ADJ13928802 — California WCAB decision

What the panel ordered

Petition for Reconsideration denied; WCJ's Findings of Fact, Awards & Orders upheld.

Defendant filed a timely Petition for Reconsideration after the WCJ issued Findings of Fact, Awards & Orders; the WCAB panel denied the Petition for Reconsideration, adopting and incorporating the WCJ's report.

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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 shoulders

The WCJ and WCAB found substantial medical evidence from Dr. Rubin that Applicant suffered a bilateral shoulder injury arising out of and in the course of employment, outweighing Dr. Cardona's contrary opinion.

From the decision · page 5Dr. Stuart Rubin, M.D. examined Applicant as a state certified Panel Qualified Medical Examiner. He provided his expert medical opinion within reasonable medical probability that Applicant suffered an industrial cumulative trauma through his last day of work, October 27, 2020 to his lumbar spine and bilateral shoulders. (App. Ex. 1 Pages 26 § 27) Based on his examination of Applicant and his review of the records provided he determined Applicant has 9% Whole Person Impairment (WPI) in his right shoulder and 7% WPI in his left shoulder. (App. Ex. 1 Page 27) He apportioned 95% of Applicant's resulting bilateral shoulder permanent partial disability to the cumulative trauma ending October 27, 2020 and 5% to expected underlying degenerative conditions. Dr. Rubin clearly explained how and why he reached his expert medical opinion that Applicant has WPI in his bilateral shoulders as a result of his work for Defendant. Therefore, Dr. Rubin's report was found to be substantial medical evidence on the issue of industrial causation of Applicant's bilateral shoulder injury. (OOD Page 4 § 5)

The facts that decided it

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

Applicant's credible testimony established job duties included manually removing heavy garbage from homeless encampments regularly, supporting Occupational Group Number 560 as appropriate for rating permanent partial disability.

Favours Applicant prevailed

This testimony was uncontradicted and supported the finding that OGN 560 is appropriate for rating permanent partial disability.

From the decision · page 5Applicant credibly testified that his job duties changed beginning in 2010 to 2012 to include clearing out homeless encampments. These job duties included moving items that weighed over 100 pounds such as sofas and couches for disposal. (MOH-SOE Pages 4 § 5) The 2005 PDRS identifies OGN 560 as being appropriate for Garbage Collector, Manual. (2005 PDRS page 3-11) Applicant's credible testimony that he manually collected garbage from homeless encampments that required lifting and moving items that weighed over 100 pounds was not contradicted at trial. Based on Applicant's credible and un-contradicted testimony it was found that OGN 560 is appropriate for rating Applicant's permanent partial disability. (OOD pages 3 § 4, FOF No. 5)

Dr. Rubin's expert medical opinion found Applicant has permanent partial disability in bilateral shoulders caused by work for Defendant, with 95% industrial apportionment.

Favours Applicant prevailed

Dr. Rubin's opinion was found substantial medical evidence and outweighed the contrary opinion of Dr. Cardona, supporting the finding of industrial causation and permanent partial disability.

From the decision · page 5Dr. Stuart Rubin, M.D. examined Applicant as a state certified Panel Qualified Medical Examiner. He provided his expert medical opinion within reasonable medical probability that Applicant suffered an industrial cumulative trauma through his last day of work, October 27, 2020 to his lumbar spine and bilateral shoulders. (App. Ex. 1 Pages 26 § 27) Based on his examination of Applicant and his review of the records provided he determined Applicant has 9% Whole Person Impairment (WPI) in his right shoulder and 7% WPI in his left shoulder. (App. Ex. 1 Page 27) He apportioned 95% of Applicant's resulting bilateral shoulder permanent partial disability to the cumulative trauma ending October 27, 2020 and 5% to expected underlying degenerative conditions. Dr. Rubin clearly explained how and why he reached his expert medical opinion that Applicant has WPI in his bilateral shoulders as a result of his work for Defendant. Therefore, Dr. Rubin's report was found to be substantial medical evidence on the issue of industrial causation of Applicant's bilateral shoulder injury. (OOD Page 4 § 5)

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.

QMERelied upon

Dr. Rubin opined within reasonable medical probability that Applicant suffered an industrial cumulative trauma injury to his lumbar spine and bilateral shoulders through his last day of work, with 9% WPI in the right shoulder and 7% WPI in the left shoulder, apportioning 95% to industrial causation.

Dr. Rubin's opinion was found to be substantial medical evidence on industrial causation, outweighing Dr. Cardona's opinion which was based on an incorrect legal theory and lack of shoulder evaluation.

From the decision · page 5Dr. Stuart Rubin, M.D. examined Applicant as a state certified Panel Qualified Medical Examiner. He provided his expert medical opinion within reasonable medical probability that Applicant suffered an industrial cumulative trauma through his last day of work, October 27, 2020 to his lumbar spine and bilateral shoulders. (App. Ex. 1 Pages 26 § 27) Based on his examination of Applicant and his review of the records provided he determined Applicant has 9% Whole Person Impairment (WPI) in his right shoulder and 7% WPI in his left shoulder. (App. Ex. 1 Page 27) He apportioned 95% of Applicant's resulting bilateral shoulder permanent partial disability to the cumulative trauma ending October 27, 2020 and 5% to expected underlying degenerative conditions. Dr. Rubin clearly explained how and why he reached his expert medical opinion that Applicant has WPI in his bilateral shoulders as a result of his work for Defendant. Therefore, Dr. Rubin's report was found to be substantial medical evidence on the issue of industrial causation of Applicant's bilateral shoulder injury. (OOD Page 4 § 5)

PTPRejected

Dr. Cardona's opinion was rejected because it applied an incorrect legal theory of causation and he did not evaluate Applicant's shoulders.

Dr. Cardona's opinion failed the substantial evidence test and was outweighed by Dr. Rubin's valid legal analysis and examination.

From the decision · page 5The reports of Applicant's Primary Treating Physical, Dr. Amilcar Cardona, M.D. and his deposition transcript were reviewed. (Joint Ex. 1, 2, 3 & 4, Def. Ex. A) An expert medical opinion must be based on an accurate history and valid legal reasoning to constitute substantial medical evidence. It cannot be based on a legally invalid theory of causation or a lack of examination. Dr. Cardona's opinion failed the substantial evidence test in regards to Applicant's industrial injury because he applied an incorrect legal theory of causation and because he has not evaluated Applicant's shoulders at all. (Def. Ex A Page 17) For these reasons it was determined that Dr. Cardona's expert opinion was outweighed by of Dr. Rubin which was based on valid legal analysis of causation, a history taken from Applicant, his examination of Applicant and the medical records provided. (OOD Page 5)

ADJ13928802 · July 20, 2022

What the panel ordered

What was disputed, and how it came out

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The facts that decided it

What the panel did with the medical opinions

The rules the panel named

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