Workers’ Compensation Appeals Board

The Law Office of John A. Don will continue to bring you up to the minute determinations of the Workers’ Compensation Appeals Board [WCAB].

In the case of SCHENDEL V. B&B STATE [ADJ3568698 – Marina del Rey], the Appeals Board concluded that the parties can Stipulate to opt out of the Independent Medical Review process.

By way of background, as of 2013, all medical disputes must be solved by using the UR/IMR process.

UR stands for Utilization Review.  In order to obtain medical care in California workers’ compensation, the Primary Treating Doctor [PTP] must fill out a Request for Authorization [RFA].  The workers’ compensation insurance adjuster has 7 days to decide whether they will approve the treatment request or submit it to UR.  The adjuster will usually contract an agency to review the RFA and make a recommendation as to whether the medical care requested meets evidence based medical standards.

The evidence based standards are contained in a work called the MEDICAL Treatment Utilization Schedule [MTUS].  If the PTP’s request meets the MTUS guidelines the RFA should be approved.  If UR determines that the RFA does not meet the MTUS guidelines, the worker can appeal this treatment denial to MAXIMUS Federal Services – an agency contracted by the State of California to make the final decision when it comes to industrial medical care.

MAXIMUS is denying about 91% of the treatment requests that they get, so, if there is any way to avoid using MAXIMUS that would greatly help the worker get better medical care.

In the SCHENDEL decision the WCAB held that where the parties STIPULATE to used an Agreed Medical Examiner [AME] to make treatment determinations the adjuster is “obligated to adhere to the terms of the parties’ stipulations that further medical treatment would be authorized per the opinion of the AME.”

Many defense attorneys write into work comp. settlements a provision that future medical care will be per the AME.  If you have a settlement, you can look at the boxes where a lot of the legal terms are typed in and see if the adjuster wrote that in.  If they did, you can argue that your doctor’s RFA should not be sent to MAXIMUS but should be sent to the AME who is much more likely to approve the treatment request!

In BILLICK v. HUGHES AIRCRAFT [ADJ887768 – Monterrey], the WCAB held that applicant’s left injury suffered in a fall at home was a compensable consequence of his back injury – and,  as such – was the responsibility of the work comp. carrier.

A compensable consequence injury is one that is caused, in whole or in part, by the underlying industrial injury.  In BILLICK, the worker had a very bad back injury and kept falling at home.  One evening, he fell while going to the bathroom and messed up his hip.  The insurance attorney tried to argue that the injury was the workers’ own fault and that his client – the insurance company – did not have to pay for it.

The WCAB explained that since the fall was caused by the industrial injury – the insurance company was on the hook.  Other examples of compensable consequence injuries are those suffered on the way to the work comp. doctor’s appointment or those caused by medication taken due to the industrial injury.

Presently, I am litigating a case where the anti-inflammatory medication caused an ulcer in my client’s stomach which led to internal bleeding and blood loss.  The worker lost so much blood that – as a result – he was diagnosed with leukemia.  If I can prove the causal connection, the work comp. insurance will need to pay for his cancer medication!

In FERNANDEZ v. MERCHANT’S LANDSCAPE [ADJ10268949 – Anaheim] the WCAB explained what it takes to prove a post-termination defense.  According to Labor Code Section [L.C.] 3600(a)(10) an employee cannot file a claim after he/she has been terminated unless he/she can show medical evidence prior to the termination describing the injury or the date of injury occurred after the termination.

You may ask, how can that be?  How can anyone hurt themselves after they have been terminated?

Well according to L.C. Section 5412, when dealing with a cumulative trauma [an injury that happens over time] the date of injury is when the worker (1) first realized that he/she was hurt & (2) suffered a disability; so, if the worker did not lose any time off work prior to the termination – the date of injury can very well be after the termination and the post-termination defense would not work!

While we are on the subject of terminations, in KEITH v. DOLLAR TREE [ADJ9719810] the WCAB discussed whether the insurance had to pay a worker temporary partial disability when the employer alleged that the worker was terminated for cause.

Temporary disability are payments the worker gets while they recover from the injury.  The workers’ compensation insurance has to pay 2/3 of the workers’ salary until the worker can get back to work or the doctor releases him/her from care.

There are two types of temporary disability: (1) temporary total disability [TTD] means the worker can’t work; (2) temporary partial disability [TPD] means the worker can do light duty.  If the employer does not provide light duty, the worker gets the disability payments.  If the employer provides some work – but not the full 40 hours – the insurance must pay the worker 2/3 of the difference between the regular pay and the light duty pay.

If the employer can show that the worker was terminated for cause, the insurance does not have to pay any TPD since the reason the worker is not working is not due to the injury – but – it is due to the termination for cause.

In KEITH the court held that the employer had no good reason to terminate then worker and awarded the worker his disability payments.

The case of DELAO v. STATE OF CALIFORNIA [ADJ3632525 – San Bernardino] discusses the use of the Multiple Disabilities Table [MDT].  Normally, when a worker suffers injury to several boy parts, the treating doctor or evaluating doctor will provide percentages for each body part.  These percentages are then combined using a chart that is found in the Permanent Disability Rating Schedule [PDRS].

If the worker has three body parts injured and each body part rated to 50%, adding the three body parts would give you a 150% disability.  Since the highest disability anyone can have is 100% disability the MDT is used to “shrink” the lower or “next in line” disability so that they don’t add up to more than 100%.  As an example two 20% disabilities are combined for a final disability of 36%.

The problem is that sometimes it makes no sense to combine the disabilities.  If the worker had a bad left knee and a bad left shoulder – it would make it more difficult for the worker to get around since he/she could not use a cane with the bad shoulder.  As discussed in Delao, in these types of cases, the

Judge is allowed to add the disabilities instead of combining them so that one of them shrinks.

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