ADJ9618682 — California WCAB decision

What the panel ordered

The Findings of Fact, Award and Opinion on Decision issued by the WCJ on May 11, 2021 is rescinded and the matter is returned to the trial level for further proceedings consistent with this opinion.

Applicant seeks reconsideration of the Findings of Fact, Award and Opinion on Decision issued by the WCJ on May 11, 2021. The WCJ found injury AOE/COE to multiple body parts but denied Parkinson's disease as industrial injury and denied increased psychiatric impairment rating. The WCJ's decision is rescinded and the matter is returned for further proceedings.

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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.

Permanent disability ratingApplicant prevailedheadaches · disfigurement · right leg pain · sleep disorder

The WCAB agreed with applicant that the WCJ improperly excluded impairment ratings for headaches, disfigurement and right leg pain from the neurological QME Dr. Wang, but excluded sleep disorder impairment because sleep was not pled as a body part and is considered a compensable consequence of physical injury.

From the decision · page 13IV. We agree with applicant that the WCJ improperly failed to include the permanent impairment provided by the neurological QME Dr. Wang for headaches, disfigurement and right leg pain. However, with respect to the impairment rating Dr. Wang provided for her sleep disorder, the record does not reflect that applicant has pled injury AOE/COE for sleep dysfunction. (See Minutes of Hearing and Summary of Evidence, January 25, 2021, p. 2.) Due process requires that defendant be given notice and an opportunity to be heard before an award for injury AOE/COE in the form of sleep dysfunction or an increased permanent disability rating for sleep may be made. (See Gangwish v. Workers' Comp. Appeals Bd. (2001) 89 Cal.App.4th 1284, 1295 [66 Cal.Comp.Cases 584]; Rucker v. Workers' Comp. Appeals Bd. (2000) 82 Cal.App.4th 151, 157- 158 [65 Cal.Comp.Cases 805], citing Kaiser Co. v. Industrial Acci. Com. (Baskin) (1952) 109 Cal.App.2d 54, 58 [17 Cal.Comp.Cases 21].) Moreover, Dr. Wang's reporting attributed applicant's sleep disorder to chronic pain. Per section 4660.1(c), applicant may not receive an increased impairment rating for her sleep disorder since it was considered a compensable consequence of her physical injury. In conclusion, we will rescind the F&A and return this matter to the trial level for further proceedings consistent with this opinion.

The facts that decided it

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

Dr. Wang's opinion that Parkinson's disease was not industrially related was more persuasive than Dr. Chauhan's contrary opinion.

Favours Defendant prevailed

This led to the finding that applicant did not prove injury AOE/COE in the form of Parkinson's disease.

From the decision · page 6Dr. Wang explained his conclusions in detail and provided them to a reasonable medical probability. Alternatively, Dr. Chauhan provides little explanation for his opinion that applicant's industrial injury was a contributing cause to her Parkinson's. It is well-established that the relevant and considered opinion of one physician may constitute substantial evidence, even if inconsistent with other medical opinions. (Place v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 372, 378- 379 [35 Cal.Comp.Cases 525].) We agree with the WCJ that Dr. Wang's opinions are more persuasive regarding causation for applicant's Parkinson's than Dr. Chauhan's opinions.

Applicant did not prove her injury qualified as a violent act under Labor Code section 4660.1(c)(2)(A).

Favours Defendant prevailed

Therefore, applicant is not entitled to an increased impairment rating for psychiatric injury.

WCJ improperly excluded neurological QME impairment ratings for headaches, disfigurement and right leg pain but properly excluded sleep disorder impairment as not pled and compensable consequence of physical injury.

Favours Applicant prevailed

This led to rescinding the F&A and returning the matter for further proceedings including impairment rating adjustments.

From the decision · page 13IV. We agree with applicant that the WCJ improperly failed to include the permanent impairment provided by the neurological QME Dr. Wang for headaches, disfigurement and right leg pain. However, with respect to the impairment rating Dr. Wang provided for her sleep disorder, the record does not reflect that applicant has pled injury AOE/COE for sleep dysfunction. (See Minutes of Hearing and Summary of Evidence, January 25, 2021, p. 2.) Due process requires that defendant be given notice and an opportunity to be heard before an award for injury AOE/COE in the form of sleep dysfunction or an increased permanent disability rating for sleep may be made. (See Gangwish v. Workers' Comp. Appeals Bd. (2001) 89 Cal.App.4th 1284, 1295 [66 Cal.Comp.Cases 584]; Rucker v. Workers' Comp. Appeals Bd. (2000) 82 Cal.App.4th 151, 157- 158 [65 Cal.Comp.Cases 805], citing Kaiser Co. v. Industrial Acci. Com. (Baskin) (1952) 109 Cal.App.2d 54, 58 [17 Cal.Comp.Cases 21].) Moreover, Dr. Wang's reporting attributed applicant's sleep disorder to chronic pain. Per section 4660.1(c), applicant may not receive an increased impairment rating for her sleep disorder since it was considered a compensable consequence of her physical injury. In conclusion, we will rescind the F&A and return this matter to the trial level for further proceedings consistent with this opinion.

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.

otherRejected · neurology

Found Parkinson's industrially related, contrary to Dr. Wang's opinion, but his opinion was found less persuasive.

Contrary causation opinion on Parkinson's disease, found less persuasive by WCJ and WCAB.

From the decision · page 6In this matter, the WCJ relied on Dr. Wang's reporting to find that applicant's Parkinson's was not industrially related. Dr. Wang issued several reports and was cross-examined regarding his opinions about causation for applicant's Parkinson's. An examining neurologist, Dr. Chauhan, came to a different conclusion about whether her Parkinson's was related to the industrial injury.

QMERecord developed further · psychiatry

Predominant cause of psychiatric injury is upset about physical problems from work injury; apportions 85% to work injury and 15% to preexisting personal stress in 2015 report; in 2020 report apportions 60% to work injury, 30% to Parkinson's upset, and 10% to physical abuse in first marriage.

Provides causation opinion on psychiatric injury and apportionment relevant to increased impairment rating under Labor Code section 4660.1(c)(2)(A).

From the decision · page 2Brian Jacks, M.D. evaluated applicant as the psychiatric QME. In his December 1, 2015 report, Dr. Jacks provided diagnoses as follows:

QMERelied upon · orthopedics

Found injury AOE/COE to right shoulder, bilateral knees, right lower leg and cervical spine; provided impairment ratings and apportionment mostly 100% industrial except 10% non-industrial for cervical spine.

Provides orthopedic injury findings and impairment ratings relevant to causation and permanent disability.

From the decision · page 4Scott Graham, M.D. evaluated applicant as the orthopedic QME (replacing the first QME Payam Moazzaz, M.D.). In his October 12, 2016 report, Dr. Graham found that she had sustained injury AOE/COE to the right shoulder, bilateral knees, right lower leg and cervical spine. (Joint Exhibit T, QME Report by Scott Graham, M.D., October 12, 2016, p. 14.) These conditions were considered permanent and stationary with impairment ratings provided as follows: 7% WPI for the right shoulder, 18% WPI for the right knee, 12% WPI for the left knee and 8% WPI for the cervical spine. (Id. at pp. 15-16.) Apportionment of permanent disability was 100% to the industrial injury for all parts except the cervical spine, for which Dr. Graham apportioned 90% to the injury and 10% to non-industrial factors. (Id. at p. 16.)

QMEGiven great weight · neurology

Concluded Parkinson's not caused by industrial injury; found headaches, sleep disorder, disfigurement and right leg pain industrially caused; provided impairment ratings for these conditions with 100% industrial apportionment except sleep disorder not pled as injury.

Provides neurological impairment ratings and causation opinions relevant to inclusion of impairment ratings in permanent disability.

From the decision · page 4Shen Ye Wang, M.D. evaluated applicant as the neurological QME. Dr. Wang issued several reports and was cross-examined. He concluded that applicant's Parkinson's was not caused by the 2014 industrial injury. (Joint Exhibit W, Neurological QME Report by Shen Ye Wang, M.D., December 15, 2017, p. 24.) However, applicant's headaches and sleep disorder were considered industrially caused by Dr. Wang. (Id.) Dr. Wang opined that applicant "does have trouble sleeping at night due to the chronic pain." (Id. at p. 25.) Applicant's condition was considered permanent and stationary in Dr. Wang's December 15, 2017 report. (Id. at p. 24.) Dr. Wang provided the following impairment ratings: 3% WPI for headaches, 3% WPI for sleep, 1% WPI for left eye disfigurement and 3% WPI for pain in the right leg. (Id. at p. 25.) Apportionment for these impairment ratings was 100% to the industrial injury. (Id.)

The rules the panel named

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

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

Medical opinion must be framed in terms of reasonable medical probability, not speculative, based on pertinent facts and adequate examination, with reasoning in support.

Applied to evaluate medical opinions on causation and impairment.

From the decision · page 5Decisions of the Appeals Board must be supported by substantial evidence. (Lab. Code, § 5903, 5952(d); Lamb v. Workmen's Comp. Appeals Bd. (1974) 11 Cal.3d 274 [39 Cal.Comp.Cases 310]; Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312 [35 Cal.Comp.Cases 500]; LeVesque v. Workmen's Comp. Appeals Bd. (1970) 1 Cal.3d 627 [35 Cal.Comp.Cases 16].) To 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).) "Medical reports and opinions are not substantial evidence if they are known to be erroneous, or if they are based on facts no longer germane, on inadequate medical histories and

Dept. of Corr. v. Workers' Comp. Appeals Bd. (the applicant) (1999) 76 Cal.App.4th 810, 816 [64 Cal.Comp.Cases 1356]

Predominant causation for psychiatric injury requires more than 50% caused by actual events of employment.

Applied to determine compensability of psychiatric injury as a consequence of physical injury.

From the decision · page 7mean more than 50 percent of the psychiatric injury was caused by actual events of employment. (Dept. of Corr. v. Workers' Comp. Appeals Bd. (the applicant) (1999) 76 Cal.App.4th 810, 816 [64 Cal.Comp.Cases 1356].)3 This predominant causation threshold applies to psychiatric injuries pled as a compensable consequence of a physical injury. (Lockheed Martin Corp. v. Workers' Comp. Appeals Bd. (McCullough) (2002) 96 Cal.App.4th 1237, 1249 [67 Cal.Comp.Cases 245].) The Court of Appeal in McCullough opined that for a compensable consequence psychiatric injury, "the precipitating physical injury constitutes an `actual event[] of employment' within the meaning of [section 3208.3(b)(1)]." (Id.)

Labor Code section 3208.3(b)(2)-(3)

If psychiatric injury caused by violent act, substantial cause is at least 35-40% of causation from all sources combined.

Applied to violent act exception analysis for psychiatric injury impairment rating.

From the decision · page 73 If the psychiatric injury was caused by "being a victim of a violent act or from direct exposure to a significant violent act," the employee must instead show that actual events of employment were a substantial cause of the injury, which is statutorily defined as "at least 35 to 40 percent of the causation from all sources combined." (Lab. Code, § 3208.3(b)(2)-(3).) As further discussed herein, applicant did not meet her burden of showing that her injury resulted from a violent act and therefore, the predominant causation threshold applies to her alleged psychiatric injury.

Labor Code section 4660.1(c)(2)(A)

Evaluation of violent act under section 4660.1(c)(2)(A) focuses on mechanism of injury, not injury itself.

Applied to determine if injury qualifies for increased psychiatric impairment rating under violent act exception.

From the decision · page 11Evaluation of whether an injury resulted from a "violent act" under section 4660.1(c)(2)(A) focuses on the mechanism of injury. This focus on the mechanism of injury comports with the statute's language, which emphasizes the event causing the injury, rather than the injury itself: the statute expressly refers to being a victim of or direct exposure to a violent "act." The word "injury" is not in this subsection. The focus in evaluating whether an injury qualifies for the exception in section 4660.1(c)(2)(A) is therefore on the mechanism of injury, not on the injury itself.

ADJ9618682 · August 12, 2021

What the panel ordered

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