ADJ11998537 · August 30, 2023

The record contains insufficient medical evidence to determine whether applicant's alleged fibromyalgia and psychiatric sequelae resulted in a demonstrable change in condition; further development of the record is necessary.

From the decision · page 7We therefore conclude that the record must be developed to address the issue of whether applicant has incurred disability that is both new and further, within five years of the date of injury. Upon return of this matter to the trial level, we suggest that the record be developed to facilitate the WCJ's review of all relevant medical and medical-legal reporting, including the reporting of Dr. Rinaldi, as well as applicant's primary and secondary treating physicians. Additionally, the testimony of applicant may prove germane to the inquiry. Once the record has been developed, the parties and, if necessary, the WCJ, may determine whether applicant has met the requirements for continuing jurisdiction under section 5410 and the standards set forth in Applied Materials, supra, and Sarabi, supra, of a demonstrable change in condition, including a new need for medical treatment, occurring within five years of the date of injury.

The record contains no medical reporting establishing a specific diagnosis in rheumatology or timely linking applicant's claim of fibromyalgia to the stipulated body parts.

Favours neutral

This lack of evidence led to the conclusion that the record must be developed further before a decision can be made on entitlement to a psychological evaluation.

From the decision · page 5Here, the F&O determined that applicant's Petition for New and Further Disability did not include a specific allegation of fibromyalgia, and that the need for a psychiatric evaluation was based on the opinions of evaluating rheumatologist Dr. Rinaldi. (F&O, Opinion on Decision, p. 1.) However, the record contains no medical reporting establishing a specific diagnosis in rheumatology. As the WCJ observed, "there are no medical reports which timely link applicant's claim of fibromyalgia to the stipulated body parts per the Stipulated Award of 41% to the neck, back, and shoulder." (F&O, Opinion on Decision, p. 2.)

Dr. Rinaldi previously evaluated applicant and authored a report; her deposition testimony was considered, but her report was not in evidence. Her opinions were cited as a basis for the need for a psychological evaluation, but the record lacks a specific diagnosis in rheumatology.

Deposition testimony and prior evaluation considered, but insufficient for a finding.

From the decision · page 6Following our review of the record, we are persuaded that development of the record is appropriate and warranted. Dr. Rinaldi acknowledges at the outset of her deposition testimony that she has previously evaluated applicant, and authored a report with respect to applicant's claim. (Ex. 1, Transcript of the deposition of Renee Rinaldi, M.D., June 15, 2022, at p. 5:14.) However, the report is not in evidence.

Dr. Kohan noted applicant's history and current clinical impression of depression, anxiety, and insomnia, treated with medication. His report contributed to the finding that further evidence is necessary.

Report noted psychiatric symptoms and treatment history.

From the decision · page 6In addition, secondary treating physician Jonathan Kohan, M.D. notes in his June 13, 2022 report that applicant has a history of depression, anxiety and insomnia, treated with medication, and a current clinical impression of depression, anxiety, and insomnia. (Ex. 2, Report of Jonathan Kohan, M.D., dated June 13, 2022, at pp. 1-2.) Taken together, we believe that the deposition testimony of Dr. Rinaldi and the medical reporting of Dr. Kohan establish that further evidence is necessary to a full adjudication of the issues presented.

Lab. Code, § 5410

Labor Code section 5410 confers continuing jurisdiction to reopen a prior award for new and further disability within five years of the date of injury.

Applied to determine whether applicant's alleged conditions resulted in a demonstrable change in condition within five years.

From the decision · page 3Labor Code section 5410 confers on the Workers' Compensation Appeals Board continuing jurisdiction over a prior award when a timely petition is filed within five years of the date of injury.1 The section provides:

Lab. Code, § 4600

Employer is liable for all medical treatment reasonably required to cure or relieve from the effects of the injury.

Cited as basis for employer's liability for medical treatment, including psychiatric evaluation if warranted.

From the decision · page 7In the interim, we observe that section 4600 makes an employer liable for all "medical, surgical, chiropractic, acupuncture, and hospital treatment... that is reasonably required to cure or relieve from the effects of the injury...." (Lab. Code, § 4600; see also, Barnes v. Workers' Comp. Appeals Bd. (2000) 23 Cal.4th 679, 685 [65 Cal.Comp.Cases 780, 784] ["open-ended liability for medical treatment [is] consistent with section 4600's mandate to employers to pay for medical treatment `to cure or relieve' the effects of an industrial injury"]; Granado v. Workmen's Comp. Appeals Bd. (1968) 69 Cal.2d 399, 406 [33 Cal.Comp.Cases 647, 652] ["So long as the treatment is reasonably required to cure or relieve from the effects of the industrial injury, the employer is required to provide the treatment"].) Indeed, an employer will even be liable for the cost of treatment for a non-industrial condition, if that treatment is reasonably required to cure or relieve the effects of the industrial injury. (Lab. Code, § 4600; Braewood Convalescent Hospital v. Workers' Comp. Appeals Bd. (Bolton) (1983) 34 Cal.3d 159, 165-166 [48 Cal.Comp.Cases 566, 570]; Granado, supra, at pp. 405-406.)

Deposition testimony of Dr. Rinaldi and medical reporting of Dr. Kohan established that further evidence is necessary to a full adjudication of the issues presented.

From the decision · page 6In addition, secondary treating physician Jonathan Kohan, M.D. notes in his June 13, 2022 report that applicant has a history of depression, anxiety and insomnia, treated with medication, and a current clinical impression of depression, anxiety, and insomnia. (Ex. 2, Report of Jonathan Kohan, M.D., dated June 13, 2022, at pp. 1-2.) Taken together, we believe that the deposition testimony of Dr. Rinaldi and the medical reporting of Dr. Kohan establish that further evidence is necessary to a full adjudication of the issues presented.