ADJ10591850 · May 9, 2024

The WCJ found the record insufficient to determine injury AOE/COE to the nervous system/psyche, headaches, diabetes, and hypertension and ordered further development of the record. The Appeals Board agreed with the WCJ's decision to deny reconsideration and require further development due to incomplete medical opinions.

From the decision · page 1Defendant seeks reconsideration of a February 26, 2024 Findings and Award (F&A) issued by a workers' compensation administrative law judge (WCJ) wherein the WCJ found applicant sustained injury arising out of and in the course of employment (AOE/COE) to the neck, low back, bilateral wrists (carpal tunnel syndrome), and bilateral shoulders. The WCJ found the current record insufficient with respect to whether applicant sustained injury AOE/COE to the nervous system/psyche, headaches, diabetes, and hypertension. The WCJ ordered parties to further develop the record and to meet and confer in an attempt to reach an agreement on Agreed Medical Evaluators (AMEs) to address injury AOE/COE as well "whole person impairment, permanent disability, and apportionment" where applicable. (F&A, p. 2.)

Dr. Feiwell's AME report reviewed Dr. Petruszka's diagnoses of diabetes, hypertension, depressive disorder/anxiety/sleep disorder, and other conditions but did not provide his own opinion on these findings.

Favours Applicant prevailed

This incomplete reporting justified the WCJ's order to develop the record further to determine injury AOE/COE for additional claims.

From the decision · page 6At trial defendant offered the Agreed Medical Evaluator report of Lawrence A. Feiwell, M.D. dated April 14, 2020. Over applicant's objection the report was admitted into evidence and marked as defendant's exhibit "G". On page 3 of the report Dr. Feiwell reviews various reports from Marvin Petruszka, M.D. which diagnose the applicant with a number of problems including:

The Appeals Board found that evidence pertaining to applicant's additional claims is already part of the record, but the medical opinions are incomplete and require further development.

Favours Applicant prevailed

This supported denial of defendant's petition for reconsideration and the order to develop the record.

From the decision · page 34-5.) As such, evidence pertaining to applicant's additional claims is already a part of the record. As noted by the WCJ, Dr. Feiwell has yet to provide his own opinions regarding these findings. We do not believe it necessary, however, for Dr. Feiwell to provide his opinions regarding these findings as he is an orthopedic AME. We agree with the WCJ that the parties should meet and confer in an attempt to reach an agreement on AMEs to develop the record on the issue of AOE/COE for the additional claims of headaches, diabetes, hypertension, and injury to the psyche/nervous system. If agreement is not possible, the parties should then proceed with panels in the appropriate specialties.

Reviewed reports from Dr. Marvin Petruszka diagnosing diabetes mellitus, hypertension, depressive disorder/anxiety/sleep disorder, and other conditions, but did not provide his own opinion on these findings, leading to incomplete reporting.

The WCJ found Dr. Feiwell's report incomplete as he did not indicate agreement or disagreement with Dr. Petruszka's opinions, justifying further record development.

From the decision · page 6At trial defendant offered the Agreed Medical Evaluator report of Lawrence A. Feiwell, M.D. dated April 14, 2020. Over applicant's objection the report was admitted into evidence and marked as defendant's exhibit "G". On page 3 of the report Dr. Feiwell reviews various reports from Marvin Petruszka, M.D. which diagnose the applicant with a number of problems including:

Diagnosed applicant with diabetes mellitus (aggravated by work injury), hypertension (aggravated by work injury), depressive disorder/anxiety/sleep disorder, and other conditions related to psychological factors.

His medical reports were reviewed by Dr. Feiwell and referenced in the record as evidence of internal and psychiatric industrial injuries.

From the decision · page 6At trial defendant offered the Agreed Medical Evaluator report of Lawrence A. Feiwell, M.D. dated April 14, 2020. Over applicant's objection the report was admitted into evidence and marked as defendant's exhibit "G". On page 3 of the report Dr. Feiwell reviews various reports from Marvin Petruszka, M.D. which diagnose the applicant with a number of problems including:

McClune v. Workers' Comp. Appeals Bd., 62 Cal. App. 4th 1117

A Workers' Compensation Judge (WCJ) may develop the record if neither side has presented substantial evidence on which a decision could be based.

The WCJ found the medical opinions incomplete and unpersuasive, justifying further development of the record.

From the decision · page 7Notwithstanding this review of records Dr. Feiwell fails to indicate whether he agrees, or disagrees with the opinions of Dr. Petruszka. Thus, Dr. Feiwell's reporting is incomplete. Where the WCJ finds the opinions of the experts to be incomplete and unpersuasive the WCJ may order development of the record. McClune v. Workers' Comp. Appeals Bd., 62 Cal. App. 4th 1117.

Labor Code sections 5701 and 5502

The WCJ's duty to develop the record is limited by Labor Code section 5502 and relevant case law, including the requirement that new evidence must not have been available or discoverable before the mandatory settlement conference.

The Appeals Board agreed with the WCJ that the parties should meet and confer to agree on AMEs to develop the record on additional claims, and if no agreement, proceed with panels in appropriate specialties.

From the decision · page 3Removal is an extraordinary remedy rarely exercised by the appeals board. (Cortez v. Workers' Comp. Appeals Bd. (2006) 136 Cal.App.4th 596, 599, fn. 5 [71 Cal.Comp.Cases 155]; Kleemann v. Workers' Comp. Appeals Bd. (2005) 127 Cal.App.4th 274, 280, fn. 2 [70 Cal.Comp.Cases 133].) The appeals board will grant removal only if the petitioner can show that substantial prejudice or irreparable harm will result if removal is not granted. (Cal. Code Regs., tit. 8, § 10955(a). The petitioner must also demonstrate that reconsideration will not be an adequate remedy if a final decision adverse to the petitioner ultimately issues. (Id.) In the instant case, we are not persuaded that substantial prejudice or irreparable harm will result if removal is denied and/or that reconsideration will not be an adequate remedy if the matter ultimately proceeds to a final decision adverse to defendant.

Applicant's credibility and the accuracy of the history given to medical examiners may affect the substantiality of medical evidence, but defendant did not challenge the substantiality of AME Feiwell's opinions at trial.

From the decision · page 8D Applicant's Credibility Petitioner argues that in its opinion the applicant was not credible and therefore the record should not be developed to determine whether she sustained injury in the nature of headaches, internal (in the nature of diabetes and high blood pressure), and psych/nervous system on a cumulative trauma basis. Expert medical evidence is necessary if an applicant is alleging a cumulative trauma injury or occupational disease. Peter Kiewit Sons v. IAC (McLaughlin) (1965) 30 CCC 188. That is the case here. While there is some evidence in the record that the applicant sustained these injuries on an industrial basis AME Feiwell's reporting is incomplete in that he fails to indicate whether he agrees or disagrees with this evidence. Applicant's credibility and the accuracy of the history that she gives to a medical examiner may have bearing on whether the examining physician's report is substantial medical evidence. However, petitioner did not challenge the substantiality of the opinions of AME Feiwell at trial.