Genlyte Group; St. Paul Travelers v. WCAB (Zavala) (2008) Court of Appeal, 2nd Appellate District, Division 7, No. B198100
Aaron S. Turchin
Zavala, an assembler for Genlyte, sustained injuries to her shoulders, upper extremities and right hand at work on December 5, 2001 (a specific injury) and from August 2, 2002 through March 14, 2003 (cumulative injury). At the time of Zavala’s injuries St. Paul Travelers was Genlyte’s workers’ compensation insurance carrier.
Zavala obtained medical treatment from orthopedic surgeon, Hamid Rahman, M.D., who diagnosed bilateral upper extremity injuries. On October 28, 2003 Dr. Rahman performed right shoulder surgery. A similar surgery was performed on Zavala’s left shoulder by Dr. Rahman on April 27, 2004.
In a May 28, 2004 report, Dr. Rahman requested authorization for bilateral carpal tunnel release and ulnar nerve transposition. In his September 14, 2004 report Dr. Rahman stated, “It is my opinion that permanent disability exists with respect to the patient’s bilateral shoulder and bilateral upper extremity injuries, however, I will further determine the extent of permanent disability after further evaluations of the patient’s condition” ‑‑ a finding Dr. Rahman repeated in substantially identical form in an orthopedic reevaluation report dated October 13, 2004, a post-operative evaluation dated October 27, 2004 and a post-operative orthopedic reevaluation dated November 10, 2004. In his 2004 reports Dr. Rahman also indicated Zavala “will more than likely require vocational rehabilitation, but this will be determined after further evaluation.”
In his report dated October 19, 2005 Dr. Rahman indicated Zavala was permanent and stationary with work restrictions. Dr. Rahman also reported permanent impairment for the shoulders and upper extremities under the schedule that went into effect on January 1, 2005, which converted to 30 percent whole person impairment under the applicable charts.
Genlyte obtained a qualified medical-legal evaluation from orthopedic surgeon Brent W. Miller, M.D. In a report dated April 12, 2004 Dr. Miller stated, “Certainly at this point, the patient is not permanent and stationary [and] . . . remains temporarily totally disabled pending her additional surgery. The patient will be a qualified injured worker, and will not return to assembly activity as this will only serve to aggravate and further accelerate her upper extremity overuse syndrome.” Dr. Miller further reported, “At the present time, the presence of permanent impairment is expected, but rating is uncertain.”
In a report dated August 22, 2005, five and one-half months after Zavala’s most recent operation, Dr. Miller indicated Zavala was permanent and stationary. Dr. Miller reported permanent disability for the shoulders and upper extremities under the former schedule and 2 percent whole person impairment under the new, January 1, 2005 schedule.
Zavala and Genlyte proceeded to trial and the WCJ determined the industrial injuries resulted in 38 percent permanent disability under the former schedule and awarded $30,940 in indemnity.
Genlyte petitioned the WCAB for reconsideration, contending, as it had at trial, the new January 1, 2005 schedule should have been used to rate Zavala’s permanent disability because Dr. Miller’s comprehensive medical-legal report indicated Zavala was not permanent and stationary and, although permanent disability was expected, it did not currently exist as expressly required for Zavala to fall within this exception in section 4660(d).
The WCAB adopted the WCJ’s decision and report and denied Genlyte reconsideration on February 27, 2007. Genlyte and St. Paul Travelers petitioned for writ of review.
Genlyte’s position that “permanent and stationary” and “permanent disability” were interchangeable terms in the Labor Code was not well received by the Court. According to the Court, “[t]he Legislature has repeatedly demonstrated its ability to specify “permanent and stationary status” when that is what it intends. (See, e.g., §§ 4658, subd. (d)(2) [providing for increase or decrease of permanent disability indemnity depending on whether employer offers injured employee regular, modified or alternative work “within 60 days of a disability becoming permanent and stationary”]; 4061, subd. (a)(2) [specifying required notice upon last payment of temporary disability indemnity when amount of permanent disability indemnity payable cannot be determined “because the employee’s medical condition is not yet permanent and stationary”].)”
The Court’s ultimate ruling was that “in an appropriate case a physician is not precluded from reporting that permanent disability exists prior to the time the injured worker has reached permanent and stationary status or the extent of ratable permanent disability is known.”
Dianne Benson v. The Permanente Medical Group, PSI;Athens Administrators OAK 297895; OAK 326228 (WCAB En Banc 12/13/07)
Jo Anne Morales
Wilkinson who? In a watershed decision, the WCAB has decided that the principle of awarding a combined permanent disability based upon two successive industrial injuries becoming permanent and stationary at the same time, is no longer the standard.
Dianne Benson was found to have a 62% permanent disability based upon the combined effects of a specific injury and a cumulative trauma injury. The total award was 62%. The AME in the case, apportioned 50% of the overall permanent disability to a specific injury, and 50% to a cumulative trauma.
The En Banc opinion gives great deference to the adoption of Labor Code Section 4663 and the repeal of Section 4750. This, according to the court, was a major shift in the rules of apportionment. A new “causation regime” was created which requires all potential causes of permanent disability to be separately addressed and considered when apportioning disability pursuant to Labor Code Section 4663. Thus, separate permanent disability awards are to be granted in the case of successive industrial injuries.
The court held that each separate injury requires a separate discussion by the medical expert in order to determine the causative sources of disability. There will be instances where an expert cannot parcel out with reasonable medical probability the approximate percentages to which each successive industrial injury contributes to the overall permanent disability.
In Ms. Benson’s case, her award of 62% permanent disability was worth $67,016.25. After reconsideration, she was awarded two separate awards of 31%, each worth $24,605.00, for a total award of $49,210.00. This represents a roughly 23% reduction in the value of her award.
We believe this decision will have a chilling effect on the filing of cumulative trauma claims be applicants. However, for the aggressive defendant, it will provide legal basis for filing a cumulative trauma claim where reasonable medical basis exists.
Daniel Vera v. Workers' Compensation Appeals Board
Robert B. Stake
Vera concludes that a report cannot “indicat[e] the existence of permanent disability” within the meaning of LC 4660(d) unless: (1) the employee is P&S at the time the report issues; and (2) the employee has ratable disability at the time the report issues. This is now the first published case to specifically impose these limitations on the existence of PD exception in section 4660(d).
Vera sustained a 3/14/03 injury to his neck, back and right shoulder. On 4/26/04 (i.e., seven days after SB 899), the treating physician issued a report stating:
“Mr. Vera’s condition is not permanent and stationary at this time, [however,] it is my opinion that Mr. Vera does currently have the existence of permanent disability. Based on this patient’s condition and the treatment that [he has] undergone, on a preliminary basis it is this examiner’s opinion that [his] permanent partial disability would be consistent with: [¶] Lumbar Spine: No heavy lifting, repetitive bending and stooping. [¶] Right Shoulder: No heavy lifting, no repetitive over shoulder work activity and no pushing/pulling of heavy weighted objects. [¶] At the time that I examine Mr. Vera for permanent and stationary status, I will subsequently render a Primary Treating Physician’s Permanent and Stationary Report in the near future.”
The WCJ (Judge Ellison) found that this report satisfied the “report by a treating physician indicating the existence of permanent disability” exception of LC 4660(d) and, therefore, applied the old PD Schedule. On recon, a split WCAB panel (Commissioners Cuneo and Miller, with Commissioner Rabine dissenting) found that the new PD Schedule applied.
The panel majority concluded that the 4/26/04 report “is not substantial evidence as to the existence of permanent disability in light of the report itself, subsequent reports, and subsequent treatment, and, therefore, is insufficient to bring this case under the old schedule.” The majority concluded that “having permanent disability ‘on a preliminary basis’, is not the same as ‘the existence of permanent disability’ ” under LC 4660(d). The majority also noted that, in a 6/04 report, the treating physician stated that Vera “remains TTD” and that Vera underwent surgery for his shoulder in 8/04. The majority stated that “[a] disability cannot be both permanent and temporary at the same time,” and that “[a] medical opinion that is internally inconsistent is not substantial evidence, and therefore, cannot be relied upon to support a decision.”
The Court of Appeal then affirmed the determination that the new PD Schedule applies on the basis that Vera was not P&S at the time the 4/26/04 report issued.
Bruce Knight v. UPS (October 10, 2006) 71 Cal. Comp. Cas 1423 (en banc).
Eleen Y. Vallejo
Applicant, a UPS delivery driver, was injured when he fell on a wet driveway. UPS, insured by Liberty Mutual, referred him to a U.S. HealthWorks clinic for examination and treatment. X-rays were taken and he was given medication. He was released to light duty for two days and then to full duty. However, his elbow and shoulder symptoms worsened and he returned to U.S. HealthWorks, which referred him to Dr. Anthony Zoppi for a consultation.
Dr. Zoppi wrote an April 26, 2005 report in which he provided a summary of his “'examination, findings, diagnosis and treatment recommendations’ following his ‘initial orthopedic evaluation’ conducted that date ‘at the request of the treating physician’ as authorized by Liberty.” Dr. Zoppi apparently sent the report to applicant’s “treating physician” and to HealthWorks but no evidence indicated it was sent to applicant.
Defendant presented no evidence that either U.S. HealthWorks or Dr. Zoppi was part of an MPN, or that applicant was being provided medical treatment through an MPN. No evidence suggested that applicant was notified that an MPN physician had been designated as his primary treating physician or that he was notified of his right to choose his primary treating physician within the MPN after the first visit. Defendant presented no evidence of any notice to him of his right to obtain additional opinions regarding any MPN diagnosis or treatment plan.
Prior to attending his visit with Dr. Zoppi, applicant had consulted an attorney. On April 22, 2005, the attorney wrote a letter advising Liberty that applicant was designating the Robert Hunt, M.D. as his primary treating physician. Dr. Hunt contacted Liberty to confirm insurance coverage but apparently was told he would not be paid for any services he provided because he was not in Liberty's MPN.
Following the April 22 letter, applicant made numerous requests, through his doctor and his attorney, to obtain information regarding physicians participating in Liberty’s MPN. Having no success obtaining a list of MPN providers, the attorney faxed a June 9, 2005 letter to Mr. Quesada at Liberty advising him: ''Pursuant to Labor Code, sections 4600 and 4603.3 (sic) and Section 9783 Of the Rules and Regulations'' his client was selecting his treating physician to be Jacob Rabinovich, M.D.
On June 14, 2005, Liberty sent applicant a letter telling him, among other things, that Dr. Hunt was not an MPN provider. This letter constituted the first evidence of Liberty notifying applicant in writing of the existence of an MPN. The letter did not explain where and how applicant was to obtain medical treatment, whether treatment was initiated in the MPN by the employer's referral of applicant to U.S. HealthWorks, or by its referral of applicant to Dr. Zoppi. It did not identify any MPN physician that had been designated as the primary treating physician. It did not notify applicant of his right to change the primary treating physician and choose a new primary treating physician within the MPN. It did not notify him of his right to obtain second and third medical opinions within the MPN or of his right to obtain review by an independent evaluator. It did not transmit a list of MPN physicians notwithstanding the numerous requests for the list by applicant's attorney.
Applicant’s attorney sent a letter stating that applicant was seeking treatment under section 4600 because referral for medical treatment had been refused and/or neglected. Applicant continued to see Dr. Rabinovich.
Liberty sent letters to applicant, Dr. Hunt, and Dr. Rabinovich regarding their non-participation in the Liberty MPN. However, Liberty apparently never produced a list of MPN participating physicians.
On October 7, 2005, applicant filed a Declaration of Readiness to Proceed to Expedited Hearing on the issues of his entitlement to reasonable medical treatment and temporary disability indemnity. Defendant admitted specific injury to applicant's right shoulder, right elbow, right wrist and right upper extremity, and admitted a need for medical treatment. However, defendant denied liability for all treatment self-procured by applicant outside the MPN.
At the hearing on November 29, 2005, the parties’ correspondence was received into evidence, as was applicant's testimony that he never received notice of his requirement to belong to an MPN at any time. On December 9, 2005, the judge issued a decision finding that defendant had waived its right to require MPN treatment, and that it was estopped to deny coverage of self-procured medical treatment. Defendant petitioned for reconsideration. The WCAB, en banc, affirmed the judge’s decision.
The WCAB determined that by failing to provide applicant with notice of his rights under the MPN, defendant neglected or refused to provide reasonable medical care. The WCAB noted that under section 5705, the employer had the burden of proof on the issue of notice of MPN rights. The WCAB summarized the state of the evidence as follows:
Applicant testified that he never received written notice about the MPN from defendant and there is no such written notice in evidence. This is contrary to the requirement that an employee be notified ''in writing about the use'' of the MPN prior to its implementation and at the time of injury. (Cal. Code Regs., tit. 8, § 9767.12(a) .) Moreover, applicant was never notified if treatment had or had not been initiated in the MPN. He was never notified that an MPN physician had or had not been designated as primary treating physician. He was never provided notice of his right to be treated by an MPN physician of his choice after the first visit as required by section 4616.3(b). He was never notified of his right under section 4613(c) to dispute an MPN diagnosis and to obtain second and third opinions. The only evidence of notice regarding the ''method'' for accessing the list of MPN physicians as required by section 4613(b) are the uncertain and confusing references in the June 14, 2005 letter. Despite the June 6, 2005 letter from applicant's attorney notifying Liberty that applicant was without medical care, Liberty provided no guidance on how he was supposed to obtain medical treatment.
The WCAB found that the evidence compelled the conclusion that defendant neglected and refused to provide reasonable medical treatment by failing to provide applicant with required notice of his rights under the MPN. Because defendant neglected or refused to provide reasonable medical treatment, applicant was entitled to procure his own reasonable treatment and defendant was liable that treatment.
Six Flags, Inc. v. WCAB (November 27, 2006) 2006 Cal. App. LEXIS 1855
Eleen Y. Vallejo
Bantita Rackchamroon, a ride operator, was killed in the course of her employment at a Six Flags amusement park. She died with no dependents. The administrator of her estate filed an application for adjudication of a workers’ compensation death benefit claim. The estate sought compensation under Labor Code section 4702(a)(6)(B), which provides that an employer shall pay $250,000 to the dependents or the estate of the deceased employee.
In the proceeding, Pacific Employers Insurance (PEI), Six Flags’ insurer, argued that section 4702(a)(6)(B) was unconstitutional. However, the workers’ compensation judge awarded the estate $250,000 and ordered PEI to pay $125,000 to the DIR’s Death Without Dependents Unit. PEI’s petition for reconsideration was denied, and it filed a petition for review with the court of appeal.
The petition was granted in part and denied in part. The court of appeal overturned the award of $250,000 to the estate, finding that section 4702(a)(6)(B) was unconstitutional. Specifically, the court held that the provision violated Article XIV, Section 4, which provides that the legislature may take action necessary to compensate workers and their dependents. The court stated that this language from the constitution, read alone, provided for benefits only to injured workers and their dependents. Although a constitutional amendment allowed payment to the state, no such amendment allowed payment to a deceased workers’ estate.
Domino’s Pizza v. WCAB (October 23, 2006) 71 CCC 1387
Eleen Y. Vallejo
Don Kerr sought benefits for an injury sustained in the course of his employment with Domino’s. Applicant lived in Lompoc, and the shop where he was injured was in Lompoc. His attorney’s principal office was in Santa Maria. Lompoc and Santa Maria are in Santa Barbara County. Domino’s insurer was located in Oxnard, which is in Ventura County. Kerr filed his application in San Luis Obispo County. He chose venue at the Grover Beach WCAB.
SCIF filed a formal petition for removal to transfer to the Goleta WCAB, objecting to the selection of the venue site based on Labor Code section 5501.5, which provides in pertinent part:
(a) The application for adjudication of claim shall be filed in any of the following locations:
(1) In the county where the injured employee or dependent of a deceased employee resides on the date of filing.
(2) In the county where the injury allegedly occurred, or, in cumulative trauma and industrial disease claims, where the last alleged injurious exposure occurred.
(3) In the county where the employee's attorney maintains his or her principal place of business, if the employee is represented by an attorney.
The workers’ compensation judge denied the motion, stating that SCIF needed to show good cause for the transfer, citing section 5501.6. The judge concluded that Grover Beach was the “most convenient” office for all of the parties. The WCAB adopted the judge’s report, finding that it had discretion to determine whether a party had shown good cause for removal under section 5501.6. The WCAB also concluded that issues of judicial economy, convenience, and practicality mandated the result. The court of appeal disagreed.
The court of appeal found that the WCAB erred in considering the “good cause” requirement of section 5501.6 because no party raised the issue in the underlying proceeding. SCIF simply asked that venue be changed based on the location of the applicant’s residence, the place of injury, and the attorney’s primary office under section 5501.5. The court determined that because the applicant’s residence, the place of injury, and applicant’s attorney’s primary office were all in Santa Barbara County, section 5501.5 mandated transfer to that county.
Sharon Babbitt, (Jan 2007) En Banc
Eleen Y. Vallejo
The WCAB held that a defendant may satisfy its obligation under LC 4600 to provide reasonable medical treatment by transferring an injured worker into an MPN regardless of the date of injury or the date of an award of future medical treatment.
Sierra Pacific Industries v. WCAB (June 30, 2006) 140 Cal. App. 4th 1498, review denied (Cal. Sup. Ct.) 2006 Cal. LEXIS 12464.
Eleen Y. Vallejo
On September 22, 2003, applicant was injured when the logging truck he was driving for Sierra Pacific, Inc. (SPI) tipped over. Within a few days of the injury, applicant saw Dr. Kinney, a chiropractor, who diagnosed cervical sprain/strain, thoracic myalgia, and left knee sprain/strain. He provided treatment every few days for several months. Defendant disputed the need for continuing treatment and provided applicant with the paperwork to select a panel QME. Chatman filed an application for adjudication of his claim for workers’ compensation benefits.
Applicant selected QME La Relle Plubell, a chiropractor, to resolve the treatment dispute. Dr. Plubell saw applicant on February 26, 2004 and concluded that the chiropractic treatment provided by Dr. Kinney up to that date was reasonable and necessary. Dr. Plubell found no further treatment was necessary and any further treatment was applicant’s financial responsibility. Applicant and defendant settled the dispute through a C&R for payment of $4,000. Dr. Kinney requested allowance of his lien for $11,691.98.
In December 2004, Stephen Becker, also a chiropractor, provided a physician review letter. Based on his medical records review, he expressed the opinion that only the chiropractic care and physical therapy provided on nonconsecutive days through December 3, 2003, were reasonable and necessary to treat applicant’s minor symptoms. He expressed the view that the clinical basis for much of Dr. Kinney’s diagnosis and treatment was insufficient. Dr. Becker relied on ACOEM guidelines in reaching his conclusions.
Trial on Dr. Kinney’s lien was held in April 2005. Through deposition, Dr. Plubell testified that she was aware that ACOEM guidelines did not recommend manipulation for longer than four weeks, meaning treatment recommendations would be different under ACOEM guidelines. She produced no peer-reviewed evidence to show why guidelines should not be followed in the case. She did not apply ACOEM guidelines in determining reasonable and necessary treatment because she believed they applied only to injuries after January 1, 2004. The judge found the treatment was reasonable and necessary through February 26, 2004 and allowed the lien.
In his opinion, the judge stated that the ACOEM guidelines became the standard for treatment that subject to utilization review on January 1, 2004. On April 19, 2004, the ACOEM guidelines became the standard for all treatment. Because Dr. Kinney’s treatment was not pursuant to UR process and was provided before April 19, 2004, the ACOEM guidelines did not apply. The judge did not consider Dr. Becker’s letter substantial evidence because he did not examine applicant.
Defendant petitioned for reconsideration, arguing that reasonableness of the treatment should be determined under ACOEM standards. The WCAB denied reconsideration. SPI petitioned the court of appeal, and the court issued the writ.
The court of appeal overturned the decision of the WCAB and found that ACOEM guidelines are applicable for all dates of injury. This is very useful in negotiating treatment liens.
Deanna Brasher v Nationwide Studio Fund; and State Compensation Insurance Fund, (2006) OAK 0296709 Opinion and Decision After Reconsideration
Eleen Y. Vallejo
In response to a treating doctor’s recommendation for spinal surgery, the employer has four options:
1. Authorize the surgery;
2. Object to the surgery pursuant to L.C. section 4062(b) by filing a DWC Form 233. This must be done within 10 days of receipt of the doctor’s recommendation;
3. Submit the recommendation to utilization review; or
4. Pursue BOTH options 2 and 3, either simultaneously or by filing an objection after a utilization review denial.
The timelines for each process must be met.
If the employer denies the surgery pursuant to its UR, the employee must object within 10 days of receipt by the employee of the employer’s denial. The dispute will be resolved under the second opinion procedures in Section 4062(b).
Simmons v State of California, Dept. of Mental Health, (2005), 70 CCC 866, Appeals Board en banc
Eleen Y. Vallejo
Ms. Simmons sustained injury to her right shoulder and bilateral wrists. Her treating doctor recommended shoulder surgery. Defendant sent the request for surgery to their UR department. The UR doctor found the treatment reasonable, but expressed his opinion that it was not reasonably required because industrial causation of a shoulder injury had not been established.
Expedited hearing was scheduled and the UR report was offered into evidence. The Judge refused to admit the report because it was not written by a treating or examining doctor. F & A issued with a determination that applicant was in need of the shoulder surgery based on the treating doctor’s opinion.
Defendant sought reconsideration asserting that the UR report should have been admitted and presumed correct since applicant did not offer any evidence that deviation from the ACOEM guidelines was justified.
The WCAB granted reconsideration and established procedures to be followed in cases where the UR doctor finds that the requested treatment is medically necessary, but may not be industrially related:
1. The UR report IS admissible into evidence FOR THE LIMITED PURPOSES of establishing that UR was undertaken on a specific date; that the proposed treatment was found to be medically necessary and that the UR process resulted in a dispute regarding whether the industrial injury caused or contributed to the need for the treatment.
2. A UR doctor’s report is NOT admissible for purposes of determining whether the industrial injury caused or contributed to the need for a particular treatment. The UR doctor may only address the issue of whether a particular treatment is medically necessary.
3. The defendant must either (a) authorize the treatment or (b) timely deny authorization within the applicable statutory deadlines; timely communicate the denial based on causation to both the treating doctor and the injured worker; and timely initiate the AME/QME process.
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