What the panel ordered
Petition for Reconsideration granted; final decision deferred pending further review of merits and entire record.
Defendant seeks reconsideration of the December 1, 2023 Findings and Award where the WCJ found applicant permanently totally disabled due to industrial injury. The WCAB granted reconsideration and deferred final decision pending further review.
This docket was decided more than once. Shown here is the latest released decision; we also hold May 24, 2021.
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 WCJ found permanent total disability based on medical evidence including opinions of Dr. Zwerin and Dr. Wolfson, but the WCAB granted reconsideration due to issues with evidence and application of AMA Guides.
From the decision · page 1Defendant seeks reconsideration of the December 1, 2023 Findings and Award wherein the workers' compensation administrative law judge (WCJ) found that, while employed as an in-home care giver on October 20, 2010, applicant sustained industrial injury to her bilateral upper extremities, including her left shoulder, cervical spine and psyche, causing permanent total disability.1
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Defendant failed to confirm identity of applicant in surveillance videos, undermining reliance on video evidence.
Favours Applicant prevailed
This failure led the WCAB to grant reconsideration and defer final decision, as the video evidence was not reliable.
From the decision · page 4Defendant had over a year to clean up the record regarding the question of who is in the 32 videotapes. Not only did defendant do nothing at all about obtaining confirmation that the videotapes were of the applicant, for the most recent trial, defendant offered 4 videos as evidence of which videos at least two were definitely not of the applicant.
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.
Agreed with Dr. Zwerin's diagnosis of CRPS but noted the AMA Guides 5th edition criteria for CRPS are inaccurate and outdated. Did not rely on surveillance video due to identity issues.
Disputed application of AMA Guides 5th edition for CRPS diagnosis; detailed explanation of diagnosis and impairment.
From the decision · page 3Dr. Wolfson states that the standard ratings that we normally use in the workers' compensation system absolutely do not apply in this case (Joint Exhibit 125, page 80). Although Dr. Wolfson states that he is not the best person to evaluate CRPS (Joint Exhibit 124, page 2), he states that he is in agreement with Dr. Zwerin's diagnosis of CRPS (Joint Exhibit 121, page 3).
Diagnosed CRPS using Budapest Clinical Diagnostic Criteria, criticized AMA Guides 5th edition as outdated for CRPS diagnosis, provided impairment rating applying AMA Guides.
Provided detailed medical opinion on CRPS diagnosis and impairment rating, explaining deviation from AMA Guides 5th edition.
From the decision · page 2Applicant was evaluated by Dr. Zwerin on two separate occasions. The first time Dr. Zwerin evaluated the applicant he said
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Labor Code section 4660
Labor Code section 4660 and AMA Guides to the Evaluation of Permanent Impairment (5th Edition)
The AMA Guides 5th edition is incorporated by statute for impairment rating but allows clinical judgment and deviation.
From the decision · page 5(a) In determining the percentages of permanent disability, account shall be taken of the nature of the physical injury or disfigurement, the occupation of the injured employee, and his or her age at the time of the injury, consideration being given to an employee's diminished future earning capacity.
What proof carried it
The evidence the panel weighed, by kind.
Surveillance video identity issues and lack of confirmation by defendant
From the decision · page 4Dr. Wolfson in his report of March 2, 2022 (Joint Exhibit 124) stated that he had reviewed 32 videos of the applicant. Dr. Wolfson indicates that if the video surveillance accurately depicts the applicant, then he has been fooled by the applicant. The doctor however makes it clear that he cannot verify whether the person in the video is the applicant and therefore does not rely on the video to reach a conclusion that his diagnosis of CRPS is inaccurate or that applicant is able to return to the open labor market.
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About this page
- A published decision of the California Workers' Compensation Appeals Board, taken apart by what it turned on. The Board publishes the decision itself; this page adds the extraction and quotes the passage behind every claim.
- The injured worker is not named here, and the case caption is not printed. Physicians appear as the decision names them, because a medical opinion is an act in a public proceeding.
- Issues, outcomes and weights were extracted by AI and released only where the source passage checked. Read the official decision before relying on anything here. Not legal advice.
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