ADJ9089651 — California WCAB decision

What the panel ordered

Findings and Order of January 8, 2020 rescinded; case returned to trial level for further proceedings and new decision by WCJ.

Petition for reconsideration granted; WCJ decision rescinded and matter returned for further proceedings and new decision.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.

AOE/COERemandedhead · neck · right shoulder · wrists · hands · ankles · sleep disorder · kidney and urinary systems · cardiovascular system · cognitive disorder · headaches

The WCJ erred in finding no industrial injury despite a stipulation of injury; the WCJ also erred in ruling medical reports inadmissible based on the date of injury and medical-legal procedure; the Appeals Board rescinded the WCJ decision and remanded for further proceedings.

From the decision · page 3Turning to the merits of applicant's petition, we find several unexplained inconsistencies in the WCJ's decision. The first one has to do with the issue of industrial injury. As noted before, the WCJ found that applicant failed to prove he sustained industrial injury to his head, neck, right shoulder, wrists, hands, ankles, sleep disorder, kidney and urinary systems, cardiovascular system, cognitive disorder and headaches. However, it appears from the record that applicant was relieved of his burden to prove injury, because it was stipulated at trial that applicant sustained industrial injury to his head, neck, right shoulder, wrists, hands, ankles, sleep disorder, kidney and urinary systems, cardiovascular system, cognitive disorder and headaches. It also appears the parties stipulated that the period of the industrial cumulative trauma injury was "approximately" July 23, 1988 through December 31, 2004. (Minutes of Hearing, January 24, 2019, p. 2:16-21.)

The facts that decided it

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

WCJ's rejection of injury claim was based on unsupported supposition that alcoholism caused medical problems, contradicted by stipulation and law.

Favours Applicant prevailed

The Appeals Board found this reasoning unsound and contrary to the law distinguishing injury causation and disability apportionment.

From the decision · page 3We further note that the WCJ's rejection of applicant's claim of cumulative trauma injury seems largely based on the WCJ's supposition that alcoholism caused most if not all of applicant's medical problems. We find the WCJ's reasoning unsound on this point. The issue of applicant's alleged alcoholism is potentially relevant to apportionment of permanent disability. (Lab. Code,

Parties stipulated that applicant sustained industrial injury to multiple body parts from July 23, 1988 through December 31, 2004.

Favours Applicant prevailed

This stipulation relieved applicant of the burden to prove injury, contradicting the WCJ's finding of no industrial injury.

From the decision · page 3Turning to the merits of applicant's petition, we find several unexplained inconsistencies in the WCJ's decision. The first one has to do with the issue of industrial injury. As noted before, the WCJ found that applicant failed to prove he sustained industrial injury to his head, neck, right shoulder, wrists, hands, ankles, sleep disorder, kidney and urinary systems, cardiovascular system, cognitive disorder and headaches. However, it appears from the record that applicant was relieved of his burden to prove injury, because it was stipulated at trial that applicant sustained industrial injury to his head, neck, right shoulder, wrists, hands, ankles, sleep disorder, kidney and urinary systems, cardiovascular system, cognitive disorder and headaches. It also appears the parties stipulated that the period of the industrial cumulative trauma injury was "approximately" July 23, 1988 through December 31, 2004. (Minutes of Hearing, January 24, 2019, p. 2:16-21.)

Medical and vocational reports were admitted into evidence without objection despite WCJ's ruling of inadmissibility.

Favours Applicant prevailed

This undermined the WCJ's ruling that medical reports were inadmissible, supporting remand for further proceedings.

From the decision · page 7evaluations," all the medical and vocational reports presented by applicant, and all the medical

The rules the panel named

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

California Labor Code

Labor Code section 4062.2

Medical-legal reporting procedure relevant to admissibility of medical reports.

From the decision · page 4First, the WCJ reasons that applicant claimed injury by way of cumulative trauma during the period ending December 31, 2004 in order to take advantage of the "dueling doctors" medical- legal process that prevailed before Senate Bill 899 was enacted on April 19, 2004. (See Report and Recommendation, p. 8.) To avoid the "dueling doctor" scenario, the WCJ found that "applicant's cumulative trauma exposure is from January 15, 2004 through January 15, 2005," in which case the WCJ suggests the date of cumulative trauma injury is after January 1, 2005, thereby limiting the parties to medical reports obtained pursuant to the Panel Qualified Medical Evaluator process under Labor Code section 4062.2, as amended by SB 899. Specifically, the WCJ states on page ten of his Report, "all the doctors are invalid [sic] because they are pre-2005 QMEs. The applicant's CT injury ends on 1/15/05 which means the parties should have requested state-issued panel QMEs per Labor Code section 4060 and section 4062.2."

California Labor Code

Labor Code section 4663

Apportionment of permanent disability related to alcoholism issue.

From the decision · page 3We further note that the WCJ's rejection of applicant's claim of cumulative trauma injury seems largely based on the WCJ's supposition that alcoholism caused most if not all of applicant's medical problems. We find the WCJ's reasoning unsound on this point. The issue of applicant's alleged alcoholism is potentially relevant to apportionment of permanent disability. (Lab. Code,

CA-WCAB

Reyes v. Hart Plastering (2005) 70 Cal.Comp.Cases 223

Distinction between causation of injury and causation of permanent disability.

From the decision · page 4§ 4663.) However, in light of the parties' stipulation that applicant sustained industrial injury by reason of his seventeen-year football career, the WCJ's supposition that alcoholism caused his medical problems is contradicted by the stipulated facts and by the law. That is, the percentage to which an applicant's injury is causally related to his or her employment is not necessarily the same as the percentage to which an applicant's permanent disability is causally related to his or her injury. The analyses of these issues are different and the medical evidence for any percentage conclusions may be different. (Reyes v. Hart Plastering (2005) 70 Cal.Comp.Cases 223 [Significant Panel Decision].) Moreover, it appears the WCJ disregarded any possibility that applicant's alcoholism, or the worsening of it, was aggravated by the serious injuries he evidently sustained while playing professional football. (See City of Los Angeles v. Workers' Comp. Appeals Bd. (Clark) (2017) 82 Cal.Comp.Cases 1404 (writ den.) [exacerbation of preexisting condition is not an industrial injury, but the acceleration, aggravation or lighting-up of a preexisting condition by the injured employee's job may constitute an industrial injury].)

CA-WCAB

City of Los Angeles v. Workers' Comp. Appeals Bd. (Clark) (2017) 82 Cal.Comp.Cases 1404

Aggravation of preexisting condition by employment may constitute industrial injury.

From the decision · page 4§ 4663.) However, in light of the parties' stipulation that applicant sustained industrial injury by reason of his seventeen-year football career, the WCJ's supposition that alcoholism caused his medical problems is contradicted by the stipulated facts and by the law. That is, the percentage to which an applicant's injury is causally related to his or her employment is not necessarily the same as the percentage to which an applicant's permanent disability is causally related to his or her injury. The analyses of these issues are different and the medical evidence for any percentage conclusions may be different. (Reyes v. Hart Plastering (2005) 70 Cal.Comp.Cases 223 [Significant Panel Decision].) Moreover, it appears the WCJ disregarded any possibility that applicant's alcoholism, or the worsening of it, was aggravated by the serious injuries he evidently sustained while playing professional football. (See City of Los Angeles v. Workers' Comp. Appeals Bd. (Clark) (2017) 82 Cal.Comp.Cases 1404 (writ den.) [exacerbation of preexisting condition is not an industrial injury, but the acceleration, aggravation or lighting-up of a preexisting condition by the injured employee's job may constitute an industrial injury].)

California Labor Code

Labor Code sections 5900 et seq.

Procedures for petition for reconsideration and further proceedings.

From the decision · page 8We further note that because the WCJ found no industrial injury, he did not resolve the numerous issues (twenty-one) raised by the parties on the first trial date of January 24 2019. (Minutes of Hearing, 01/24/19, pp. 3-4.) As noted before, the parties stipulated that applicant sustained an industrial cumulative trauma injury by reason of his football career. Since it appears there is no good cause to relieve the parties of their stipulation, the WCJ must address and finally resolve all the other issues raised by the parties. It should be noted, however, that we express no final opinion on any substantive issue. When the WCJ issues a new decision, any aggrieved party may seek reconsideration as provided in Labor Code sections 5900 et seq.

What proof carried it

The evidence the panel weighed, by kind.

Documentary evidencefavours Applicant prevailed

Parties stipulated that applicant sustained industrial injury to multiple body parts from July 23, 1988 through December 31, 2004.

From the decision · page 3Turning to the merits of applicant's petition, we find several unexplained inconsistencies in the WCJ's decision. The first one has to do with the issue of industrial injury. As noted before, the WCJ found that applicant failed to prove he sustained industrial injury to his head, neck, right shoulder, wrists, hands, ankles, sleep disorder, kidney and urinary systems, cardiovascular system, cognitive disorder and headaches. However, it appears from the record that applicant was relieved of his burden to prove injury, because it was stipulated at trial that applicant sustained industrial injury to his head, neck, right shoulder, wrists, hands, ankles, sleep disorder, kidney and urinary systems, cardiovascular system, cognitive disorder and headaches. It also appears the parties stipulated that the period of the industrial cumulative trauma injury was "approximately" July 23, 1988 through December 31, 2004. (Minutes of Hearing, January 24, 2019, p. 2:16-21.)

expert methodologyfavours Applicant prevailed

WCJ's rejection of injury claim was based on unsupported supposition that alcoholism caused medical problems, contradicted by stipulation and law.

From the decision · page 3We further note that the WCJ's rejection of applicant's claim of cumulative trauma injury seems largely based on the WCJ's supposition that alcoholism caused most if not all of applicant's medical problems. We find the WCJ's reasoning unsound on this point. The issue of applicant's alleged alcoholism is potentially relevant to apportionment of permanent disability. (Lab. Code,

Documentary evidencefavours Applicant prevailed

Medical and vocational reports were admitted into evidence without objection despite WCJ's ruling of inadmissibility.

From the decision · page 7evaluations," all the medical and vocational reports presented by applicant, and all the medical

ADJ9089651 · January 23, 2024

What the panel ordered

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The facts that decided it

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