ADJ9752268 — California WCAB decision

What the panel ordered

Findings and Award of March 10, 2020 affirmed except for permanent disability and left hip/CRPS injury issues which are deferred; case returned to trial level for further proceedings.

Petition for reconsideration filed and granted; decision after reconsideration issued; case remanded for further proceedings on deferred issues.

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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 disabilityRemandedleft hip · left knee · psyche

Further medical development is required to determine if applicant has industrial left hip injury or CRPS and to reassess permanent disability; the AME's opinion was found unreliable on these points due to incomplete record review.

From the decision · page 2As for the substance of applicant's petition, we find merit in his contention that further development of the record is needed to evaluate his pain condition and its impact on his ability to be employed. Specifically, we conclude that the medical record requires further development on the issues of whether applicant has the diagnosis of CRPS that is industrial, whether he sustained industrial injury to his left hip, and the extent of permanent impairment resulting from the left knee injury and the other conditions if they are industrial. We will amend the WCJ's decision

The facts that decided it

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

Dr. Fernandez did not address left hip injury or CRPS in his AME report and deposition, undermining reliability of his opinion on permanent disability.

Favours Applicant prevailed

This incomplete review led to deferral of left hip, CRPS, and permanent disability issues for further development.

From the decision · page 4The same is true of applicant's claim that he suffers from CRPS as a result of the admitted injury to his left knee. Dr. Fernandez, in his report dated June 7, 2016, acknowledged Dr. Mallavaram as applicant's treating pain management specialist, and Dr. Fernandez stated that he reviewed Dr. Mallavaram's treatment reports from 2015 and 2016. Dr. Fernandez also noted that Dr. Mallavaram's April 23, 2015 report included a diagnosis of chronic pain syndrome. In evaluating permanent impairment, however, Dr. Fernandez failed to address or even mention the issue of chronic pain syndrome. As noted above, Dr. Fernandez testified in his deposition (pp. 12- 13) that he performed a medical record review that purportedly included Dr. Mallavaram's treatment reports, which document applicant's left hip and chronic pain complaints. Again, however, Dr. Fernandez either overlooked or ignored them. This calls into question the reliability of Dr. Fernandez's medical record review, as well as the substantiality of his medical opinion. (Hegglin v. Workers' Comp. Appeals Bd. (1971) 4 Cal.3d 162, 169 (36 Cal.Comp.Cases 93) [Medical reports and opinions are not substantial evidence if they are based on inadequate medical histories and examinations.].)

Dr. Mallavaram diagnosed CRPS and opined applicant is permanently and totally disabled due to CRPS and pain medication use.

Favours Applicant prevailed

This diagnosis and opinion require further medical inquiry to confirm compensability and disability extent, leading to remand.

From the decision · page 5We further observe that since Dr. Fernandez's deposition was taken in 2017, he could not have been aware of the treatment reports generated by Dr. Mallavaram after that time. But in all of his progress reports through June 5, 2019, Dr. Mallavaram diagnosed applicant with CRPS of the lower left extremity, type two. (Exhibit 7.) In his Report and Recommendation, the WCJ indicates that Dr. Mallavaram's diagnosis of CRPS cannot be considered substantial evidence, because the doctor has not "enumerated the battery of symptoms and findings that normally would support such a diagnosis." Rather than dismiss Dr. Mallavaram's repeated diagnosis of CRPS and AME Fernandez's recommendation to consult a pain specialist, we conclude it is necessary to pursue further medical inquiry. (Telles Transport, Inc. v. Workers' Comp. Appeals Bd.

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.

AMEPartially credited · orthopedics

Opined no compensable back injury from left knee injury; did not address left hip or CRPS adequately; recommended further pain specialist consultation.

Incomplete review of medical records and failure to address left hip and CRPS issues undermined reliability of opinion.

From the decision · page 3APPLICANT'S CLAIMS OF LOW BACK, LEFT HIP AND CRPS INJURY Dr. Alfredo F. Fernandez served as the Agreed Medical Evaluator (AME) in orthopedics. Dr. Fernandez authored a narrative report dated June 7, 2016 (exhibit 9), and the doctor's deposition was taken on June 13, 2017. (Exhibit 10.) Reviewing the doctor's report and deposition, we note that notwithstanding the severity of the May 12, 2014 injury to applicant's left knee and the possibility it caused injury to other body parts, Dr. Fernandez clearly opined that the left knee injury did not result in a compensable consequence injury to the low back. In his June 7, 2016 report, Dr. Fernandez never stated that applicant sustained a back injury. But applicant's attorney specifically questioned Dr. Fernandez on the claimed back injury during the doctor's deposition.

secondary_treaterRecord developed further

Diagnosed CRPS of lower left extremity; opined applicant permanently and totally disabled due to CRPS and pain medication use.

Diagnosis and opinion require further medical inquiry to confirm compensability and disability extent.

From the decision · page 5We further observe that since Dr. Fernandez's deposition was taken in 2017, he could not have been aware of the treatment reports generated by Dr. Mallavaram after that time. But in all of his progress reports through June 5, 2019, Dr. Mallavaram diagnosed applicant with CRPS of the lower left extremity, type two. (Exhibit 7.) In his Report and Recommendation, the WCJ indicates that Dr. Mallavaram's diagnosis of CRPS cannot be considered substantial evidence, because the doctor has not "enumerated the battery of symptoms and findings that normally would support such a diagnosis." Rather than dismiss Dr. Mallavaram's repeated diagnosis of CRPS and AME Fernandez's recommendation to consult a pain specialist, we conclude it is necessary to pursue further medical inquiry. (Telles Transport, Inc. v. Workers' Comp. Appeals Bd.

The rules the panel named

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

Labor Code sections 5900 et seq.

A petition for reconsideration must be filed within 25 days of a final decision served by mail in California; COVID-19 closures tolled filing deadlines.

Applied to determine timeliness of petition for reconsideration.

From the decision · page 2Preliminarily, we note that to be timely, a petition for reconsideration must be filed with (i.e., received by) the WCAB within 25 days from a "final" decision that has been served by mail upon an address in California. (Lab. Code, § 5900(a), 5903; Cal. Code Regs., tit. 8, former § 10507(a)(1), now § 10605(a)(1), former § 10845(a), now § 10940(a); former § 10392(a), now § 10615(b) (eff. Jan. 1, 2020).) A petition for reconsideration of a final decision by a workers' compensation administrative law judge must be filed in the Electronic Adjudication Management System (EAMS) or with the district office having venue. (Cal. Code Regs., tit. 8, former § 10840(a), now § 10940(a) (eff. Jan. 1, 2020).)

Granado v. Workers' Compensation Appeals Board (1968) 69 Cal.2d 399

Treatment for nonindustrial conditions may be required if essential to cure or relieve effects of industrial injury.

Applied to evaluate compensability of back treatment.

From the decision · page 3The need for such treatment does not necessarily mean that applicant sustained a compensable consequence injury to his low back. As explained by our Supreme Court in Granado v. Workers' Compensation Appeals Board (1968) 69 Cal.2d 399, 405-406 [33 Cal.Comp.Cases 647], "[s]o long as the treatment is reasonably required to cure or relieve from the effects of the industrial injury, the employer is required to provide the treatment, and treatment for nonindustrial conditions may be required of the employer where it becomes essential in curing or relieving from the effects of the industrial injury itself." On the other hand, we find merit in applicant's contention that his claim of left hip injury requires further medical inquiry. Dr. Mallavaram, applicant's treating pain management specialist since 2015, began documenting applicant's left hip disease and pain in a progress report dated April 7, 2016; the doctor believed the hip pain was related to the altered gait caused by applicant's left leg injury. (Exhibit 4.) Yet Dr. Fernandez, the AME, seems to have overlooked or seems to have been unaware of applicant's left hip problems. On pages 12 and 13 of his deposition, Dr.

Hegglin v. Workers' Comp. Appeals Bd. (1971) 4 Cal.3d 162

Medical reports and opinions based on inadequate medical histories and examinations are not substantial evidence.

Applied to question reliability of AME's opinion due to incomplete record review.

From the decision · page 4The same is true of applicant's claim that he suffers from CRPS as a result of the admitted injury to his left knee. Dr. Fernandez, in his report dated June 7, 2016, acknowledged Dr. Mallavaram as applicant's treating pain management specialist, and Dr. Fernandez stated that he reviewed Dr. Mallavaram's treatment reports from 2015 and 2016. Dr. Fernandez also noted that Dr. Mallavaram's April 23, 2015 report included a diagnosis of chronic pain syndrome. In evaluating permanent impairment, however, Dr. Fernandez failed to address or even mention the issue of chronic pain syndrome. As noted above, Dr. Fernandez testified in his deposition (pp. 12- 13) that he performed a medical record review that purportedly included Dr. Mallavaram's treatment reports, which document applicant's left hip and chronic pain complaints. Again, however, Dr. Fernandez either overlooked or ignored them. This calls into question the reliability of Dr. Fernandez's medical record review, as well as the substantiality of his medical opinion. (Hegglin v. Workers' Comp. Appeals Bd. (1971) 4 Cal.3d 162, 169 (36 Cal.Comp.Cases 93) [Medical reports and opinions are not substantial evidence if they are based on inadequate medical histories and examinations.].)

Telles Transport, Inc. v. Workers' Comp. Appeals Bd. (2001) 92 Cal.App.4th 1159

The Board may not leave undeveloped matters requiring further evidence identified by its specialized knowledge.

Applied to justify further medical inquiry on CRPS and left hip injury.

From the decision · page 5We further observe that since Dr. Fernandez's deposition was taken in 2017, he could not have been aware of the treatment reports generated by Dr. Mallavaram after that time. But in all of his progress reports through June 5, 2019, Dr. Mallavaram diagnosed applicant with CRPS of the lower left extremity, type two. (Exhibit 7.) In his Report and Recommendation, the WCJ indicates that Dr. Mallavaram's diagnosis of CRPS cannot be considered substantial evidence, because the doctor has not "enumerated the battery of symptoms and findings that normally would support such a diagnosis." Rather than dismiss Dr. Mallavaram's repeated diagnosis of CRPS and AME Fernandez's recommendation to consult a pain specialist, we conclude it is necessary to pursue further medical inquiry. (Telles Transport, Inc. v. Workers' Comp. Appeals Bd.

Blackledge v. Bank of America (2010) 75 Cal.Comp.Cases 613

A physician's impairment evaluation includes history, symptoms, examination results, diagnosis, clinical course, treatment need, and residual functional capacity.

Applied to require detailed evaluation of CRPS diagnosis and disability impact.

From the decision · page 5(2001) 92 Cal.App.4th 1159, 1164 (66 Cal.Comp.Cases 1290) [The Board "may not leave undeveloped matters which its acquired specialized knowledge should identify as requiring further evidence."]; Blackledge v. Bank of America (2010) 75 Cal.Comp.Cases 613, 619-620 (Appeals Board en banc) [A physician's "impairment evaluation includes a discussion of the employee's history and symptoms, the results of the physician's examination, the results of various tests and diagnostic procedures, the diagnosis, the anticipated clinical course, the need for further treatment, and the residual functional capacity and ability to perform activities of daily living (ADLs)."].)

Western Growers Ins. Co. v. Workers' Comp. Appeals Bd. (Austin) (1993) 16 Cal.App.4th 227

The WCAB is not bound by the opinion of an AME; it must consider it but may reject it if unreliable.

Applied to reject AME opinion on left hip and CRPS issues due to incomplete review.

From the decision · page 5APPLICANT'S CLAIM OF PERMANENT AND TOTAL DISABILITY The WCJ relied on Dr. Fernandez, the AME in orthopedics, to find that applicant's left knee injury resulted in permanent disability of 52%. (See Power v. Workers' Comp. Appeals Bd. (1986) 179 Cal.App.3d 775 (51 Cal.Comp.Cases 114) [AME's opinion ordinarily followed because AME chosen by parties for his or her expertise and neutrality].) As discussed before, however, the reliability of Dr. Fernandez's medical record review is questionable, and this undermines his opinion on the issues of left hip injury and CRPS, as well as his opinion on permanent impairment. For instance, Dr. Fernandez never commented upon Dr. Mallavaram's opinion that applicant is permanently and totally disabled. Under these circumstances, where there is good reason to question the substantiality of the AME's opinion, we are not constrained to follow it. (Western Growers Ins. Co. v. Workers' Comp. Appeals Bd. (Austin) (1993) 16 Cal.App.4th 227, 241 (58 Cal.Comp.Cases 323) [The WCAB is not bound by the opinion of an AME; rather, its only obligation is to give consideration to the AME's opinion.].)

McDuffie v. Los Angeles County Metropolitan Transit Authority (2002) 67 Cal.Comp.Cases 138

Preference for supplemental opinions from physicians who have already reported in the case for further development.

Applied to guide further development of medical record on deferred issues.

From the decision · page 6In summary, we conclude that further development of the record is required on the issues of left hip injury, CRPS, and the extent of permanent impairment. In McDuffie v. Los Angeles County Metropolitan Transit Authority (2002) 67 Cal.Comp.Cases 138 (en banc), the Appeals Board indicated a preference for supplemental opinions from physicians who have already reported in the case. In this instance, we will leave the manner of further developing the record to the discretion of the WCJ. We do note that Dr. Fernandez apparently refuses to address the issue of CRPS based on his own expertise. If the WCJ continues to use Dr. Fernandez, the doctor should carefully view all treatment records to evaluate whether or not the left hip and alleged CRPS are compensable consequence injuries, which should include evaluation of whether Dr. Mallavaram correctly diagnosed CRPS and found applicant incapable of working. Dr. Fernandez also should consult a pain specialist before offering any supplemental opinion, or the WCJ may select a new "regular physician" to evaluate the outstanding issues discussed above, including but not limited to whether or not applicant has the CRPS diagnosis.

What proof carried it

The evidence the panel weighed, by kind.

Medical recordsfavours Defendant prevailed

Applicant's pain diagrams and lumbar pain blocks treatment do not establish compensable back injury; treatment may be for nonindustrial conditions relieving effects of industrial injury.

From the decision · page 3Applicant's attorney referred to the fact that applicant had filled out pain diagrams showing that he had low back pain. Nonetheless, Dr. Fernandez clearly testified that applicant did not sustain an injury to his back. (Fernandez deposition, p. 31.) The remainder of the record does not demonstrate a basis to reject the AME's opinion that applicant did not injure his back as a result of the admitted industrial injury to his left knee. Further, we are not persuaded by applicant's contention that his low back injury should be considered a compensable consequence injury because he received treatment in the form of lumbar pain blocks.

Medical recordsfavours Applicant prevailed

Dr. Mallavaram's documented left hip problems and CRPS diagnosis not addressed by AME Fernandez, undermining AME's opinion reliability.

From the decision · page 3The need for such treatment does not necessarily mean that applicant sustained a compensable consequence injury to his low back. As explained by our Supreme Court in Granado v. Workers' Compensation Appeals Board (1968) 69 Cal.2d 399, 405-406 [33 Cal.Comp.Cases 647], "[s]o long as the treatment is reasonably required to cure or relieve from the effects of the industrial injury, the employer is required to provide the treatment, and treatment for nonindustrial conditions may be required of the employer where it becomes essential in curing or relieving from the effects of the industrial injury itself." On the other hand, we find merit in applicant's contention that his claim of left hip injury requires further medical inquiry. Dr. Mallavaram, applicant's treating pain management specialist since 2015, began documenting applicant's left hip disease and pain in a progress report dated April 7, 2016; the doctor believed the hip pain was related to the altered gait caused by applicant's left leg injury. (Exhibit 4.) Yet Dr. Fernandez, the AME, seems to have overlooked or seems to have been unaware of applicant's left hip problems. On pages 12 and 13 of his deposition, Dr.

ADJ9752268 · October 7, 2021