ADJ6680097 · August 10, 2021

The WCJ and Appeals Board found substantial evidence in Dr. Nehorayan's psychiatric reports supporting compensable psychiatric injury as a consequence of the original industrial injury, and rejected defendant's challenges including statute of limitations and lack of substantial evidence.

From the decision · page 1In the Findings and Award of April 6, 2020, the Workers' Compensation Judge (WCJ) found that applicant, while employed as a child support officer by the County of San Bernardino during the period September 11, 2007 through September 11, 2008, sustained industrial injury to her wrists, elbows and psyche, but not to her neck or shoulders, that applicant's claim was settled by Stipulations and Award approved June 13, 2012, stipulating to injury only to the bilateral elbows and wrists resulting in 21% permanent disability, that the WCAB has jurisdiction to award benefits for the psychiatric injury under Labor Code Section 5410 because applicant filed a timely Petition to Reopen for New and Further Disability, and that applicant's Petition to Reopen is not barred by the Statute of Limitations under Labor Code Section 5405. The WCJ also found that due to a psychiatric injury sustained as a compensable consequence of applicant's original industrial injury, she has incurred new and further disability further disability to her psyche but not to her wrists, elbows, shoulders, or neck, and that the psyche injury has resulted in the need for further medical treatment and permanent disability of 54%, without apportionment.

Applicant filed a timely Petition to Reopen for New and Further Disability on August 28, 2013, within five years of the original injury ending September 2008.

Favours Applicant prevailed

This established the Appeals Board's jurisdiction to consider the psychiatric injury claim under Labor Code Section 5410.

From the decision · page 3In this case, there is no question that applicant filed a timely Petition to Reopen for New and Further Disability, because at the first trial hearing of April 13, 2016, the parties stipulated that applicant did so on August 28, 2013. In that Petition, applicant alleged that she sustained new and further disability to her bilateral wrists, bilateral elbows, bilateral shoulders and neck. At trial on April 13, 2016, the parties likewise stipulated that applicant filed an Amended Application for Adjudication of Claim dated January 16, 2015, alleging that she sustained an industrial injury to her psyche.

Dr. Nehorayan's psychiatric reports diagnosed adjustment disorder as a compensable consequence of the industrial injury and found new and further disability to psyche.

Favours Applicant prevailed

The WCJ and Appeals Board relied on these reports as substantial evidence to support compensability and new and further disability.

From the decision · page 11III. DISCUSSION A. New and Further Disability - Ps ychiatric Iniury: The only issues for reconsideration are whether Applicant sustained an industrial psychiatric injury causing new and further disability, and if so, whether her entitlement to any increased permanent disability from that injury is barred. The only medical evidence submitted on the psychiatric injury are the reports of Dr. Nehorayan dated April 21, 2015 and February 9, 2017. In the former, Dr. Nehorayan concluded Applicant did sustain a psychiatric injury as a compensable consequence of her industrial injuries. He diagnosed adjustment disorder with depressed and anxious mood, chronic, referencing the DSM IV, Code 309.28. (Applicant's Exhibit 4, p. 9.) He noted that Applicant's score on the Beck Depression Inventory was indicative of an individual experiencing a moderate amount of depression. (Id. at p. 7.) He did not find her to be clinically depressed or suffering from a major depressive episode. (Id. at p. 10.) Rather, he found that the nature of her condition is that she has had to struggle continuously in adjusting to the current circumstances associated with her physical condition and the physical pain. (Ibid.) He notes it is difficult for Applicant to exercise with her arms and hands, she is

Defendant failed to present any psychiatric medical opinion in rebuttal and relied on Kaiser records that showed no psychiatric symptoms related to nonindustrial injuries before 2015.

Favours Applicant prevailed

This lack of rebuttal evidence and absence of psychiatric symptoms in records favored applicant's claim of compensable psychiatric injury.

From the decision · page 21, 2020), emphasis added.) Rule 10945(b) then goes on to specify how references to the record must be made. Here, defendant not only violated Rule 10945(b), but failed to make even a reasonable effort to include specific citations to the record. Defendant cannot evade this responsibility and place the burden on the Appeals Board to discover where the evidence supporting the petition can be found in the record. We further note, concerning the substantialty of Dr. Nehorayan's psychiatric reports, that defendant presented no psychiatric medical opinion in rebuttal, and it is well-established that the relevant and considered opinion of one physician may constitute substantial evidence. (Place v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 372, 378-379 [35 Cal.Comp.Cases 525].)

Diagnosed adjustment disorder with depressed and anxious mood as compensable consequence of industrial injuries; found new and further disability to psyche; rejected apportionment to nonindustrial injuries as speculative.

The WCJ found Dr. Nehorayan's reports persuasive and substantial evidence supporting compensable psychiatric injury and new and further disability, rejecting defendant's challenges and lack of rebuttal psychiatric evidence.

From the decision · page 11III. DISCUSSION A. New and Further Disability - Ps ychiatric Iniury: The only issues for reconsideration are whether Applicant sustained an industrial psychiatric injury causing new and further disability, and if so, whether her entitlement to any increased permanent disability from that injury is barred. The only medical evidence submitted on the psychiatric injury are the reports of Dr. Nehorayan dated April 21, 2015 and February 9, 2017. In the former, Dr. Nehorayan concluded Applicant did sustain a psychiatric injury as a compensable consequence of her industrial injuries. He diagnosed adjustment disorder with depressed and anxious mood, chronic, referencing the DSM IV, Code 309.28. (Applicant's Exhibit 4, p. 9.) He noted that Applicant's score on the Beck Depression Inventory was indicative of an individual experiencing a moderate amount of depression. (Id. at p. 7.) He did not find her to be clinically depressed or suffering from a major depressive episode. (Id. at p. 10.) Rather, he found that the nature of her condition is that she has had to struggle continuously in adjusting to the current circumstances associated with her physical condition and the physical pain. (Ibid.) He notes it is difficult for Applicant to exercise with her arms and hands, she is

Labor Code Section 5410

Labor Code Section 5410 - Petition to Reopen for New and Further Disability must be timely filed within five years.

The Appeals Board found applicant filed a timely petition and that the psychiatric injury related back to the original injury date ending 2008, thus within jurisdiction.

From the decision · page 3We turn to defendant's contention that the WCAB does not have jurisdiction to entertain applicant's Petition to Reopen for New and Further Disability, because it was filed beyond the five year period set forth in Labor Code section 5410. For the reasons discussed below, we do not find merit in this contention.

Labor Code Section 4660.1(c)(1)

Labor Code Section 4660.1(c)(1) does not bar compensation for psychiatric injury occurring before January 1, 2013.

The Appeals Board agreed the statute was inapplicable because the psychiatric injury related back to the cumulative trauma injury ending in 2008, before the statute's effective date.

From the decision · page 3In reference to defendant's contention that compensation for applicant's claimed compensable consequence psychiatric injury is barred by Labor Code section 4660.1(c)(1), we agree with the WCJ that the statute is inapplicable because it applies to injuries occurring on or after January 1, 2013. Here, the psychiatric injury in question relates back to the date of cumulative trauma injury ending September 2008.

Defendant failed to submit psychiatric medical opinion in rebuttal to Dr. Nehorayan's reports.

From the decision · page 21, 2020), emphasis added.) Rule 10945(b) then goes on to specify how references to the record must be made. Here, defendant not only violated Rule 10945(b), but failed to make even a reasonable effort to include specific citations to the record. Defendant cannot evade this responsibility and place the burden on the Appeals Board to discover where the evidence supporting the petition can be found in the record. We further note, concerning the substantialty of Dr. Nehorayan's psychiatric reports, that defendant presented no psychiatric medical opinion in rebuttal, and it is well-established that the relevant and considered opinion of one physician may constitute substantial evidence. (Place v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 372, 378-379 [35 Cal.Comp.Cases 525].)

Defendant's Kaiser records showed no psychiatric symptoms related to nonindustrial injuries and no psychiatric treatment by applicant before 2015.

From the decision · page 10Trial on the petition to reopen commenced on April 13, 2016. Applicant submitted medical reports from her treating physician Charles Sadler, M.D. and psychiatrist Marc Nehorayan, M.D. Defendant submitted medical reports from orthopedic PQME Peter Sofia, M.D., but offered no rebuttal reports in psychiatry. Defendant also submitted two pages of Kaiser records dated March 21, 2014 (Defendant's Exhibit H). The records discuss Applicant's nonindustrial left knee injury and a host of other conditions but there is no mention of any psychiatric symptoms.