ADJ12032540 · November 18, 2024

The WCJ rejected the industrial causation of the stroke due to lack of evidence of medication use near the stroke date, but the WCAB found the record insufficient and ordered further development to clarify the causative link and medical probability of the medications contributing to the stroke.

From the decision · page 5The WCJ rejected Dr. Perry's opinions because there was no evidence that the applicant was taking NSAIDs or steroids around the time of the stroke. Indeed, the record shows that decedent was taken off prednisone and naproxen in early 2015 and was allergic to ibuprofen. Nevertheless, the WCJ does not appear to evaluate Dr. Perry's opinion that even if decedent stopped taking medications increasing blood pressure in 2015, it could have still contributed to the 2018 stroke. We thus believe that the record should be developed on this issue, and the issue

No evidence that decedent was taking blood pressure increasing steroids or NSAIDs after early 2015.

Favours Defendant prevailed

This led the WCJ to reject Dr. Perry's opinion that medications contributed to the stroke.

From the decision · page 5The WCJ rejected Dr. Perry's opinions because there was no evidence that the applicant was taking NSAIDs or steroids around the time of the stroke. Indeed, the record shows that decedent was taken off prednisone and naproxen in early 2015 and was allergic to ibuprofen. Nevertheless, the WCJ does not appear to evaluate Dr. Perry's opinion that even if decedent stopped taking medications increasing blood pressure in 2015, it could have still contributed to the 2018 stroke. We thus believe that the record should be developed on this issue, and the issue

Dr. Perry opined that medication use in 2015 possibly contributed to a permanent increase in hypertension which contributed to the stroke.

Favours Applicant prevailed

This opinion was not fully evaluated by the WCJ and led the WCAB to order further development of the record.

From the decision · page 4At Dr. Perry's deposition, Dr. Perry was questioned at length regarding whether increased hypertension from medications could have been a contributing cause of the applicant's April 2018 stroke if there was no record of the applicant taking blood pressure increasing steroids or NSAIDS after early 2015. Dr. Perry noted that while the applicant's blood pressure did increase immediately after the injury, the blood pressure readings then decreased until 2017 and the applicant's dose of hypertension medication was decreased. (March 22, 2023 deposition at pp. 18-19.) While it is not completely clear whether Dr. Perry opined that it was medically probable, Dr. Perry appears to have testified that it was possible that use of steroids and NSAIDs in 2015 was a contributing cause of permanent increase in the applicant's hypertension which in turn was a contributing cause of the stroke. (March 22, 2023 deposition at pp. 38-39.)

Noted decedent was not taking medications at evaluation in 2017; noted allergies to Soma, Ibuprofen, and seafood; decedent complained of severe musculoskeletal pain.

From the decision · page 4the applicant was then evaluated by occupational medicine physician Marvin Pietruszka, M.D. In a report dated July 10, 2017, Dr. Pietruszka noted that the applicant was "currently not taking any medications" and that the applicant had been taking Naprosyn but that it had been discontinued by Dr. Perelman in 2015. (July 10, 2017 report at pp. 2, 4.) Dr. Pietruszka noted that decedent was allergic to Soma, Ibuprofen, and seafood. (July 10, 2017 report at p. 3.) the applicant complained to Dr. Pietruszka of musculoskeletal pain at a constant severity of 9/10 in the spine and radiating to the upper extremities and the buttock. (July 10, 2017 report at p. 4.)

Diagnosed acute cervical, dorsal and lumbar spine strain and left shoulder strain due to specific November 25, 2014 injury; found permanent impairment and need for further medical treatment; noted allergies to Motrin and Soma.

From the decision · page 3Decedent was evaluated by primary treating physician orthopedist Ronald B. Perelman who issued a narrative report on January 26, 2015. Dr. Perelman was given a history of the applicant experiencing pain in his neck, middle back, low back, left shoulder and hand and wrists on November 25, 2014 while packing bread and work. Decedent was seen by U.S. Healthworks who diagnosed him with "acute stress disorder" and returned the applicant to work without restrictions. However, the decedent then saw his personal doctor who diagnosed the decedent with cervical spondylosis and lumbosacral spondylosis. He was then first seen by Dr. Perelman on December 8, 2014. (January 26, 2015 report at p. 2.) Dr. Perelman diagnosed the applicant with acute cervical, dorsal and lumbar spine strain and left shoulder strain which he felt was due to a specific November 25, 2014 injury. (January 26, 2015 report at p. 12.) Dr. Perelman noted that Mr.

Diagnosed cervical, lumbosacral, left shoulder, wrist and hand, and right foot strains; found permanent impairment only in right shoulder; no prophylactic work restrictions or need for future medical treatment.

From the decision · page 3the applicant was then seen by panel qualified medical evaluator orthopedist John L. Howard, M.D. who was given a history of orthopedic pain beginning in June of 2014 continuing through decedent's last day of work on November 25, 2014. (December 7, 2015 report at p. 3) Like Dr. Perelman, Dr. Howard noted that the applicant was allergic to Soma and Motrin (December 7, 2015 report at p. 6). Dr. Howard diagnosed the applicant with having had cervical,

Opined that the stroke was industrial because hypertension was aggravated by steroids and NSAIDs used to treat orthopedic injury; noted hypertension worsened after industrial injury; testified that medication use in 2015 possibly contributed to permanent hypertension increase and stroke.

The WCJ rejected Dr. Perry's opinion due to lack of evidence of medication use near stroke date, but the WCAB found the record insufficient and ordered further development to clarify causation and medical probability.

From the decision · page 4After the applicant's death, internist panel qualified medical evaluator Ira J. Perry, M.D. analyzed the issue of whether the applicant's death could be considered industrial. Dr. Perry noted that, while the applicant had a history of hypertension predating the industrial injury, his hypertension worsened after the industrial injury. (December 15, 2021 report at p. 163.) Dr. Perry opined that the stroke was industrial because the applicant's hypertension had been aggravated by steroids and NSAIDs used to treat decedent's orthopedic injury. (December 15, 2021 report at p. 164.)

Labor Code section 5909

Petition for reconsideration must be acted upon within 60 days of transmission to the Appeals Board (Labor Code section 5909).

The Appeals Board acted timely on the petition for reconsideration filed by applicant.

From the decision · page 2Preliminarily, we note that former 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:

Le Vesque v. Workmen's Comp. Appeals Bd. (1970) 1 Cal.3d 627

Findings must be based on substantial evidence, which requires a solid and reasonable basis for a physician's final conclusion.

The WCAB emphasized the need for substantial evidence and reasonable medical probability in medical opinions.

From the decision · page 5All findings of the WCAB must be based on substantial evidence. (Le Vesque v. Workmen's Comp. Appeals Bd. (1970) 1 Cal.3d 627, 637 [35 Cal.Comp.Cases 16]; Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 620 [Appeals Bd. en banc].) 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. Appeals Bd. (Bolton) (1983) 34 Cal.3d 159, 164 [48 Cal.Comp.Cases 566].) There must be a solid and reasonable basis for a physician's final conclusion. It is not sufficient for the WCJ to blindly accept a medical opinion that lacks a solid underlying basis. (National Convenience Stores v. Workers' Comp. Appeals Bd. (Kessler) (1981) 121 Cal.App.3d 420, 427 [46 Cal.Comp.Cases 783].) As the Court of Appeal wrote in E.L. Yeager Construction v. Workers' Comp. Appeals Bd.

The WCJ rejected Dr. Perry's opinion because there was no evidence that the applicant was taking NSAIDs or steroids around the time of the stroke; record shows decedent was taken off prednisone and naproxen in early 2015 and was allergic to ibuprofen.

From the decision · page 5The WCJ rejected Dr. Perry's opinions because there was no evidence that the applicant was taking NSAIDs or steroids around the time of the stroke. Indeed, the record shows that decedent was taken off prednisone and naproxen in early 2015 and was allergic to ibuprofen. Nevertheless, the WCJ does not appear to evaluate Dr. Perry's opinion that even if decedent stopped taking medications increasing blood pressure in 2015, it could have still contributed to the 2018 stroke. We thus believe that the record should be developed on this issue, and the issue