What the panel ordered
The WCAB affirmed the WCJ's Findings, Award and Order, except amending the attorney's fees amount. The permanent total disability indemnity payments were confirmed to commence retroactively as of October 21, 2015.
Defendant sought reconsideration of the WCJ's Findings, Award and Order issued on December 2, 2020, which found applicant permanently totally disabled and set the commencement date for permanent total disability indemnity. The WCJ report recommended dismissal of the Petition for Reconsideration.
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 and WCAB found that the applicant is permanently totally disabled and that permanent total disability indemnity payments should commence retroactively to October 21, 2015, based on the medical evidence and applicable case law.
From the decision · page 1Defendant seeks reconsideration of the Findings, Award and Order (F&A) issued by the workers' compensation administrative law judge (WCJ) on December 2, 2020, wherein the WCJ found in pertinent part that as a result of applicant's injury, he is permanently totally (100%) disabled and that defendant's liability for payment of the permanent total disability indemnity commenced as of October 21, 2015.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Applicant is permanently totally disabled as found by the WCJ and supported by medical evidence.
Favours Applicant prevailed
This fact supports the award of permanent total disability indemnity.
From the decision · page 1Defendant seeks reconsideration of the Findings, Award and Order (F&A) issued by the workers' compensation administrative law judge (WCJ) on December 2, 2020, wherein the WCJ found in pertinent part that as a result of applicant's injury, he is permanently totally (100%) disabled and that defendant's liability for payment of the permanent total disability indemnity commenced as of October 21, 2015.
Permanent total disability indemnity payments should commence retroactively to October 21, 2015, as stipulated and supported by case law.
Favours Applicant prevailed
This fact determines the start date for indemnity payments.
Defendant's vocational consultant's opinion on employability was less persuasive than applicant's vocational expert's report considering medical restrictions and vocational testing.
Favours Applicant prevailed
This fact supports the finding of permanent total disability and the inability to compete in the open labor market.
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.
Assigned 5% whole person impairment for cervical and thoracic spine, 6% for right hand; concluded applicant may return to work as of June 2012; increased right shoulder impairment to 16% WPI in 2018 and noted applicant is medically retired.
The WCJ and WCAB relied on Dr. Sohn's evaluations and impairment ratings in determining permanent total disability and indemnity commencement.
From the decision · page 2On April 23, 2012, applicant was evaluated by orthopedic agreed medical examiner (AME) Roger S. Sohn, M.D. Regarding the history of applicant's injury and treatment, Dr. Sohn noted:
Found psychiatric injury as compensable consequence of orthopedic injury; psychiatric condition stabilized with no new disability as of 2017.
The WCJ and WCAB relied on Dr. Sones' psychiatric evaluations in determining permanent total disability and indemnity commencement.
From the decision · page 3On June 10, 2013, psychiatry AME David E. Sones, M.D., evaluated applicant. After
Concluded dyspepsia aggravated by medication for industrial injury; no industrial aggravation of hypertension; diabetes control improved; increased diabetes impairment from 6% to 10%.
The WCJ and WCAB relied on Dr. Burstein's medical opinions regarding the industrial injury and its consequences.
From the decision · page 3Internal medicine QME Darrell H. Burstein, M.D., evaluated applicant on November 5,
Diagnosed occipital neuralgia as direct consequence of industrial injury; increased headache impairment from 8% to 11%.
The WCJ and WCAB relied on Dr. Fink's evaluations and impairment ratings in determining permanent total disability and indemnity commencement.
From the decision · page 4Pain medicine QME, Ezekiel Fink, M.D., evaluated applicant on, August 26, 2015. The diagnoses included occipital neuralgia [a type of headache]. (Joint Exh. 5, Ezekiel Fink, M.D., August 26, 2015, p. 9.) Dr. Fink stated that applicant sustained extensive musculoskeletal injuries and he developed highly disabling occipital neuralgia. (Joint Exh. 5, p. 12.) He assigned 8% headache WPI and regarding causation, he stated, "The headache complaint is determined as a direct consequence of the specific industrial injury on July 6, 2011..." (Joint Exh. 5, p. 14.)
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Southern California Rapid Transit District, Inc. v. Workers' Comp. Appeals Bd. (Weitzman) (1979) 23 Cal.3d 158; Fitzpatrick v. Fidelity & Casualty Co. (1936) 7 Cal.2d 230; Maher v. Workers' Comp. Appeals Bd. (1983) 33 Cal.3d 729; Hikida
Compensable consequences doctrine and employer responsibility for medical treatment consequences
The Appeals Board applied the compensable consequences doctrine to hold that medical treatment consequences are compensable and employer liable.
From the decision · page 6The Appeals Board has long followed a principle commonly known as the "compensable consequences" doctrine. An injury is a "compensable consequence" when the subsequent injury is a direct consequence of an original industrial injury. The subsequent injury is considered to relate back to the original injury and it is not treated as a new or independent injury. (Southern California Rapid Transit District, Inc. v. Workers' Comp. Appeals Bd. (Weitzman) (1979) 23 Cal.3d 158 [44 Cal.Comp.Cases 107]; Rodgers v. Workers' Comp. Appeals Bd. (1985) 168 Cal.App.3d 567 [50 Cal.Comp.Cases 299]; Beaty v. Workers' Comp. Appeals Bd. (1978) 80 Cal.App.3d 397 [43 Cal.Comp.Cases 444].) It has also long been the law that "the aggravation of an industrial injury or the infliction of a new injury resulting from its treatment or examination are compensable under the [Workers' Compensation Act]..." (Fitzpatrick v. Fidelity & Casualty Co. (1936) 7 Cal.2d 230, 232 [1936 Cal. LEXIS 622].) For example, an injured worker's adverse reaction to drugs that were required to be taken for her continued employment was deemed an industrial injury. (Maher v. Workers' Comp. Appeals Bd. (1983) 33 Cal.3d 729, 735-738 [48 Cal.Comp.Cases 326].) The Second District Court of Appeals has also determined that the aggravation of an industrial injury
Labor Code sections 4650 and 4661 regarding permanent disability indemnity payments
The Appeals Board applied Labor Code sections 4650 and 4661 to determine the retroactive commencement of permanent total disability indemnity payments.
From the decision · page 8Construing sections 4650 and 4661 together, if a defendant paid permanent partial disability payments to an applicant who becomes permanently totally disabled, the defendant must retroactively adjust the permanent disability payments to the correct rate.... ... [U]pon an award of permanent disability, `the amount then due shall be calculated from the last date for which temporary disability indemnity was paid, or the date the employee's disability became
What proof carried it
The evidence the panel weighed, by kind.
Applicant's testimony and medical reports showing worsening condition and work restrictions
From the decision · page 5The parties proceeded to trial on September 14, 2020. (Minutes of Hearing and Summary of Evidence (MOH/SOE), September 14, 2020.) The matter was continued and applicant testified at the November 2, 2020 trial. The WCJ's summary of applicant's testimony includes the following:
Vocational expert Enrique N. Vega's report persuasively countering defendant's vocational consultant's opinion on employability
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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.
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