I recently had the pleasure of speaking on a California workers’ comp case law update panel. The panel was at the Disneyland conference of CCWC (the California Coalition on Workers’ Compensation, an employer-side workers’ comp research and advocacy group).
Co-presenting at my session was attorney Bill Anderson of the State Compensation Insurance Fund. We jokingly subtitled our presentation, with the two different perspectives, as “You say toh-may-to, I say toh-mah-to”. Thanks to Bill for his role in preparing for the CCWC panel (note the comments in this blog are mine and do not necessarily represent Bill’s viewpoint).
Of course it’s not practical to give a total recap within the scope of one blog post. So I have shortened the list somewhat.
But reference to some of the cases discussed may be of interest to the wider comp community. Various cases noted below are still in the appellate process; others are either “unpublished” or panel decisions which may give some guidance to judges and lawyers but aren’t citable or binding.
So take it all with a grain of salt….
Clearly there is intense anticipation regarding pending appellate court cases that include the following:
-the Stevens v. Outspoken Enterprises (pending at Court of Appeals 1st District) and Ramirez v. WCAB (pending at Court of Appeals 3rd District) cases involving challenges to the constitutionality of the IMR system. Also involving similar issues is a petition for writ pending at the 1st DCA in the Saul Zuniga case.
-the Gannon v. Hallmark Marketing case (2014 Cal. Wrk. Comp P.D. LEXIS 679) (pending at Court of Appeals 3rd District) dealing with the issue of whether the Board properly issued an award of 100% permanent disability based on the rating factor, derived from orthopedic AME’s opinion, that the employee’s injuries left her limited to working from inside the home.
-the Christopher Rice case (City of Jackson V. WCAB; pending at 3rd DCA)(2015 Cal. Wrk. Comp P.D. LEXIS 57) (issue is whether the WCAB properly rejected the PQME’s apportionment based on genetic predisposition where imaging studies confirmed degenerative disc disease)
-the Batten v. Long Beach Memorial Hospital case (pending at Court of Appeals 2nd District) (2014 Cal. Wrk. Comp P.D. LEXIS 640) where the issue is whether the Board properly rescinded a permanent disability award finding psyche injury that had been based on the report of a physician retained by applicant’s attorney as a “private medical consultant.” The panel QME had found the psyche claim non-industrial and the Board found the consultant’s report inadmissible pursuant to Labor Code section 4064(d). This case involves the issue of whether the Valdez Supreme Court decision has bearing on the QME process after the SB 863 changes to the QME process statute.
-the Dahl v. Contra Costa County case (2014 Cal. Wrk. Comp P.D. LEXIS 2) (pending at 1st DCA), where the issue is the methodology used by a vocational expert in rebutting the pre 2013 PD rating schedule under the Ogilvie case
Most of these Court of Appeals cases either have been argued or will be argued soon, and rulings will be made in most of them later this year.
But there are other cases that came down in late 2014 or in 2015 which have generated less publicity. In some instances I have outlined the Commissioners who participated, since the current composition of the board seems split on some issues.
Here are some short takes on a selection of the cases discussed at CCWC:
–South Coast Framing v. WCAB (Clark) (California Supreme Court; 2015 Cal. LEXIS 3896) The California Supreme Court clarifies the standard of industrial causation of death, rejecting a Court of Appeals decision that found that the industrial component had to be a material factor in causing the death. The issue was the required nature and strength of the causal connection between the injury (and medications used as a result of the injury) and the overdose death of Mr. Clark. The Supreme Court distinguished proximate cause in a tort context from the contributing cause standard applicable under workers’ com. Even though in the view of the agreed QME the magnitude of the industrial component may have been like the flakes from crust of a pie, the court noted that there was substantial evidence supporting the WCJ finding that the injury related meds contributed to the death.
–Powell v. WCAB (79 CCC 1505) Work activities, not job title is key to determining the proper occupational group for rating purposes. Here the worker was a fleet operations manager but evidence showed that a substantial amount of keyboarding was a required part of his job. Possible appropriate groups were 112, 212, 211, 110 and 111. The 1st DCA remanded the case to the WCAB to give further analysis of the appropriate group.
–Garcia v. Alameda Unified School District (panel of Sweeney, Brass and Zalewski)(2014 Cal. Wrk. Comp. P.D. LEXIS 347) The defendant sought a psychiatry panel and the applicant sought a psychology panel. Defendant’s request was the first received by the Medical Unit, which issued a psychiatry panel though it later issued a psychology panel too. The WCAB notes that the Reg 31.1(a) tie-breaker procedure did not apply since it was not a situation where both requests were received on the same day. Also, the defendant has sent sufficient documentation under Reg 31.1(b) to support a different specialty that the PTP’s specialty.
–is adjuster obligated to perform utilization review on a treatment RFA from a secondary treating physician? Williams v. Claire’s Store (2012 cal. Wrk. Comp. P.D.LEXIS 497); Espinosa v. WCAB (2014 writ den) (80 CCC 36); DeRosa v. Office Solutions (2015 Cal. Wrk. Comp. P.D. LEXIS 14)(Sweeney, Brass and Dietrich); O’Neal v. Hale Aloha (2015 Cal. Wrk. Comp. P.D. LEXIS 80)(Brass, Caplane and Lowe). Williams and Espinosa seem to say no, but the more recent cases DeRosa and O’Neal seem to say yes.
–Bucio v. County of Merced (2015 Cal. Wrk. Comp. P.D. LEXIS 123)(Brass, Sweeney & Zalewski).UR denied PTP’s request for spinal fusion. The worker had the surgery about 9 months later under other insurance. Panel holds that worker is entitled to TD whether under Labor Code 4600 or by reasonable self-procured treatment under labor Code 4605.
–Banuelos v. Acorn Engineering (2015 Cal. Wrk. Comp. P.D. LEXIS 121)(Caplane Sweeney & Lowe) The worker alleged that a stroke was caused by stress on the job. The PQME found a stress related medical consequence, i.e. the stroke, and the WCJ found it to be industrial. The panel finds that Labor Code 3208.3(b)(1), which requires objective evidence of job stress rather than subjective perception of stress, to be inapplicable. The panel distinguishes physical injuries caused by stress, noting that for such cases the relevant inquiry is not whether the work was objectively stressful but rather the workers’s honest perception of the stress.
–can IMR be waived? Yes, according to Bertrand v. County of Orange (2014 Cal. Wrk. Comp. P.D. LEXIS 342) where stipulations had provided that all future medical disputes would be referred to the AME. The WCAB holds that all RFAs must go through some sort of UR, but IMR can be waived.
–Solis v. Ameron International (2014 Cal. Wrk. Comp. P.D. Lexis 181) At the MSC the applicant had claimed a compensable consequence psyche injury that had not been previously pleaded. panel holds that applicant was not barred by failure to object to the defendant’s DOR. The worker was not claiming a different date of injury but rather injury to an additional body part and defendant was not prejudiced since some of the medical reports mentioned psyche.
-does the WCAB have jurisdiction to determine a medical issue when IMR is untimely under Labor Code 4610.6(d)? Arredondo v. Tri Modal Distribution Services, Inc (2015 Cal. Wrk. Comp. P.D. LEXIS 209) says no. But Saunders v. Loma Linda University Medical Group (2015 Cal. Wrk. Comp. P.D. LEXIS 311) says yes (2-1 decision with Caplane & Sweeney vs. Zalewski in dissent)
–Monsanto v. WCAB (McMillin) (2014 writ den) 79 CCC 730. The WCAB affirmed the WCJ’s order excluding surveillance films from evidence at trial when the defendant disclosed tapes for the first time at the MSC despite multiple prior written demands for any tape
–multiple MPN dispute cases: Arzaga v. Crown Automotive (2014 2-1 panel decision; Sweeney & Caplane with Zalewski dissenting); Ayers v. WCAB (San Diego USD) (2014 writ den) 79 CCC 1334; Tabak v. San Diego Unified School District (2014 Cal. Wrk. Comp. P.D. LEXIS 416)(Brass, Caplane & Lowe); Shawl v. Steve’s Automotive (2015 Cal. Wrk. Comp. P.D. LEXIS 10) (2-1 decision, distinguishing 2007 Babbitt en banc 72 CCC 70, with Lowe dissenting from opinion by Brass & Caplane); Everett v. Santa Clara Valley Transportation Authority (2015 Cal. Wrk. Comp. P.D. LEXIS 100); Pasquel v. The Boeing Company (2015 Cal. Wrk. Comp. P.D. LEXIS 230); Ramirez v. Nino Farms Labor (2015) (Zalewski and Lowe, with Sweeney dissenting); Lescallet v. Wal-Mart (2015) (Caplane and Sweeney with Lowe dissenting). Takeaways from these cases: Where a specialist has been chosen as PTP the applicable MPN distance standard is 15 miles/30 minutes and not 30 miles/60 minutes (Arzaga) & (Lescallett); where the MPN notices and contract are specific, the employer may require that applicant see a doctor at the listed location only (Ayers) & (Tabak); a stipulation to allow a non-MPN doctor to treat may override a right to transfer (Shawl); the workers’ choice of a treater within the MPN is not limited to a reasonable geographic distance (Everett); the WCAB will look at worker and applicant attorney behavior in determining whether defendant refused to provide care (Ramirez).
–Gonzalez v. Consolidated Disposal (2014 Cal. Wrk. Comp. P.D. LEXIS 348)(Sweeney, Brass & Lowe). UR can only be undertaken on issues of medical necessity not on causation issues. If defendant is contesting causation it must make a timely objection under Labor Code 4062 to the PTP findings of industrial causation; here defendant did not do that.
–multiple home health care cases: Castro v. Carson Trailers (2014 Cal Wrk. Comp. P.D. Lexis 402); Ramirez v. Kuehne & Nagel Inc. (2014 Cal. Wrk. Comp. P.D. LEXIS 537); Granados v. Tony Ranch Market (2014 Cal. Wrk. Comp. P. D. LEXIS 650); Inman v. Lowe’s Centers (2014 Cal. Wrk. Comp P.D. LEXIS 653); Miramontes v. Lions Raisins (2015 Cal. Wrk. Comp. P.D. LEXIS 6; Adamson v. Cendant Corp. (2015 Cal. Wrk. Comp. P.D. LEXIS 63); Ferrona v. Warner Brothers (2015 Cal. Wrk. Comp. P.D. LEXIS 220). Takeaways from these cases? Unilateral termination of home healthcare already stipulated to is impermissible (Castro); there must be evidence of a change of condition (Ramirez) & (Miramontes); even with a prescription for HHC, the services must be reasonably required (Granados); UR must be timely (Inman); the HHC prescription can be from an AME and need not be from the PTP (Adamson); the worker need not produce a new prescription for defendant to have liability for HHC (Ferrona).
I’ll be blogging about many of these cases in the future, so stay tuned.
Julius Young
510.835.8870