CALIFORNIA COMPENSATION CASES
Vol. 88, No. 5 May 2023
A Report of En Banc and Significant Panel Decisions of the WCAB and Selected Court Opinions of Related Interest, With a Digest of WCAB Decisions...
By Hon. Susan V. Hamilton, Former Assistant Secretary and Deputy Commissioner, California Workers’ Compensation Appeals Board
In 2022 there were 7,490 wildfires in California. They burned 362,455 acres...
By Christopher Mahon
Should temporary workers be treated separately under workers’ compensation law due to additional employment and income risks they may incur after workplace injuries? A new study...
Here's a noteworthy panel decision where a family member conveyed essential information to the AME on behalf of the injured employee. The Lexis headnote is below.
CA - NOTEWORTHY PANEL DECISIONS...
Oakland, CA – Part II of a California Workers’ Compensation Institute (CWCI) research series on low- volume/high-cost drugs used to treat California injured workers identifies three Dermatological drugs...
CALIFORNIA COMPENSATION CASES
Vol. 88, No. 1 January 2023
A Report of En Banc and Significant Panel Decisions of the WCAB and Selected Court Opinions of Related Interest, With a Digest of WCAB Decisions Denied Judicial Review
CONTENTS OF THIS ISSUE
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Appellate Court Cases Not Originating With Appeals Board
State of California v. Fishman, Lexis
Insurance Fraud—Collateral Estoppel—Court of Appeal, reversing trial court, held that trial court erred in applying doctrine of collateral estoppel when it granted motion for judgment on pleadings in favor of qualified medical evaluator Bruce E. Fishman, M.D., with respect to qui tam action against him alleging violation of Insurance Fraud Prevention Act (IFPA) (Insurance Code § 1871 et seq.), when Court of Appeal found that elements of collateral estoppel...
Insurance Fraud—Statute of Limitations—Court of Appeal, reversing trial court, held that trial court erred in applying statute of limitations when it granted motion for judgment on pleadings in favor of qualified medical evaluator Bruce E. Fishman, M.D., with respect to qui tam action against him alleging that he violated Insurance Fraud Prevention Act (IFPA) (Insurance Code § 1871 et seq.) by concealing his prior felony conviction from DIR, Division of Workers’ Compensation on his 2003 application to become qualified medical evaluator and by improperly obtaining payment for medical-legal reports under guise that he was lawfully appointed as qualified medical evaluator, when Court of Appeal found that statute of limitations...
Trent (Charottte) v. Fresno County Employees’ Retirement Association, Lexis
Public Employees—Disability Retirement under County Employee Retirement System—Standard of Review—Court of Appeal, affirming trial court’s decision granting plaintiff’s petition for writ of mandate and vacating defendant’s denial of plaintiff’s application for service-connected disability retirement, held that trial court properly reviewed retirement board’s decision for abuse of discretion by applying independent judgment standard of review…
Digests of WCAB Decisions Denied Judicial Review
Alameda-Contra Costa Transit District v. W.C.A.B. (Collins, Henrietta), Lexis
Injury AOE/COE—Stress-Related Physical Injuries—Heart Disease—WCAB, granting reconsideration, rescinded WCJ’s finding of no industrial heart injury, and held that applicant, while employed as bus driver, suffered industrial injury in form of cardiac arrest during cumulative period ending on 2/28/2018 based on medical opinion of internal medicine qualified medical evaluator (QME) indicating that daily industrial stressors, including 2016 sexual assault, contributed to applicant’s heart disease and eventual cardiac arrest, when WCAB found that although applicant did not allege psychiatric injury...
Comprehensive Blood & Cancer Center v. W.C.A.B. (Perez, Maricela), Lexis
Cumulative Trauma—Determination of Liability—Last Injurious Exposure—WCAB granted reconsideration and amended WCJ’s decision only to correct clerical error, but otherwise affirmed WCJ’s decision and held that applicant, while working as radiology technician, suffered cumulative injury in form of intracranial meningioma during period ending on 7/3/2012 based on her last date of injurious exposure as established by medical evidence, and that defendant having coverage during prior year was liable for injury, when WCAB reasoned that...
Great Divide Insurance Company v. W.C.A.B. (Melendez Banegas, Edil David), Lexis
Injury AOE/COE—Commercial Traveler Doctrines—WCAB, granting reconsideration and rescinding WCJ’s finding that decedent’s fatal injury was not compensable, held that decedent suffered injury AOE/COE based on “commercial traveler” doctrine, when decedent suffered fatal injuries in motor vehicle accident on 7/29/2018 while traveling on Interstate 5 from his home in Bay Area back to his temporary job location in Santa Monica, and WCAB reasoned that test for determining applicability of “commercial traveler” doctrine is whether activity during which injury occurred is…
Konan (Matthew) v. W.C.A.B., Lexis
WCAB Jurisdiction—Professional Athletes—Contracts of Hire—WCAB, granting reconsideration in split panel opinion, held that applicant who claimed he incurred industrial injury to multiple body parts while playing professional hockey for Tulsa Oilers (Oilers) and Philadelphia Flyers (Flyers) from 2012 through 2016, did not meet burden of proving valid contracts of hire were made within State of California for employment with either team, and, consequently, WCAB had no jurisdiction over applicant’s injury claim, when WCAB panel majority found that to establish contract for hire...
Other WCAB Decisions Denied Judicial Review
Johnson (Christopher) v. W.C.A.B., Lexis
Petitions for Writ of Review—Annulment of WCAB’s Decision—Court of Appeal, treating applicant’s petition as one for writ of review, vacated WCAB’s 7/1/2022 order denying reconsideration and remanded matter to WCAB for further review without addressing merits of issue raised by applicant’s petition for writ of review regarding whether WCAB erred in determining that his arrest for misdemeanor, and not felony, precluded his recovery of workers’ compensation benefits under Labor Code § 3600(a)(8), when Court of Appeal found good cause...
Lazcano (Patricia) v. W.C.A.B., Lexis
Petitions for Writ of Review—Premature Petitions—Court of Appeal denied applicant’s Petition for Writ of Review challenging WCAB’s 4/11/2022 Opinion and Decision after Reconsideration, when WCAB granted applicant’s Petition for Reconsideration while Petition for Writ of Review was pending but has not yet issued its decision after reconsideration, making Petition for Writ of Review premature.
Raymond Isaac v. W.C.A.B. (Rangel, Alejandro), Lexis
Petitions for Writ of Review—Premature Petitions—Court of Appeal dismissed defendant’s Petition for Writ of Review challenging WCJ’s decision finding no good cause to set aside Order Approving Compromise and Release agreement, when Court of Appeal noted that under Labor Code § 5901 judicial review may not be sought until WCAB sets aside final order, decision, or award on its own motion and removes proceeding to itself or if person files petition for reconsideration and reconsideration is either granted or denied, neither of which occurred in this case.
Appeals Board Panel Decisions
CAUTION: These WCAB panel decisions have not been designated a “significant panel decision” by the Workers’ Compensation Appeals Board. Practitioners should proceed with caution when citing to these board panel decisions and should also verify the subsequent history of the decisions. WCAB panel decisions are citeable authority, particularly on issues of contemporaneous administrative construction of statutory language. However, WCAB panel decisions are not binding precedent, as are en banc decisions, on all other Appeals Board panels and workers’ compensation judges. While WCAB panel decisions are not binding, the WCAB will consider these decisions to the extent that it finds their reasoning persuasive.
Ryan (Joseph) v. California Department of Corrections, Lexis
Permanent Disability—Rating—Rebuttal of Scheduled Rating—WCAB, granting reconsideration, affirmed WCJ’s finding that applicant suffered 100 percent permanent disability as result of industrial spine injuries while employed as correctional captain on 5/29/2015 and during period 7/12/2011 through 12/11/2015, and rejected defendant’s reliance on Dept. of Corrections & Rehabilitation v. W.C.A.B. (Fitzpatrick) (2018) 27 Cal. App. 5th 607, 238 Cal. Rptr. 3d 224, 83 Cal. Comp. Cases 16807, to dispute WCJ’s finding of permanent total disability, when WCAB found that Fitzpatrick was distinguishable from this case in that it involved…
Permanent Disability—Apportionment—Benson Exception—WCAB, granting reconsideration, concluded that WCJ did not err in issuing combined award of permanent total disability for applicant correctional officer’s two spine injuries, when WCAB found that although agreed medical examiner concluded applicant’s spinal disability should be...
Permanent Disability—Apportionment—Preexisting Factors—WCAB, granting reconsideration, affirmed WCJ’s finding that applicant suffered 100 percent permanent disability as result of industrial spine injuries while employed as correctional captain on 5/29/2015 and during period 7/12/2011 through 12/11/2015, without apportionment between those injuries, but deferred issue of apportionment...
Schaan (Douglas) v. Jerry Thompson & Sons, Lexis
Psychiatric Injury—Catastrophic Injuries—Increased Permanent Disability—WCAB, denying reconsideration, affirmed WCJ’s finding that applicant did not suffer “catastrophic” injury pursuant to Labor Code § 4660.1(c)(2)(B) and Wilson v. State of CA Cal Fire (2019) 84 Cal. Comp. Cases 393 (Appeals Board en banc opinion), and was, therefore, not entitled to increased permanent disability rating for psychiatric condition applicant incurred as compensable consequence of orthopedic injuries he sustained while employed as painter through 1/8/2015, when WCAB reasoned that under Wilson, whether injury is “catastrophic” depends on...
Permanent Disability—Rating—Rebuttal of Scheduled Rating—WCAB, denying reconsideration, affirmed WCJ’s finding that applicant suffered 74 percent permanent disability as result of orthopedic injuries incurred while he was employed as painter during period through 1/8/2015, and agreed with WCJ’s determination that there was insufficient medical and vocational evidence to...
Independent Medical Review Decisions
CAUTION: The Publisher’s Staff has reviewed both overturned and upheld independent medical review (IMR) decisions beginning in 2017. Criteria for selection include discussion of relevant medical topics, including but not limited to prescription medicine, home health care, orthopedic issues, physical therapy, opioid prescriptions, etc. The Publisher’s selection is not meant to be reflective of the proportion of all IMR decisions that overturn utilization review (UR) denials.
Opioid Medication—Oxycodone—Chronic Pain—Applicant, 57 years old, suffered an industrial back injury on 6/7/2007, and subsequently underwent surgery, diagnostic testing, injections, and physical therapy. He was also prescribed medications, including Oxycodone acetaminophen. An examination and follow-up of the lumbar spine in 2021 revealed tenderness to the paraspinal muscles and 50 percent limited range of motion. Applicant reported low back pain rated at 4/10. The treating physician requested authorization for Oxycodone acetaminophen 10/325mg #30, which UR denied. The IMR reviewer overturned the UR denial based on... [LexisNexis Commentary: This IMR decision serves as an important reminder that opioids, while potentially dangerous, can, with appropriate monitoring, play a useful role in the management of chronic pain. The applicant in this case was able to return to work with the use of opioid medication, which demonstrated to the IMR reviewer that there was significant functional improvement. Further, the treating physician adequately addressed opioid compliance.]
Chiropractic Treatment—Spine and Shoulder Injuries—Applicant, 66 years old, suffered an industrial injury on 9/13/2017 and was diagnosed with a cervical sprain, left shoulder sprain, and lumbar sprain. In 2022, applicant was evaluated by an orthopedist for complaints of increased neck, lower back, and shoulder pain at a level of 8/10. An examination revealed tenderness to palpation in the cervical and lumbar paraspinal muscles and left trapezius. There was also a decreased range of motion in the lumbar spine. A home exercise program was initiated, and the applicant’s physician sought approval for four weeks of chiropractic treatment, twice per week. UR non-certified the requested chiropractic treatment based on the MTUS 2017 chronic pain guidelines. Relying on the MTUS 2016 guidelines for shoulder disorders, the MTUS 2020 guidelines for low back disorders, and the MTUS 2019 guidelines for cervical spine and thoracic spine disorders, the IMR reviewer overturned the UR decision and found... [LexisNexis Commentary: This IMR decision shows that UR’s faulty rationale for denying treatment may result in the UR decision being overturned. Here, UR denied chiropractic treatment on the basis that applicant would get the same results from a home exercise program. However, the documentation showed that applicant was engaged in a home exercise program that was not improving his symptoms. Consequently, the IMR reviewer found that eight sessions of chiropractic treatment were warranted.]
Opioid Medication—Oxycodone—Chronic Pain—Applicant, 53 years old, suffered an industrial back injury on 5/8/2018 and was on modified work. In a 9/8/2022 ER report applicant reported a flareup of back pain, and an examination revealed tenderness of the right lower lumbar region and a negative straight leg raise bilaterally. Applicant’s treating physician requested authorization for Oxycodone 5mg #8, which was denied by UR. The IMR reviewer overturned the UR denial based on... [LexisNexis Commentary: The IMR reviewer overturned the UR non-certification of Oxycodone because the prescription was for a short-term flareup and allowed applicant to continue working. The fact that the prescription was for short-term use, mitigated the typical concerns regarding long-term opioid usage and abuse.]
Chiropractic Treatment—Spine and Shoulder Injuries—Applicant, 59 years old, suffered an industrial injury in a motor vehicle accident on 6/8/2021 and underwent treatment, including physical therapy and vestibular therapy, for cervical and lumbar radiculopathy, neck pain, and bilateral shoulder joint pain. He also participated in an initial course of 18 chiropractic sessions, which he reported improved his condition in that he could stand up straighter, stay seated in a car for a longer period and experienced reduced pain with ADLs. Applicant’s treating physician requested approval for an additional six sessions of chiropractic treatment for the cervical spine, lumbar spine and shoulders. UR denied the request. Relying on the MTUS 2016 guidelines for shoulder disorders, the MTUS 2020 guidelines for low back disorders, and the MTUS 2019 guidelines for cervical and thoracic spine disorders, the IMR reviewer overturned the UR decision... [LexisNexis Commentary: This IMR decision is a useful reminder that the standard for additional chiropractic treatment after an initial course is functional improvement. Despite applicant’s reports of functional improvement after his initial chiropractic treatment, the UR reviewer non-certified the additional sessions. However, the IMR reviewer concluded that the functional improvement reported by applicant supported the medical necessity of additional chiropractic sessions.]
Chiropractic Treatment—Spine Injury—Applicant, 30 years old, suffered an industrial injury on 8/20/2021, resulting in neck and low back pain and decreased range of motion. After applicant reported increased pain in 2022, his treating physician requested authorization for four chiropractic sessions for the lumbar spine and cervical spine. UR denied the requested treatment, noting that the documentation did not identify any recent specific event causing a flareup or exacerbation of applicant’s pain with associated functional decline, and that more than one-year post-injury, applicant should be independent in a home exercise program to address residual or fluctuating symptoms. Notwithstanding UR’s opinion that there were no significant clinical findings to justify chiropractic treatment, UR approved a pain management consultation based on significant clinical findings of neurologic compromise. Citing the MTUS 2020 guidelines for low back disorders and the MTUS 2019 guidelines for the cervical and thoracic spine, which recommend an initial course of up to 12 chiropractic sessions for chronic or acute cervical and thoracic spine symptoms and up to six sessions for lumbar spine symptoms, the IMR reviewer overturned the UR denial of the requested chiropractic treatment. The IMR reviewer found... [LexisNexis Commentary: This IMR decision provides a useful guideline regarding the initiation of chiropractic treatment and also observes that a UR determination may be internally inconsistent.]
Chiropractic Treatment—Spine Injury—Applicant, 58 years old, suffered an industrial back injury on 8/29/2020 and was out of work. She completed 12 sessions of chiropractic treatment with significant improvement of her symptoms, including resolution of tingling in her feet and legs, and dissipation of neuropathic pain in her right leg. The shaking/restless sensation in her right leg had also resolved, and her sleep had improved due to less pain. In an 8/16/2022 progress report, applicant reported continued low back pain, radiating to her legs. Her treating physician requested an additional six sessions of chiropractic treatment, which UR denied based on its finding that there was no documentation of functional improvement with prior chiropractic care. The provider submitted a “supplemental appeal report” pointing out that applicant, in fact, reported significant improvement in symptoms and function after her initial course of chiropractic treatment. The IMR reviewer overturned the UR non-certification of additional chiropractic treatment, noting that... [LexisNexis Commentary: This IMR corrects the UR reviewer’s error in failing to recognize evidence of applicant’s functional improvement in the documentation submitted. After UR denied the treatment request, the provider diligently submitted a supplemental report describing applicant’s functional improvements with the initial course of chiropractic treatment, which was likely helpful in getting the treatment certified by IMR.]
Opioid Medication—Tramadol—Chronic Pain—Applicant, 52 years old, suffered an industrial injury on 1/3/2011 and was diagnosed with lumbar/lumbosacral spondylolisthesis and post-laminectomy syndrome. He had undergone various treatments, including surgery, injections, chiropractic manipulation, and use of medications. He had also been taking Tramadol for pain since at least 10/14/2021. In a 9/8/2022 progress report, applicant reported continued low back pain with radiation into the legs rated at 7/10 and associated numbness and tingling. The physical examination revealed tenderness over the right L5, decreased range of motion with pain, left L5 motor weakness, and diminished sensation along the left L4-5 distribution. A urine drug screen was positive for THC. The treating physician requested authorization for Tramadol Hcl 50mg #30, which UR denied. The IMR reviewer overturned the UR denial, noting that… [LexisNexis Commentary: This IMR decision reminds the community that long-term opioid use, while potentially dangerous, may be appropriate if it is closely monitored by a physician and results in functional improvement.]