ADJ8911663 · June 7, 2024

The WCJ's assignment of body parts to body systems under section 4664(c) was not supported by substantial medical evidence, and the parties did not present the dispute directly to the evaluators for opinion on body systems, requiring further development of the record.

From the decision · page 1Applicant seeks reconsideration of the "Findings and Award" (F&A) issued on November 6, 2020, by the workers' compensation administrative law judge (WCJ). The WCJ found, in pertinent part, that applicant sustained an industrial injury on a cumulative basis through May 13, 2012 to the following body parts: "cognitive impairment, psyche, gait, hypertensive heart disease, apraxia/agnosia, headaches, erectile dysfunction, GERD, bilateral lower extremities (DVT), vision, sleeping, hypertension, and brain." (F&A, p. 1.) The WCJ further found that the disability in the form of sleep, cognitive, and psyche are categorized as mental and behavioral disorders under Labor Code1 section 4664(c)(1)(C). The WCJ categorized the following disabilities under the general provision of section 4664(c)(1)(G): hypertension, erectile dysfunction, GERD, deep- vein thrombosis of the bilateral lower extremities, gait derangement, apraxia, agnosia, and headaches.

The WCJ assigned body parts such as gait derangement and DVT to body systems under section 4664(c) without substantial medical evidence directly addressing body system assignment.

Favours Applicant prevailed

This lack of substantial medical evidence on body system assignment led to the rescission of the Findings and Award and remand for further proceedings.

From the decision · page 3The WCJ assigned gait derangement to section 4664(c)(1)(G) as follows:

Testified that DVT in the lower extremities is due to a vascular issue and veins are part of a continuous vascular tree, so DVT is part of the cardiovascular system under Labor Code section 4664(c)(1)(G).

Supports that DVT should be assigned to the cardiovascular system under section 4664(c)(1)(G).

From the decision · page 4As per the opinion of Agreed Medical Evaluator Edward O'Neill MD in his deposition testimony, the DVT in the applicant's lower extremities is due to a vascular issue. Dr. O'Neill testified in his deposition that although the applicant's DVT occurred in the lower extremities, veins are part of a continuous vascular tree, and any clot located in those branches can migrate. (Joint Exhibit EE, pages 13 line 25, through page 16, line 14). Accordingly, in the opinion of the undersigned, the DVT in the applicant's bilateral lower extremities is part of the cardiovascular system, which falls under Labor Code § 4664 (c)(1)(G).

Assigned gait derangement and apraxia/agnosia to the central nervous system under Labor Code section 4664(c)(1)(G) based on AMA Guides tables.

Supports assignment of gait and apraxia/agnosia to the nervous system under section 4664(c)(1)(G).

From the decision · page 3The WCJ assigned gait derangement to section 4664(c)(1)(G) as follows:

Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 621 (Appeals Board en banc)

A medical opinion must be framed in terms of reasonable medical probability, not speculative, based on pertinent facts and adequate examination, and must set forth reasoning in support of conclusions to constitute substantial evidence.

Applied to require substantial medical evidence for body system assignment under section 4664(c).

From the decision · page 5To constitute substantial evidence "... a medical opinion must be framed in terms of reasonable medical probability, it must not be speculative, it must be based on pertinent facts and on an adequate examination and history, and it must set forth reasoning in support of its conclusions." (Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 621 (Appeals Board en banc).)

The parties did not directly present their 4664(c) dispute to the medical evaluators, resulting in insufficient medical evidence on body system assignment.

From the decision · page 7Here, the record is murky. For example, Dr. Fink describes applicant's apraxia and agnosia as both an issue of cognitive disorder and a disorder of the upper extremities. However, the parties did not directly present their 4664(c) dispute before the doctor. Where the parties dispute the body systems disabled by an impairment, they should present the list of 4664(c) body systems to the evaluator, so that the evaluator may then opine on which body systems are disabled due to each impairment assigned and explain the basis for their opinion. Such an opinion must constitute substantial evidence.