What the panel ordered
Findings and Order of January 5, 2021 rescinded; matter returned to WCJ for further proceedings and new decision
Petition for Reconsideration granted to further study factual and legal issues; original Findings and Order rescinded and matter returned to WCJ for further proceedings and new decision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.
Applicant did not show good cause to reopen the award based on orthopedic injuries as he was aware of these prior to the original award; however, the ear injury claim was appropriate to be raised and supported by substantial evidence from QME Dr. Roven.
From the decision · page 73.) The May 15, 2015 Stipulations With Request for Award, and the Award, did not address the ear injury. Unlike the orthopedic claims discussed above, the Petition to Reopen, as to the ear injury, was not a new claim to a previously unpled body part. Thus, the ear injury claim was an appropriate issue to be raised by the Petition to Reopen. Also, the report from otolaryngology QME Dr. Roven is substantial evidence that applicant sustained sensorineural hearing loss and bilateral tinnitus as a result of his years of employment by defendant as a fire fighter/battalion chief. Therefore, we will return the matter to the WCJ to address the issue of applicant's bilateral ear cumulative injury claim. Accordingly, we rescind the F&O and return the matter to the WCJ for further proceedings consistent with this opinion and to issue a new decision from which any aggrieved person may timely seek reconsideration.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Applicant was fully aware of orthopedic complaints prior to May 15, 2015 award
Favours Defendant prevailed
Applicant did not show good cause to reopen the award based on orthopedic injuries
From the decision · page 7notes that he could not wear his helmet very long due to his neck pain.... (Joint Exh. 4, pp. 3 - 4.) Having reviewed the entire record, we agree with the WCJ that applicant was fully aware of his orthopedic complaints caused by injuries sustained while working for defendant prior to entering into the May 15, 2015 Stipulations With Request for Award. Thus, applicant did not show good cause to reopen the award based section 5803. Nor did the Petition to Reopen "set forth specifically and in detail the facts relied upon to establish good cause for reopening" as required by Appeals Board Rule 10534, quoted above. (Cal. Code Regs., tit. 8, § 10534.) Regarding the injury to applicant's ears, the injury claim (as amended on September 27, 2013) included ear/hearing loss. (See September 27, 2013 Amended Application, p.
Report from Otolaryngology QME Dr. Roven is substantial evidence of sensorineural hearing loss and bilateral tinnitus due to employment
Favours Applicant prevailed
Ear injury claim was appropriate to be raised and supported by this evidence
From the decision · page 73.) The May 15, 2015 Stipulations With Request for Award, and the Award, did not address the ear injury. Unlike the orthopedic claims discussed above, the Petition to Reopen, as to the ear injury, was not a new claim to a previously unpled body part. Thus, the ear injury claim was an appropriate issue to be raised by the Petition to Reopen. Also, the report from otolaryngology QME Dr. Roven is substantial evidence that applicant sustained sensorineural hearing loss and bilateral tinnitus as a result of his years of employment by defendant as a fire fighter/battalion chief. Therefore, we will return the matter to the WCJ to address the issue of applicant's bilateral ear cumulative injury claim. Accordingly, we rescind the F&O and return the matter to the WCJ for further proceedings consistent with this opinion and to issue a new decision from which any aggrieved person may timely seek reconsideration.
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.
Diagnosed cervical strain, right shoulder sprain, lumbar strain, left hip trochanteric bursitis, right knee sprain/post right knee arthroscopy, and partial left ankle Achilles rupture; concluded cumulative injury to cervical spine, right shoulder, lumbar spine, left hip, and right knee during May 13, 2012 to May 13, 2013.
From the decision · page 2Orthopedic qualified medical examiner (QME) Yuri Falkinstein, M.D., evaluated applicant on January 27, 2017. (Joint Exh. 4, Dr. Falkinstein, January 27, 2017.) Dr. Falkinstein examined applicant, took a history, and reviewed the medical record. The diagnoses included: cervical strain, right shoulder sprain, lumbar strain, left hip trochanteric bursitis, right knee sprain/post right knee arthroscopy, and partial left ankle Achilles rupture. (Joint Exh. 4, pp. 52 - 53.) Dr. Falkinstein concluded that applicant sustained a cumulative injury to his cervical spine, right shoulder, lumbar spine, left hip, and right knee during the period from May 13, 2012, through May 13, 2013. (Joint Exh. 4, pp. 53 and 58 - 59.)
No evidence of new or further disability from the 2013 claim or continual trauma; patient made no mention of problems until retirement.
From the decision · page 2On February 8, 2017, applicant was evaluated by orthopedic agreed medical examiner (AME) Alan Sanders, M.D. (Def. Exh. A, Dr. Sanders, February 8, 2017.)2 After re-examining applicant, taking an interim history, and reviewing the medical record, Dr. Sanders concluded:
Diagnosed sensorineural hearing loss and bilateral tinnitus due to progressive hearing loss from loud noise exposure at work.
From the decision · page 3Otolaryngology QME Alfred Roven, M.D., evaluated applicant on March 8, 2017. (Joint Exh. 10, Dr. Roven, March 8, 2017.) Dr. Roven's examination of applicant included various audio diagnostic tests and he diagnosed applicant as having sensorineural hearing loss and bilateral tinnitus. (Joint Exh. 10, p. 9.) Dr. Roven concluded, "This patient's injury happened at work because of progressive hearing loss as evidenced from the audiometric results shown above, secondary to loud noise exposure." (Joint Exh. 10, p. 10.)
No further cardiovascular events or impairment since 2015 award; no evidence of hypertensive cardiovascular disease based on MRI; no presumption for heart condition.
From the decision · page 3He has already received an award for hypertension and cardiovascular with a 21% permanent impairment award. He has not had any further cardiovascular events since this award of 2015. He has not increased his medication. His blood pressure has been under control. He has had no significant change in his cardiac dysrhythmia. There has been no further impairment for cardiovascular disease. (Joint Exh. 9, p. 77.)
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Cal. Code Regs., tit. 8, 10534
Petitions for reopening must set forth specifically and in detail the facts relied upon to establish good cause for reopening (Appeals Board Rule 10534)
Petition to Reopen did not meet this requirement for orthopedic claims
From the decision · page 7notes that he could not wear his helmet very long due to his neck pain.... (Joint Exh. 4, pp. 3 - 4.) Having reviewed the entire record, we agree with the WCJ that applicant was fully aware of his orthopedic complaints caused by injuries sustained while working for defendant prior to entering into the May 15, 2015 Stipulations With Request for Award. Thus, applicant did not show good cause to reopen the award based section 5803. Nor did the Petition to Reopen "set forth specifically and in detail the facts relied upon to establish good cause for reopening" as required by Appeals Board Rule 10534, quoted above. (Cal. Code Regs., tit. 8, § 10534.) Regarding the injury to applicant's ears, the injury claim (as amended on September 27, 2013) included ear/hearing loss. (See September 27, 2013 Amended Application, p.
Labor Code 5803
The Appeals Board has continuing jurisdiction to rescind, alter, or amend any order, decision, or award for good cause (Labor Code 5803)
Board rescinded original Findings and Order and returned matter for further proceedings
Labor Code 5410
Right to reopen within five years for new and further disability (Labor Code 5410)
Applicant's Petition for Reconsideration was timely and within five years
What proof carried it
The evidence the panel weighed, by kind.
Applicant was fully aware of orthopedic complaints prior to May 15, 2015 award, so no good cause to reopen on that basis
From the decision · page 7notes that he could not wear his helmet very long due to his neck pain.... (Joint Exh. 4, pp. 3 - 4.) Having reviewed the entire record, we agree with the WCJ that applicant was fully aware of his orthopedic complaints caused by injuries sustained while working for defendant prior to entering into the May 15, 2015 Stipulations With Request for Award. Thus, applicant did not show good cause to reopen the award based section 5803. Nor did the Petition to Reopen "set forth specifically and in detail the facts relied upon to establish good cause for reopening" as required by Appeals Board Rule 10534, quoted above. (Cal. Code Regs., tit. 8, § 10534.) Regarding the injury to applicant's ears, the injury claim (as amended on September 27, 2013) included ear/hearing loss. (See September 27, 2013 Amended Application, p.
Report from Otolaryngology QME Dr. Roven is substantial evidence of sensorineural hearing loss and bilateral tinnitus due to employment
From the decision · page 73.) The May 15, 2015 Stipulations With Request for Award, and the Award, did not address the ear injury. Unlike the orthopedic claims discussed above, the Petition to Reopen, as to the ear injury, was not a new claim to a previously unpled body part. Thus, the ear injury claim was an appropriate issue to be raised by the Petition to Reopen. Also, the report from otolaryngology QME Dr. Roven is substantial evidence that applicant sustained sensorineural hearing loss and bilateral tinnitus as a result of his years of employment by defendant as a fire fighter/battalion chief. Therefore, we will return the matter to the WCJ to address the issue of applicant's bilateral ear cumulative injury claim. Accordingly, we rescind the F&O and return the matter to the WCJ for further proceedings consistent with this opinion and to issue a new decision from which any aggrieved person may timely seek reconsideration.
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