Key vs. Workers’ Compensation Appeals Board (Pacific Bell) F045418 69 CCC 1117 (2004)
Court of Appeal, Fifth Appellate District (not to be published in official reports – not citable as authority)
Kim A. Enriquez & Judith Anne Pirkle
Court of Appeals non-published decision finding that the Appeals Board properly apportioned a prior disability award against applicant’s current claim of disability. Applicant received an Award of 42 ¾% in 1993 and in 2003 received an Award of 100%. The Workers’ Compensation Judge subtracted the level of permanent disability from the first injury (42 ¾%) and determined the second injury caused 57 ¼% permanent disability. The Court held, pursuant to § 4664, which provides that “If the applicant has received a prior award of permanent disability, it shall be conclusively presumed that the prior permanent disability exists at the time of any subsequent injury. This presumption is a presumption affecting the burden of proof.” The Court stated that even if the record lacks substantial evidence to support that applicant was actually labor disabled at the time of his second injury, the Workers’ Compensation Appeals Board was bound to apply apportionment of the prior Award.
Green vs. WCAB 70 CCC 294 Court of Appeal, Second Appellate District, March 30, 2005
Kim A. Enriquez & Judith Anne Pirkle
Applicant claimed multiple industrial injuries from 1987 to 2000. In 2003 the WCAB awarded a single penalty and applicant sought a Petition for Writ of Review, claiming separate delays and entitlement to multiple penalties. The Petition was granted and was pending at the time of the passage of SB 899. The Court, after receipt of supplemental briefing, issued an opinion based on the specific language of Labor Code § 5814 (h), which provides “This section shall apply to all injuries, without regard to whether the injury occurs before, on, or after the operative date of this section.” The provisions of Labor Code § 5814 as amended by SB 899 apply to pending claims for penalty regardless of the date of injury.
The Court also noted that multiple penalties were available to injured workers if the evidence supported such a finding.
Comment: The Green decision further ratifies the opinion of Abney vs. Aera Energy and Opinion and Decision After Reconsideration (en banc) issued by the WCAB on December 8, 2004.
Robin Metoyer v. Wilshire West Dental WCAB Panel Decision, December 5, 2005
Kim A. Enriquez & Judith Anne Pirkle
The WCAB found that the applicant is entitled to temporary disability and medical treatment, based upon the opinion of her primary treating physician, whose opinion was obtained outside the defendant’s Medical Provider Network (MPN) because of the lack of a posted notice as required by Labor Code section 3550.
Applicant sustained admitted injuries and was initially referred to a physician within the carrier’s MPN. The applicant retained counsel and was referred to a physician outside the MPN. Applicant testified at Trial that she was not advised that the initial treating physician was in the MPN, nor was she provided with a list of alternate physicians within the MPN. The employer testified that the dental office was being remodeled and the poster with the required Labor Code notices was not replaced when the remodeling was completed. The employer also testified that he was not aware of the carrier’s MPN policies and that he believed that the carrier provided the required notices to the applicant.
The WCAB stated that the failure of the employer to post notice per Labor Code 3550 allowed the applicant to be treated outside the MPN with respect to an injury occurring during the time that there was a failure to post the required notice.
Additionally, the WCAB noted that AD Rule 9767.12 provides for required notices to be given prior to an injury, specifically written notice of a MPN prior to the implementation of an approved MPN, at the time of hire, or when an existing employee transfers into the MPN.
Comment: The carrier should make sure that the employer posts the required notices per Labor Code 3550 and AD Rule 9767.12.
Kenneth Grom vs. Shasta Woods Products; State Compensation Insurance Fund Opinion and Decision after Reconsideration, Case Number RDG 0091839 (12/8/04) 69 CCC 1567 (2004)
Kim A. Enriquez & Judith Anne Pirkle
Opinion and Decision after Reconsideration by the Workers’ Compensation Appeals Board addressing entitlement to medical treatment, including treatment outside of ACOEM guidelines. The WCAB held that applicant’s award for future medical treatment included “medical treatment as is reasonably required to relieve from the effects of his industrial injury, even if such treatment will not cure that injury” (emphasis added). The Court citing authority dating back to the 1920’s stated that, “The words cure and relieve were intended to mean the same as cure or relieve.”
The WCAB pointed out that Labor Code § 4064.5 as amended on April 19, 2004 uses both phrases, “cure and relieve” and “cure or relieve.”
The Board favored an extension of medical treatment where appropriate. The Board stated “medical treatment which is intended only to relieve, but not cure, the effects of an industrial injury is appropriate under § 4600 (citations). This is true in cases of chronic conditions where a cure is not possible, but where relief of symptoms is essential for continued functioning, as well as cases involving the loss of limbs or other body parts where there is a need for relief of symptoms.”
Comment: Continued attacks on the extent of medical treatment can be expected despite the Administrative Director’s adoption of the ACOEM guidelines.
Regents of the University of California vs. WCAB (5/19/05) 70 CCC 897 (2005) WCAB Case Numbers: VNO 0416187, VNO 0420490
Kim A. Enriquez & Judith Anne Pirkle
Court of Appeal decision holding that Utilization Review report was untimely as the report was more than 14 days from the date of request for medical services and that an Agreed Medical Evaluator report had already been obtained in compliance with former section 4062. The Court held that the Agreed Medical Evaluator report also met the requirements of Labor Code § 4062(b) (spinal surgery consult) which the Utilization Review opinion could not do as the Utilization Review is merely a review of medical records and not a physical evaluation. The Court indicated that even if the Utilization Review report had been timely obtained and properly admitted, it could still have been rebutted by the Agreed Medical Evaluator’s opinion under Labor Code § 4062(b) and 4610 (g) (3) (a).
The Court affirmed a well-established opinion that an Agreed Medical Evaluator’s opinion should ordinarily be followed unless there is good reason to find that opinion unpersuasive.
****New Case
Lisa Simmons vs. State of California Department of Mental Health (Metropolitan State Hospital), Legally Uninsured and State Compensation Insurance Fund 70 CCC 866 (2005)
Kim A. Enriquez & Judith Anne Pirkle
Opinion and Decision After Reconsideration (en banc) (June 17, 2005)
WCAB en banc decision involving the admissibility of Utilization Review reports on disputed issues of medical treatment.
The en banc decision held as follows:
1) If a defendant undertakes Utilization Review to determine whether a proposed treatment is medically necessary, and if the Utilization Review physician finds that the treatment is medically necessary, but raises questions as to whether the treatment is industrially-related, the Utilization Review report is admissible in evidence for the limited purpose of establishing:
- a) Utilization Review was undertaken and the dates of the Utilization Review reports;
- b) The Utilization Review physician found the proposed treatment to be medically necessary; and
- c) The Utilization Review process has resulted in a dispute as to whether the industrial injury caused or contributed to the need for treatment.
2) The Utilization Review physician’s report is not admissible for the purpose of determining whether the industrial injury caused or contributed to the need for a particular treatment, i.e., a Utilization Review physician may address only the issue of whether a particular treatment is medically necessary.
3) When a Utilization Review physician finds that a treatment is medically necessary, but questions whether the treatment for that body part is causally related to the injury, the defendant must either:
- a) Authorize the treatment; or
- b) Timely deny authorization based on causation within the deadline set forth in 4610(g)(1);
- c) Timely communicate the denial based on causation to both the treating physician and the applicant within the deadline set forth in 4610(g)(3)(a); and
- d) Timely initiate the AME/QME process within 20 days of receipt of the utilization of the physician’s report if the employee is represented by an attorney, or 30 days if the employee is unrepresented, in accordance with 4062(a), and
4) Although the ACOEM guidelines are presumptively correct on the issues of extent and scope of medical treatment (Labor Code § 4604.5(c)) they are not presumptively correct on the issue of whether a need for medical treatment is causally related to the industrial injury. The Court further stated that while this case involves the issue of whether treatment for an admitted industrially injured body part is causally related to the industrial injury, similar reasoning and principles will apply in the context of cases where injury to one body part is admitted, but injury to another body part is denied. In such cases, a Utilization Review physician’s report will not be admissible on the issue of whether the disputed body part is industrial. If in prescribing treatment for the disputed body part, the treating physician either explicitly or implicitly determines for the first time that the injury to the disputed body part is industrial, then Utilization Review is not appropriate. The defendant must initiate the AME/QME process within the deadlines prescribed in 4062(a).
Comment: Where treatment is not authorized the assumption can be made that a medical dispute has arisen and the necessity to either obtain an AME or QME exists to ensure that substantial medical evidence is presented at an Expedited Hearing on the issue of entitlement to medical treatment.
Terry Martinez vs. California Building Systems; California Insurance Guarantee Association on behalf of Fremont Indemnity 70 CCC 202 (2005)
Kim A. Enriquez & Judith Anne Pirkle
Opinion and Decision After Reconsideration (en banc) FRE 0194847, (2/22/05)
Appeals Board en banc decision holding that the repeal of Labor Code § 4062.9 (Presumption of Treating Physician) applies to all cases, regardless of the date of injury, unless a decision has become final prior to April 19, 2004, meaning that all appellate rights have been exhausted prior to April 19, 2004.
Simi vs. Sav-Max Foods, Inc. and Springfield Insurance Co. 70 CCC 217 (WCAB en banc decision) (2/1/05)
Kim A. Enriquez & Judith Anne Pirkle
The WCAB, in an en banc decision, held that for injuries occurring prior to January 1, 2005, medical/legal evaluations in represented cases are to be obtained following the procedures set forth in Labor Code § 4062 as it appeared before the enactment of SB 899.
The Board found that the newly enacted provisions for obtaining medical/legal evaluations in represented cases under Labor Code § 4062.2 applied only to date of injury on or after 1/1/05 per the plain language of the statute. The WCAB found that the procedures found in Labor Code § 4061 and § 4062 would be considered “ghost statutes” and applicable to fill the gap created by the Legislature for injuries occurring between December 31, 2004.
Comment: The procedure for obtaining a QME Panel from the IMC is to use the IMC form 106 with an accompanying letter explaining that this case falls under the new Labor Code § 4062.2 and what efforts have been made to agree on a doctor. My experience indicates that the IMC is processing the requests for a panel as fast as they can, but there is approximately a 30-day delay.
A request for spinal surgery second opinion physician list is obtained by using DWC form 232.
Honeywell vs. WCAB (Wagner) 70 CCC 97 (2005)
Kim A. Enriquez & Judith Anne Pirkle
California Supreme Court decision holding that Labor Code § 5402 requires the filing of a written Claim Form prior to the commencement of the 90-day presumption of compensability. According to the Supreme Court opinion the statutory scheme required under Labor Code § 5402 is as follows:
1) The employee first bears the burden of notifying the employer of an injury;
2) The employer then bears the burden of informing the worker of his or her rights and providing a Claim Form (DWC-1);
3) Thereafter it is up to the employee to initiate a claim by filling out the DWC-1 and forwarding it to the employer;
4) The employer is then required to promptly investigate the claim and determine whether the claim will be accepted or rejected. Once a Claim Form has been filed with the employer, the claim must be denied within 90 days, otherwise the injury is deemed compensable.
Wilma Diggle v. Sierra Sands Unified School District, WCAB Panel Decision 70 CCC 1480 (2005)
Judith Anne Pirkle & Kim A. Enriquez
En Banc decisions of the WCAB are binding precedent until such time they are reversed at the Court of Appeal, absent a stay. Neither the filing of a Petition for Writ of Review nor the granting of a Writ of Review changes the legal effect of an En Banc decision.
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