Court of Appeal and WCAB En Banc Decisions
Published decisions of the Courts of Appeal and En Banc Decisions of the WCAB are citable and binding precedent for all WCJs and WCAB panels.
Home Health Care and Ex Parte Communications
State Farm v. WCAB and Pearson (Aparicio) (2011) 76 Cal. Comp. Cases 69, Court of Appeal, Second Appellate District, Division Three.
The applicant, Ms. Aparicio, sustained injury to her psyche, lumbar spine, and right upper extremity, and developed fibromyalgia, resulting in 100 percent permanent disability. Her husband, Mr. Pearson, filed a lien for home care services which was initially disallowed by the WCJ for lack of supporting evidence. After reconsideration of the decision was granted, the WCAB ordered further development of the record. Since they were unable to agree on a medical expert to resolve the dispute, the WCJ ordered the parties to utilize Dr. Barras for an evaluation and expert opinion concerning the type and amount of services that applicant reasonably required.
Without giving notice to the defendant, counsel for applicant and lien claimant arranged for an evaluation with Dr. Barras and provided the doctor with some but not all of the medical reports. They also failed to advise the doctor of the specific questions posed by the WCJ. The doctor issued a report describing applicant’s condition together with all of her various needs and their expected costs. She further valued the nursing services provided by Pearson at $35 an hour.
The defendant deposed Dr. Barras and then moved to strike the report based on the allegation that the evaluation and the report resulted from ex parte communications between opposing counsel and the doctor. The WCJ found that the issues raised by the defendant did not taint Dr. Barras’s opinion nor did they require the report to be stricken. Rather, he determined that a supplemental opinion from the doctor after she had reviewed all of the medical reports could rectify these problems. After the doctor issued the supplemental report, the matter was submitted for decision.
The WCJ found that applicant required attendant care services 24 hours a day, 7 days a week at the level of an LVN, and that her husband was entitled to reimbursement at $30 an hour or $720 a day back to July 2003. This resulted in a recovery on Pearson’s lien in the amount of $1.5 million. On reconsideration, the WCAB wrote a very lengthy and detailed opinion sustaining the WCJ’s decision and finding no substantive evidence that the initial contact by counsel caused Dr. Barras’s reporting to be biased or insubstantial or required that it be disregarded. Defendant filed a petition for writ of review which was granted.
The Court took an entirely different point of view from that of the WCJ and Board. It noted that Dr. Barras was appointed pursuant to Labor Code §5701 which provides:
“The appeals board may . . . from time to time direct any employee claiming compensation to be examined by a regular physician. The testimony so taken and the results of any inspection or examination shall be reported to the appeals board for its consideration.”
The Court found the ex parte communications with the doctor to involve the merits of the case and not merely a procedural matter, and that they were made in connection with the doctor’s report that the WCJ relied upon. This was a violation of Title 8 CCR §10718 (now §10213) which was in effect at the time and provided:
“All correspondence concerning the examination and reports of a physician appointed pursuant to Labor Code Section 5701 . . . shall be made through the Workers’ Compensation Appeals Board, and no party, attorney or representative shall communicate with that physician with respect to the merits of the case unless ordered to do so by the Workers’ Compensation Appeals Board."
The Court found this prohibition against ex parte communications to be a strict rule that does not require a showing of prejudice. Thus, the report of Dr. Barras was ordered to be stricken and a new medical examiner appointed.
Regarding the home care lien, the Court found the evidence of 24/7 care to be lacking since the lists of time expended that were submitted by the lien claimant did not add up to 24 hours. Furthermore, many of the listed services did not constitute treatment which the employer is required to provide the injured worker. Therefore, the WCAB was ordered to redetermine which of the caregiver services Pearson provided were “medical treatment” under Labor Code §4600.
The Court first noted that Labor Code §4600(a) makes employers liable for “medical, surgical, chiropractic, acupuncture, and hospital treatment, including nursing, medicines, medical and surgical supplies, crutches, and apparatuses, including orthotic and prosthetic devices and services.” It found that a $30 hourly payment for services which are not included under this subdivision is unreasonable.
The Court summarized its conclusions concerning the award of home care reimbursement as follows: 1) Under the circumstances of this case, an award of compensation based on caregiver services provided seven days a week, 24 hours a day was unreasonable. 2) Some services provided by Pearson, if medically necessary and reasonable, were compensable as medical treatment but not at an LVN hourly rate. 3) Other services provided by Pearson did not appear to have been medically necessary, and were not services that Labor Code §4600(a) required the employer to provide or for whose expense the employer was liable.
Interpreters’ Bills and Liens
Guitron v. Santa Fe Extruders (2011) 76 CCC 228, WCAB En Banc opinion.
After the applicant’s case was resolved by C & R, the matter came on for a lien trial concerning defendant’s liability for the lien of an interpreting agency. The WCJ found that the interpreting services in connection with the PTP’s initial and final evaluations were reasonably required to cure and relieve the effects of applicant’s industrial injury. However, the other services billed by the lien claimant were denied on the ground that there was no evidence that Spanish interpreting services were necessary in order for the injured worker to obtain physical therapy and chiropractic treatment. The WCJ noted that the services were provided at offices in East Los Angeles, where Spanish is the dominant language, that most offices in that area have bilingual staff, and if they don’t, there is an ample supply of medical providers that do.
Lien claimant filed a petition for reconsideration which was granted. In an en banc opinion, the Board held as follows:
1) Pursuant to Labor Code §4600, the employer is required to provide reasonably required interpreter services during medical treatment appointments for an injured worker who is unable to speak, understand, or communicate in English.
2) To recover its charges for interpreter services, the interpreter lien claimant has the burden of proving, among other things,
a) that the services it provided were reasonably required,
b) that the services were actually provided,
c) that the interpreter was qualified to provide the services, and
d) that the fees charged were reasonable.
In its opinion, the Board reviewed the statutes and regulations relating to the defendant’s obligation to provide an interpreter under certain circumstances. Acknowledging that there is no specific authority for interpreters in connection with medical treatment, the WCAB found it’s decision to be justified on the basis that effective communication between an injured employee and a medical provider is an essential adjunct to treatment. Moreover, the Board refused to draw a distinction between different types of treatment, finding that if qualified services were required and provided, they may be compensable regardless of the nature of the treatment involved.
The Board also rejected the WCJ’s implied requirement that there be no member of the doctor’s staff that spoke Spanish, stating that they would not require a physician to use an employee with other work responsibilities as an interpreter. Likewise, the WCAB felt that to require the interpreter to prove that there were no other bilingual medical providers in the area would limit an injured worker’s choice of providers to those who could speak his language.
The WCAB stressed that the lien claimant has the burden of proving the facts that are a prerequisite for recovery on its lien. It then went on to make various suggestions concerning the different ways this might be accomplished, although it disclaimed any intent to “prescribe or proscribe” any particular admissible evidence.
Regarding the lien claimants’ obligation to prove that the services were actually provided, the Board made a number of suggestions as to how this might be accomplished, but noted that the preferred practice is pre-authorization. The Board also addressed the issue of proving that the interpreter was qualified in the absence of certification and suggested that provisional certification could be conferred by either the agreement of the parties or selection by the treating physician. While there is no fee schedule for interpreting for treatment, the WCAB felt that the medical-legal fee schedule could serve as guidance although they were not prepared to conclude that a two hour minimum should apply to an appointment that took 10 or 15 minutes.
Since the WCJ concluded that none of the services were reasonably required except in connection with two evaluations, he did not reach any of the other issues raised by the defendant. The Board, therefore, affirmed the payment for the dates of service found to be reimbursable by the WCJ and remanded the case to the trial level for consideration of the other issues.
Denial of Writs of Review
Writ denied cases are not written opinions of the Courts of Appeal, but are merely editorial summaries of WCAB decisions. These cases are citable and may serve as guidance, particularly for otherwise unsettled issue, but do not constitute binding legal precedent.
Compromise & Release
County of Joaquin v. WCAB (Oaks) (2011) 76 CCC 169, Court of Appeal, Third Appellate District, writ denied.
Applicant alleged two cumulative trauma injuries. Both were settled at the MSC and approved by the WCJ. Defendant drafted the C & R, specifying certain payments that were to be deducted from the gross settlement figure including PD advances in one of the cases, credit for an overpayment of TD and attorney fees. Two weeks later, the claims adjuster informed defense counsel that there had been an additional PD advance of $9,000+ in the other case that of which he inadvertently neglected to tell defense counsel. Defendant then filed a timely “Petition for Reconsideration/Petition to Set Aside C&R” in which it was contended that the error constituted a mutual mistake of fact and that the defendant should be allowed to correct the error and credit the additional PD advances.
The WCJ recommended that the petition be denied. He found the mistake to be a unilateral one and noted that errors, omissions, or ambiguities in a contract are construed against the drafter of the document which was the defense attorney. The WCJ also noted that credits are often waived or reduced in the course the settlement negotiation. Moreover, if there was any confusion as to the credits that were to be taken, it is not uncommon for defendants to require the language “subject to proof” in paragraph 7. This was further evidence that the error was unilateral and not mutual.
The WCAB summarily denied the defendant’s petition, adopting and incorporating the WCJ’s report. Defendant filed a petition for writ of review that was denied.
Permanent Disability Rating – AMA Guides
Lopez v. WCAB (2011) 76 Cal. Comp. Cases 180, Court of Appeal, Fourth Appellate District, Division Three, writ denied.
Applicant injured his left minor ring finger and left little finger when he hit a saw blade. The PTP and the PQME provided a WPI based on loss of motion. The matter proceeded to trial and the WCJ issued rating instructions based on grip loss. The DEU rater issued a recommended rating of 19 percent based on the WCJ’s rating instructions and testified on cross-examination that if she had rated Applicant’s disability based on range of motion under the AMA Guides, the rating would be 7 percent PD. Defendant filed a petition for reconsideration.
The WCAB noted that the AMA Guides does not generally provide for determinations based upon grip strength tests because such measurements “are functional tests influenced by subjective factors that are difficult to control and the Guides for the most part is based on anatomic impairment. In a rare case, such tests may be used if the examiner finds that the loss of grip strength “represents an impairing factor that has not been considered adequately by other methods,” such as a severe muscle tear. The impairment due to loss of strength could be combined with the other impairments, only if based on unrelated etiologic or pathomechanical causes. Decreased strength cannot be rated in the presence of decreased motion, painful conditions, deformities, or absence of parts (eg, thumb amputation) that prevent effective application of maximal force in the region being evaluated.”
While the PQME did provide grip loss measurements in his P & S report, there is nothing in his report to indicate that the range of motion method he used to rate applicant’s permanent disability did not adequately consider grip loss. In the absence of a finding by the QME that the applicant’s grip loss was not adequately considered in the range of motion testing and that there is impairment from other “unrelated etiologic or pathomechanical causes,” the AMA Guides provides that grip loss is not an appropriate method for evaluating applicant’s impairment.
The WCAB issued a new award for 7 percent PD. Applicant filed a petition for writ of review that was denied.
Note: The applicant in this case was unrepresented. There are other decisions that have allowed a grip loss rating under Almaraz/Guzman. However, there still needs to be an explanation from the doctor as to why the AMA Guides allows grip loss under the circumstances of the case or why grip loss provides a more accurate rating.
Discovery – Depositions
Padilla v. WCAB (2011) 76 Cal. Comp. Cases 191, Court of Appeal, Second Appellate District, Division Five, writ denied.
Applicant, a bus driver alleged injury to multiple body parts based on stress. At his deposition, defendant’s assistant transportation manager was present. Applicant objected to answering questions regarding his medical history, psychiatric history, and medical conditions in front of the manager and sought a protective order precluding any of defendant’s employees from attending his deposition, although he conceded that a person “involved in the administration and adjusting of the claim” could be present. the WCJ issued a protective order limiting defendant’s representative at the deposition to a person “from HR/claims management, not applicant’s manager or co-worker.”
The WCAB noted that although protective orders may be granted as justice requires “to protect any party, deponent, or other natural person or organization from unwarranted annoyance, embarrassment or oppression, or undue burden or expense” it was not persuaded that Applicant showed that he would be subjected to such conditions by the manager’s presence at his deposition or by the presence of another of defendant’s management representatives.
Although applicant did not specifically raise issues regarding privilege, he did claim a “right to medical privacy.” While the applicability of the privilege and any waiver is relevant to the scope of discovery, the WCAB found that it is not relevant to the issue of who defendant may select as its representative to attend Applicant’s deposition. The WCAB also observed that, even though Labor Code § 3762 provides that an insurer, a third-party administrator of a self-insured employer, and employees of a self-administered self-insured employer are precluded, with specified exceptions, from disclosing individually identifiable medical information regarding an applicant to the employer, this section does not deal with information disclosed by an applicant in his deposition testimony.
The WCAB rescinded the WCJ’s protective order. Applicant filed a petition for writ of review which was denied as premature. The Court commented that it was not possible to adjudicate at the appellate level whether petitioner’s right to privacy has been violated without knowing who was to attend the deposition and what questions would be asked.
Liens – Reasonable Value (Zenith case)
Bresler v. WCAB (2011) 76 CCC 251, Court of Appeal, Second Appellate District, Division Seven, writ denied.
After the applicant’s case settled, the matter came on for a lien trial to address the unpaid balances of the liens of Dr. Bresler and Silver. The lien claimants conceded that their bills had been paid by the defendant in accordance with the Official Medical Fee Schedule (OMFS), but contended that they were entitled to have their charges paid in full nonetheless. The WCJ found that the lien claimants had failed to carry their burden of proof concerning the additional claim.
Both lien claimants petitioned for reconsideration. Dr. Bresler contended that since the defendant did not submit evidence of what the OMFS allows and because it “downcoded his bill, the OMFS should not be used to determine his fee. He also argued that he should be awarded a fee in excess of the OMFS because defendant did not timely approve the acupuncture treatments he provided. Dr. Silver additionally contended that, because the defendant agreed in the stipulated award to “review and pay reasonable charges incurred through Dr. Silver,” it could not now seek to pay a fee pursuant to the OMFS, and that the evidence demonstrated extraordinary circumstances that justify a higher fee than what is allowed by the OMFS.
The WCAB denied the petition, noting that the OMFS establishes a “reasonable maximum fee” for the services provided by a treating physician. Pursuant to 8 CCR §9792(c), a medical provider may be paid a fee in excess of the OMFS if the fee charged is reasonable, accompanied by itemization, and justified by an explanation of extraordinary circumstances related to the unusual nature of the services rendered. Both physicians alleged extraordinary circumstances based on the fact they operate “state of the art” facilities with significantly higher costs, that they were uniquely qualified, and that applicant had a multitude of symptoms, and that they required extra staff to deal with workers’ compensation cases. However, they failed to present facts to demonstrate that these circumstances are in any way different than what other physicians encounter in their practices.
Dr. Bresler filed a petition for writ of review that was denied.
WCAB Panel Decisions
Judicial notice of WCAB Panel decisions may be taken under Evidence Code 452(d) which provides that judicial notice may be taken of the records of any court of this state. They may serve as guidance, but do not constitute binding legal precedent.
Petitions to Reopen
Pinkney v. Petra Nunez and Samuel Nunez, 2010 Cal. Wrk. Comp. P.D. LEXIS 251, WCAB panel decision.
Applicant sustained a cumulative trauma ending on April 15, 2003 which was resolved by way of a stipulated award to 63 percent PD in October 2007. On April 8, 2008, he filed a petition to reopen for new and further disability. On April 30, 2008, he was seen by a doctor who did not expressly state an opinion regarding when the applicant’s condition began to worsen, but did mention that his condition was in a state of progressive decline. The WCJ denied the petition for reopen on the ground that applicant had not established that he suffered new and further disability within 5 years after the date of injury as required by Labor Code §5410. Applicant filed a petition for reconsideration.
The WCAB noted that the reference to a progressive decline implied that applicant’s condition may have begun to worsen at an earlier point in time than 15 days before the exam. However, it was unclear from the record whether the applicant’s post-award complaints and medical treatment evidenced a deteriorating condition sufficient to constitute new and further disability. The Board felt that in this circumstance, there was a duty to further develop the medical record. Therefore, the case was remanded to the trial level for this purpose. In the further proceedings, the WCJ was instructed to determine whether the applicant’s condition deteriorated in the period between November 7, 2007 and April 15, 2008 and whether he sustained any temporary disability commencing during that period.
COLA
Lewis v.WCAB, 2010 Cal. Wrk. Comp. P.D. LEXIS 297, WCAB panel decision.
The WCJ issued a 100 percent PD award, with attorney fees calculated at 14 percent of indemnity awarded in accordance with a commutation calculated by the Disability Evaluation Unit. The DEU applied the appropriate State Average Weekly Wage (SAWW) adjustments based on an assumed 4.7 percent annual increase in the SAWW.
Defendant filed a petition for reconsideration contending that there is no factual or legal basis for the 4.7% assumed annual SAWW increase used to determine the attorney’s fee, that a defendant has standing to contest the award of attorney’s fees because the defendant’s liability for attorney’s fees is substantially increased as a result of the use of the assumed increase in the SAWW, that the award of attorney’s fees should not be based on the SAWW adjustments because the adjustments are not a result of the care of skill exercised by the applicant’s attorney, and that the use of the 4.7% assumed annual SAWW increase is unnecessary to determine an award of attorney’s fees because such fees can be calculated on a yearly basis and paid when the actual SAWW increase is determined.
The WCAB panel noted that although several cases of life pension and 100 percent PD with commuted attorney’s fees using the 4.7 percent SAWW figure had been affirmed, none of those cases are binding on other WCAB panels and in any event, the due process issue of rebutting the calculations was not raised in those cases. Therefore, the panel concluded that regardless of whether the 4.7 percent or any other figure is appropriate, defendant should be allowed to respond to it. The WCJ’s decision was rescinded and the matter returned to the trial level for further proceedings and a new decision by the WCJ.
Costs of Vocational Experts (Zenith case)
Crystal Vos v. Steven Chang, DDS, 2010 Cal. Wrk. Comp. P.D. LEXIS 329, WCAB panel decision.
The Disability Evaluator (rater) rated applicant’s permanent disability at 12%. Applicant cross-examined the rater and presented the testimony of a vocational expert, Mr. Rivas to rebut the DFEC factor of the rating in accordance with the Ogilvie formula. The WCJ found that the rating had not been rebutted and denied reimbursement for the costs of Mr. Rivas’ report and testimony on the ground that his opinion had no probative value and was incapable of affecting rating in this case.
Applicant petitioned for reconsideration. The WCJ recommended that reconsideration be denied. He noted that what Mr. Rivas represented applicant’s earnings to be was more than one-third in excess of the amount stipulated at trial. Since his opinion was based on false assumptions, it could not be substantial evidence. The Board sustained the WCJ. Not only did he make an incorrect assumption regarding applicant’s earnings, but most of his report was devoted to his opinion that applicant had sustained a 62% loss of earning capacity. This type of inquiry was rejected in both Ogilvie opinions because of its inconsistency with Labor Code section 4660(b)(2) which requires that future earning capacity be a numeric formula based on empirical data and findings that aggregate the average percentage of long-term loss of income resulting from each type of injury for similarly situated employees. For this reason the Board determined that the WCJ was correct in disregarding his opinion and that the defendant had no liability for payment of his services.
PQME Procedure and Ex Parte Communications
O’Reilly v. State of California, Department of Corrections, 2010 Cal. Wrk. Comp. P.D. LEXIS 376, WCAB panel decision.
Applicant sustained an admitted knee injury. Both parties proposed AMEs but were unable to agree on a doctor. Applicant requested a panel from the Medical Unit and struck one of the names. Defendant did not make a timely strike of any physician from the panel list. Applicant then made an appointment with Dr. Morley more than 60 days in the future and served notice of the appointment. Defense counsel objected to the late scheduled appointment and requested a replacement panel from the Medical Unit.
Shortly thereafter, Dr. Morley’s office provided applicant with an earlier date. On the following day, the Medical Unit issued the new panel to which applicant objected. Defendant struck a name and when applicant did nothing further, scheduled an appointment with Dr. Rosenberg. Applicant kept the appointment with Dr. Morley, but did not keep the appointment with Dr. Rosenberg.
The issue came on for trial and the WCJ found that Dr. Morley was not the PQME. He also indicated in his opinion that applicant was responsible for the cost of Dr. Morley’s evaluations. Applicant filed a petition for reconsideration which the WCAB denied as not being taken from a final order. However, the Board granted removal on its own motion in light of the potential for significant prejudice to the applicant.
The Board noted that a replace panel may be obtained if a QME on the panel cannot schedule an examination within 60 days of the initial request for an appointment, or if the 60 day scheduling limit has been waived, the QME cannot schedule the examination within ninety 90 days of the date of the initial request for an appointment. In this case, any defect was cured by the doctor furnishing an earlier appointment and the replacement panel issued after that had taken place. Furthermore, the issuance of a replacement panel by the Medical Unit is merely a reaction to the request and not a determination that a replacement panel is appropriate, especially where the request is based on incomplete information.
Although it does not appear that either party raised the issue, the Board took it upon itself to address the matter of ex parte communications. The panel noted that all of the communications were made only with staff members of Dr. Morley’s office, and were not made directly with the doctor. By its own terms, section 4062.3(f) does not include “staff” among the restricted communications. Thus, there were no prohibited ex parte communications, even though those communications were between staff members and the applicant’s attorney.
The Board rescinded the WCJ’s decision and remanded the case to the trial level for a new decision.
Note: If the WCAB found that a conversation between an attorney for one of the parties and a member of the PQME’s staff did not constitute a prohibited ex parte communication, then the same should hold true for a conversation between a defense attorney or a claims adjuster and a staff member.
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