ADJ11303362 — California WCAB decision

What the panel ordered

Petition for reconsideration granted; Findings and Order rescinded and substituted; issues deferred and matter returned to trial level for further proceedings.

Petition for reconsideration of the Findings and Order issued on October 2, 2024, granted; Findings and Order rescinded and substituted; matter returned to trial level for further proceedings.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.

Permanent disability ratingDeferredwhole person

The record requires further development on this issue, so the decision defers it for further proceedings.

From the decision · page 13Accordingly, we will grant reconsideration and, as our Decision After Reconsideration, we will rescind the F&O and substitute findings that defer the issues of whether applicant had a pre- existing permanent disability affecting an extremity and a subsequent injury which affected the opposite and corresponding extremity, with the subsequent permanent disability equaling to 5% or more of total disability when considered alone and without regard to occupation or age; whether applicant's subsequent permanent disability equals 35% or more of his total disability when considered alone and without regard to occupation or age; whether the medical reports in evidence constitute substantial medical evidence; and the level of permanent disability; and we will return the matter to the trial level for further proceedings consistent with this decision.

The facts that decided it

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

Applicant had pre-existing disability affecting the right and left knees, right wrist, right middle finger, left thumb, left ankle, and gait disturbance.

Favours Applicant prevailed

This fact is central to determining eligibility for SIBTF benefits and whether the subsequent injury affected the opposite and corresponding extremity.

From the decision · page 10Here, the record includes evidence that (1) applicant had pre-existing disability affecting the right and left knees, right wrist, right middle finger, left thumb, left ankle, and gait disturbance; (2) the subsequent injury affected the right leg, right hip, and right knee, and (3) the subsequent permanent disability equals 5% or more of the total disability, when considered alone and without regard to occupation or age. (Ex. 5, SIBTF Report of Dr. Jennings. December 23, 2019, pp. 2-3; Ex. 9, SIBTF Report of Dr. Moldaskiy, February 13, 2021, p. p. 71; Ex. 10 SIBTF Report of Dr. Anderson, January 26, 2022, pp. 60-61.)

Subsequent injury affected the right leg, right hip, and right knee.

Favours Applicant prevailed

This fact is necessary to establish the relationship between the subsequent injury and the pre-existing disability for SIBTF eligibility.

From the decision · page 10Here, the record includes evidence that (1) applicant had pre-existing disability affecting the right and left knees, right wrist, right middle finger, left thumb, left ankle, and gait disturbance; (2) the subsequent injury affected the right leg, right hip, and right knee, and (3) the subsequent permanent disability equals 5% or more of the total disability, when considered alone and without regard to occupation or age. (Ex. 5, SIBTF Report of Dr. Jennings. December 23, 2019, pp. 2-3; Ex. 9, SIBTF Report of Dr. Moldaskiy, February 13, 2021, p. p. 71; Ex. 10 SIBTF Report of Dr. Anderson, January 26, 2022, pp. 60-61.)

The September 12, 2017 injury did not result in ratable impairment to the neck, hips, shoulders or other body parts except lumbar spine.

Favours Defendant prevailed

This fact supports the conclusion that the subsequent injury does not meet the 35% permanent disability threshold alone.

From the decision · page 5In the case before us, the applicant's treating doctor reported in Exhibit 2, reported no complaints to the various body systems at the time of his injury on September 12, 2017. Consequently, defendants argued that Applicant is not eligible for SIF benefits because the subsequent industrial injury did not result in 35 percent or more permanent disability without adjustment. The alleged subsequent injury is a September 12, 2017, injury to the neck, back, hips, and shoulders. The lumbar spine, however, was the only body part with a ratable impairment. The Applicant's primary treating physician Dr. Kamran Aflatoon opined that the lumbar spine had a 10 percent whole person impairment (WPI). After the 1.4 adjustment, the lumbar spine is only 14 percent. The September 12, 2017 injury simply did not result in

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.

otherRelied upon

Reported pre-existing disability affecting the right and left knees, right wrist, right middle finger, left thumb, left ankle, and gait disturbance.

From the decision · page 10Here, the record includes evidence that (1) applicant had pre-existing disability affecting the right and left knees, right wrist, right middle finger, left thumb, left ankle, and gait disturbance; (2) the subsequent injury affected the right leg, right hip, and right knee, and (3) the subsequent permanent disability equals 5% or more of the total disability, when considered alone and without regard to occupation or age. (Ex. 5, SIBTF Report of Dr. Jennings. December 23, 2019, pp. 2-3; Ex. 9, SIBTF Report of Dr. Moldaskiy, February 13, 2021, p. p. 71; Ex. 10 SIBTF Report of Dr. Anderson, January 26, 2022, pp. 60-61.)

PTPRelied upon

Opined that the lumbar spine had a 10 percent whole person impairment (WPI) after adjustment 14 percent, but no ratable impairment to other body parts from the September 12, 2017 injury.

From the decision · page 5In the case before us, the applicant's treating doctor reported in Exhibit 2, reported no complaints to the various body systems at the time of his injury on September 12, 2017. Consequently, defendants argued that Applicant is not eligible for SIF benefits because the subsequent industrial injury did not result in 35 percent or more permanent disability without adjustment. The alleged subsequent injury is a September 12, 2017, injury to the neck, back, hips, and shoulders. The lumbar spine, however, was the only body part with a ratable impairment. The Applicant's primary treating physician Dr. Kamran Aflatoon opined that the lumbar spine had a 10 percent whole person impairment (WPI). After the 1.4 adjustment, the lumbar spine is only 14 percent. The September 12, 2017 injury simply did not result in

otherRelied upon

Reported that the subsequent injury affected the right leg, right hip, and right knee.

From the decision · page 10Here, the record includes evidence that (1) applicant had pre-existing disability affecting the right and left knees, right wrist, right middle finger, left thumb, left ankle, and gait disturbance; (2) the subsequent injury affected the right leg, right hip, and right knee, and (3) the subsequent permanent disability equals 5% or more of the total disability, when considered alone and without regard to occupation or age. (Ex. 5, SIBTF Report of Dr. Jennings. December 23, 2019, pp. 2-3; Ex. 9, SIBTF Report of Dr. Moldaskiy, February 13, 2021, p. p. 71; Ex. 10 SIBTF Report of Dr. Anderson, January 26, 2022, pp. 60-61.)

otherRelied upon · orthopedic

Reported bilateral knee injuries reflecting equal and opposite body part involvement with ratings for multiple body parts.

From the decision · page 10Here, the record includes evidence that (1) applicant had pre-existing disability affecting the right and left knees, right wrist, right middle finger, left thumb, left ankle, and gait disturbance; (2) the subsequent injury affected the right leg, right hip, and right knee, and (3) the subsequent permanent disability equals 5% or more of the total disability, when considered alone and without regard to occupation or age. (Ex. 5, SIBTF Report of Dr. Jennings. December 23, 2019, pp. 2-3; Ex. 9, SIBTF Report of Dr. Moldaskiy, February 13, 2021, p. p. 71; Ex. 10 SIBTF Report of Dr. Anderson, January 26, 2022, pp. 60-61.)

The rules the panel named

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

Labor Code section 5909

Petition for reconsideration must be acted upon within 60 days of transmission to the Appeals Board.

The Appeals Board acted within the required 60 days to grant reconsideration.

From the decision · page 7Former Labor Code section 5909 provided that a petition for reconsideration was deemed denied unless the Appeals Board acted on the petition within 60 days from the date of filing. (Lab. Code, § 5909.) Effective July 2, 2024, Labor Code section 5909 was amended to state in relevant part that:

Labor Code section 5313

WCJ must make and file findings on all facts and provide reasons for determinations.

The WCJ's findings were reviewed and found insufficient, requiring further development and substituted findings.

From the decision · page 11The WCJ is required to "make and file findings upon all facts involved in the controversy and an award, order, or decision stating the determination as to the rights of the parties. Together with the findings, decision, order or award, there shall be served upon all the parties to the proceedings a summary of the evidence received and relied upon and the reasons or grounds upon which the determination was made." (Lab. Code § 5313; see also Hamilton v. Lockheed Corporation (Hamilton) (2001) 66 Cal.Comp.Cases 473, 476 (Appeals Board en banc).) The WCJ's opinion on decision "enables the parties, and the Board if reconsideration is sought, to ascertain the basis for the decision, and makes the right of seeking reconsideration more meaningful." (Hamilton, supra, at p. 476, (citing Evans v. Workmen's Comp. Appeals Bd. (1968) 68 Cal.2d 753, 755 [33 Cal.Comp.Cases 350, 351]).)

Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604

Decisions must be supported by substantial evidence; medical opinions must be based on reasonable medical probability and adequate examination.

The record requires further development to determine if medical reports constitute substantial evidence.

From the decision · page 12All decisions by a WCJ must be supported by substantial evidence. (Lamb v. Workmen's Comp. Appeals Bd. (1974) 11 Cal.3d 274 [113 Cal. Rptr. 162, 520 P.2d 978, 39 Cal.Comp.Cases 310]; LeVesque v. Workmen's Comp. Appeals Bd. (1970) 1 Cal.3d 627 [83 Cal. Rptr. 208, 463 P.2d 432, 35 Cal.Comp.Cases 16]; Bracken v. Workers' Comp. Appeals Bd. (1989) 214 Cal.App.3d 246 [262 Cal. Rptr. 537, 54 Cal.Comp.Cases 349].) Substantial evidence has been described as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion and must be more than a mere scintilla. (Braewood Convalescent Hosp. v. Workers' Comp.

ADJ11303362 · January 21, 2025

What the panel ordered

What was disputed, and how it came out

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The facts that decided it

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