ADJ10126914 · March 8, 2021

The Applicant's petition failed to cite specific record evidence, relied on subjective complaints without medical support, and misrepresented the findings; the WCJ's report was adopted and the petition denied.

From the decision · page 4Applicant's Petition for Reconsideration seeks an order reversing the Finding of Fact that the Applicant has not rebutted the schedule rating and an award of permanent and total disability. As the Applicant has not sought reconsideration on the Findings that the Applicant failed to demonstrate industrial injury to the lumbar spine, that determination is considered final. (See: Labor Code section 5904.) The Applicant's petition incorrectly asserts the undersigned failed to evaluate the vocational and testimonial evidence presented by the Applicant and provides no statutory, regulatory or case law authority to support the assertions made. As the Applicant's assertions at trial and on Reconsideration are based entirely on the Applicant's subjective complaints without any medical support the undersigned recommends Reconsideration be denied.

Applicant failed to provide medical evidence supporting work restrictions due to medication effects.

Favours Defendant prevailed

Without medical evidence, subjective complaints alone do not rebut the schedule rating or support permanent and total disability.

Vocational evaluator's opinions on medication effects were speculative and not based on medical evidence.

Favours Defendant prevailed

The Board rejected vocational opinions not grounded in medical evidence, affirming the denial of reconsideration.

Found Applicant permanent and stationary with 26% whole person impairment for lumbar spine; no injury to right hip; apportioned 10% non-industrial cause; no work restrictions given.

Medical evidence did not support Applicant's subjective complaints or work restrictions related to medication; vocational evaluator's opinions not based on medical evidence were rejected.

From the decision · page 4The Applicant was evaluated by Agreed Medical Evaluator (AME) Dr. David Pang on December 16, 2020. Dr. Pang noted the Applicant was hired by Worldwide Service on June 1, 2015 and laid off on September 11, 2015. (Defendant Exhibit A, Page 2.) The Applicant reported that he spent most of his time hunched over at the waist and stooping. (Id.) The Applicant reported that he first became aware of pain in his lower back sometime in 2014 that progressed and became worse as time went on. (Id.) Dr. Pang found the Applicant permanent and stationary and provided a 26% whole person impairment for the lumbar spine. (Id. at 6.) With regard to the Applicant's right hip, Dr. Pang found the Applicant sustained referred pain to the right hip, but concluded that he did "not feel that the applicant sustained an injury or has a disorder oft eh right SI joint or right hip." (Id. at 7.) Dr. Pang apportioned 10%

Labor Code section 5902; Cal. Code Regs., tit. 8, former 10842, now 10945

Petition for reconsideration must set forth grounds specifically and in full detail, verified under oath, and fairly state all material evidence relevant to the issues.

Petition was dismissed for failure to cite specific record evidence and for being skeletal and unsupported.

From the decision · page 1The petition for reconsideration shall set forth specifically and in full detail the grounds upon which the petitioner considers the final order, decision or award made and filed by the appeals board or a workers' compensation judge to be unjust or unlawful, and every issue to be considered by the appeals board. The petition shall be verified upon oath in the manner required for verified pleadings in courts of record and shall contain a general statement of any evidence or other matters upon which the applicant relies in support thereof. (Lab. Code, § 5902, emphasis added.)

Vocational evaluator Ira Cohen's opinions on medication effects not based on medical evidence

From the decision · page 102) Ira Cohen's conclusion that the Applicant is not amenable to rehabilitation is not substantial evidence because it is not based upon any medical evidence.

Applicant's subjective complaints about pain and medication effects without medical support

From the decision · page 8The parties appeared for trial on November 16, 2020. The Applicant testified on his own behalf. Notably, the applicant testified about experiencing fatigue, dizziness, and moments of confusion as a result of his medication usage. The Applicant testified that he did not believe he could do any employment activities on a sustained basis as a result of his pain levels and his medication usage. The parties stipulated that if the Applicant could not demonstrate rebuttal of the schedule rating, the case would rate to 45% permanent disability pursuant to the schedule rating.