ADJ10973875 — California WCAB decision

ADJ10973875 · October 22, 2021

The Board rescinded the WCJ's Findings and Award and issued a new decision finding the injury catastrophic under Labor Code section 4660.1(c)(2)(B), deferring issues of temporary and permanent disability for further record development.

Issues decided

Medical opinions weighed

Authorities named

District office

Van Nuys

What the panel ordered

Defendant sought reconsideration of the Findings and Award issued by the WCJ on September 24, 2020, which found compensable psychiatric injury and permanent disability; the WCJ report recommended denial of reconsideration; the Board granted reconsideration to further study factual and legal issues.

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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.

Other disputed issueApplicant prevailedlumbar spine · right ankle · right leg · GERD · hypertensive cardiovascular disease · psyche

Applicant's injury caused lasting and substantial impact on activities of daily living, including severe physical limitations and sleep difficulties, meeting the criteria for catastrophic injury under section 4660.1(c)(2)(B) and Wilson.

From the decision · page 10The record also shows that the injury has caused a lasting and substantial impact to his ability to perform ADLs.3 The medical evidence and applicant's trial testimony reveal that his physical activity is severely limited due to pain in various body parts, including chest pain, and difficulty with his ankle giving out. Applicant also struggles with sleep.

The facts that decided it

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

Applicant's psychiatric injury was predominantly caused by his industrial physical injury, supported by detailed medical evaluation and reasonable medical probability.

Favours Applicant prevailed

This established compensability of the psychiatric injury as a consequence of the physical injury, favoring the applicant.

From the decision · page 5Applicant was evaluated by David Reiss, M.D. as the psychiatric panel QME. Dr. Reiss diagnosed applicant with an adjustment disorder. (Applicant's Exhibit No. 3, Medical report of PQME David Reiss, M.D., January 21, 2020, p. 20.) This was considered predominantly caused "by the circumstances and medical sequelae of the applicant's industrially-related physical injury." (Id. at p. 19.) Dr. Reiss assigned applicant with a GAF score of 62, which translates to 12% WPI. (Id. at p. 21.) Apportionment was 75% to the injury and 25% to non-industrial causes. (Id. at p. 22.)

Applicant's injury caused lasting and substantial impact on activities of daily living, including severe physical limitations and sleep difficulties.

Favours Applicant prevailed

This supported the finding that the injury is catastrophic under Labor Code section 4660.1(c)(2)(B), favoring the applicant.

From the decision · page 10The record also shows that the injury has caused a lasting and substantial impact to his ability to perform ADLs.3 The medical evidence and applicant's trial testimony reveal that his physical activity is severely limited due to pain in various body parts, including chest pain, and difficulty with his ankle giving out. Applicant also struggles with sleep.

The medical record was incomplete and required supplementation, including providing the cardiology QME report to the internal medicine QME for review.

Favours neutral

This justified deferring the issues of temporary and permanent disability pending further development of the record.

From the decision · page 6Dr. Borsada recommended that applicant be evaluated by a cardiologist for his CHF. Pursuant to this recommendation, Dr. Archeatal conducted an evaluation as a panel QME in cardiology. However, Dr. Archeatal's report was not subsequently provided to Dr. Borsada for his review and comment. This omission is particularly significant considering the disparity between the two doctors' findings regarding permanent impairment.

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.

QMERelied upon · orthopedics

Found injury to pretibial area, right ankle, and low back industrial; no temporary disability discussed; supplemental report recommended for evidentiary completeness.

From the decision · page 2Peter Sofia, M.D. conducted the initial orthopedic QME evaluation in March 2018. (Joint Exhibit Z, Medical report of Peter Sofia, M.D., March 7, 2018.) Dr. Sofia found that applicant sustained injury to his pretibial area, the right ankle and the low back as a result of the industrial incident. (Id. at p. 9.) Applicant's arm and neck symptoms were considered non-industrial. (Id.)

QMERelied upon · gastroenterology

Diagnosed irritable bowel syndrome industrially caused; assigned 5% WPI with 100% industrial apportionment; no temporary total disability required for internal medicine issues.

From the decision · page 5James Sherman, M.D. evaluated applicant's gastrointestinal issues as a panel QME. Dr. Sherman diagnosed applicant with irritable bowel syndrome. (Joint Exhibit Y, Medical report of James Sherman, M.D. August 18, 2019, p. 7.) This was considered to have been caused on an industrial basis and to have reached maximum medical improvement. (Id. at p. 9.) Dr. Sherman assigned this disorder a 5% WPI rating. (Id.) Apportionment was 100% industrial. (Id. at p. 10.) He concluded that applicant "did not require temporary total disability on an industrial basis due to his problems in the arena of internal medicine." (Id.)

QMERelied upon · psychiatry

Diagnosed adjustment disorder predominantly caused by industrial physical injury; assigned 12% WPI with 75% industrial apportionment; supported compensability of psychiatric injury.

Provided thorough evaluation and detailed causation explanation to reasonable medical probability; opinions found persuasive and substantial evidence.

From the decision · page 5Applicant was evaluated by David Reiss, M.D. as the psychiatric panel QME. Dr. Reiss diagnosed applicant with an adjustment disorder. (Applicant's Exhibit No. 3, Medical report of PQME David Reiss, M.D., January 21, 2020, p. 20.) This was considered predominantly caused "by the circumstances and medical sequelae of the applicant's industrially-related physical injury." (Id. at p. 19.) Dr. Reiss assigned applicant with a GAF score of 62, which translates to 12% WPI. (Id. at p. 21.) Apportionment was 75% to the injury and 25% to non-industrial causes. (Id. at p. 22.)

QMENot substantial evidence · cardiology

Agreed with internal medicine QME's causational chain linking injury to cellulitis, nephrotic syndrome, fluid retention, hypertension, and edema; causation opinion supported industrial injury.

From the decision · page 4Roger Acheatel, M.D. subsequently evaluated applicant as the QME in cardiology. Dr. Acheatel concluded as follows in relevant part:

QMERelied upon · internal medicine

Diagnosed multiple industrial conditions including hypertension and CHF; assigned 56% WPI apportioned 100% industrial; recommended cardiology evaluation; report relied upon for permanent disability rating.

From the decision · page 3Minal Borsada, M.D. evaluated applicant as the internal medicine QME. Dr. Borsada

The rules the panel named

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

Labor Code section 3208.3

Burden of proof for compensability of psychiatric injury under Labor Code section 3208.3.

Applied to determine compensability of psychiatric injury.

From the decision · page 7II. The employee bears the burden of proving injury arising out of and in the course of employment (AOE/COE) by a preponderance of the evidence. (South Coast Framing v. Workers' Comp. Appeals Bd. (Clark) (2015) 61 Cal.4th 291, 297-298, 302 [80 Cal.Comp.Cases 489]; Lab. Code, § 3202.5, 3600(a).) With respect to psychiatric injuries, section 3208.3 provides, in relevant part, as follows:

Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 621 (Appeals Board en banc)

Substantial evidence standard for medical opinions requiring reasonable medical probability and adequate examination.

Applied to evaluate medical opinions for substantial evidence.

From the decision · page 6Decisions of the Appeals Board must be supported by substantial evidence. (Lab. Code, § 5903, 5952(d); Lamb v. Workmen's Comp. Appeals Bd. (1974) 11 Cal.3d 274 [39 Cal.Comp.Cases 310]; Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312 [35 Cal.Comp.Cases 500]; LeVesque v. Workmen's Comp. Appeals Bd. (1970) 1 Cal.3d 627 [35 Cal.Comp.Cases 16].) To constitute substantial evidence "... a medical opinion must be framed in terms of reasonable medical probability, it must not be speculative, it must be based on pertinent facts and on an adequate examination and history, and it must set forth reasoning in support of its conclusions." (Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 621 (Appeals Board en banc).) "Medical reports and opinions are not substantial evidence if they are known to be erroneous, or if they are based on facts no longer germane, on inadequate medical histories and examinations, or on incorrect legal theories. Medical opinion also fails to support the Board's findings if it is based on surmise, speculation, conjecture or guess." (Hegglin v. Workmen's Comp. Appeals Bd. (1971) 4 Cal.3d 162, 169 [36 Cal.Comp.Cases 93].)

Wilson v. State of CA Cal Fire (2019) 84 Cal.Comp.Cases 393 (Appeals Board en banc)

Criteria for catastrophic injury under Labor Code section 4660.1(c)(2)(B) and Wilson en banc decision.

Applied to determine catastrophic injury status for increased psychiatric impairment rating.

From the decision · page 9[S]ection 4660.1(c) does not apply to psychiatric injuries directly caused by events of employment. Section 4660.1(c)(1) only bars an increase in the employee's permanent impairment rating for a psychiatric injury that is a compensable consequence of a physical injury occurring on or after January 1, 2013. However, the employee may receive an increased impairment rating for a compensable consequence psychiatric injury if the injury falls under one of the statutory exceptions outlined in section 4660.1(c)(2).

ADJ10973875 · October 22, 2021

What the panel ordered

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The facts that decided it

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