ADJ10282592 — California WCAB decision

What the panel ordered

Petition for Reconsideration granted, Findings and Order rescinded, matter returned to trial level for further proceedings

Petition for Reconsideration granted, Findings and Order of June 7, 2022 rescinded, matter returned to trial level for further proceedings

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What was disputed, and how it came out

Each issue the panel decided, with the reasoning it gave. An outcome is what this panel did on this record — not a rule, and not a prediction.

AOE/COERemandedinternal systems · bilateral knees · right shoulder

The Appeals Board found that the evidence was insufficient to establish that applicant's internal conditions preexisted the subsequent cumulative trauma injury, requiring further development of the record on this issue.

From the decision · page 7Here, given the totality of the evidence in the record, Dr. Anderson's report coupled with applicant's trial testimony and the mention of these internal conditions in Dr. Charles's and Dr. Jamasbi's reports, we believe that applicant did suffer from these internal conditions and that they were labor disabling. However, the evidence in the record is lacking as to whether applicant's internal conditions preexisted her subsequent cumulative trauma injury. For this reason, we return this matter to the trial level for further development of the record on the specific issue of whether applicant's labor disabling asthma, diabetes, heart disease, gout, and arthritis preexisted the subsequent cumulative trauma injury ending on June 13, 2013. (Tyler v. Workers' Comp. Appeals Bd. (1997) 56 Cal. App.4th 389, 393-395 [62 Cal.Comp.Cases 924]; McClune v. Workers' Comp. Appeals Bd. (1998) 62 Cal.App.4th 1117, 1121-1122 [63 Cal.Comp.Cases 261]; see § 5701 and 5906 and McDuffie v. Los Angeles County Metropolitan Transit Authority (2001) 67

The facts that decided it

What the panel treated as outcome-determinative, and which side it favoured.

Applicant's internal conditions (asthma, diabetes, heart disease, gout, arthritis) are labor disabling

Favours Applicant prevailed

These conditions are ratable permanent disabilities with permanent disability ratings provided by Dr. Anderson, supporting eligibility for benefits

From the decision · page 6Here, we note that an employee's ability to work does not determine whether a disability is labor disabling. (Ferguson, supra, 50 Cal.2d at p. 477; Franklin, supra, 79 Cal.App.3d at p. 238.) A preexisting permanent disability is labor disabling when the injury "would be independently capable of supporting an award." (Ferguson, at p. 477.) The internal conditions here: asthma, diabetes, heart disease, gout, and arthritis, are all ratable permanent disabilities for which Dr. Anderson provided a permanent disability rating. Thus, applicant's internal conditions are labor disabling. The question, however, is whether Dr. Anderson's permanent disability ratings are a retroactive prophylactic work restriction.

Evidence is lacking whether applicant's internal conditions preexisted the subsequent cumulative trauma injury

Favours neutral

Insufficient evidence on preexistence requires remand for further development of the record

From the decision · page 7Here, given the totality of the evidence in the record, Dr. Anderson's report coupled with applicant's trial testimony and the mention of these internal conditions in Dr. Charles's and Dr. Jamasbi's reports, we believe that applicant did suffer from these internal conditions and that they were labor disabling. However, the evidence in the record is lacking as to whether applicant's internal conditions preexisted her subsequent cumulative trauma injury. For this reason, we return this matter to the trial level for further development of the record on the specific issue of whether applicant's labor disabling asthma, diabetes, heart disease, gout, and arthritis preexisted the subsequent cumulative trauma injury ending on June 13, 2013. (Tyler v. Workers' Comp. Appeals Bd. (1997) 56 Cal. App.4th 389, 393-395 [62 Cal.Comp.Cases 924]; McClune v. Workers' Comp. Appeals Bd. (1998) 62 Cal.App.4th 1117, 1121-1122 [63 Cal.Comp.Cases 261]; see § 5701 and 5906 and McDuffie v. Los Angeles County Metropolitan Transit Authority (2001) 67

What the panel did with the medical opinions

The role the physician served, and the weight the opinion carried. Physicians are named here as the decision names them; we do not score them.

otherRejected

Provided permanent disability ratings for applicant's internal conditions including asthma, diabetes, heart disease, gout, and arthritis, but his opinions were found not to be substantial evidence due to lack of basis and failure to establish preexistence of conditions.

The WCJ concluded Dr. Anderson's opinions were not substantial medical evidence because the medical reports he reviewed did not address the internal injuries and the medications listed did not establish preexistence of the conditions.

From the decision · page 6The WCJ concludes that the evidence is not sufficient to carry applicant's burden of establishing preexisting labor disabling disabilities. Specifically, the WCJ concludes that Dr. Anderson's opinions are not substantial medical evidence because there is no basis for his opinions. The WCJ points out that the medical reports that Dr. Anderson reviewed do not address applicant's internal injuries and that the current medications identified in his report do not describe that they are to treat applicant's hypertension, diabetes, chronic asthma or chronic gout. (Opinion on Decision, pp. 5-6.; Report, p. 6) Additionally, the WCJ concludes that applicant's trial testimony that she sought treatment for her internal injuries is not sufficient to establish her burden to prove preexisting disability. (Opinion on Decision, p. 6; Report, p. 7.) The WCJ notes that applicant returned to work full time after the subsequent cumulative trauma injury and had continued to work until May 2016, when she sustained another injury. (Opinion on Decision, p. 6; Report, p. 7.) The WCJ also seems to call into question applicant's testimony that she took time off from work because of her internal conditions by pointing out that applicant also testified that she took time off from work for physical therapy appointments and vacation. (Opinion on Decision, p. 6; Report, p. 7.)

otherPartially credited

Medical reports noted applicant's internal conditions but did not establish preexistence of labor disabling disability prior to subsequent injury.

From the decision · page 7However, applicant provided uncontroverted trial testimony that she treated these conditions before the subsequent cumulative trauma injury (Minutes of Hearing and Summary of Evidence (MOHSOE) dated April 11, 2022, p. 4:36-45); and the WCJ points out that the 2016, 2017, and 2018 reports of Michael Charles, M.D., and Babak Jamasbi, M.D., note that applicant suffers from these internal conditions (Opinion on Decision, pp. 4-5). The WCJ cites to Ruiz v. Workers' Comp. Appeals Bd. (2013) 78 Cal.Comp.Cases 1182 (writ den.) for the proposition that a history of medical treatment does not equate to a prior labor disabling disability. (Opinion on Decision, p. 6; Report, p. 7.) The Appeals Board panel in Ruiz concluded that the report of a psychiatrist constituted an impermissible retroactive assignment of prior psychiatric disability. (Ruiz, supra, at p.

otherPartially credited

Medical reports noted applicant's internal conditions but did not establish preexistence of labor disabling disability prior to subsequent injury.

From the decision · page 7However, applicant provided uncontroverted trial testimony that she treated these conditions before the subsequent cumulative trauma injury (Minutes of Hearing and Summary of Evidence (MOHSOE) dated April 11, 2022, p. 4:36-45); and the WCJ points out that the 2016, 2017, and 2018 reports of Michael Charles, M.D., and Babak Jamasbi, M.D., note that applicant suffers from these internal conditions (Opinion on Decision, pp. 4-5). The WCJ cites to Ruiz v. Workers' Comp. Appeals Bd. (2013) 78 Cal.Comp.Cases 1182 (writ den.) for the proposition that a history of medical treatment does not equate to a prior labor disabling disability. (Opinion on Decision, p. 6; Report, p. 7.) The Appeals Board panel in Ruiz concluded that the report of a psychiatrist constituted an impermissible retroactive assignment of prior psychiatric disability. (Ruiz, supra, at p.

The rules the panel named

Authorities as the decision cited them, with how this panel applied each one.

California Labor Code

Labor Code section 4751

Defines eligibility requirements for benefits from the Subsequent Injuries Benefits Trust Fund

Ferguson v. Workmen's Comp. Appeals Bd.

An employee's ability to work does not determine whether a disability is labor disabling (Ferguson)

Clarifies that labor disabling disability is independent of ability to work

From the decision · page 6Here, we note that an employee's ability to work does not determine whether a disability is labor disabling. (Ferguson, supra, 50 Cal.2d at p. 477; Franklin, supra, 79 Cal.App.3d at p. 238.) A preexisting permanent disability is labor disabling when the injury "would be independently capable of supporting an award." (Ferguson, at p. 477.) The internal conditions here: asthma, diabetes, heart disease, gout, and arthritis, are all ratable permanent disabilities for which Dr. Anderson provided a permanent disability rating. Thus, applicant's internal conditions are labor disabling. The question, however, is whether Dr. Anderson's permanent disability ratings are a retroactive prophylactic work restriction.

Ruiz v. Workers' Comp. Appeals Bd.

History of medical treatment does not equate to prior labor disabling disability (Ruiz)

Medical treatment history alone insufficient to establish preexisting labor disabling disability

From the decision · page 71185.) "The medical treatment records from Kaiser do not establish that applicant's pathological non-industrial psychiatric condition was causing permanent disability prior to the subsequent industrial injury. [] In the absence of a pre-existing ratable permanent disability attributable to her psychiatric condition, applicant has not met the threshold for entitlement to SITBF benefits." (Id., emphasis added.) "... section 4751 `was not intended to apply to asymptomatic disease processes which were unknown to both the employee and employer and which in nowise interfered with the employee's ability to work.'" (Id. at p. 1186 citing Ferguson, supra, 23 Cal.Comp.Cases at p. 110; italics in original.)

What proof carried it

The evidence the panel weighed, by kind.

Testimony and credibilityfavours Applicant prevailed

Applicant's trial testimony that she treated internal conditions before the subsequent injury

From the decision · page 7However, applicant provided uncontroverted trial testimony that she treated these conditions before the subsequent cumulative trauma injury (Minutes of Hearing and Summary of Evidence (MOHSOE) dated April 11, 2022, p. 4:36-45); and the WCJ points out that the 2016, 2017, and 2018 reports of Michael Charles, M.D., and Babak Jamasbi, M.D., note that applicant suffers from these internal conditions (Opinion on Decision, pp. 4-5). The WCJ cites to Ruiz v. Workers' Comp. Appeals Bd. (2013) 78 Cal.Comp.Cases 1182 (writ den.) for the proposition that a history of medical treatment does not equate to a prior labor disabling disability. (Opinion on Decision, p. 6; Report, p. 7.) The Appeals Board panel in Ruiz concluded that the report of a psychiatrist constituted an impermissible retroactive assignment of prior psychiatric disability. (Ruiz, supra, at p.

Medical recordsfavours Defendant prevailed

Dr. Anderson's medical reports did not establish preexistence of internal conditions

From the decision · page 6The WCJ concludes that the evidence is not sufficient to carry applicant's burden of establishing preexisting labor disabling disabilities. Specifically, the WCJ concludes that Dr. Anderson's opinions are not substantial medical evidence because there is no basis for his opinions. The WCJ points out that the medical reports that Dr. Anderson reviewed do not address applicant's internal injuries and that the current medications identified in his report do not describe that they are to treat applicant's hypertension, diabetes, chronic asthma or chronic gout. (Opinion on Decision, pp. 5-6.; Report, p. 6) Additionally, the WCJ concludes that applicant's trial testimony that she sought treatment for her internal injuries is not sufficient to establish her burden to prove preexisting disability. (Opinion on Decision, p. 6; Report, p. 7.) The WCJ notes that applicant returned to work full time after the subsequent cumulative trauma injury and had continued to work until May 2016, when she sustained another injury. (Opinion on Decision, p. 6; Report, p. 7.) The WCJ also seems to call into question applicant's testimony that she took time off from work because of her internal conditions by pointing out that applicant also testified that she took time off from work for physical therapy appointments and vacation. (Opinion on Decision, p. 6; Report, p. 7.)

ADJ10282592 · August 30, 2022