ADJ4391030 — California WCAB decision

What the panel ordered

Findings and Order of October 11, 2021 affirmed except issue of reasonableness and necessity of treatment after October 11, 2005 deferred; matter returned to WCJ for further proceedings

Petition for Reconsideration granted to study factual and legal issues; matter returned to WCJ for further proceedings on deferred issue

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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.

Medical treatment / UR / IMRMixedneck · back · psych · dental · TMJ · teeth · face · headaches · salivary changes · bruxism

The WCJ correctly found treatment prior to October 11, 2005 was not apportionable, but incorrectly apportioned treatment after that date based on Dr. Peterson's report, which was legally flawed and speculative; issue deferred for further proceedings.

From the decision · page 10Here, lien claimant correctly asserts that the WCJ correctly concluded that the treatment prior to October 11, 2005 cannot be apportioned. Yet, as to the treatment after October 11, 2005, the WCJ incorrectly apportioned Dr. Schames' treatment to applicant's prior non-industrial injury [1987 drive by shooting] based on the report of Dr. Peterson. Dr. Peterson's opinions about the need for future treatment are based on an incorrect legal theory that medical treatment can be apportioned, and therefore are not substantial evidence. In sum, as a matter of law, the issue of whether applicant's treatment for the industrial injury can be apportioned between the industrial

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 · Dentistry

Applicant requires ongoing palliative treatment to manage pain and maintain plateau state; treatment is reasonable and necessary to relieve effects of industrial injury.

Supports applicant's entitlement to treatment before and after October 11, 2005; treatment is palliative and reasonable.

From the decision · page 4Please Note: Even though the patient has reached a plateau state in my area of expertise, the patient still requires on-going palliative treatments in order to help the patient manage the pain and keep them at the plateau state. According to my understanding, this continued care is discussed in the following case: Interventional Pain Management, Galileo Surgery Center vs. WCAB (Stratton) (2001) 66 CCC 1472, Court of Appeal unpublished opinion. The Court of Appeal held that even though the palliative medical treatment did not provide the applicant with a lasting benefit, these palliative treatments were still reasonable and necessary to relieve the applicant from the effects of an industrial injury, where the applicant's treating physician referred the applicant to the lien claimant for pain management.

QMERejected · Dentistry

Applicant was permanent and stationary as of March 1, 2005; 50% of jaw and TMJ dysfunction caused by preexisting 1987 gunshot injury; no future treatment needed for xerostomia; opinion on future treatment is speculative and legally flawed.

Report used by WCJ to apportion treatment after October 11, 2005, but tribunal found it legally incorrect and speculative.

From the decision · page 5mobility" on July 26, 2004, and sustained a loss of her lower tooth on August 3, 2004. (Exhibit B, Report of Defense QME Jerome N. Peterson, DDS, October 11, 2005, p. 30.) According to Dr. Peterson, "based upon the information that has been made available, it was [his] opinion that 50% of the cause of applicant's current jaw and TMJ dysfunction was caused by a preexisting gunshot assault that occurred in 1987 which caused a fractured mandible, gunshot residue in the maxilla and mandible, and the need for multiple surgeries.... It is highly medically likely that the patient's current restricted mobility was 50% caused by her accident/assault in 1987 and 50% due to aggravation as a result of her accident on 7/26/04." (Exhibit B, Report of Defense QME Jerome N. Peterson, DDS, October 11, 2005, p. 31.) With respect to further medical treatment, he stated that:

ADJ4391030 · October 22, 2024

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