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.
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.
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.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Applicant sustained admitted injury to left knee on October 12, 2015, with subsequent surgeries and ongoing symptoms.
Favours Applicant prevailed
Supported the finding of 49% permanent disability and causation to left knee, left hip, low back, and sleep disturbance.
From the decision · page 3There were no objections from either party regarding the admission of the evidence. The reports of Dr. Pham were submitted jointly. The applicant sustained an admitted injury to his left knee arising out of and in the course of him employment as a sewer equipment operator, Occupational Group Number 480, on October 12, 2015. The applicant worked modified duty prior to going off work for his first surgery.
Dr. Pham's medical reports were comprehensive, consistent, and supported ongoing disability and pain add-on.
Favours Applicant prevailed
Court relied on Dr. Pham's reports over QME reports to determine disability and causation.
From the decision · page 5Dr. Pham estimated that the applicant would need ongoing medical care as necessary five years beyond last report of 6/5/2017, for the applicant to maintain his status quo. (Joint Exhibit K, p.9). Just because an injured worker continues to receive treatment, it does not necessarily follow that his permanent disability is reduced when the medical evidence suggests otherwise.
QME Dr. Kolesnik's reports were incomplete, contradictory, and lacked substantial evidence for apportionment or causation.
Favours Applicant prevailed
Court rejected QME reports and did not find them substantial medical evidence.
From the decision · page 7F. The Court could not rely on the opinions of Dr. Kolesnik.
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.
Provided a ratable report estimating ongoing medical care needed for five years, assessed permanent disability including pain add-on, and supported causation to left knee, left hip, low back, and sleep disturbance.
The court found Dr. Pham's report comprehensive and substantial for determining causation and disability, and relied on it over the QME reports.
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.
Reports were incomplete, contradictory, and conclusory with little analysis, lacking substantial evidence for apportionment or causation for all body parts except left knee.
The court rejected Dr. Kolesnik's opinions as insubstantial and incomplete, not supporting apportionment or causation analysis.
From the decision · page 7F. The Court could not rely on the opinions of Dr. Kolesnik.
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Benson v. The Permanente Medical Group (2007) 72 Cal.Comp.Cases 1620, 1635 (en banc)
Apportionment must be based on substantial medical evidence and causation; burden of proof on defendant.
Court rejected apportionment due to lack of substantial medical evidence from QME reports.
From the decision · page 6C. The Court cannot find apportionment without a medical interpretation, which must be substantial.
Cal. Labor Code 3202.5
All parties must meet evidentiary burden by preponderance of evidence.
Court found Dr. Pham's report met evidentiary burden for causation and disability.
From the decision · page 6Cal. Labor Code § 3202.5 states that "All parties... shall meet the evidentiary burden of proof on all issues by a preponderance of the evidence...." Dr. Pham's report had an accurate history, accurately depicted the applicants relevant treatment and surgical history, diagnostic history and discussed causation with rating strings directly referencing the AMA Guides. (Joint Exhibit K). It accurately described the mechanism of injury as well as provided reasoning behind the methods used to assess impairment, and included Activities of Daily Living (ADL's) in its overall assessment. The Court found no fault in Dr. Pham's reasoning in assessing which symptoms were proximately caused by the original left knee injury.
What proof carried it
The evidence the panel weighed, by kind.
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).
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).
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About this page
- A published decision of the California Workers' Compensation Appeals Board, taken apart by what it turned on. The Board publishes the decision itself; this page adds the extraction and quotes the passage behind every claim.
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