence against an employee.

 

The panel concluded that under the plain language of the statute applicant’s psychiatric injury was compensable. The Board stated, applicant’s injury in a fall from a height, striking his head in a tree trunk, was the result of an extreme or intense force and was vehemently threatening, thus fitting two of the three violent act categories.

 

Because the injury was compensable under the violent act exception, the question of whether was a catastrophic injury question was moot.

 

The psychiatrist had added sleep and sexual dysfunction pursuant to Almaraz/Guzman II.

 

The WCAB stated that sleep and sexual dysfunction ratings were add-ons that §4660.1 specifically excludes and that the violent act exception only applies to psychiatric add-ons.

 

Labor Code §4660.1 did not overrule Almaraz/Guzman II decision in the rules must be read together. The legislature, though §4660.1, undertook to eliminate sleep and sexual dysfunction add-on, to allow such add-ons under Almaraz/Guzman II would circumvent the intent of Labor Code §4660.1, which was to promote uniformity and decrease the number of compensable consequence psychiatric, sleep and sexual dysfunction claims, which, in the legislature’s view constituted a fraud risk.

 

Moreover, the panel stated, sleep and sexual dysfunction are incorporated into the activities of daily living calculation at table 1-2 of the AMA guides. In short, the sleep and sex disorder at-ions under Almaraz/Guzman II in this case would not only appear to frustrate the intent of LC 4660.1 but would also appear to allow duplicate rating for the same condition.

 

The WCAB rescinded the WCJ’s findings and determined that the strict AMA guides rating for psychiatric permanent disability be included in combined with the compensable physical disability rating, increasing applicant’s permanent disability from 57% to 78%.

 

 

Villacis v. County of Los Angeles Sheriff’s Department (BDP) (45 CWCR 95) (EXPERT MEDICAL EVIDENCE NEEDED IN ATTEMPTED SUICIDE CASE)

 

Applicant was injured in a fall from a four-story building on August 6, 2014 sustaining injury to various body parts. The applicant claimed he had slipped, causing the fall. Defendant contended that applicant jumped off the roof in an apparent suicide attempt.

 

The applicant testified at trial that he did not attempt suicide and was injured when he slipped on loose gravel and fell off the roof and he did not hear or see anyone else on the roof when he fell.

 

Two defense witness testified that they saw applicant on the roof.  One of the witnesses described applicant’s face as expressionless and playing before he kind of like casually leapt over the side as if it was nonchalant type of thing. The second witness testified that applicant looked surprised and startled when he turned and saw them, went to the edge of the roof, and hopped down onto something and see if he knew something was on the other side of the ledge that he could land on. A third witness, the last person to exit from the stairs onto the roof, after ensuring that the door would not lock once close, then turned to see applicant’s head striking up over the edge of the roof before ducking down. He described looking over the edge of the roof, seeing applicant’s hands touching the legs and just falling away from the latch.

 

Defendant attempted to call applicant’s wife is an adverse witness. Applicant objected, citing marital privilege.  Defendant argued that the wife can wave that privilege when she responded to questions and deposition but conceded that she had invoked the privilege for many of the questions asked although answering others. The WCJ, citing Evidence Code 971, did not allow her to testify. Defendant did not offer deposition and evidence.

 

The WCJ found that the three defense witness’s testimony was credible, but was not consistent and not corroborated, but found applicant’s testimony credible and the defendant had not met its burden of proof that applicant’s fall had been intentional.

 

Defendant filed a petition for reconsideration.

 

The WCAB began by concluding that the record lacks medical evidence regarding whether the applicant was suicidal and if so whether the attempted suicide was industrial. There was no psychiatric assessment in the record and none of the medical studies cited by defendants was reviewed by any physician nor offered into evidence.

 

Citing the in bank decision in Hamilton v. Lockheed Corporation (66 CCC 473), the panel concluded that whether an act is suicidal is a medical question, which requires medical evidence.

 

Pursuant to the case of Searle v. Allstate Life Insurance Company (38 CA3d 425), the burden of proving intent is properly allocated to the party charge with proving suicide (here, intent to self-inflict injury) an applicant should be permitted to present evidence to navigate suicidal intent. According to that case, if the applicant did not understand the physical nature and consequences of the act, whether he was sane or insane, then he did not intentionally kill himself. The panel concluded without any evidence of mental capacity at the time of the fall, it could not determine whether applicant’s fall was attempted suicide.

The panel conceded that great weight is ordinarily ascribed to the WCJ’s determination on credibility of the witnesses, but concluded that applicant’s wife’s testimony should have been received. Under evidence code 970, 971 and 980 in the case of People v. Bradford (70 CA2d 333), there are two areas of marital privilege: first, a testifying spouse cannot be compelled to testify against another spouse, with certain exceptions. That privilege is vested solely in the testifying spouse. The second area, vested in either spouse if one spouse does testify, is that the testifying spouse cannot disclose confidential marital communications.

 

This case, applicant’s wife already waived her privilege by answering some questions in the deposition, while asserting the confidential communication privilege as to others. The WCJ should’ve allowed applicant’s wife to testify to the questions that did not contain confidential marital communications. Any further privilege assertions would’ve been analyzed by the WCJ as to whether the privilege would apply. Given the wife’s deposition testimony, defendant should have had the opportunity to cross-examine her at trial.

 

The panel rescinded the matter and returned it for a Status Conference to allow the parties how to best proceed.

 

In a footnote the panel remarked that the wife had apparently previously given recorded statements to an insurance investigator to support her husband’s claim. These were not transcribed or offered into evidence. The panel suggested, on remand, that the parties consider whether the wife’s recorded statements constitute a waiver of any confidential communication privilege she holds and, moreover, whether a complete waiver occurred under Evidence Code 973.

 

It should be noted that the WCAB is bound by the Evidence Code regarding the issue of privilege.

 

Zhu v. Workers’ Compensation Appeals Board (Court of Appeal) (  ____CCC_____):

 

The applicant, an in-home caregiver, was riding her bicycle from one private home where she worked to another home where we she was scheduled to work when she was struck and injured by a car. She was paid for working at both locations.

 

The WCAB concluded that the going and coming rule barred the applicant’s claim for worker’s compensation benefits.

 

The dissenting Commissioner and the WCJ found an exception to the going coming rule.

 

The Court of Appeal concluded that an applicant who was injured while riding her bicycle between the homes of disabled clients to care for them on behalf of her employer (the state) was within the course of employment.

 

The going and coming rule does not apply when the employee is in transit between points other than the home and the workplace.

 

In these cases, the real issue is not whether the going and coming applies, but whether transit is part of the employment or the employment relationship.

 

When it is clear that the transit is not a commute between home and work at a fixed time, the inquiry should be whether the transit was the employer’s choice or was for some benefit to the employer or the employment relationship.

 

The Court of Appeal ruled that under the facts of this case, the going and coming rule does not apply because the applicant was not commuting between her home and the workplace at a fixed time (Hinojosa v. Workers’ Comp. Appeals Bd. (1972) (8 Cal.3d. 150, 157]).   Zhu’s transit bestowed a direct benefit on the Department, as the Department knew that Zhu had to transit between homes to service more than one home a day, her transit was at the implied request of the Department and was thus a part of her employment relationship.

 

The applicant’s transit for the department was for the benefit of the department and was impliedly requested by the department.

 

In addition, the Court of Appeal agreed did not disagree with Commissioner Razo that the “required vehicle” exception to the going and coming rule applied if the case facts had come under the going and coming rule.

 

County of Sacramento Contracts v. Workers’ Compensation Appeals Board (McCartney)

(Court of Appeal, unpublished) (____CCC____)

 

The Court majority concluded that Appeals Board erred in reversing the WCJ, who found that applicant, a deputy sheriff, did not sustain injury arising out of and occurring in the course of employment to his skin in the form of actinic keratosis.

 

The Board had applied the “contributing cause” standard of South Coast Framing, Inc. v. Workers’ Comp. Appeals Bd. (Clark) (2015) 61 Cal.4th 291 [80 Cal.Comp.Cases 489], while relying upon the PQME’s opinion that sun exposure was a contributing factor to the development of applicant’s actinic keratosis though she could not formulate the precise numerical percentage of the contributing effect.

 

According to the majority of the Court, however, the PQME “never acknowledged that there was a causative role of unknown degree arising out of McCartney’s employment.  Rather, she took great pains to explain (repeatedly) that it was not possible to attribute the cause of applicant’s condition to any particular period of exposure to the sun, and therefore it was nothing more than speculation to identify the work-related exposure as a contributing cause.

 

The Court of Appeal ruled on this evidence, the WCJ properly concluded that the applicant failed to establish that work-related sun exposure contributed to his condition by a reasonable probability.”

 

 

 

The dissent countered, among other things, that the sun exposure McCartney received throughout his life, including his years on the police force, was cumulative and contributory, and that the sun exposure applicant received while employed as a law enforcement officer played some role in the development of actinic keratosis, but the PQME could not give a definitive percentage of how much it caused.

 

The majority disagreed that the PQME’s testimony could be read as supporting the latter point.

 

Rockefeller v. Department of Corrections (BPD) (45 CWCR 150):

 

The applicant committed suicide by shooting himself in the head.

 

The applicant surviving dependence filed a claim against the employer, alleging that his employment caused his death.

 

The panel Qualified Medical Evaluator reviewed applicant’s records, took a history from the widow that included industrial stress, alcoholism and marital and family problems, without further details being given in his opinion. He did not diagnose applicant with any psychological injury under the DSM-IV with regard to causation. The physician opined that 80% of the cause of applicant suicide related to nonindustrial factors, including 50% alcoholism and alcohol dependence and 30% to chronic marital discord as evidenced by marital therapy notes. Industrial cumulative stress formed the remaining 20% of the cause of applicant suicide.

 

The physician reading Labor Code §3600(a)(6), concluded that the proper causation standard was whether applicant willfully and deliberately committed suicide. In assessing that question, the physician stated the applicant became willfully intoxicated and took his own life. The only way the applicant’s claim would be compensable is if the trier of fact concluded that voluntary intoxication is not a willful act. The doctor affirmed that opinion in his deposition, but also stated, when questioned about the standard set forth in the case of South Coast Framing (80 CCC 489), it followed that the industrial stress was a contributing cause to applicant’s death.

 

The physician also testified that the suicide by gunshot was undoubtedly a deliberate action that the worker performed while intoxicated, which he took to be a willful act, although in voluntary intoxication is a different issue.

 

The physician concluded that pursuant to South Coast the sole issue was whether the employment contributed to applicant’s death, and the answer was yes.

 

The WCJ found that a decedent’s death by suicide entitled his dependence to death benefits.

 

Defendant filed a Petition for Reconsideration.

 

The WCAB began by pointing out that the record had been incompletely developed, pointing out that the Qualified Medical Evaluator emphasize the cause of the suicide and not the cause of the underlying injury.

 

Acts of suicide, do not generally arise directly from events of employment but rather are the compensable consequence of an underlying industrial injury.

 

Therefore, to establish a compensable death claim by suicide, applicant’s dependence needed to first establish a compensable injury.

 

The Qualified Medical Evaluator did not diagnose an underlying psychiatry condition pursuant to DSM-IV, a necessary condition to establish a compensable psychiatric injury.

 

The WCAB next stated that under the case of “Rolda”, applicant survivors needed to establish that actual events of employment caused a psychiatric injury and that those events were either the predominant, or and a substantial cause of the injury.

 

Only after such a determination could the survivors prove the injury contributed to the applicant’s death under the South Coast case standard, observing that its interpretation was consistent with the facts in that case, where a prior excepted industrial injury resulted in medication use which, in turn, contributed to death.

 

Thus, with regard to suicide, applicant carries the initial burden of proof that an industrial injury exists and that the industrial injury contributed to decedent’s active suicide. (LC 5705)

 

Emphasizing the record was inadequately developed on the diagnosis and predominant or substantial cause issues, the panel reason that without any determination as to whether applicant sustained an industrial injury to his psyche, it is impossible to conclude whether an industrial injury contributed to applicant committing suicide.

 

Once the applicant satisfies these burdens by a preponderance of evidence, the burden shifted to defendant to establish an affirmative defense.

 

Defendant has raised the issue of whether applicant’s injury was intentionally self-and conflicted. To establish an affirmative defense to a death claim from an intentionally or willfully afflicted injury, defendant has the burden of proof by a preponderance of the evidence.  The “irresistible impulse” test states that if the decedent’s dependence could establish that the industrially caused injury caused the applicant to feel that the death would provide the only relief from the injury, then the death was compensable and less defendant could establish that applicant could have resisted the impulse. (Burnight 25 CCC 121)

 

In the case of Chu v. WCAB (61 CCC 926) further discuss Labor Code §3600(a)(6) willful and deliberate act barred to compensability.  The WCAB applying both cases stated that with regard to the affirmative defense of intentional infliction of injury at willful and deliberate causation of death, defendant must prove that decedent’s decision to commit suicide was voluntary in the sense that decedent could have decided against suicide and refrain from killing himself, in spite of any mental illness. In a footnote, the panel commented that the more methodical and planned out a suicide is, the more likely it will be found to be the result of an intentional or willful act.

 

The WCAB rescinded the WCJ’s determination and returned the case to the trial level to establish whether applicant sustained a compensable psychiatric injury and whether that injury contributed to applicant suicide and whether defendant could establish the affirmative defense.

 

Puccio v. Online Graphics (BPD) (45 CWCR 155):

 

Applicant sustained an injury to his right wrist and several ribs on the phone from a ladder.

 

Paramedics noted that the applicant was in atrial fibrillation with rapid ventricular response. Because of multiple contusions and fractures from the fall, the applicant was not provided the anti-coagulant Heparin.

 

In the hospital two days later he developed acute altered mental status and right hemiparesis, and was diagnosed with left hemispheric and was diagnosed with left hemispheric embolic cerebrovascular accident (CVA), that resulted in the development of dense right hemiparesis with expressive aphasia.

 

The Agreed Medical Evaluator reported that applicant’s arterial fibrillation was not industrially related and nine not been caused by the fall from the latter, he stated his belief that applicant was actually having arterial fibrillation when he was on the latter, which may have caused his fall. He went on to state that the nonindustrial arterial fibrillation caused the CPA, and therefore the CPA was nonindustrial.

 

The Agreed Medical Evaluator changed his opinion during the deposition. The physician concluded the CPA was industrially related. The physician had been provided, for the first time, information that the orthopedic injuries had been found industrial. He then noted that the doctors had withheld blood thinning medication, the indicated treatment for arterial fibrillation, because of the danger its administration posed to a person with applicant’s fracture and contusion injuries.

 

The Agreed Medical Evaluator concluded it was better than 50%, he would not have had a CVA if he had been started on heparin two or three days before his embolic CVA. He further stated that it was his best medical opinion that, if the fall itself is being considered industrial, then everything that happened pertaining to the fall must be industrial, and the fact that he was not placed on anticoagulant therapy which led to a greater than 50% chance his embolic CVA has to be industrial.

 

The physician in a supplemental report after reviewing additional records concluded that if fall and subsequent orthopedic injuries have been deemed to be industrial, it is his expert opinion that the CPA, which occurred because of the arterial fibrillation, and the fact that he could not be started on anticoagulant therapy also arose out of or was caused by the fall. This is to the degree of reasonable medical probability.

 

The WCJ disagreed with the AME, observing that the evaluator based his opinion on a legal, rather than medical conclusion. The Agreed Medical Evaluator had changed his opinion on learning that there’d been a finding that applicant’s injuries were industrial. In determining that the CVA was nonindustrial the WCJ relied on the first opinion of the Agreed Medical Evaluator.

The WCAB granted reconsideration and started by indicating the definition of a compensable consequence. A subsequent injury constitutes a compensable consequence of an industrial injury if the industrial injury was a contributing factor in the occurrence of the subsequent injury. (Beaty 43 CCC 444)

 

The WCAB further stated that is well settled that injuries occurring during the treatment of the industrial injury are compensable consequences of an industrial injury. (Heaton 11 CC 78).  In Heaton and was held that the aggravation by negligent medical treatment is compensable and rated related back to the industrial injury.

 

The WCAB reviewed several cases holding that medical treatment for nonindustrial condition may be warranted on an industrial basis if it is needed to cure or relieve the effects of the industrial injury.

 

The WCAB recognized that but for, and because of, applicant’s industrial injury, he had been denied necessary medical treatment to avoid the risk of a stroke that then occurred and caused his present condition.

 

The attending physician had to decide whether to treat the arterial fibrillation in light of the need to take applicant the surgery to repair his fractured wrist. The fact that they chose not to administer the blood thinning drugs meant the applicant had a greater than 50-50 chance of suffering a stroke.

 

Because the medical decision to withhold the treatment for the arterial fibrillation was based on treatment for his industrial injury, his resulting stroke was a compensable consequence of that injury.

 

The WCAB granted reconsideration and amended the WCJ’s decision to include a finding of industrial injury to applicant’s internal and cardiovascular system in the form a CVA.

 

Bass v. State of California Department of Corrections (BPD) (2017 Cal. Wrk. Comp. P.D. LEXIS 213):

 

The WCJ found applicant suffered a single cumulative trauma injury to his heart, neck, low back, right knee and left foot while working as a correctional officer during the period ending July 15, 2014.

 

Defendant filed a Petition for Reconsideration.

 

That applicant suffered two cumulative injuries one to his heart and orthopedic parts of the body because there were two different dates of injury pursuant to Labor Code §5412.

 

The WCAB agreed with the WCJ.

 

The WCAB found that the date of injury pursuant to Labor Code §5412 to applicant’s heart and orthopedic injuries relevant to the statute of limitations and application of liability for cumulative injury pursuant to Labor Code §5500.5.

However, the WCAB found that section is not determinative of whether there is one or two continuous trauma is. Even though there were two different dates of injury pursuant to Labor Code §5412 or was only one continuous trauma because there was only one period of injurious exposure.

 

Ponce v. Barrett Business Services (BPD) (2017 Cal. Wrk. Comp. P.D. LEXIS 220):

 

The WCJ found that applicant sustained a cumulative trauma injury to his left wrist during the period ending March 4, 2015.

 

Defendant filed a Petition for Reconsideration arguing that the wrist injury was a compensable consequence of applicant’s prior shoulder injury incurred at applicant’s previous employment was not try determined by the WCJ.

 

The WCAB upheld the WCJ.

 

The WCAB found that an injury is a compensable consequence if the subsequent injury is the direct and natural consequence of the original injury and relates back to the original injury.

 

An acceleration or aggravation of pre-existing industrial injury is compensable as a separate injury.

 

If the aggravation is reasonably attributable to the employee’s subsequent employment there is a separate injury to that period of employment.

 

The WCAB found medical evidence in this case indicated that the wrist injury was due to stress on applicant’s wrists because of work he was performing for defendant. That the opinion of the qualified medical evaluator stating that the prior shoulder injury was a contributing factor regarding stress on the wrist was not inconsistent with this explanation regarding why cumulative trauma turn applicant’s employment by defendant was also a contributing factor.

 

The WCAB found the injury to the left wrist was supported by substantial evidence.

 

Apportionment (1/2)
Headnote here

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.

 

Apportionment (2/2)
Headnote here

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.”

 

Compensable Consequence Injury
Headnote here

Minarik v. Del Taco (BPD) (2017 Ca. Wrk. Comp. P.D. LEXIS 390)

The applicant was injured in an automobile accident while returning home from a medical examination with the Agreed Medical Evaluator for an accepted injury to her back.

The WCAB found the applicant’s injury did not occur as a result of the litigation process under Rodriguez v. WCAB (59 CCC 14), because the applicant was required to attend the medical evaluation in order to obtain her workers compensation benefits, and failure to participate could potentially lead to a denial of benefits.

The Appeals Board found that participation in an AME evaluation was a kindred medical treatment, in that the parties were not obtaining evidence to dispute whether or not the applicant sustained an industrial injury, but were seeking medical opinion on the nature and extent of her disability and need for medical treatment.

 

Copy Service
Headnote here

Williams v. First Student (BPD) 45 CWCR 43

Applicant claimed a cumulative trauma injury while working as a school bus driver. The case was dismissed for lack of prosecution in January 2015.

Prior to the dismissal, applicant’s attorney had issued subpoenas through lien claimant Med-Legal Photocopy from May through November 2011.

The WCJ granted defendant’s petition to quash the subpoenas for the records of two healthcare providers. Defendant filed a second petition to quash subpoenas directed to additional organizations on the basis that the subpoenas were duplicative but the WCJ did not act on this petition and applicant obtained the documents sought by those subpoenas.

A trial judge held the issue of the validity of the liens for subpoenas not previously quashed. Lien claimant presented invoices with accompanying proofs of service on defendant. Included in the exhibits was an Invoice Explanation & Review letter that summarized and attached all previous billings and that requested payments. Defendants offered no evidence and no objections to the invoice or the letter.

The WCJ issued a findings and awarding lien claimant reimbursement pursuant to Labor Code §4662 (a) for charges of $102.20 and $80.00 for two entities with interest and statutory increases for photocopying, but denied reimbursement for subpoena-related costs for the majority of subpoenas issued. The WCJ found unreasonable and unnecessary as those were for the same documents that defendant already subpoenaed before the lien claimant issued the subpoena. The WCJ also denied reimbursement for subpoenas that hadn’t been served on the parties in the case, reasoning that applicant is required to first request documents from the entity before subpoenaing them. Lien claimant filed a petition for reconsideration.

The WCAB cited the case of Allison (64 C.C.C. 624) that the Labor Code and the WCAB rules generally provide adequate tools to practitioners for liberal discovery including the ability to subpoena records. Labor Code §4622 requires defendants to pay all medical legal expenses for which the employer is liable.

Labor Code section 4620 (a) provides that expenses are any costs and expenses incurred by or on behalf of any party which expenses may include medical records, for the purpose of proving or disproving a contested claim. The Board cited the en banc opinion and Cornejo 81 C.C.C. 451 and Martinez 78 C.C.C. 444, that medical-legal expenses include copy service fees incurred when obtaining medical and other records which may be recovered by the filing of a lien claim.

Citing the case of Torres 77 C.C.C. 1113, the Board stated that a lien claimant asserting a lien claim has the burden of proving the necessary elements of its claim. Those elements include showing that (1) a contested claim existed that the time expenses were incurred; (2) the incurred expenses were for the purpose of proving or disproving the contested claim; and (3) the expenses were reasonable and necessary at the time they are incurred. (Labor Code §§ 4620 and 4621 and the case of American Psychometric Consultants 60 C.C.C. 559). Pursuant to Labor Code § 4622 (e) (1), if the defendant objects to the reasonableness or necessity of the incurred expenses, the defendant must notify the provider and must indicate the reasons for the objection.

The panel stated that the en banc decision in Otis 45 C.C.C. 1132 requires a defendant to make a specific and non-conclusory written objection to the reasonableness of any medical-legal bill within 60 days of receipt. Failure to do so precludes the defendant from raising reasonableness of the medical-legal cost as a defense. Citing American Psychometric, the panel observed that although the Legislature repealed the cost provisions of the former section in 1984 and replaced them with Labor Code § 4620, the reasoning of the Otis decision remains sound. In this case, all parties agree that the claim was contested and the expenses that were incurred were for the purpose of proving or disproving a contested claim.

The panel pointed to the public policy of liberal pre-trial discovery that may reasonably lead to relevant and admissible evidence in workers’ compensation cases. Pursuant to Rule 10530, it is not necessary that the attorney first seek to obtain copies of the documents by written release before seeking them by subpoena in order for the lien for photocopy services to be valid.

Using subpoenas to obtain those documents is not unreasonable noting that an attorney has broad discretion when determining the best method of obtaining the production of documents in order to fulfill his or her duty of representation so long as there is no significant evidence of abuse of that discretion. The panel rejected defendant’s contention that the contested subpoenas duces tecum are unnecessary because the defendant had already subpoenaed the same documents and applicant’s attorney need only have to request them from defense counsel.

The panel observed there was no evidence at trial that the defendant’s subpoenas had resulted in the production of documents to defendant or that the documents were ever received. Also significant was the fact that the WCJ never acted on the second petition to quash the subpoenas.

The panel found the record insufficient to support the WCJ’s conclusions and findings that the subpoenas were unreasonable and unnecessary at the time they issued.

As stated, Labor Code §4621 (a) provides that the reasonableness and necessity for incurring these expenses shall be determined with respect to the time when the expenses were actually incurred.

Finally, the panel saw authority for the judge’s conclusion that lien claimants could not recover for the cost of subpoenas served on a party to the case, if the applicant had not first informally sought copies of the documents from the party. The panel vacated the decision and returned the matter to the trial level based on the standards set forth in this decision.

 

Date of Injury (1/2)
Headnote here

Gravlin v. City of Vista (BPD) (2017 Cal. Wrk. Comp. P.d. LEXIS 413)

 

The Appeals Board affirmed the WCJ’s finding that applicant’s employment as a firefighter caused one single cumulative injury in the form of skin cancer and heart condition/hypertension, causing a combined permanent disability is 74%.

 

The WCAB rejected defendant’s assertion that applicant had two separate dates of injury pursuant to Labor Code §5412, one for his heart/hypertension and another to his skin in the form of skin cancer.

 

Defendant argued for two different dates of injury because applicant’s condition became permanent and stationary for each of the injuries at a different time. The WCAB held that when separate disabilities arise out of a single injury they are rated together, even if those disabilities do not become permanent stationary at the same time. The WCAB held that generally where employee suffers contemporaneous injury to different body parts over extended periods of time, employee has suffered one cumulative injury.

 

That there can be separate periods of cumulative injury over extended employment, if the employment caused compensable temporary or permanent disability, followed by returned to work and new an additional temporary permanent or temporary disability.

 

The WCAB held there was no evidence in this case establishing separate periods of disability.

 

Although the applicant continued to work until 2005 there was no evidence that the applicant suffered any new injurious exposure after he was declared permanent and stationary in 2002.

 

Date of Injury (2/2)
Headnote here
  1. Gonzalez v. Jezowski & Markel Contractors (BPD) (44 CWCR 137):

 

The applicant last worked his duties on November 22, 2013, prior to which time he had obtained medical treatment. The applicant indicated he stopped working on that date because of back pain. The applicant’s job duties included frequent bending and lifting heavy objects. The applicant testified that the physicians could not identify the cause of his back pain, although he had, on his own, form the opinion that his back pain was caused by his work.

 

Applicant had back surgery on March 14, 2014, and in May 2014 the physician who performed the surgery confirmed that applicant’s injury was work related.

 

Parties used an Agreed Medical Evaluator who concluded that because applicant’s exposure, albeit on modified duties, continued through November 25, 2013, that was the date of injury.

 

The arbitrator reasoned the date of injury was the final date worked on full duty, and in a Findings and Award, dated July 23, 2015, found the applicant’s cumulative trauma date of injury was November 22, 2013.  The injury caused permanent disability of 37%, with indemnity payable total amount of $41,400.

 

Applicant sought reconsideration contending the date of injury was May 2014, when medical opinion confirmed the applicant’s disability was caused by his work.

 

The WCAB indicated that date of injury for a continuous trauma is determined by Labor Code §5412, which states the date of injury in cumulative trauma cases is the date on which the employee’s suffered disability and knew, or reasonably should have known, that said disability was caused by work.

 

Under the case law, the panel indicated that medical opinion is important but not dispositive in establishing employee’s knowledge of industrial injury.

 

The WCAB, citing City of Fresno (Johnson) (50 CCC 53), in the absence of medical opinion confirming industrial injury, an employee is not usually charged with knowledge that the disability was work-related.  Johnson recognized, however, an exception where the nature of the disability in the employees training, intelligence or qualifications is such that an employee should have known that the disability was caused by work.

 

Applying the law to the facts of this case the WCAB found that low back pain was not an exotic disease that required expert opinion to determine causation. The panel noted that applicant’s testimony was not entirely consistent as the date of knowledge of industrial disability, but, on balance, it appeared the applicant relied on the doctors regarding the cause of his back disability and surgery.

 

The WCAB reversed the Arbitrator found that the date of injury was May 2014.

 

The WCAB seemed to be saying that although the applicant was of the opinion his back condition was work-related it was only when he had the reliable conclusion made by a doctor that the date of knowledge occurred.

 

Editor’s note from the CWCR indicated there was no discussion of the case law distinction between the date of injury and §5412 and the time of injury when the injured worker incurs compensable disability as a result of his work exposure. These issues involve the case of Dickow (38 CCC 664) and Van Voorhis (39 CCC 137) which conclude that for the purposes of determining compensation rate and earnings the first date of compensable disability which this case would have been November 2013. The WCAB does not discuss this issue.

 

DATE OF INJURY/LC 5500.5
Headnote here

Guzman v. Abbot’s Pizza Co. (BPD) (45 CWCR 178): 

Applicant alleged a specific injury into cumulative trauma injuries while working for Abbot’s Pizza Company. Insurance coverage was provided by Employer’s Compensation, Insurance Company of the West, and Security National Insurance.

Applicant and Employer’s Compensation and Insurance Company of the West entered into a compromise and release agreement stating that would not be liable for any liens.

The WCJ agreed to approve the compromise and release only if that language was stricken.

The settling parties agreed to delete the language but failed to do so.

The WCJ approved the settlement not realizing the disapproval language remained in the documents.

Defendant Security National was joined as a party defendant after the compromise and release had been initially approved.

During a mandatory settlement conference, the WCJ discovered that the lien language and not been stricken and rescinded the order approving the settlement.

The WCAB granted removal stating that the WCJ’s order would not be rescinded, but rather amended to order a hearing at which the WCJ could either issue an order approving the original settlement or on a showing of good cause a proven amended settlement or disapprove the settlement.

At a status conference following removal, the two signatory defendants amended the lien language as originally directed and the WCJ approved the settlement.

The WCJ wrote that the applicant was not precluded from pursuing claims against Security National and to the extent that it was uninsured, the employer.

Security National petition for reconsideration.

The WCAB dismissed the petition for reconsideration.

The panel, largely relying on the judge’s reconsideration report, observed that Labor Code §5505 provides that in any case involving a claim of occupational disease or cumulative injury, the employee and any employer or any insurance carrier for any employer may enter into a compromise and release agreement settling either all or any part of the employees claim.

Once approved, that settlement provides a total release for the employer carrier for the portion of the claim settled but does not bar applicant from proceeding against the remaining employers or carriers as provided in section 5500.5 for the period of exposure not released.

The WCJ remarked that Labor Code §5500.5 (b) does not prohibit joinder of a party after an award of benefits, and that Labor Code §5500.5 (e) permits proceedings for apportionment of liability to be initiated within one year after an award is approved, and that it is reasonable that proceedings to obtain Joinder of necessary party may also be initiated up to one year after the disapprove.

The WCJ reiterated that defendant Security National was not a signatory to the Compromise and Release, and therefore could not be aggrieved by an order rescinding and amending.

The WCAB had previously ruled that Security National could not seek to enforce an order that did not involve it as a party.

Accordingly, the panel, as previous panels, ruled that Security National had not been aggrieved by the order approving the settlement. Since not a party to it, it lacked standing to challenge it.

Gravlin v. City of Vista (BPD) (2017 Cal. Wrk. Comp. P.D. LEXIS 413):

The WCAB that an applicant sustained a single cumulative trauma injury resulting in hypertension and skin cancer.

Defendant had argued that the applicant had sustained two separate cumulative trauma injuries. The first Cumulative trauma injury was to his heart and hypertension and a second separate cumulative injury to his skin arguing each had a separate date of injury pursuant to Labor Code § 5412.

The WCAB concluded that separate disabilities arising out of a single injury are rated together, even if those disabilities do not become permanent and stationary at the same time.

The general rule is that when an employee suffers contemporaneous injury to different body parts over an extended period of time, he or she has suffered one cumulative trauma injury.

The WCAB found that the date of injury for the skin cancer and the hypertensive/heart injury to both ended on April 25, 2002 and that the applicant suffered the traumatic employment through that date.

The WCAB found no evidence that the applicant had any new disability or need for treatment caused by additional work after that period.

Anaya v. Kelly (BPD) (2017 Cal. Wrk. Comp. P.D. LEXIS 381):

The WCAB upheld the WCJ found that a seasonal strawberry picker sustained one cumulative trauma injury and the insurer at the end of his employment was solely liable for the injury.

The facts established that the applicant received benefits for the injury one year before his last date of employment. The applicant at that time reported symptoms and receive medical treatment and received wage loss for three weeks (did not receive temporary disability). The applicant symptoms do not resolve during the off-season.

The applicant then returned to work after the off-season and approximately 11 months later ported a new injury and receive medical treatment.

The Agreed Medical Evaluator found the applicant sustained injury through his the last date of employment. The Agreed Medical Evaluator found that when the applicant returned to work that was not a start a new CT, but a continuation of the original injury.

The WCJ then held that applicant’s report of injury in receipt of benefits in 2011 did not establish knowledge of a cumulative injury for the purposes of Labor Code §5412.  Because there was no evidence that the applicant knew his back problems were caused by work in 2011, the WCAB concluded CT injury ended in 2012 and liability under §5500.5 was limited to the insurance carrier during the last year preceding that day.

County of Riverside v. Workers’ Compensation Appeals Board (Sylves) (Court of Appeal, published) 82 C.C.C. 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 went to 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 Police Department from December 28, 2010 through July 4, 2014.

The applicant filed an application for adjudication of claim on July 16, 2014. He 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 that, pursuant to Labor Code §5500.5, applicant’s continuous trauma was limited to the last year of injurious exposure, even if it was with the Pauma Tribal Police. The WCJ found that applicant’s 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 arose out of his employment with the County of Riverside. The County of Riverside and the Applicant filed petitions for reconsideration.

The WCAB granted reconsideration for study and issued a decision after reconsideration finding substantial medical evidence of industrial injury to applicant’s 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 that the 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 apportion 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. They determined 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 the course of his employment in the form of hypertension, injuries to the lower back, left shoulder, both knees, 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 cumulative 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 knew or in the exercise of reasonable diligence should have known that such disability was caused by his present or prior employment. The County had the burden of proof on the issue.

Citing the City of Fresno (163 Cal. App. 3d 467), the court stated that the applicant would not be charged with knowledge that his disability was job-related without medical evidence to that effect unless the nature of the disability and applicant’s training, intelligence and qualifications were such that the applicant should have recognized the relationship between the known adverse factors involved in his employment and his disability.

In this case, the facts established that the doctors first report told applicant that his 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. Section 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 §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 in a workers’ 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 Court of Appeal next dealt with 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 §5412 or the last date on which the employee was employed in an 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 §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, they indicated it appeared 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 was not a party, and no claim had been made as to it.  Section 5500.5 expedited 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 dependents.

Labor Code §5500.5 (a) provides that in the event that none of the employers during the last year of occupational disease or cumulative injury are insured for workers’ 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 workers’ compensation coverage or an approved alternative.

The County did not contest that the Pauma Police Department belongs to a federally recognized Indian tribe, and the answers in the record 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 seemed to the court that the fact the Pauma Police Department was not subject to the WCAB’s jurisdiction meant the department was not insured for workers’ compensation coverage or an approved alternative. Consequently, liability was imposed on the next employer in line that had workers’ compensation insurance. In this case, that was the County of Riverside. The order of the WCAB was affirmed.

Tanzman v. Warner Pacific Insurance/CIGA (BPD) (45 CWCR 236)

The matter was litigated date of injury pursuant to Labor Code §5500.5.

Applicant testified to missing work in April 2001 for several days after the initial visit with the primary treating physician in late March of that year. She returned to her regular work but was given ergonomic adjustments to her workspace and modified duties.

Applicant testified she continued to work until August 2003.

At the applicant’s initial appointment with the primary treating physician she was diagnosed with cervical degenerative disc disease with evidence of carpal tunnel syndrome.  Off work from April 9, 2001 through April 13, 2001.

The evidence established that seek a temporary disability benefits from April 12, 2001 through April 13, 2001 and then permanent disability indemnity from April 14, 2001 through October 19, 2001.

The applicant testified that her symptoms began the year prior to 2001 and it was in March 2001 she realized the symptoms were related.

The applicant was evaluated by an Agreed Medical Evaluator. The doctor found a cumulative trauma injury from the first date of work through the last date of work but in a subsequent deposition was equivocal about the date of injury and concluded the applicant sustained the CT injury through December 2000 and to date she was declared permanent and stationary. The agreed medical evaluator concluded the applicant had one long continuous trauma.

The WCJ concluded that applicant’s date of injury was from April 9, 2000 through December 2, 2002 and to the permanent and stationary date with permanent disability of 77% after apportionment and found liability only against Employers Compensation and and CIGA was not liable as there was other insurance

Applicant and Employer’s Compensation sought reconsideration.

The WCAB granted reconsideration and found a cumulative trauma injury ending April 9, 2001.

The WCAB relied on the reporting of the primary treating physician rather than the Agreed Medical Evaluator’s opinion change throughout various reports and deposition.

The Primary Treating Physician consistently affirmed that the applicant was taken off work for injuries on April 9, 2001, and her own testimony concerning this fact and that she felt at the time of her temporary disability that her symptoms were work-related.

The WCAB held they were only bound to give consideration to the AME and were not bound by the decision of the Agreed Medical Evaluator.

Labor Code §3208.1 holds that a cumulative injury occurs when the repetitive physical or mentally traumatic activities of the occupation cause any disability or need for medical treatment.

Labor Code §5412 absent the date of injury for a cumulative trauma is the date of confluence of disability and knowledge that the disability is industrially caused.

The panel indicated disability can be either temporary or permanent.  Medical treatment alone, although not sufficient to establish disability, can be evidence of permanent disability.

The panel noted that it was uncontroverted at trial that the applicant was paid temporary disability in April 2001 and combining that with the consistent trial testimony and the reports of the primary treating physician supported the conclusion that the proper ending date of the continuous trauma was April 9, 2001.

Liability pursuant to the Labor Code §5500.5 lies with the employer or carrier on the risk in the year immediately preceding the date of injury pursuant to section 5412 or the last date of injurious exposure, whichever occurs first.

The panel concluded that the liability for the injury in the present case derived from the disability payments begun in April 2001, because the first manifestation of disability occurred then, along with acquisition of knowledge of industrial nature of the injury.

Therefore, Employer’s Compensation was excluded from liability for applicant’s injury as their period of coverage was outside the cumulative trauma injury period pursuant to Labor Code §5500.5. CIGA was totally responsible for the claim as liability fell during their months of coverage.

There was also an apportionment issue which is not being discussed.

It appears based on the medical evidence and testimony that a second period of continuous trauma was not found because applicant’s condition did not change when she returned to work.

 

Bass v. State of California (BPD) (82 CCC 1034)

The WCJ found only one cumulative trauma injury covering the applicant’s entire period of employment with the California Department of Corrections through his last day of work July 15, 2014 to applicant’s heart and orthopedic injuries.

The defendant filed a petition for reconsideration agreeing there was only one cumulative trauma injury covering the period of his employment but argues there are two different dates of injury pursuant to Labor Code §5412 for the heart and the orthopedic injuries.

The defendant argues that the date of injury for heart is when the applicant then went off work on temporary disability and for the orthopedic injuries the date of injury was when the Agreed Medical Evaluator concluded the applicant had permanent disability.

The WCJ indicated in his report that even if there were two different §5412 dates of injury, Labor Code §5500.5 would still find that liability would be determined based on the last date of injurious exposure rather than the Labor Code §5412 date of injury as that was the earlier date against which to apply liability pursuant to Labor Code §5500.5.

Labor Code §5412 determines the date for commencement of the running of the Statute of Limitations and the indemnity benefit rate and when the five-year Statute of Limitations begins to run, but Labor Code §5412 does not determine a separate period of injurious exposure. Thus there is just one injury.

The WCJ states that in this case there is no sound basis for finding two Labor Code §5412 dates of injury. Applicant testified that he knew he had a cumulative orthopedic injury and a heart injury when he was advised by a lawyer. It was then that he filed an application for both parts of the body injured during the period of injurious exposure.

There is a single cumulative injury which ended on applicant’s last date of work which was July 15, 2014. Applicant, at that time, went off work on temporary disability occasioned by treatment of his heart condition but already been treated for and continued to be treated for his orthopedic complaints.

The applicant filed an application for benefits alleging both his heart condition his orthopedic conditions as injury sustained during a cumulative trauma.

The WCJ indicated in this case there is no clear separation between the data manifestation and knowledge by the applicant of his industrial orthopedic condition which had require treatment for some period of time and which was paid under the umbrella of Worker’s Compensation and his heart condition which manifests itself a time when he went off work in July 15, 2014.

The applicant testified he became aware that both his orthopedic condition his heart condition were the result of industrial a cumulative injury when informed by his attorney when he filed his application for these compensation benefits.

The WCJ concluded there was one cumulative injury and the heart disability and orthopedic disability should be combined into a single injury.

The WCJ further found that applicant’s orthopedic disabilities and heart disability should be added instead of using the combined value chart.

The WCJ upheld the judge finding of one continuous trauma but remanded the matter for more evidence on the issue of whether disability should be combined or added.

 

Discovery and Procedure
Headnote here
  1. Gonzalez v. Jezowski & Markel Contractors (BPD) (44 CWCR 137):

 

The applicant last worked his duties on November 22, 2013, prior to which time he had obtained medical treatment. The applicant indicated he stopped working on that date because of back pain. The applicant’s job duties included frequent bending and lifting heavy objects. The applicant testified that the physicians could not identify the cause of his back pain, although he had, on his own, form the opinion that his back pain was caused by his work.

 

Applicant had back surgery on March 14, 2014, and in May 2014 the physician who performed the surgery confirmed that applicant’s injury was work related.

 

Parties used an Agreed Medical Evaluator who concluded that because applicant’s exposure, albeit on modified duties, continued through November 25, 2013, that was the date of injury.

 

The arbitrator reasoned the date of injury was the final date worked on full duty, and in a Findings and Award, dated July 23, 2015, found the applicant’s cumulative trauma date of injury was November 22, 2013.  The injury caused permanent disability of 37%, with indemnity payable total amount of $41,400.

 

Applicant sought reconsideration contending the date of injury was May 2014, when medical opinion confirmed the applicant’s disability was caused by his work.

 

The WCAB indicated that date of injury for a continuous trauma is determined by Labor Code §5412, which states the date of injury in cumulative trauma cases is the date on which the employee’s suffered disability and knew, or reasonably should have known, that said disability was caused by work.

 

Under the case law, the panel indicated that medical opinion is important but not dispositive in establishing employee’s knowledge of industrial injury.

 

The WCAB, citing City of Fresno (Johnson) (50 CCC 53), in the absence of medical opinion confirming industrial injury, an employee is not usually charged with knowledge that the disability was work-related.  Johnson recognized, however, an exception where the nature of the disability in the employees training, intelligence or qualifications is such that an employee should have known that the disability was caused by work.

 

Applying the law to the facts of this case the WCAB found that low back pain was not an exotic disease that required expert opinion to determine causation. The panel noted that applicant’s testimony was not entirely consistent as the date of knowledge of industrial disability, but, on balance, it appeared the applicant relied on the doctors regarding the cause of his back disability and surgery.

 

The WCAB reversed the Arbitrator found that the date of injury was May 2014.

 

The WCAB seemed to be saying that although the applicant was of the opinion his back condition was work-related it was only when he had the reliable conclusion made by a doctor that the date of knowledge occurred.

 

Editor’s note from the CWCR indicated there was no discussion of the case law distinction between the date of injury and §5412 and the time of injury when the injured worker incurs compensable disability as a result of his work exposure. These issues involve the case of Dickow (38 CCC 664) and Van Voorhis (39 CCC 137) which conclude that for the purposes of determining compensation rate and earnings the first date of compensable disability which this case would have been November 2013. The WCAB does not discuss this issue.

 

Discovery and Trial Practice
Headnote here
  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

 

Dismissal
Headnote here

Antonio Vargas v. Darrell Becker; Becker Construction (BPD) (ADJ8647584) (LEXIS):

 

The WCJ issued a Findings and Award on September 19, 2016 finding that on September 13, 2012 applicant sustained an injury arising out of and occurring in the course of his employment. The WCJ also found that applicant was in need of further medical treatment to cure or relieve from the effects of the industrial injury and awarded reimbursement for out-of-pocket medical expenses.

 

Defendant filed a timely petition for reconsideration from the Judge’s decision alleging that the WCJ violated defendant’s due process rights by admitting the testimony of a witness purporting to be the applicant, even though it failed to establish his unavailability under Evidence Code 40.

 

Defendant further contended that the testimony of a witness purporting to be the applicant, taken through Apple’s Face Time application on a four-inch iPhone to establish the applicant’s identity and his last industrial injury, should of been excluded because the testimony was not authorized by the Federal Rules of Civil Procedure.

 

Defendant also contended that applicant’s testimony lacked probative value because it was not given under penalty of perjury.

 

In addition, defendant contended the testimony of the mother of applicant’s children should of been excluded under Labor Code §5502(d)(3) because she was not identified as a trial witness on the Pretrial Conference Statement and her testimony was not supported by an offer proof.

 

Finally, defendant contended that the applicant did not meet his burden of proof on the issues of industrial injury in need for further medical treatment.

 

The WCAB concluded that the WCJ’s finding of bilateral wrist injury, and self-procured and future medical treatment should be affirmed. However, development of the record is required concerning applicants claim of injury to other body parts. Therefore, the WCAB affirmed the WCJ’s decision in part and rescinded it in part, and return the matter to the trial level for further proceedings and a new decision on the outstanding issues.

 

The WCAB first dealt with the WCJ admitting applicant cell phone testimony.  At the outset the WCAB did not find merit in defendant’s contention that the WCJ erred in allowing applicant to  testify remotely, from Mexico, on an iPhone and/or iPad using Apple’s Face Time application.

 

In his petition for reconsideration, defendant apparently concedes that such remote testimony is legally acceptable where an applicant is “unavailable” because he has been deported and cannot reenter the country to testify in person. (Alvarez 214 Cal. Wrk. Comp. P.D LEXIS 449, citing Evidence Code § 240. The defendant asserted in their Petition that in Alvarez applicant testified that he was deported and could not legally attend a worker’s compensation trial.  Defendant contends that this case is different because applicant testified only he was in Mexico, not that he had been deported.

 

The WCAB disagreed. In Alvarez, the WCJ stated in her report that “there is no dispute that applicant is presently outside the United States and has no legal right to re-enter this country in order to testify at his trial.”  As with Alvarez, the trial transcript here and establish that applicant was deported and was unavailable to return to California to testified his worker’s compensation trial.

 

In addition, the EAMS file shows that defendant had known of applicant’s deportation since January 3, 2014, when defendant filed a Petition to Dismiss after applicant failed to appear for his deposition on two occasions. In that petition, defendant and knowledge that applicant’s attorney had notified defendant, in November 2013, that applicant could not attend his deposition because he had been deported.

 

Accordingly, the WCAB found no merit defendants claim that applicant’s testimony by must be excluded because he did not establish his “unavailability”.

 

The WCAB did not find merit in defendant’s contention that pursuant to Labor Code §130 and Cal Evidence Code 710, the WCJ exceeded his authority by allowing applicant to testify by iPhone; and under Penal Code 118 (a), applicant did not testify under penalty of perjury.

 

Defendant fails to establish the applicability of the statutes under the circumstances this case.

 

The trial transcripts show the applicant was duly sworn in testified to a Spanish interpreter by cell phone. There was no violation of Labor Code §130 because the WCJ administered the oath the applicant at the District Office of the WCAB in Santa Barbara, California. There was no violation of Evidence Code §710 because applicant took the oath in the form provided by law.

 

Defendants reliance on Penal Code §118(a) is similarly misplaced. Defendant alleges that applicant could lie or commit fraud, without fear of any consequences, as he was not subject to penalty of perjury at the time his testimony was taken. As just noted, applicant was in fact under oath when he testified by iPhone.

 

The WCAB disagreed with defendants premise that applicant could fabricate his testimony without fear of any consequences.  The trial transcript shows that defendant had the opportunity to probe the truth of applicant’s testimony by subjecting him to cross-examination. In addition, applicant’s testimony by cell phone was subject to impeachment and rebuttal by other evidence in the record. These factors provided incentive for applicants tell the truth.

 

Finally, defendant contends that applicant’s testimony by cell phone should be excluded because it does not comply with rule 28 (b) (1) of the Federal Rules of Civil Procedure. Subparagraphs (C) and (D) of this rule provide that a deposition may be taken in a foreign country (on notice, before a person authorized to administer oaths either by federal law or by the law in the place of examination” or “before a person commissioned by the court to administer any necessary oath and take any testimony”

 

 

 

Defendant’s interpretation of the rule would require the Board to give mandatory effect to the rules permissive language. In addition, defendant fails to establish the relevance of this rule to a California Worker’s Compensation proceeding. The WCAB noted Labor Code §5710 authorizes “the deposition of witnesses residing within or without the state” and the statute further provides that “depositions may be taken outside the state before any officer authorized to administer the oath’s” however, it appears that defendant did not attempt to take applicant’s deposition outside California. Defendant also failed to explain how the statutory difference between Section 5710 and Federal Rules §28 (b) should be resolved.

 

Further the WCJ’s admission of applicant’s testimony by cell phone is proper under Labor Code §§5708 and 5709.  Labor Code §5708 provides that hearings before the WCJ shall not be bound by the common law or statutory rules of evidence and procedure, but may make inquire in the manner, through oral testimony and records, which is best calculated ascertain the substantial rights of the parties. Labor Code §5709 provides that no informality in any proceeding or in the manner of taking testimony shall invalidate any order, decision or award, or rule.  Labor Code §5709 also provides that no order, decision or award, or rule shall be invalidated because of the admission into the record, and the use as proof of any fact in dispute, of any evidence not admissible under the common law or statutory rules of evidence and procedure.

 

The WCAB went on to indicate the WCJ did not err in admitting the testimony of the mother of applicant’s children. In this case the mother of applicant’s children was not disclosed as a proposed trial witness in the pretrial conference statement dated August 19, 2015.

 

However, applicant’s attorney called her as a trial witness on August 17, 2016.  The WCAB found testimony was admissible and did not violate Labor Code §5502(d)(3).

 

Because there was an issue raised by defendant of the identity of the applicant in between hearings applicant’s attorney copied a letter that stated because applicant’s identity was at issue applicant’s attorney arranged to have the mother of applicant’s children testify at trial. Applicant’s attorney also indicated he did not objective defense counsel took the deposition of the mother of the children.

 

At the hearing defendant objected to the mother’s testimony confirming applicant’s identity. WCAB allowed the testimony because defendant raised the issue of the identity of the applicant at the first hearing and applicant’s attorney’s letter indicated the need for the testimony of mother of applicant’s children and indicated it did not become apparent until defense counsel raise the issue of applicant’s identity over the cell phone at the first hearing and the second hearing. Since these events took place well after the MSC occurred on August 19, 2015, the need for the mother’s testimony could have been not been discovered by the exercise of due diligence before the MSC. The admission of the testimony did not violate Labor Code §5502(d)(3).

 

The WCAB also found that applicant met his burden of proof on the issue of injury arising out of and occurring in the course of employment.

 

On the issue of the transcript, defendant submitted a request to file a supplemental petition, alleging that vital information was omitted from the summary of evidence. Defendant also requested and obtained a trial transcript, which were scanned into EAMS.

The Appeals Board is not obligated to review trial transcripts in order to test the accuracy and completeness of summary of evidence, unless petitioner points to specific, material defects in the summary of evidence. (Allied compensation 26 CCC 241). In this case, defendant failed to describe the nature of the vital information that supposedly was missing from the summaries of evidence. Defendant also failed to attach the proposed supplemental petition to to its request to file the supplemental petition., Therefore the Board rejected the request to file a supplemental petition nevertheless using their discretion reviewed the trial transcripts and coming to their decision.

 

Zamundio v. Starco Enterprise (BPD) (45 CWCR 103):

 

The defendant filed a petition to compel a homecare assessment.

 

A hearing was held and the WCJ allowed a registered nurse to complete an in-home care assessment. The order permitted the parties’ attorneys to be present during the assessment.

 

The applicant filed a petition for reconsideration appealing that portion of the order allowing defense counsel’s presence.

 

The WCAB first held that the order that been appealed was not a final order and therefore not subject to reconsideration. The panel dismissed the petition for reconsideration and granted removal instead to address the issues raised in the petition for reconsideration.

 

The WCAB than dealt with the issue of the defense attorney’s presence at the evaluation.

 

Pursuant to Labor Code §4052 an employee is entitled to have a physician present at any employer-required examination.

 

Further the Supreme Court in the case of Sharff v. Superior Court of San Francisco (44 C2d 508) noted the same right to have an attorney present at such an examination.

 

The protection afforded by having an attorney or physician present applies only to the applicant as there is a possibility that improper questions may be asked, and a layperson should not be expected to evaluate the propriety of every question is peril.

 

The applicant, therefore, should be permitted to have the assistance and protection of an attorney during the examination.

 

In the present case, it is defendant’s own nurse who is to conduct a homecare assessment; thus, there is no reason for defense counsel to be present to protect itself from any improper questions by the nurse during the evaluation.

 

The court rejected defendant’s contention that its exclusion from the evaluation violates its due process right.

 

 

 

In this case the applicant did not object to the discovery activity of defendant’s nurse entering her home and performing the assessment. The order allowing defendant’s nurse to perform the evaluation actually protects defendant’ due process rights and discovery. Conversely, permitting defense counsel to attend the assessment might irrevocably alter applicant’s right to privacy in the sanctity she feels in her home, a harm not rectifiable through reconsideration.

 

Therefore, that portion of the order allowing defendant’s attorney to attend the in-home care assessment was deleted.

 

Cann v. Desert View Auto Auction (BPD) (2017 Cal. Wrk. Comp. P.D. LEXIS 214):

 

The WCJ issued an order instructing applicant to attend vocational evaluation scheduled by defendant and allowing vocational examination to be stenographically by a court reporter as requested by the applicant.

 

Defendant filed a petition for removal.

 

The WCAB granted removal and reversed the WCJ. The WCAB reasoned that there are no statutes or regulations regarding whether vocational evaluations may be recorded.

 

California Code of Civil Procedure §2023.510, applicable to medical examinations and relied on by the WCJ, did not apply here because vocational evaluation is not one of the authorized civil discovery methods, and the Code of Civil Procedure does not address such examination.

 

The WCAB found the WCJ has discretion to decide whether or not to allow recording of a vocational examinations in certain circumstances, and because there was no hearing and no evidence provided in this case regarding whether there was would cost allow recording of vocational valuation, the matter must be returned to trial level for further proceedings on the issue.

 

Employment
Headnote here
  1. 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.

 

Evidence and Procedure/Interpreters
Headnote here

Val v. Southern California Edison (BPD) (83 CCC 584):

 

The WCJ found that applicant sustained an injury arising out of and occurring in the course of his employment to his right shoulder, left knee, right knee, lumbar spine and right elbow but did not sustain a psychiatric injury.

 

Applicant filed a petition for reconsideration.

 

On August 20, 2012 applicant filed an Application for Adjudication of Claim alleging a specific injury on May 30, 2012 to his lower extremity, back, and chest.

 

On February 20, 2013, applicant filed an Amended Application for Adjudication of Claim adding the following body parts: knees, right arm, right shoulder and right elbow.

 

On July 15, 2013, applicant filed another Amended application for adjudication adding psych as a body part.

 

On July 15, 2013, applicant filed an Amended Application for Adjudication of Claim alleging a continuous trauma to the knees and the psyche. Although the applicant labeled this application for adjudication as amended, the cumulative trauma claim was assigned to case number.

 

On July 24, 2014, applicant filed another Amended Application for Adjudication adding both hands, right pinky left thumb and right ankle as additional body parts the specific injury claim.

 

On July 7, 2014 applicant filed another Amended Application for Adjudication adding both knees as parts of the body to the specific injury claim.

 

On April 20, 2015 applicant filed another Amended Application for Adjudication adding his left shoulders additional body parts the specific injury claim.

 

Applicant was evaluated by a panel Qualified Medical Evaluator in psychiatry who issued two reports.

 

The WCAB indicated that Labor Code 5402 (b) provides that if liability is not rejected within 90 days after the date the claim form is filed under section 5401, the injury shall be presumed compensable under this division. The presumption of the subdivision is rebuttable only by evidence discovered subsequent to the 90 day-period

 

The WCAB cited the case of Clark v. WCAB (66 CCC 269) (W/D) for the proposition that Labor Code §5402 applies to claims of injury, not to parts of the body claim to be injured as a result of the industrial injury. The WCAB explained in that case just as a claim which is amended after the passing of the statute of limitations to include injury to a new part of the body relates back to the date of the original filing, so does an amendment adding a new part of the body to the claim form relate back for purposes of §5402. Therefore, they concluded that applicant’s amended claim form to alleging new parts of the body did not trigger new period for rejecting a claim of injury.

 

In the case of Puc-Perez v WCAB (66 CCC 269) (W/D) the WCAB concluded that the presumption of compensability under Labor Code 5402 only applies when a defendant seeks to deny industrial injury entirely and has failed to deny liability within the relevant period of time. However, when the original claim of injury has been accepted as industrial, the presumption of compensability does not apply.  (Burmaster v. WCAB, 62 CCC 792).

 

In this case defendant admitted the orthopedic injuries within the statutory 90-day period and that they paid temporary disability for two years. Yet the WCJ in his report states that it is undisputed that the orthopedic injuries were denied. Furthermore, the record does not contain any evidence regarding whether defendant admitted her to hide the allocations of the original Application.

However, the the Appeals Board observed that the issue at trial included injury AOE/COE and parts of the body which suggests the orthopedic injuries were disputed. Despite the lack of evidence to whether defendant admitted or denied the orthopedic claims, the Appeals Board concluded that an amended claim to add a new body part does not trigger a new 90-day period for defendant to reject the claim.

 

Had defendant denied the orthopedic claims, an amendment to add a psychiatric claim would not trigger a new 90-day period for defendant to respond. Had defendant accepted the orthopedic claims, the presumption of compensability would not apply. Had defendant failed to act within the first 90-day period following the original Application for Adjudication, the presumption of compensability would apply as to the orthopedic injuries but not as to the psychiatric allegations.

 

The psyche injury was not alleged in the original Application and due process requires defendants to have notice of what it is forfeiting by failing to respond.

 

Therefore, the Appeals Board concluded that the presumption of compensability found in Labor Code §5402 (b) does not apply to the psychiatric claim.

 

The WCAB then went on to discuss the issue of whether the applicant met the higher threshold of compensability for the psychiatric injury pursuant to Labor Code §3208.3 (b).

 

In this case the Qualified Medical Evaluator found that 60% of applicant’s claim was caused by industrial factors and 40% nonindustrial factors. From the 60% caused by industrial factors the physician concluded that 40% was caused by alleged personnel actions of being terminated without appropriate cause and the left over 20% was caused by a psychiatric reaction to the orthopedic injuries and the psychiatric reactions to the cumulative and specific orthopedic injuries and their physical sequelae.  The Qualified Medical Evaluator concluded that the alleged personnel actions met the substantial cause threshold.

 

The Qualified Medical Evaluator deferred to the trier fact the following Rolda questions (1) whether the alleged psychiatric injury involves actual events of employment, a factual/legal determination and (2) if so, whether any of the actual employment events were personnel actions and were lawful, nondiscriminatory, and in good faith, a factual/legal determination.

 

Apparently in this case the WCJ believed that the Qualified Medical Evaluator was deferring determination of medical evidence to WCJ.

 

The Appeals Board indicated the Qualified Medical Evaluator clearly opined that actual events of employment were the predominant cause, greater than 50%, of all causes of injury to the psyche and that the alleged personnel actions met the threshold of substantial cause.

 

What the Qualified Medical Evaluator was deferring to the WCJ was the factual/legal determinations of whether the alleged psychiatric injury involves actual employment events and whether any of the actual employment events were personnel actions that were wrongful, nondiscriminatory and good faith.

 

In the Rolda case the Workers Compensation Appeals Board specifically stated that these factual/legal issues are for the WCJ to determine. Accordingly, the WCAB amended the findings and award, deferred the issue of whether applicant sustained an industrial psyche injury and returned the matter to the trial level to determine the factual/legal issues discussed in the case and the multi-level analysis as set forth in Rolda.

 

Sequeira De Bustos v. WCAB (Luisa) (BPD) (83 CCC 378):

 

Applicant sustained an admitted industrial injury to his lumbar spine and claimed injury to the cervical spine on November 25, 2010.

 

Applicant was evaluated by three primary treating physicians and a panel Qualified Medical Evaluator.

 

The three primary treating physicians never issued reports addressing applicant’s permanent disability.

 

The Qualified Medical Evaluator found the applicant had reached MMI and set forth factors of permanent disability in a report dated March 10, 2014.

 

Defendant filed a Declaration of Readiness to proceed and the matter proceeded to trial on the issue of permanent disability.

 

The WCJ issued a decision concluding the applicant did not suffer an injury to her cervical spine and the applicant’s lumbar condition was permanent and stationary and awarded 20% permanent disability.

 

Applicant filed a Petition for Reconsideration.

 

The Worker’s Compensation Appeals Board found that the Declaration of Readiness to Proceed complied with Labor Code §4061(i). The Appeals Board relied on the language which the states no issue relating to a dispute over the existence or extent of permanent impairment and limitations resulting from the injury may be the subject of a Declaration of Readiness to Proceed unless there has been a medical evaluation by a treating physician and by either an agreed or qualified medical evaluator.

 

The WCAB found that that Labor Code §4061(i) does not require that the evaluations all find the injured worker to be permanent and stationary or that the evaluations address permanent disability.

 

A Declaration of Readiness to proceed is the first step to trial.

 

While medical evaluations must address permanent disability, and be substantial evidence to support a WCJ’s decision on the issue of permanent disability, every reporting physician does not have to agree that the applicant’s MMI before a case can go to trial.

 

In this case, the PQME provided substantial medical evidence sufficient to support an award of permanent disability. The primary treating physician did not find the applicant and reached MMI. The WCJ correctly relied on the PQME to issue the decision.

 

Applicant filed a Petition for Writ of Review asserting that the Labor Code requires the treating physician and the AME or QME to determine that applicant’s MMI before making a determination regarding the existence and extent of permanent disability.

 

The writ was denied.

 

 

Abea V. Parco Inc. (BPD) (2017 Cal. Wrk. Comp. P.D. LEXIS 302, 82 CCC 302):

 

The WCJ set the matter for trial on the issue of injury AOE/COE over defendant’s objection. Defendant objected on grounds that they had not yet completed discovery, including depositions of the applicant and the panel qualified medical evaluator.

 

The defendant filed a petition for removal.

 

The WCAB granted removal and ordered the matter off calendar. The WCAB held that the WCJ erroneously found the matter was right for trial without the need for further discovery because defendants had denied injury AOE/COE within the 90-day period of Labor Code 5402.

 

The WCAB held that although the presumption of compensability and Labor Code §5402 precludes defendant from disputing liability for injury using evidence that could have been obtained with the exercise of reasonable diligence within the initial 90-day period, defendants still have a due process right to complete discovery.

 

In this case where the applicant would not cooperate in discovery and defendant timely objected to the panel Qualified Medical Evaluator’s report and timely notice the evaluator’s deposition before applicant filed a Declaration of Readiness to Proceed, the WCJ setting the matter for trial was significantly prejudicial to defendant and should not have occurred as setting the case for trial violated their due process rights.

 

Camacho v. Pirate Staffing (BPD) (2017 Ca. Wrk. Comp. P.D. LEXIS 531) (83 CCC 661)

 

The applicant’s attorney advised the applicant to assert his Fifth Amendment privilege against self-incrimination with respect to questioning about his Social Security number.

 

The WCJ at trial drew an adverse inference because the applicant had asserted the privilege.

 

The WCAB ruled that under CCR §10400 (h) disclosure of an applicant’s Social Security number is voluntary, not mandatory.

 

The failure of an applicant to provide a Socialist Security number will not have any adverse consequences.

 

The WCAB concluded that a WCJ may not compel an applicant to testify in violation of his Fifth Amendment right and no adverse inference may be drawn from the exercise of it.

 

The WCAB further found that working under different Social Security numbers did not reflect on applicant’s credibility or legitimacy of his claim.

 

Sierra v. Bowers drywall (BPD) (LEXIS)

 

The parties were present at the hearing and represented by counsel.

 

The need for applicant’s services arose at the hearing.

 

The WCJ ordered the interpreter paid for the services at that hearing.

 

Defendant filed a Petition for Reconsideration.

 

The Appeals Board denied defendant’s Petition for Reconsideration. The defendant argued the order violated Appeals Board Rule 10451.3 (e), because a petition for costs cannot be filed until at least 60 days after written demand for the cost is been served defendant.

 

The WCAB cited Appeals Board Rule 10451.3 (a) which provides that a Petition for Costs is a Petition seeking reimbursement of an expense or payment for services that is not allowed was a lien against compensation under Labor Code §4903.

 

A Petition for Costs may be filed only by: (1) an employee or the defendant of deceased employee, (2) a defendant, or (3) an interpreter for services other than those rendered at a medical treatment appointment for medical legal examination.

 

Appeals Board Rule 10451.3 (d) provides a Petition for Costs filed by an interpreter shall contain, in addition to the general factual allegations of the petition: (1) a statement of the names of any interpreters perform the services; (2) a statement that the services were actually performed; and (3) either: (A) a statement of the certification number of the interpreter; or (B) if not certified, statement that specifies why certified interpreter was not used and that sets forth the qualifications of the interpreter, including any qualifications for a non-certified interpreter established by the rules of the Administrative Director.

 

Appeals Board Rule 10451.3 (e) a Petition for Costs will not be filed and served until 60 days after a written demand for the costs has been served on the defendant or the person or entity for the cost of claim. The petition shall append: (1) a copy of the written demand, together with a copy of its proof of service; and (2) a copy of the response, if any. A petition that fails to comply with these provisions may be dismissed.

 

The Appeals Board, after citing the above rule, indicated they distinguish the facts of this case from from situations Rule 10451.3 was intended to address.

 

One such example involves interpretation costs incurred during the deposition. In such a situation, the interpreter must make a written demand for payment and Rule 10451.3 allows the party 60 days in which to formally resolve the issue. Absent a legitimate dispute, however, defendant is liable for such interpretation costs pursuant to Labor Code §5710 (b) (5) and Administrative Dir. Rule 9795.3 (a) (5) and should pay that cost without required interpreter to file a Petition for Costs.

 

If, on the other hand, legitimate dispute exists, the interpreter will file a Petition for Costs and the WCJ will acute indicate that dispute.

 

The Appeals Board indicated in this case that the parties, including defendant, were present and represented by counsel at the hearing before the WCJ when the applicant’s need for interpreter services arose. Because the situation occurred during the hearing, the WCJ had an opportunity to consider and assess the need for the interpretation service, the qualifications of the interpreter, the services rendered, the rate requested, and any objection raised by defendant.

 

As stated by the WCJ in the report, there was no objection raised by defendant at the hearing regarding the need for the interpretation services, qualifications of the interpreter, services rendered or the rate requested. Moreover, defendant did not raise any such objection on reconsideration.

 

The WCAB was also unpersuaded that the order violated §5313 because it is an unsupported order with no record. The order itself states the applicant was present and required the use of an interpreter. The order further provided that interpreter services were requested by applicant’s attorney, the requested fee for the WCAB appearances is $165, the Tax ID number 604464092, certification number is 30112 and interpreter declares under penalty of perjury that by signing this form that she/he is the interpreter that performed the services at the above-mentioned hearing.

 

The order was signed by the interpreter.

 

Thus, the order contains the facts relied upon by the WCJ and issuing his order.

 

The WCAB ordered the Petition for Reconsideration be denied

 

LABOR CODE §4660.1(c)
Headnote here

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.

 

Liens
Headnote here

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.)

 

Liens
Headnote here
  1. 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.

 

  1. 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).

 

  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.

 

  1. 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.

 

Medical Treatment (1/3)
Headnote here
  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.

 

Medical Treatment (2/3)
Headnote here
  1. Navorth II v. Mervyn’s Stores (BPD) (LEXIS):

 

The WCJ found that an independent medical review of a utilization review dispute must be conducted by a doctor with an unrestricted license to practice medicine in the state of California and because the IMR reviewer was not licensed in California, the Administrative Director acted in excess of her powers. The matter was remanded to the AD to conduct another IMR review.

 

The WCAB concluded that confusion arises because there are two separate and distinct medical review processes, which are labeled “independent medical review”. One process triggered by the employer’s objection to medical treatment determination; the other process triggered by the employee’s objection the medical treatment determination.

 

This case involves the more common form of independent medical review, which is the review of an adverse UR decision where the employer objects to a recommendation by the treating physician that applicant received treatment. The Board labeled this the UR/IMR process. This process applies to all treating physicians regardless of whether the employee utilizes an MPN physician. This procedure is governed by Labor Code §§4610, 4610.5 and 4610.6. The IMR reviewer may not order any additional diagnostic tests needed to determine the necessity of the medical treatment. The IMR review is a records review only. The reviewer does not examine the injured worker and the identity of the reviewer is anonymous. The reviewer can request additional records. The scope of WCAB review by the WCAB is limited.

 

A lesser used independent medical review was existed since 2004, which occurs when the employee disputes the treatment recommendation of the medical provider network doctor.

 

This procedure is governed by Labor Code §§ 4616.3 and 4616.4. This section provides that the injured worker can obtain a second and third opinion from another MPN physician and review shall be conducted by a physician examination of the injured worker upon request. The IMR reviewer may order additional diagnostic tests in order to make a correct determination. The WCAB may review all aspects of the IMR decision for error.

 

It is important to delineate whether the injured worker for the employer is objecting to the treating physician’s recommendation in order to correctly apply the law as it pertains to the parties.

 

In addition to the procedural differences, the requirement for the licensure of the reviewing physician differs between the two processes.

 

An MPN/ IMR reviewer must be a physician licensed in the State of California, whereas a UR/IMR reviewer can be licensed in any state. An MPN/IMR reviewer is required by statute to be licensed in the state of California. (Labor Code §4616.4(a)(2). This specific language is clear that an MPN/IMR reviewer must be a physician licensed in the state of California.

 

The language describing the licensing requirement for a UR/IMR reviewer differs from the MPN/IMR statute. The UR/IMR statutes states: “medical professionals selected by independent medical review organizations to review medical decisions shall be licensed physicians, as defined by Section 3209.3, in good standing. (Labor Code 139.5 (d) (4).  Section 3209.3(a) defines a physician as follows: “physician, includes physicians and surgeons holding an M.D. or D.O. degree, psychologists, acupuncturists, optometrists, dentists, podiatrists, and chiropractic practitioners licensed by California state law within the scope of their practice as defined by California state law.

 

The Board stated at first glance it would appear that it UR/IMR reviewer must be licensed pursuant to California law. However, the Court of Appeal has interpreted the word (includes) in section 3209.3 to be expansive and meaning. (State Fund v. WCAB (Arroyo) (42 CCC 394.

 

The court in this case held that the word (includes) is ambiguous and could mean either “includes only” or “includes but limited to”. After reviewing the legislative intent, the court interpreted “includes” to mean “includes, but not limited to”.

 

Thus, with respect to the definition of physician pursuant to section 139.5(d)(4) and that such physicians include but are not limited to physicians licensed in the state of California. In coming to this conclusion they noted that section 139.5 does state “the independent medical review organization shall give preference to the use of physicians licensed in California as the reviewer.” 139.5 (d) (4) (B).

 

The Board stated that no party has argued that the UR/IMR organization failed this duty and no evidence exists in the record from which the WCAB could make such determination.

 

The WCAB concluded that under the UR/IMR statute, the reviewer need not be licensed in the State of California; thus it was error to rescind the UR/IMR determination solely on the ground.

 

The WCAB went on to conclude, despite the fact that the WCJ sole basis for decision was the license issue, that the IMR decision was untimely and the WCAB had jurisdiction to determine the medical dispute. The Board indicated that all the the issue of timeliness of the IMR review is not raised in defendant’s petition for reconsideration, the filing of a petition for reconsideration gives the WCAB authority to address all issues including those not specifically raise. (Passquotto v. Hayward Lumbar (WCAB en banc) (71 CCC 223).

 

In this case defendant raised the issue of whether the IMR review was valid.  Defendant’s argument necessarily requires an analysis of the entire IMR decision and not just limited to the issue of the reviewer’s license status. Also, the issue of timeliness of the IMR review is one of jurisdiction, which is an appropriate issue to be raised sue sponte.

 

The Board went on to indicate that Maximus issued the IMR determination beyond the 30 days allowed by section 4610.6 (d).  The Board then found the 30-day requirement mandatory and found the WCAB had jurisdiction to issue a decision regarding medical treatment.

 

A concurring and dissenting opinion agreed with the majority that the UR/IMR reviewer need not be licensed in the State of California. However, this Commissioner would have remanded the matter to the WCJ to evaluate applicant’s argument that the MTUS applied for in the RMR reviewer had expired and if true, to determine whether the IMR decision was based on substantial medical evidence.

 

 

  1. Czeh v. Bank of America (BPD) (LEXIS):

 

The WCJ issued a Findings of Fact and Award that found defendant failed to timely complete utilization review and that the applicant was entitled to medical treatment.

 

Defendant filed a petition for reconsideration contending that the request for authorization of medical treatment was not properly served upon the adjuster and that defendant’s duties under Labor Code 4610 are triggered only upon the adjuster’s receipt of the RFA and not defendant’s attorney’s receipt of the RFA

 

The applicant’s attorney faxed a copy of both the medical report and the request for authorization, dated October 21, 2015, to defendant’s attorney. Despite being served with the medical report and request for authorization through its attorney of record, the defendant took no action to review the requested medical treatment.

 

The WCJ then issued the decision that defendant did receive the request for authorization through its attorney of record and failed to submit the requested treatment through utilization review. The WCJ determine the medical treatment was reasonable.

 

The defendants argue that pursuant to 9792.9.1(a), the RFA can only be received by the claims administrator or its utilization review organization with the jurisdiction that service on its attorney would add an additional, completely unintended step to utilization review process, and would result in defendant’s attorneys being chained to their fax machines to ensure that the request for medical treatment get processed on time resulting in undo an unreasonable burden to place upon defense attorneys.

 

The WCJ indicated that defendant ignored the fact that the WCAB has recognize that attorneys act as agents, and by their actions or inactions, subject their clients, or principles, to liability resulting therefrom. The acts of an agent, if within the actual or extensible authority the agent, bind the principal of the agent. The negligent acts or omissions of an attorney are imputed to the client under the new agency. (San Bernadino Community Hospital (McKernan 64 CCC 986)

 

The WCJ indicated it was demonstrably imprudent for the defendant’s attorney to stand idly by after receiving an RFA for treatment and imprudently claim later at an expedited hearing that he had no duty to notify his client that he received the RFA which would’ve been allowed. Defendants are to expeditiously and timely perform utilization review. (Romano 213 Cal. Wrk. Comp. P. D. LEXIS 125)

 

The WCAB, citing Labor Code 4610, creates an affirmative duty to review request for authorization of medical treatment. The section provides that for prospective or concurrent decisions shall be made in a timely fashion not to exceed five working days from receipt of the information reasonably necessary to make the determination, but in no event more than 14 days from the date of the medical treatment recommendation by the physician.

 

Labor Code 4610 does not specify whose receipt of the RFA triggers the time frame to complete utilization review.

 

Rule 9792.9.1(a)(1) resolves the ambiguity in the statute. That section provides that the DWC form RFA shall be deemed to have been received by the claims administrator or its utilization review organization.

 

The WCAB went on and indicated in reviewing the above statute, we know that utilization review is only triggered by either the claims adjuster or utilization review organizations receipt of the RFA.

 

However, defendant has continuing affirmative duty to conduct a good faith investigation of the claim and to provide benefits when due. (Regulation 10109)

 

The Supreme Court in Braewood Convalescent Hospital (34 Cal 3d 159) states that section 4600 requires more than a passive willingness on the part of the employer to respond to demand a request for medical aid. This section requires some degree of active effort to bring to the injured employee the necessary relief. Upon notice of the injury, the employer must specifically instruct the employee what to do and whom to see, and if the employer fails or refuses to do so, then he loses the right to control the employee’s medical care and becomes liable for the reasonable value of self-procured medical treatment.

 

Although the strict utilization review timeframe begins upon the adjuster or UR organizations’ receipt of an RFA, where a dispute exists over whether the RFA was transmitted to the adjuster and defendant’s attorney files an objection to the provision of medical treatment alleging the claims administrator never received a copy the RFA, and the same attorney then receives a copy of the disputed RFA, that attorney has a duty to transmit a copy of the RFA to the claims administrator within a reasonable time so the dispute can be resolved expeditiously as possible.

 

Here, defendant’s attorney specifically objected to applicant’s request for an expedited hearing on the basis that the claims administrator had not received a copy of the RFA in dispute. Defendant had knowledge that a treatment request was made, but defendant claimed that it did not receive that request.

 

Defendant should have taken taken active steps to obtain the missing RFA and reviewing the request for treatment. Once defendant’s attorney received the RFA from the applicant and because defendant’s attorney had specific knowledge that his client required a copy of RFA, defense attorney should have transmitted the RFA to the adjuster within a reasonable time period.

 

A member shall keep a client reasonably informed about significant developments relating to the employment or representation including promptly complying with reasonable requests for information and copies of significant documents when necessary to keep the client so one form.

 

We find in the limited facts of this case that defendant’s failure to provide the RFA to the claims administrator was unreasonable and the WCJ’s award of treatment was proper.

 

The petition for reconsideration was denied.

 

 

  1. Thompson v. County of Los Angeles (BPD) (2016 Cal. Wrk. Comp. P.D. LEXIS 107):

 

The applicant filed for a hearing on the issue of medical necessity of back surgery because the utilization review was untimely. The applicant’s attorney argued the utilization review is untimely because it was served on applicant’s former attorney but not the current attorney. The facts show the defendants had received a substitution of attorney notification two years prior to the utilization review decision. The WCAB concluded the utilization review is untimely and therefore the WCJ had jurisdiction over the medical issue.

 

The WCAB found that the medical report was not substantial evidence on the issue of necessity the low back surgery. The WCAB rescinded the WCJ’s decision and remanded the matter for further evidence. The WCAB found the treating physician failed to justify his recommendation by reference to the MTUS,

 

The WCAB also found the physician did not address the issue of reasonableness and necessity by reference to other elements of the hierarchy for evidence-based standards and medical opinions pursuant to Labor Code § 4610.5 (c) (2).

 

Medical Treatment (3/3)
Headnote here
  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.

 

Medical Treatment and UR (1/2)
Headnote here

Ramirez v. WCAB (Court of Appeal Published) (82 CCC 327):

 

Daniel Ramirez sustained an injury to his lower ankle in the course of his employment for the State Department of Health Care Services.  Ramirez settled this case by way of Stipulations with Request for Award which provided for future medical treatment.  The treatment included a gym/swim membership and over the course of about 1 ½ years 24 sessions of acupuncture were authorized.

 

In July 2014 applicant’s physician prescribed 12 sessions of acupuncture. The utilization review recommended the treatment be denied. The reviewer’s rationale in denying the treatment was that the acupuncture is recommended as a short-course treatment in conjunction with other interventions for a total of up to 8 to 12 visits over 4 to 6 weeks, where there is evidence of reduced pain and medication use, and there is functional improvement. The reviewer stated the applicant had already completed the maximum number of recommended therapy sessions, thus the request was not reasonable.

 

The applicant appealed the utilization review denial under the Independent Medical Review Process. The Independent medical review noted the applicant had 24 prior acupuncture sessions approved and there had been no change in his work restrictions or functional improvement for almost a year. The Independent medical review denied the requested treatment and stated according to evidence-based guidelines, further acupuncture or visits after initial trial are medically based on documented functional improvement. The claimant had at least 24 acupuncture visits approved in the last year. Due to the lack of objective functional improvement and decrease dependence on medical treatment, further acupuncture was not medically necessary.

 

The applicant appealed the decision to the Board. The grounds for appeal were that the independent reviewer may have been subject to a material conflict of interest and the determination may have been the result of bias on the basis of race, national origin, ethnic identification, rigid religion, age, sex, sex orientation, color a disability. The applicant wanted discovery determine whether the doctor performing the Independent medical review was biased or had a conflict of interest. The appeal also argued the denial was materially defective because it failed to show the medical treatment utilization schedule. The applicant argued the material defect was equivalent to an untimely utilization review, which could be appealed to the Appeals Board under Dubon II.  The applicant argued the Independent medical review doctor had improperly made credibility judgments about the applicant physician’s report. To the extent that the Board was prevented from disclosing the identity of the doctor who did the review, applicant raised constitutional challenges including but not limited to denial of his right to substantive and procedural due process. The applicant understood the Appeals Board could not rule on constitutionality of Labor Code provisions, however, applicant raises this issue to preserve his appeal.

 

The appeal was ordered taken off calendar at the request of the defendant because the applicant wanted only to raise the constitutional issue, over which the Board could not review.

 

The applicant filed a petition for removal or reconsideration of order taking matter off calendar. A Workers’ Compensation Judge reviewed the petition and recommended the petition for reconsideration be dismissed or denied. The WCJ determined the petition should be dismissed because it was not based on any of the grounds set forth Labor Code §5903. Likewise, petition for removal must be based on the grounds that the order will result in significant prejudice or irreparable harm. The WCJ found neither exist. The WCJ further found that there was no legal basis for the constitutional challenge because the Board has no power to declare a Statute unconstitutional.

 

The WCAB dismissed the reconsideration petition because it was from an order taking the matter off calendar, which was not a final order. The Board found the petition for removal was subject to denial because in order taking matter off calendar does not result in substantial prejudice or irreparable harm. Nevertheless, because the petition for removal raised only constitutional issues that the Board had no authority to resolve. The court granted removal to give the applicant a final order for purposes of review.

 

The applicant filed a petition for writ of review.

 

The question that was presented was if the Board had jurisdiction to review an Independent medical review on the ground that the underlying utilization review did not use the medical treatment utilization schedule.

 

In Dubon II the Court concluded that a utilization review determination is invalid only if it is untimely. If a utilization review decision is untimely, it is invalid, and is not subject Independent medical review. A dispute over the timeliness of the utilization review decision is a legal dispute within the Board’s jurisdiction, but all other disputes regarding the utilization review decision must be resolved by an independent medical review. If the Board determines that a utilization review decision is untimely, the Board may determine the medical necessity of the proposed treatment based on substantial medical evidence.

 

The applicant challenged the Board’s opinion in Dubon II arguing that the Board has jurisdiction over utilization reviews that are both untimely and procedurally deficient. The argument of the applicant that the Board has jurisdiction in this case is his assertion that the utilization review doctor did not follow the medical treatment utilization schedule, thus did not follow the proper procedure.

 

In this case the applicant utilization review was timely. Nevertheless, the applicant asserts that the Board has jurisdiction over his utilization review because it was materially defective.

 

If a utilization review decision denies or modifies a treatment recommendation based on medical necessity, the employee may request an Independent medical review. A utilization review decision may be reviewed or repealed only by Independent medical review pursuant to 4610.5.

 

The statute provides no exception for materially defective utilization review.

 

The legislature provided only one method for review or appeal of utilization review, that is by Independent medical review. Thus, the Board had no jurisdiction in this case to review the utilization review decision.

 

The Court of Appeal found the applicant had no claim that the Board jurisdiction on one of the grounds allowing review of Independent medical review set forth in the Labor Code as a reason to appeal and of Independent medical review decision to the appeals Board and giving them jurisdiction over that issue.

 

To the extent the Board has jurisdiction to review utilization review, it has only jurisdiction over nonmedical issues such as timeliness.

 

Any question that has effect of assessing medical necessity is a medical question to be conducted by a qualified medical professional by way of Independent medical review.

 

The Labor Code provides that in no event shall Worker’s Compensation administrative law judge, the appeals Board, or any higher court make a determination of medical necessity contrary to the determination.

 

Whether the UR reviewer correctly followed the medical treatment utilization schedule is a question directly related to medical necessity, and is reviewable only by Independent medical review.

 

The task of determining whether the denial was in compliance with the medical treatment utilization schedule is appropriately delegated to the Independent medical reviewer, was better able to determine whether the medical treatment utilization schedule was followed.

 

Statutory scheme presumes that a utilization reviewer relies on an incorrect guideline, not the medical treatment utilization schedule, the mistake will be corrected by Independent medical review because the Independent medical review is also required to be based on medical treatment utilization schedule.

 

In this case the Independent medical reviewer specifically noted that the decision was based on the medical treatment utilization schedule. The rationale for the Independent medical reviewer’s denial was that further acupuncture was not medically necessary because there been no functional improvement.

 

Applicant’s attorney also argues that a medically defective utilization review is an untimely review over which the Board has jurisdiction. The Court of Appeal rejected this argument. There was no dispute over the fact utilization review was performed within the statutory time praying.

 

The Court of Appeal concluded the Board had no jurisdiction to review a utilization review that was alleged to be defective failure to follow the medical treatment utilization schedule. Whether the utilization review follows the medical treatment utilization schedule is directly related to a determination of medical necessity. By statute, review of a determination of medical necessity is limited to the medical professionals performing the Independent medical review.

 

The Board properly dismissed the petition for reconsideration because it had no power to determine whether the utilization review was materially defective and the applicant did not state a proper ground for appeal of the Independent medical review to the Appeals Board.

 

The Court of Appeal went on to find that Independent medical review did not violate the State Separation of powers were Due process of law. The Court of Appeal agreed with the decision in Stevens the WCAB (241 Cal App 4th 1074). The court also concluded Independent Medical Review did not violate federal procedural due process.

 

The order of the WCJ taking matter off calendar was reversed. The WCJ was directed and or order consistent with the use of this decision.

 

Stevens v. Outspoken Enterprises, Inc. (BPD) (45 WCR 147)

 

The WCJ and upheld by the WCAB held that the Appeals Board lacked the power to review an IMR determination of medical necessity absent a showing by clear and convincing evidence that establishes the grounds for appeal under one or more of the five categories listed in Labor Code §4610.6(h).  The WCAB further agreed with the WCJ that they had no authority to determine the constitutionality of the IMR statutes which was raised as an issue by applicant.

 

The applicant filed a Petition for writ of review which was granted by the Court of Appeal

 

The Court of Appeal upheld the constitutionality of the IMR statutes. The Court of Appeal further held that the Appeals Board applied the wrong standard of review of an IMR determination and the that the WCAB had considerable authority to review both factual and legal questions in determining whether an IMR determination was adopted without authority or is based on a plainly erroneous fact not subject to expert opinion.

 

The matter was returned to the WCAB on remittitur from the Court of Appeal, following the Order of the California Supreme Court denying applicants Petition for Review and the Order of the Supreme Court of the United States denying applicants Petition for Writ of Certiorari.

 

The decision of the Court of Appeal remanded the matter to the Appeals Board to consider whether the applicant’s request for housekeeping and personal services was denied without authority.

 

The WCAB on remand held the MTUS is based upon the application of evidence-based medicine to ensure that clinical decision making is guided by the integration of the best available research evidence with clinical expertise and patient values.

 

At issue in this case was the 2009 Guideline, which was applied by the IMR reviewer to determine the medical necessity of the RFA for home healthcare aid.

 

The guideline provided that medical treatment does not include homemaker services like shopping, cleaning, and laundry, and personal care given by home health care aides like bathing, dressing and using the bathroom when this is the only care needed.

 

The WCAB concluded that the Independent Medical Review determination upholding the denial of the request for a home health aide was adopted without authority by the administrative director because the portion of the 2009 medical treatment utilization schedule/chronic pain medical treatment guideline applied in this case provides that housekeeping and personal care services are not forms of medical treatment. This provision is contrary to long-standing worker’s compensation law, which recognizes that such types of non-medical care are forms of medical treatment that may be reasonably required to cure or relieve the effects of an industrial injury. (Smyers v. WCAB, 49 CCC 454).

 

Therefore, the WCAB concluded that the 2009 guideline is unlawful and invalid since it fails to address the medical treatment in the form of personal home care services sought by the applicant.

Because the guideline is contrary to California law and is invalid, the presumption of correctness could not apply.

 

Once the Guideline was found invalid, the WCAB than noted that the requested treatment may be authorized based on recommendations outside of an MTUS guideline where the MTUS presumption of correctness has been controverted by a preponderance of scientific medical evidence establishing that the treatment is reasonable necessary to cure or relief from the effects of the industrial injury.

 

The WCAB further noted that in the review of the utilization review decision, expert opinion may be considered in the determination of whether a requested mode of treatment is medically necessary.

 

In this case the IMR determination relied on a guideline that is invalid and there was no consideration of scientific medical evidence or expert opinion intended to demonstrate the necessity of the recommended treatment.

 

The WCAB concluded that the administrative director exceeded her authority when she adopted the IMR determination in this case.

 

Because this conclusion is contrary to the WCJ’s finding that the administrative director had not exceeded her authority when she adopted the IMR determination, the WCAB rescinded the WCJ’s finding an order denying applicants IMR appeal and returned the matter to the trial level for further proceedings in accordance with the decision.

 

The WCAB further noted that in this case the medical evidence supporting the applicant’s need for home healthcare appears to be compelling. Nevertheless, the appeals Board was precluded from determining the medical necessity of a home healthcare need in this case.

 

On remand to the WCJ the WCAB recognized that the 2009 guideline has been revised since the court issued its decision in this matter, and the current guideline includes home healthcare services. However, the scope of the Board’s determination is limited to the present record and the 2009 guideline, as it is the version that applied in the proceedings below and reviewed by the court.

 

While the WCAB did not consider the merits of the effect of the current guideline, they recognize that it may be applied by a different IMR reviewer in the event there is a remanded to the administrative director.

 

The WCJ may determine whether further hearing is necessary on issues not reached herein, and can consider whether, given the passage of time, further development of the record may be necessary. In the event the WCJ finds that the administrative director determination is reversed, the WCJ may determine what evidence, if any, should be provided to the new IMR reviewer when submitted for review pursuant to Labor Code §4610.6(i).

 

Baker v. Workers’ Compensation Appeals Board (Court of Appeal unpublished, Third District Court of Appeal) (____CCC_____):

 

The Court agreeing with the Appeals Board majority in the case and the Court of Appeal case in Stevens concluded the the 30-day time limit in Lab. § 4610.6(d) for IMR review is directory and not mandatory, therefore, an untimely IMR determination is valid and binding on the parties.

 

The Third District Court of Appeal’s unpublished opinion is practically a restatement of the published opinion issued by the Second District Court of Appeal in State Comp. Ins. Fund v. Workers’ Comp. Appeals Bd. (2016) (81 Cal.Comp.Cases 561).  In that decision, the Court of Appeal concluded (1) the 30-day time limit in Lab. Code section 4610.6(d) is directory, so an untimely IMR determination is valid and binding upon the parties as the final determination of the director; and (2) an injured worker may bring a petition for writ of mandate to compel the Administrative Director of the DWC to issue an IMR determination.

 

Medical Treatment and UR (2/2)
Headnote here

Payne V. Federal Express (BPD) (2017 Cal. Wrk. Comp. P.D. LEXIS 243):

 

The WCJ issued a finding that they lacked jurisdiction to award medical treatment in the form of an extension of what a weight loss program because applicant had triggered the Independent medical review process by seeking utilization review of a denial of medical treatment and therefore was required to resolve the process by the UR/IMR process even though the parties that entered into a Compromise and Release Agreement in 2003 wherein they agree to utilize an Agreed Medical Evaluator, Mark Mandel M.D., to determine medical necessity for applicants claimed industrial treatment including weight loss.

 

The WCAB reversed the WCJ adopting the analysis set forth in the panel decision in Bertrand (2014 Cal. Wrk. P.D. LEXIS 243).  In that case the WCAB concluded that the terms of the parties’ compromise and release are not vitiated by the new UR/IMR provisions because the terms of a binding settlement agreement cannot be invalidated by subsequent statutory changes.

 

In addition, the appeals Board ruled the applicant did not waive his right to enforce the terms of the settlement by pursuing UR/IMR.

 

 

The WCAB addressed the issue of the Stevens case and noted the party’s agreement in this case to use an Agreed Medical Evaluator to resolve medical disputes was consistent with the underlying purpose of UR/IMR statutory changes discussed in Stevens because it obviated need to litigate future medical treatment disputes through more protracted IMR review and appeal processes.

 

Parrent v. WCAB (W/D) (45 CWCR 63):

 

Applicant sustained an industrial injury to his bilateral upper extremities and settled his worker’s compensation claim by a Stipulation for 64% permanent disability and future medical treatment.

 

A physician within the employer’s MPN diagnosed applicant and submitted a request for authorization for prescription and topical medications.

 

A utilization review physician approved one month of the medication to applicant and to taper off the medication and disallowed the second medication.

 

The injured worker requested independent medical review and the reviewer concluded the treatment was not medically necessary.

 

Applicant filed a declaration of readiness to proceed for a hearing and challenge that the UR decision was invalid because it was reviewed under Labor Code §4610 UR/IMR rather than 4616 (f) (scope of license).

 

The Workers Compensation Judge ruled, following a hearing, that because the parties had stipulated UR had been timely, the WCAB lacked jurisdiction to address the disputed medical issue, which could proceed through the IMR process. The Workers Compensation Judge further ruled that applicant’s participation in defendant’s MPN does not preclude defendant referring an RFA to UR. Applicant filed a petition for reconsideration.

 

The WCAB rejected applicant’s contention that an insurer or permissibly self-insured employer is not entitled disputed medical treatment recommendation from a physician in the MPN to which it had referred applicant for treatment, but must authorize any recommendations submitted by the MPN physician.

 

The MPN system provides an injured worker who disputes the diagnosis or treatment recommendations MPN treating position selected by the employer or a worker-selected treating physician after the first visit with an employer-selected MPN physician, a mechanism to obtain a second, even third, opinion from other MPN physicians consistent with Labor Code §4616(f) provision. They still dissatisfied worker, and after having obtained second and third opinions within the MPN, may request, pursuant to Labor Code §4616.4(b), that the dispute be submitted to an independent medical review physician within the MPN.

 

Pursuant to Labor Code §4610, an employer or insurer that questions the treating physician’s treatment recommendations must pursue its establish UR process, subject IMR, only if the injured worker has disputed UR determination.

 

Commissioner Swayze, concurring, emphasized that by the employer having submitted a dispute over its MPN physician’s treatment recommendation to UR, an injured worker is not precluded from initiating Labor Code §4616.3 second opinion process, or from changing treating physician within the MPN by the employer having submitted a dispute over its MPN physician’s treatment IMR. That is the injured worker disputes the treatment recommended by an MPN treating physician may initiate (1) the usual UR/IMR process or (2) 4616.3 second and third physician process and, if dissatisfied with those physician’s conclusions, then request the MPN/IMR process.

 

The court in the Writ denied opinion concluded that the worker had pointed nothing in the UR statue or their legislative history that showed an employer’s dispute of the treatment recommendation made by a physician and its MPN is exempt from UR under section 4610. The court concluded that nothing in the end and statute suggest that an employer is exempt from UR if it disputes the treatment recommendations made by a physician within its MPN.

 

The Supreme Court denied review as well as the Court of Appeal.

 

Swengel v. Cambridge (BPD) (45 CWCR 38):

 

Applicant’s claims were settled by Stipulations with Request for Award for 43% permanent disability with the right of future medical treatment.

 

Applicant psychologists initially recommended a gym membership which defendant authorized. Since the initial authorization the applicant attended the gym 5 to 6 days per week to engage in pool exercises including water aerobics and swimming.

 

According to the applicant, gym membership greatly benefited her as she lost 40 to 50 pounds since the time was authorized and the other activities are not as effective because they caused her feet to swell.

 

Applicant’s primary treating physician stated that the use the gym membership reduced her need for medications and possibly contributed to her health.

 

An RFA issued in 2014 from applicant’s primary treating physician for a three-month gym membership which was denied by UR on the ground that applicant’s diabetes was not an industrial condition.  Defendant then stipulated to authorize the gym membership for those three months.

 

In November 2015 the primary treating physician filed an RFA for an extension of the gym membership. The UR denied the request on the grounds there was no evidence that applicant could not perform the whole exercise program or why she needed a pool. The denial also stated the gym memberships and pools would not generally being considered medical treatment and therefore not covered by the guidelines.

 

Instead of petitioning for IMR applicant filed a petition to enforce her award and for penalties against defendants for failing to authorize the gym membership.

 

The matter proceeded to trial and the WCJ ruled that submission of the RFA to UR had been improper, observing that the administrative director had, in a separate case, stated the gym memberships are not subject to IMR and that, absence of change in material circumstances, defendant could not discontinue the gym membership.

 

The WCJ awarded applicant attorney fees for enforcing the medical award but not penalties. Defendant filed a petition for reconsideration.

 

The WCAB ruled that the WCJ did not have jurisdiction to review a timely UR denial of a gym membership.

 

Labor Code §4600 defines medical treatment as including services that are recommended by the treating physician as medically necessary to cure or relieve the effects of industrial injury, even if not provided by a medical professional. Cases held a weight loss clinic, housekeeping services and other indirect healthcare services fall within the scope of Labor Code §4600.

 

The WCAB help water aerobics and a gym membership are considered to be medical treatment pursuant to Labor Code §4600.

 

The Board then went on to state that having determined the dispute was subject to UR, there was no dispute regarding the timeliness of the UR determination or that applicant had not filed an IMR repeal.

 

The WCAB distinguished Patterson (79 CCC 910), because in that case defendant unilaterally terminated home healthcare services without submitting that request to UR, but in the instant case to find defendant is obligated to establish a change in circumstances before it can obtain UR is misplaced.

 

In this case defendant properly submitted the RFA to UR and UR’s non-certification triggered the IMR appeals process.

 

Prior authorization for gym memberships were for finite periods of time and those finite authorizations did not bind defendants to approve gym memberships indefinitely. The WCJ had no jurisdiction to determine the reasonable medical necessity the gym membership.

 

The WCAB stated there was no basis for the Appeals Board to invalidate the UR determination and they find no support for applicant’s contention that she is entitled penalties.

 

The WCAB overturned the WCJ’s determination that applicant was entitled to a gym membership and instead ruled that the WCJ did not have jurisdiction to hear the dispute because there was a timely determination that was properly subject to UR.

 

Rodriguez v. Simi Valley Unified School District (BPD) (2017 Cal. Wrk. P.D. LEXIS 671) ( 45 CWCR 19):

 

The treating physician submitted an RFA for a home health-care evaluation and to a request for home health-care services.

The treating physician requested an evaluation regarding home health-care assistance that was denied by UR.

 

Parties disputed whether an evaluation regarding home healthcare assistant was subject to utilization review.

 

The WCAB found that Labor Code §4600(h) requires that home healthcare should be treated like any other form of treatment. The WCAB found no distinction between the UR requirements for an evaluation for medical treatment and actual provision of medical treatment.

 

The WCAB concluded that because the requested evaluation of home health-care assistants constituted medical treatment, it was subject to the UR process.

 

Labor Code §4610, which defines medical treatment and the scope of UR, respectively, section 4600 contains a broad definition of medical treatment, referring to many treatment modalities that are reasonably required to cure or relieve the injured worker from the effects of the industrial injury. Moreover, 4600 specifically addresses home healthcare services and does not differentiate it from other forms of medical treatment.  Labor Code §4610 applies to medical treatment requests made pursuant to 4600 and uses the same medical necessity languages 4600.

 

A request for home health-care evaluation comes logically within the plain language of the statute with their inclusion of home healthcare and medical necessity.

 

To differentiate, from treatment request, evaluative requests, such as for X-Rays -not in and of themselves treatment for any medical condition would place them outside the scope of UR. There have been numerous determinations that medical imaging and certain specialist evaluations to determine scope of treatment are subject to UR.

 

In sum, determining whether this proposed regime (home healthcare) is appropriate is no less medical treatment than actual implementation of the regimen itself.

 

Further, since the request was subject to UR and UR timely denied it, IMR became the dispute resolution mechanism in the WCJ lacked jurisdiction to address the dispute.

 

The WCAB in a footnote to the decision indicated that a home health-care evaluation could be a medical legal expense, rather than treatment, but did not believe the request at issue was a medical-legal expense.

 

 

Schendel V. B & B Sales (BPD) (45 CWCR 41):

 

Applicant sustained an industrial injury to his knees and back in July 1998.  Applicant entered into a stipulation to 45% PD with the right to future medical treatment.  Applicant filed a petition to reopen.

 

Applicant entered into a a second stipulation which also provided for future medical treatment per the reports of two Agreed Medical Evaluators.

Applicant’s primary treating physician submitted a request for medical treatment (RFA) for various drugs he previously prescribed.

 

Defendants submitted the RFA to you are which certified one of the drugs but denied certification of two others.

 

And IMR upheld the denials.

 

At an expedited hearing the applicant questioned defendant’s right to submit the RFA to UR. The parties agreed to have the AME in orthopedic surgery review the UR denials and prepare a medical report. The physician did not reevaluate the applicant who he had previously examined 2003, but indicated that two drugs should be provided.

 

The WCJ then determined that defendant was obligated to provide the prescription medications because of the Stipulation that had previously entered into and that defendant waived the UR/IMR procedure, the parties having agreed to submit the UR denials to the Agreed Medical Evaluator.

 

Defendant contended that the submission to the AME had been for review, not for determination, and filed a petition for reconsideration arguing the WCJ lacked jurisdiction over the medical treatment issue because there was a timely UR denial upheld by IMR. The defendants argued the prior stipulation did not constitute a waiver. Defendants also argue that because prescription drugs are for finite periods they should not be treated as other more indefinite forms of medical treatment. Finally, defendant argued the AME’s report did not rebut the MTUS.

 

The WCAB ruled that defendants agreed to submit the UR denial to the Agreed Medical Evaluator and report regarding the necessity prescription drugs.

 

The WCAB cited the case of Bertrand v. County of Orange (42 CWCR 201) in which the Board held that the IMR process for reviewing a UR denial of medical treatment may be Agreed Medical Evaluator and that once the medical treatment dispute arose through the UR denial, defendant agreed to return to the agreed Medical Evaluator resolve the issue.

 

The WCAB majority did not discuss defendant’s argument regarding the allegation that the opinion from the AME did not satisfy the MTUS and substantial medical evidence standards.

The panel did not address the question of whether a change in circumstances existed, instead relying on the Stipulation and the January 6, 2016 minutes of hearing to rule that applicant was bound to follow the opinion of the Agreed Medical Evaluator.

 

The WCAB majority denied defendant’s petition for reconsideration and upheld the judges award of the prescription medication and its accordance with the report of the Agreed Medical Evaluator.

 

A dissenting Commissioner agreed that defendant was bound to submit the medical treatment dispute to the Agreed Medical Evaluator, but declined to agree that the majority opinion was sufficient to support a finding of reasonable medical necessity under the MTUS.  The Commissioner deemed the AME’s opinion was not based on substantial medical evidence and not in compliance with the MTUS guidelines, which would have required the AME to re-evaluate applicant, review all the inter medical reports, and expressly addressed whether the prescription met the guidelines. She noted the AME said he would need to review a fuller version of applicant’s pain management records to make more specific recommendation on the need for medications.

 

The majority did not deal with the issue if the parties had to return to the AME based on the Stipulated award but ruled only on the stipulation agreed to at the hearing and contained in the minutes of the hearing.

Juan Rivas, Applicant v. North American Trailer (BPD) (2016 Cal. Wrk. Comp. P.D. LEXIS 572)

The WCAB ruled that applicant properly designated Kenneth K. Wogensen, M.D., employed by Casa Colina Transitional Living Center (Casa Colina), as his primary treating physician within defendant’s MPN,

Dr. Wogensen was not listed as individual physician in MPN, however Casa Colina was listed as being within the employers MPN.

The WCAB held that applicant was entitled to medical treatment requested by Dr. Wogensen to cure or relieve effects of his 10/16/2015 admitted injury to his head, brain, neck, ears, and eyes, including 60 days of post-acute physical rehabilitation at Casa Colina.

The WCAB concluded that Casa Colina was listed in defendant’s MPN, and the WCAB reasoned that under Labor Code §4616(a)(3) and 8 Cal. Code Reg. § 9767.5.1, medical groups may be members of MPN and may employ services of physicians who do not register individually with MPN, such as Dr. Wogensen.

The applicant’s designation of Dr. Wogensen as his primary treating physician specifically referred to Casa Colina, and evidence established Dr. Wogensen, in rendering treatment to applicant, acted only through Casa Colina and not in his capacity as individual physician,

The WCAB rejected defendant’s assertion that Casa Colina was hospital that could only provide treatment upon referral from individual member of MPN.  The WCAB stated this allegation was contradicted by description of Casa Colina in defendant’s MPN listing stating that Casa Colina was in the MPN for purpose of providing inpatient and outpatient treatment in areas that expressly included rehabilitation from brain injury, and that no referral was required for this kind of treatment;

The WCAB found that since Dr. Wogensen was properly designated treating physician, defendant was required to conduct utilization review under Labor Code §4610 before denying authorization for treatment requested by Dr. Wogensen.

Because defendant failed to do so, WCAB had jurisdiction to decide medical dispute, and that reports of Dr. Wogensen and Dr. David R. Patterson, M.D., another Casa Colina physician who treated applicant, were substantial evidence to support award of requested treatment.

Esperanza Sanchez v. Dunlap Manufacturing Inc. (BPD) 2016 Cal. Wrk. Comp. P.D. LEXIS 407):

The WCJ found that defendant did not timely serve utilization review (UR) decision pursuant to timeframes in Labor Code §4610(g)(1) and (g)(3)(A), and 8 Cal. Code Reg. § 9792.9.1(e)(3), which require that UR decision be timely made and timely communicated.

The WCAB agreed with the WCJ who found the UR determination was not timely communicated when the determination was sent to the applicant and the requesting physician within specified timeframes, but was not served on applicant’s attorney pursuant to 8 Cal. Code Reg. §10510.

However, the WCAB rejected the WCJ’s conclusion that defendant’s failure to serve copy of request for authorization (RFA) on applicant attorney created adverse inference that RFA established reasonableness and necessity of medical treatment in form of corticosteroid injection to applicant’s right wrist and eight sessions of physical therapy.

The WCAB concluded that the only medical evidence on record in this case addressing reasonableness and necessity of requested medical treatment was copy of defendant’s UR decision.

The WCAB held that even if defendant does not timely complete UR, injured employee must still prove that requested treatment is medically reasonable and necessary by demonstrating that treatment request is consistent with uniform guidelines or, alternatively, rebutting application of guidelines with preponderance of scientific medical evidence,

Although an RFA is a medical report and should have been served on counsel, there was no evidence that defendant’s failure to serve RFA, or produce a copy of RFA at trial in this case, constituted willful suppression of evidence, and that without any evidence to indicate whether defendant willfully suppressed production of evidence and absent evidence regarding whether requested medical treatment was reasonable and necessary, further proceedings at trial level were necessary.

Weimer v. Hillyard Inc. (BPD) (2017 Cal. Wrk. Comp. P.D. LEXIS 104) (45 CWCR 73):

The treating physician submitted an RFA for various medications with an incorrect claim number.

The claims administrator sent the RFA to the treating physician marked “INCOMPLETE request for MED” and indicated the claim number was incorrect.

The WCAB ruled that rule 9792.6 .1 (t) does not require the inclusion of a claim number, but the Appeals Board added that it would be prudent to include an accurate claim number in every RFA to effectively identify the employee.

 

 

The WCAB found that while the RFA included an inaccurate number, the claims adjuster correctly identified the employee and claim number on the day the RFA was received. Because the RFA successfully identify the employee to the claims administrator, the defendant received information reasonable and necessary to make the determination when it receives the RFA form.

The Appeals Board found the UR determination to be on timely giving the WCAB jurisdiction to cite the medical issue.

Puente v. Napa Valley Unified School District (BPD) (2017 Cal. Wrk. Comp. P.D. LEXIS 100):

The WCJ found that a defendant’s MPN was inadequate and did not meet the minimum access standards because there were only two pain management doctors within 30 minutes or 15 miles of applicant’s residence or workplace.

Defendant filed a Petition for Reconsideration.

The WCAB found that the rules provided different access standards depending on whether the care is provided by a “primary treating physician” or by a “specialist”.

The WCAB indicated that the MPN must provide a list of at least three physicians competent to treat injuries commonly experienced by employees. They must be identified through their provider code is primary treating physicians willing to serve in that role, and they must be within the 15 mile/30-minute radius mandated by rule 9767.5 (a) (1) of the applicant’s residence or workplace.

If the applicant selects a physician who is identified as a specialist, but who is not listed his or her availability as a primary treating physician, the greater access standards for 30 miles and 60 minutes for specialist will apply pursuant to rule 9767.5 (a) (2).

The WCAB added that defendant was not obligated to have three pain management specialists within the closer radius in the access standards, but the MPN must have, within 15-mile/30-minute radius, three physicians with an appropriate specialty to provide ongoing primary care for the applicant’s injury and are willing to serve as her primary treating physician.

If a physician who is not trained in the applicant’s preferred specialty or subspecialty is selected as the primary treating physician, and he or she identifies the need for additional care from a specialist, the MPN must provide an adequate selection of appropriate specialists within a 30-mile/60-minute radius of the applicant’s residence or workplace, or the MPN must permit the applicant to seek care outside the MPN.

The WCAB remanded the matter for the WCJ to determine whether the defendant’s MPN met the access standards for selection of a primary treating physician with an appropriate specialty to treat applicant’s industrial injury.

 

 

Mata v. Supermercado Mi Tierra (BPD) (2017 Cal. Wrk. Comp. P.D. LEXIS 166):

 

The WCJ found that the applicant suffered an industrial injury to his neck, back, and on April 15, 2016 was entitled to cervical fusion surgery approved bind defendant’s utilization review process.

 

Defendant filed a Petition for Reconsideration.

 

The WCAB agreed with the WCJ.

 

The WCAB found no merit to defendant’s contention that deferral of the utilization review approved neck surgery was appropriate based on the fact defendant was contesting whether the need for cervical fusion was caused by applicant’s industrial injury to his neck or pre-existing condition.

 

Because defendant did not act timely within the five-day time frame (§9792.9 .1(b) (1)) to defer liability for the recommended treatment, once the defendant decides to proceed with utilization review rather than defer, they cannot later to decide to delay medical treatment approved by the utilization process that it is disputing industrial injury.

 

Because defendant in this case accepted liability for applicant’s neck and the recommended surgery was certified by utilization review there was no basis for den defendants failed surgery.

 

De La Garza  v. Roll Global/Del Rey Juice Plant dba POM Wonderful (BPD) (2017 Cal. Wrk. Comp. P.D. LEXIS 61):

 

The WCJ issued an order directing defendant to authorize surgical treatment recommended by applicant’s primary treating physician because surgical treatment was certified by a June 3, 2016 utilization review and the WCJ found no justification for defendant’s withdrawal of the utilization review certification on the basis the same treatment had been denied by utilization review on May 20, 2016 because that denial was effective for 12 months absent change in material facts relating to applicant’s condition based on Labor Code §4610(g)(6) and Reg. 9792.9 (o).

 

The WCAB affirmed the WCJ based on the fact the first request for treatment was made on the mistaken belief that the requested treatment was solely for cosmetic purposes and was not supported by the MTUS, however the treatment was subsequently certified by the physician clarifying the procedure was not cosmetic purposes, but was rather required to alleviate pain so he skated with applicant’s burn injury and to restore functionality to his arm.

 

The WCAB reasoned that with respect to whether the new utilization review issued within 12 months was valid, the WCAB indicated that the meaning of the phrase “a documented change in the facts material to the basis of the utilization review decision” that to the extent the physician’s initial utilization review was premised upon incorrect assumption as to purpose surgery, there was a documented change in facts material to the basis for the UR decision.

 

When the physician was made aware of the mistaken belief by receiving a report from the primary treating physician and a new RFA was issued, that even assuming the resubmitted RFA is not technically proper because one-year had not yet expired, there is nothing that prohibits the claims adjuster from accepting and acting on a utilization review that is resubmitted prior to such expiration, and that, here the claims adjusters decision to treat the RFA as a proper request for treatment and submitted to utilization review was consistent with the overreaching legislative purpose in enacting the utilization review process “to ensure quality, standardized medical care for workers in a prompt and expeditious manner”, and to allow the physician, rather than the claims adjuster to make decisions regarding injured workers medical treatment.

 

Medical Treatment/Utilization Review
Headnote here

Sutter Solano Medical Center v. WCAB (Go) (W/D) (83 CCC 381):

 

Applicant suffered an admitted industrial injury to her neck.

 

One of applicant’s treating physicians submitted an RFA for cervical spine surgery on May 7, 2015.  Utilization review denied the spine surgery and it was upheld by IMR.

 

Applicant was declared permanent stationary on September 11, 2015 by the treating physician with a 7% permanent disability after apportionment to nonindustrial factors.

 

On March 28, 2016, after experiencing an increase in symptoms, applicant self-procured cervical spine surgery.

 

Following the surgery applicant was evaluated by a panel Qualified Medical Evaluator who found the applicant permanent and stationary with a 23% permanent disability after apportionment to nonindustrial factors.

 

Defendant disputed the Qualified Medical Evaluator’s determination and asserted that, because authorization for the cervical spine surgery was denied through UR/IMR defendant had no liability for additional permanent disability or temporary disability caused by the surgery.

 

The matter proceeded to trial and the WCJ issued a decision finding applicant sustained a period of compensable temporary disability as a result of the surgery she self-procured after the UR/IMR denied the procedure. The WCJ found the applicant had 23% permanent disability after apportionment to nonindustrial factors based on the report of the Qualified Medical Evaluator.

 

Defendant filed a petition for reconsideration.

 

The WCJ recommended that reconsideration be denied. The WCJ explained that she determined the applicant was entitled to the temporary disability and permanent disability following the surgery because the surgery proved to be reasonable by its positive outcome. She also found the report of the Qualified Medical Evaluator was substantial evidence and more persuasive than the treating physician’s report.

 

The WCJ citing the case of Barela v. Leprino Foods (2009 Cal. Wrk. Comp. P.D. LEXIS 482), in which the Appeals Board recognize that there is no prohibition against an injured worker self-procuring medical treatment for industrial injury, and that, while the employer may be relieved of liability for the cost of the self-procured treatment, the injured worker’s entitlement to permanent disability is not limited solely because the treatment was self-procured.

 

The defendant cited the case of Riberio v. WCAB (80 CCC 1222, writ denied), in which the Appeals Board held the applicant was not entitled to temporary disability caused by an unauthorized surgery performed to treat an industrial condition.

 

The Appeals Board adopting and incorporating the WCJ’s report, denied reconsideration based on its conclusion that it injured worker is entitled to indemnity for temporary disability and permanent disability resulting from the reasonable medical treatment of an industrial injury, even if the treatment is self-procured.

 

The WCAB observed that the panel in Riberio opined that the self-procured treatment was unnecessary and, by extension, the permanent disability caused by the un-authorized surgery was nonindustrial and apportionment was supported. In the Barela case the Agreed Medical Evaluator initially determined that the surgical procedure was unnecessary, but changed his opinion and concluded the surgery was reasonable, based on its favorable outcome.

 

The Appeals Board cited the case of Bucio v. County of Merced (2015 Cal. Wrk. Comp. P.D. LEXIS 123) in which the panel concluded that an injured worker was entitled to temporary disability regardless of whether the temporary disability resulted from reasonable medical treatment provided by the defendant or by reasonable medical treatment self-procured by the applicant.  The panel in this case recognized that no statute, including the UR/IMR statutes, distinguish between temporary disability that results from medical treatment self-procured under Labor Code §4605 and Labor Code §4600 medical treatment authorized and paid for by the employer. The panel in that case reasoned that using the Labor Code §4600 medical treatment dispute statute to address the issue of temporary disability would be inconsistent with the terms of Labor Code §4605 regarding self-procured medical treatment.

 

The panel in Bucio relied, in part, on the analysis of Valdez (78 CCC 1209), in which the Supreme Court considered the separate statutory provisions for addressing medical treatment disputes in the context of MPN treatment and for providing temporary disability, and ultimately rejected the employer’s contention that the statutes addressing the resolution of MPN medical treatment dispute precludes consideration of self-procured non-MPN medical reports when addressing issues of disability.

 

In this case the Appeals Board concluded that the UR/IMR statutory process ensures that the injured worker receives reasonable and necessary medical treatment, and does not preclude these workers from claiming entitlement to temporary disability or permanent disability resulting from reasonable self-procured medical treatment, even though the self-procured treatment is not held to the same uniform objective standards as medical treatment provided for by the employer under Labor Code §4600.

 

Citing the case of Hikida (82 CCC 679) an employee is entitled to a non-apportioned compensation for permanent disability caused by reasonable medical treatment of the industrial injury.  In that the UR and IMR statutes are silent on the question of temporary disability, an employee is not precluded from claiming temporary disability even if the disability results from reasonable medical treatment that is self-procured pursuant to Labor Code §4605.

 

The Appeals Board recognized that this case has the potential to expose an employer to liability for the consequences of medical treatment that does not meet the standards of reasonableness established by the Legislature for Labor Code §4600 medical treatment through the UR and IMR process. However, this is the law under the existing statutes the Board held.

 

UR and IMR assure that employees receive treatment that is reasonably required to cure or relieve the injured employee from the effects of his or her injury. This is done by applying uniform objective standards in a specified order. The standards and the order are set forth in Labor Code §4610.5 (c) (2).  These uniform standards ensure not only that the medical treatment provided by a defendant satisfies its obligation under §4600, they also assure that any associated temporary disability is the result of reasonable medical treatment that was necessarily provided.

 

Applying the same reasonableness standards to §4605, self-procured medical treatment as to treatment provided by the employer pursuant to §4600 would assure that the employer’s liability for temporary disability is the same in both instances. However, the uniform standards that apply by statute to Labor Code §4600 medical treatment are not statutorily applied to medical treatment that is self-procured treatment pursuant to §4605. As a result, self-procured medical treatment is not held to the same established standards as medical treatment provided by an employer pursuant to §4600 and that is the law that is applied in this case.

 

It is for the Legislature to determine if the standards that apply to §4600 medical treatment should also apply to medical treatment self-procured pursuant to §4605 for the purpose of determining entitlement to temporary disability and permanent disability.

 

Defendant filed a writ which was denied.

 

Ghattas v. O’Riley Auto Parts: (BPD) (2018 Cal. Wrk Comp. LEXIS 1):

 

The defendant received an RFA on June 5, 2017 and two days later denied the case and mailed notice of denial to applicant and applicant’s treating physician.

 

The defendant also notified the physician that the RFA was denied and that no treatment was authorized because of the injury denial.

 

The WCAB held that when an employer denies a claim within the 90-day provided by LC 5402(b), its responsibility to provide medical pursuant LC 5402 (c) ends, and defendant is not required to perform UR of any pending requests for authorization (RFA).

 

The WCAB found that the defendant’s timely notice of its denial of applicant’s claim terminated its responsibility to provide the worker with medical treatment pursuant to Labor Code §5402 (c), until such time as liability is subsequently adjudicated or is accepted by the defendant.

 

The WCAB stated that had the defendant accepted the applicant’s claim, it would have been required to submit the RFA to UR and respond within the required time frame.

 

The WCAB added that until the applicant’s claim is adjudicated, he may obtain reasonable necessary medical treatment on a lien basis.

 

Hall V. Western Medical (BPD) (2017 Cal. Wrk Comp. LEXIS 581):

 

The WCAB found that defendant’s utilization review determination was untimely.  The WCAB held the Appeals Board had jurisdiction to award homecare requested by the treating physician.

 

The WCAB held that defendant’s utilization review was untimely because it was not completed within the 72-hour time frame required for an expedited review pursuant to Labor Code §4610.

 

The defendant argued that it was not obligated to consider the RFA on expedited basis for review because the requested treatment was not of a nature that required an expedited review.

 

The WCAB held that defendant was not authorized to disregard the treating physician’s characterization that the RFA was required to be handled on an expedited basis. The Appeals Board found no statute or case law allowing defendant to ignore the statutory and regulatory time frames for acting by simply declaring that the RFA did not meet the criteria for expedited review.

 

The WCAB in addition found the evidence did support that the review should be conducted on expedited basis.

 

The WCAB also found that the award of homecare was supported by substantial evidence.

 

Wyant v. American Medical Response (BPD) (2017 Cal. Wrk. Comp. P.D. LEXIS 587)

 

The WCAB awarded the applicant spinal surgery that was denied on earlier Utilization Review.

 

The physician had submitted an RFA for spinal surgery that was timely denied by Utilization Review.

 

The physician then submitted a second request for authorization by issuing a subsequent RFA indicating the surgery was medically necessary following a documented change in material facts pursuant to Labor Code §4610 (k). The physician in the second RFA for the spinal surgery checked the box marked “resubmission-change in material facts”.

 

The second UR determination found the requested surgery was medically necessary.

 

The defendant asserted that the second utilization review decision was barred because the earlier utilization review determination was effective for 12 months pursuant to Labor Code §4610 (k).

 

The WCAB awarded the treatment because the defendant received additional supporting information and its UR reviewer authorized the treatment based on a determination that was both reasonable and necessary following a material change in facts.

 

Zuniga v. Workers’ Comp. Appeals Bd. (First District Court of Appeal (Div. 2) (83 CCC 1).

 

The WCAB has no authority to order disclosure of Independent Medical Review reviewers’ identities.

 

The Court of Appeal further held that keeping reviewer’s identities confidential does not violate due process

 

The Court of Appeal held that the provision within Labor Code §4610.6(f), requiring Independent Medical Review (IMR) organizations to describe the qualifications of the medical professionals who prepare determinations of medical necessity and to keep the names of the reviewers confidential in all communications outside the IMR organization, does not violate the injured employee’s right to due process.

The Court of Appeal stated that if a new review is granted a new and second reviewer must be appointed. If the second reviewer made by the same reviewer whose opinion was reversed then Independent Medical Review could be challenged on the grounds that the Administrative Director would’ve acted outside his authority because prohibition against using the same reviewer would violate Labor Code §4610 (h) (1) and that, if same reviewer wrote both reports, determination might well have been procured by fraud Labor Code §4610 (h) (2) and reviewer might have material conflict of interests Labor Code §4610 (h) (3) because he or she would be reviewing his or her own prior decision.

 

The Court of Appeal held it was sufficient that the review stated that it was performed by a reviewer who is not associated with the original review.

 

California Department of Corrections v. WCAB (Gomez) (W/D) (83 CCC 530):

 

This case held that a Utilization Review requesting further information was not timely conducted.

 

Labor Code §4610 requires that prospective or concurrent decisions shall be made in a timely fashion that is appropriate for the nature of the employee’s condition, not to exceed five working days from the receipt of the information reasonably necessary to make that determination, but in no event more than 14 days from the date of that medical treatment recommendation by the physician.

 

The phrase working days is not defined in the worker’s compensation statute. However, statutes require that UR services be available from 9 AM to 5:30 PM, Pacific coast time for each normal business day. (Labor Code §4600.4 (a)).

 

The phrase “normal business day” has the same meaning as “business day” under Civil Code section 9. The Civil Code, in turn, defines a “business day” as every day other than every Saturday and such other days as are specified or provided for his holidays in the Government Code of the State of California.

 

Government Code section 6700 (a) list the holidays in this state, but the Friday after Thanksgiving is not included.

 

It therefore appears that the Friday after Thanksgiving is a normal business day and UR services must be available on that date under Labor Code §4600.4 (a).

 

Because the Worker’s Compensation statute requires that UR services be provided on the Friday after Thanksgiving, it follows logically that that date should be considered a “working day” for purposes of commuting the time for a utilization review organization to respond to requests for authorization. The statute requires that the utilization review or stigmatization to work on that day. It can therefore properly be considered a “working day” for purposes of the UR deadline. The interpretation is supported by the regulations governing the UR process. The current regulations dispense with the phrase “working days” and simply use “business days” for the five-day timeframe.

 

Petitioners cite a Government Code section that lists the Friday after Thanksgiving is a holiday. “Government Code 19853 (a). That section is explicitly limited to holidays for “state employees” not the state as a whole. Similarly, the listing of the State Holidays on the California Department of industrial relations website consists of the state government holidays and does not purport to establish official holidays for the state as a whole.

 

Petitioners also point to Cal/OSHA regulations that define “working days” to include Saturday, Sunday or state holidays. However, by its terms, the definition is limited to the Cal/OSHA chapter the regulations and has no application to worker’s compensation procedures. The definition also does not specify what our state holidays for purpose of the regulation, so it is a little assistance. Petitioners also cite various statues and authorities discussing judicial holidays and holidays observed by the WCAB. The Court of Appeal indicated they disagreed that the statues and authority should apply here. The holidays observed by the WCAB and the California courts are not holidays for the state as a whole. There is no indication the Labor Code intended to exclude these holidays from the definition of “working days” for the purposes of utilization review process.

 

The general legislative intent to place treatment authorization decisions in the hands of medical professionals, rather than the Appeals Board, does not override the statutory analysis.

 

The Court of Appeal then indicated that in light of their conclusion they need not decide whether the untimely request for information was reasonable.

 

The writ was denied

 

Catheline v. WCAB (BPD) (83 CCC 537):

 

The Court of Appeal in a writ denied opinion ruled that the IMR process, which went into effect on January 1, 2013, covers any disputes over a utilization review decision if the decision is communicated to the requesting physician on or after July 13, 2013, regardless of the date of injury.

 

The utilization review decision in this case was communicated to the physician on August 12, 2013, thus by the plain terms of the governing statute that decision was subject to the IMR process despite the fact that the date of injury was October 17, 2000.

 

The Court of Appeal found that the statute on its face was clear and unambiguous. The Court found they had no power to ignore the plain meaning of the statute and excise language from it based on an alleged latent ambiguity that does not exist as was argued by the applicant’s attorney.

 

They also rejected the argument that the IMR process violates State constitutional rights to due process of law and to obtain substantial justice expeditiously, inexpensively and without encumbrance of any character.

 

Citing the case of “Stevens” the Court of Appeal indicated their colleagues in the first District thoroughly considered the same arguments and rejected them.

 

The court further concluded that the IMR process provides notice and opportunity to be heard that are sufficient to satisfy the requirements of the federal due process clause.

 

The Court of Appeal further rejected the argument that the board’s decision was not supported by substantial evidence.

 

The petition for writ of review was denied.

 

Permanent Disability 1
Headnote here

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.

 

Permanent Disability 2
Headnote here
  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.

 

Procedure
Headnote here

Abea v. Parco Inc. (BPD) (2017 Cal. Wrk. Comp. P.D. LEXIS 302)

The WCJ set the matter for trial over defendant’s objection. Defendant objected to the matter been set for trial because they had not completed discovery. The WCJ ruled that the matter was ready for trial because the defendant had already denied the case without need for further discovery on the issue.

The defendant filed a Petition for Removal which was granted by the WCAB.

The WCAB concluded that the WCJ’s interpretation of Labor Code §5403 placing a limit on defendant’s right to discovery once a claim has been denied was incorrect.

The WCAB stated that the fact that a defendant denies a claim within 90 days does not mean that it should be deemed ready to proceed to trial on the issue of injury at the expiration of the 90-day period.

The WCAB concluded that they should be allowed to complete its deposition of the applicant and the QME which should been set before the pretrial conference.

The WCAB concluded that the right to complete discovery was a due process issue.

 

Staudt v. UCLA (BPD) (2017 Cal. Wrk. Comp. P.D. LEXIS 324

The WCJ dismissed applicant’s case that after she did not personally appear at a mandatory settlement conference.

The WCAB rescinded the judge’s order.

The WCAB held Labor Code §5700 states that either party may be present at a hearing, in person, by attorney, or by any other agent.

The Appeals Board found that Rule 10301(u) defines a hearing to mean any trial, mandatory settlement conference, rating mandatory settlement conference, status conference, lean conference, or priority conference at a district officer before the appeals Board.

The WCAB concluded that because the applicant was represented by her attorney at the MSC, she did appear for the hearing pursuant to Labor Code §5700.

 

Mancillas v. County of LA (BPD) (2017 Cal. Wrk. Comp. P.D. LEXIS 293

The WCJ determined that she had jurisdiction to adjudicate the liens of Dr. Sobol because no order of consolidation had issued pursuant to Labor Code §139.2

Defendant filed a Petition which was denied with the WCAB explaining that eventually the liens of the physician would be consolidated and heard and the special adjudication unit, but until then, the district offices of the WCAB had no jurisdiction to hear the liens in question.

The WCAB also ruled that the Judges could determine whether or not the liens were associated with the charged criminal conduct and therefore were subject to dismissal with prejudice, or not associated with the conduct, in which case the liens could be litigated and negotiated on their merits.

The WCAB concluded that the WCJ properly proceeded to trial on the relevant issues because the liens of Dr. Sobel were not consolidated.

(Since the WCAB’s decision the liens were consolidated pursuant to Labor Code §139.21)

 

Lugo v. County of LA (BPD) (2017 Cal. Wrk. Comp. P.D. LEXIS 306

The WCJ issued a decision based on the opinions of Dr. Sobol even though he was suspended from the Worker’s Compensation system based on fraud conviction pursuant to Labor Code §139.21.

Defendant filed a Petition for Reconsideration which was denied. The WCAB found that Labor Code §139.21 does not make reports prepared by suspended physicians prior to suspension inadmissible.

The Appeals Board believes that if the Legislature wished to make reports prepared by suspended doctors prior to suspension inadmissible, it would have explicitly done so.

The WCAB found no proof was introduced at trial connecting the conviction with the treatment in the case or the preparation of the report which have made reliance on the report improper.

 

Psychiatric Injury 1
Headnote here

Kessler v. E & J Gallo Winery (BPD) (46 CWCR 61):

 

Applicant suffered a specific back injury in July 7, 2011.

 

The applicant entered into Stipulations with Request for Award on August 9, 2013 for the specific back injury, which also mentioned the psyche injury.  However, all the disability was based on the report of the Agreed Medical Evaluator in orthopedic medicine.

 

The applicant filed a Petition to Reopen in February 2015, claiming a worsening of his condition.

 

One year later the applicant filed a cumulative injury claim against the same employer through May 6, 2014 alleging injury to the back and psych.

The applicant was evaluated by a psychiatric Agreed Medical Evaluator who opined that the predominant cause met the 51% threshold for psychiatric injury in this case. She went on to opine that 90% of the residual disability flows from applicant’s injury and that although the orthopedic Agreed Medical Evaluator found some residual apportionment to nonindustrial, did not apply to the psychiatric permanent disability.

 

The Agreed Medical Evaluator stated that of the 90% industrial permanent disability, one third derived from an apparently inactive 1989 specific injury one third from the July 7, 2011 specific injury and one third of the cumulative trauma.

 

The cases were consolidated for trial and the parties stipulated to the back injury in both claims but disputed injury to the psyche.

 

The Worker’s Compensation Judge found new and further disability in the specific injury claim and injury to the psyche in both cases. She apparently concluded that the subject’s psyche injury had not been settled by the August 2013 stipulation.

 

Defendant objected, claiming the psychiatric evaluator did not establish that industrial factors were predominant cause of either of the psychiatric injuries claimed.

 

The WCJ rescinded the original award, advised that an amended award would issue.

 

The amended award may no material change from the prior award other than a statement in the opinion on decision the judge found good cause to grant the Petition to Reopen.

 

Defendant filed a Petition for Reconsideration.

 

The Appeals Board agreed with the trial judge’s assessment.

 

The WCAB reasoned that Labor Code §3208.3 (b) (1) standard of compensability required that actual events of employment needed to be predominant as to all causes of the injury.

 

The panel noted that causation of permanent disability is distinct from causation of injury citing the significant panel decision in Reyes (70 CCC 223).

 

The panel further stated that the analysis of these issues are different in the medical evidence for any percentage conclusions might be different.

 

The WCAB then quoted the Court of Appeal case of Turgreen Landcare v. WCAB (Gomez) (75 CCC 385), which considered three events as predominant to all causes combined of applicant’s injury to the psyche.  One was the emotional reaction to a November 29, 2005 incident where a coworker was killed, the second related to his reaction to events taking place after the killing, and the third was his reaction to a back injury in mid-December, few weeks after the initial incident. Each of these events combined, played an active, significant and predominant role of greater than 50% as to all causes of applicant’s injuries.

 

The panel concluded that here the Agreed Medical Evaluator opined that 90% of applicant psychiatric disability was industrially caused which met the predominant cause standard of §3208.3. The equal apportionment she had made among the three events related only to permanent disability, and the issue of causation of injury and apportionment of disability are distinct.

 

The WCAB denied defendant’s Petition for Reconsideration.

 

Rodriguez v. State of California (BPD) (56 CWCR 56):

 

On April 20, 2016, applicant, employed as a groundskeeper/janitor suffered, food poisoning when he ate a piece of marijuana-laced cheesecake given to him by a coworker. Applicant was unaware that the cheesecake contained marijuana, and both he and the coworker were hospitalized as a result of the poisoning. Applicant learned he had ingested marijuana while being treated at the hospital.

 

The applicant was evaluated by Howard Greils M.D. as panel Qualified Medical Evaluator in psychiatry.

 

The Qualified Medical Evaluator concluded that causation of applicant’s psychiatric injury was predominantly caused due to applicant’s negative reaction to unknowingly eating cheesecake laced with marijuana.

 

Later in the same report, the physician modified his earlier conclusion on causation and instead indicated that he was unable to determine whether the psychiatric injury was industrial or nonindustrial, leaving such a finding to the trier of fact.

 

The physician then opined that 50% of the injury was attributed to applicant’s been drugged at work without his knowledge, 25% to the alleged subsequent employer retaliation against them, causing a hostile workplace, 25% to an unsafe workplace environment resulting from his employers allegedly not having visited consequences on the coworker who gave the cheesecake.

 

The PQME indicated the trier fact would need to determine which of those factors are actual events of employment, and, if so, which are personnel action and finally, which would be considered lawful, discriminatory, and in good faith.

 

The WCJ found the applicant sustained an injury to his psyche.

 

Defendants filed a petition for reconsideration.

 

The WCAB denied reconsideration and agreed with the WCJ.

 

The WCJ found that the applicant had proved that he had sustained and industrial psychiatric injury.

 

The panel noted the definition of specific injury provided by Labor Code §3208.1 (a) as an incident which causes disability or need for medical treatment.

 

They then observed that the physician identified only one factor that occurred prior to applicant’s becoming temporarily totally disabled, the unknowingly ingestion of marijuana laced cheesecake.

 

The other alleged factors he identified, retaliation an unsafe workplace environment occurred after temporary total disability began.

 

For worker’s compensation purposes, once the psychiatric condition caused the need for medical treatment or cause disability an injury had occurred.

 

The only factors occurring prior to the need for medical treatment and the commencement of temporary disability could cause the injury.

 

The panel concluded that be given marijuana laced cheesecake cannot constitute a good-faith personnel action, remarking, whether the events that took place after the industrial injury were a separate injury (whether compensable or noncompensable) or a compensable consequence of the April 20, 2016 injury is superfluous to the issue of whether applicant sustained and industrial psychiatric injury on that date.

 

The Appeals Board affirmed the WCJ’s finding of industrial psychiatric injury, without taking a position on other case issues, including apportionment any permanent disability, which was deferred for later adjudication

 

Psychiatric Injury 2
Headnote here

Madson v. Cavaletto Ranches (BPD) 45 CWCR 65

The applicant, a truck driver, was involved in an industrial motor vehicle accident when another vehicle turned onto the highway without using a dedicated merge lane, 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 during which time the claustrophobic applicant could take only shallow breaths. The applicant testified at trial that he was afraid the truck would catch fire because it had two full tanks of fuel and the engine was still running.

Applicant was freed from the wreckage by the “jaws of life” and described the event as “horrific.” 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 two vertebrae and that he could have died had the fracture gone further. Applicant testified he developed emotional symptoms slowly after the injury.

The panel Qualified Medical Evaluator in psychiatry diagnosed the applicant with 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. 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 CWCR 111), 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. Applicant filed a petition for reconsideration.

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

The WCAB, citing the case of City of Los Angeles v. WCAB (81 C.C.C. 611) (W/D), stated that the 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 directly from the compensable physical injury. Therefore, the preclusion of §4660.1(c) did not apply to applicant’s psyche injury.

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 extract him from the wreckage Such circumstances, in the opinion of the Board, could 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 disability as an exception to § 4660.1 (c).

The WCAB indicated that Labor Code §4660.1(c) 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 section goes on to state that an increased impairment rating for a psychiatric disorder shall not be subject to the limitation if the applicant was a victim of a violent act or direct exposure to a significant violent act within the meaning of §3208.3 or a catastrophic injury, including but not limited to loss of limb, paralysis, severe burn, or severe head injury.

The panel concluded that, based on the report of the Qualified Medical Evaluator, the traumatic stress of the motor vehicle accident resulted in the post-traumatic stress disorder and was itself the industrial injury. The WCAB also agreed with applicant that even if the psych injury were found to have arisen from his physical injuries, it would be compensable because the mechanism of injury itself was a violent act.

Thus, the mechanism of the injury constituted a “violent act” within the definition of §3208.3 (b), entitling the applicant to compensable disability as an exception to §4660.1 (c). The WCAB then rated applicant’s overall disability at 60%. The WCAB rescinded the WCJ’s award and awarded the applicant 60% permanent disability.

Torres v. Greenbrae (BPD) (45 CWCR 152):

The applicant was employed as a tree trimmer, fell from a tree, hit his head on the tree trunk and lost consciousness. The applicant was transported to hospital and diagnosed with a closed head injury, loss of consciousness, and a cervical strain.

The applicant complained of dizziness, nausea, problems standing, severe pain in the head, neck pain, confusion when driving. The applicant complained of nightmares about falling generally and falling out of a tree.

The parties stipulated that he sustained physical injuries to his head, neck, back, and ears.

The applicant was seen by a psychiatrist who diagnosed a mild traumatic brain injury and concluded the applicant had sustained a psychiatric injury secondary to the brain injury. He signed the applicant with a 14% whole person impairment. The applicant was also seen by Agreed Medical Evaluator in neurology: found post traumatic headaches, cognitive, vestibular, neck impairments.

The matter proceeded to trial and the parties stipulated applicant sustained a psychiatric injury, disagreed on whether there was compensable permanent disability.

The WCJ determine the applicant sustained an industrial injury to his head, neck, back, hears, and psyche, with resulting cognitive difficulties, but also determined that the psychiatric permanent disability was not compensable because applicant had not incurred a catastrophic injury. According to the record, LC §4660.1 was raised at trial, but the violent act exception to the prohibition of psychiatric compensable consequence permanent disability was not specifically addressed.

Applicant filed a petition for reconsideration.

The WCAB concluded that applicant psychiatric injury arose directly from the event that caused this injury. The panel considered the applicant’s nightmares as suggestive that applicant sustained a direct psychiatric injury and noted that the psychiatrist had not addressed whether applicant’s psychiatric injury was direct or compensable consequence of the physical injury.

Labor Code §4660.1(c)(1) denies an increase in permanent disability for psychiatric, sleep and sexual dysfunction that arose from a compensable physical injury, but does not bar psychiatric impairment that directly arises from the injury.

The panel indicated there was conflicting evidence on whether the psychiatric injury was a direct result of the fall and thus required medical-legal clarification for determination on this issue.

The panel concluded that, because applicant raised Labor Code §4660.1 at trial, the issue of violent act exception to the bar of increase ratings for psychiatric disability was preserved even though is not specifically addressed.

The panel next determined that applicant’s injury fell within an exception. Pursuant to Labor Code §4660.1(c)(2)(A), even where the psychiatric injury as a compensable consequence of the physical injury, is compensable if it resulted from being a victim of a violent act or direct exposure to a significant violent act within the meaning of Section 3208.3.

To fall under the violent act exception, the act pursuant to the cases of Larsen (44 CWCR 111) and Madson (45 CWCR 65) must be (1) be characterized by strong physical force, (2) characterized by extreme or intense force, or (3) vehemently or passionately threatening.

The panel rejected defendant’s contention that the term victim is used in the Labor Code Section, showed a legislative intent to limit the section to person’s harm by criminal acts. Panel noted the word victim was not commonly so narrowly construed.  Persons are victims of natural disasters, diseases and political oppression which are not criminal acts.

Further, the Legislature had not expressly limited the violent act exception to criminal acts, as it had in Labor Code §4650.5, which conditions its application to situations where the injury as a result of a criminal act of violence against an employee.

The panel concluded that under the plain language of the Statute applicant’s psychiatric injury was compensable. The Board stated, applicant’s injury in a fall from a height, striking his head in a tree trunk, was the result of an extreme or intense force and was vehemently threatening, thus fitting two of the three violent act categories.

Because the injury was compensable under the violent act exception, the question of whether was a catastrophic injury question was moot.

The psychiatrist had added sleep and sexual dysfunction pursuant to Almaraz/Guzman II.

The WCAB stated that sleep and sexual dysfunction ratings were add-ons that §4660.1 specifically excludes and that the violent act exception only applies to psychiatric add-ons.

Labor Code §4660.1 did not overrule Almaraz/Guzman II decision in the rules must be read together. The Legislature, though §4660.1, undertook to eliminate sleep and sexual dysfunction add-on, to allow such add-ons under Almaraz/Guzman II would circumvent the intent of Labor Code §4660.1, which was to promote uniformity and decrease the number of compensable consequence psychiatric, sleep and sexual dysfunction claims, which, in the Legislature’s view constituted a fraud risk.

Moreover, the panel stated, sleep and sexual dysfunction are incorporated into the activities of daily living calculation at table 1-2 of the AMA guides. In short, the sleep and sex disorder at-ions under Almaraz/Guzman II in this case would not only appear to frustrate the intent of LC 4660.1 but would also appear to allow duplicate rating for the same condition.

The WCAB rescinded the WCJ’s findings and determined that the strict AMA guides rating for psychiatric permanent disability be included in combined with the compensable physical disability rating, increasing applicant’s permanent disability from 57% to 78%.

 

QME
Headnote here
  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.

 

QME Process
Headnote here

Enstar (US) v. Workers’ Compensation Appeals Board (Rodriguez) (W/D) 82 C.C.C. 86)

The parties selected Anju Gupta M.D. to act as PQME in pain management pursuant to Labor Code §4060. Dr. Gupta issued an initial report dated March 18, 2014 and served the report on April 25, 2014, the 38th day from the date he evaluated the applicant. The day after the report was served, applicant objected to the report timely and requested a replacement panel. Defendant received the report and issued no objection.

On May 21, 2014, defendant issued an EOR addressing the bill of the Qualified Medical Evaluator’s initial medical report indicating that this was a 95 QME Evaluation uncontested and that payment was denied per adjuster instruction. On August 6, 2014, defendant objected to the initial report and a supplemental report dated May 6, 2014 which was served on June 27, 2014. Pursuant to defendant’s request a replacement PQME panel was issued, but the parties did not seek an evaluation from the new PQME panel.

Applicant and defendant ultimately settled the case based on the medical report of the Qualified Medical Evaluator, Dr. Gupta. The Qualified Medical Evaluator submitted two bills in the amounts of $1625 and $3250.

After defendants failed to pay the bills of the PQME, the physician filed a petition with the WCAB requesting a determination as to his entitlement to payment. The matter proceeded to hearing where the WCJ found defendants were not liable for payment because the physician’s report was untimely pursuant to Labor Code §4062.5. The WCJ further ruled that defendants did not waive their right to a replacement panel. The Qualified Medical Evaluator (lien claimant) filed a petition for reconsideration.

The WCAB granted reconsideration and issued a new decision that neither defendant nor applicant timely objected to the PQME’s late report and therefore defendants were liable for payment for the physician services.

The WCAB noted that pursuant to Labor Code §139.2 (j) (1) and §4062.5, an initial medical report must be prepared and submitted within 30 days of the evaluation, and neither party has liability for payment if the report is not prepared within the required time frame unless they waive the right to a new evaluation and elect to accept the original evaluation despite its untimeliness.

In this case, the WCAB found that there was no question that the physician’s initial report was late; the question was whether the parties waived their objection to the late report. The WCAB concluded the parties did waive their objections to the late report by failing to object at their earliest opportunity and prior to receiving the report and commented that failing to timely object, essentially elected to accept the physician’s report even though it was untimely.

The WCAB cited the case of Marino (2013 Cal. Wrk. Comp. P.D. LEXIS 503) which held that a party can waive its ability to object to the timeliness of a PQME report under section 4062.5. In this case, defendants made no objection to the timeliness of the physician’s report. The failure to object to raise an issue at the first proper opportunity is fairly construed to be a waiver of the objection of the issue. (US Auto Stores 36 C.C.C. 173.)

Applicant’s attorney did attempt to object to the timeliness of the report and request a replacement panel. However, the objection was itself untimely pursuant to Regulation 31.5 (a) (12).

More importantly, the Board went on to state they were persuaded that both defendant and applicant essentially elected to accept the physician’s report. While they admittedly did not do so through the use of any forms prescribed by the administrative director, as described in section 4062.5, their actions when they failed to undertake the replacement evaluation and use the reporting of the physician as a basis for settlement acted as a waiver.

A petition for writ of review was filed, which was denied

 

Davis v. Workers’ Compensation Appeals Board (Court of Appeal, not published) 82 C.C.C. 187

The parties selected a panel Qualified Medical Evaluator to determine if applicant’s prostate cancer was caused by his employment as a firefighter. The physician concluded that applicant’s cancer did not result from an industrial injury. At his own expense, the applicant hired a doctor to evaluate the applicant regarding the causation of his cancer. Applicant sent that report to the QME requesting a supplemental report. Defendant objected and filed a DOR claiming the request was a violation of the discovery process.

A WCJ ruled the report was not admissible because it was not obtained pursuant to Labor Code § 4060, but that the report might nevertheless be reviewed and commented on by the Qualified Medical Evaluator. Defendant petitioned for reconsideration/removal and the WCAB granted removal, dismissed the reconsideration, and rescinded the judge ‘s decision finding that the report was reviewable. The applicant’s attorney filed a petition for reconsideration from the Board decision which was denied. The applicant filed a writ of review.

Labor Code §4605 provides: “Nothing contained in this chapter shall limit the right of the employee to provide, at his or her own expense, a consulting physician or any attending physicians whom he or she desires. Any report prepared by consulting or attending physicians pursuant to this section shall not be the sole basis of an award of compensation. A qualified medical evaluator or authorized treating physician shall address any report procured pursuant to this section and shall indicate whether he or she agrees or disagrees with the findings or opinions stated in the report, and shall identify the bases for this opinion.” The WCAB admitted it did not consider Labor Code § 4605 when coming to their decision.

The Court of Appeal indicated the WCAB’s decision failed to state the evidence relied upon and specify the details and reasons for its decision as required by Labor Code § 5908.5 because it did not consider Labor Code § 4605. The WCAB’s failure to set forth its reasoning in adequate detail constitutes a sufficient basis to annul a decision and remand for a statement of reasons. The court noted that nothing in this decision should be considered as expressing this court’s opinion regarding the merits of the applicant’s claim.

The matter was remanded.

 

QME/AME Procedure
Headnote here

Turner v. PT Gaming, LLC (BPD) (2018 Cal. Wrk. Comp. P.D.  LEXIS ):

 

The WCJ determined that applicant had no right to a replacement panel of Qualified Medical Evaluators in internal medicine/cardiology.

 

Applicant filed a petition for removal.

 

Applicant filed an application for a continuous trauma injury to various parts of his body while employed as a gaming associate for PT Gaming.

 

Defendants filed an answer denying injury arising out of and occurring in the course of employment.

 

The parties obtained a panel of Qualified Medical Evaluators in internal medicine and Paul Grodan M.D. was chosen to evaluate the applicant as QME.

 

Defendant served applicant with its proposed advocacy letter on September 12, 2016. Defendant’s letter requested that the physician serve the report on defense counsel and the claims adjuster, but did not request that the service also be made on applicant or his attorney.

 

Applicant did not object to defendant’s letter or send his own advocacy letter.

 

The physician issued two reports regarding the applicant. The first report was served on defendant and its attorney only. The second report was served only on defendant and its attorney.

 

Applicant scheduled the cross-examination of the Qualified Medical Evaluator by deposition. The deposition was set on two occasions but did not proceed.

 

Applicant then filed a Declaration of Readiness to Proceed to disqualify the Qualified Medical Evaluator on the grounds of ex parte communication and failure to serve the report within 30 days.

 

The applicant also filed a complaint against the physician with the DWC Medical Unit.

 

The physician submitted a reply to the complaint where he stated that his office assumed it was a unilateral defense QME appointment. The physician also indicated he has been performing medical legal evaluations for a very long time and is quite familiar with the legal issues and responsibilities of a QME.

 

The applicant’s attorney filed a petition to disqualify the physician and for a replacement panel on September 1, 2017.

 

The matter proceeded to trial and the WCJ denied the request.

 

Applicant filed a petition for removal.

 

The Appeals Board indicated that Labor Code §4062.3 (g) provides that ex parte communication with an agreed evaluator or qualified medical evaluator selected from a panel is prohibited. If a party communicates with the agreed medical evaluator qualified medical evaluator in violation of subdivision (e), the grief party may elect to terminate the medical evaluation and seek a new evaluation from another qualified medical evaluator.

 

Administrative Dir. Rule 35 (k) provides that the Appeals Board shall retain jurisdiction in all cases to determine disputes arising from objections and whether ex parte contact in violation of Labor Code 4062.3 or the code of regulations has occurred. If any party communicates with an evaluator in violation of labor code 4062.3, the medical director shall provide the agreed party with the new panel in which to select and use QME for the agree party may elect to proceed with the original evaluation.

 

The Appeals Board indicated that per the case of Alvarez v. WCAB (75 CCC 817) Labor Code §4062.3 (g) prohibits ex parte communication with a QME whether the communications are substantive, procedural or administrative. However, in this case the court further found that an ex parte communication may be so insignificant and inconsequential that any resulting repercussion would be unreasonable.

 

The applicant’s attorney argued that the issue is whether defendant induced the QME to have ex parte communication mandates a disqualification.

 

The Appeals Board firstly stated they were not persuaded that the communication at issue here, merely the service of his report on defendant and not applicant, substantiates that a replacement panel is warranted. As cited by defendant, previous panels have held that an inadvertent failure to serve all parties may be so inconsequential that ordering a new replacement panel is unjustified. (Leiner, 2010 Ca. Wk. Comp. P.D. LEXIS 423)

 

Applicant also ignores the role he played in this alleged inducement to ex parte communication with defendant. Defendant provided applicant with its proposed advocacy letter to the QME on September 12, 2016. There is no evidence in the record that applicant objected to defendant’s letter or found it misleading regarding whether applicant was represented.

 

Previous panels have held that a party may not wait until after an adverse report issues to raise irregularities and most do so at the earliest opportunity. (Lopez, 2013 Ca. Wk. Comp. P.D. LEXIS 562 citing Fajardo 72 CCC 1158).

 

The record reflects that the applicant did not raise an issue with the QME’s report until April 2017, approximately six months after the physician’s initial evaluation. Moreover, applicant failed to send his own advocacy letter to the QME, which would have made it clear to the physician the fact the applicant was represented.

 

Applicant further contends that the physician admitted he was not impartial. The Appeals Board indicated this misstates the record. The physician concedes that his office assumed it was unilateral defense QME appointment. Nowhere in the letter does the physician state or imply that his incorrect belief affected his evaluations or conclusions regarding the applicant. Instead, the physician explicitly says that he has been performing medical-legal evaluations for a very long time and is quite familiar with the legal issues and the responsibilities and requirements by panel QME’s. There is no evidence in the record the physician did not act impartially despite his incorrect belief regarding his role in the matter.

 

In the alternative, the applicant argues that he is entitled to a new panel because the report was not served within 30 days and therefore replacement panel is required pursuant to Labor Code §4062.5 and Rule 38, which provides a party may obtain a replacement panel if the QME fails to issue a formal medical evaluation within the required time frame. The Appeals Board stated it is well-established that a party cannot wait until after receipt of the report to object to its timeliness under §§4062.5 and 38. The policy prevents parties from first reviewing a report to determine if it is favorable before submitting an objection to his untimely report. Applicant failed to object in a timely manner.

 

The appeals Board indicated that applicant failed to show that substantial prejudice or irreparable harm will result if removal is not granted. The WCJ’s decision to deny his petition disqualify does not prevent the applicant from challenging the conclusions of the physician in further proceedings and with further discovery. Applicant may specifically question the physician regarding whether his evaluation opinions were colored by his mistaken belief that he was acting as a defense QME.

 

Moreover, the applicant is failed to show that reconsideration of the final decision adverse to him would not provide an adequate remedy.

 

The petition for removal denied.

 

The descending Commissioner indicated that removal should have been granted and a replacement panel should have been appointed.

 

Yarbrough v. Southern Glazer’s Wine and Spirits (BPD) (83 CCC 425)

 

The parties agreed to use an Agreed Medical Evaluator.

An evaluation was scheduled but the applicant did not attend.

Defendant filed a petition to compel applicant to attend a rescheduled evaluation.

 

The WCJ granted the petition to compel.

 

Applicant objected to the order compelling, filed a DOR for a hearing and a request to withdraw from the AME agreement.

 

Applicant did not attend the rescheduled evaluation.

 

The Workers Compensation Judge ordered the applicant to attend an Agreed Medical Evaluation.

 

The applicant filed a Petition for Removal.

 

The WCAB granted removal and rescinded the WCJ’s order.

 

The Appeals Board held that Labor Code §4067 holds that once an AME has conducted a formal medical evaluation, the same AME shall be used in subsequent evaluations.  However, as applicant points out, the applicant had not yet attended the formal medical evaluation with the Agreed Medical Evaluator, and so that physician need not be used for future evaluations. Labor Code §4067 does not apply in this case.

 

The Appeals Board further disagreed with the WCJ’s reliance on §4062.2 (f).  This section provides that the parties may agree to an AME at any time, and that a panel shall not be requested pursuant to subdivision (b) on any issue that has been agreed to be submitted to or has been submitted to an agreed Medical Evaluator and less the agreement has been canceled by mutual written consent.

 

The WCAB stated that by its plain language, §4062.2 (f) deals with withdrawal from an AME after submitting to an AME evaluation. Nothing in this section precludes a party from withdrawing from an AME before submitting to an AME evaluation

 

The WCAB noted however that the WCJ may order the applicant to be evaluated by a regular physician or by a panel Qualified Medical Evaluator (Labor Code § § 5701 and 4062 and 4062.2).

 

The WCAB granted the petition and rescinded the minute order.

 

Reyes v. His Life Woodworks (BPD) (2017 Cal Wrk. Comp. P.D. LEXIS 512:

 

The WCAB held that pursuant to the case of the Bahena v. Charles Vizi Construction (214 Cal. Wrk. Comp. P. D. LEXIS 638) a QME panel may be requested under Labor Code §4060 based on a denial letter consistent with the Legislative goal of streamlining the QME panel process.

 

However, because Labor Code §4062.2 (b) requires the parties to wait at least 10 days before requesting a panel, the applicants request was premature when the applicant made the request seven days after defendant issued denial letter.

 

Pineda v. Mission Foods (BPD) (207 Cal. Wrk. Comp. P.D. LEXIS 572)

 

The applicant filed a Petition and a request for hearing on the issue a replacement panel because the Qualified Medical Evaluator could not schedule the deposition within 120 days as required by rule 35.5 (f).

 

The WCJ denied the request.  A petition for removal was filed. The WCAB denied removal and stated that rule 35.5 does not specifically require replacement panel in the event that evaluators do not make themselves available for a deposition within120 days.

 

The WCAB held it was an abuse of discretion for the WCJ to deny the replacement panel.

 

Amedee v. Pacific Bell (BPD) (46 CWCR 57):

 

Claim of psychiatric injury on May 1, 2012. Defendant initially denied the claim, but accepted the claim based on receipt of a psychiatric report from a panel Qualified Medical Evaluator.

 

On October 16, 2013, the panel Qualified Medical Evaluator in psychiatry, made an emergency call to applicant’s attorney’s office to express concern about applicant state of mind, although not to the point of recommending or requiring a “5150 hold”.

 

Because the attorney was then attending a deposition the panel Qualified Medical Evaluator spoke with her assistant to urge the attorney to suggest “with vigor” that applicant needed to go voluntarily to a hospital.

 

The assistant did a “note report” that indicated client is suicidally depressed; client has bad depression; client has posttraumatic stress disorder; Dr. will not hospitalize client involuntarily; client has no medical coverage, recommends Obama care; “probably a slamdunk for SS disability”; Dr. suggests applicant’s attorney call client; Dr. suggests applicant’s attorney speak to wife; client is really incapacitated, cries at home in a dark room and a hallucinate; Dr. will expedite report and they should be receiving it shortly after he comes back from vacation October 28.

 

The next day, the Qualified Medical Evaluator followed up with an email to the attorney advising of applicant’s need for immediate attention and sent an expedited report.

 

Applicant’s attorney sent the email and report to defense counsel on October 18, 2013.

 

The panel Qualified Medical Evaluator re-evaluated the applicant on January 26, 2015, and issued a report, indicating that he reviewed all medical records including previous email notifications he had sent to the applicant’s attorney. The record did not indicate whether those notifications had been served on defendant.

 

The parties depose the PQME on September 5, 2015 and on May 23, 2016.

 

It was during the September deposition that defendant became aware of the emergency call to applicant’s attorney’s office and of the QME’s October 17, 2013 email to the attorney advising that an urgent report was being completed because of applicant suicidal ideation the need for immediate attention.

Although it appeared that the email had been included with the report that was forwarded to defense counsel on October 18, 2013, neither apparently mentioned the call to the attorney’s office on October 16.

 

On becoming aware of the call and the email, defendant filed a petition to remove the panel Qualified Medical Evaluator and for gnome order to appoint a replacement panel in psychiatry.

 

At trial the parties stipulated the applicant sustained compensable psychiatric injury; that the QME had not spoken with applicant’s attorney on October 16, 2013; and that defendant was not aware of the election ex parte communication until the September 2, 2015 deposition.

 

The WCJ issued a decision that applicant sustained a psychiatric injury and ruled that the communication between the QME and applicant’s attorney’s assistant was administrative in nature and could not be considered good cause to disqualify the physician. The WCJ explained the PQME had not spoken with applicant’s attorney and the phone call was simply made to express an urgent need for more aggressive treatment for applicant’s condition. All that information about the need for immediate care was included in the report the evaluator sent less than a week later to both applicant’s attorney and defendant simultaneously.

 

The WCAB stated that Labor Code 4062.3 (g), provides in pertinent part that ex parte communication with an AME or a panel QME is prohibited. If a party communicates with an AME or PQME in violation of that labor code, the agree party may elect to terminate the medical evaluation and seek a replacement evaluator, as provided for by Labor Code 4062.1 or 4062.2.

 

The panel in stated that §4062.3 (f) provides that communications with an AME shall be in writing and served on the opposing party when sent to the AME. It further provides that oral or written communication with physician staff or, as applicable, with the AME, relative to non-substantial matters such as scheduling of appointments, missed appointments, the furnishing of records and reports, and the availability of the report, do not constitute ex parte communication in violation of this section unless the appeals Board has made a specific finding of an in -permissible ex parte communication.

 

Rule 35 (k) provides that the Appeals Board retain jurisdiction in all cases to determine disputes arising over objections, and over whether ex parte contact in violation of 4062.3 (g) has occurred. If it has, the grief party may either require the Medical CAC director to provide a new QME panel, or elect to proceed with the original evaluator.

 

In the case of Alvarez v. WCAB (Court of Appeal) (75 CCC 817) ex parte communication with a PQME does not carve out exceptions for communications that are administrative or procedural rather than substantive or on the merits. Further, the prohibition applies to whoever initiated the ex parte communication. To suggest that the communication initiated by the PQME is not an impermissible ex parte communication would excuse a party from the prescriptions of §4062.3 (g) and could allow the party to discuss the merits of the case with the evaluator solely because the evaluator initiated the contact. The panel recognize that the Alvarez court ruled that “an ex parte communication may be so insignificant and inconsequential that any resulting repercussions would be unreasonable”, but concluded that such a demand in this exception did not apply in that case.

 

The WCAB after reviewing the phone notes reason that the call from the PQME was not insignificant or insubstantial. The call constituted more than a technical violation.

 

There need be no analysis of whether there is good cause for replacement panel, where there has been ex parte communication with a QME on a substantive issue. The Labor Code contains no requirement that the communication must have resulted in prejudice to the aggrieved party.

 

In this case, it makes no difference that there was no apparent taint on the opinions of the QME, nor that his intentions were anything but commendable in trying to aid the applicant.

 

Pursuant to QME rule 35 (k), the medical director shall provide the aggrieved party with the new QME panel if there is prohibited communication.

 

If the communication is not inconsequential, the WCJ has no discretion to refuse to order a replacement QME panel.

 

The communication in this case was substantive and therefore impermissible.

 

The WCAB then affirmed the finding of psychiatric injury but amended to the decision to reflect that the communication between the QME and the applicant’s attorneys was a prohibited ex parte communication and issued an order the parties may proceed with the selection of a new evaluator.

 

Recession
Headnote here

Southern Insurance Company v. Workers’ Compensation Appeals Board (Berrios-Segovia) (Court of Appeal, published) 82 C.C.C. 448

The Court of Appeal annulled a September 6, 2016 decision of the Board which affirmed the decision of the arbitrator that applicant’s claimed injury of April 6, 2009 was covered by a workers’ compensation insurance policy that had not been “retroactively rescinded” but “prospectively cancelled.”

The Court of Appeal stated that a workers’ compensation insurance policy was issued based on the express representation that the covered employer’s employees did not travel out of state. After an employee was injured out of state, the insurer notified the employer that it was rescinding the policy because of the employer’s misrepresentation and returned the premium. The issue of insurance coverage went to mandatory arbitration wherein the arbitrator concluded that, as a matter of law, the insurer could not rescind the policy and that the policy was in effect. The Workers’ Compensation Appeals Board affirmed the arbitrator’s decision. The Court of Appeal stated that, contrary to the arbitrator’s ruling, a workers’ compensation insurance policy may be rescinded. (Ins. Code, § 650.) A rescission is enforced by a civil action for relief based on rescission (Civ. Code, § 1692) or by asserting rescission as a defense. (Resure, Inc. v. Superior Court (1996) 42 Cal.App.4th 156, 165-166.)

Because the arbitrator and the appeals Board did not address and determine whether rescission was a meritorious defense to the employee’s claim, they annulled the appeals Board’s decision and remanded the case with directions to hear and determine whether the insurer was entitled to rescind, and did rescind, the policy.

 

SIBTF and SJDB Benefits
Headnote here

Sesena V. residience Inn by Marriott (BPD) (2017 Cal. Wrk. Comp. P.D. LEXIS  320

The WCJ held an employee was only entitled to one voucher for separate injuries that became permanent and stationary at the same time.

Applicant filed a Petition for Reconsideration which was granted.

The Appeals Board held that an injured employee may be awarded separate vouchers for separate injuries even though they become permanent and stationary the same time.

The WCAB concluded that Labor Code §4658.7 unambiguously listed injury causing permanent disability as the triggering condition for the availability of benefit.

The WCAB found this to statutory language than injured worker is entitled to a separate voucher for each qualifying injury.

The WCAB found that the WCJ erroneously determined the issue by analogy to cases interpreting Labor Code §4657 (c) (which relates to temporary total disability and benefits) and Labor Code §4062.3 (j) (which relates to medical-legal evaluations).

Baker v. Workers’ Compensation Appeals Board (Guerrero) (Court of Appeal, published) 82 C.C.C. 825

The Director of Industrial Relations (in her capacity as administrator of the SIBTF) argued that the Workers’ Compensation Appeals Board erroneously relied on Labor Code §4650, subdivision (b) to determine that SIBTF payments in this case should begin once the employer’s obligation to pay temporary disability benefits ends. Petitioner asserted that the plain language of §4650 indicates it applies only to workers’ compensation benefits payable by employers, and the SIBTF is not an employer.

According to petitioner, it is §4751 that controls when SIBTF benefits must commence, and the proper start date is when the applicant’s injury is declared permanent and stationary. Section 4650, subdivision (b) governs the payment of workers’ compensation benefits for permanent disability. It provides that an employer must begin making permanent disability payments to an employee within 14 days of the date that the employee’s last payment for temporary disability was owed. Even if the employee’s injury has not yet been determined to be permanent and stationary, the employer must start making permanent disability payments once temporary benefits cease. Regardless of whether the extent of permanent disability can be determined at that date, the employer nevertheless shall commence the timely payment required by this subdivision and shall continue to make these payments until the employer’s reasonable estimate of permanent disability indemnity due has been paid.

The Court of Appeal found that the petitioner was correct that §4650, subdivision (b), which states “the employer” must make timely payment of permanent disability benefits, applies only to benefits payable by employers, and that the SIBTF is not considered an employer for purposes of payment of workers’ compensation benefits. Petitioner is also correct that the timing of SIBTF benefit payments is governed by §4751. But petitioner is incorrect that those premises result in a different conclusion than the one reached by the Workers’ Compensation Appeals Board.

Section 4751 provides: “If an employee who is permanently partially disabled receives a subsequent compensable injury resulting in additional permanent partial disability so that the degree of disability caused by the combination of both disabilities is greater than that which would have resulted from the subsequent injury alone, and the combined effect of the last injury and the previous disability or impairment is a permanent disability equal to 70 percent or more of total, he shall be paid in addition to the compensation due under this code for the permanent partial disability caused by the last injury compensation for the remainder of the combined permanent disability existing after the last injury as provided in this article . . .”

Giving the plain language of §4751 a commonsense meaning, the court read the Legislature’s mandate that SIBTF benefits (when an employee qualifies for them) “shall be paid in addition to” permanent disability benefits to mean that the SIBTF is required to commence payments at the same time as an employer’s obligation to make permanent disability payments begins.

To hold otherwise would contravene the requirement of §4751 that whenever an employee qualifies for SIBTF payments, they shall be paid “in addition to” the permanent disability payments made by the employer. The trigger for the start of SIBTF benefits must be the qualifying employee’s entitlement to permanent disability payments from the employer. Once permanent disability payments are required for an employee who also qualifies for SIBTF benefits, the SIBTF is obligated to pay benefits “in addition to” those permanent disability benefits.

The court acknowledged the language prescribing that SIBTF benefits “shall be paid in addition to” permanent disability benefits is amenable to a construction different from the courts, since the statute does not expressly state when the additional SIBTF benefits commence. The court then indicated they must adopt the construction that leads to the most reasonable result, construing the statutory provision in context and harmonizing it with the rest of the statutory framework.

Petitioner argued that under §4751 an applicant is only entitled to SIBTF benefits upon the injury reaching permanent and stationary status (in this case, January 2011, over four years after the employer became obligated to pay permanent disability benefits). However, there was no authority for that proposition. Instead, petitioner argued that payment of SIBTF benefits has “always commenced on the date when the injured worker reached maximum medical improvement and was declared permanent and stationary” by a medical examiner.

The court stated that: “Although an established practice may inform our interpretation, it does not in itself provide a compelling reason to continue the practice, particularly when there has been an intervening change in law as there was here. Sections 4650 and 4656, governing the timing of workers’ compensation disability payments by an employer, were amended in 2004 as part of legislation that made a number of changes to the workers’ compensation system. Significant here, the statutory amendments altered the timing for employer payment of temporary and permanent disability benefits.”

Section 4656 was amended to provide for a 104-week cap on temporary disability benefits. Temporary disability payments were previously paid by the employer until the injured worker either returned to work or the injury was deemed permanent and the worker was therefore unable to return to work. (Department of Rehabilitation v. Workers’ Comp. Appeals Bd. (2003) 30 Cal.4th 1281, 1292.) Under the amended statute, temporary disability payments are now payable for a maximum of 104 weeks.

To avoid a gap in payments to an injured worker whose medical condition is not deemed permanent until after the 104-week maximum temporary disability period, the Legislature concurrently amended section 4650 to provide that permanent disability payments must commence when temporary disability payments stop, even if the injury has not yet been deemed permanent and stationary. (See Baker v. Workers’ Comp. Appeals Bd. (2011) 52 Cal.4th 434, 439.)

The overall effect of these amendments was to change the timing for permanent disability payments to begin, from when the injury was declared permanent and stationary (under the former version of the statutes) to when temporary disability payments ceased (under the current version). As a result, the timing for the start of SIBTF benefits, which under section 4751 must be paid “in addition to” permanent disability benefits, necessarily also changed.

Petitioner argued that the Legislature’s decision to not amend section 4751 when it amended the statutes governing the payment of temporary and permanent disability benefits evidences its intent to not disturb the status quo with regard to SIBTF payments, i.e., that such payments are not required until a finding of permanent and stationary status. The court found that the status quo for payment of SIBTF benefits has not changed. Such benefits were previously payable at the time permanent disability payments commenced, and they remain payable at the time permanent disability payments commence. Had the Legislature intended for SIBTF benefits to be payable only upon a declaration of permanent and stationary status (as petitioner argues) rather than being paid in addition to permanent disability payments from the employer (as the statute reads), it could have changed section 4751 to so provide––but it did not.

The court further found support for this interpretation of the statute in the Supreme Court’s reasoning in Baker v. Workers’ Comp. Appeals Bd., supra, 52 Cal.4th 434. That case involved whether a workers’ compensation statute providing for a yearly cost of living adjustment (COLA) when an applicant becomes entitled to receive permanent disability payments should be calculated beginning when the injury occurred, or when the applicant started receiving the permanent disability payments. The court held the most reasonable construction of the statute is that it requires a COLA increase each year following the date the applicant begins receiving permanent disability payments because that is when the applicant becomes entitled to the payments. Just as the COLAs are connected to permanent disability payments as an increase in those payments, so too are SIBTF benefits connected to permanent disability payments as an amount paid in addition. Consistent with Baker, the court held that the entitlement to SIBTF benefits begins at the time the applicant becomes entitled to permanent disability payments.

Finally, the court stated that even if petitioner’s interpretation of the statute was equally reasonable, it would have the effect of denying injured workers SIBTF benefits (which are payable separate from and in addition to employer-paid benefits) during the gap between the end of the 104 weeks of temporary disability benefits and the date the injury is deemed permanent and stationary. Whenever there are two reasonable interpretations of a workers’ compensation statute, we must adopt the construction of the statute that provides coverage or payments. (Wright v. State of California, 233 Cal.App.4th at p. 1229.) Based on the above reasoning the court indicated they must defer to the Workers’ Compensation Appeals Board’s interpretation of the relevant statutes unless it is clearly erroneous, and concluded that the start date for SIBTF benefit in this case was correctly determined.

The decision of the Workers’ Compensation Appeals Board was affirmed.

 

Statute of Limitations
Headnote here

Terry v.  California Department of Corrections (BPD) (2017 Cal. Wrk. Comp. P. D. LEXIS 578):

 

A specific injury occurred on May 16, 2011 and that injury contributed to applicant’s death on May 17, 2016.

 

The parties and the WCJ concur that applicant’s death was a compensable consequence of his May 16, 2011 injury. When a subsequent injury is the direct and natural consequence of the original injury, the subsequent injury is considered to relate back to the original injury and is not treated as a new and independent injury.

 

Applicant cannot claim a new date of injury based on the undisputed fact that decedent’s death was caused by a compensable consequence of his May 16, 2011 specific injury, the date of injury in this case is May 16, 2011.

 

The WCAB held that a claim for death benefits filed November 3, 2016 was barred by the Statute of Limitations of Labor Code §5406 (b). The applicant was involved in an automobile accident on May 16, 2011, which in part contributed to his death on May 17, 2016.

 

The WCAB held the applicant could not claim a new date of injury based on the fact the decedent’s death was a compensable consequence of a specific injury.

 

The WCAB concluded that when a subsequent injury is the direct and natural consequence of an original industrial injury, the subsequent injury is considered to relate to the original injury and is not treated as a new and independent injury.

 

The WCAB concluded that the application for death benefits was barred by Labor Code §5406 (b) because it was filed more than 240 weeks from the date of injury.

 

 

 

Greene v, HCI Environment Engineering (BPD) (2017 Cal. Wrk. Com. P.d. LEXIS 537)

 

The Appeals Board held that a copy service lien filed June 29, 2015 was barred by the Statute of Limitations of Labor Code §4903.5 (a).

 

The Appeals Board held the last date of service was September 25, 2013 and the lien was not filed within 18 months of the last date of service.

 

The Appeals Board rejected the lien claimant’s argument that an invoice dated December 30, 2013, qualified as a date of service because the invoice referred to services rendered September 25, 2013.

 

Griffin v. County of San bernardion (BPD) (1018 Ca. Wrk. Comp. P.D. LEXIS 13)

 

The WCAB held that an applicant’s claim for a cumulative trauma injury to his ears while employed as a fire captain was not barred by the Statute of Limitations.

 

The facts established that the employer received a memo from the San Bernardino County Employees Retirement Association indicating that the applicant applied for a service-connected disability retirement related to bilateral hearing loss.

 

The WCAB concluded that because the memo informed the employer that the applicant claimed an industrial hearing loss that rendered him unable to work in his position, the employer had plain notice of a claim of injury.

 

The WCAB held that notice and knowledge of an injury from any source triggers the obligation pursuant to Labor Code §5401 (a) to give a claim form and triggers the obligation under the regulation to give the proper notices of eligibility for worker’s compensation.

 

Statute of Limitations
Headnote here

Albano v. Cal amp Corp.(BPD) (45 CWCR 240):

The decedent worked as a solderer for defendant from October 1, 1992 through September 13, 2012.

The decedent developed a cough in January 2012, at which time her primary treating physician prescribed antibiotics. Her condition worsened and in September 2012, shortness of breath caused her to visit the emergency room. The doctors diagnosed her with lung cancer and referred her to a pulmonary specialist.

The records of the pulmonary specialist did not show whether he discussed the diagnosis with the decedent or the dependents.

Treatment records from the thoracic surgeon and oncologists did not address the cause of decedent’s lung cancer.

Decedent filed a worker’s compensation claim on November 27, 2012.

Defendant denied the claim by letter dated December 19, 2012 because there was no medical evidence to support a work -related injury.

Decedent testified at her deposition that she suspected that the cough was work-related because it worsened during work hours, she was a non-smoker, her father and ex-husband had smoked but only outside the house, and she experienced no indoor second-hand smoke exposure from cigarettes.  She also denied a family history of cancer and denied knowledge of whether any of her coworkers had developed cancer.

The decedent was not asked about any conversations with their children about the cause of her cancer.

Decedent had three children all over 18 years old and all employed at the time of her deposition.

The decedent testified that all three children live with her at the time of her deposition, but she was not asked about the length of time that her children live with her prior to the deposition.

The decedent died in April 24, 2013.

An internal panel Qualified Medical Evaluator did not physically evaluate the decedent or meet with her dependents issued three reports that concluded that there was no correlation between her employment exposure to soldering flux and her development of cancer.

At the deposition of the QME he opined that to a reasonable medical probability the decedent’s employment exposure caused some percentage of the cancer.

The Qualified Medical Evaluator was not asked whether he discussed causation with the decedent or her dependents.

An application was filed for a dependency death claim on behalf of decedent’s three children on May 6, 2015 under the same case number as the decedents inter vivos claim.

At trial defendant argued that the dependence claim was barred by the Statute of Limitations of Labor Code §5406 and in the alternative that the report of the Qualified Medical Evaluator establish the applicant’s employment did not cause her death.

The dependents argued the claim was not time-barred because the Statute of Limitations was tolled until they require knowledge that the decedent’s death was industrial and that the opinion of the Qualified Medical Evaluator in his deposition that the death was industrial controls.

No testimony was taken and the dependents were never deposed in the course of the case.

The WCJ ruled that Labor Code §5406 Statute of Limitations barred the dependents claim, reasoning that because decedent had died seven months after the last date that she worked as a solderer, Labor Code 5406 (a) (1) established that application more than one year after the date of death was time-barred regardless of the dependents knowledge of the industrial causation.

The WCJ added that a death claim filing date, in contrast to the date of injury pursuant to 5412 for an inter vivos cumulative injury, did not require evidence of causation knowledge, and that the Qualified Medical Evaluators review of decedent’s work history led him only to have suspected it was due to her job at the time.

The dependents timely filed a petition for reconsideration.

The WCAB noted that defendant, as the party asserting the affirmative defense of Statute of Limitations, bore the burden of proof of establishing it by a preponderance of the evidence.

In dependency cases, the panel observed, Labor Code 5406 establishes whether a claim is time-barred.

Pursuant to Labor Code 5406 (a), the dependence must file within one year from (1) the date of death if death occurs within one year the date of injury; (2) the date of last furnishing of any benefits under Chapter 2, if the death occurs more than one year from the date of injury (3) the date of death, if the death occurs more than one year after the date of injury and compensation benefits have been furnished and pursuant to Labor Code 5406 (b) proceeding shall not be than 240 weeks from the date of injury.

The WCAB citing the case of Arndt v. WCAB 41 CCC 151 stated that the Statute of Limitations arising out of a worker’s death from an industrially cause disease, must be commenced within one year from the date of death, or the date that the applicant knew, or in the exercise of reasonable diligence should have known, that the death was of industrial causation.

In the Arndt case the Court of Appeal held that a dependency claim that was filed more than one year after the date of death and more than 240 weeks from the last work exposure to asbestos was not time-barred because the dependent did not have knowledge of the industrial nature of the injury more than one year from the filing of the dependency claim.

Citing the case of Berkebile  v. WCAB (48 CCC 438) the panel asserted that the knowledge requirement in a dependency claim is not measured by the decedents knowledge, but rather by the knowledge of those making a claim for benefits. The court in that case concluded, by reference to the separable nature of inter vivos and dependency claims, they did not necessarily depend on the same date of injury, and it held that the date of the applicant’s knowledge of the industrial nature of the decedent’s condition is the pertinent date of injury per purposes of the death claim.

The panel further noted a dearth of evidence in the record on the dependents knowledge of the cause of the decedent’s death.

It was incumbent upon defendant to produce evidence related to the date the applicant knew, or in the exercise of regional diligence should have known that decedent’s cancer and death were work-related.

The WCAB in interpreting Labor Code §5412 and citing the case of City of Fresno v. WCAB (Johnson) (50 CCC 53), for the proposition without specialized training, intelligence, or qualifications, a party is not charged with knowledge of the industrial nature of a condition until such knowledge is received from medical advice or opinion.

The WCAB stated that defendant denied the case in 2012 based on a what it termed a lack of medical evidence of industrial causation and that the medical report on February 2015 opined that the cancer was not industrially related.

The records first medical opinion of industrial causation for the cancer and death was the Qualified Medical Evaluator’s deposition on May 5, 2012.

The panel’s review of the record could not identify earlier evidence of what the WCJ termed the Qualified Medical Evaluator suspicions that decedents employment caused her lung cancer.

However, while it did not appear to the panel that defendant had sustained its burden of proof on the affirmative defense of Statute of Limitations, he could not interpose its own findings regarding the defendant’s burden or the application of the cases of Arndt and Berkebile to this case without running afoul of the parties’ rights to due process.

On remand, the WCJ should determine whether the employment was a contributing cause to lung cancer and the death, and the panel urged the parties to choose an agreed medical evaluator to address that causation.

The WCAB rescinded the take nothing award and remanded the case for a determination on whether defendant had its burden of proof on the affirmative defense of Statute of Limitations, as well as urging the parties to choose an AME or if no agreement can be reached the trial judge should appoint a regular physician with the requisite expertise per Labor Code 5701.

 

Statute of Limitations, Jurisdiction and Labor Code §5500.5
Headnote here

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.

 

Stipulations/Settlements
Headnote here

Sanchez B. Unilever (BPD) (45 CWCR 238):

Applicant alleged a continuous trauma injury to his body parts ending October 31, 2011 against Alberto Culver, listing Broadspire as the insurer.

Counsel for Unilever, which had acquired Alberto Culver, filed an answer to the application and engaged in discovery.

At a mandatory settlement conference on August 24, 2016 applicant’s attorney and counsel for Unilever stipulated that Alberto Culver, insured by Broadspire, employed applicant from April 2, 1982 through October 31, 2011.

On the initial trial date, the WCJ denied Unilever’s Joinder petition for its lack of a coverage report from the WCIRB and continued the trial as a settlement was pending.

Prior to a new trial date, Unilever filed a new petition for Joinder, this time with a WCIRB printout enclosed reflecting Ace America’s coverage for Alberto Culver Company from October 1, 2010 and October 1, 2011.

The day before the trial, the WCJ ordered Ace America added as a party defendant.

At the trial counsel for applicant and Unilever appeared and stipulated to employment during the period April 2, 1982 through October 31, 2011 by Alberto Culver Company, and that the employer’s worker’s compensation carrier was Insurance Company of Pennsylvania administered by Broadspire.

However, the WCJ also noted defense counsel advised that Unilever purchased Alberto Culver and took charge on October 1, 2011. Up until that point Alberto Culver was liable for worker’s compensation using its own carrier Ace America and Unilever took over when Alberto Culver policy expired.

At the closing hearing the matter remained open for trial briefs and then stood submitted.

Unilever filed its brief contending that the operative date of injury predated October 1, 2011 and it had no liability for the injury.

The WCJ issued a findings and award an order against Alberto Culver and its designated carrier, Ace America.

Ace America filed a petition for reconsideration alleging that Unilever’s insurance carrier, Insurance Company of the State of Pennsylvania was the liable carrier.

Ace America contended there were two separate employers during the alleged cumulative trauma.

The WCJ issued an amended findings and award reflecting an award of life pension.

The WCJ then vacated the decision pursuant to Rule 10859 and set a hearing.

At that hearing applicant elected to proceed against Unilever and Insurance Company of the State of Pennsylvania.

The WCJ issued a second amended findings and award which name both employers and carriers in the case caption but impose liability’s solely on Unilever .

Unilever then filed a Petition for Reconsideration alleging that the WCJ aired by not issuing a finding on the date of injury, the facts did not support a single award against Unilever , the WCJ exceeded his powers by allowing applicant to elect against Unilever and Unilever was denied due process because applicant service of the second amended findings and award omitted a page.

The WCAB first scrutinized the stipulations to employment and coverage made by Unilever in the pretrial conference statement and at the time of trial.

The WCAB cited Labor Code §5702 for the proposition that a party to a dispute may stipulate facts and the Board may inquire into and accept or reject such stipulations.

The panel noted that stipulations are contract shall agreement, though which counsel binds a principal.

However, the panel noted, counsel for Unilever did not represent Albert Culver.

It was undisputed that Alberto Culver employed applicant through September 11, 2011, with Unilever taking over effective October 1, 2011.

Counsel for Unilever had no authority to bind a separate party, Alberto Culver and the stipulation was invalid in its entirety.

The panel agreed with Unilever’s contention that the WCJ had erred by not finding the date of injury pursuant to Labor Code §5412. The panel noted that counsel for Unilever and for applicant had stipulated to a cumulative trauma date of injury ending October 31, 2011, but that Unilever had alleged a date of injury prior to October 1, 2011 in its trial brief.

By that time, the WCJ and all parties understood that there were two employers each with a separate carrier.

Because the record did not close until after submission of the Unilever trial brief, the panel concluded that the WCJ was tasked with determining applicant’s date of injury in order to determine the liable party or parties in awarding benefits to the applicant.

The panel added that if the date of injury is such that both defendants are liable in part, that award must be joint and several against both employers.

Finally, the panel dismissed Unilever’s contention that the WCJ exceeded his powers by allowing applicant elected against Unilever.  Pursuant to Labor Code §5500.5, an applicant may elect to proceed against any party to a cumulative injury claim in order to prevent delay and the expense or hardship of proving a claim against multiple employers or carriers.

The panel referred to Unilever’s participation in discovery and concluded that applicant selection was reasonable because Unilever was the party involved in discovery in litigation from almost the case is inception up to trial. The WCAB granted reconsideration and rescinded the WCJ’s second amended Findings and Award and instructions to revisit coverage for the respective employers and determine the date of injury and liable party or parties.

Washington v. Department of Social Services (BPD) (LEXIS):

The parties filed a pre-trial conference statement at the mandatory settlement conference stating that defendant had paid PDAs in the amount of $2,343.

The parties appeared for trial and reached a resolution.

The parties entered into Stipulations with Request for an Award in the sum of $18,050 for permanent disability, less credit for such payments previously made, and less attorney fees. The WCJ approved the stipulations the same day as the trial.

Defendant subsequently sent a letter to applicant’s counsel notifying him that PDAs were in fact $16,879.70, which they had not previously known. They indicated that brings the total PDAs to $19,222.75.  Indicated that are there was no money for attorney fees or no money for the injured worker.

The matter then proceeded to trial on the issue of credit for the PDAs.

The WCJ issued a finding that defendant was not entitled to subtract the $16,879.75 from the amount of the stipulated award. The WCJ found defendant was bound by their statement in the pre-trial conference statement that had PDAs of $2,343, and therefore could not assert it was also due a credit of $16,879.75 as later discovered.

Defendant filed a petition for reconsideration.

The WCAB stated a stipulation must be construed according to the ordinary interpretation of contracts, with paramount consideration being the parties subjective intention at the time of contracting. The intention of the parties must be first determined from the language of the contract itself. However, where the language of the contract is ambiguous, it is the duty of the court to resolve the ambiguity by taking into account all facts, circumstances and conditions surrounding the execution of the contract.

The WCAB indicated the parties stipulated to an award of permanent disability and a fixed amount, “less credit for such payments previously made.”

The WCAB said this language is susceptible to two interpretations: first, that was meant to refer solely to the $2,343 and PDAs the parties referred to in the pre-trial conference statement, or second, that it was meant to encompass all PDAs, whether known to the parties at the time of stipulation or not.

Because the award itself does not clearly state which possible interpretation was intended by the parties, the WCAB needed to look beyond the language of the stipulation into the circumstances under which was executed.

The evidence was undisputed that defense counsel was not aware of the $16,879.75 in PDAs which was referenced to applicant at the time they negotiated the settlement.

It was clear from the record that defense counsel affirmatively represented to applicant’s counsel at the time they negotiated the stipulated award that PDAs in the case were $2,343.

The WCAB found there was strong evidence that at the time the stipulated award was negotiating, the parties were contemplating an award of $18,050 from which the parties intended to subtract the attorney fee and the PDAs in the sum of $2,343 leaving an award to the applicant roughly $13,000.

Additionally, the Appeals Board found no evidence to support the contention the parties intended to contract for the possibility that other PDAs might be later discovered, and that those PDAs can also be subtracted from the award.

The defendant cited a case involving the language less credit for further PDAs subject to proof. The Appeals Board pointed out that the parties did not add any additional terms to the stipulated award to account for the possibility that other PDAs might later be discovered for which defendant would be entitled to an offset. Moreover, it appeared abundantly clear from the record that defendant does not contest that no one was considering the possibility there were other outstanding PDAs other than the $2,403 which was identified might be potentially deducted from the award.

The Board further indicated the parties entered into negotiations and what was intended was that the applicant would receive roughly $13,000. The opinion of the Board this was the bargain the parties struck, which was evidently acceptable to all involved.

Defendant’s contention that the applicant would be the beneficiary of an unjust windfall if the $16,879.75 is not deducted from the award ignores the fact that defendant was evidently happy to settle the claim for roughly $16,000 including attorney fees.  That they later discovered it might have an entitlement to a larger deduction for PDAs does not change the nature of the bargain it struck when it stipulated to the award in question. To the extent the applicant is gaining a windfall from the stipulated award, that windfall was bargain for and agreed to.

Defendant appears to argue that even though it was not considering the possibility of other outstanding PDAs at the time it stipulated award, it nevertheless is entitled to a credit because the language of the stipulated award is unequivocal. However, defendant overlooks that the fundamental purpose of contract interpretation is to ascertain the intent of the parties at the time of contracting. Here, it is clear the parties intended to settle the claim for an award for which $2,343 and PDAs were to be subtracted, not $19,222.75. The apparent intent of the parties-which defendant does not even appear to contest convinces the Board the phrase “less credit for such payments previously made” referred only to the $2,343 and PDAs the parties had identified.

Defendant also contends the applicant should’ve known about the payment, essentially attempting to blame applicant for its lack of due diligence as to its sums it has paid. Even excepting the dubious premise that applicant would’ve been aware of the legal significance of the payment which was made back in 2013, whether applicant was aware of that payment at the time stipulated award is not the relevant inquiry, the relevant inquiry is whether the parties intended to resolve the claim and for what amount. The Board stated the evidence clearly shows the intent was to resolve the claim with the reduction of $2,343.

The Appeals Board finally observed that time and energy could have been saved in this matter had the party simply specified the exact amount of PDAs to be deducted.

The Appeals support went on to note that if in the future defendants concerned about the possibility that may discovered it had been paid advances that it somehow was not aware of the time it resolves the claims its remedy is clear and simple: simply account for that possibility in the settlement were stipulated award.

 

Temporary Disability (1/3)
Headnote here

County of San Diego v. Workers’ Compensation Appeals Board (Pike) (ADJ781190) ( 83 CCC 465):

 

The applicant filed a Petition to Reopen on May 26, 2015. The applicant contended his shoulder injury had worsened. The applicant sought salary continuation benefits pursuant to §4850 and temporary total disability benefits according to Labor Code §4653.

 

The county paid the applicant §4850 and temporary disability benefits due to him through the period ending five years from the date of injury.

 

The applicant sought additional §4850 and temporary disability benefits for a period occurring after five years from the date of injury July 31, 2010. Specifically, the applicant sought §4850 benefits for the period September 15, 2015 through March 28, 2016 and temporary disability benefits for the period March 29, 2016 through August 28, 2016.

 

The County contended that §4656, subdivision (c)(2) limited the applicant to §4850 benefits and temporary disability benefits to periods occurring within the first five years from the date of injury July 31, 2010 through July 31, 2015.

 

The WCJ found that when applicant has filed a timely petition to reopen, and temporary total disability benefits have commenced prior to the five years from the date of injury, the Appeals Board’s continuing jurisdiction over temporary total disability benefits continues beyond five years from the date of injury.

 

The County filed a Petition for Reconsideration. The WCAB, in a split decision, upheld the Worker’s Compensation Judge. The dissenting panel member concluded that §4656 (c) (2) is not susceptible of an interpretation that permits an award of temporary disability more than five years after the date of injury.

 

County filed a petition for Writ of Review that was granted.

 

The Court of Appeal stated that Labor Code §4656 provides different limitations on payment of temporary disability contingent upon the date of injury.

 

Labor Code §4656 (c) (2) provides that aggregate disability payments for a single injury occurring on or after January 1, 2008, causing temporary disability benefits may not be awarded for periods of disability occurring more than five years from the date of a worker’s injury.

 

The plain language of the section supports the conclusion that the Board may not award temporary disability payments for any period of disability occurring beyond five years from the date of injury. The language of the statute supports the conclusion that the Board is authorized to award a maximum of 104 of temporary disability payments to workers suffers an injury on or after January 1, 2008, but limits payments to periods of disability occurring within five years of the date of injury.

 

The legislative history supports the conclusion that for an injury occurring on or after January 1, 2008, the legislature intended to limit temporary disability benefits to five years from the date of a worker’s injury for injuries occurring on after January 1, 2008.

 

Case law interpreting an analogous restriction in former §4656 supports the conclusion that temporary disability benefits may not be awarded under §4656, subdivision (c) (2) for periods of disability occurring more than five years from the date of a worker’s injury.

 

The jurisdictional limitations in sections 5410, 5803 and 5804 are separate and distinct from the substantive law limiting an award of temporary disability benefits in §4656 (citing Nickelsberg v. Workers’ Comp. Appeals Bd. (1991) 54 Cal.3d 288).

 

Even assuming the Board had jurisdiction under §5410 to rule on applicant’s petition to reopen, the Board had no power to award benefits in direct contravention of the express substantive limitation on the award of temporary disability benefits contained in §4656(c)(2) – the Board must have both jurisdiction and law entitling the worker to benefits.

 

The liberal construction rule of §3202 should not be used to defeat the overall statutory framework and fundamental rules of statutory construction.

 

 

Temporary Disability (2/3)
Headnote here

Pike v. County of San Diego (BPD) (2017 Cal. Wrk. Comp. P.D. LEXIS 293

The Appeals Board, acting on a timely petition to reopen, stated that the WCAB may award temporary disability benefits more than five-years from date of injury for injuries on or after January 1, 2008.

The decision further provided that the applicant is limited to an aggregate of 104 weeks of benefits.

The WCAB explained that the language of Labor Code §4656(c)(2) does not provide the temporary disability benefits may not be paid more the five years from the date of injury.

The WCAB went on to state that it was reasonable to conclude that the Legislature did not intend to prohibit otherwise temporarily disabled injured workers from receiving the full hundred and four weeks of such benefits if such temporary disability occurs within five years of the date of injury.

The dissenting Commissioner believed the Section limited TD towards to five years from the date of injury for injuries occurring under after January 1, 2008.

A writ of review to the Court of Appeal has been filed.

Keltner v. California Guest Services (BPD) (2017 Cal. Wrk. Comp. P.D. LEXIS (94):

The WCJ found that the determination of the Agreed Medical Evaluator indicating that in the absence of surgery applicant’s lumbar spine injury and reached a permanent and stationary status.

The WCJ ruled the medical report of the Agreed Medical Evaluator was substantial evidence despite the fact the evaluator did not review the utilization review reports denying lumbar surgery.  On Reconsideration the WCAB in a split decision affirmed the WCJ.

The WCAB concluded that the applicant’s condition met the definition of permanent and stationary status because there was no medical evidence that his condition was likely to substantially improve under the current medical treatment, that because surgery was denied by UR, the WCJ lacked authority to consider the merits of applicant’s need for surgery, therefore, there was no pending approved medical treatment to support a finding of continuing temporary disability.

Because the utilization review determination disallowing surgery was final for one year, absent change in circumstances there was no basis to award continuing temporary disability.

Commissioner Sweeney, dissented, and would have returned the matter to the WCJ to obtain clarification as to whether applicant was in fact temporarily disabled. The Commissioner found this case similar to San Francisco Police Department v. WCAB (Casey) (79 CCC 970) where the WCAB found temporary disability based on the report of the Agreed Medical Evaluator finding injured worker remain temporarily disabled even after the utilization review denial of the surgery because he was motivated to pursue benefits of surgical procedure, and the Commissioner was persuaded that substantial justice required further development of the record to determine whether applicant actually reach permanent and stationary status or whether the Agreed Medical Evaluator acquiesced to the fact that utilization review denied the surgery.

Go v. Sutter Medical Center (BPD) (2017 Cal. Wrk. Comp. LEXIS 412)

The WCAB held held that an employee is entitled to temporary total disability and permanent disability resulting from reasonable medical treatment for an industrial injury self-procured pursuant to Labor Code 4605.

The primary treating physician reported disability that rated at 7% after apportionment after cervical spine surgery was denied by utilization review and independent medical review.

The applicant then self-procured the surgery, and the QME reported increased disability, which rated at 23% after apportionment.

The WCAB adopted the WCJ’s decision that applicant was entitled to temporary disability and permanent disability following the surgery because the treatment proved to be reasonable by its positive outcome.

The WCJ explained that because the UR and IMR Statutes are silent on the question of temporary disability, an employee is not precluded from claiming it even if the disability results from reasonable medical treatment that is self-procured pursuant to Labor Code §4605.

It is recognized that this has a potential to expose an employer to liability for the consequences of medical treatment that do not meet the standards of reasonableness established by the Legislature for Labor Code §4600 medical treatment though the UR and IMR processes, but that is the way the law is under the existing statute.

The WCAB believed that the uniform standards that applied by Statute to Labor Code §4600 medical treatment are not statutorily applied to medical treatment that is self-procured per Labor Code §4605. The WCAB stated it was for the Legislature to determine if the standards that apply to Labor Code §4600 medical treatment should also apply to medical treatment self-procured per Labor Code §4605 for the purpose of determining entitlement to temporary and permanent disability indemnity.

The WCAB also held that because an employee entitled to apportion compensation for permanent disability caused by reasonable medical treatment of the industrial injury, the applicant was entitled to the 27%.

 

 

Temporary Disability (3/3)
Headnote here

Keltner v. California Guest Services (BPD) (2017 Cal. Wrk. Comp. P.D. LEXIS (94):

 

The WCJ found that the determination of the Agreed Medical Evaluator indicating that in the absence of surgery applicant’s lumbar spine injury and reached a permanent and stationary status.

 

The WCJ ruled the medical report of the Agreed Medical Evaluator was substantial evidence despite the fact the evaluator did not review the utilization review will reports denying lumbar surgery.

 

On Reconsideration the WCAB in a split decision affirmed the WCJ.

 

The WCAB concluded that the applicant’s condition met the definition of permanent and stationary status because there was no medical evidence that his condition was likely to substantially improve under the current medical treatment, that because surgery was denied by UR, the WCJ lacked authority to consider the merits of applicant’s need for surgery, therefore, there was no pending approved medical treatment to support a finding of continuing temporary disability.

 

Because the utilization review determination disallowing surgery was final for one year, absent change circumstances there was no basis to award continuing temporary disability.

 

Commissioner Sweeney, dissented, and would’ve returned the matter to the WCJ to obtain clarification as to whether applicant was in fact temporarily disabled. The Commissioner found this case similar to San Francisco Police Department v. WCAB (Casey) (79 CCC 970) where the WCAB found temporary disability based on the report of the Agreed Medical Evaluator finding injured worker remain temporarily disabled even after the utilization review denial of the surgery because he was motivated to pursue benefits of surgical procedure, and the Commissioner was persuaded that substantial justice required further development of the record to determine whether applicant actually reach permanent and stationary status or whether the Agreed Medical Evaluator acquiesced to the fact that utilization review denied the surgery.

 

UR/IMR
Headnote here

Ramirez (Daniel) v. Workers’ Compensation Appeals Board (Court of Appeal, published) 82 C.C.C. 327

Applicant sustained an injury to his lower leg and ankle in the course of his employment for the State Department of Health Care Services. Applicant settled this case by way of Stipulations with Request for Award which provided for future medical treatment. The treatment included a gym/swim membership, and, over the course of about 1½ years, 12-24 sessions of acupuncture were authorized.

In July 2014, applicant’s physician prescribed 12 sessions of acupuncture. The utilization review recommended the treatment be denied. The reviewer’s rationale in denying the treatment was that acupuncture is recommended as a short-course treatment in conjunction with other interventions for a total of up to 8 to 12 visits over 4 to 6 weeks, where there is evidence of reduced pain and medication use, and there is functional improvement. The reviewer stated the applicant had completed the maximum number of recommended therapy sessions, thus the request was not reasonable.

The applicant appealed the utilization review denial under the independent medical review (IMR) process. The independent medical reviewer noted the applicant had 24 prior acupuncture sessions approved and there had been no change in his work restrictions or functional improvement for almost a year. The independent medical reviewer denied the requested treatment and stated that, according to evidence-based guidelines, further authorization for visits after initial trial are medically based on documented functional improvement. The claimant had at least 24 acupuncture visits approved in the last year. Due to the lack of objective functional improvement and decreased dependence on medical treatment, further acupuncture was not medical necessary.

The applicant appealed the decision to the Board. The grounds for appeal were that the independent medical reviewer may have been subject to a material conflict of interest and the determination may have been the result of bias on the basis of race, national origin, ethnic identification, religion, age, sex, orientation, color or disability. The applicant wanted discovery to determine whether the doctor performing the IMR was biased or had a conflict of interest. The appeal also argued the denial was materially defective because it failed to show the medical treatment utilization schedule.

The applicant argued the material defect was equivalent to an untimely utilization review, which could be appealed to the appeals Board under Dubon II. The applicant argued the IMR doctor had improperly made credibility judgments about the applicant physician’s report. To the extent that the Board was prevented from disclosing the identity of the doctor who did the review, applicant raised constitutional challenges including but not limited to denial of his right to substantive and procedural due process. The applicant understood the appeals Board could not rule on constitutionality of Labor Code provisions, however, applicant raised this issue to preserve his appeal. The appeal was ordered taken off calendar at the request of the defendant because the applicant wanted only to raise the constitutional issue, over which the Board could not review.

The applicant filed a petition for removal or reconsideration of order taking matter off calendar. A Workers’ Compensation Judge reviewed the petition and recommended the petition for reconsideration be dismissed or denied. A petition for removal must be based on the grounds that the order will result in significant prejudice or irreparable harm. The WCJ found neither existed. The WCJ further found that there was no legal basis for the constitutional challenge because the Board had no power to declare statutes unconstitutional.

The WCAB dismissed the reconsideration petition because it was from an order taking the matter off calendar, which was not a final order. The Board found the petition for removal was subject to denial because an order taking a matter off calendar does not result in substantial prejudice or irreparable harm. Nevertheless, because the petition for removal raised only constitutional issues that the Board had no authority to resolve, the court granted removal to give the applicant a final order for purposes of review. The applicant filed a petition for writ of review.

The question presented was did the Board have jurisdiction to review an IMR on the grounds that the underlying utilization review did not use the medical treatment utilization schedule, a question answered in the negative by statute.

In Dubon II, the WCAB concluded that a utilization review determination is invalid only if it is untimely. If a utilization review decision is untimely, it is invalid, and is not subject to IMR. A dispute over the timeliness of the utilization review decision is a legal dispute within the Board’s jurisdiction, but all other disputes regarding the utilization review decision must be resolved by IMR. If the Board determines that a utilization review decision is untimely, the Board may determine the medical necessity of the proposed treatment based on substantial medical evidence.

The applicant challenged the Board’s opinion in Dubon II, arguing that the Board has jurisdiction over utilization reviews that are both untimely and procedurally deficient. The argument of the applicant that the Board has jurisdiction in this case is his assertion that the utilization review doctor did not follow the medical treatment utilization schedule, thus did not follow the proper procedure.

In this case, the applicant’s utilization review was timely. Nevertheless, the applicant asserted that the Board had jurisdiction over his utilization review because it was materially defective.

If a utilization review decision denies or modifies a treatment recommendation based on medical necessity, the employee may request IMR. A utilization review decision may be reviewed or repealed only by IMR pursuant to section 4610.5. The statute provides no exception for materially defective utilization review. The Legislature provided only one method for review or appeal of utilization review, that is by IMR. Thus, the Board had no jurisdiction in this case to review the utilization review decision.

The Court of Appeal found the applicant had no claim that the Board has jurisdiction on one of the grounds allowing review of IMR set forth in the Labor Code. To the extent the Board has jurisdiction to review utilization review, it only has jurisdiction over nonmedical issues such as timeliness. Any question that has the effect of assessing medical necessity is a medical question to be conducted by a qualified medical professional by way of IMR. The Labor Code provides that in no event shall a “workers’ compensation administrative law judge, the appeals Board, or any higher court make a determination of medical necessity contrary to the determination.” Whether the reviewer correctly followed the medical treatment utilization schedule is a question directly related to medical necessity, and is reviewable only by IMR.

The task of determining whether the denial was in compliance with the medical treatment utilization schedule was appropriately delegated to the independent medical reviewer, who was better able to determine whether the medical treatment utilization schedule was followed.

The statutory scheme presumes that the mistake will be corrected by IMR because the IMR is also required to be based on the medical treatment utilization schedule.

In this case, the independent medical reviewer specifically noted that the decision was based on the medical treatment utilization schedule. The rationale for the independent medical reviewer’s denial was that further treatment was not medically necessary because there had been no functional improvement. Applicant’s attorney also argues that a medically defective utilization review is an untimely review over which the Board has jurisdiction. The Court of Appeal rejected this argument. There was no dispute over the fact utilization review was performed within the statutory time frame.

The Court of Appeal concluded the Board had no jurisdiction to review utilization review that was alleged to be defective for failure to follow the medical treatment utilization schedule. Whether the utilization review followed the medical treatment utilization schedule is directly related to a determination of medical necessity. By Statute, review of a determination of medical necessity is limited to the medical professionals performing the IMR.

The Board properly dismissed the petition for reconsideration because it had no power to determine whether the utilization review was materially defective and the applicant did not state a proper ground for appeal of the IMR to the appeals Board. The Court of Appeal went on to find that IMR did not violate the state separation of powers and due process of law. The Court of Appeal agreed with the decision in Stevens v. WCAB (241 Cal App 4th 1074). The court also concluded that IMR did not violate federal procedural due process. The order of the WCJ taking the matter off calendar was reversed. The WCJ was directed to issue an order consistent with this decision.

Stevens v. Outspoken Enterprises, Inc. (BPD) (45 WCR 147)

The WCJ, upheld by the WCAB, held that the Appeals Board lacked the power to review an IMR determination of medical necessity absent a showing by clear and convincing evidence that establishes the grounds for appeal under one or more of the five categories listed in Labor Code §4610.6(h).  The WCAB further agreed with the WCJ that they had no authority to determine the constitutionality of the IMR statutes which was raised as an issue by applicant.

The applicant filed a Petition for writ of review which was granted by the Court of Appeal

The Court of Appeal upheld the constitutionality of the IMR statutes. The Court of Appeal held that the Appeals Board applied the wrong standard of review of an IMR determination and the that the WCAB had considerable authority to review both factual and legal questions in determining whether an IMR determination was adopted without authority or is based on a plainly erroneous fact not subject to expert opinion.

The matter was returned to the WCAB on remittitur from the Court of Appeal, following the Order of the California Supreme Court denying applicants Petition for Review and the Order of the Supreme Court of the United States denying applicants Petition for Writ of Certiorari.

The decision of the Court of Appeal remanded the matter to the Appeals Board to consider whether the applicant’s request for housekeeping and personal services was denied without authority.

The WCAB on remand held the MTUS is based upon the application of evidence-based medicine to ensure that clinical decision making is guided by the integration of the best available research evidence with clinical expertise and patient values.

At issue in this case was the 2009 Guideline, which was applied by the IMR reviewer to determine the medical necessity of the RFA for home healthcare aid.

The guideline provided that medical treatment does not include homemaker services like shopping, cleaning, and laundry, and personal care given by home health care aides like bathing, dressing and using the bathroom when this is the only care needed.

The WCAB concluded that the Independent Medical Review determination upholding the denial of the request for a home health aide was adopted without authority by the administrative director because the portion of the 2009 medical treatment utilization schedule/chronic pain medical treatment guideline applied in this case provides that housekeeping and personal care services are not forms of medical treatment. This provision is contrary to long-standing worker’s compensation law, which recognizes that such types of non-medical care are forms of medical treatment that may be reasonably required to cure or relieve the effects of an industrial injury. (Smyers v. WCAB, 49 CCC 454).

Therefore, the WCAB concluded that the 2009 guideline is unlawful and invalid since it fails to address the medical treatment in the form of personal home care services sought by the applicant.

Because the guideline is contrary to California law and is invalid, the presumption of correctness could not apply.

Once the Guideline was found invalid, the WCAB than noted that the requested treatment may be authorized based on recommendations outside of an MTUS guideline where the MTUS presumption of correctness has been controverted by a preponderance of scientific medical evidence establishing that the treatment is reasonable necessary to cure or relief from the effects of the industrial injury.

The WCAB further noted that in the review of the utilization review decision, expert opinion may be considered in the determination of whether a requested mode of treatment is medically necessary.

In this case the IMR determination relied on a guideline that is invalid and there was no consideration of scientific medical evidence or expert opinion intended to demonstrate the necessity of the recommended treatment.

The WCAB concluded that the administrative director exceeded her authority when she adopted the IMR determination in this case.

Because this conclusion is contrary to the WCJ’s finding that the administrative director had not exceeded her authority when she adopted the IMR determination, the WCAB rescinded the WCJ’s finding and order denying applicant’s IMR appeal and returned the matter to the trial level for further proceedings in accordance with the decision.

The WCAB further noted that in this case the medical evidence supporting the applicant’s need for home healthcare appears to be compelling. Nevertheless, the appeals Board was precluded from determining the medical necessity of a home healthcare need in this case.

On remand to the WCJ the WCAB recognized that the 2009 guideline has been revised since the court issued its decision in this matter, and the current guideline includes home healthcare services. However, the scope of the Board’s determination is limited to the present record and the 2009 guideline, as it is the version that applied in the proceedings below and reviewed by the court.

While the WCAB did not consider the merits of the effect of the current guideline, they recognize that it may be applied by a different IMR reviewer in the event there is a remanded to the administrative director.

The WCJ may determine whether further hearing is necessary on issues not reached herein, and can consider whether, given the passage of time, further development of the record may be necessary. In the event the WCJ finds that the administrative director determination is reversed, the WCJ may determine what evidence, if any, should be provided to the new IMR reviewer when submitted for review pursuant to Labor Code §4610.6 (i).

Rodriguez v. Simi Valley Unified School District (BPD) 45 CWCR 19

The treating physician submitted an RFA for a home healthcare evaluation and a request for home healthcare services. The treating physician requested an evaluation regarding home healthcare assistance that was denied by UR. Parties disputed whether an evaluation regarding home healthcare assistance was subject to utilization review.

The WCAB found that Labor Code §4600 (h) requires that home healthcare should be treated like any other form of treatment. The WCAB found no distinction between the UR requirements for an evaluation for medical treatment and actual provision of medical treatment. The WCAB concluded that because the requested evaluation of home healthcare assistance constituted medical treatment, it was subject to the UR process.

Labor Code §§4600 and 4610 define medical treatment and the scope of UR, respectively. Section 4600 contains a broad definition of medical treatment, referring to many treatment modalities that are reasonably required to cure or relieve the injured worker from the effects of the industrial injury.  Moreover, §4600 specifically addresses home healthcare services and does not differentiate it from other forms of medical treatment. Labor Code §4610 applies to medical treatment requests made pursuant to §4600 and uses the same medical necessity languages as in §4600. A request for home healthcare evaluation comes logically within the plain language of the statute with their inclusion of home healthcare and medical necessity.

To differentiate evaluation requests (such as those for x-rays, not in and of themselves treatment for any medical condition) from treatment requests, would place them outside the scope of UR.

There have been numerous determinations that medical imaging and certain specialist evaluations to determine scope of treatment are subject to UR. In sum, determining whether this proposed regime (home healthcare) is appropriate is no less medical treatment than actual implementation of the regimen itself.

Further, since the request was subject to UR and UR timely denied it, IMR became the dispute resolution mechanism and the WCJ lacked jurisdiction to address the dispute. The WCAB in a footnote to the decision indicated that a home healthcare evaluation could be a medical-legal expense, rather than treatment, but did not believe the request at issue was a medical-legal expense.

Vargas V. Barrett Business Services (BPD) (45 CWCR 234): (QME)

Applicant sustained an industrial injury to her neck and right wrist as a result of continuous trauma and alleged multiple other body parts.

The applicant was seen by a panel Qualified Medical Valuator in internal medicine. The internist deferred the issue of causation of applicant’s abdominal symptoms to a Qualified Medical Evaluator in gastroenterology, her headaches to a QME in otolaryngology (ENT) and her insomnia until review of the requested sleep study.

The WCJ denied applicant’s request for additional panels, the WCJ requested hearing, for which, applicants primary treating physician issued what was termed a medical-legal report recommending GERD to a gastroenterologist and for a sleep study all of which had been recommended by the PQME. The WCJ took the matter off calendar.

The applicant filed a petition for removal.

The WCAB denied removal because the order taking the case off calendar did not cause irreparable harm since the applicant can file another declaration of readiness to proceed to get the case back on calendar. Additionally, the panel noted that the recommendations of both the PQME and the PTP about additional evaluations and agree that dispute might be more expeditiously resolved those evaluations took place before resort to the Board.

If further action of the Appeals Board was required, all issues relating to obtaining further medical-legal evaluations should be tried together. The panel cited Labor Code §4060 (b) and noted that while a primary treating physician’s treatment request are subject to utilization review, a primary treating physician may also perform a comprehensive medical-legal evaluation and associated medical-legal expenses are not subject to utilization review.

Applicants attorney requested a hearing on the issue of entitlement to additional panels. Defendant objected, arguing the referrals by the treating physician were subject to UR/IMR.

The WCJ after trial ruled that the request for referral to a gastroenterologist, ENT specialist and for a sleep study constituted medical treatment for referrals subject to UR and as such the Board did not have the power to make such referrals.

The parties also raise the question of whether such referrals may be made outside defendants medical provider network, a point made by the judge’s decision.

Applicant filed a petition for reconsideration or removal.

The WCAB reiterated that an employer is required to reimburse medical-legal expenses incurred for the purpose of proving or disproving a contest claim.

The panel concluded that the referrals in this case were not for medical treatment since they involve disputed body parts, and observed that the Primary Treating Physician had referred to the PQME’s report recommending additional panels to determine whether applicant sustained an industrial injury to those body parts.

While the panel agreed that the treating physician must perform a comprehensive medical-legal evaluation in order for evaluations by other physicians to be recoverable as medical-legal expenses, it is not correct that the evaluations must be performed for those expenses can be incurred.

Pursuant to Labor Code §4061.5, the PTP is charged with rendering opinions on all medical issues needed to determine eligibility for compensation and to incorporate other treating physician’s findings into his or her port.

Pursuant to Rule 9793(h) medical-legal expenses include the cost of medical evaluations, diagnostic tests and interpreters if it is incident to the production of comprehensive medical-legal evaluation Board.

Taking the relevant statutes and regulations together, the panel observed that a comprehensive medical-legal evaluation is often produced after the medical-legal expense is incurred.

Panel noted the WCJ was incorrect in his assessment that the PTP must have produced a medical-legal report before being able to recommend additional medical-legal referrals.

Noting that their prior recommendations that all issues related to obtaining additional evaluations be tried together was ignored, the panel determined that they could not make finding about additional evaluations as that was not an issue raised at trial.

However, the PQME report and the referrals by the PTP provided good cause for the WCJ to order additional QME panels.

The panel ordered the parties to make good faith efforts to resolve their dispute, pointing out there are two tracks for applicant to obtain a medical-legal evaluation of injuries to disputed body parts the PQME track and the treating physician track.

Either party may pursue either track or both tracks.

The panel observed since the PQME and PTP recommended the contested evaluations, there is direct and efficient path to obtain additional panels in the recommended specialties, citing Rule 31.7 (b) and reminding the parties that the primary purpose of worker’s compensation system is to promptly provide an injured worker with payment of benefits, including medical care.

The panel rescinded the WCJ’s F & O and returned the case to the trial level for further proceedings.

Bellah v. McCreery’s (BPD) (LEXIS)

Defendant accepted the claim and provided some benefits.

In May 2017, dispute arose over authorization for medical treatment.

The matter went to trial.

The WCJ issued a Findings and Order that the defendant did not complete utilization review in a timely fashion and therefore the WCAB had jurisdiction over medical treatment per Dobon II.

The defendant filed a petition for reconsideration.

Defendant contended that it timely completed the utilization review process.

The issue involved Regulation 9792.9 .1 (e) (3) which provides as follows:

“For perspective, concurrent, or expedited review, the decision to modify, delay, or deny shall be communicated to the requesting physician within 24 hours of the decision, and shall be communicated to the requesting physician initially by telephone, facsimile, or electronic mail. The communication by telephone shall be followed by written notice to the requesting physician, the injured worker, and if the injured worker is represented by, the injured worker’s attorney within 24 hours of the decision for concurrent review and within two business days for perspective review and for expedited review within 24 hours of receipt of the request.

Defendant contends that within two business days means two days after it sent its denial of certification to the physician.

The WCJ interpret the language to mean within two days of the decision.

If defendants position was correct the service on applicant’s attorney was timely, but the WCJ believed service on applicant’s attorney was two days after the UR was decided not to certify the eye RFA.

The WCAB stated that pursuant to the case of Mulford v. City of Los Angeles (2016 Cal. Wrl. Comp. LEXIS 296 the section requires that notice to applicant’s attorney must be sent no later than two days after the decision by the UR physician.

The position of the defendant extends the time that the UR is completed for one extra business day, a position that runs contrary to the purpose of utilization review.

The Legislature intended utilization review to provide for quality medical care for worker’s  compensation in a prompt and expeditious manner.

As the Legislature intended any extension beyond the minimal time limits set forth, such an extension would have to be explicitly stated in the controlling statutes and regulations.

The petition for reconsideration was denied.

Willoughby v. WCAB (W/D) (82 CCC 1026)

Applicant sustained an admitted industrial injury.

Applicant began treating within the employer’s medical provider network.

The treating physician prescribed various medications and a pain program which were all denied by UR/IMR.

The matter proceeded to trial regarding the issue of the reasonableness of necessity of the requested medical treatment and specifically on the issue whether treatment request by an MPN physician are subject to mandatory IMR pursuant to Labor Code §4610.5

The WCJ awarded the medical treatment, finding that a medical treatment request made by an MPN physician is not subject to mandatory Labor Code §4610.5 IMR and that medical treatment request made by the treating physician were supported by substantial evidence.

The WCAB granted reconsideration and rescinded finding that the treatment proposed by an MPN physician is not subject to UR/IMR and the WCJ’s award of proposed treatment.

The WCAB determined that the Legislature did not exclude MPN treatment from UR/RMR is described in labor code 4610 et seq. and request for authorization to provide medical treatment by an MPN physician is subject to the process.

Because in this case the UR denied authorization for the treatment further dispute was subject to the IMR process.

The WCAB to support their position cited the case of State Comp. v. WCAB (Sandhagen) (73 CCC 980) in which The Supreme Court held that the statutory language indicates the Legislature intended for employers to use utilization process when reviewing and resolving any and all requests for medical treatment.

The WCAB pointed out that the case included no provision exempting MPN providers for me that you are of the IMR process.

Additionally, the WCAB opined that the use of the MTUS and other evidence-based treatment standards as part of the UR/IMR process further evidence the Legislature’s intent to apply uniform standard of reasonable medical treatment grounded in evidence-based, peer-reviewed, nationally recognized standard of care to all medical treatment including treatment by MPN providers.

If the Legislature intended to exempt MPN medical treatment from the UR and IMR is by the WCAB, it would’ve expressly excluded MPN providers and treatment from those statutes, but it did not.

Labor Code §4610 (b) requires every employer to establish a UR process, in section 4610(c) requires the UR policies and procedures shall ensure that decisions based on medical necessity to cure and relieve of proposed medical treatment services are consistent with the schedule of medical treatment utilization adopted pursuant to section 4610.5 makes IMR applicable to any dispute over a utilization review decision and requires that such dispute shall be resolved only by IMR. (Dubon, 79 CCC 1298)

Submitting MPN treatment proposals to UR and IMR is consistent with the Legislative goal of assuring by all defendants consistent with evidence-based, peer-reviewed, nationally recognized standards of care.

Commissioner Sweeney, concurring with the panel majority, wrote separately to clarify that, when an MPN treating physician makes a diagnosis or proposes a course of treatment, there are two separate statutory tracks to dispute that recommendation, the UR/IMR dispute resolution process and the MPN IMR process depending on which party raises a dispute with an MPN physician’s medical treatment recommendation. The first processes triggered by the employer’s objection to a medical treatment determination and the latter by the employee’s objection to an MPN medical treatment determination. The Commissioner explained that since this case involved the employer’s objection to a treatment recommendation by the MPN treating physician the dispute is subject to UR/IMR process which applies to all treating physicians regardless of whether the employer utilizes an MPN to satisfy its obligation to provide reasonable medical treatment.  In contrast, when an employee disputes the treatment recommendation of an MPN Dr., the process is governed by labor code 4616.3 and 4616.4 and regulation 9768.1 et seq. Sweeney noted that the two IMR process are not interchangeable and are not mutually exclusive. Both may address the denial of medical treatment, but the regulatory procedural requirements differ significantly for each.

Applicants petition for writ of review was denied