ADJ11776398 · July 1, 2024

The panel granted reconsideration to admit the FCE report, rejecting the WCJ's exclusion based on Batten.

From the decision · page 1We have considered the allegations of the Petition for Reconsideration and the contents of the Report and the Opinion on Decision of the workers' compensation administrative law judge (WCJ) with respect thereto. Based on our review of the record, and for the reasons stated below, we will grant reconsideration, amend the WCJ's decision to admit the November 19, 2021 Functional Capacity Evaluation (FCE) Report of Thomas McDonald, D.C., applicant's exhibit two (2) into evidence. For the reasons stated in the Report and the Opinion on Decision, both of which we adopt and incorporate, except as noted below, we will otherwise affirm the April 9, 2024 Findings, Award & Orders.

The only evidence for injury to the right knee and hip was a passing, conclusory statement in a PTP report that did not meet the substantial evidence standard under Escobedo.

From the decision · page 16Having reviewed all the evidence, I find and conclude that Applicant has not sustained his burden to prove injury AOE/COE to the right hip and/or right knee, either directly and/or as a compensable consequence. In fact, the only reference to injury to either body part is the cited report of Dr. Stein. However, I find that one sentence in a report focused on Applicant's left knee, does not constitute substantial medical evidence for purposes of a finding of injury to that body part. Dr. Stein did not have and did not review the complete medical record when providing that opinion, it is conclusory and not sufficiently explained as required by Escobedo, and finally it is not even definitive, as is uses the qualifier that the right knee, which shows arthritis in the medical compartment that can likely be attributed to his multi-decade pre-injury career of heavy agricultural labor as it does not appear to be part of the specific injury, and says the knee was "probably" aggravated by compensatory stress transfer from the injured leg. I therefore find there is insufficient medical evidence in this record to make a finding of injury AOE/COE to the right knee or right hip.

The Applicant did not prove permanent and total disability under LeBoeuf; the QME's strict AMA ratings were relied upon for the PD rating, and vocational evidence favoring the defense was found more credible.

The only medical evidence for injury to the right knee and right hip was a passing, conclusory statement in a PTP report that did not meet substantial evidence standards.

Favours Defendant prevailed

This led to denial of injury AOE/COE to the right knee and right hip.

From the decision · page 16Having reviewed all the evidence, I find and conclude that Applicant has not sustained his burden to prove injury AOE/COE to the right hip and/or right knee, either directly and/or as a compensable consequence. In fact, the only reference to injury to either body part is the cited report of Dr. Stein. However, I find that one sentence in a report focused on Applicant's left knee, does not constitute substantial medical evidence for purposes of a finding of injury to that body part. Dr. Stein did not have and did not review the complete medical record when providing that opinion, it is conclusory and not sufficiently explained as required by Escobedo, and finally it is not even definitive, as is uses the qualifier that the right knee, which shows arthritis in the medical compartment that can likely be attributed to his multi-decade pre-injury career of heavy agricultural labor as it does not appear to be part of the specific injury, and says the knee was "probably" aggravated by compensatory stress transfer from the injured leg. I therefore find there is insufficient medical evidence in this record to make a finding of injury AOE/COE to the right knee or right hip.

The sub rosa video showed the Applicant gardening with repeated bending without apparent difficulty, inconsistent with his testimony about inability to bend at the waist.

Favours Defendant prevailed

This undermined the Applicant's claim of total disability and supported reliance on vocational expert favoring defense.

From the decision · page 21As to the sub rosa video, I agree with the QME that quibbles over which hand the Applicant uses his cane are overblown. However, the video of him gardening with the shovel does show extended and repeated bending without apparent difficulty, and without the use of a cane or other assistive device, that is definitely inconsistent with his accounts of his inability to bend at the waist that he provided to the QME and the two vocational evaluators. In sum, based on the current medical and vocational record, and the entirety of the facts in this case, including the sub rosa video which I personally reviewed, I do believe there are jobs the Applicant can physically do and/or be trained for on the job that are consistent with the QME's sedentary work restrictions. Despite the Applicant's subjective testimony about limitations on sitting, the QME did not provide any restrictions on sitting Accordingly, since I find Mr.

The Applicant's testimony about pain and limitations was found exaggerated and inconsistent with medical treatment history and sub rosa video.

Favours Defendant prevailed

This affected credibility and the finding that the Applicant did not prove permanent and total disability.

From the decision · page 21I believe his account of his current pain levels are exaggerated in terms of its impact on his day to day functionality.

Diagnosed post-surgical left knee tibial plateau fracture with post-surgical findings, CRPS Grade 1, lumbar sprain/strain, left hip sprain/strain with degenerative changes, left ankle muscular weakness, partial peroneal nerve fiber lesions, and post-traumatic psychological stress disorder; found compensable injuries to left lower extremity and lumbar spine; provided AMA ratings including a 50 WPI Almaraz/Guzman rating and strict ratings; found Applicant P&S with work restrictions.

His AMA ratings and opinions on compensable injuries were relied upon for the PD rating and injury findings, except his Almaraz/Guzman and Kite ratings were rejected as not substantial evidence.

From the decision · page 11The parties utilized chiropractor, Moses Jacob, D.C., as their QME. Applicant was first seen by Dr. Jacob on April 18, 2019, who issued a report of the same day. (Joint 101, Report of 4/18/19.) He presented using a walker. (Id. at p. 8.) Dr. Jacob diagnosed post-surgical left knee tibial plateau fracture with post-surgical findings (ORIF), healed right fibula head fracture with residual displacement, left lower extremity CRPS Grade 1, secondary lumbar sprain/strain, left hip sprain strain with secondary degenerative changes, post leg fracture, left ankle muscular weakness and strain associated with leg fracture, partial peroneal nerve fiber lesions supplying tibialis anterior and peroneus longus muscles on the left side, and post-traumatic psychological stress disorder, to be addressed by an appropriate specialist. (Id. at p. 17.) Dr. Jacob found direct specific injuries to the left lower extremity including the left knee, left hip, left leg and ankle, and to the lumbar spine, and left hip as compensable consequence injuries of the original injury. (Id. at pp. 21-22.)

In a May 9, 2022 report, opined that right knee pain was 'probably' aggravated by compensatory stress from left knee injury, but this was a passing, conclusory statement not meeting substantial evidence standards.

His opinion was found not substantial evidence due to lack of explanation and conclusory nature.

From the decision · page 9Applicant's second claim for error is that the record supports a finding of compensable injury to the right knee and right hip. (Petition at pp. 14-15.) The analysis here is brief and conclusory, citing only to the Applicant's subjective belief his right knee symptoms were caused by compensating for his bad left knee (which is not expert medical opinion) and to one report of the then PTP, Dr. Gary Stein, dated May 9, 2022 (Applicant's 1. ) That report references the right knee only in passing and declares the Applicant's right knee pain "was probably" aggravated by compensatory stress from the left knee injury. (Id. at p. 14.) However, the Petition completely ignores the extended discussion of that report in the Opinion on Decision, which is the only evidence in the entire record to potentially support a claim of injury to the right knee, much less the right hip, and why that report is not substantial evidence for the purpose of making an injury AOE/COE finding. (Id. at pp. 12-13.) Specifically, I found that one passing sentence in a PTP PR- 2 report, which noted that arthritis in Applicant's right knee was "probably aggravated" by compensatory stress related to the left knee injury, and where that opinion is conclusory and not explained sufficiently to satisfy the requirements in Escobedo, cannot be the basis to find injury AOE/COE to Applicant's right knee and/or right hip.

LeBoeuf v. Workers' Comp. Appeals Bd. (1983)

Permanent Disability Rating Schedule (PDRS) may be rebutted by vocational evidence proving non-amenability to vocational rehabilitation consistent with total loss of earning capacity (LeBoeuf).

Applied to assess permanent disability and vocational evidence.

From the decision · page 17A rating under the Permanent Disability Rating Schedule (PDRS), which includes the prima facie utilization of the combined values chart (CVC), may be rebutted based on the specific circumstances of a given case. (See Ogilvie v. Workers' Comp. Appeals Bd. (2011) 197 Cal.App.4th 1262, 1263-1276, [76 Cal.Comp.Cases 624, 626]; Contra Costa County v. Workers' Comp. Appeals Bd. (Dahl) (2015) 240 Cal.App.4th 746, 755-761 [80 Cal.Comp.Cases 1119]; Milpitas Unified School Dist. v. Workers' Comp. Appeals Bd. (Guzman), (2010) 187 Cal.App.4th 808, 827-829, [75 Cal.Comp.Cases 837].) The PDRS may also be rebutted by vocational evidence that proves the Applicant is not amendable to benefiting from vocational rehabilitation services, which is consistent with a total loss of earning capacity. (LeBoeuf v. Workers' Comp. Appeals Bd. (1983) 34 Cal.3d 234. 242-243, 48 Cal.Comp.Cases 587, 594.)

Escobedo

Substantial medical evidence requires explained and non-conclusory opinions (Escobedo).

Applied to reject PTP's conclusory opinion on right knee injury.

From the decision · page 16Having reviewed all the evidence, I find and conclude that Applicant has not sustained his burden to prove injury AOE/COE to the right hip and/or right knee, either directly and/or as a compensable consequence. In fact, the only reference to injury to either body part is the cited report of Dr. Stein. However, I find that one sentence in a report focused on Applicant's left knee, does not constitute substantial medical evidence for purposes of a finding of injury to that body part. Dr. Stein did not have and did not review the complete medical record when providing that opinion, it is conclusory and not sufficiently explained as required by Escobedo, and finally it is not even definitive, as is uses the qualifier that the right knee, which shows arthritis in the medical compartment that can likely be attributed to his multi-decade pre-injury career of heavy agricultural labor as it does not appear to be part of the specific injury, and says the knee was "probably" aggravated by compensatory stress transfer from the injured leg. I therefore find there is insufficient medical evidence in this record to make a finding of injury AOE/COE to the right knee or right hip.

Batten v. Workers' Comp. Appeals Bd. (2015)

Exclusion of evidence under Batten v. Workers' Comp. Appeals Bd. (2015) was rejected for the FCE report.

Rejected exclusion of FCE report based on Batten.

From the decision · page 1We do not adopt or incorporate the WCJ's discussion of Batten v. Workers' Comp. Appeals Bd. (2015) 241 Cal.App.4th 1009 [80 Cal.Comp.Cases 1256] to exclude the FCE report. The portions of the Report and Opinion on Decision that we exclude have been omitted from the Report and Opinion on Decision attached to this decision.

Sub rosa video showing Applicant gardening with repeated bending without apparent difficulty, inconsistent with his testimony about inability to bend at the waist.

From the decision · page 21As to the sub rosa video, I agree with the QME that quibbles over which hand the Applicant uses his cane are overblown. However, the video of him gardening with the shovel does show extended and repeated bending without apparent difficulty, and without the use of a cane or other assistive device, that is definitely inconsistent with his accounts of his inability to bend at the waist that he provided to the QME and the two vocational evaluators. In sum, based on the current medical and vocational record, and the entirety of the facts in this case, including the sub rosa video which I personally reviewed, I do believe there are jobs the Applicant can physically do and/or be trained for on the job that are consistent with the QME's sedentary work restrictions. Despite the Applicant's subjective testimony about limitations on sitting, the QME did not provide any restrictions on sitting Accordingly, since I find Mr.

Applicant's testimony about pain and limitations was found exaggerated and inconsistent with medical treatment history and sub rosa video.

From the decision · page 21I believe his account of his current pain levels are exaggerated in terms of its impact on his day to day functionality.