CCWC CASE LAW UPDATE Belinda Go v. Sutter Solano Medical Center 83 Cal. Comp. Cases 381 (Jan 5, 2018)

CCWC CASE LAW UPDATE 2018 UR & IMR 1. Belinda Go v. Sutter Solano Medical Center 83 Cal. Comp. Cases 381 (Jan 5, 2018) In Belinda Go v. Sutter Solano which now stands as the Ct. of Appeal and Supreme Court have denied defendant s requests for review. THE HOLDING: In that the UR and IMR statutes are silent on the question of temporary disability indemnity, an employee is not precluded from claiming or receiving temporary disability ( in this c ase post-surgery) even if the disability results from reasonable medical treatment that is self-procured pursuant to section 4605. In this case the applicant self-procured surgery after UR and IMR denied the treatment. The employer contended because the surgery was denied that it had no liability for permanent disability or temporary disability that the surgery caused. The workers comp judge disagreed, taking the surgery into consideration in awarding a period of TD and in formulating the rating based on a post-surgical PQME report. On reconsideration, the WCAB panel agreed. 2. Stevens v Outspoken Enterprise and State Compensation Insurance Fund (May 19, 2017) 2017 Cal. Wrk. Comp. P.D. Lexis 228, WCAB panel decision THE HOLDING Where a portion of the Medical Treatment Utilization Schedule was invalid or unlawful, the adoption of an Independent Medical Review determination based upon that invalid provision is an action without or in excess of the administrative director s action. The 2009 MTUS Chronic Pain Medical Treatment Guideline identifying housekeeping and personal care services as not forms of medical treatment is contrary to long standing law and therefore invalid. Where a provision of the MTUS is found to be invalid the Medical Reviewer must consider the additional factors set forth in Labor Code section 4610.5(c)(2) including expert medical opinion. PROCEDURAL FACTS Frances Stevens suffered an injury in the course of her employment with Outspoken Enterprises, insured by SCIF. Applicant s condition following the injury deteriorated to a point of severe disability. Applicant had significant mobility issues, care issues and was wheelchair bound. Applicant s treating physician submitted a series of Request for Treatment Authorization forms including requests for medications and home health care. SCIF denied the requests following utilization review. Applicant sought Independent Medical Review which upheld the UR denials. Applicant sought reconsideration. The WCAB issued a determination that although it appeared the treatment was appropriate it was powerless to review the medical determination of the IMR. Page 1

Applicant then sought a Petition for Writ of Review challenging the constitutionality of the IMR scheme on several grounds. The Court of Appeal found the system to be constitutional but concluded that the WCAB erred in it narrow interpretation of its ability to review the IMR determination. The matter was remanded back to the WCAB to make a further determination consistent with the Courts instructions regarding the scope of review. The Board now issues its unanimous panel decision following the remand. DISCUSSION The panel noted that the Court of Appeal recognized that the WCAB had the authority to determine if an IMR determination was adopted without authority. The panel concluded that where a provision of the MTUS is contrary to long standing workers compensation law it was adopted without authority. The MTUS must address services that have traditionally been accepted as medical care within the workers compensation system. Citing to Smyers (49 Cal Comp Cases 454), the panel noted housekeeping services unrelated to nursing care were reimbursable as medical treatment. Since the MTUS failed to address this type of care, reliance upon the MTUS to deny the treatment was outside the authority of the administrative director. Where reliance upon the MTUS would result in an invalid determination, the reviewer must consider scientific medical evidence or expert opinion to reach a valid determination. Labor Code section 5307.27 directs the administrative director to develop the treatment schedule that shall address, at a minimum, the frequency, duration, intensity, and appropriateness of all treatment procedures and modalities commonly performed in workers compensation cases. Here the MTUS did not address home health care services as medical despite the fact that such services have been recognized in Smyers as medical care under Labor Code section 4600. The guideline which specifically precludes homemaker services and personal care services from consideration as medical treatment is contrary to established law and, therefore, is invalid. The Board notes that the expert medical evidence is compelling with regard to the need for the type of care requested. The Board felt constrained from actually ordering the care be provided, and instead remanded the matter back to the trial level for further hearing and potentially further development of the record. If the trial judge reverses the determination of the administrative director the matter should be submitted for a new IMR. Note: The WCAB cautions that its determination regarding the invalidity of the MTUS chronic pain provision is limited to the 2009 Guideline and does not apply to cases determined under the revised treatment guidelines for home health care now in effect. However, a question remains whether the current version is consistent with long standing case law. Page 2

3. Zuniga v. Workers Comp. Appeals Board, 83 Cal. Comp. Cases 1 This case involves a petition requesting the WCAB order an IMR organization to disclose the identities of the IMR reviewers to the parties or the WCJ. The appellate court concluded that they were prevented from disclosing the names of the reviewers per Labor Code Section 4610.6(f). The case offers a discussion about the interplay between a claim of due process rights and a violation of those rights, and the plenary powers of the California legislature over the workers compensation system. Cumulative Trauma 4. County of Riverside v. Workers Compensation Appeals Board (Sylves) (Court of Appeal, published) 82 C.C.C. 301 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 Page 3

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 of the date of injury. The date of injury for the cumulative injury case is 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 that the applicant s date Page 4

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 dependence. Labor Code 5500.5 (a) provides that in the event that none o f 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. Page 5

Recission 5. 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. Page 6

Apportionment 6. Hikida v. Workers Compensation Appeals Board (Court of Appeal, published) 82 C.C.C. 679 The applicant was evaluated by an Agreed Medical Evaluator who found the applicant permanently and totally disabled from participating in the labor market. The physician found her permanent total disability was due entirely to the effects of complex regional pain syndrome (CRPS) that she developed as a result of failed carpal tunnel surgery. He further concluded that petitioner s 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 she 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 CRPS that developed after applicant had surgery to treat her industrial carpal tunnel condition, and medical treatment for which the employer is responsible under Labor Code 4600 is not subject to apportionment, notwithstanding the changed law of apportionment by Senate Bill 899 in 2004 (Labor Code 4 663, 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 apportioned 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 an 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 employee s need for the treatment. In the case of Granado (69 Cal.2d 399), the Supreme Court hel d that medical treatment is not apportionable. If medical expenses reasonably necessary to relieve from the industrial injury were apportionable, an 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 compensable. The Court of Appeal went on to state there is no dispute that in this case the disabling carpal tunnel syndrome 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 disabling condition, CRPS, that will never be alleviated. Page 7

California Workers Compensation law relieves the employer of 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 court s review of the law and authorities convinced 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. The 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 compe nsation should cover all claims between the employee and employer arising from work-related injuries, leaving no potential for any independent suit 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 as did the appeals board in upholding 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. Page 8

Employment 7. Marinwood Community Services v. Workers Compensation Appeals Board (Romo) (Court of Appeal, published) 82 C.C.C. 317 Applicant was a volunteer firefighter for Marinwood from 1989 to 1991. Marinwood had a total of seven paid firefighters and 24 volunteer firefighters in its department. These volunteer positions were very competitive as they would lead to paid positions as a firefighter. Marinwood provided workers compensation coverage for its volunteers. Subsequent to applicant s employment with Marinwood as a volunteer he worked for Sonoma County as a volunteer firefighter and became a paid firefighter in the City of Mill Valley from 2006 through trial. While working for Mill Valley the applicant was diagnosed with prostate cancer. Applicant filed claims against all three of the fire departments where he had worked. Only Marinwood contested the application of the cancer presumption. Marinwood contended it was not a regularly organized volunteer fire department within the meaning of Labor Code 3361, and therefore applicant could not claim the status of employee under that section. Defendant argued that the applicant did not fall within Labor Code 3361 and therefore was excluded from employee status of by 3352 (i) of the Labor Code. The WCJ found that applicant was an active volunteer firefighter member of Marinwood within the meaning of Labor Code 3212.1 and 3361 and that he was entitled to the extension of the presumption under 3212.1 since he was within 120 months of the last date actually worked in the specified capacity. The petition for reconsideration was denied. The Court of Appeal held that the language volunteer fire department is ambiguous in regard to whether it extends to a department comprised predominantly, but not exclusively, of volunteers. The WCAB s interpretation of Labor Code 3361 is reasonable, and the court gave it great weight. The WCAB s interpretation is consistent with the purpose of the statutory scheme and the directive of Labor Code 3202. The Court of Appeal also ruled that the WCAB s determination that the extension of the cancer presumption ran from the date applicant last worked as a firefighter for any agency was also based on a reasonable interpretation of the relevant statutes. Page 9

Res Judicata 8. Ly v. County of Fresno (Court of Appeal, published) 82 C.C.C. 1138 DEPUBLISHED Plaintiffs worked for the County as correctional officers who filed complaints with the DFEH for discrimination and harassment based on race, ethnicity and notional origin. After being issued a right to sue letter they each filed complaints in 2010 alleging adverse employment actions due to discrimination. The three employees also filed workers compensation claims. After trial all three workers compensation claims were dismissed, finding that all were a result of good faith personnel actions. The workers compensation cases were heard and completed prior to the litigation of the FEHA action. In 2015, the county filed a motion for summary judgement as to each plaintiff arguing that all of the claims were now barred under the doctrine of res judicata and collateral estoppel, as these claims were fully litigated at the WCAB proceedings. The trial court granted the motions, finding that the plaintiffs were barred from litigating the FEHA claims as a result of collateral estoppel since they were given an opportunity to present evidence and call witnesses at the WCAB hearing and that the issues litigated were identical. Plaintiffs filed an appeal with the appellate court. In its published opinion, the appellate court noted that normally workers compensation is the exclusive remedy of an employee injured on the job, however racial discrimination is not a normal incident of employment and a claim for damages under the FEHA for racial or national origin discrimination is not barred by the exclusive remedy provision of the workers compensation act. An employee who makes these claims has a choice of remedies. Here, plaintiff elected to pursue both. The workers compensation claims were resolved first in the county s favor. The question is whether the workers compensation decisions have a preclusive effect on the FEHA action. According to the court, res judicata or claim preclusion prevents relitigation of the same cause of action in a second suit between the same parties. Claim preclusion applies if 1) the decision in the former proceeding is final on the merits; 2) the present proceeding is on the same cause of action as the former proceeding; and 3) the parties in both the former and present proceedings are the same. When a plaintiff has two mutually exclusive remedies for the enforcement of a claim, and a judgement in the first action is rendered on the merits of the case, the plaintiff cannot proceed to judgment in the second action. Plaintiffs argued that claim preclusion does not apply since the two proceedings do not involve the same cause of action. The court explained that claim preclusion is based on the primary right theory. A cause of action is comprised of a primary right of the plaintiff corresponding with a primary duty of the defendant, and a wrongful act by the defendant constituting a breach of that duty. A plaintiff has the right to be free from the particular injury suffered. A violation of that right gives rise to a single cause of action. Even though there might be multiple legal theories upon which recovery might be sought, one injury gives rise to only one claim for relief. The court then went on to determine if plaintiffs workers compensation and FEHA claims alleged violation of the same or different primary rights. They found that the FEHA action did Page 10

not allege any injury that was not alleged in the workers compensation cases. They determined that in the two forums plaintiffs sought the vindication of one primary right: the right to work in an environment free of discrimination, harassment and retaliation. The court found that plaintiffs had one primary right, with two alternate forums available to redress the injury. Plaintiffs proceeded first with their workers compensation remedy, even though the standard for recovery under FEHA may be broader. When two tribunals have jurisdiction and neither party objects to the jurisdiction, then the first final judgement from one of the tribunals becomes conclusive and renders the same issue res judicata in the other court. Once they elected to pursue that remedy to a final judgment at the WCAB that became the exclusive forum to recover for their injuries. The judgement was affirmed. Dismissal 9. Staudt v. UCLA (BPD) 82 C.C.C. 1441 Applicant sustained a CT through 2001 to multiple body parts. Her case was on the court s calendar between 2016 and 2017 six different times. A NOI to dismiss applicant s case was issued on 2/9/17 since applicant failed to personally appear at these hearings and because her attorney had not had contact with her. Applicant s attorney filed an objection; however, the order dismissing the case issued on 5/24/17. Applicant filed a petition for reconsideration. In the opinion after reconsideration, WCAB cited Section 5700, which states that either party may be present at any 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, lien conference, or priority conference at a district office before the appeals board. The WCAB noted that if defendant requires applicant s testimony, they could do so by subpoena or stipulate to applicant s appearance. If applicant fails to appear, defendant may request an order of contempt and/or sanctions in addition to an order compelling applicant to appear. There was nothing in the record indicating that defendant had compelled applicant s appearance. The WCAB stated that there is always a preference that matters be heard on their merits and if after the applicant is compelled to appear and still fails to do so the WCJ could proceed to trial on the merits even without applicant present. 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. The WCAB rescinded the judge s order. Page 11

Credit 10. Washington v. Department of Social Services (BPD) 2017 Cal.Wrk. Comp. P.D. LEXIS 429 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 $16,879.75, which they had not previously known. They indicated that this brought the total PDAs to $19,222.75, and that there was no money for attorney fees and 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 that they had PDAs of $2343, 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 rules for interpretation of contracts, with paramount consideration been 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 it was meant to refer solely to the $2343 in PDAs that 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 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 had been advanced 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 the PDAs in the case were $2343. Page 12

The WCAB found there was strong evidence that at the time the stipulated award was being negotiated, 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 $2343 leaving an award to the applicant of 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 could also be subtracted from the award. 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 did not contest that no one was considering the possibility there were other outstanding PDAs other than the $2343, 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 was that this was the bargain that 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 was 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 it 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 was gaining a windfall from the stipulated award, that windfall was bargained for and agreed to. The apparent intent of the parties (which defendants do not even appear to contest)convinced the board that the phrase less credit for such payments previously made referred only to the $2343 in PDAs the parties had identified. The appeals board finally observed that time and energy could have been saved in this matter had the parties simply specified the exact amount of PDAs to be deducted. The appeals board went on to note that if in the future defendants were concerned about the possibility that it may discover it had paid advances that it somehow was not aware of at the time it resolved the claims, its remedy was clear and simple: simply account for that possibility in the settlement or stipulated award. The petition for reconsideration was denied. Page 13

Employment (Independent Contractor) 11. Dynamex Operations West Inc. v. Superior Court of Los Angeles County (Lee) The California Supreme Court weighed in on a three part test to determine whether a person is an employee of an independent contractor: Is free from control and direction in the performance of work? Is performing work outside the scope of the hiring entity s business? Is customarily engaged in an independently established trade? Medical Treatment Stipulations re: FMT/Jurisdiction to Enforce 12. Federal Express Corporation v. WCAB (Payne) (2017) 82 CCC 1014; 2017 Cal. Wrk. Comp. LEXIS 91 (writ denied) THE HOLDING A Stipulation by the parties to refer medical treatment disputes to an Agreed Medical Evaluator is not nullified by the statutory changes implementing utilization review/independent medical review, as such an agreement is consistent with the underlying purpose of UR/IMR by obviating the need to litigate future treatment disputes through the more protracted independent medical review and appeal process. SUMMARY OR THE FACTS Applicant Janice Payne was a handler/sorter for Federal Express when she suffered admitted industrial injuries on February 25, 1997 to her back, wrists, knees and feet. On May 25, 2003, she settled her case by way of Compromise and Release releasing defendant s liability for all issues other than the right to future medical treatment for her orthopedic injuries. The Compromise and Release terms provided that the AME Dr. Peter Mandel would be the ultimate medial arbiter regarding the medical necessity for claimed industrial treatment. It also specifically authorized currently pending prescriptions, shockwave treatments, and all appropriate weight loss treatment, subject to the opinion of Dr. Mandel on the parameters of weight loss necessary on an industrial basis. In 2015 a dispute arose when applicant requested a re-evaluation with Dr. Mandel to determine a number of UR denied medical treatment requests, including a request for an electric scooter, a weight loss program, and a right hip injection. Defendant refused to set up a re-evaluation with Dr. Mandel to determine these disputes on the basis that medical disputes were to be covered by the UR and IMR process., Defendant further alleged that such process usurped any prior agreement to refer applicant back to the AME, and that the Court lacked jurisdiction of such a dispute. Page 14

Applicant filed for an expedited hearing, at which time defendant authorized the request for a weight loss program. Thereafter, a Request for Authorization of a renewal of the weight loss prescription was issued, indicating applicant needed an additional six months of the program in order to enable a left knee replacement. Defendant denied this extension request after it was denied by UR and IMR. Applicant again filed for expedited hearing. Defendant again asserted that the court had no jurisdiction to determine such medical dispute and that the UR/IMR process superseded any prior agreement to return applicant to Dr. Mandel. The matter was continued and in the interim, the defendant authorized a re-evaluation with Dr. Mandel with the issue of the scope of his evaluation deferred. The case proceeded to expedited trial in January 2017 at which time the trial Judge found that he lacked jurisdiction to determine the medical dispute. The WCJ noted that while he may have originally ruled in favor of applicant and followed the panel decision in Bertrand v. County of Orange (2014) 2014 Cal. Wrk. Comp. Cases P.D. LEXIS 342 (writ denied) (finding that the parties can contractually agree to use an AME for future medical disputes) he determined that he lacked jurisdiction to do so because the applicant s attorney nullified the stipulation to return to Dr. Mandel for medical disputes by filing an IMR appeal of the UR denial of the weight loss program. Applicant sought reconsideration of this Findings and Order. DISCUSSION In a unanimous decision, a board panel reversed the WCJ s decision and found that the Court did in fact have jurisdiction to enforce the terms of the parties contractual agreement pertaining to the resolution of future disputes involving applicant. Citing to Labor Code Sections 5300 and 5301 the WCAB stated that the Appeals Board was the exclusive forum to try and determine all disputes concerning the recovery of compensation; concerning any right or liability incidental thereto or arising out of; and to enforce any liability for such compensation imposed on an employer or its insurer (WCAB emphasis added). It was noted that the parties had entered into a valid C & R in 2003 which contained a binding stipulation to abide by Dr. Mandel s opinion on medical treatment issues, specifically on the issue of weight loss. The WCAB believed that the C&R constituted an enforceable agreement that could not be nullified by statutory law changes enacting UR, citing to County of Sacramento v. WCAB (Weatherall) (2000) 77 Cal. App. 4 th 1114 [65 CCC 1]. They further agreed that the reasoning and holding of the Bertrand panel decision applied. They noted that per Bertrand, a medical dispute arises after a particular treatment has been denied by UR, and that after such a denial is issued, the parties would be permitted to submit a treatment dispute to an AME for resolution and could waive the IMR process. Further, the WCAB disagreed with the WCJ s finding that the applicant waived her right to rely on the Stipulation to submit medical treatment disputes to the AME when she filed her IMR appeal of the UR denial. The court stated that not only did applicant have the right to pursue alternative theories and/or remedies, but that her attorney properly pursued IMR in an abundance of caution and found the attorney s actions proper and consistent with the duties owed to the client under the California Rules of Professional Conduct. Page 15

Finally, the Court disagreed with defendant s contention that the Stevens case (Stevens v. WCAB (2015) 241 Cal. App. 4 th 1074) implicitly held that a contractual agreement, like the one in issue, is nullified by the subsequent statutory enactment of the IMR process. It noted that the legislative enactments were intended to streamline the medical treatment dispute process, control costs, and insure that medical professionals would ultimately determine the necessity of medical treatment requests. The parties agreement to place the resolution of such disputes with an AME serves the same important goals since it obviates the need to litigate future treatment disputes through the more protracted IMR review and appeal processes, and places the resolution of such disputes in the capable hands of a medical expert, who they assume is selected for his expertise and neutrality. The case was remanded back to the trial judge to determine the substantiality of the expert opinions of AME Mandel as to the disputed treatment. Defendant filed a Petition for Writ of Review, which was ordered denied. TTD and 5 Year Statute of Limitation 13. County of San Diego v. Workers Comp. Appeals Bd., 21 Cal. App. 5 th 1 (March 6, 2018) HOLDINGS: Because Lab. Code, 4656, subd. (c)(2), imposed a five-year time limitation on temporary disability awards, a worker could not be awarded temporary disability benefits for periods of disability occurring more than five years after the injury Writ has been filed with the California Supreme Court. Vocational Testimony/Total Permanent Disability 14. CompWest Insurance Company v WCAB (Gonzales) (6/23/2017) 82 Cal Comp Cases 897 THE HOLDING The WCAB determination supporting a finding of total permanent disability is based upon substantial evidence where it is based upon the combination of applicant s testimony, medical evidence and vocational evidence which included a determination regarding applicant s inability to benefit from vocational rehabilitation, consistent with the requirements of Contra Costa County v WCAB (Dahl) even where none of the medical evidence standing alone support a finding of total and permanent disability. SUMMARY OF THE FACTS Applicant suffered a catastrophic injury on 11/4/2008 while working in the course of his employment as a die setter/punch press operator. He suffered an amputation of his right arm below the elbow as well as injury to his left shoulder and psyche. The matter went to trial. At trial medical reports were offered into evidence along with a vocational expert reports on behalf of the employee and the employer. After trial the DEU issued a rating of the medical reports Page 16

resulting in 92% permanent disability. However, the judge relying upon the applicant s credible testimony, the vocational reports and the medical evidence found the applicant totally disabled. Defendant sought reconsideration arguing that it was error for the WCJ to rely upon the applicant s vocational evaluator to find total disability. The WCAB rejected the argument noting that defendant s own expert concluded that applicant s expected remaining work life was limited to 1.1 years as of 1/20/15 demonstrating that applicant was unable to benefit from vocational rehabilitation. The Court in denying review, allowed to stand the WCAB s determination that the entire record supported the conclusion that the injured worker was not able to benefit from vocational rehabilitation or re-enter the work force since his remaining anticipated work life had been exhausted. The fact that the medical record only supported a finding of 92% permanent disability did not preclude a finding based upon the totality of the evidence, including the defense vocational expert, that applicant was totally removed from the labor market, unable to benefit from vocational rehabilitation and therefore entitled to a total permanent disability award. Psychiatric Injury: Sudden and Extraordinary Event 15. SCIF vs. WCAB (Guzman) 83 CCC 185 (January 30, 2018) Applicant was injured when a compactor fell on top of him. The issue presented was whether or not Applicant met his burden of proof that the injury was the result of a sudden and extraordinary employment condition per Labor Code Section 3208.3(d). Specifically, the court emphasized that Applicant had to prove that his psychiatric injury did not derive from the effects of a routine physical injury and was not the result of the routine type of event that all employees who work for the same employer may experience or expect. In this case, the court was not persuaded that when operating a compactor on a slope when it hits a rock, rises in the air, caused the operator to fall, and hits the operator, that such an event was uncommon, unusual and unexpected. Therefore, the court concluded that in this case Applicant failed to meet this burden. Page 17