Utilization Review Case Decided By WCAB

The applicant had an industrial injury on October 22, 2003. The applicant was treated by his treating doctor who referred the applicant to two other doctors for surgical consultation.

These doctors determined that the applicant needed two MRI’s. The request for the MRI’s were served on defendant. The defendant took longer than 14 days to object to the necessity for the MRI’s.

The case proceeded to an expedited hearing. At the hearing the Workers’ compensation Judge (WCJ) indicated that the MRI’s should be provided and excluded the defendant’s utilization review report because it was untimely pursuant to Labor Code section 4610 (g) (1).

Defendants filed a petition for reconsideration. The case was heard by the entire Workers’ Compensation Appeals Board (WCAB) who issued this en banc decision.

The WCAB found that the utilization review time deadlines of section 4610 are mandatory. If the defendant misses these deadlines the defendant is then precluded from using the utilization review process for the medical treatment in question.

If the defendant obtains a utilization review report outside of the time frames the report will not be admissible. In addition the report can not be forwarded to an AME or QME. The WCAB indicated this would be an attempt to get the report in the back door.

However, if the defendant does not meet the time lines of 4610 (g) (1) the defendant can still use the procedure established under Labor Code section 4062 (a). You must still meet the timelines established under section 4062 (a) or this report will not be admissible either. Thus, as protection it may be good form to object if you are not certain your utilization review doctor can issue a report timely.

New Apportionment Law Reviewed In Key Case by WCAB

The applicant had an industrial injury on February 12, 2002. The applicant had a prior injury to the same body part in 1997. The applicant had continuing problems up until the current injury. In fact, the applicant was still receiving treatment on January 31, 2002 for the 1997 injury.

The Mandatory settlement conference was held on November 13, 2003. A trial was held on February 18, 2004. The Workers’ Compensation Judge (WCJ) referred the case to the Disability Evaluation Unit. The case was deemed submitted.

On April 19, 2004 SB 899 was enacted and created new apportionment legislation.

ON April 23, 2004 the WCJ found the applicant had a 34%disability without apportionment. Defendant filed a petition for reconsideration which resulted in this opinion.

The Workers’ Compensation Appeals Board (WCAB) issued an en banc decision that included a concurring and dissenting opinion. They could not reach a unanimous decision on this important issue. This case is going to an appellate court for review.

The WCAB first dealt with what an existing order, decision or award dealt with under Labor Code section 4663. If the new statute applied the decision of the WCJ would have to be rescinded. They held in this case that the case was submitted prior to April 19, 2004.

They further held where there is no existing order, decision, or award, the apportionment provisions of SB 899 apply to all cases irrespective of the date of injury.

The concurring opinion indicated orders of submission were not sufficient. The dissent indicated the majority’s decision was contrary to legislative intent.

New Apportionment Law Reviewed In Key Case

This is a published case.

The applicant had an industrial injury in 1993. The applicant had another industrial injury in 1996. After the second injury, the applicant settled the first injury by Stipulation With Request For Award for 42 3/4 percent permanent disability. This may have been a tactical error by applicant’s attorney.

The second injury went to trial. A Workers’ Compensation Judge (WCJ) ruled the applicant was 100 percent disabled. However, the WCJ apportioned. The WCJ used the subtraction method and subtracted the 42 3/4 percent prior award leaving the applicant with a 57 1/4 percent award for the second injury. Applicant wanted a finding of 100 per cent.

The applicant filed a petition for reconsideration. The Workers’ Compensation Appeals Board (WCAB) agreed with the WCJ and denied the petition. The applicant then filed a Writ and this court reviewed the facts.

The appeals court reviewed Labor Code section 4750. They reviewed the applicable case law regarding section 4750. They determined that in this case there was an Agreed Medical Examiner (AME) who apportioned to the prior disability. Moreover, at the time of the second injury, the applicant was receiving treatment, taking medication, wearing a leg brace, and taking time off work.

The court noted that on April 19 , 2004 the Legislature past a new bill that was a conclusive presumption on apportionment. (SB 899). This was regardless of the date of injury. They indicated that the law states that the prior injury is conclusively presumed to exist at the time of the subsequent injury. They indicated that even if there was not substantial evidence to support apportionment the WCAB would be bound to apportion based on the conclusive presumption. Even though this is a non published case this case is very significant as to how the court will rule.

CIGA Not Responsible For An Insolvent Carriers Delay In Payment Of Benefits

The applicant sustained an admitted injury in 1999. Fremont Insurance assumed responsibility.

The applicant’s primary treating doctor asked for authorization for surgery and submitted the proper documentation to Fremont. Surgery was not timely authorized. Fremont finally authorized surgery three months after the request. Fremont subsequently became insolvent.

The case was tried and a Workers’ Compensation Judge (WCJ) found a penalty on behalf of the insolvent carrier California Insurance Guarantee Association (CIGA).

The penalty was appealed by CIGA. The WCAB issued this decision.

CIGA’s mandate is that it only pays “covered claims”. Insurance Code 1063.1 (c) (1) sets the definition for “covered claims”. Sections 1063.1 (c) 3 through 12 deals with the exceptions. Section 1063.1 C (8) was amended for awards issued on or after January 1, 2004. This section deals with penalties.

The WCAB indicated that the language is clear that “covered claims” do not include an award made pursuant to Labor Code section 5814 or 5815.

Therefore no penalties will apply to CIGA in this case.

It is too early to determine whether a writ will be filed on this case. If one is filed it would seem the same result will come about from the appeals court based on the plain meaning of the statute.

90 Day Denial May Be Rebutted With Reasonable Diligence

The applicant filed a workers’ compensation claim form on

November 27, 2000. A delay later issued on December 21, 2000. This is past the 14 day time limit. On February 26, 2001 the adjusted decided to deny the claim. The applicant received the denial on February 27, 2001. This was 92 days after the claim form was received.

The case was heard by a Workers’ Compensation Judge (WCJ) that first determined that the denial was timely (within 90days). Therefore, Labor Code section 5402, which presumes compensability, did not apply because the denial was timely.

The WCJ found the psychiatric case was not compensable because of a good faith personnel action under Labor Code section 3208.3.

The applicant filed a petition for reconsideration and the WCJ recalculated the 90 days and found the denial untimely. The WCJ, concluded, however, that the medical evidence rebutted the presumption. The Workers’ Compensation Appeals Board (WCAB) agreed with the WCJ and indicated that the medical evidence could not have been reasonably obtained in the 90 days.

The appellate court on review indicated that medical evidence should be obtained within 90 days. The court indicated that the adjusters testimony that the adjuster could not obtain a medical within 90 days was sufficient. The doctors were too busy to set an appointment within the 90 days.

The case is also interesting to read for the determination of what qualifies as a “good faith personnel” action. In this case two-thirds of the applicants psychological injury was caused by “good faith personnel actions”.

Therefore, the applicant did not meet the standard for a psychiatric injury.

Labor Code Section 5412 Defined In Conjunction With Labor Code 5500.5

The applicant sustained a work-related industrial injury to the right upper extremity and carpal tunnel syndrome. The applicant worked at one company continuously. During that time the applicant worked for two different temporary agencies. The first company is covered for insurance purposes by California Insurance Guarantee Association (CIGA). The second company was insured by State Compensation Insurance Fund (SCIF).

The applicant first underwent medical treatment October 3, 1997. The applicant was given wrist splints, medication, and physical therapy. The doctor released the applicant to modified duties. The applicant worked modified duties until August 7, 1998.

An Agreed Medical Examiner (AME) found the applicant suffered a cumulative trauma (ct) during the whole course of employment from April 4 1995 until August 1998.

The defendant who was not the insurer during the last year, raised Labor code section 5412 at trial alleging the ct started October 3, 1997. Therefore, under Labor Code section 5500.5 the ct should run from October 3, 1996 until October 3, 1997.

The Workers’ Compensation Judge (WCJ) found the liability on the last year until August 1998. The Workers’ Compensation Appeals Board (WCAB) agreed with the WCJ on petition for reconsideration.

The appellate court redefined the Hollis line of cases without even citing it. The court indicated that “disability” includes both temporary and permanent disability but not medical treatment alone. However, the supplying of wrist splints may imply that there will be permanent disability and, therefore, an earlier date of injury pursuant to Labor Code section 5412.

This is a significant case which needs to be analyzed.

Police Officer Involved In Going and Coming Rule

This newsletter normally does not cover writ denied cases. This is an exception. The appellate court actually wrote a thorough review of case law in this area which makes the opinion worthy of comment.

The applicant was a police officer. The City had a “Personal Car Program”. An officer is allowed to use a city furnished vehicle off-duty for any normal domestic off -duty use.

The applicant was involved in an accident on his way to work.

The applicant had his children in the car and was not on a direct commute to work. The applicant had prior approval from a supervisor to drive his children to work.

At trial a Workers’ Compensation Judge (WCJ) found the injury industrial. The City filed a Petition For Reconsideration and the Workers’ Compensation Appeals Board (WCAB) agreed with the WCJ that the injury was industrial. A writ was filed.

The appellate court indicated that the “going and coming” rule generally precludes an applicant’s recovery for a local commute.

An exception is when the applicant’s trip involves an incidental benefit to the employer. The conduct may be reasonably related to the fulfillment of the employer’s requirements.

The court also looked at a case where an officer died riding his own personal motorcycle home from work and found it compensable. He was wearing his uniform.

The court analogized and indicated that in this instance the applicant was driving a marked police vehicle through the community and listening to the police radio. This benefitted the city and therefore, was a compensable injury.

Credit For Permanent Disability Advances Allowed

At a mandatory settlement conference the applicant rejected an offer to compromise and release the case. The settlement proposed was for $20,000, less permanent disability advances of $2,442.87.

At a later conference the applicant agreed to a settlement of $24,000. The compromise and release that was prepared for the first conference and rejected by the applicant was used for this settlement. A 4 was written over the 0 in 20,000 in the first settlement document. The permanent disability advance amount was not changed. However, there was language that defendant was entitled to credit for further permanent disability advances.

The permanent disability advances after the second conference were considerably higher and the carrier took credit for them.

The applicant filed an application for penalties and interest. At trial the applicant testified that she signed the settlement under duress. The Workers’ Compensation Judge found no reason to set aside the settlement, but only granted the advances delineated in the settlement.

Defendant filed a petition for reconsideration. The Workers’ Compensation Appeals Board
did not allow the further advances.

The appellate court stated that the settlement was a legal question as opposed to a factual question and resolved by contract principles.

The contract is the result of negotiations. The applicant was aware that she had received additional permanent disability advances. The court followed Escamilla v. WCAB (writ denied) (1995) 60 CCC 45. This stands for the proposition that the norm is to give the employer full credit for permanent disbility advances.

Vocational Rehabilitation Can Be Settled For $10,000

The applicant sustained a specific injury and alleged a cumulative trauma. The parties entered into a Compromise and Release that was approved by the Workers’ Compensation Appeals Board (WCAB). The agreement did not settle vocational rehabilitation.

The parties, thereafter, entered into a stipulation settling vocational rehabilitation. The Rehabilitation unit rejected the stipulation on the ground that you could not settle rehabilitation on an admitted injury.

The parties appealed to the WCAB. The Workers’ Compensation Judge (WCJ) agreed with the rehabilitation unit. They appealed on the grounds that Labor Code section 4646, subdivision (b), indicates that you can settle vocational rehabilitation for a lump sum for up to $10,000. A petition for reconsideration was filed by both parties.

The WCAB agreed with the rehabilitation unit and the WCJ stating that section 4646 only applies to injuries after January 1, 2003.The parties appealed.

The appeals court looked to whether the section was prospective or retroactive. They looked at statutory construction to make the statute reasonable.

They indicated that whether the section would be applied retroactively depended on whether the statute was procedural or substantive. A procedural statute may be applied to pending cases even if the event occurred before the statute took effect. The court decided vocational rehabilitation could be settled in this case.

Another reason this case is important is to analogize the reasoning of the court to the treating doctor’s presumption. The wording of Labor Code section 4062.9 was changed recently. It is the editor’s opinion that the treating doctors presumption no longer applies.

No Presumption For a Correctional Officer And No Finding Of AOE-COE

This non published case is one of the few clear victories for defendants before the WCAB.

The applicant was a correctional officer for a correctional facility from 1991 to 2001. The applicant filed a workers’ compensation claim alleging injury to his cardiovascular and respiratory systems, psyche, hypertension and an aggravation of his diabetes.

The applicant obtained a medical evaluation finding the injury compensable. The defendant obtained a medical that indicated the applicant did not suffer an industrial injury.

After a hearing the Workers’ Compensation Judge (WCJ) determined that there was no statutory presumption for injury and the medical evidence did not establish industrial injury. The Workers’ Compensation Appeals Board (WCAB) upheld the WCJ on Petition For Reconsideration.

As to the presumption issue the appellate court followed the WCAB reasoning. The applicant was not a state employee falling within the presumption, but worked for a city entity. If the legislature wished to include his position within the statute the legislature would have done so.

The court viewed the WCJ’s reasoning as controlling. The applicant must prove a causal connection between his job and his disease. The court indicated that the applicant medical was
not conclusive. The doctor merely states conclusions without stating how the medical condition had a connection to the job. The WCAB has the right to rely on one opinion. In this case it was the defense doctor’s opinion.

The appellate court went on to state there was no duty by the WCAB to further develop the record. To develop the record they intimate that the new medical evidence would have to be unavailable or discoverable at the time of the close of discovery. This was not the case here.

Newsletter Sign up

Workers Compensation Feed

Recent Newsletters