What the panel ordered
Defendant's Petition for Reconsideration denied; Applicant's Petition for Reconsideration granted; August 31, 2021 Findings of Fact and Award affirmed except amended as recommended.
Applicant and defendant each filed timely Petitions for Reconsideration from the August 31, 2021 Findings of Fact and Award; the WCAB granted applicant's petition and denied defendant's petition, amended the WCJ's decision as recommended, and otherwise affirmed the August 31, 2021 Findings of Fact and Award.
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.
The court found 10% of psychiatric disability and 80% of GERD-related disability apportioned to nonindustrial factors based on medical reports.
From the decision · page 26APPORTIONMENT Based upon the medical report of treating psychologist A. Joseph Glaser, Ph.D., dated June 29, 2021, and applicant's Qualified Medical Examiner (internal medicine) Timothy Reynolds, M.D. dated October 22, 2019, based upon applicant's testimony, it is found that there is legal basis for proper apportionment of 10% of the psychiatric disability to nonindustrial factors, and 80% of the GERD-related disability to nonindustrial factors, as set forth in the formal rating instructions.
The court found the reporting of treating psychologist Dr. Glaser to be more persuasive and reliable than defense QME Dr. Jacks, establishing injury arising out of employment and rejecting personnel action as a substantial cause.
From the decision · page 8After a review of the totality of the reporting in evidence and following three orders for development of the record to address issues of substantiality, the undersigned was satisfied that the reporting of Dr. Glaser constituted substantial medical evidence. Dr. Glaser's reporting expressed familiarity with the applicant's medical and vocational history, and reflected a clear understanding of the claimed stressors in this matter.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Applicant's credible testimony and treating psychologist Dr. Glaser's report established injury arising out of employment on cumulative trauma period July 31, 2000 through August 9, 2002.
Favours Applicant prevailed
Supported finding of compensable psychiatric injury and rejection of personnel action as substantial cause.
From the decision · page 25Based upon applicant's credible testimony, and the medical report of treating psychologist A Joseph Glaser, Ph.D., dated June 29, 2021, the applicant has met her burden to establish injury arising out of and occurring in the course of employment on cumulative trauma period July 31, 2000 through August 9, 2002.
Favours Applicant prevailed
Medical reports found 10% of psychiatric disability and 80% of GERD-related disability apportioned to nonindustrial factors.
Favours neutral
Resulted in mixed outcome on apportionment issue.
From the decision · page 26APPORTIONMENT Based upon the medical report of treating psychologist A. Joseph Glaser, Ph.D., dated June 29, 2021, and applicant's Qualified Medical Examiner (internal medicine) Timothy Reynolds, M.D. dated October 22, 2019, based upon applicant's testimony, it is found that there is legal basis for proper apportionment of 10% of the psychiatric disability to nonindustrial factors, and 80% of the GERD-related disability to nonindustrial factors, as set forth in the formal rating instructions.
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.
Found injury arising out of employment on cumulative trauma period July 31, 2000 through August 9, 2002; identified multiple overlapping causative factors accreting over employment; found personnel action not a substantial cause of psychiatric injury.
The court found Dr. Glaser's reporting to be more persuasive and reliable, reflecting applicant's credible testimony and a thorough analysis of causation factors.
From the decision · page 8After a review of the totality of the reporting in evidence and following three orders for development of the record to address issues of substantiality, the undersigned was satisfied that the reporting of Dr. Glaser constituted substantial medical evidence. Dr. Glaser's reporting expressed familiarity with the applicant's medical and vocational history, and reflected a clear understanding of the claimed stressors in this matter.
Assessed the July 2002 performance improvement plan as the sole predominant factor in psychiatric injury, with other industrial stressors minor; report not well-supported in record.
The court found Dr. Jacks' assessment less persuasive and not well-supported compared to Dr. Glaser's.
From the decision · page 9physiological response, as reflected in contemporaneous medical records. It was further felt that Dr. Jacks' assessment of the July, 2002 performance improvement plan as the sole predominant factor in applicant's psychiatric injury, with the myriad of other industrial stressors relegated to a minor role, was not well-supported in the record. The factors that played a greater factor in Dr. Glaser's analysis, and a lesser part in that of Dr. Jacks, included the onset of panic attacks, severe IBS, shingles, seeking medical treatment for stress, and the need to work from home, all occurring prior to the performance improvement plan ever being instituted. On this record, the court found the reporting of Dr. Glaser to be the better-reasoned and more persuasive.
Found IBS preexisting and without industrial nexus; supported apportionment of 80% GERD disability to nonindustrial factors.
Based on medical report and applicant's testimony, apportionment was found for GERD-related disability.
From the decision · page 26APPORTIONMENT Based upon the medical report of treating psychologist A. Joseph Glaser, Ph.D., dated June 29, 2021, and applicant's Qualified Medical Examiner (internal medicine) Timothy Reynolds, M.D. dated October 22, 2019, based upon applicant's testimony, it is found that there is legal basis for proper apportionment of 10% of the psychiatric disability to nonindustrial factors, and 80% of the GERD-related disability to nonindustrial factors, as set forth in the formal rating instructions.
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
California Labor Code
Labor Code 4661.5
Provides for temporary disability indemnity at the weekly rate based on applicant's earnings when less than maximum rate.
California Labor Code
Labor Code 3208.3(h)
Analysis of whether lawful, nondiscriminatory good-faith personnel action is a substantial cause of injury.
From the decision · page 8After a review of the totality of the reporting in evidence and following three orders for development of the record to address issues of substantiality, the undersigned was satisfied that the reporting of Dr. Glaser constituted substantial medical evidence. Dr. Glaser's reporting expressed familiarity with the applicant's medical and vocational history, and reflected a clear understanding of the claimed stressors in this matter.
What proof carried it
The evidence the panel weighed, by kind.
Applicant's credible trial testimony reflecting multiple overlapping causative factors accreting over employment causing physiological co-morbidities and anxiety attacks.
From the decision · page 24The Workers' Compensation Appeals Board is empowered to review the medical record and to choose among the conflicting medical reports and rely on that which is deems most persuasive.37 Here, the applicant's credible trial testimony reflects a multitude of causative factors accreting over the course of the claimed cumulative trauma period, causing her preexisting physiological co- morbidities to become aggravated to the point where applicant began to experience anxiety attacks. The applicant sought, and was granted, the work accommodation allowing her to work from home in 2002. The applicant's frequent and increasing physiological response to work stress, including hives, shingles, more frequent and daily bouts of !BS, and the development of anxiety attacks all speak to an ongoing process of accruing work stress and the physiological response to that stress.
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About this page
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