What the panel ordered
Petition for Reconsideration granted; Findings and Award affirmed as amended to find 71% permanent disability; issues of Labor Code section 4658(d)(2) increase and attorney fees deferred; matter returned to WCJ for further proceedings.
Defendant sought reconsideration of the Findings and Award issued by the WCJ on February 12, 2021; WCAB granted reconsideration, affirmed the Findings and Award with amendments, and returned the matter to the WCJ for further proceedings.
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 found no injury arising out of and in the course of employment for left carpal tunnel syndrome, which was not contested on reconsideration.
From the decision · page 1Defendant seeks reconsideration of the Findings and Award, (F&A) issued by the workers' compensation administrative law judge (WCJ) on February 12, 2021, wherein the WCJ found in pertinent part that applicant sustained injury arising out of and occurring in the course of employment (AOE/COE) to her right shoulder, right elbow, right wrist, right hand, and in the form of complex regional pain syndrome in her right upper extremity; that she did not sustain injury AOE/COE in the form of left carpal tunnel syndrome; and that the injury caused 70% permanent disability.
The WCJ found the injury to the right upper extremity was industrially related based on medical evidence and treatment history, which was affirmed on reconsideration.
From the decision · page 1Defendant seeks reconsideration of the Findings and Award, (F&A) issued by the workers' compensation administrative law judge (WCJ) on February 12, 2021, wherein the WCJ found in pertinent part that applicant sustained injury arising out of and occurring in the course of employment (AOE/COE) to her right shoulder, right elbow, right wrist, right hand, and in the form of complex regional pain syndrome in her right upper extremity; that she did not sustain injury AOE/COE in the form of left carpal tunnel syndrome; and that the injury caused 70% permanent disability.
The WCJ's permanent disability rating was based on Dr. Goldman's medical report, which was found to be substantial evidence and consistent with AMA Guides; the rating was amended to 71%.
From the decision · page 1Defendant seeks reconsideration of the Findings and Award, (F&A) issued by the workers' compensation administrative law judge (WCJ) on February 12, 2021, wherein the WCJ found in pertinent part that applicant sustained injury arising out of and occurring in the course of employment (AOE/COE) to her right shoulder, right elbow, right wrist, right hand, and in the form of complex regional pain syndrome in her right upper extremity; that she did not sustain injury AOE/COE in the form of left carpal tunnel syndrome; and that the injury caused 70% permanent disability.
The issue of the 15% increase was not raised at trial and was deferred for further proceedings to ensure due process.
From the decision · page 4Finally, we note that there is no Finding or Award in the F&A as to the section 4658(d)(2) 15% increase in permanent disability indemnity. In the Opinion on Decision, the WCJ states:
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Dr. Goldman was the applicant's primary treating physician over several years and summarized the treatment history in his report.
Favours Applicant prevailed
This supported the credibility and substantial evidence weight of Dr. Goldman's impairment rating report.
From the decision · page 3Here, the F&A was based on the opinions of PTP Dr. Goldman as stated in his March 1, 2019 report. (See Opinion on Decision, p. 2; Report, pp. 2 § 3.) Defendant argues that Dr. Goldman's report is not substantial evidence because he did not list the records he reviewed to prepare his report and that, "In stark contrast to the de minimis record review of Dr. Goldman, PQME Vincent Gumbs indicated he spent eight and 1/4 hours reviewing records to prepare his September 24, 2019 report." (Petition, pp. 3 § 4.) We first note that Dr. Goldman was applicant's PTP over a course of several years, beginning May 6, 2013. (App. Exh. 1, p. 1.) In the Treatment History section of his report Dr. Goldman summarized applicant's treatment, including the elbow and carpal tunnel surgeries she underwent. (App. Exh. 1, p. 1.) Also, Dr. Gumb's review of the medical record included approximately thirty of Dr. Goldman PR-2s. (Def. Exh I, pp. 3 § 8.) Based on our review of the reports from Dr. Gumb and Dr. Goldman, it appears that Dr. Goldman was well aware of applicant's treatment history. The fact that he did not list the reports and diagnostics prepared and/or reviewed over the course of applicant's treatment, does not mean his report is not substantial evidence.
The issue of the Labor Code section 4658(d)(2) 15% increase was not raised at trial and was deferred to ensure due process.
Favours neutral
The Board deferred this issue to allow proper notice and opportunity to be heard, affecting the final award.
From the decision · page 4Statements in an Opinion on Decision are not findings of fact, their purpose is to explain the basis for the decision. (See Lab. Code § 5313; Twentieth Century-Fox Film Corp. v. Workers' Comp. Appeals Bd., (1983) 41 Cal.App.3d 778 [48 Cal.Comp.Cases 275].) Also, the issue of applicant's entitlement to the section 4658(d)(2) increase was not raised or identified as an issue at trial and it was not an issue submitted for decision. (MOH/SOE, p. 2.) Raising and determining such an issue without providing prior notice to the parties, and giving them an opportunity to be
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 right carpal tunnel syndrome/status post right carpal tunnel release, right upper arm complex regional pain syndrome I, and right cubital tunnel syndrome; assigned 11% whole person impairment for right elbow and 39% for right wrist/hand, totaling 46% WPI; concluded injury caused 70% permanent disability.
Dr. Goldman's report was found to be substantial evidence and consistent with AMA Guides for impairment rating.
From the decision · page 1Defendant seeks reconsideration of the Findings and Award, (F&A) issued by the workers' compensation administrative law judge (WCJ) on February 12, 2021, wherein the WCJ found in pertinent part that applicant sustained injury arising out of and occurring in the course of employment (AOE/COE) to her right shoulder, right elbow, right wrist, right hand, and in the form of complex regional pain syndrome in her right upper extremity; that she did not sustain injury AOE/COE in the form of left carpal tunnel syndrome; and that the injury caused 70% permanent disability.
Evaluated applicant multiple times; assigned 45% right upper extremity impairment, converted to 27% whole person impairment with 3% pain add-on.
From the decision · page 2BACKGROUND Applicant claimed injury to her right shoulder, right elbow, right wrist, right hand, and in the form of left arm carpal tunnel syndrome, and bilateral upper extremity complex regional pain syndrome, while employed by defendant as a teaching assistant during the period from October 4, 2010, through August 17, 2012. On January 15, 2013, applicant was evaluated by orthopedic qualified medical examiner (QME) Vincent L. Gumbs, M.D. (Def. Exh. A, Dr. Gumbs, January 15, 2013.) Dr. Gumbs re- evaluated applicant on May 20, 2014, and September 12, 2017. Applicant's primary treating physician (PTP) Scott Goldman, M.D., found that applicant's condition reached maximum medical improvement/permanent and stationary status on March 1, 2019. (App. Exh. 1, Dr. Goldman, March 1, 2019, p. 4.) Dr. Goldman diagnosed applicant as having right carpal tunnel syndrome/status post right carpal tunnel release, right upper arm complex regional pain syndrome I (CPRS I), and right cubital tunnel syndrome. (App. Exh.
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Labor Code section 5952(d); Lamb v. Workmen's Comp. Appeals Bd. (1974) 11 Cal.3d 274; Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312
An award, order, or decision of the Appeals Board must be supported by substantial evidence.
The WCJ's findings were affirmed on reconsideration as supported by substantial evidence, including Dr. Goldman's report.
From the decision · page 3An award, order, or decision of the Appeals Board must be supported by substantial evidence. (Lab. Code, § 5952(d); Lamb v. Workmen's Comp. Appeals Bd. (1974) 11 Cal.3d 274, 281 [39 Cal.Comp.Cases 310]; Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312, 317 [35 Cal.Comp.Cases 500].) The relevant and considered opinion of one physician, though inconsistent with other medical opinions, may constitute substantial evidence. (See Place v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 372, [35 Cal.Comp.Cases 525].)
AMA Guides to the Evaluation of Permanent Impairment - Combining Impairment Ratings section
Dr. Goldman's combined impairment rating was consistent with AMA Guides, supporting the permanent disability rating.
From the decision · page 3The Combing Impairment Ratings section of the Upper Extremity chapter in the American Medical Association Guides to the Evaluation of Permanent Impairment, (AMA Guides) states:
What proof carried it
The evidence the panel weighed, by kind.
Dr. Goldman was applicant's primary treating physician over several years and summarized treatment history in his report, supporting the credibility of his opinion.
From the decision · page 3Here, the F&A was based on the opinions of PTP Dr. Goldman as stated in his March 1, 2019 report. (See Opinion on Decision, p. 2; Report, pp. 2 § 3.) Defendant argues that Dr. Goldman's report is not substantial evidence because he did not list the records he reviewed to prepare his report and that, "In stark contrast to the de minimis record review of Dr. Goldman, PQME Vincent Gumbs indicated he spent eight and 1/4 hours reviewing records to prepare his September 24, 2019 report." (Petition, pp. 3 § 4.) We first note that Dr. Goldman was applicant's PTP over a course of several years, beginning May 6, 2013. (App. Exh. 1, p. 1.) In the Treatment History section of his report Dr. Goldman summarized applicant's treatment, including the elbow and carpal tunnel surgeries she underwent. (App. Exh. 1, p. 1.) Also, Dr. Gumb's review of the medical record included approximately thirty of Dr. Goldman PR-2s. (Def. Exh I, pp. 3 § 8.) Based on our review of the reports from Dr. Gumb and Dr. Goldman, it appears that Dr. Goldman was well aware of applicant's treatment history. The fact that he did not list the reports and diagnostics prepared and/or reviewed over the course of applicant's treatment, does not mean his report is not substantial evidence.
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