ADJ10564064 — California WCAB decision

What the panel ordered

Petition for reconsideration is denied.

Defendants filed a timely, verified petition for reconsideration of the Second Amended Joint Findings and Award.

This docket was decided more than once. Shown here is the latest released decision; we also hold September 23, 2024.

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.

Other disputed issueDefendant prevailedright hip · buttocks · bilateral upper extremities · bilateral shoulders · psyche · internal

No substantial medical evidence supported injury to additional claimed body parts except for two internal systems; psyche injury was withdrawn.

From the decision · page 16right hip, buttocks, bilateral upper extremities, bilateral shoulders, psyche and internal (MOH/SOE 9/19/2023, p. 3, I. 3-7), there is simply no substantial medical evidence to support a finding to any of these body parts, with the exception of two specified internal systems (gastrointestinal and hypertension), and the psyche was specifically withdrawn (MOH/SOE 12/2/2024, p. 2, l. 2-3). Accordingly, no industrial injury was found or awarded with respect to the additional body parts identified as the right hip, buttocks, bilateral upper extremities, bilateral shoulders, psyche and internal.

The facts that decided it

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

Applicant testified he stopped working because of his injury.

Favours Applicant prevailed

Supports finding of temporary disability for periods of wage loss.

From the decision · page 14Longacre, the doctor who was stipulated as the PTP2 indicated that applicant was temporarily disabled, the fact that a treating or consulting physician, Dr. Sadler, indicated temporary disability in Case Number ADJ10564064 through March 22, 2018 "except for any time actually worked during this period" (Report of Dr. Sadler 3/22/2018, Applicant's 15, p. 14), combined with applicant's testimony that he stopped working because of his injury (MOH/SOE 9/19/2023, p. 10, I. 1-4), PTP Dr. Longacre's indication of maximal medical improvement (MMI) as of September 29, 2020 (Report of Dr. Longacre 9/29/2020, Applicant's 17, p. 5), with work restrictions of sedentary work only, no overhead work, and no lifting more than 10 pounds (Id., at p. 8), and the opinion of the orthopedic PQME, Dr. Rogachefsky, that applicant attained MMI status as of March 11, 2022 (Report of Dr. Rogachefsky 7/4/2022, Defendant's R, pp. 2-3) with restrictions of no lifting, pushing, or pulling greater than 25 pounds or performing overhead activities with the left shoulder (Id., at p. 4), all give rise to a reasonable inference that applicant was temporarily disabled for periods of actual wage loss, up to the maximum of 104 weeks, between June 16, 2016 and March 11, 2022, less adjustment for any earnings during this period, if any.

Apportionment opinions of physicians were conclusory and lacked explanation.

Favours Applicant prevailed

Found not to constitute substantial medical evidence, leading to no apportionment reduction.

From the decision · page 13The percentages of permanent disability found by the Panel QMEs were not reduced by apportionment, because, as explained in the opinion on decision, each physician's apportionment opinions apportionment opinions were conclusory and skeletal, and did not set forth the reasoning behind the physicians' opinions explaining the mechanism of causation of permanent disability, and why an approximate percentage was chosen as opposed to some other percentage. Accordingly, it was found that their opinions on apportionment do not constitute substantial medical evidence under the criteria set forth in the Appeals Board's opinion in the case of Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604. Accordingly, the two permanent disability awards do not include nonindustrial apportionment, which was in each instance found to be unexplained, compound, or speculative, as set forth above.

No substantial medical evidence supported injury to additional claimed body parts except two internal systems; psyche injury withdrawn.

Favours Defendant prevailed

Leads to denial of injury claims for those body parts.

From the decision · page 16right hip, buttocks, bilateral upper extremities, bilateral shoulders, psyche and internal (MOH/SOE 9/19/2023, p. 3, I. 3-7), there is simply no substantial medical evidence to support a finding to any of these body parts, with the exception of two specified internal systems (gastrointestinal and hypertension), and the psyche was specifically withdrawn (MOH/SOE 12/2/2024, p. 2, l. 2-3). Accordingly, no industrial injury was found or awarded with respect to the additional body parts identified as the right hip, buttocks, bilateral upper extremities, bilateral shoulders, psyche and internal.

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.

QMEPartially credited · orthopedic

Found applicant attained MMI as of March 11, 2022 with restrictions on lifting, pushing, pulling, and overhead activities; apportionment opinion found conclusory and not substantial evidence.

Opinion was found to be the most recent, substantial, and persuasive indication of orthopedic condition but apportionment opinion lacked explanation.

From the decision · page 11The opinion on decision explained that the findings of injury, permanent disability, and need for further medical care were all based on a careful review of all of the medical reports admitted into evidence, and in particular the reports of orthopedic PQME Dr. Rogachefsky, which were found to be the most recent, substantial, and persuasive indication of a specific orthopedic

PTPRelied upon

Indicated applicant was temporarily disabled with MMI as of September 29, 2020 and work restrictions of sedentary work only, no overhead work, and no lifting more than 10 pounds.

His opinion supported the finding of temporary disability for periods of wage loss.

From the decision · page 14Longacre, the doctor who was stipulated as the PTP2 indicated that applicant was temporarily disabled, the fact that a treating or consulting physician, Dr. Sadler, indicated temporary disability in Case Number ADJ10564064 through March 22, 2018 "except for any time actually worked during this period" (Report of Dr. Sadler 3/22/2018, Applicant's 15, p. 14), combined with applicant's testimony that he stopped working because of his injury (MOH/SOE 9/19/2023, p. 10, I. 1-4), PTP Dr. Longacre's indication of maximal medical improvement (MMI) as of September 29, 2020 (Report of Dr. Longacre 9/29/2020, Applicant's 17, p. 5), with work restrictions of sedentary work only, no overhead work, and no lifting more than 10 pounds (Id., at p. 8), and the opinion of the orthopedic PQME, Dr. Rogachefsky, that applicant attained MMI status as of March 11, 2022 (Report of Dr. Rogachefsky 7/4/2022, Defendant's R, pp. 2-3) with restrictions of no lifting, pushing, or pulling greater than 25 pounds or performing overhead activities with the left shoulder (Id., at p. 4), all give rise to a reasonable inference that applicant was temporarily disabled for periods of actual wage loss, up to the maximum of 104 weeks, between June 16, 2016 and March 11, 2022, less adjustment for any earnings during this period, if any.

PTPRelied upon

Indicated temporary disability through March 22, 2018 except for any time actually worked during this period.

His opinion supported the finding of temporary disability for periods of wage loss.

From the decision · page 14Longacre, the doctor who was stipulated as the PTP2 indicated that applicant was temporarily disabled, the fact that a treating or consulting physician, Dr. Sadler, indicated temporary disability in Case Number ADJ10564064 through March 22, 2018 "except for any time actually worked during this period" (Report of Dr. Sadler 3/22/2018, Applicant's 15, p. 14), combined with applicant's testimony that he stopped working because of his injury (MOH/SOE 9/19/2023, p. 10, I. 1-4), PTP Dr. Longacre's indication of maximal medical improvement (MMI) as of September 29, 2020 (Report of Dr. Longacre 9/29/2020, Applicant's 17, p. 5), with work restrictions of sedentary work only, no overhead work, and no lifting more than 10 pounds (Id., at p. 8), and the opinion of the orthopedic PQME, Dr. Rogachefsky, that applicant attained MMI status as of March 11, 2022 (Report of Dr. Rogachefsky 7/4/2022, Defendant's R, pp. 2-3) with restrictions of no lifting, pushing, or pulling greater than 25 pounds or performing overhead activities with the left shoulder (Id., at p. 4), all give rise to a reasonable inference that applicant was temporarily disabled for periods of actual wage loss, up to the maximum of 104 weeks, between June 16, 2016 and March 11, 2022, less adjustment for any earnings during this period, if any.

QMEPartially credited · internal medicine

Found hypertension and GERD industrial; diabetes and hyperlipidemia nonindustrial; reached MMI as of December 8, 2018 with 12% WPI for GERD and 30% WPI for Left Ventricle Hypertrophy; apportionment opinion not substantial evidence.

Apportionment opinion lacked explanation and was not based on reasonable medical probability.

From the decision · page 18lumbar PD to "preexisting degenerative changes" without explanation. Dr. Sadler approves 50% of low back PD to a 1981 injury-but this, too, is not explained. In case number ADJ13211148, the award accepts Dr. Simon's finding that while hypertension and GERD are industrial (See Applicant's 24, p. 1, under "Discussion of Causation"), his diabetes and hyperlipidemia are nonindustrial. Also accepted are Dr.Simon's finding that applicant reached MMI as of December 8, 2018 without any periods of internal temporary disability, but with 12% WPI for GERD under Table 6-3 of the AMA Guides, and 30% WPI for Left Ventricle Hypertrophy (LVH) under Table 4-2 (which is seconded by Dr. Grodan, and unambiguously indicated in the AMA Guides). However, Dr.

secondary_treaterNot substantial evidence · internal medicine

Reports admitted into evidence but no specific opinion weight detailed in the decision.

From the decision · page 6Applicant also moved into evidence three reports of internal medicine treating physician Paul Grodan, M.D., dated September 8, 2020, March 31, 2021, and July 10, 2021, and these were marked for identification as Applicant's Exhibits 18, 19, and 20 (Id., p. 5, lines 32-39). Defendant objected to admission of Dr. Grodan's reports into evidence, and a ruling on that objection was deferred to the time of written decision. In the opinion on decision, defendant's objection to admission of Applicant's Exhibits 18 and 19 was overruled without prejudice, and defendant's objection to Applicant's Exhibit 20 was sustained without prejudice, so Applicant's Exhibits 18 and 19 were admitted into evidence but Applicant's Exhibit 20 was not. This ruling on defendant's objection was based on the express provisions of the California Labor Code regarding what can be received as evidence or used as proof of any fact in dispute by the Workers' Compensation Appeals

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

A medical opinion must be predicated on reasonable medical probability and provide reasoning, not merely conclusions, to constitute substantial evidence.

The apportionment opinions were found conclusory and skeletal without explanation, thus not substantial medical evidence under this standard.

From the decision · page 16In the case of Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, the Appeals Board held, en banc, that "it is well established that any decision of the WCAB must be supported by substantial evidence." (Escobedo v. Marshalls (2007) 70 Cal.Comp.Cases 604, 620, citing Labor 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]; Levesque v. Workmen's Comp. Appeals Bd. (1970) 1 Cal.3d 627, 635 [35 Cal.Comp.Cases 16].) "In this regard, it has been long established that, in order to constitute substantial evidence, a medical opinion must be predicated on reasonable medical probability." (Escobedo, cited above, 70 Cal.Comp.Cases 604, 620, citing McAllister v. Workmen's Comp. Appeals Bd. (1968) 69 Cal.2d 408, 413, 416-417, 419 [33 Cal.Comp Cases 660], Travelers Ins. Co. v. Industrial Acc. Com. (Odella) (1949) 33 Cal.2d 685, 687-688 [14 Cal.Comp Cases 54],

Labor Code section 5909

Petition for reconsideration must be acted upon within 60 days of transmission to the Appeals Board.

The petition was timely filed and considered under this statute.

From the decision · page 1Former Labor Code section1 5909 provided that a petition for reconsideration was deemed denied unless the Appeals Board acted on the petition within 60 days from the date of filing. (Lab. Code, § 5909.) Effective July 2, 2024, section 5909 was amended to state in relevant part that:

Labor Code section 5705

Applicant has burden of proving entitlement to temporary disability benefits.

The panel found temporary disability based on applicant's testimony and medical opinions.

From the decision · page 13While the applicant has the burden of proving his entitlement to temporary disability benefits (Labor Code section 5705; Edwards v. Workers' Comp. Appeals Bd. (2008) 73 Cal.Comp.Cases 1358, 1360 [writ denied]), and any decision of the WCAB must be supported by substantial evidence (Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 620 [Appeals Board en banc]), the undersigned is also entitled to draw reasonable inferences from the evidence (Ybarra v. Workers' Comp. Appeals Bd. (2002) 103 Cal.App.4th 987, 990 [127 Cal.Rptr.2d 208, 67 Cal.Comp.Cases 1283]). Although defendants' petition raises the procedural point that Dr.

What proof carried it

The evidence the panel weighed, by kind.

Testimony and credibilityfavours Applicant prevailed

Applicant's testimony that he stopped working because of his injury

From the decision · page 14Longacre, the doctor who was stipulated as the PTP2 indicated that applicant was temporarily disabled, the fact that a treating or consulting physician, Dr. Sadler, indicated temporary disability in Case Number ADJ10564064 through March 22, 2018 "except for any time actually worked during this period" (Report of Dr. Sadler 3/22/2018, Applicant's 15, p. 14), combined with applicant's testimony that he stopped working because of his injury (MOH/SOE 9/19/2023, p. 10, I. 1-4), PTP Dr. Longacre's indication of maximal medical improvement (MMI) as of September 29, 2020 (Report of Dr. Longacre 9/29/2020, Applicant's 17, p. 5), with work restrictions of sedentary work only, no overhead work, and no lifting more than 10 pounds (Id., at p. 8), and the opinion of the orthopedic PQME, Dr. Rogachefsky, that applicant attained MMI status as of March 11, 2022 (Report of Dr. Rogachefsky 7/4/2022, Defendant's R, pp. 2-3) with restrictions of no lifting, pushing, or pulling greater than 25 pounds or performing overhead activities with the left shoulder (Id., at p. 4), all give rise to a reasonable inference that applicant was temporarily disabled for periods of actual wage loss, up to the maximum of 104 weeks, between June 16, 2016 and March 11, 2022, less adjustment for any earnings during this period, if any.

Medical recordsfavours Applicant prevailed

Medical reports of orthopedic PQME Dr. Rogachefsky found most recent, substantial, and persuasive