ADJ10261474 · February 4, 2022

The WCJ found sufficient evidence to support compensability of injury to the nervous and circulatory systems, legs, face, and hearing based on medical reports, including Dr. Newkirk's and Dr. Carrigg's opinions, and rejected compensability of brain injury.

From the decision · page 73. Trial decisions. After carefully considering the entire record, I concluded that applicant met her burden of proof with respect to injury to her nervous and circulatory systems, consisting of Dr. Newkirk's reports which describe her condition as a "neurovascular compression syndrome." As mentioned above, I specifically excluded from this finding applicant's alleged cardiac arrhythmias. Likewise, I found sufficient support in Dr. Newkirk's reporting to deem applicant's legs and face compensable. And, on the basis of Dr. Carrigg's opinion in exhibit 13, I concluded that applicant's tinnitus arises from her industrially caused TOS and is therefore itself industrial. On the other hand, I found no compensable injury to the brain. Turning to the appropriate level of permanent disability, I was persuaded by the opinions of Dr. Newkirk and Ms.

From the decision · page 24Having carefully analyzed the evidence, I conclude that applicant met her burden of proof with respect to permanent total disability arising from the industrial injury herein. Dr. Newkirk's findings and opinions are not only unequivocal with regard to her symptoms and limitations, they are also unrebutted, given Dr. Lewis's complete abdication of his reporting responsibilities in favor of deferring to the PTP. And while a physician's opinion regarding someone's lack of employment prospects cannot, in most instances, form the only basis for a finding of total disability absent a concordant scheduled rating, Dr. Newkirk's opinions are persuasive, easy to follow, and consistent with the reporting of Dr. Avery and, to a large extent, Dr. Lewis as well.

Applicant's medical evidence from Dr. Newkirk and Dr. Carrigg supported compensability of injury to nervous and circulatory systems, legs, face, and hearing.

Favours Applicant prevailed

This evidence was credited by the WCJ and supported the finding of compensability for these body parts.

From the decision · page 73. Trial decisions. After carefully considering the entire record, I concluded that applicant met her burden of proof with respect to injury to her nervous and circulatory systems, consisting of Dr. Newkirk's reports which describe her condition as a "neurovascular compression syndrome." As mentioned above, I specifically excluded from this finding applicant's alleged cardiac arrhythmias. Likewise, I found sufficient support in Dr. Newkirk's reporting to deem applicant's legs and face compensable. And, on the basis of Dr. Carrigg's opinion in exhibit 13, I concluded that applicant's tinnitus arises from her industrially caused TOS and is therefore itself industrial. On the other hand, I found no compensable injury to the brain. Turning to the appropriate level of permanent disability, I was persuaded by the opinions of Dr. Newkirk and Ms.

Favours Applicant prevailed

From the decision · page 24Having carefully analyzed the evidence, I conclude that applicant met her burden of proof with respect to permanent total disability arising from the industrial injury herein. Dr. Newkirk's findings and opinions are not only unequivocal with regard to her symptoms and limitations, they are also unrebutted, given Dr. Lewis's complete abdication of his reporting responsibilities in favor of deferring to the PTP. And while a physician's opinion regarding someone's lack of employment prospects cannot, in most instances, form the only basis for a finding of total disability absent a concordant scheduled rating, Dr. Newkirk's opinions are persuasive, easy to follow, and consistent with the reporting of Dr. Avery and, to a large extent, Dr. Lewis as well.

Dr. Lewis diagnosed thoracic outlet syndrome (TOS) and related conditions but deferred impairment rating to Dr. Newkirk, acknowledging his own analysis was outdated and incomplete.

Dr. Lewis's reports were considered but found incomplete and outdated; he deferred to Dr. Newkirk for impairment rating.

From the decision · page 8to the findings on which the award is based. Petitioners assert that the opinions set forth by the QME, Dr. Lewis, do not rise to the level of substantial medical evidence. They further allege that Dr. Lewis violated Labor Code section 4628 and Regulation 32 (Cal. Code Regs., tit. 8, § 32) when he deferred to Dr. Newkirk with respect to TOS-related impairment. While neither the statute nor the regulation appear to actually apply here, it is true that Dr. Lewis did not produce an impairment opinion that can be considered substantial evidence. The analysis in his 2018 report in exhibit 2 is outdated and incomplete in light of subsequent medical developments. In later reporting and testimony, he opted to rely on Dr. Newkirk's analysis in lieu of his own in a way that cannot be characterized as substantial. Petitioners' ultimate contention is flawed, however, in that the record does include substantial medical evidence on the issue of impairment (the reports of Dr.

Dr. Newkirk diagnosed neurovascular compression syndrome and found the applicant permanently totally disabled with work restrictions precluding return to work.

Dr. Newkirk's opinions were credited as persuasive and unrebutted, supporting permanent total disability.

From the decision · page 24Having carefully analyzed the evidence, I conclude that applicant met her burden of proof with respect to permanent total disability arising from the industrial injury herein. Dr. Newkirk's findings and opinions are not only unequivocal with regard to her symptoms and limitations, they are also unrebutted, given Dr. Lewis's complete abdication of his reporting responsibilities in favor of deferring to the PTP. And while a physician's opinion regarding someone's lack of employment prospects cannot, in most instances, form the only basis for a finding of total disability absent a concordant scheduled rating, Dr. Newkirk's opinions are persuasive, easy to follow, and consistent with the reporting of Dr. Avery and, to a large extent, Dr. Lewis as well.

Dr. Carrigg found tinnitus industrially caused by thoracic outlet syndrome, supporting compensability of hearing issues.

Dr. Carrigg's opinion supported compensability of tinnitus as industrial.

From the decision · page 73. Trial decisions. After carefully considering the entire record, I concluded that applicant met her burden of proof with respect to injury to her nervous and circulatory systems, consisting of Dr. Newkirk's reports which describe her condition as a "neurovascular compression syndrome." As mentioned above, I specifically excluded from this finding applicant's alleged cardiac arrhythmias. Likewise, I found sufficient support in Dr. Newkirk's reporting to deem applicant's legs and face compensable. And, on the basis of Dr. Carrigg's opinion in exhibit 13, I concluded that applicant's tinnitus arises from her industrially caused TOS and is therefore itself industrial. On the other hand, I found no compensable injury to the brain. Turning to the appropriate level of permanent disability, I was persuaded by the opinions of Dr. Newkirk and Ms.

Labor Code section 5502(e)(3)

Issues not raised at the first opportunity are waived under Labor Code section 5502(e)(3).

Defendant waived the issue of additional panel QMEs by not raising it timely.

From the decision · page 1Defendant did not raise the issue of additional panel qualified medical examinations (PQMEs) at trial or in the second amend Pre-Trial Conference Statement (PTCS) (EAMS Document ID No. 74575629) submitted by the parties. Therefore, that issue was waived. Issues not raised at the first opportunity that they may properly be raised are waived. (Lab. Code, § 5502(e)(3), see also Gould v. Workers' Comp. Appeals Bd. (1992) 4 Cal.App.4th 1059 [57 Cal.Comp.Cases 157], Griffith v. Workers' Comp. Appeals Bd. (1989) 209 Cal.App.3d 1260 [54 Cal.Comp.Cases 145].)

Labor Code section 4628

Qualified Medical Evaluator reports must be substantial evidence to support findings.

Dr. Lewis's QME reports were found incomplete and outdated; Dr. Newkirk's reports were relied upon for impairment and disability findings.

From the decision · page 8to the findings on which the award is based. Petitioners assert that the opinions set forth by the QME, Dr. Lewis, do not rise to the level of substantial medical evidence. They further allege that Dr. Lewis violated Labor Code section 4628 and Regulation 32 (Cal. Code Regs., tit. 8, § 32) when he deferred to Dr. Newkirk with respect to TOS-related impairment. While neither the statute nor the regulation appear to actually apply here, it is true that Dr. Lewis did not produce an impairment opinion that can be considered substantial evidence. The analysis in his 2018 report in exhibit 2 is outdated and incomplete in light of subsequent medical developments. In later reporting and testimony, he opted to rely on Dr. Newkirk's analysis in lieu of his own in a way that cannot be characterized as substantial. Petitioners' ultimate contention is flawed, however, in that the record does include substantial medical evidence on the issue of impairment (the reports of Dr.

Applicant's testimony and medical reports from Dr. Newkirk and Dr. Carrigg supported compensability of injury to nervous and circulatory systems, legs, face, and hearing.

From the decision · page 73. Trial decisions. After carefully considering the entire record, I concluded that applicant met her burden of proof with respect to injury to her nervous and circulatory systems, consisting of Dr. Newkirk's reports which describe her condition as a "neurovascular compression syndrome." As mentioned above, I specifically excluded from this finding applicant's alleged cardiac arrhythmias. Likewise, I found sufficient support in Dr. Newkirk's reporting to deem applicant's legs and face compensable. And, on the basis of Dr. Carrigg's opinion in exhibit 13, I concluded that applicant's tinnitus arises from her industrially caused TOS and is therefore itself industrial. On the other hand, I found no compensable injury to the brain. Turning to the appropriate level of permanent disability, I was persuaded by the opinions of Dr. Newkirk and Ms.

From the decision · page 24Having carefully analyzed the evidence, I conclude that applicant met her burden of proof with respect to permanent total disability arising from the industrial injury herein. Dr. Newkirk's findings and opinions are not only unequivocal with regard to her symptoms and limitations, they are also unrebutted, given Dr. Lewis's complete abdication of his reporting responsibilities in favor of deferring to the PTP. And while a physician's opinion regarding someone's lack of employment prospects cannot, in most instances, form the only basis for a finding of total disability absent a concordant scheduled rating, Dr. Newkirk's opinions are persuasive, easy to follow, and consistent with the reporting of Dr. Avery and, to a large extent, Dr. Lewis as well.