ADJ10724008 — California WCAB decision

What the panel ordered

Petition for Reconsideration granted; Findings and Award of April 21, 2022 affirmed except amendment to hold attorney fees in trust pending fee split agreement.

Petition for Reconsideration granted; Findings and Award of April 21, 2022 affirmed with amendment to hold attorney fees in trust pending fee split agreement.

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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 prevailedleft knee · left hip · low back · sleep

The court found the applicant sustained 49% permanent disability to the left knee and left hip, rejected apportionment due to lack of substantial medical evidence, and found the pain add-on reasonable and supported by medical evidence.

From the decision · page 3City of Whittier, hereinafter "Petitioner", through its legal representative, filed a timely and verified Petition for Reconsideration to the April 21, 2022, Findings and Award which found that applicant sustained 49% permanent disability to the left knee, left hip, and found compensable injury to the low back and sleep based on the reporting of Petitioner's original treating physician, Dr. Pham, rather than that of the Qualified Medical Examiner, Dr. Kolesnik. Petitioner asserts that the Court acted in excess of its powers, the evidence does not justify the Findings and the Findings do not support the Award.

What proof carried it

The evidence the panel weighed, by kind.

Medical recordsfavours Applicant prevailed

Applicant's clinical and objective findings consistent between multiple treating physicians, including gait derangement, edema, tenderness, decreased muscle strength, and antalgic gait.

From the decision · page 5Dr. Pham had found gait derangement, edema, tenderness, and decreased muscle strength in the left lower extremity based on his clinical exam. (Joint Exhibit J, K). In 2019, Dr. Ahmed had reviewed Dr. Pham's ratings and agreed on the left knee rating as both physicians found similar flexion contracture and limited motion of the knee. (Exhibit 1). As of the last QME exam of 2020, the applicant continued to have antalgic gait. (Exhibit C, p. 10).

Testimony and credibilityfavours Applicant prevailed

Applicant's testimony that he continues to take medication for pain, uses knee brace, and has sleep disrupted due to knee pain.

From the decision · page 4The applicant returned to treat with Kaiser in January 2020, where his doctors continue to manage his pain with conservative modalities, provided additional injection and continue to relegate him to sedentary work. In February 2020, the applicant became increasingly frustrated that his treatment recommendations were not being authorized by the employer. (Exhibit C, p. 6). Pursuant to records reviewed in 2020, the applicant continues with limitations in bending, squatting, kneeling, lifting, and carrying. (Exhibit C, p. 6). With regard to the applicant's level of disability and physical limitation since 2017, Dr. Pham had also previously relegated the applicant to sedentary work with intermittent use of bracing and an assistive walking device in 2017. (Exhibit J, p. 7). Dr. Pham noted the applicant's activities of daily living, such as bathing, dressing and sleep were affected; therefore, the pain add-on was used. (Joint Exhibit K, pp. 8-9). The applicant testified that he is still taking medication for pain, uses his knee brace, and his sleep is disrupted due to pain to his knees. (Summary of Evidence 2/17/22, 7:19-21). AS of the last re-evaluation by the QME, the applicant continued to have antalgic gait. (Joint Exhibit K, p. 10).

ADJ10724008 · July 11, 2022

What the panel ordered

What was disputed, and how it came out

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The facts that decided it

What the panel did with the medical opinions

The rules the panel named

What proof carried it

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