Jul 16, 2018



By: Stephanie Spencer

It is always of benefit to attend the CAAA Seminars for learning opportunities and to gain insight into the applicant attorney’s strategies. This year’s summer meeting was held at Disneyland in Anaheim with in-depth discussions on a number of salient topics including: psychiatric injuries and Labor Code § 4660.1, compensable consequence injuries in light of Hikida, the most important cases of 2018, pain management and opioids.

  • Labor Code § 4660.1 – Psychiatric impairment that is the consequence of a physical injury is not compensable.

However, there was focus on the exceptions, notably victim of a violent act or catastrophic injury. Reference was made to the 2017 Torres case in which a tree trimmer fell 20’ from a tree. The case was remanded for development of the record but the questions regarding the exceptions included the following: Was the psychiatric injury caused by the fall or the result of a compensable physical injury, or both? Was the injury or its effects deemed catastrophic? Did the mechanism of injury constitute a violent act?

Other case examples included a security guard hit by a car while walking through a parking lot, a truck driver stuck in an upside down cab for 20 minutes; car crash into cement pillar due to brake failure.

  • Hikida v. WCAB (2017) 12 Cal. App 5th 1429; 82CCC679

Applicant developed carpal tunnel syndrome 90% of which was deemed as a result of industrially related cumulative trauma and 10% non-industrially related. Surgery for this condition went poorly and applicant developed complex regional pain syndrome (CRPS) with debilitating pain in the upper extremities. The AME found her permanent and totally disabled due to the effects of CRPS. The Court of Appeal held that the disability was caused from the unsuccessful medical intervention, without apportionment.

Query: If the medical treatment met the proper standard in all respects, is the employer still responsible for all outcomes without apportionment? Applicant attorneys argue that they will be in situations such as: opioid dependence, adverse medication reaction, surgical infections, knee replacements, UR denials and lack of medical treatment, which is alleged to cause problems.

NOTE: This seems contrary to the Labor Code 4663 mandate allowing for apportionment where an injury lights up an underlying disease process, condition or injury. The need for surgery was in part due to non-industrial factors. Another important point in Hikida is that the PD had to arise directly from the unsuccessful medical intervention.

  • “Pass through” apportionment


When multiple specialties are involved, each medical-legal evaluator must make independent apportionment determinations in their area of specialty.

  • Most Important 2018 Cases
    • Hunter – A Petition to Reopen for new and further disability was filed just prior to the expiration of the 5 years. There was absolutely no medical evidence to support the petition. The WCAB allowed the WCJ to “develop the record” despite this technically deficient Petition to Reopen and allowed the judge’s order to have applicant return to the AME who had originally reported.
    • Dynamex – A civil case which discusses independent contractor vs. employee status. The most important considerations in determining the former only if the hiring firm establishes: (a) worker is free from control and direction; (b) worker performs work that is outside the usual course of the hiring entity’s “business”; and (c) the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed.
    • Alvarado – Calculating overtime compensation and AWW; the bonus is to be divided by the number of non-overtime hours that the employee actually worked, during the pay period.
    • Maldonado – Defendants have the right to utilize Nurse Case Managers as a facilitator of the claims administration process.
    • County of San Diego (Pike) – Despite the Board’s jurisdiction because of a timely filed Petition to Reopen, TD cannot be awarded 5 years from the date of injury per Labor Code 4656(c)(1).
  • Pain Management Programs
    • Non-pharmacologic interventions: massage & movement therapies music concerts, hypnosis, music therapy, computer-simulated 3-D environments, dogs.
    • Inter-disciplinary programs include nurses, psychologists, therapists, vocational counselors, pharmacists, nutritionists, social workers, and of course pain management physicians. Chronic pain requires use of opioids.
    • Applicant attorneys insist chronic pain patients still need opioid therapy, but recognize need for continued functional assessments, weaning if viable; cannabis has a role.

As always, applicant attorneys will be attempting to limit apportionment and expand benefit legislation.

Ingber & Weinberg, LLP will continue in our ongoing efforts to provide our counter responses and recommendations on how best to deal with these further practice challenges.

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