California WCABPanel decision

ADJ9978616 · December 26, 2023

Findings of Fact, Order and Award rescinded; issues of new and further disability, permanent disability benefits, and attorney fees deferred; matter returned to trial level for further proceedings.

Issues decided: 4
Medical opinions weighed: 3
Authorities named: 2
District office: Van Nuys

What the panel ordered

Findings of Fact, Order and Award rescinded; issues of new and further disability, permanent disability benefits, and attorney fees deferred; matter returned to trial level for further proceedings.

Petition for Reconsideration granted; original Findings of Fact, Order and Award rescinded and matter remanded for further proceedings.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.

Sanctions under Labor Code §5813Remanded

The issue of attorney's fees for the cervical spine and upper extremities injury was deferred for further proceedings due to insufficient record development.

Sanctions under Labor Code §5813Remanded

The WCJ found attorney's fees of 15 percent of monies awarded to applicant as reasonable and appropriate, less credit for sums previously paid, but the issue was deferred for further proceedings.

Medical treatment / UR / IMR

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The facts that decided it

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

The permanent and stationary date for the lumbar spine injury is March 1, 2021, as claimed by the employee and supported by PTP Dr. Kohan's medical reports.

Favours Applicant prevailed

This date was found more persuasive than the employer's claim and supported the award of benefits.

From the decision · page 7In the instant case, the undersigned WCJ was presented at trial with a variety of medical opinions as to the Permanent and Stationary (P&S) dates for the above referenced industrial injuries. The parties requested a judicial determination to weigh the value of the medical reports and to consider them in light of all the evidence presented. It has been well established under California workers' compensation law that an award for benefits must be supported by substantial evidence. LeVesque v. WCAB (1970) 35 CCC 16. California Labor Code (LC) section 5952(d) requires an award of the appeals board to be "supported by substantial evidence." The term "substantial medical evidence" separates evidence that may be used to support an award from evidence that is not considered worthwhile. Here, based on the range of substantial medical evidence, the testimony, and stipulations of the parties, the court finds the P&S date in case ADJ9978616 is that claimed by the employee of March 1, 2021 and the P&S date in case ADJ11697949 is that claimed by the employee of May 6, 2021. Lastly, based on the criterion outlined herein, in the instant case only, the reporting of Dr. Rubanenko is more persuasive medical evidence than that of Dr. Montell. (Joint Opinion on Decision, pp. 1-2.)

The permanent and stationary date for the cervical spine and upper extremities injury is May 6, 2021, as claimed by the employee and supported by PTP Dr. Rubanenko's medical reports.

Favours Applicant prevailed

This date was found more persuasive than the QME's report and supported the award of benefits.

From the decision · page 7In the instant case, the undersigned WCJ was presented at trial with a variety of medical opinions as to the Permanent and Stationary (P&S) dates for the above referenced industrial injuries. The parties requested a judicial determination to weigh the value of the medical reports and to consider them in light of all the evidence presented. It has been well established under California workers' compensation law that an award for benefits must be supported by substantial evidence. LeVesque v. WCAB (1970) 35 CCC 16. California Labor Code (LC) section 5952(d) requires an award of the appeals board to be "supported by substantial evidence." The term "substantial medical evidence" separates evidence that may be used to support an award from evidence that is not considered worthwhile. Here, based on the range of substantial medical evidence, the testimony, and stipulations of the parties, the court finds the P&S date in case ADJ9978616 is that claimed by the employee of March 1, 2021 and the P&S date in case ADJ11697949 is that claimed by the employee of May 6, 2021. Lastly, based on the criterion outlined herein, in the instant case only, the reporting of Dr. Rubanenko is more persuasive medical evidence than that of Dr. Montell. (Joint Opinion on Decision, pp. 1-2.)

The issues of new and further disability, permanent disability benefits, and attorney fees were deferred for further proceedings due to insufficient record development.

Favours neutral

The record was not sufficiently developed to determine these issues, necessitating remand.

From the decision · page 9We conclude that the record as to the grounds for reopening the claim, the nature and extent of the asserted new and further disability, and the amount of permanent disability benefits, if any, arising therefrom should be further developed in order for us to meaningfully review the findings in case number ADJ9978616.

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.

PTPRelied upon

Found permanent and stationary date of March 1, 2021, for lumbar spine injury.

From the decision · page 1Defendant seeks reconsideration of the Joint Findings of Fact, Order and Award (F&A) issued on October 19, 2023, wherein the workers' compensation administrative law judge (WCJ) found in case number ADJ9978616 that (1) while employed as a customer service representative during the period June 1, 2014, through March 31, 2015, applicant sustained injury arising out of and in the course of employment to her lumbar spine; (2) the primary treating physician (PTP) is Jonathan Kohan, M.D.; (3) no attorney fees have been paid and no attorney fee arrangements have been made; (4) there was a prior stipulation/award under case number ADJ9978616; (5) the permanent and stationary date is that claimed by the employee of March 1, 2021, based on PTP Dr. Kohan; (5) there is a need for further medical treatment; (6) attorney's fees of 15 percent of monies awarded to applicant as a result of the award additional benefits, are reasonable and appropriate, less credit for sums previously paid; and (7) the permanent disability found by Dr. Montell in his March 15, 2023, reporting is less than the permanent disability benefits previously awarded but the previous award was as for the lumbar spine and the March 15, reporting relates to upper extremity impairment.

PTPRelied upon

Found permanent and stationary date of May 6, 2021, for cervical spine and upper extremities injury; his reporting was more persuasive than Dr. Montell's.

From the decision · page 1The WCJ found in case number ADJ11697949 that (1) while employed as a customer service representative during the period November 15, 2017, through November 15, 2018, applicant sustained injury arising out of and in the course of employment to her cervical spine, bilateral shoulders, and bilateral wrists in the form of carpal tunnel syndrome; (2) the PTP is Gabriel Rubanenko, M.D.; (3) no attorney fees have been paid and no attorney fee arrangements have been made; (4) the permanent and stationary date is that claimed by the employee of May 6,

QMERejected

Reported permanent disability for upper extremity impairment less than previously awarded; his opinion was less persuasive than Dr. Rubanenko's.

From the decision · page 1Defendant seeks reconsideration of the Joint Findings of Fact, Order and Award (F&A) issued on October 19, 2023, wherein the workers' compensation administrative law judge (WCJ) found in case number ADJ9978616 that (1) while employed as a customer service representative during the period June 1, 2014, through March 31, 2015, applicant sustained injury arising out of and in the course of employment to her lumbar spine; (2) the primary treating physician (PTP) is Jonathan Kohan, M.D.; (3) no attorney fees have been paid and no attorney fee arrangements have been made; (4) there was a prior stipulation/award under case number ADJ9978616; (5) the permanent and stationary date is that claimed by the employee of March 1, 2021, based on PTP Dr. Kohan; (5) there is a need for further medical treatment; (6) attorney's fees of 15 percent of monies awarded to applicant as a result of the award additional benefits, are reasonable and appropriate, less credit for sums previously paid; and (7) the permanent disability found by Dr. Montell in his March 15, 2023, reporting is less than the permanent disability benefits previously awarded but the previous award was as for the lumbar spine and the March 15, reporting relates to upper extremity impairment.

The rules the panel named

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

LeVesque v. WCAB (1970) 35 CCC 16

An award for benefits must be supported by substantial evidence.

The WCJ found the permanent and stationary dates based on substantial medical evidence and testimony.

From the decision · page 7In the instant case, the undersigned WCJ was presented at trial with a variety of medical opinions as to the Permanent and Stationary (P&S) dates for the above referenced industrial injuries. The parties requested a judicial determination to weigh the value of the medical reports and to consider them in light of all the evidence presented. It has been well established under California workers' compensation law that an award for benefits must be supported by substantial evidence. LeVesque v. WCAB (1970) 35 CCC 16. California Labor Code (LC) section 5952(d) requires an award of the appeals board to be "supported by substantial evidence." The term "substantial medical evidence" separates evidence that may be used to support an award from evidence that is not considered worthwhile. Here, based on the range of substantial medical evidence, the testimony, and stipulations of the parties, the court finds the P&S date in case ADJ9978616 is that claimed by the employee of March 1, 2021 and the P&S date in case ADJ11697949 is that claimed by the employee of May 6, 2021. Lastly, based on the criterion outlined herein, in the instant case only, the reporting of Dr. Rubanenko is more persuasive medical evidence than that of Dr. Montell. (Joint Opinion on Decision, pp. 1-2.)

California Labor Code section 5952(d)

An award of the appeals board must be supported by substantial evidence.

The WCJ applied this standard in determining the permanent and stationary dates.

From the decision · page 7In the instant case, the undersigned WCJ was presented at trial with a variety of medical opinions as to the Permanent and Stationary (P&S) dates for the above referenced industrial injuries. The parties requested a judicial determination to weigh the value of the medical reports and to consider them in light of all the evidence presented. It has been well established under California workers' compensation law that an award for benefits must be supported by substantial evidence. LeVesque v. WCAB (1970) 35 CCC 16. California Labor Code (LC) section 5952(d) requires an award of the appeals board to be "supported by substantial evidence." The term "substantial medical evidence" separates evidence that may be used to support an award from evidence that is not considered worthwhile. Here, based on the range of substantial medical evidence, the testimony, and stipulations of the parties, the court finds the P&S date in case ADJ9978616 is that claimed by the employee of March 1, 2021 and the P&S date in case ADJ11697949 is that claimed by the employee of May 6, 2021. Lastly, based on the criterion outlined herein, in the instant case only, the reporting of Dr. Rubanenko is more persuasive medical evidence than that of Dr. Montell. (Joint Opinion on Decision, pp. 1-2.)