ADJ9015624 — California WCAB decision

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Findings and Order of January 5, 2021 rescinded; matter returned to WCJ for further proceedings and new decision

Petition for Reconsideration granted to further study factual and legal issues; original Findings and Order rescinded and matter returned to WCJ for further proceedings and new decision

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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.

Reopening / new and further disabilityMixedcirculatory system · ears · neck · back · upper extremities · hips · lower extremities · digestive system · respiratory system

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.

QMERelied upon · orthopedic

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.)

AMERelied upon · orthopedic

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:

QMERelied upon · otolaryngology

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.)

QMERelied upon · cardiology

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.)

What proof carried it

The evidence the panel weighed, by kind.

Testimony and credibilityfavours Defendant prevailed

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.

Medical recordsfavours Applicant prevailed

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.

ADJ9015624 · April 13, 2022

What the panel ordered

What was disputed, and how it came out

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The facts that decided it

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