Cal App 3rd Compensability Continuous Trauma Secondhand Smoke

LexisNexis has picked the top 25 noteworthy panel decisions plus a bonus case issued by the California Workers' Compensation Appeals Board during the period January through June 2014, many of which have not already been reported in our newsletter.

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DISCOVERY

Jesus Rios , Applicant v. Bryan Jones dba The K Group, Tokio Marine, Uninsured Employers Benefits Trust Fund, Defendants, 2014 Cal. Wrk. Comp. P.D. LEXIS 135 (lexis.com), 2014 Cal. Wrk. Comp. P.D. LEXIS 135 (Lexis Advance)

Discovery—Closure—Newly Obtained Medical Reports—WCAB, in split panel opinion, rescinded WCJ's order excluding medical evidence obtained by applicant/laborer  after closure of discovery at 1/11/2012 mandatory settlement conference, and held that, while WCJ correctly excluded reports from four physicians and vocational expert who had not previously reported and were not disclosed at mandatory settlement conference, supplemental medical reports from doctors listed at  mandatory settlement conference were admissible under Labor Code § 5502(e)(3) [Editor's Note: Labor Code § 5502(e)(3), applicable at time of 1/11/2012 mandatory settlement conference, was renumbered by SB863, effective 1/1/2013, to Labor Code § 5502(d)(3)], when applicant testified that his condition relating to 4/10/2006 pelvis and bladder injuries had worsened in 2012, after declaration of readiness to proceed (DOR) was filed in 2011, causing him to resume medical treatment after having been released by his treating physician in 2008, and WCAB found that under specific terms of Labor Code § 5502(e)(3), evidence is admissible after close of discovery upon showing that evidence was unavailable or undiscoverable with exercise of due diligence prior to mandatory settlement conference, that applicant's changed circumstances constituted good cause to permit admission of supplemental reports from previously disclosed physicians who evaluated applicant's new complaints and issued supplemental reports, that to allow their supplemental reports to be considered was consistent with limitation in Labor Code § 5502(e)(3) on admission of evidence not disclosed at mandatory settlement conference, and that admission of doctors' reports was not based on WCAB's duty to develop record, as this duty does not arise until there has been determination of adequacy of existing record by WCJ after submission of case.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d § 26.04[2].]

Farzaneh Foroughi, Applicant v. County of San Bernardino, Department of Risk Management, Defendants , 2014 Cal. Wrk. Comp. P.D. LEXIS -- (lexis.com), 2014 Cal. Wrk. Comp. P.D. LEXIS -- (Lexis Advance)

Discovery—Depositions—Protective Orders—WCAB, granting applicant/graphic designer's petition for removal, rescinded WCJ's order compelling applicant to appear for deposition and denying applicant's petition for protective order filed pursuant to Code of Civil Procedure § 2025.420(b), wherein applicant sought to bar appearance of her supervisor, Axel Colin, as employer representative at her deposition, when WCAB found sufficient demonstration that Mr. Colin's presence at applicant's deposition would result in "oppression" within meaning of Code of Civil Procedure § 2025.420 based upon applicant's assertion that underlying cause of her alleged psychiatric injury from 7/1/2008 through 8/9/2013 was treatment by Mr. Colin for previous five years, fact that applicant's prior deposition was terminated after applicant responded to Mr. Colin's presence with "uncontrollable crying, shaking and severe distress," and medical report of applicant's treating psychiatrist indicating that having applicant's supervisor present at her deposition "would be extraordinarily detrimental to her mental health and could result in an exacerbation of intense symptoms of anxiety, depression and panic," and WCAB also determined that even if Mr. Colin was "party" to action as asserted by defendant, exclusion of Mr. Colin was not precluded under Code of Civil Procedure § 2025.420(b)(12), because exclusion of Mr. Colin did not prevent defendant from designating another representative, also "party" to action, from attending deposition.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d §§ 1.11[3][g], 25.40, 25.41, 26.03[4].]

DISCRIMINATION

Victoria Lacheta, Applicant v. Olympic Security Services, Defendant , 2014 Cal. Wrk. Comp. P.D. LEXIS -- (lexis.com), 2014 Cal. Wrk. Comp. P.D. LEXIS -- (Lexis Advance)

Discrimination—Labor Code § 132a—Burden of Proving Entitlement to Lost Wages—WCAB affirmed WCJ's 3/17/2014 Findings and Order wherein WCJ determined that applicant/baggage screener failed to meet her burden of establishing entitlement to lost wages/benefits under Labor Code § 132a, and that 3/17/2008 award of reimbursement for lost wages/benefits and reinstatement issued by different WCJ was unenforceable, when WCAB found that (1) pursuant to Labor Code § 5803, WCAB retained jurisdiction, even after five years, to enforce 3/17/2008 award, (2) 3/17/2008 award was not sufficiently certain to permit enforcement because award failed to set forth specific amounts to which applicant was entitled and because award itself, together with record created at time award was issued, was insufficient to allow WCAB to determine amount of lost wages awarded or elements essential to determine amount, (3) to prove entitlement to lost wages and benefits under Labor Code § 132a, applicant was required to establish prima facie case of lost wages "caused by the acts of the employer" and applicant did not meet burden of proof during 2008 proceedings because she did not establish that she was ready, willing and able to perform duties of baggage screener through specific testimony and/or substantial medical evidence, did not establish that she had diligently searched for work or explain her failure to return to labor market following 2/3/2002 injury, and did not provide any evidence of attempt to mitigate damages, and (4) applicant also failed to sustain burden of proof during 2013/2014 proceedings to enforce earlier award because applicant's testimony was in conflict with her 2008 testimony regarding amount of her wages, receipt of vocational rehabilitation and date she was released to work, and applicant was not credible as to her purported lack of awareness of TSA takeover, as to closure of Olympic Security (applicant's employer) at Bob Hope Airport where applicant worked, and as to her efforts to return to some type of employment.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d § 10.11[1].]

Keisha Boston, Applicant v. Regents of University of California, PSI, administered by Sedgwick, Defendants, 2014 Cal. Wrk. Comp. P.D. LEXIS 11 (lexis.com), 2014 Cal. Wrk. Comp. P.D. LEXIS 11 (Lexis Advance)

Discrimination—Labor Code § 132a—Statute of Limitations—WCAB, reversing WCJ, held that applicant/biller's petition filed on 10/21/2011, alleging multiple acts of discrimination by defendant under Labor Code § 132a, up to and including termination, was not barred by one-year statute of limitations, when WCAB concluded that WCJ, in finding applicant's claim was barred for failure to file petition within one year of her last day of work in 1/2008, incorrectly assumed alleged discrimination in this case did not include period that applicant was off work due to cumulative industrial injury to her neck, back, arms, wrists, and psyche, that to demonstrate Labor Code § 132a petition is timely filed, injured worker must show that petition was filed within one year of last alleged discriminatory act or termination, that, here, applicant alleged that defendant engaged in continuing course of discriminatory conduct from date applicant was first released to work on 4/7/2006 until defendant terminated applicant on 11/1/2011, that termination was date of last alleged discriminatory act by defendant, and that, since applicant filed petition on 10/21/2011, petition was timely.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d §§ 10.11[4], 24.03[9].]

INSURANCE COVERAGE

Teodulo Martinez , Applicant v. Koga Colorscape & Maintenance, Southern Insurance, administered by FirstComp Insurance Agency, Defendants, 2014 Cal. Wrk. Comp. P.D. LEXIS 173 (lexis.com), 2014 Cal. Wrk. Comp. P.D. LEXIS 173 (Lexis Advance)

Insurance Coverage—Cancellation of Policy—WCAB affirmed Arbitrator's finding that Southern Insurance Company provided workers' compensation insurance coverage for employer landscape and gardening business on 12/5/2009, date that applicant suffered industrial injury while cutting palm frond, and that Southern Insurance Company was not entitled to rescission of policy based upon its allegation that employer made material misrepresentations on its insurance application by indicating that no work was done above 15 feet and that no tree trimming was done by employer's business, when statutory scheme governing insurance policies provides that workers' compensation insurance policies are conclusively presumed to contain all provisions required by law, are subject to regulation by Department of Insurance, must contain clause to effect that insurer will be directly and primarily liable to any proper claimant for payment of compensation, and cannot be canceled for material misrepresentation by policyholder or its agent "except upon 10 days written notice to the policyholder by insurer," and WCAB found that, taken together, these statutory provisions prevent insurers, once they have agreed to provide coverage, from limiting policies or canceling policies in manner that would leave employer without coverage and applicant without benefits, that statutory scheme would be eviscerated if insurers were allowed to rescind policies for any misstatements on insurance applications, that there was no clear showing in this case that any facts were actually misrepresented and no showing of intent to defraud by employer, and that Southern Insurance Company provided no persuasive authority justifying entitlement to equitable relief of rescission.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d § 2.61[2].]

LIENS

Blanca Gutierrez, Applicant v. Marriott International (LAX), PSI, Defendant, 2014 Cal. Wrk. Comp. P.D. LEXIS 19 (lexis.com), 2014 Cal. Wrk. Comp. P.D. LEXIS 19 (Lexis Advance)

Liens—Statute of Limitations—WCAB, affirming WCJ, held that lien claimant's lien filed on 9/11/2012 for medical services rendered to applicant/housekeeper on 6/30/2003 for cumulative industrial injuries incurred during period 11/16/74 to 11/1/2004, was barred by statute of limitations in former Labor Code § 4903.5(a) and, therefore, disallowed, when WCAB found that (1) service of lien claimant's bill on defendant did not constitute "constructive" filing of lien within requisite statutory timeframe pursuant to former Labor Code § 4904(a), as asserted by lien claimant, because language in former Labor Code § 4904(a) only pertains to liens that attach against employee's compensation benefits, such as Employment Development Department (EDD) liens, and does not pertain to medical treatment or medical-legal liens, as is clearly indicated in SB 863 amendment to Labor Code § 4904(a), and in Labor Code § 4904(f), which states that amendment is declarative of existing law, (2) defendant did not have duty to serve lien claimant with Stipulated Award settling applicant's claim under 8 Cal. Code Reg. § 10886, so as to toll statute of limitations, because lien claimant had not yet filed lien at time Stipulated Award was issued, and (3) lien claimant had ample opportunity to perfect his lien rights before five-year period from date of injury had run, and before one-year period after last provision of treatment had run, but, instead, did nothing to pursue payment after serving defendant with its medical bill on 7/23/2003, which apparently defendant did not receive.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d §§ 30.20[1], 30.21.]

Rudy Gallardo , Applicant v. Southern California Edison, PSI, Defendant; Huntington Hospital, Lien Claimant, 2014 Cal. Wrk. Comp. P.D. LEXIS 148 (lexis.com), 2014 Cal. Wrk. Comp. P.D. LEXIS 148 (Lexis Advance) (Lien Claimant's Petition for Reconsideration of WCAB's April 8, 2014 Opinion and Decision After Reconsideration was denied on June 18, 2014)

Liens—Preferred Provider Organizations—WCAB, reversing WCJ, held that $18,050.00 fee paid by defendant Southern California Edison to lien claimant Huntington Hospital by way of chain of contracts, for treatment rendered to applicant with 4/23/2003 admitted  industrial low back injury, was pursuant to "express agreement fixing the amounts to be paid" between Blue Cross of California and lien claimant, as described in Labor Code § 5304, and that, therefore, WCAB did not have jurisdiction over fee dispute, that lien claimant's contention that Blue Cross of California added other payors after initial contract was made, thereby violating "silent PPO" provisions disallowed by Labor Code § 4906 and failing to follow terms of its contract, did not change fact that WCAB was without jurisdiction because there was express agreement fixing amounts to be paid, and that lien claimant must adjudicate its breach of contract claims in different forum.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d §§ 21.03[6], 30.04[2][b][i].]

Romanita Ayala , Applicant v. County of Los Angeles/King Drew Medical Center, PSI and adjusted by Tristar Risk Management, Defendants, 2014 Cal. Wrk. Comp. P.D. LEXIS 45 (lexis.com), 2014 Cal. Wrk. Comp. P.D. LEXIS 45 (Lexis Advance)

Liens—Medical Treatment—Official Medical Fee Schedule—WCAB affirmed WCJ's finding that Official Medical Fee Schedule rates were applicable to treatment charges incurred by lien claimant for self-procured medical treatment provided to applicant/ultrasound technician who alleged industrial injuries to her back, neck, shoulders, wrists, psyche and in form of fibromyalgia during period 10/15/97 through 10/15/98, and held that, under present law, CNA Insurance Companies v. W.C.A.B. (Valdez) (1997) 62 Cal. Comp. Cases 1145 (writ denied) and Federal Mogul Corp. v. W.C.A.B. (1973) 38 Cal. Comp. Cases 584 (writ denied), are not persuasive authority to support lien claimant's assertion that maximum fee limits of Official Medical Fee Schedule do not apply if injury has been denied, when WCAB found that statutory basis for cases holding that medical provider is not limited to Official Medical Fee Schedule billing where injured employee's claim was denied, has changed such that minimum fee schedule has been replaced with Official Medical Fee Schedule establishing reasonable maximum fees, that 8 Cal. Code Reg. § 9792(c) now sets forth specific circumstances under which medical provider may recover charges in excess of Official Medical Fee Schedule, that in order to recover treatment fees in excess of Official Medical Fee Schedule, lien claimant must establish that excess fees are justified by "extraordinary circumstances related to the unusual nature of the medical services rendered" in accordance with 8 Cal. Code Reg. § 9792(c), that lien claimant in this case failed to prove such circumstances existed with respect to treatment provided to applicant, and that testimony of defendant's bill review expert supported finding that Official Medical Fee Schedule applied to determine reasonableness of lien claimant's charges. [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d §§ 27.01[8][b][iii], 30.04[9][a].]

MEDICAL-LEGAL PROCEDURE

Mark Mayne , Applicant v. Intel Corporation, PSI and Adjusted by Broadspire, Defendants, 2014 Cal. Wrk. Comp. P.D. LEXIS 70 (lexis.com), 2014 Cal. Wrk. Comp. P.D. LEXIS 70 (Lexis Advance)

Medical-Legal Procedure—Agreed Medical Examiners and Assignment of Panel Qualified Medical Evaluators—Reporting Timeframes—WCAB, granting defendant's petition for removal, affirmed WCJ's finding that applicant/network specialist with industrial injury to his neck, back, legs, knees, feet, psyche, gastrointestinal system, and in form of headaches, duly canceled agreement to utilize physician as agreed medical examiner, when WCAB, although recognizing binding nature of agreements to utilize agreed medical examiners pursuant to amendments in Labor Code § 4062.2(f), found that agreed medical examiner in this case was unable to comply with statutory timeframes for evaluation and reporting, and that his failure to comply with such timeframes was significant enough to justify applicant's unilateral withdrawal from agreement to utilize physician as agreed medical examiner; WCAB, however, amended WCJ's order to provide that, if parties cannot agree on new agreed medical examiner, specialty of assigned panel of qualified medical evaluators must be same specialty as agreed medical examiner (orthopedist) pursuant to language in 8 Cal. Code Reg. § 38(d).  [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d §§ 22.06[1][d], 22.11[1], [8], [11], [14], 22.13.]

Gi Kim, Applicant v. County of Los Angeles/Probation Department, PSI, Adjusted By Acclamation Insurance Management Services, Defendants, 2014 Cal. Wrk. Comp. P.D. LEXIS 24 (lexis.com), 2014 Cal. Wrk. Comp. P.D. LEXIS 24 (Lexis Advance)

Medical-Legal Procedure—Reimbursement of Employee's Medical-Legal Expenses—WCAB, affirming WCJ, held that functional capacity evaluation requested by panel qualified medical evaluator was reasonable and necessary medical-legal expense and awarded payment of $997.89 as reasonable value of service, when WCAB found that proper test to determine whether medical-legal expense is reasonable and necessary is whether report is capable of proving or disproving contested claim and that, in making determination, WCJ must consider substance as well as form of report pursuant to Labor Code § 4620(c) and 8 Cal. Code Reg. § 9793(g)(3), that here, WCJ properly determined functional capacity evaluation was reasonable and necessary to prove or disprove whether applicant had new and further disability, and that WCJ correctly found defendant liable for penalty and interest on amount awarded pursuant to Labor Code § 4622, which provides that party will be assessed penalty and interest unless it both objects to bill and prevails in any proceeding contesting issue, because, although defendant timely objected to bill, defendant did not prevail on contested claim.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d §§ 5.08[2], 22.09, 30.05.]

Carlos Cabrera Razo, Applicant v. Las Posas Country Club, Hartford Insurance Co., Administered by Gallagher Bassett, Defendants, 2014 Cal. Wrk. Comp. P.D. LEXIS 12 (lexis.com), 2014 Cal. Wrk. Comp. P.D. LEXIS 12 (Lexis Advance)

Medical-Legal Procedure—Assignment and Selection of Panel Qualified Medical Evaluators—WCAB, dismissing defendant's petition for reconsideration as premature and denying removal, held that applicant/driver who incurred cumulative industrial injury to multiple body parts during period 5/7/2011 through 5/7/2012, timely exercised his right to strike members from replacement qualified medical evaluator panels in orthopedics and internal medicine assigned on 1/3/2013, when WCAB found that (1) process in Labor Code § 4062.2, as amended by SB 863, applied to 1/3/2013 panel qualified medical evaluator assignment and selection, because Labor Code § 4062.2 is procedural statute and, as such, is to be applied prospectively, and because, in SB 863 section 84, Legislature expressed intent to apply amendments to all pending cases, regardless of date of injury, (2) pursuant to discussion of Code of Civil Procedure § 1013 in Messele v. Pitco Foods, Inc. (2011) 76 Cal. Comp. Cases 956 (Appeals Board en banc opinion), Labor Code § 4062.2(c) allows party ten days from assignment of qualified medical evaluator panel, plus five days for mailing, to strike name from qualified medical evaluator panel, (3) phrase in amended Labor Code § 4062.2(c), "assignment of the panel by the Administrative Director," should be construed to mean not only assignment, but also service of name of panel qualified medical evaluator on parties by U.S. mail, as mere "assignment" of panel would not provide parties with notice of names and related right to strike or forgo striking name, (4) reasoning in Alvarado v. W.C.A.B. (2007) 72 Cal. Comp. Cases 1142 (writ denied), that "assignment" alone triggers party's right to strike name, is flawed, as right to strike name would be meaningless unless identity of panel qualified medical evaluators are communicated to parties by Administrative Director via U.S. mail, (5) in assigning panels, Administrative Director is not necessarily bound by 8 Cal. Code Reg. § 10507,  and since there is no Administrative Director Rule governing assignment and mailing of panel assignments, Code of Civil Procedure § 1013 is controlling and adds five days to time within which party may strike panel qualified medical evaluator name after panel is assigned, and (6) for 2012 injury and 1/3/2013 assignment of qualified medical evaluator panel, applicant's strike on 12th day was timely as it was within 15 days after assignment by Administrative Director.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d §§ 22.06[1][a], 22.11[1], [6].]

MEDICAL TREATMENT; INDEPENDENT MEDICAL AND UTILIZATION REVIEW

Christopher Page , Applicant v. Barman Transport, Inc., State Compensation Insurance Fund, Defendants, 2014 Cal. Wrk. Comp. P.D. LEXIS 177 (lexis.com), 2014 Cal. Wrk. Comp. P.D. LEXIS 177 (Lexis Advance)

Medical Treatment—Independent Medical Review—WCAB affirmed WCJ's finding that applicant/truck driver was entitled to medical treatment as requested by treating physician, including surgery, for 6/3/2004 admitted right ankle injury, and that, pursuant to holding in Dubon v. World Restoration, Inc. (2014) 79 Cal. Comp. Cases 313 (Appeals Board en banc opinion), requested treatment was not subject to independent medical review process (IMR), when WCAB found that defendant's utilization review process was materially flawed because utilization review physician issued determination without information regarding applicant's medical history that was reasonably necessary to make valid determination, that, while utilization review physicians are not required to review all medical records in order to make valid determination, utilization review process contemplates that utilization review physician will be provided information reasonably needed to make valid determination and, if information is incomplete or insufficient, that physician will request necessary information, that WCJ correctly concluded that utilization review process in this case had "material procedural defects that undermine[d] the integrity of the UR decision" as described in Dubon, and that, given material defects in utilization review process, it was proper for WCJ to determine if requested medical treatment was reasonably required based upon medical records presented at trial.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d § 5.02[2][d].]

Marty Hayworth , Applicant v. KCI Holdings USA, Inc., Fidelity and Guaranty Insurance Company, Defendants, 2014 Cal. Wrk. Comp. P.D. LEXIS 234 (lexis.com), 2014 Cal. Wrk. Comp. P.D. LEXIS 234 (Lexis Advance)

Medical Treatment—Independent Medical Review—Appeals—WCAB, rescinding WCJ's finding, held that IMR determination addressing treating physician's treatment request for applicant/crane technician's 8/30/2010 admitted neck and spine injury, was not issued in conformity with Labor Code § 4610.5, when IMR determination, by its own terms, evaluated treating physician's request for authorization as involving "facet injections of cortisone and lidocaine," but treating physician expressly stated in his request that he sought authorization for "left dorsal medial branch block injection," which WCAB found was plainly different than "facet injections" evaluated by IMR reviewer, and WCAB concluded that because IMR determination, on its face, was based on plainly erroneous finding of fact as matter of ordinary knowledge and not expert opinion, as described in Labor Code § 4610.6(h)(5) (setting forth bases for appealing IMR determinations to WCAB), IMR determination must be set aside, and that because IMR determination was reversed, pursuant to Labor Code § 4610.6(i) dispute must be submitted to different IMR organization or, if different IMR organization is not available, to different reviewer in original IMR organization.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d §§ 5.02[2], 22.05[6][b][iv].]

Jose Cisneros, Applicant v. Valley Fresh Foods, Inc., State Compensation Insurance Fund, Defendants, 2014 Cal. Wrk. Comp. P.D. LEXIS 191 (lexis.com), 2014 Cal. Wrk. Comp. P.D. LEXIS 191 (Lexis Advance)

Medical Treatment—Utilization Review—Independent Medical Review—Spinal Surgery Second Opinion—WCAB held that WCJ correctly determined that applicant/laborer who suffered 12/20/2004 admitted industrial back injury was entitled to medical treatment in form of spinal surgery and that applicant's request for spinal surgery authorization was not subject to IMR process in Labor Code § 4610.5 et seq., when applicant did not object to defendant's utilization review denial and neither party initiated agreed medical examiner/qualified medical evaluator process nor initiated process to obtain spinal surgery second opinion report, and WCAB found that (1) SB 863 amendments to Labor Code § 4062, requiring all utilization review disputes to be resolved through IMR process, created new procedure for disputing utilization review decisions for injuries on or after 1/1/2013 or utilization review decisions made after 7/1/2013, but did not retain any procedure for utilization review determinations made before 7/1/2013 for injuries that occurred before 1/1/2013, (2) consequently, former Labor Code § 4062,  as it existed prior to its amendment by SB 863, continues to act as "ghost statute" governing procedures to be utilized for utilization review denials prior to 7/1/2013 for pre-1/1/2013 injuries, (3) since applicant was injured on 12/20/2004 and utilization review denial was communicated on 2/18/2013, any challenge to utilization review denial was governed by Labor Code § 4062 as it existed prior to 1/1/2013, (4)  under Labor Code § 4062,  as interpreted by Cervantes v. El Aguila Food Products, Inc. (2009) 74 Cal. Comp. Cases 1336 (Appeals Board en banc opinion), defendant had burden of objecting to treating physician's recommendation and of requesting spinal surgery second opinion report, but did not do this within time frames and in manner required by former Labor Code § 4062(b), and (5) fact that treating physician continued to make demands for surgery while defendant was incorrectly denying treatment did not waive or otherwise divest applicant of his right to surgery which had already accrued before demands were made.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d §§ 5.02, 22.05[6].]

PERMANENT DISABILITY

Doreen Dahl, Applicant v. Contra Costa County, PSI, Defendant, 2014 Cal. Wrk. Comp. P.D. LEXIS 2 (lexis.com), 2014 Cal. Wrk. Comp. P.D. LEXIS 2 (Lexis Advance) (Petition for Writ of Review filed 2/19/2014, sub nom. Contra Costa County v. W.C.A.B. (Dahl))

Permanent Disability—Rating—Vocational Evidence—WCAB affirmed WCJ's finding that applicant/medical records technician incurred 79 percent permanent disability as result of industrial cumulative injury to her neck and right shoulder over period ending 3/14/2005, and held that applicant successfully rebutted diminished future earning capacity (DFEC) factor in 2005 Permanent Disability Rating Schedule with regard to right shoulder injury by showing, through substantial expert vocational testimony, that effect of such injury on earning capacity of similarly situated workers was greater than DFEC factor in 2005 Schedule, when WCAB found that (1) contrary to defendant's assertion, analysis under LeBoeuf v. W.C.A.B. (1983) 34 Cal. 3d 234, 193 Cal. Rptr. 547, 666 P.2d 989, 48 Cal. Comp. Cases 587, may be applied even if injured employee's DFEC, or inability to compete in labor market, is not total [see Dahl v. Contra Costa County, PSI, 2012 Cal. Wrk. Comp. P.D. LEXIS 173], as injured employee's permanent disability rating should reflect as accurately as possible employee's diminished ability to compete in open labor market, and (2) approach utilized by applicant's vocational expert was not contrary to Ogilvie v. W.C.A.B. (2011) 197 Cal. App. 4th 1262, 129 Cal. Rptr. 3d 704, 76 Cal. Comp. Cases 624 (Ogilvie III) because, in undertaking LeBoeuf analysis, vocational expert did not consider any impermissible individualized factors identified by court of appeal in Ogilvie III, such as general economic conditions, lack of education, proficiency in English, and illiteracy, but instead focused on effect such injury would have upon DFEC of similarly situated workers, thereby reconciling apparent contradiction between Ogilvie III statement that individual factors not arising from industrial injury cannot be considered in post-SB 899 DFEC analysis, with Supreme Court's view in Argonaut Ins. Co. v. I.A.C. (Montana) (1962) 57 Cal. 2d 589, 21 Cal. Rptr. 545, 371 P.2d 281, 27 Cal. Comp. Cases 130, that individual's willingness and ability to work, age, health, skill and education along with general condition of labor market and employment opportunities for persons similarly situated are relevant in determining individual's future earning capacity.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d §§ 8.02[3], [4][a], 32.03A; The Lawyer's Guide to the AMA Guides and California Workers' Compensation, Ch. 8.]

Ron Davis, Applicant v. Walt Disney Company, Liberty Mutual, Defendants, 2014 Cal. Wrk. Comp. P.D. LEXIS 52 (lexis.com), 2014 Cal. Wrk. Comp. P.D. LEXIS 52 (Lexis Advance)

Permanent Disability—Rating—AMA Guides—WCAB affirmed WCJ's finding that applicant suffered 62 percent permanent disability from 1/3/2008 industrial injury to her cervical spine, psyche, sleep, and internal system (in form of GERD), and that opinion of orthopedic agreed medical examiner did not constitute substantial evidence to rebut strict AMA Guides rating under Almaraz v. Environmental Recovery Services/Guzman v. Milpitas Unified School District (2009) 74 Cal. Comp. Cases 1084 (Appeals Board en banc opinion), and Milpitas Unified School Dist. v. W.C.A.B. (Guzman) (2010) 187 Cal. App. 4th 808, 115 Cal. Rptr. 3d 112, 75 Cal. Comp. Cases 837, when agreed medical examiner attempted to rebut AMA Guides by rating cervical spine factors of disability by reference to Figure 15-19 of AMA Guides, but failed to provide sufficient explanation as to why rating applicant's whole person impairment using Figure 15-19 was more appropriate than using ROM or DRE method in spinal chapter for rating impairment, other than to achieve desired result of providing disability rating consistent with rating achieved under 1997 Schedule for Rating Permanent Disabilities, and WCAB found that agreed medical examiner's rejection of AMA Guides rating on basis that he believed AMA Guides did not sufficiently account for work functions and his attempt to produce permanent disability rating indirectly based on pre-2005 rating schedule, by itself, was improper and not sufficient rebuttal of AMA Guides, that Figure 15-19 does not provide rating methodology under Almaraz/Guzman II, as Figure is not "'chapter, table or method in the AMA Guides'" for purposes of determining impairment. [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d § 32.03A; The Lawyer's Guide to the AMA Guides and California Workers' Compensation, Chs. 4, 5, 8.]

Pope Powell , Applicant v. City and County of San Francisco, PSI, Defendant, 2014 Cal. Wrk. Comp. P.D. LEXIS 105 (lexis.com), 2014 Cal. Wrk. Comp. P.D. LEXIS 105 (Lexis Advance)

Permanent Disability—Rating—Occupational Group Number—WCAB, in split panel opinion, held that WCJ properly utilized occupational code 212, rather than occupational group 112, in finding permanent disability caused by applicant/fleet operations manager's 9/26/2011 industrial injury to his bilateral upper extremities, including shoulders and elbows, when WCAB found that, although majority of applicant's work (80-85 percent) was spent using computer keyboard, his job duties and salary were managerial in nature for purposes of applying occupational group 212, that applicant's job required use of computer to fulfill managerial responsibilities inherent in his position, that clerical functions described in occupational group 112 were not at core of applicant's job, and that "dual occupation rule" (providing that if two group numbers are applicable to worker's job, worker is entitled to application of group number which carries highest factor in computation of permanent disability) did not apply here because occupational code 212 contemplated use of computer by professional or managerial employee and, while applicant used computer daily, nature of his use was not at "highest demand" for keyboarding as contemplated by occupational group 112.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d §§ 32.03, 32.03A.]

Robert Hurley , Applicant v. Sacramento Kings, Vancouver Grizzlies, TIG, Defendants, 2014 Cal. Wrk. Comp. P.D. LEXIS 124 (lexis.com), 2014 Cal. Wrk. Comp. P.D. LEXIS 124 (Lexis Advance)

Permanent Disability—Application of 2005 Permanent Disability Rating Schedule—WCAB held that WCJ incorrectly utilized 1997 Schedule for Rating Permanent Disabilities instead of 2005 Permanent Disability Rating Schedule to rate permanent disability incurred by applicant/professional basketball player who suffered industrial cumulative injury while playing for Sacramento Kings and Vancouver Grizzlies from 1/1/93 through 7/1/98, when WCJ utilized 1997 Schedule based on his determination that Labor Code § 4660(d) exception to application of 2005 Schedule applied because applicant's temporary disability ended prior to 1/1/2005, thereby triggering defendant's duty to provide Labor Code§ 4061(a) notice, but WCAB found that, based upon date of injury under Labor Code § 5412, applicant's claim did not even exist until 2011, that plain language of Labor Code § 4660(d) cannot be construed to require defendant to provide notice to injured worker about injury claim that has not yet come into existence, that since applicant's date of injury was in 2011, defendant could not have had obligation to provide Labor Code § 4061(a) notice concerning applicant's injury claim prior to 1/1/2005, and that no exception to application of 2005 Schedule applied to support WCJ's application of 1997 Schedule.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d §§ 8.02[4][a], 32.01[3][a], [d], 32.03, 32.03A.]

Cathleen Porter , Applicant v. Coldwater Creek, Zurich North America, Defendants, 2014 Cal. Wrk. Comp. P.D. LEXIS 178 (lexis.com), 2014 Cal. Wrk. Comp. P.D. LEXIS 178 (Lexis Advance)

Permanent Disability—Rating—AMA Guides—WCAB affirmed WCJ's finding that applicant/store manager who suffered 6/21/2009 industrial injury to right lower extremity (iliotibial band tendinitis), right hip (trochanteric bursitis), and in forms of complex regional pain syndrome (CRPS)/regional sympathetic dystrophy (RSD), and hypertension, incurred 72 percent permanent disability, and that, contrary to defendant's contention, WCJ did not improperly award lower extremity permanent disability greater than amputation value for lower extremity as set forth in 2005 Permanent Disability Rating Schedule, when WCAB found that rating for CRPS/RSD should not be considered part of composite rating for right lower extremity, because AMA Guides and 2005 Schedule recognize CRPS/RSD as central nervous system disorder, not lower extremity impairment, and CRPS/RSD can result in impairment greater than 40 percent allowed for loss of lower extremity, that instructions on page 1-11 of 2005 Schedule indicating that composite rating for extremity may not exceed amputation value of that extremity are intended to apply to impairments within extremity category, that WCJ correctly combined ratings for iliotibial band tendinitis and trochanteric bursitis pursuant to instructions on page 1-11 of 2005 Schedule and then combined lower extremity rating with rating for CRPS and hypertension using Combined Values Chart to arrive at 72 percent rating, and that, even if CRPS-related impairment were considered part of overall lower extremity impairment, agreed medical examiner's reporting regarding applicant's CRPS-related pain and limited activities of daily living was sufficient to rebut scheduled rating.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d § 32.03A; The Lawyer's Guide to the AMA Guides and California Workers' Compensation, Chs. 4, 5, 8.]

Euwanda Sexton, Applicant v. American Red Cross, PSI, Defendant , 2014 Cal. Wrk. Comp. P.D. LEXIS -- (lexis.com), 2014 Cal. Wrk. Comp. P.D. LEXIS -- (Lexis Advance)

Permanent Disability—Rating—Vocational Evidence—WCAB affirmed WCJ's determination that applicant/family services supervisor suffered 41 percent permanent disability as result of admitted cumulative industrial injury to her bilateral wrists during period ending 8/22/2005, when WCAB found that WCJ's permanent disability award was supported by reporting of applicant's vocational expert, which WCAB found was sufficient to rebut scheduled rating, and WCAB was not persuaded by defendant's assertion that vocational expert opinion was not substantial evidence because applicant was "amenable to rehabilitation," when WCAB concluded that term "amenable to rehabilitation" does not have only one meaning but rather involves range of possible rehabilitation from returning to exact same job to retraining for completely different job, that applicant's condition fell within that rehabilitation range because she has transferrable skills but with reduced earning capacity, that WCJ based applicant's permanent disability award upon effect of reduced earning capacity, that WCJ's determination of permanent disability based upon reporting of applicant's vocational expert was in conformity with second method of rebutting scheduled rating described in Ogilvie v. W.C.A.B. (2011) 197 Cal. App. 4th 1262, 129 Cal. Rptr. 3d 704, 76 Cal. Comp. Cases 624, and that under Ogilvie injured worker does not need to show complete inability to rehabilitate to rebut scheduled rating but may rebut scheduled rating by showing that injury "impairs" his or her rehabilitation causing loss of future earning capacity that is greater than reflected in scheduled rating, as in this case.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d §§ 8.02[3], [4][a], 32.03A; The Lawyer's Guide to the AMA Guides and California Workers' Compensation, Ch. 8.]

PRESUMPTION OF COMPENSABILITY

Walter Cervantes , Applicant v. United Airlines Inflight Services, Gallagher Bassett Services, Inc., Defendants, 2014 Cal. Wrk. Comp. P.D. LEXIS 49 (lexis.com), 2014 Cal. Wrk. Comp. P.D. LEXIS 49 (Lexis Advance)

Presumption of Compensability—Time to Raise Labor Code § 5402—WCAB, reversing WCJ, held that presumption of compensability in Labor Code § 5402(b) can be raised for first time at trial even if issue is not identified at mandatory settlement conference, and, while cautioning that prudent practitioners should raise all possible issues at mandatory settlement conference, found that issue will not be deemed waived if raised for first time at trial, that if opposing party can demonstrate prejudice by not having had notice of issue at mandatory settlement conference, WCJ must take appropriate steps to remedy prejudice, and that here, although applicant did not waive issue of Labor Code § 5402(b), applicant's failure to raise issue prior to trial resulted in significant delay in resolution of his case and was not prudent. [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d § 24.01[4].]

Rene Hernandez , Applicant v. LBH Hotel Corp., dba Mr. C Hotel, Amtrust North America, Defendants, 2014 Cal. Wrk. Comp. P.D. LEXIS 123 (lexis.com), 2014 Cal. Wrk. Comp. P.D. LEXIS 123 (Lexis Advance)

Presumption of Compensability—Time to Deny Claim—Post-Termination Claims—WCAB rescinded WCJ's finding that applicant/dishwasher's claim for 1/1/2012 industrial injury to multiple body parts was barred under Labor Code § 3600(a)(10) because it was filed after applicant's termination, and returned matter for to trial level for further proceedings, when WCAB held that applicant's injury was presumed compensable under Labor Code § 5402 based upon defendant's failure to deny claim within requisite 90-day period, that, despite defendant's contrary assertion, there is nothing in plain language of Labor Code § 3600 that renders Labor Code § 5402 presumption inapplicable to post-termination claims, that defendant did not prove that it formed intention to deny applicant's claim within 90 days, and that defendant did not rebut presumption of compensability. [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d §§ 4.65[1], 21.03[1][a], 24.01[4], 25.21[3].]

PROFESSIONAL ATHLETES; CONTRIBUTION

Charlie Garner, Applicant v. Tampa Bay Buccaneers, Pacific Employers Insurance Company, Oakland Raiders, ACE American Insurance Company, Defendants , 2014 Cal. Wrk. Comp. P.D. LEXIS -- (lexis.com), 2014 Cal. Wrk. Comp. P.D. LEXIS -- (Lexis Advance)

Contribution—Cumulative Injury—Professional Athletes—WCAB rescinded arbitrator's finding that Tampa Bay Buccaneers was entitled to contribution under Labor Code § 5500.5 from Oakland Raiders for benefits paid to applicant/professional football player who received stipulated award for industrial injury to his shoulders, left elbow, right thumb, knees, lumbar spine, neck, and in form of headaches during cumulative period ending on 9/26/2004, and held that Tampa Bay was not entitled to contribution, when applicant played for Oakland until 3/2/2004 and then became employed by Tampa Bay, applicant played last professional football game for Tampa Bay on 9/26/2004, before being placed on "injured reserved" list, while on "injured reserved" list applicant was required by Tampa Bay to participate in mandatory team rehabilitation program and continued to participate in team workouts until he was terminated by Tampa Bay on 8/30/2005, and WCAB found that (1) 9/26/2004 ending date of cumulative trauma set forth in stipulated award was not binding on Oakland because settlement was effected without Oakland's participation, (2) unrebutted medical evidence established that applicant's mandatory participation in vigorous team rehabilitation program and post-injury workouts exposed him to hazards of cumulative injury for purpose of Labor Code § 5500.5 liability, (3) preponderance of evidence showed that applicant was subjected to hazards of cumulative injury until he was terminated by Tampa Bay, and (4) based on evidence, arbitrator erred in finding that applicant's participation in rehabilitation program and post-injury workouts was not hazardous, and that applicant was exposed to hazards of cumulative injury only until 9/26/2004 when he played in last full-contact gridiron football game.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d § 31.13[2].]

SERIOUS AND WILLFUL MISCONDUCT

Barry Blaylock, Applicant v. Negherbon Auto Center, dba Negherbon Lincoln Mercury, et al, Defendant, 2014 Cal. Wrk. Comp. P.D. LEXIS 1 (lexis.com), 2014 Cal. Wrk. Comp. P.D. LEXIS 1 (Lexis Advance) (Petition for Writ of Review denied 4/10/2014, sub nom. Negherbon Auto Center v. W.C.A.B. (Blaylock) 79 Cal. Comp. Cases 589)

Serious and Willful Misconduct of Employer—Safety Order Violations—Secondhand Smoke—WCAB, affirming WCJ, held that applicant met burden of proving that employer violated Labor Code § 4553 based on its serious and willful misconduct in causing applicant to suffer injury to his lungs and permanent total disability due to workplace exposure to cigarette smoke, when credible evidence indicated that applicant was required by employer to have frequent meetings in enclosed office of employer's finance manager who smoked heavily, that applicant was asthmatic and complained to finance manager, general manager and his supervisor, both before and after he required emergency room medical treatment for severe asthma attack, that he was suffering increased breathing problems from his exposure to cigarette smoke, that employer continued to require applicant to appear in finance manager's office while she smoked heavily, and that general manager's smoking caused or worsened applicant's condition until he was unable to work, and WCAB found that employer violated safety order in Labor Code § 6404.5, prohibiting smoking in workplace, that employer knew of safety order and of potential for severe harm to applicant's lungs that could be caused upon violation of such order, and that employer's intentional conduct in allowing financial manager to smoke in enclosed area with knowledge that it would likely result in serious injury, coupled with employer's deliberate failure to act, rose to level of "quasi-criminal" action so as to support finding of serious and willful misconduct.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d § 10.01.]

STATUTE OF LIMITATIONS

Maribel Rodriguez-Ortega, Applicant v. Hina's Mercy Southwest Pharmacy, State Farm Fire & Casualty Company, Defendants, 2014 Cal. Wrk. Comp. P.D. LEXIS 38 (lexis.com), 2014 Cal. Wrk. Comp. P.D. LEXIS 38 (Lexis Advance)

Statute of Limitations—Time to File Claim—WCAB affirmed WCJ's finding that applicant/pharmacy technician's 8/29/2012 Application for Adjudication of Claim seeking benefits for 4/17/2007 industrial psychiatric injury (Post-Traumatic Stress Disorder ) was timely filed and not barred by one-year statute of limitations in Labor Code § 5405, when applicant received medical treatment for psychiatric injury at Kaiser Permanente, which provided group medical coverage to applicant's employer, until 8/27/2012, and WCAB found that employer-paid group health coverage constituted medical treatment for purposes of applying rule in Labor Code § 5405 that claim is timely filed if it is filed within one year of  last furnishing of treatment.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d §§ 24.02, 24.03[1].]

WORKERS' COMPENSATION APPEALS BOARD PROCEDURE

Flavio Solano , Applicant v. Hess Collection Winery and Zenith Insurance Company, Defendants, 2014 Cal. Wrk. Comp. P.D. LEXIS 139 (lexis.com), 2014 Cal. Wrk. Comp. P.D. LEXIS 139 (Lexis Advance)

WCAB Procedure—Selection of Interpreter—WCAB, denying removal, affirmed WCJ's order denying applicant/farm worker's request to select his own interpreter to provide Spanish interpreting services at his deposition noticed by defendant, when WCAB found that (1) under plain meaning of term "producing party" in Labor Code § 5811(b)(1), and pursuant to WCAB's decision in Contreras v. Gibson Farms, 2013 Cal. Wrk. Comp. P.D. LEXIS 462 (Appeals Board noteworthy panel decision), defendant, not applicant, has duty to select and provide certified interpreters for depositions it notices, (2) although Labor Code § 5710, which provides statutory authority for conducting depositions in workers' compensation cases, references Code of Civil procedure § 2016.010 et al., applicable to discovery in civil cases, Code of Civil Procedure discovery statutes generally do not apply in workers' compensation cases, but rather workers' compensation discovery is governed by WCAB rules of practice and procedure and WCAB has authority to define parameters of conducting deposition without being bound by Code of Civil Procedure, and (3) applicant did not establish that defendant's selection of interpreter would cause substantial prejudice or irreparable harm by exposing adverse party (interpreter) to applicant's privileged communications with his attorney, because Labor Code § 5811(b)(2) prohibits certified interpreters from disclosing confidential communications, there has been long practice of defendants hiring interpreters for applicant's deposition without negative consequence, and applicant established no relationship between defendant and interpreter outside defendant's obligation to pay bill for interpreting services.  [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d §§ 1.11[3][g], 23.13[3], 26.03[4].]

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