1. Ventura, Hersey & Muller, LLP
Navigating Workers’ Compensation & Employment Law VI Sponsored by Alliance Occupational Medicine January 31, 2019
Jennifer Callan
Callan Law Firm
1100 Lincoln Avenue, Suite 261
San Jose, CA T:
Daniel Muller, Esq.
Ventura, Hersey & Muller, LLP
1506 Hamilton Avenue
San Jose, CA T:

2. Statutory & Regulatory Changes
TTD rates, effective 1/1/19:
Minimum TTD rate will increase from $ to $ per week.
Maximum TTD rate will increase from $1, to $1, per week.
Mileage rate for medical and medical-legal travel expenses increases from 54.5 cents per mile to 58 ($.58) cents per mile effective 1/1/19 for travel on or after 1/1/19, regardless of the date of injury.

3. RX, Treatment, etc.
Updated MTUS Drug List: The MTUS Drug List codified at Title 8, California Code of Regulations section is updated effective 2/15/19.
Adopts changes to the MTUS Drug List, based on ACOEM Practice Guidelines, including the following:
Addition of drugs addressed in the Traumatic Brain Injury Guideline
New and Revised, Drug Recommendations (related to the Traumatic Brain Injury Guideline)
Designation of additional drugs as “special fill” eligible, due to treatment recommendation in the Traumatic Brain Injury Guideline
Link to MTUS drug formulary:

4. Legislation
AB Occupational Injuries & Illness: Employer Reporting Requirements: Electronic Submission (Effective January 1, 2019)
Existing rules require, among other things, that the Division of Occupational Safety and Health enforce all occupational safety and health standards and that it issue a citation for employer violations of recordkeeping requirements. Currently, the Division is prohibited from issuing a citation more than six months after the “occurrence” of the violation.
AB 2334 provides, among other things, that an “occurrence” continues until (a) it is corrected, (b) the Division discovers the violation, or (c) the duty to comply with the requirement that was violated no longer exists.
This bill amends Sections 138.7, and 6317 of the Labor Code, and adds Sections and to the Labor Code.

5. Case Law Update Panel QMEs
Sandab Suon v. California Diaries, 83 Cal. Comp [WCAB Case Numbers ADJ , ADJ , ADJ ] October 23, 2018 [En banc decision]
Holding: In interpreting Labor Code §4062.3, we find that:
Disputes over what information to provide to the QME are to be presented to the WCAB if the parties cannot informally resolve the dispute.
Although Labor Code §4062.3(b) does not give a specific timeline for the opposing party to object to the QME’s consideration of medical records, the opposing party must object to the provision of medical records to the QME within a reasonable time in order to preserve the objection.
If the aggrieved party elects to terminate the evaluation and seek a new evaluation due to an ex parte communication, the aggrieved party must do so within a reasonable time following discovery of the prohibited communication.

6. Case Law Update Panel QMEs
Sandab Suon v. California Diaries, 83 Cal. Comp [WCAB Case Numbers ADJ , ADJ , ADJ ] October 23, 2018 [En banc decision]
The trier of fact has wide discretion to determine the appropriate remedy for a violation of Labor Code §4062.3(b).
Removal is the appropriate procedural avenue to challenge a decision regarding disputes over what information to provide to the QME and ex parte communication with the QME.

7. Case Law Update Permanent Disability
California Department of Corrections & Rehabilitation (CDCR) v. WCAB (Fitzpatrick) (2018) 27 Cal. App. 5th 607 [Court of Appeal, 3rd Appellate District] Facts: Applicant was assessed as having 97% PD for his cardiac injury and 71% PD for his psyche, which combined under the Combined Values Chart (CVC) to 99%. The WCJ quoted from the report of Dr. Lieberman who concluded Fitzpatrick was “…on strict psychiatric grounds totally and permanently disabled”. Relying on that, and other language in the medical record, the WCJ concluded:
“Based upon [Fitzpatrick’s] credible testimony, the medical reports of Dr. Chang-Sing and Dr. Lieberman, and in accordance with the facts (see Labor Code §4662(b)), it is found that applicant is permanently totally disabled.”

8. Case Law Update Permanent Disability
California Department of Corrections & Rehabilitation (CDCR) v. WCAB (Fitzpatrick) (2018) 27 Cal. App. 5th 607 [Court of Appeal, 3rd Appellate District]
Appeal:
Defendant appealed the award of PTD, arguing that Dr. Lieberman’s report alone did not support PTD where it rated only 71% and Dr. Lieberman did not discuss the Applicant’s amenability to vocational rehabilitation. The WCAB disagreed and adopted and incorporated the WCJ’s opinion. The WCJ in his opinion opined:
“With regard to the argument that [Fitzpatrick] didn’t rebut the rating schedule, total permanent disability may be shown by presenting evidence showing total permanent disability ‘in accordance with the fact’ as provided in Labor Code section 4662, subdivision (b), or by rebutting a Labor Code section 4660 scheduled rating [citations]. . . In the present case, the undersigned relied upon Labor Code section 4662, subdivision (b), [Fitzpatrick’s] credible testimony, and the opinions of [Lieberman and Chang-Sing]. Specifically, the undersigned relied upon Dr. Lieberman’s opinion that applicant was permanently and totally disabled psychiatrically.”

9. Case Law Update Permanent Disability
California Department of Corrections & Rehabilitation (CDCR) v. WCAB (Fitzpatrick) (2018) 27 Cal. App. 5th 607 [Court of Appeal, 3rd Appellate District]
Issue:
Must a finding of permanent total disability be made in accordance with Labor Code §4660, or does Labor Code §4662(b) provide a separate path to such a finding?

10. Case Law Update Permanent Disability
California Department of Corrections & Rehabilitation (CDCR) v. WCAB (Fitzpatrick) (2018) 27 Cal. App. 5th 607 [Court of Appeal, 3rd Appellate District]
Discussion:
We see no basis for concluding Labor Code §4662(b) provides a second independent path to permanent total disability findings separate from Labor Code §4660. Section 4600 is mandatory. There is nothing ambiguous or unclear in section 4660’s directive that “[i]n determining the percentages of permanent disability, account shall be taken of the nature of the physical injury or disfigurement, the occupation of the injured employee, and his or her age at the time of the injury, consideration being given to an employee’s diminished future earning capacity” and the 2005 Permanent Disability Rating Schedule “shall be prima facie evidence of the percentage of permanent disability to be attributed to each injury covered by the schedule.”

11. Case Law Update Permanent Disability
California Department of Corrections & Rehabilitation (CDCR) v. WCAB (Fitzpatrick) (2018) 27 Cal. App. 5th 607 [Court of Appeal, 3rd Appellate District]
Discussion:
We easily harmonize sections 4660 and 4462(b). Section 4662(b) provides that, in nonconclusively presumed permanent total disability cases (i.e., those cases not enumerated in §4662(a)), permanent total disability may be found “in accordance with the fact”. This section does not, however, address how such a determination shall be made, read plainly, it merely provides that a determination of permanent total disability shall be made on the facts of the case.
Section 4660 addresses how the determination on the facts shall be made in each case for injuries occurring before January 1, 2013.

12. Case Law Update Permanent Disability
California Department of Corrections & Rehabilitation (CDCR) v. WCAB (Fitzpatrick) (2018) 27 Cal. App. 5th 607 [Court of Appeal, 3rd Appellate District]
Discussion:
Moreover, our interpretation harmonizes provisions relating to the same subject matter and gives effect to the Legislature’s intent to promote “consistency, uniformity, and objectivity in the overall process of determining disability across individuals.” (Milpitas Unified School Dist. v. WCAB (2010) 187 Cal.App.4th 808, 823). Our interpretation “remain[s] loyal to the Legislature’s design to provide a system that is objective and uniform in application.” (Ogilvie v. WCAB (2011) 197 Cal.App.4th 1262, 1273.
In contrast, the Board’s interpretation and approach would “return us to the ad hoc decisionmaking that prevailed prior to 2004” with regard to permanent disability findings, which is exactly what the Legislature sought to avoid in enacting the amendments. (Contra Costa County v. WCAB (2015) 240 Cal.App.4th 746, 761.) It would allow a WCJ to make a subjective determination that may lead to inconsistent and nonuniform PD ratings with respect to the most expensive claims under our workers’ compensation framework. Such a result cannot be squared with the Legislature’s intent.

13. Case Law Update Permanent Disability
California Department of Corrections & Rehabilitation (CDCR) v. WCAB (Fitzpatrick) (2018) 27 Cal. App. 5th 607 [Court of Appeal, 3rd Appellate District]
Status:
Writ issued 12/15/17;
Published Court of Appeal, 3rd Appellate District, decision issued 9/25/18;
Depublication request filed with Cal. Supreme Court 10/26/18;
Time to order review on Cal. Supreme Court’s own motion extended to 1/23/19, Supreme Court of California Case # S252184, 2018 Cal. LEXIS 9103 (11/13/18).

14. Case Law Update Apportionment
City of Jackson v. WCAB (Rice) 11 Cal. App. 5th 109 (Court of Appeal, 3rd Appellate Dist.) April 26, 2017
Facts: Applicant Christopher Rice worked as a police officer for the City of Jackson. He had an accepted CT to April 22, 2009 injury to his neck, at which time he was 29 years old. Before undergoing neck surgery, Rice was examined by QME Dr. Blair in November Dr. Blair examined Rice and reviewed his medical records, including an x-ray of the cervical spine that showed degenerative disc disease. Dr. Blair diagnosed cervical radiculopathy and cervical degenerative disc disease.

15. Case Law Update Apportionment
City of Jackson v. WCAB (Rice) 11 Cal. App. 5th 109 (Court of Appeal, 3rd Appellate Dist.) April 26, 2017
Facts (continued): In addressing the issue of apportionment, Dr. Blair concluded that Rice’s condition was 25% caused by work activities for the City; 25% by his prior employment; 25% by his personal history, including recreational activities and prior injuries; and 25% by Rice’s “history of smoking” and “diagnosis of lateral epicondylitis.” Dr. Blair re-evaluated Applicant in May 2013 following neck surgery, and revised her apportionment assessment, concluding that apportionment was as follows: 17% to work activities with the City, 17% to prior employment, 17% to personal activities, and 49% to Rice’s personal history, “including genetic issues.”

16. Case Law Update Apportionment
City of Jackson v. WCAB (Rice) 11 Cal. App. 5th 109 (Court of Appeal, 3rd Appellate Dist.) April 26, 2017
Facts (continued): Dr. Blair explained that since she last evaluated Rice in November 2011, “there are specific publications that have lent even more support to the causation of genomics/genetics/heritable issues in terms of this injury.” Dr. Blair’s opinion was also based on the medical history, physical examination, and diagnostic studies, including x-rays and MRI scans.

17. Case Law Update Apportionment
City of Jackson v. WCAB (Rice) 11 Cal. App. 5th 109 (Court of Appeal, 3rd Appellate Dist.) April 26, 2017
Facts (continued): In a supplemental report, Dr. Blair affirmed that she could state “to a reasonable degree of medical probability that genetics has played a role in Mr. Rice’s injury,” despite the fact that there is no way to test for genetic factors. Dr. Blair also cited to the various medical studies upon which she relied. Dr. Blair also explained that while these studies supported an apportionment of 75 percent to personal history, she decided to err on the side of the patient in case there was some unknown “inherent weakness” in the study, and decided that 49% was the “lowest level that could reasonably be stated.” Dr. Blair explained that even without knowing the cause of Rice’s father’s back problems, the evidence of Rice’s DDD having a predominantly genetic cause was “fairly strong” where there is no clear traumatic injury, as in Rice’s case.

18. Case Law Update Apportionment
City of Jackson v. WCAB (Rice) 11 Cal. App. 5th 109 (Court of Appeal, 3rd Appellate Dist.) April 26, 2017
WCJ finding & Applicant’s Appeal: The WCJ concluded that Dr. Blair’s apportionment to prior work activities and prior activities was not based on substantial evidence. The WCJ, however, found that the City had carried its burden of showing apportionment of 49% due to genetic factors. Applicant appealed, arguing that the apportionment to genetic risk factors was not substantial medical evidence because there was no evidence Rice’s family had a history of cervical DDD, and there was no genetic test for DDD.

19. Case Law Update Apportionment
City of Jackson v. WCAB (Rice) 11 Cal. App. 5th 109 (Court of Appeal, 3rd Appellate Dist.) April 26, 2017
WCAB finding: The WCAB remanded the mater to the Trial level for an unapportioned PD award, reasoning that “finding causation on applicant’s `genetics’ opens the door to apportionment of disability to impermissible immutable factors Without proper apportionment to specific identifiable factors, we cannot rely upon Dr. Blair’s determination as substantial medical evidence to justify apportioning 49% of applicant’s disability to non-industrial factors.”

20. Case Law Update Apportionment
City of Jackson v. WCAB (Rice) 11 Cal. App. 5th 109 (Court of Appeal, 3rd Appellate Dist.) April 26, 2017
Court of Appeal Holding: Dr. Blair’s apportionment to genetic factors was substantial medical evidence in this case. “Precluding apportionment based on `impermissible immutable factors’ would preclude apportionment based on the very factors that the legislation now permits, i.e., apportionment based on pathology and asymptomatic prior conditions for which the worker has an inherited predisposition.”

21. Case Law Update Apportionment
City of Jackson v. WCAB (Rice) 11 Cal. App. 5th 109 (Court of Appeal, 3rd Appellate Dist.) April 26, 2017
Court of Appeal Holding (continued): “The Board’s ruling indicates that it believes `genetics’ is not a proper factor on which to base causation. However, since 2004 it has allowed apportionment based on such a factor, even though it may not have used the term `genetics’.” It was unnecessary for Dr. Blair to research Rice’s family medical history because her research indicated that genetics or heredity was a majority factor in all cases of degenerative disc disease. Dr. Blair’s reports meet all of the requirements of Escobedo. Dr. Blair stated that her opinion was predicated on a reasonable degree of medical probability, she provided the reasoning behind her opinion, and her opinion disclosed familiarity with the concept of apportionment under Labor Code §4663.

22. Case Law Update Apportionment
City of Petaluma v. WCAB (Lindh) 29 Cal. App. 5th 1175, 83 CCC 1869 (Court of Appeal, 1st Appellate Dist.) December 10, 2018
Discussion:
In 2004 (through SB 899), the Legislature made a significant change to the law regarding apportionment. Labor Code §4663 was amended to allow apportionment to causation. Under §4663, employers are only liable for the percentage of permanent disability directly caused by the industrial injury. In enacting the 2004 amendments, the Legislature “intended to reverse” a number of the features of the worker’s compensation law, including “eliminat[ing] the bar against apportionment based on pathology and asymptomatic causes ” (Brodie v. WCAB (2007) 40 Cal.4th 1313, 1327). “[T]he new approach to apportionment is to look at the current disability and parcel out its causative sources – nonindustrial, prior industrial, current industrial – and decide the amount directly caused by the current industrial source.” (Brodie, at p )

23. Case Law Update Apportionment
City of Petaluma v. WCAB (Lindh) 29 Cal. App. 5th 1175, 83 CCC 1869 (Court of Appeal, 1st Appellate Dist.) December 10, 2018
Discussion: Under the current law, the salient question is whether the disability resulted from both nonindustrial and industrial causes, and if so, apportionment is required. (See Brodie, supra, 40 Cal.4th at p. 1328; Jackson, supra, 11 Cal.App.5th at pp )
Whether or not an asymptomatic preexisting condition that contributed to the disability would, alone, have inevitably become manifest and resulted in disability, is immaterial.
The postamendment cases uniformly focus on whether there is substantial medical evidence the disability was caused, in part, by nonindustrial factors, which can include “pathology and asymptomatic prior conditions for which the worker has an inherited predisposition.” (Jackson, supra, 11 Cal.App.5th at p. 116.)

24. Psychiatric Claims Labor Code Section 3208.3
Good Faith Personnel Defense
What is to be addressed by Medical-Legal Evaluator?
Psyche diagnosis meeting requisite criteria.
Whether or not psyche injury was predominantly (> 50%) caused by work activities.
Whether psyche injury was substantially (at least 35% to 40%) caused by events/actions which the WCJ deems to be “personnel actions”

25. Psychiatric Claims Labor Code Section 3208.3
Good Faith Personnel Defense
What is to be addressed by Workers’ Compensation Judge (WCJ)?
Whether the alleged psychiatric injury involves actual events of employment;
Whether competent medical evidence establishes the required percentage of industrial causation, i.e., whether the predominant cause [i.e., greater than 50%] standard has been met;
Whether any of the actual employment events were personnel actions;
Whether the personnel actions were lawful, nondiscriminatory, and made in good faith;
Whether competent medical evidence establishes that the personnel action or actions are a substantial cause, accounting for at least 35 to 40 percent of the psychiatric injury as defined by Labor Code Section (b)(3).

26. Labor Code Section 132a
“Any employer who discharges, or threatens to discharge, or in any manner discriminates against any employee because he or she has filed or made known his or her intention to file a claim for compensation with his or her employer or an application for adjudication, or because the employee has received a rating, award, or settlement . . .”
Remedies:
Back pay, back benefits, and reinstatement;
Penalty of 50% of the compensation furnished not to exceed $10,000
Costs not to exceed $250
Criminal prosecution
Punitive damages? (See City of Moorpark)

27. 132a Discrimination Claims Dept. of Rehabilitation v
132a Discrimination Claims Dept. of Rehabilitation v. WCAB (Lauher) (2003) 68 CCC 831 [CA Supreme Ct]
Employee bears the burden of proof that the employer violated Labor Code Section 132a and must show:
Existence of the claimed injury;
Employer knowledge of the claimed injury;
Adverse action impacting the employee on account of the claimed disability;
The action was detrimental in removing a benefit of the employment which would otherwise have been available to similarly situated employees, i.e., the employee was “singled out” for adverse treatment.
In the event the injured worker is successful in meeting all of these criteria, the burden shifts to the employer to demonstrate that the detrimental act was required for a legitimate business purpose.

28. 132a Discrimination Claims City of Moorpark v
132a Discrimination Claims City of Moorpark v. Superior Court (Dillon) (1998) 63 CCC 944 [California Supreme Court]
Labor Code Section 132a is not the exclusive remedy for discrimination based on work related disabilities.
An injured worker may bring a discrimination claim before the WCAB under Labor Code Section 132a as well as actions in state court under the FEHA and for common law wrongful discharge.
Remedies of the FEHA and common law tortious wrongful discharge based on violation of public policy, in addition to L.C. Section 132a, are available to employees who assert discrimination attributable to a disability resulting from an injury arising out of and occurring in the course of employment.

29. Global Settlements Steller v. Sears, Roebuck and Co. (2010) 189 Cal
Global Settlements Steller v. Sears, Roebuck and Co. (2010) 189 Cal.App.4th 175
Whether an Offer to Compromise under CA CCP Section 998 purporting to resolve both a civil disability discrimination claim and a workers’ compensation claim was sufficient to resolve both pending actions?
Settlements of workers’ compensation claims must be approved by the WCAB to be effective.
No release of liability or compromise agreement regarding a workers’ compensation matter is valid unless it is approved by the appeals board or referee. (Labor Code §5001)
[Note: Employers seeking concurrent resolutions should ensure the settlement documents expressly provide for, and make payment conditioned upon, WCAB approval of the workers’ compensation settlement.]

30. Thank You