ADJ3065118 · October 26, 2021

The WCJ relied on 2017 medical reports showing significant permanent disability and need for ongoing treatment, and applicant failed to present credible evidence to overturn these findings after over 20 years.

From the decision · page 1Applicant seeks reconsideration of a workers' compensation administrative law judge's (WCJ) Amended Joint Findings and Award of September 2, 2021, wherein it was found that, while employed as a cabinet maker on November 12, 1998 (ADJ3065118), applicant sustained industrial injury to his cervical spine, mid spine, lumbar spine, right shoulder, wrists and psyche, but not in the forms of sleep disorder, sexual dysfunction, hypertension, or gastroesophageal reflux disease, causing compensable permanent disability of 65% and the need for further medical treatment. Additionally, it was found that while employed as a cabinet maker during a cumulative period ending September 12, 2000 (ADJ3683536), applicant sustained industrial injury to his cervical spine, lumbar spine, right shoulder, and psyche, causing compensable permanent disability of 23% and the need for further medical treatment.

Temporary disability was not placed at issue at trial and applicant stipulated to adequate compensation for temporary disability in the specific injury case.

From the decision · page 1Applicant contends that the WCJ erred in issuing final orders regarding permanent disability in both cases, arguing that the record must be further developed regarding applicant's orthopedic and psychiatric disability. Applicant also contends in the Petition for Reconsideration that temporary disability should be placed at issue, and further development of the record should be ordered on that issue, despite the fact that it was not placed at issue at trial. We have received answers from both Virginia Surety and Liberty Mutual. Liberty Mutual requests that we dismiss applicant's Petition because the Petition was not served on Liberty Mutual's counsel as required by Appeals Board Rule 10610 (Cal. Code Regs., tit. 8, § 10610). Additionally, the WCJ has filed a Report and Recommendation on Petition for Reconsideration (Report).

Medical reports from 2017 showed significant permanent disability and need for ongoing treatment

Favours Defendant prevailed

These reports were relied upon by the WCJ to find compensable permanent disability and need for further medical treatment

From the decision · page 2We will deny the applicant's Petition. As noted in the WCJ's Report, it has now been almost 23 and over 21 years since the respective injuries at issue. The WCJ relied upon the reporting of orthopedists Phillip J. Kanter, M.D. and Lynn E. Wilson, M.D. in determining applicant's orthopedic permanent disability. The reports relied upon by the WCJ issued in 2017. At the time of his evaluations by Drs. Kanter and Wilson, applicant was significantly impaired as evidenced by the significant permanent disability found, apportioned among both injuries and non-industrial causes. In 2017, applicant already complained to Dr. Wilson that the pain in his cervical spine was on average a nine on a scale of one to ten, with the pain sometimes reaching ten. (August 29, 2017 report at p. 6.) He told Dr. Wilson that he was unable to walk more than one block, was unable to sit or stand for more than a half hour at a time, and that he had difficulty dressing himself.

Applicant failed to present credible evidence to show worsening condition after 2017

Favours Defendant prevailed

Applicant's evidence did not overcome the 2017 medical reports or credibility findings

From the decision · page 3As noted by the WCJ in the Report, applicant sustained serious industrial injuries causing substantial permanent disability and need for medical treatment. It was contemplated in all medical records relied upon by the WCJ that applicant would require ongoing treatment, and that his condition would never completely resolve. We are now over 20 years past the dates of injury and more than 17 years past the permanent and stationary date. Despite the fact that this matter was submitted before the previous, now-retired WCJ in January of 2020, the new WCJ assigned to the case afforded applicant the opportunity to present new evidence. Applicant has not submitted any actual credible evidence that the evidence relied upon by the WCJ is no longer

Temporary disability was not placed at issue at trial and applicant stipulated to adequate compensation for temporary disability

Favours Defendant prevailed

This procedural fact led to denial of reopening temporary disability issue

From the decision · page 3Finally, with regard to temporary disability, this issue was not raised at trial in either case. In the specific injury case (ADJ3065118), applicant expressly stipulated that "he has been adequately compensated on this case for temporary disability." (Minutes of Hearing and Summary of Evidence of October 7, 2019 trial at p. 2.)

Found significant permanent disability with constant severe pain in cervical spine, right shoulder, and lumbar spine in 2017.

From the decision · page 2We will deny the applicant's Petition. As noted in the WCJ's Report, it has now been almost 23 and over 21 years since the respective injuries at issue. The WCJ relied upon the reporting of orthopedists Phillip J. Kanter, M.D. and Lynn E. Wilson, M.D. in determining applicant's orthopedic permanent disability. The reports relied upon by the WCJ issued in 2017. At the time of his evaluations by Drs. Kanter and Wilson, applicant was significantly impaired as evidenced by the significant permanent disability found, apportioned among both injuries and non-industrial causes. In 2017, applicant already complained to Dr. Wilson that the pain in his cervical spine was on average a nine on a scale of one to ten, with the pain sometimes reaching ten. (August 29, 2017 report at p. 6.) He told Dr. Wilson that he was unable to walk more than one block, was unable to sit or stand for more than a half hour at a time, and that he had difficulty dressing himself.

Reported severe pain and significant impairment in 2017, with applicant using a cane and unable to walk more than one block or sit/stand for more than half an hour.

From the decision · page 2We will deny the applicant's Petition. As noted in the WCJ's Report, it has now been almost 23 and over 21 years since the respective injuries at issue. The WCJ relied upon the reporting of orthopedists Phillip J. Kanter, M.D. and Lynn E. Wilson, M.D. in determining applicant's orthopedic permanent disability. The reports relied upon by the WCJ issued in 2017. At the time of his evaluations by Drs. Kanter and Wilson, applicant was significantly impaired as evidenced by the significant permanent disability found, apportioned among both injuries and non-industrial causes. In 2017, applicant already complained to Dr. Wilson that the pain in his cervical spine was on average a nine on a scale of one to ten, with the pain sometimes reaching ten. (August 29, 2017 report at p. 6.) He told Dr. Wilson that he was unable to walk more than one block, was unable to sit or stand for more than a half hour at a time, and that he had difficulty dressing himself.

Documented some improvement in applicant's condition from 2019 to 2021, but no evidence condition worsened beyond 2017 levels.

From the decision · page 2(August 17, 2017 report at p. 8; August 29, 2017 report at p. 8.) At trial, applicant introduced the reports of treating physician pain management specialist Jonathan F. Kohan, M.D. spanning the period from June 2019 to March 2021. We note that Dr. Kohan's first reports document a substantial improvement in applicant's condition. For instance, in a report of August 23, 2019, while acknowledging that applicant has experienced falls, Dr. Kohan also notes a 30% to 40% improvement in applicant's condition. (August 23, 2019 report at p. 1.) While Dr. Kohan did note that applicant had an increase in neck and low back complaints in his June 12, 2020 and October 28, 2020 reports, given the earlier improvement, there is no evidence that his condition was any worse than it was than when he was evaluated by Drs. Kanter and Wilson. While applicant requests an updated neurological evaluation due to a February 2, 2021 fall, Dr. Kohan's contemporaneous reporting makes no mention of this fall. We note that the WCJ found that applicant's testimony at trial regarding his present condition, including the severity of any falls, was somewhat exaggerated. A WCJ's credibility determinations are "entitled to great

Reported no suicidal or homicidal ideation in 2021, noted panic attacks as new symptom but no link to industrial injury.

From the decision · page 3Applicant also requests further development of the psychiatric record based on his testimony at trial that he had suicidal thoughts. (Minutes of Hearing and Summary of Evidence of February 3, 2021 trial at p. 5.) However, in his April 20, 2021 report, treating psychologist Heath Hinze, Psy.D. writes that applicant expressed "no suicidal or homicidal ideation." (April 20, 2021 report at p. 5.) We note that agreed medical evaluator psychiatrist John M. Stalberg, M.D., on whom who the WCJ based her psychiatric permanent disability findings, already diagnosed applicant with depressive disorder. (April 19, 2005 report at p. 2.) Although Dr. Hinze notes panic attacks as a new symptom, there is no discussion regarding how this new symptom is related to applicant's over 20-year-old injuries.

Diagnosed depressive disorder related to industrial injury in 2005, relied upon for psychiatric permanent disability findings.

From the decision · page 3Applicant also requests further development of the psychiatric record based on his testimony at trial that he had suicidal thoughts. (Minutes of Hearing and Summary of Evidence of February 3, 2021 trial at p. 5.) However, in his April 20, 2021 report, treating psychologist Heath Hinze, Psy.D. writes that applicant expressed "no suicidal or homicidal ideation." (April 20, 2021 report at p. 5.) We note that agreed medical evaluator psychiatrist John M. Stalberg, M.D., on whom who the WCJ based her psychiatric permanent disability findings, already diagnosed applicant with depressive disorder. (April 19, 2005 report at p. 2.) Although Dr. Hinze notes panic attacks as a new symptom, there is no discussion regarding how this new symptom is related to applicant's over 20-year-old injuries.

California Labor Code

Labor Code 4662

Governs permanent disability rating and apportionment

From the decision · page 1Applicant seeks reconsideration of a workers' compensation administrative law judge's (WCJ) Amended Joint Findings and Award of September 2, 2021, wherein it was found that, while employed as a cabinet maker on November 12, 1998 (ADJ3065118), applicant sustained industrial injury to his cervical spine, mid spine, lumbar spine, right shoulder, wrists and psyche, but not in the forms of sleep disorder, sexual dysfunction, hypertension, or gastroesophageal reflux disease, causing compensable permanent disability of 65% and the need for further medical treatment. Additionally, it was found that while employed as a cabinet maker during a cumulative period ending September 12, 2000 (ADJ3683536), applicant sustained industrial injury to his cervical spine, lumbar spine, right shoulder, and psyche, causing compensable permanent disability of 23% and the need for further medical treatment.

1997 Schedule for Rating Permanent Disabilities

Used to rate permanent disability

From the decision · page 3Similarly, with regard to applicant's request to reopen discovery because of his apparent need for carpal tunnel surgery, Dr. Wilson stated in his August 20, 2017 report that applicant was not interested in availing himself of surgery. (August 29, 2017 report at p. 35.) No other medical records disclose a present need for surgery, and there is no evidence presented that surgery, which in theory would be undertaken to better applicant's condition, would increase applicant's permanent disability in this case governed by the 1997 Schedule for Rating Permanent Disabilities. In any case, the WCJ did not find applicant's change of heart regarding carpal tunnel surgery to be credible (Report at p. 2), and we must give this credibility determination great weight.

California Code of Regulations, title 8, section 10610

Appeals Board Rule 10610

Governs service of petitions for reconsideration

From the decision · page 1Applicant contends that the WCJ erred in issuing final orders regarding permanent disability in both cases, arguing that the record must be further developed regarding applicant's orthopedic and psychiatric disability. Applicant also contends in the Petition for Reconsideration that temporary disability should be placed at issue, and further development of the record should be ordered on that issue, despite the fact that it was not placed at issue at trial. We have received answers from both Virginia Surety and Liberty Mutual. Liberty Mutual requests that we dismiss applicant's Petition because the Petition was not served on Liberty Mutual's counsel as required by Appeals Board Rule 10610 (Cal. Code Regs., tit. 8, § 10610). Additionally, the WCJ has filed a Report and Recommendation on Petition for Reconsideration (Report).

Applicant's testimony at trial regarding severity of falls was somewhat exaggerated

From the decision · page 2(August 17, 2017 report at p. 8; August 29, 2017 report at p. 8.) At trial, applicant introduced the reports of treating physician pain management specialist Jonathan F. Kohan, M.D. spanning the period from June 2019 to March 2021. We note that Dr. Kohan's first reports document a substantial improvement in applicant's condition. For instance, in a report of August 23, 2019, while acknowledging that applicant has experienced falls, Dr. Kohan also notes a 30% to 40% improvement in applicant's condition. (August 23, 2019 report at p. 1.) While Dr. Kohan did note that applicant had an increase in neck and low back complaints in his June 12, 2020 and October 28, 2020 reports, given the earlier improvement, there is no evidence that his condition was any worse than it was than when he was evaluated by Drs. Kanter and Wilson. While applicant requests an updated neurological evaluation due to a February 2, 2021 fall, Dr. Kohan's contemporaneous reporting makes no mention of this fall. We note that the WCJ found that applicant's testimony at trial regarding his present condition, including the severity of any falls, was somewhat exaggerated. A WCJ's credibility determinations are "entitled to great

WCJ gave great weight to credibility determinations

From the decision · page 3weight." (Garza v. Workmen's Comp. App. Bd. (1970) 3 Cal.3d 312, 318-319 [35 Cal.Comp.Cases 500].)