ADJ7803842 — California WCAB decision

What the panel ordered

The WCAB affirmed the WCJ's Findings of Fact, Award and Order after reconsideration.

Defendant sought reconsideration of the WCJ's June 13, 2019 Findings of Fact, Award and Order, which found 85% permanent disability caused by the injury.

Read the official decision →

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 / IMRApplicant prevailedorthopedic system · head · neck · bilateral upper extremities · spine · hips · bilateral lower extremities · neurological system · internal system · dental/TMJ

The reports from doctors Styner, Leynes, and Nudleman were held admissible as they were attending and consulting physicians' reports, not solely for rebuttal of QME opinions.

From the decision · page 6Here, by correspondence dated July 29, 2011, applicant designated Dr. Styner to be his treating physician (App. Exh. 5) and Dr. Styner referred applicant to Dr. Leynes and Dr. Nudelman for consultations. As attending and consulting physicians, the reports from each of the doctors are admissible. (Batten v. Workers' Comp. Appeals Bd., supra at 1016.) Also, all of the reports from Dr. Leynes, Dr. Nudelman, and Dr. Styner were issued prior to the reports from QME Dr. McQuinn and QME Dr. Takla. Further, except for Dr. Styner's November 27, 2013 report and Dr. Leynes, January 6, 2014 report, all of their reports were issued prior to the reports from Dr. O'Meara. Clearly, the attending and consulting physicians, Drs. Styner, Leynes, and Nudelman were not retained solely for the purpose of rebutting the opinions of the QMEs. Thus, we agree with the WCJ that there is no legal basis for "denying their admissibility." (Opinion on Decision, p. 6.)

The facts that decided it

What the panel treated as outcome-determinative, and which side it favoured.

Reports from doctors Styner, Leynes, and Nudleman were attending and consulting physicians' reports, not solely for rebuttal of QME opinions.

Favours Applicant prevailed

This supported the admissibility of their medical reports, favoring applicant's case.

From the decision · page 6Here, by correspondence dated July 29, 2011, applicant designated Dr. Styner to be his treating physician (App. Exh. 5) and Dr. Styner referred applicant to Dr. Leynes and Dr. Nudelman for consultations. As attending and consulting physicians, the reports from each of the doctors are admissible. (Batten v. Workers' Comp. Appeals Bd., supra at 1016.) Also, all of the reports from Dr. Leynes, Dr. Nudelman, and Dr. Styner were issued prior to the reports from QME Dr. McQuinn and QME Dr. Takla. Further, except for Dr. Styner's November 27, 2013 report and Dr. Leynes, January 6, 2014 report, all of their reports were issued prior to the reports from Dr. O'Meara. Clearly, the attending and consulting physicians, Drs. Styner, Leynes, and Nudelman were not retained solely for the purpose of rebutting the opinions of the QMEs. Thus, we agree with the WCJ that there is no legal basis for "denying their admissibility." (Opinion on Decision, p. 6.)

Defendant did not raise the merger issue at trial and failed to submit evidence identifying specific injury dates or causes.

Favours Defendant prevailed

The merger issue was waived and not considered, favoring defendant's procedural position but not affecting applicant's permanent disability award.

From the decision · page 6Defendant argues that applicant's cumulative injury claim violates sections 3208.2 and 5303. Review of the trial record indicates that although the parties identified several code sections as "issues" (MOH/SOE, p. 3) defendant did not raise any issues as to sections 3208.2 and 5303. Applicant's cumulative injury claim was denied and at no time did defendant object to any of the body parts being included in the cumulative injury claim. Also, defendant refers to Dr. Styner's review of medical records, but did not submit any evidence identifying the dates of injury or cause of injury as to any specific injuries that it is asserting. It has long been the law that an issue that could have been raised at trial cannot be raised for the first time in a petition for reconsideration. (Davis v. Interim Health Care (2000) 65 Cal.Comp.Cases 1039, 1044 (Appeals Board en banc); City of Anaheim v. Workers' Comp. Appeals Bd. (Evans) (2005 W/D) 70 Cal.Comp.Cases 237,

The WCJ independently rated applicant's permanent disability without error.

Favours Applicant prevailed

This supported affirming the permanent disability rating in favor of applicant.

From the decision · page 7Finally, an injured worker's disability rating does not require that a rating be issued by a DEU rater. (See Blackledge v. Bank of America (2010) 75 Cal. Comp. Cases 613 (Appeals Board en banc).) "[A] WCJ may elect to independently rate an employee's permanent disability." (Ibid, at 616.) It must be noted that although defendant argues it is "preferable" for a WCJ to issue formal rating instructions, defendant did not identify any errors in the WCJ's rating of applicant's disability. Nor do we see any errors in the rating. Defendant's arguments do not constitute a basis for rescinding the WCJ's rating of applicant's disability.

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.

PTPRelied upon · orthopedic

Diagnosed several spine, upper and lower extremity conditions; recommended internal medicine and neurological consultations; concluded 100% orthopedic disability caused by cumulative trauma injury; apportioned 10% of bilateral shoulder disability to non-industrial causes.

Reports were admitted as attending and consulting physicians' reports, not solely for rebuttal of QME opinions.

From the decision · page 2BACKGROUND Applicant claimed injury to his "orthopedic system" including his head, neck, bilateral upper extremities, spine, hips, and bilateral lower extremities, to his neurological and internal systems, and a dental/TMJ (temporomandibular joint) injury, while employed by defendant St. Louis Rams as a professional football player during the period from April 2006, through March 1, 2008. On July 29 2011, applicant designated orthopedic physician James K. Styner, M.D., to be his treating physician. (App. Exh. 5.) Applicant was seen by Dr. Styner on September 19, 2011, and the doctor diagnosed several spine, and upper and lower extremity conditions. (App. Exh. 2, Dr. Styner, September 19, 2011, p. 10.) The treatment recommendations included an internal medicine consultation and a neurological evaluation. (App. Exh. 2, September 19, 2011, p. 11.) Dr. Styner referred applicant to Kenneth L. Nudleman, M.D., to conduct the neurological evaluation, and he referred applicant to internist Maria Ruby Leynes, M.D., for the internal medicine consultation. Dr. Nudleman diagnosed posttraumatic headaches and sleep disorder.

PTPRelied upon · internal medicine

Diagnosed GERD and bilateral hernias; apportioned 70% of gastric disability and 75% of hernia disability to cumulative injury; maintained opinion on industrial nature and extent of injuries in supplemental report.

Reports were admitted as attending and consulting physicians' reports, not solely for rebuttal of QME opinions.

From the decision · page 2BACKGROUND Applicant claimed injury to his "orthopedic system" including his head, neck, bilateral upper extremities, spine, hips, and bilateral lower extremities, to his neurological and internal systems, and a dental/TMJ (temporomandibular joint) injury, while employed by defendant St. Louis Rams as a professional football player during the period from April 2006, through March 1, 2008. On July 29 2011, applicant designated orthopedic physician James K. Styner, M.D., to be his treating physician. (App. Exh. 5.) Applicant was seen by Dr. Styner on September 19, 2011, and the doctor diagnosed several spine, and upper and lower extremity conditions. (App. Exh. 2, Dr. Styner, September 19, 2011, p. 10.) The treatment recommendations included an internal medicine consultation and a neurological evaluation. (App. Exh. 2, September 19, 2011, p. 11.) Dr. Styner referred applicant to Kenneth L. Nudleman, M.D., to conduct the neurological evaluation, and he referred applicant to internist Maria Ruby Leynes, M.D., for the internal medicine consultation. Dr. Nudleman diagnosed posttraumatic headaches and sleep disorder.

PTPRelied upon · neurology

Diagnosed posttraumatic headaches and sleep disorder; recommended neurological monitoring; assigned 11% whole person impairment from cumulative injury.

Reports were admitted as attending and consulting physicians' reports, not solely for rebuttal of QME opinions.

From the decision · page 2BACKGROUND Applicant claimed injury to his "orthopedic system" including his head, neck, bilateral upper extremities, spine, hips, and bilateral lower extremities, to his neurological and internal systems, and a dental/TMJ (temporomandibular joint) injury, while employed by defendant St. Louis Rams as a professional football player during the period from April 2006, through March 1, 2008. On July 29 2011, applicant designated orthopedic physician James K. Styner, M.D., to be his treating physician. (App. Exh. 5.) Applicant was seen by Dr. Styner on September 19, 2011, and the doctor diagnosed several spine, and upper and lower extremity conditions. (App. Exh. 2, Dr. Styner, September 19, 2011, p. 10.) The treatment recommendations included an internal medicine consultation and a neurological evaluation. (App. Exh. 2, September 19, 2011, p. 11.) Dr. Styner referred applicant to Kenneth L. Nudleman, M.D., to conduct the neurological evaluation, and he referred applicant to internist Maria Ruby Leynes, M.D., for the internal medicine consultation. Dr. Nudleman diagnosed posttraumatic headaches and sleep disorder.

The rules the panel named

Authorities as the decision cited them, with how this panel applied each one.

Valdez v. Workers' Comp. Appeals Bd. (2013) 57 Cal.4th 1231

Reports of attending or examining physicians are broadly admissible under Labor Code section 5703(a) and section 4064(d).

The Board found no legislative intent to limit admissibility of medical evidence and admitted reports from attending and consulting physicians.

From the decision · page 5[T]he comprehensive medical evaluation process set out in section 4060 et seq. for the purpose of resolving disputes over compensability does not limit the admissibility of medical reports...Under section 4064, subdivision (d), "no party is prohibited from obtaining any medical evaluation or consultation at the party's own expense," and "[a]ll comprehensive medical evaluations obtained by any party shall be admissible in any proceeding before the appeals board..." except as provided in specified statutes. The Board is, in general, broadly authorized to consider "[r]eports of attending or examining physicians." (§ 5703, subd. (a).) These provisions do not suggest an overarching legislative intent to limit the Board's consideration of medical evidence. (Valdez v. Workers' Comp. Appeals Bd. (2013) 57 Cal.4th 1231, 1239 [78 Cal.Comp.Cases 1209].)

Batten v. Workers' Comp. Appeals Bd. (2015) 241 Cal.App.4th 1009

An employee may provide, at his or her own expense, a consulting physician or any attending physicians whose reports are admissible unless retained solely for rebuttal of a panel QME.

The Board agreed with the WCJ that reports from doctors Styner, Leynes, and Nudleman were admissible as they were not retained solely for rebuttal of QME opinions.

From the decision · page 5The Board noted that section 4605 is contained in article 2 of chapter 2 of part 2 of division 4 of the Labor Code, which is titled "Medical and Hospital Treatment." Considering this context, the Board concluded that the term "consulting physician" in section 4605 means "a doctor who is consulted for the purposes of discussing proper medical treatment, not one who is consulted for determining medical-legal issues in rebuttal to a panel QME." We agree with the Board. Section 4605 provides that an employee may "provide, at his or her own expense, a consulting physician or any attending physicians whom he or she desires." When an employee consults with a doctor at his or her own expense, in the course of seeking medical treatment, the resulting report is admissible. (Batten v. Workers' Comp. Appeals Bd. (2015) 241 Cal.App.4th 1009, 1016 [80 Cal.Comp.Cases 1256].)

Blackledge v. Bank of America (2010) 75 Cal. Comp. Cases 613 (Appeals Board en banc)

An injured worker's permanent disability rating does not require a DEU rater; a WCJ may independently rate permanent disability.

The Board found no errors in the WCJ's independent rating of permanent disability and affirmed it.

From the decision · page 7Finally, an injured worker's disability rating does not require that a rating be issued by a DEU rater. (See Blackledge v. Bank of America (2010) 75 Cal. Comp. Cases 613 (Appeals Board en banc).) "[A] WCJ may elect to independently rate an employee's permanent disability." (Ibid, at 616.) It must be noted that although defendant argues it is "preferable" for a WCJ to issue formal rating instructions, defendant did not identify any errors in the WCJ's rating of applicant's disability. Nor do we see any errors in the rating. Defendant's arguments do not constitute a basis for rescinding the WCJ's rating of applicant's disability.

ADJ7803842 · April 12, 2022

What the panel ordered

What was disputed, and how it came out

Your case already resembles someone else’s. Find whose.

The facts that decided it

What the panel did with the medical opinions

The rules the panel named

What proof carried it

About this page