The Workers’ Compensation Appeals Board (WCAB) does not have to reveal the name of the Independent Medical Reviewer

This is an appellate decision

This is a very significant case for workers’ compensation principles.

The applicant had a work related injury that resulted in several surgical procedures. The applicant saw a pain-management specialist who prescribed a pharmaceutical regimen. Five of the prescriptions were approved and four were denied.

The applicant appealed the decision through the Independent Medical Review (IMR) process. IMR organization approved one of the four prescriptions and rejected the other three.

The applicant appealed and a Workers” Compensation Judge (WCJ) reversed the IMR decision and sent it back to the organization for review by a different reviewer.

While it was up for second review the applicant asked the Board to reveal the identity of the first and second reviewer. Before the hearing, the second reviewer issued an opinion.

A hearing was held to reveal the names of the reviewers. The WCJ denied the request to reveal the names based on section 4610.6, subdivision (f). On petition for reconsideration the WCAB agreed with the WCJ and denied the request to reveal the names of the reviewers.

The appellate court reviewed the confidentiality provision of section 4610.6, subdivision (f). The confidentiality section ensures that reviewers are independent and unbiased. This section prevents the Board from revealing the names and does not violate due process.


Court of Appeal rules there is no apportionment for disability resulting from medical treatment

This is a published decision of the court of appeal

This is a very significant case for workers’ compensation principles.

The applicant did many years of clerical work for Costco. The applicant took a leave to undergo carpal tunnel surgery. She filed a claim and this was an admitted injury. Following surgery, she developed chronic regional pain syndrome (CRPS).

The Agreed Medical Examiner (AME) found the applicant permanent and totally disabled. He apportioned 90% industrial and 10% nonindustrial.

The Workers’ Compensation Judge (WCJ) awarded the applicant 90% permanent disability. The applicant filed for reconsideration. The Workers’ Compensation Appeals Board after a remand increased disability but still allowed apportionment. A writ was filed.

The court of appeal dealt with timeliness of appeal and allowed the appeal. The court reviewed sections 4663 and 4664. The court indicated that the issue is whether an employer is liable for both the medical treatment and any disability arising directly from an unsuccessful medical treatment, without apportionment. They reviewed the statutes and Granado and Dueville. Here there was no dispute that the applicant had disabling carpal tunnel. The surgery went badly resulting in CRPS.

They indicated that the employer is thus responsible for the treatment with no apportionment. HB


Court of Appeal indicates that you can apportion to heredity and genetics

This is a published decision of the court of appeal

This is a very significant case for workers’ compensation principles.

The applicant was a police officer. He suffered an admitted cumulative trauma to his neck. He underwent neck surgery. The Qualified Medical Examiner (QME) indicated the applicant had cervical radiculopathy and cervical degenerative disc disease. The QME apportioned disability.

The QME referred to specific publications that indicate causation can be to genomics/genetics/heritable issues in terms on injury. The QME apportioned 49 percent to nonindustrial causation.

The Workers’ Compensation Judge (WCJ) determined that the apportionment was legal to genetic factors. The applicant petitioned for reconsideration. The Workers’ Compensation Appeals Board (WCAB) overruled the WCJ indicating that apportioning to genetics factors opens the door to apportioning to impermissible immutable factors.

The Court of Appeal disagreed in a great review of apportionment law. It indicated Zemke was superseded by Senate Bill 899. It then reviewed multiple cases including Escobedo. It reviewed section 4663. It reviewed what is substantial medical evidence. It indicated that the QME report found cervical radiculopathy and degenerative disc disease. It apportioned 49 percent to heredity, genomics, and other personal history factors. This was legal proper apportionment.


Worker’s Compensation Appeals Board (WCAB) must state evidence relied upon and reasons for its decision to be valid

This is an unpublished decision of the court of appeal

This is a very significant case for workers’ compensation principles.

The applicant alleged an industrial cumulative trauma and specific injury. He claimed he contracted prostrate cancer. A Qualified Medical Examiner (QME) was chosen by the parties. The QME determined that cancer was not related to his employment.

The applicant hired a doctor at his own expense and forwarded the doctors report to the QME to write a supplemental report. The defendant objected and filed for a hearing claiming the applicant violated the discovery process.

A Workers’ Compensation Judge (WCJ) determined the report of the applicant doctor was not admissible but could be reviewed by the QME. The defendant filed a petition for reconsideration. The WCAB treated the petition as one for removal. The WCAB decided the report could not be reviewed by the QME. The applicant then petitioned for reconsideration or removal.

The WCAB denied both removal and reconsideration but failed to address section 4605 of the Labor Code.

The appellate court reviewed and indicated that the WCAB did not state the evidence in its opinion or the reasons for its decision as required in Labor Code section 5908.5.

The WCAB’s failure to give its reasoning in adequate detail was sufficient to annul its decision.


A panel qualified medical examiner is entitled to payment of the evaluation fee if there was no timely objection to a late report

This is a Writ Denied case

This is a very significant case for workers’ compensation principles.

The applicant alleged an industrial cumulative trauma. The parties chose a panel qualified medical examiner in pain management. The doctor issued the report on the 38th day. The applicant objected to the report as untimely. Defendant did not object until later.

A replacement panel doctor was issued but the parties did not seek an evaluation from the replacement. The parties eventually settled the case based on the initial doctor’s reports. The defendants agreed to pay the doctor. After defendants failed to pay the doctor the doctor filed a petition with the Workers’ Compensation Appeals Board (WCAB).

The Workers’ Compensation Judge (WCJ) indicated the defendant was not liable for the payment because the report was untimely under Labor Code section 4062.5.

The WCAB noted that under section 139.2(j)(1) and 4062.5 an initial report must be prepared within 30 days of the evaluation which was not the case here. There was no question the report was late.

The WCAB indicated that the attorneys waived their right to the late reporting by failing to object at the earliest available opportunity. The failure to object at the first opportunity is a waiver of the issue. The only objection that was made was not timely either. An objection has to be made prior to the doctor serving the report. Therefore, the WCAB ruled the doctor had to be paid.


Appellate Court discusses psychiatric injury resulting from sudden and extraordinary employment condition

This is a published decision of the appellate court.

This is a very significant case for workers’ compensation principles.

The applicant was working for his employer for only 74 days when he fell and suffered numerous injuries. He suffered a fractured pelvis and injuries to the neck, right shoulder, right leg and knees. He suffered a sleep disorder and headaches. He had surgery to repair his pelvis and a torn meniscus. He had additional surgery to his right foot and ankle.

He filed for a psychiatric injury. He alleged depression, difficulty sleeping and panic attacks.

The case went to trial and the Workers’ Compensation Judge (WCJ) denied the claim for psychiatric injury. The WCJ indicated the claim was barred by Labor Code section 3208.3 in that the applicant did not work for the employer for 6 months and did not result from a sudden and extraordinary event.

The Workers’ Compensation Appeals Board (WCAB) on petition for reconsideration found it was caused by an extraordinary employment condition.

The appellate court reviewed the statute and relevant cases. They indicated that the slip and fall was an accident that could reasonably be expected to occur. It was not the result of a sudden and extra ordinary event. Therefore, there was no psychiatric injury. The case should be reviewed for the discussion of what constitutes a sudden and extraordinary event.


Court of Appeal case on Independent Medical Review to resolve challenges to Utilization Review

This is a Court of Appeal published case

This is a very significant case for workers’ compensation principles.

The applicant had an admitted injury to her right foot in 1997. The applicant had 3 surgeries on her right foot and developed pain in her left foot. She had to use a wheelchair which caused low back and bilateral-shoulder pain. She became depressed and after a trial a Workers’ Compensation Judge (WCJ) determined she was permanently totally disabled.

The applicant’s physician requested the applicant receive home health care eight hours a day, five days a week. The defendant sent the request to Utilization Review (UR). The request was denied after review by a physician. The applicant eventually requested Independent Medical Review (IMR). IMR determined that the home health care and four medications requested were not necessary.

The applicant appealed the IMR determination as a denial of due process. The appellate court determined that the Workers’ Compensation Appeals Board (WCAB) did not violate the applicant’s state constitutional rights or her federal due process rights.

The case was remanded by the appellate court to the WCAB to determine if the IMR decision was denied without authority under the Medical Treatment Utilization Schedule (MTUS).


Combination of industrial and nonindustrial drugs caused applicant’s death to be work related

This is a published supreme court case

This is a very significant case for workers’ compensation principles.

The applicant suffered neck and back injuries as well as a concussion from a fall that was industrial related. The applicant was prescribed medications industrially and non industrially.

The applicant died from a combination of the drugs. The widow filed for death benefits. The Qualified Medical Examiner (QME) determined the applicant died solely from medications prescribed by his personal physician not his workers’ compensation physician.

In deposition the QME indicated that the personal physician medications may have played a small role in the death.

The Workers’ Compensation Judge (WCJ) ruled the death industrial related. The Workers Compensation Appeals Board (WCAB) agreed with the WCJ. The Court of Appeal reversed indicating there was no substantial evidence.

The Supreme Court reversed the Court of Appeal finding the death industrial related. The court reviewed cause in fact and proximate cause. It indicated the workers’ compensation system is not based upon fault. It then reviewed substantial evidence and the contributing cause factor. The court reviewed numerous cases and statutes. Here there was substantial evidence that the drugs prescribed for the industrial injury contributed to the death. Therefore, the death was industrial.


Cancer presumption applied to firefighter after amendment to Labor Code

This is a published appellate court case

This is a very significant case for workers’ compensation principles.

The applicant was a firefighter with the Department of Defense who developed stomach cancer. He died of stomach cancer in 2007. The widow filed for death benefits in 2009.

An Agreed Medical Examiner (AME) stated that the stomach cancer could have been due to exposures of carcinogens in the workplace. The AME concluded that if the presumption applied, the cancer would be industrially related.

The presumption was extended to the Department of Defense effective January 1, 2009. The sole issue in this case was whether the presumption applied in this case.

The Workers’ Compensation Judge (WCJ) indicated that the applicant failed to meet the burden of proof on industrial causation. The Workers’ Compensation Appeals Board (WCAB) on reconsideration decided that the applicant was not a part of a qualifying fire department since the legislation did not take effect until 2009.

The appellate court indicated that the fact that the death occurred prior to the effective date of the statute is not determinative. When a statute is found to be substantive as opposed to procedural it can have a retroactive effect. So they ruled that the WCAB erred and remanded.


The need of substantial evidence for psychiatric injury in the form of sleep disorder

This is a published appellate court case

This is a very significant case for workers’ compensation principles.

The applicant suffered an admitted injury to his back. The applicant also alleged a psychiatric injury in the form of a sleep disorder. The applicant was evaluated by an Agreed Medical Examiner (AME) in orthopedics. The AME found the applicant permanent and stationary and apportioned 50 percent to non-industrial causation.

The applicant then was evaluated by a rheumatologist who diagnosed a sleep disorder.

The applicant was then referred to a psychologist. The psychologist stated that percentage of causation was greater than the legal threshold of 50 percent. The psychologist deferred on apportionment until the applicant was permanent and stationary from a psychiatric standpoint.

The case went to trial. The Workers’ Compensation Judge (WCJ) found the applicant sustained injury to the back and a sleep disorder. The applicant was permanent and stationary for his back, but temporarily disabled for the sleep disorder. Defendant filed a petition for reconsideration. The Workers’ Compensation Appeals Board (WCAB) agreed with the WCJ.

Defendant filed a writ of review. The appeals court remanded the case back to the WCAB. The court indicated the psychologist’s report was not substantial evidence because there was no final determination on percentage of psychiatric apportionment since the applicant was still TD.


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