Appellate Court Review Sought for Issues Affected by SB 863

"...disputes about the impact of SB 863 seem to be mostly at the hearing level for now. The situation...is a 'quagmire.'" Expedited hearing requests are on the rise and 'issues in accepted claims are being litigated more than ever' .....it (is) "unfortunate that all of the changes and ambiguities in the law have resulted in often mean-spirited and win-at-all-cost behaviors by certain players that have caused costs to rise and tempers to flare." Alan Gurvey

While California attorneys are busy battling out their differing interpretations of Senate Bill 863 at the Workers' Compensation Appeals Board, disputes about the meaning of the statutes that existed before passage of the 2012 reform are on their way to the Court of Appeals. 

So far, 13 workers' compensation cases have been appealed in the month of April. Some of those disputes touch on statutes that were overhauled by SB 863 to reduce litigation in the system.

Among them is Radiator USA v. Workers' Compensation Appeals Board, No. B255839, in which the 2nd District Court of Appeal is being asked to decide whether a driver with an admitted industrial back injury should have been awarded benefits for a claimed psyche and sleep injury.  

SB 863 amended Labor Code Section 4660.1 to eliminate a worker's ability to use sleep, sex or psych disorders to increase his permanent impairment rating, unless the condition is the result of a catastrophic injury or the worker was the victim of a violent act. 

This change doesn't mean that sleep, sex and psyche disorders aren't compensable or that workers aren't entitled to treatment for them – it only means that the worker's permanent disability rating isn't supposed to include such conditions. 

However Section 4660.1, as amended, applies only to claims with specific injury dates after Jan. 1, 2013, so it has no effect on Am Kang's case. 

Kang had worked for Radiator USA as a driver and loader. He sustained an admitted injury to his back on Christmas Eve in 2010. 

After his injury, Kang saw Dr. Rodney Bluestone, a qualified medical evaluator in rheumatology. Bluestone noted that Kang appeared to be "very depressed" and had admitted having "suicidal thoughts."

Bluestone opined that Kang was "suffering from significant depression, which probably lowers his pain threshold and which may impact the quality of his sleep, resulting in greater fatigue and a sleep-and-arousal disorder." 

Dr. David Pechman, an orthopedic surgeon who served as the agreed medical evaluator for Kang's back injury, also reported Kang was suffering from sleep loss, anxiety and depression. 

In August 2012, Kang went to see Ana L. Nogales, a psychologist, complaining that he was unable to sleep and feeling discouraged, hopeless, helpless and worthless. He said he was irritable and could no longer see a future for himself because of how his orthopedic injury had affected his quality of life. 

Nogales diagnosed Kang with moderate clinical depression and moderate clinical anxiety. She opined that Kang's mental conditions had developed as a consequence of the industrial injury to his back.

A workers' compensation judge last December found Kang had sustained an industrial injury to his back, sleep and psyche.

Kang's employer petitioned the WCAB for reconsideration, but a panel – comprised of Chairwoman Ronnie Caplane, Commissioner Frank Brass and Deputy Rick Dietrich – denied the employer's petition on March 17.

Brass, writing for the panel, pointed out that the opinions of Nogales, Pechman and Bluestone all supported a finding of industrial causation, and that these medical experts all adequately explained the reasoning behind their conclusions. Since Kang's employer did not offer any evidence, documentary or testimonial, rebutting or impeaching the opinions of the doctors, Brass said the reports from the doctors constituted substantial evidence upon which the WCJ properly relied.

Brass also emphasized that the WCJ's findings on credibility are entitled to great weight, and that the judge had found Kang to be a credible witness. 

Radiator USA filed a petition for writ of review with the 2nd DCA on Monday. Kang's answer is due May 23. 

David L. Zimmerman of Floyd Skeren & Kelly is representing the employer. Jamey Teitell of the Law Office of Solov & Teitell is representing Kang. 

Another dispute is being presented to the 6th DCA in a case called Dominguez v. WCAB, No. H040928. This case involves the provision of home health care services to a worker by the worker's son. 

SB 863 amended Labor Code Section 4600(h) to provide that an employer will not be liable for home health care services that are provided more than 14 days prior to the date of the employer's receipt of the physician's prescription for such services. 

Section 5307.8 was also changed by the legislation to state that a family member cannot be paid for any services to a worker that had been regularly performed by that family member, in the same manner and to the same degree, prior to the date of injury.

These versions of the statutes didn't apply to Lisa Leong, since she broke her leg while working for Robert Dominguez DDS in 2008. She died of cancer two years later. 

Before her death, Leong was significantly debilitated by her illness and her injury. Workers' Compensation Judge David Lauerman found that Dominguez's workers' compensation carrier – the Zurich North American Insurance Co. – knew that Leong potentially needed home health care assistance less than two weeks after her injury.

By August 2008, Lauerman determined that Zurich knew that Leong's son was caring for her, but the carrier never undertook any steps to investigate Leong's actual need for care.

After Leong's death, her son made a claim for payment for his services. Lauerman issued a findings and award in November 2012 – approximately six weeks before SB 863 took effect – directing Zurich to pay Leong's son a total of $105,600.

Zurich sought reconsideration. Last May, a WCAB panel – comprised of Caplane and Commissioners Deidra Lowe and Alfonso Moresi – rescinded the award. The board ordered the case returned to the WCJ for development of the record on Leong's need for home health care services in connection with her industrial injury, and the extent to which any such services were provided by her son.

After the case came back to Lauerman, he found that Zurich had done nothing to develop the record, as required by the board. He ordered the parties to obtain the needed evidence from an independent medical evaluator. 

Zurich then petitioned the WCAB for removal.

The carrier argued that developing the record further would cause it to incur unnecessary and excessive expenses. It insisted that it was certain to prevail on the basis of Section 4600(h), which required that any claim for home health care be supported by a contemporaneous prescription from a treating physician. 

Lauerman, in his report and recommendation to the board, acknowledged that Zurich's argument had "a good deal of merit," as he was not aware of the existence of any prescription for home health care. However, he said he remained convinced that a decision on the effect of Section 4600(h) had to wait until after the record is developed. 

"The Board's directives for development of the record may not be flouted simply because defendant believes they were misguided," Lauerman wrote. 

The WCAB issued a two-line order denying removal last month, and Zurich filed a petition for judicial review on April 18. 

Sukhdeep Kaur of the Law Offices of Beverly E. Narayan is representing Zurich, while Santa Clara attorney Michael J. Richter is representing Leong's son. Richter has until May 13 to file an answer to Zurich's petition. 

Applicant attorney Alan Gurvey of Rowen Gurvey & Win on Tuesday remarked that disputes about the impact of SB 863 seem to be mostly at the hearing level for now. The situation, he said, is a "quagmire." Expedited hearing requests are on the rise and "issues in accepted claims are being litigated more than ever." 

Most of the disputes appear to involve questions of how medical provider network, qualified medical evaluator and utilization review/independent medical review processes are supposed to work, Gurvey said.

He added that he also found it "unfortunate that all of the changes and ambiguities in the law have resulted in often mean-spirited and win-at-all-cost behaviors by certain players that have caused costs to rise and tempers to flare."

Gurvey predicted that many of the issues currently being hashed out at trials are going to get appealed, and so the Court of Appeals will soon be having to address much of "the minutiae" of the changes made by SB 863. 

The other cases in which petitions for writ of review have been filed in April are: 

·         City and County of San Francisco v. WCAB, No. A141650;

·         Stevens v. WCAB, No. A141435;

·         Powell v. WCAB, No. A141429;

·         Schultz v. WCAB, No. B255678;

·         Cameron v. WCAB, No. B255389;

·         CIGA v. WCAB, No. B255345;

·         Reiner v. WCAB, No. B255331;

·         Csaki v. WCAB, No. D065756;

·         Roper v. WCAB, No. E060878;

·         Fetner v. WCAB, No. G049967; and 

·         White v. WCAB, No. H040944.

 

Published on 04/30/2014 by WorkCompCentral, authored by Sherri Okamoto