What the panel ordered
Petition for Reconsideration granted; Findings and Award amended to reflect preexisting disabilities as per Dr. Hirsch's opinions; attorney's fees issue deferred; permanent disability awarded at 100% less credit and subject to COLA.
Petition for Reconsideration granted by the WCAB panel, amending the Findings and Award of July 3, 2024.
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.
The WCAB deferred the issue of attorney's fees due to lack of evidence substantiating the 25% fee awarded by the WCJ, noting fees are governed by statute and rule, not case complexity.
From the decision · page 9Finally, we note that the WCJ awarded 25% in attorney's fees. The WCJ explained that "this case was substantially complex enough to warrant a fee of equal to 25% of each future payout from SIBTF awarded." (Opinion on Decision dated July 3, 2024.) We recognize the care that applicant's attorneys exercised in representing applicant and the positive result achieved for applicant. However, there has not been any evidence taken to substantiate an award of 25%. Furthermore, attorney's fees are governed by Labor Code, section 4903 and WCAB Rule 10844, not necessarily the "complexity" of a case. For that reason, we amend the Findings and Award to defer the issue of attorney's fees.
The WCAB granted reconsideration and amended the Findings and Award to include Dr. Hirsch's opinions on preexisting disabilities, finding substantial evidence of labor-disabling preexisting conditions prior to the subsequent injury.
From the decision · page 1Applicant contends that the WCJ erred in not taking into account the opinions of Jeffrey Hirsch, M.D., Qualified Medical Evaluator (QME), in determining applicant's preexisting disabilities; in particular, applicant's hypertension, hernia, sinusitis, arrhythmia and prostatism.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Dr. Hirsch reviewed medical records from 1995 to 2021 and concluded applicant had labor-disabling preexisting conditions before March 19, 2015.
Favours Applicant prevailed
This supported granting reconsideration and amending the Findings and Award to include preexisting disabilities, increasing the permanent disability rating to 100%.
From the decision · page 6We disagree. Dr. Hirsch reviewed applicant's medical records as far back as 1995 and up
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.
Dr. Hirsch provided whole person impairment ratings for applicant's preexisting conditions including hypertension (30%), hernia (8%), arrhythmia (20%), sinusitis (6%), and prostatism (14%), concluding these were labor-disabling and present before March 19, 2015.
Dr. Hirsch reviewed medical records from 1995 to 2021 and concluded the applicant had labor-disabling preexisting conditions prior to the subsequent injury, which the WCAB found substantial evidence to support.
From the decision · page 2Following the settlement, Petitioner filed an Application for benefits from SIBTF on 9/4/20. In support of said Petition, the applicant was evaluated tele-medically by Dr. Hirsch as a Panel Qualified Medical Examiner in internal medicine. In his report dated 2/8/22, in conjunction with the exam and review of medical records, Dr. Hirsch made whole person impairment findings relative to the non- industrial conditions of hypertension, sinusitis, atrial fibrillation (partially non-industrial), hernia and prostatism (Applicant's Exhibit 12)
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Hulbert v. Workmen's Comp. Appeals Bd., 47 Cal.App.3d 634, 640
To prove a preexisting disability, there needs to be evidence prior to the subsequent injury of a medically demonstrable impairment.
The WCAB applied this standard to reject retroactive prophylactic work restrictions and to require substantial medical evidence of labor disabling conditions prior to the subsequent injury.
From the decision · page 5To prove a preexisting disability, there needs to be evidence prior to the subsequent injury of a medically demonstrable impairment.
Hulbert v. Workmen's Comp. Appeals Bd., 47 Cal.App.3d 634, 640
Retroactive prophylactic work restrictions cannot establish a preexisting disability absent evidence the worker was actually restricted prior to the industrial injury.
The WCAB applied this principle to distinguish between retroactive restrictions and actual preexisting disabilities.
From the decision · page 5A preexisting disability cannot be established by a "retroactive prophylactic work restriction" on the preexisting condition placed on the injured after the subsequent industrial injury in absence of evidence to show that the worker was actually restricted in his work activity prior to the industrial injury. (Hulbert v. Workmen's Comp. Appeals Bd., supra,
Labor Code sections 5708, 5709
Workers' compensation proceedings allow for certain informalities and relaxation of rules of evidence.
The WCAB applied this to admit Dr. Hirsch's report despite the medical records not being formally admitted.
From the decision · page 9Moreover, we do not deem fatal the fact that none of the medical records relied by Dr. Hirsch were admitted into evidence. Workers' compensation proceedings allow for certain informalities and relaxation of rules of evidence. (See Lab. Code, § 5708, 5709.) We conclude Dr. Hirsch's February 8, 2022 report to be substantial evidence for purposes of establishing applicant's preexisting disabilities.
What proof carried it
The evidence the panel weighed, by kind.
Dr. Hirsch's February 8, 2022 report and review of medical records from 1995 to 2021
From the decision · page 6We disagree. Dr. Hirsch reviewed applicant's medical records as far back as 1995 and up
The same issues, filtered across the whole corpus — or paste your own facts and let the search rank by factor match.
About this page
- A published decision of the California Workers' Compensation Appeals Board, taken apart by what it turned on. The Board publishes the decision itself; this page adds the extraction and quotes the passage behind every claim.
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