ADJ12273693 — California WCAB decision

What the panel ordered

Petition for reconsideration denied.

Petition for reconsideration filed by Subsequent Injuries Benefits Trust Fund (SIBTF) from the September 18, 2024 Amended Findings and Award denying the petition and affirming 100% permanent disability to applicant.

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This docket was decided more than once. Shown here is the latest released decision; we also hold February 26, 2024.

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.

AOE/COEApplicant prevailedbilateral knees · left wrist · right wrist · cervical spine · lumbar spine · right shoulder · left shoulder · right little finger · right elbow · left elbow · psychiatric · cognitive · digestive · varicose veins

The applicant proved preexisting labor disabling permanent disabilities supported by substantial medical evidence from Drs. Newman, Dreyfuss, and Kirz, and met the statutory requirements for SIBTF liability with combined permanent disability exceeding 70%.

From the decision · page 5SIBTF contends that, aside from the bilateral wrists, there is no substantial evidence to support the rest of the preexisting disabilities. We disagree. Michael Newman, D.C.'s, and Bruce J. Dreyfuss, M.D.'s, reports show medical records as far back as 2009 showing lumbar spine disease. (Exhibit A1, Dr. Newman's report dated September 2, 2022, pp. 13-14; Exhibit A3, Dr. Dreyfuss's report dated October 17, 2022, p. 4.) Furthermore, Dr. Newman's opinions regarding applicant's preexisting injuries to his cervical spine, bilateral shoulders, and bilateral elbows are based on x-rays that, although were taken after the subsequent injury, show degenerative disease that occurred over time; and based on applicant's work history as a grocery stocker consisting of heavy lifting, bending, and prolonged repetitive use of both upper extremities over 29+ years, it is reasonable for Dr. Newman to conclude the degenerative disease to the cervical spine and upper extremity preexisted the subsequent injury. (Exhibit A1, Dr. Newman's report dated September 2, 2022, pp. 10-11, 30.)

The facts that decided it

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

Applicant had preexisting labor disabling permanent disabilities supported by substantial medical evidence from Drs. Newman, Dreyfuss, and Kirz.

Favours Applicant prevailed

This evidence established the preexisting disabilities necessary for SIBTF liability under Labor Code section 4751.

From the decision · page 5SIBTF contends that, aside from the bilateral wrists, there is no substantial evidence to support the rest of the preexisting disabilities. We disagree. Michael Newman, D.C.'s, and Bruce J. Dreyfuss, M.D.'s, reports show medical records as far back as 2009 showing lumbar spine disease. (Exhibit A1, Dr. Newman's report dated September 2, 2022, pp. 13-14; Exhibit A3, Dr. Dreyfuss's report dated October 17, 2022, p. 4.) Furthermore, Dr. Newman's opinions regarding applicant's preexisting injuries to his cervical spine, bilateral shoulders, and bilateral elbows are based on x-rays that, although were taken after the subsequent injury, show degenerative disease that occurred over time; and based on applicant's work history as a grocery stocker consisting of heavy lifting, bending, and prolonged repetitive use of both upper extremities over 29+ years, it is reasonable for Dr. Newman to conclude the degenerative disease to the cervical spine and upper extremity preexisted the subsequent injury. (Exhibit A1, Dr. Newman's report dated September 2, 2022, pp. 10-11, 30.)

Applicant's combined permanent disability from subsequent injury and prior disabilities exceeded 70%.

Favours Applicant prevailed

Meeting the statutory threshold for SIBTF liability under Labor Code section 4751.

From the decision · page 10The applicant sustained an SII on 12/12/18, when he injured his bilateral knees. In applicant's case, the permanent disability is greater when combined than the disability caused by the SII alone. The permanent disability resulting from the subsequent industrial injury, when considered alone and without regard to or adjustment for the employee's age, occupation, or apportionment must be equal to 35 percent or more of the total. Applicant's bilateral knees are equal to 88% (46 + 42), when the standard is adjusted for DFEC, or 63% (33 + 30), when not adjusted for DFEC. Either way, Applicant meets this requirement. When the pre-existing disability is combined with the subsequent disability, the resulting permanent disability must be equal to 70% or more. With just the SII and his two prior industrial injuries, the applicant meets the 70% threshold. The applicant had prior disability of 17% from his two prior industrial injuries. The applicant sustained a subsequent industrial injury (SII) that resulted in additional permanent partial disability. When combined, Applicant's permanent disability is 86% (69 + 10 + 7 = 86%.) The SII rates to 69% PD based upon the report of Michael Newman, D.C., dated 9/2/22, (APPL'S EX. A-1), which rates as follows:

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

Provided substantial medical evidence supporting preexisting disabilities including lumbar spine disease, cervical spine, bilateral shoulders, bilateral elbows, plantar fasciitis, varicose veins, GERD, and right 5th digit fracture.

His opinions were based on medical records, x-rays, and applicant's work history showing degenerative disease preexisting the subsequent injury.

From the decision · page 5SIBTF contends that, aside from the bilateral wrists, there is no substantial evidence to support the rest of the preexisting disabilities. We disagree. Michael Newman, D.C.'s, and Bruce J. Dreyfuss, M.D.'s, reports show medical records as far back as 2009 showing lumbar spine disease. (Exhibit A1, Dr. Newman's report dated September 2, 2022, pp. 13-14; Exhibit A3, Dr. Dreyfuss's report dated October 17, 2022, p. 4.) Furthermore, Dr. Newman's opinions regarding applicant's preexisting injuries to his cervical spine, bilateral shoulders, and bilateral elbows are based on x-rays that, although were taken after the subsequent injury, show degenerative disease that occurred over time; and based on applicant's work history as a grocery stocker consisting of heavy lifting, bending, and prolonged repetitive use of both upper extremities over 29+ years, it is reasonable for Dr. Newman to conclude the degenerative disease to the cervical spine and upper extremity preexisted the subsequent injury. (Exhibit A1, Dr. Newman's report dated September 2, 2022, pp. 10-11, 30.)

otherRelied upon

Supported preexisting lumbar spine disease and other disabilities with medical records dating back to 2009.

His reports showed medical records supporting preexisting lumbar spine disease and other conditions.

From the decision · page 5SIBTF contends that, aside from the bilateral wrists, there is no substantial evidence to support the rest of the preexisting disabilities. We disagree. Michael Newman, D.C.'s, and Bruce J. Dreyfuss, M.D.'s, reports show medical records as far back as 2009 showing lumbar spine disease. (Exhibit A1, Dr. Newman's report dated September 2, 2022, pp. 13-14; Exhibit A3, Dr. Dreyfuss's report dated October 17, 2022, p. 4.) Furthermore, Dr. Newman's opinions regarding applicant's preexisting injuries to his cervical spine, bilateral shoulders, and bilateral elbows are based on x-rays that, although were taken after the subsequent injury, show degenerative disease that occurred over time; and based on applicant's work history as a grocery stocker consisting of heavy lifting, bending, and prolonged repetitive use of both upper extremities over 29+ years, it is reasonable for Dr. Newman to conclude the degenerative disease to the cervical spine and upper extremity preexisted the subsequent injury. (Exhibit A1, Dr. Newman's report dated September 2, 2022, pp. 10-11, 30.)

otherRelied upon · psychiatric

Opined that applicant's cognitive impairment and psychiatric difficulties were entirely preexisting and dated to youth, supported by history of learning disabilities and traumatic childhood.

His opinion was based on applicant's history and contemporaneous evidence of psychiatric and cognitive impairments.

From the decision · page 5Joshua Kirz, Ph.D., provided opinion on applicant's cognitive and psychiatric impairments. He described applicant's learning disabilities and struggles with school and opined that given "the applicant's history of learning disabilities, the cognitive impairment was entirely preexisting and likely dated to youth." (Exhibit A2, Dr. Kirz's report dated November 30, 2021, p. 14.) With respect to applicant's psychiatric difficulties, Dr. Kirz described applicant's unstable and traumatic

PTPRejected

Provided a lower impairment rating for bilateral knees (20% WPI) compared to Dr. Newman's 30% WPI rating, but the WCJ found Dr. Newman's rating more accurate based on AMA Guides.

Dr. Stark's range of motion points were found to be erroneously high, leading to a lower impairment rating than supported by AMA Guides and Dr. Newman's calculations.

From the decision · page 6applicant's bilateral knees impairment of 30% WPI, as opposed to Agreed Medical Examiner

ADJ12273693 · January 13, 2025

What the panel ordered

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The facts that decided it

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