ADJ11802545 · October 1, 2021

The WCJ found the applicant sustained 80% permanent disability with 20% apportioned to non-industrial factors, based on unrebutted medical opinions and agreed consultative ratings.

From the decision · page 11The apportionment provided by Dr. Tabibian is both legal and logical and therefore it is found that 20% of Applicant's orthopedic permanent disability for the cervical spine, lumbar spine, left hip, and right knee is apportioned to non-industrial factors.

The WCJ found no denial of due process because the defendant failed to timely pursue discovery and did not object to the declaration of readiness or appeal the trial setting.

The WCJ found the Primary Treating Physician's (PTP) report by Dr. Sam Tabibian to be substantial medical evidence despite alleged errors and inconsistencies, relying on the treating physician's direct treatment and examination of the applicant.

From the decision · page 3Petitioner contends that it was error for this WCJ to rely on the June 4, 2020 report from the Primary Treating Physician (PTP), Dr. Sam Tabibian (Exhibit 18) because it is not substantial medical evidence. Petitioner claims that the doctor's opinions were based on a false / inaccurate history, that his opinions are internally inconsistent and ambiguous. Petitioner also claims that the report is not substantial because the doctor did not discuss LC§ 5412 and because the doctor did not directly review all of the Applicant's past medical records.

Primary Treating Physician Dr. Sam Tabibian treated and monitored the applicant and performed a final physical exam on June 4, 2020 finding the applicant at MMI.

Favours Applicant prevailed

This was the basis for relying on Dr. Tabibian's report as substantial medical evidence despite alleged errors.

From the decision · page 4The PTP Dr. Tabibian had treated the Applicant since February 11, 2019 and provided multiple reports discussing the Applicant's treatment progress and disability status (Exhibits 18, 19, 20, 21, & 22). As the doctor who provided treatment and monitored the Applicant's medical progress, Dr. Tabibian was in the position to determine if the Applicant had reached MMI. Dr. Tabibian performed a final physical exam of Applicant on June 4, 2020 and found that the Applicant had reached MMI and could be discharged from care. Nothing in Dr. Tabibian's June 4, 2020 final report shows any connection or influence between the applicant's work status and his MMI status. Petitioner offers only speculation and conjecture that Dr. Tabibian's opinion was based upon or influenced by whether or not the Applicant had returned to work. Petitioner "supposes" that the error is relevant rather than providing any cogent argument or actual evidence of relevancy.

Petitioner failed to timely pursue discovery and did not object to the declaration of readiness or appeal the trial setting, resulting in no denial of due process.

Favours Defendant prevailed

This justified the closure of discovery and setting the matter for trial without reopening discovery.

From the decision · page 8It is clear that Petitioner had multiple opportunities to complete their discovery and were even reminded to do so by their opponent. Their delay in discovery efforts resulted in the inability to complete discovery. Had they acted in a timely manner they would have either completed discovery or would have had a basis to request additional time. In addition, Petitioner did not avail themselves of the right to lodge an objection to the Declaration of Readiness or appeal the March 18, 2021 ruling. Petitioner most certainly has due process rights, they failed to exercise those rights. Therefore there was no denial of due process.

Unrebutted medical opinions from Dr. Tabibian and Dr. Brown supported an 80% permanent disability rating with 20% apportionment to non-industrial factors.

Favours Applicant prevailed

This supported the award of permanent disability benefits and life pension to the applicant.

From the decision · page 11The apportionment provided by Dr. Tabibian is both legal and logical and therefore it is found that 20% of Applicant's orthopedic permanent disability for the cervical spine, lumbar spine, left hip, and right knee is apportioned to non-industrial factors.

Found applicant reached Maximum Medical Improvement (MMI) on June 4, 2020 and provided substantial medical evidence for injury and disability.

Direct treatment and monitoring of applicant; final physical exam on June 4, 2020; opinions not influenced by alleged errors in work status history.

From the decision · page 3Petitioner contends that it was error for this WCJ to rely on the June 4, 2020 report from the Primary Treating Physician (PTP), Dr. Sam Tabibian (Exhibit 18) because it is not substantial medical evidence. Petitioner claims that the doctor's opinions were based on a false / inaccurate history, that his opinions are internally inconsistent and ambiguous. Petitioner also claims that the report is not substantial because the doctor did not discuss LC§ 5412 and because the doctor did not directly review all of the Applicant's past medical records.

Provided medical reports supporting injury to hearing loss and permanent disability rating.

Unrebutted medical opinion supporting injury and disability ratings.

From the decision · page 9INJURY AOE/COE Based on the unrebutted findings of PTP Dr. Sam Tabibian (Exhibits 18, 19, 20, 21 & 22) and the reports of PQME Dr. Lorenzo Brown (Exhibits BB & CC) the Applicant sustained injury to his

Provided a comprehensive medical record review and a ballpark estimate of MMI in one to two years, but report was not relied upon for final MMI determination.

Report was thorough but the WCJ found the treating physician's opinion more persuasive for MMI status.

From the decision · page 3Petitioner contends that it was error for this WCJ to rely on the June 4, 2020 report from the Primary Treating Physician (PTP), Dr. Sam Tabibian (Exhibit 18) because it is not substantial medical evidence. Petitioner claims that the doctor's opinions were based on a false / inaccurate history, that his opinions are internally inconsistent and ambiguous. Petitioner also claims that the report is not substantial because the doctor did not discuss LC§ 5412 and because the doctor did not directly review all of the Applicant's past medical records.

California Labor Code

Labor Code Section 5412

Defines date of injury for occupational diseases or cumulative injuries and is relevant to medical evidence and statute of limitations issues.

From the decision · page 5The Petition for Reconsideration accurately states; "Labor Code § 5412 defines date of injury for occupational diseases or cumulative injuries as the date upon which the employee first suffered disability therefrom and either knew, or in the exercise of reasonable diligence should have known, that such disability was caused by his present or prior employment."

California Labor Code

Labor Code Section 4662

Governs due process and discovery procedures in workers' compensation cases.

Inconsistency in PTP Dr. Tabibian's report regarding applicant's return to work status, but found not relevant to medical opinions.

From the decision · page 4Petitioner argues that because of an error regarding whether or not the Applicant had returned to work, the PTP's opinion that the Applicant had reached Maximum Medical Improvement (MMI) cannot be relied on. It is correct that there is an error in the June 4, 2020 report by Primary Treating Physician (PTP) Dr. Sam Tabibian (Exhibit 18). The report states both that the Applicant had returned to work (page 24) and that he had not returned to work (page 3).

Petitioner's failure to timely pursue discovery and failure to object to declaration of readiness or appeal trial setting.