ADJ11027585 · February 13, 2025

Applicant failed to provide evidence that her physical injury was catastrophic as required for increased permanent disability under the exceptions in Labor Code section 4660.1(c)(2)(B).

From the decision · page 4INTRODUCTION Applicant filed a timely, verified, Petition for Reconsideration on November 22, 2024, challenging the Findings and Award after Remand (F&A 2) dated October 30, 2024 and served on October 31, 2024 in the above-referenced matters. the applicant (Applicant) worked as a physician's assistant, Occupational Group Number 212, at Los Angeles, California, by St. John's Well Child & Family Center, Permissibly Self-Insured, administered by Athens Administrators. While so employed she sustained two industrial injuries: a specific injury on October 14, 2015, assigned ADJ11027585, to her lumbar spine, with sacroiliac involvement, psyche, and internal in the form of hypertension, upper GI and lower GI; and, a specific injury on December 31, 2015, assigned ADJ11027586, to her cervical spine, psyche, and internal in the form of hypertension, upper GI and lower GI. On May 3, 2023 the parties initially tried this case before the undersigned Workers' Compensation Judge, the stipulations and issues were framed, applicant provided testimony, and after time for submission of post-trial briefs the matters were jointly submitted on June 2, 2023.

Applicant has not sought any industrial treatment since being released by AME and treating physician in 2019.

Favours Defendant prevailed

This lack of ongoing treatment undermined the claim that the physical injury was catastrophic.

From the decision · page 9Applicant asserts that she has provided sufficient evidence to support an entitlement to an increase based on the exceptions codified in Labor Code section 4660.1(c)(2)(B) and Wilson that her physical injury was catastrophic. The undersigned disagrees. Quite simply, Applicant has not sought any industrial treatment since being released by both the AME and her treating physician in 2019. She has obtained medication from her personal physician, ibuprofen 800, for the industrial injuries, though outside of the workers' compensation system, though she does not recall when, but she confirmed it was before 2023. (MOH 2 at 5:8-11). Applicant testified that the radicular pain improved after the 2018 second surgery and same is confirmed by the findings of AME Berman in his 2019 reevaluation report. However, she testified in August, 2024 that she has again began [sic] feeling radicular pain as of June, 2024. (Id. at 6:21-23).

AME Berman's medical findings showed limited mobility, no radiculopathy, some sacroiliac tenderness, and restrictions precluding heavy work but no significant impact on ADLs.

Favours Defendant prevailed

These findings supported the conclusion that the injury was not catastrophic.

From the decision · page 10Applicant, however, misstates AME Berman's findings at the time of Maximum Medical Improvement / Permanent & Stationary (MMI / P&S) Applicant asserts that at such time she continued to have sacroiliac joint dysfunction. This is unsupported by the medical evidence. As set forth by AME Berman3 in his September 17, 2019 report, the only mention of such dysfunction is contained within Dr. Berman's review of the January 8, 2019 report of Dr. Hunt who notes that Applicant has developed same. (AME Berman 9/17/2019 at 11, EAMS ID# 45021018). AME Berman's "Discussion" as to sacroiliac involvement is limited to tenderness. He specifically assesses Applicant's condition at the time of MMI/P&S as follows:

Applicant's described difficulties performing ADLs stem from psychological aspects or causes unrelated to industrial injuries.

Favours Defendant prevailed

Psychological aspects cannot be considered in determining catastrophic physical injury.

From the decision · page 17Omrani (internal) has not provided any specific work restrictions or preclusions from an internal medicine standpoint deferring to the med-legal evaluator in orthopedics. (PQME Omrani 5/24/2019 at 54, EAMS ID# 45021031.) As such, the only conclusion that can be reached is that her described difficulties relating to performing ADLs stem from either the psychological aspects of her industrial injuries, which cannot be considered in this analysis, and/or they result from causes unrelated to her industrial injuries.

Assessed applicant's condition at MMI/P&S with limited mobility, no radiculopathy, some sacroiliac tenderness, and precluded heavy work activities for lumbar spine and very heavy lifting for cervical spine. Found applicant unable to return to regular job duties but restrictions do not significantly affect ADLs.

AME's medical findings did not support a catastrophic injury or significant impact on ADLs, which was critical to denying increased PD.

From the decision · page 10Applicant, however, misstates AME Berman's findings at the time of Maximum Medical Improvement / Permanent & Stationary (MMI / P&S) Applicant asserts that at such time she continued to have sacroiliac joint dysfunction. This is unsupported by the medical evidence. As set forth by AME Berman3 in his September 17, 2019 report, the only mention of such dysfunction is contained within Dr. Berman's review of the January 8, 2019 report of Dr. Hunt who notes that Applicant has developed same. (AME Berman 9/17/2019 at 11, EAMS ID# 45021018). AME Berman's "Discussion" as to sacroiliac involvement is limited to tenderness. He specifically assesses Applicant's condition at the time of MMI/P&S as follows:

Did not provide specific work restrictions or preclusions from an internal medicine standpoint, deferring to orthopedic medical evaluator.

Lack of internal medicine restrictions supported the conclusion that physical injury was not catastrophic.

From the decision · page 17Omrani (internal) has not provided any specific work restrictions or preclusions from an internal medicine standpoint deferring to the med-legal evaluator in orthopedics. (PQME Omrani 5/24/2019 at 54, EAMS ID# 45021031.) As such, the only conclusion that can be reached is that her described difficulties relating to performing ADLs stem from either the psychological aspects of her industrial injuries, which cannot be considered in this analysis, and/or they result from causes unrelated to her industrial injuries.

Labor Code Section 5900

Petition for Reconsideration is the appropriate mechanism to challenge a final order, decision, or award.

The instant Petition involved objection to a final Findings & Award, thus reconsideration was proper.

From the decision · page 8A Petition for Reconsideration on the other hand is the appropriate mechanism to challenge a final order, decision, or award. (Labor Code Section 5900). An order that resolves or disposes of the substantive rights and liabilities of those involved in a case is a final order. (See Maranian v. Workers' Compensation Appeals Board (2000) 81 Cal. App. 4th 1068; Safeway Stores, Inc. v. Workers' Compensation Appeals Board (Pointer) (1980) 104 Cal. App. 3d 528).

Wilson v. State Cal Fire (2019) 84 Cal.Comp.Cases 393

The inquiry into whether an injury is catastrophic is limited to looking solely at the physical injury, without consideration for the psychiatric injury.

The WCJ was instructed to determine catastrophic injury status based solely on physical injury.

From the decision · page 9As set forth in F&A after Remand, "the Opinion and Order has instructed this Court to determine whether the applicant's industrial injury was catastrophic. "The inquiry into whether an injury is catastrophic is limited to looking solely at the physical injury, without consideration for the psychiatric injury in evaluating the nature of the injury; the injury must therefore be deemed catastrophic independent of the psychiatric injury. (Wilson, supra, 84 Cal.Comp.Cases at p. 414). Whether an injury is 'catastrophic' under section 4660.1(c)(2)(B) is a factual/legal issue for the WCJ to determine. (Id.)" (emphasis added) (Opinion and Order at 3-4, EAMS ID# 78000883.)" (Finding 2 at page 5).

Applicant's testimony describing inability to perform ADLs beyond 15 minutes of cooking

From the decision · page 16In contrast, Applicant's testimony describes that the result of the industrial injuries has left her such that she is unable to perform any chores (beyond 15 minutes of cooking). (See MOH/SOE 5/3/2023 at 10:21-11:1, EAMS ID# 76787348.) The basis for her inability to perform ADLs is entirely unsupported by the medical evidence. AME Berman's (orthopedics) restrictions are no heavy work for the lumbar spine and no very heavy lifting for the cervical spine and PQME

AME Berman's medical evidence showing no significant effect on ADLs and restrictions limited to no heavy work and no very heavy lifting

From the decision · page 16The severity of the physical injury and its impact on the employee's ability to perform activities of daily living ("ADLs"). As set forth in the AME reevaluation, "[o]bjectively, there is limited mobility. There are lower back complaints. There is no radiculopathy. She has improved in this regard with the subsequent decompression procedure. There is some sacroiliac tenderness." (Id.) AME Berman precluded Applicant from heavy work activities for the lumbar spine and very heavy lifting activities for the cervical spine. (Id.) AME Berman opined that Applicant is unable to return to her regular job duties. However, the more restrictive of the physical limitations, heavy work, as set forth in the 1997 PDRS, describes a loss of approximately 50% pre-injury capacity for performing such activities as bending, stooping, lifting, pushing, pulling, and climbing or other activities involving comparable physical effort. The medical evidence does not objectively support a finding that Applicant's restrictions pose a significant effect on her ability to perform ADLs.