ADJ11060751 — California WCAB decision

What the panel ordered

The Appeals Board granted reconsideration, rescinded the August 22, 2022 Findings and Order, and returned the matter to the WCJ for further proceedings consistent with the opinion and to issue a new decision.

Applicant sought reconsideration of the Findings and Order issued by the WCJ on August 22, 2022, which denied his Petition to Reopen additional body parts and new disability; the WCJ recommended denial of the Petition for Reconsideration, but the Appeals Board granted reconsideration, rescinded the F&O, and returned the matter to the WCJ for further proceedings.

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This docket was decided more than once. Shown here is the latest released decision; we also hold October 29, 2021.

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 disabilityApplicant prevailedleft shoulder · chest · low back · both knees · both ankles · psyche · nose/sense of smell · throat · broken sternum · liver · coccyx · hips · sores on feet and hands

The Appeals Board found that the WCJ erred in denying the Petition to Reopen without allowing further medical evaluation and development of the record as required by Labor Code section 4061(i) and Administrator Rule 10109, and thus granted reconsideration and returned the matter for further proceedings.

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.

QMERelied upon · clinical psychology

Diagnosed Depressive Disorder, NOS Somatic Symptom Disorder with Predominant pain; determined psychiatric condition was predominantly caused by employment.

Dr. Perez's psychiatric evaluation was considered in relation to the psychiatric injury claim in the Petition to Reopen.

From the decision · page 8On June 26, 2018, applicant was seen for a psychological evaluation by clinical psychologist Robert Perez, Ph.D. (App. Exh. 5, Robert Perez, Ph.D., July 3, 2018.) Dr. Perez

QMERelied upon · otolaryngology

Evaluated applicant and found he had reached MMI/P&S status; concluded difficulty in smell did not cause whole person impairment.

Dr. Rubenstein's evaluation was part of the medical evidence considered for the injury to the nose/sense of smell.

From the decision · page 8Otolaryngology QME Ronald L. Rubenstein, M.D., evaluated applicant on November

QMERelied upon · pain medicine

Diagnosed left shoulder bursitis, left shoulder rotator cuff syndrome, sternum pain, thoracic sprain/strain, lumbar sprain/strain, lumbago, right knee sprain/strain, and bilateral ankle pain; noted applicant reached MMI/P&S status; no medical evidence of compensable consequence injury to the left hip.

The medical evaluations by Dr. Sabsovich were part of the record considered in relation to the permanent disability and additional body parts claims in the Petition to Reopen.

From the decision · page 7On April 5, 2018, applicant was evaluated by pain medicine qualified medical examiner (QME) Ilya Sabsovich, M.D. (Def. Exh. D, Dr. Sabsovich, April 5, 2018.) Dr. Sabsovich examined applicant, took a history, and reviewed the medical record. The doctor diagnosed applicant as having left shoulder bursitis, left shoulder rotator cuff syndrome, sternum pain, thoracic sprain/strain, lumbar sprain/strain, lumbago, right knee sprain/strain, and bilateral ankle pain, and he noted that applicant's condition had reached maximum medical improvement/permanent and stationary (MMI/P&S) status. (Def. Exh. D, p. 16.)

The rules the panel named

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

Lab. Code, 4061(i)

No issue relating to permanent impairment and limitations may proceed without medical evaluation by treating physician and agreed or qualified medical evaluator.

The Petition to Reopen could not properly proceed without required medical evaluations; the Appeals Board returned the matter for further development to comply with this statute.

From the decision · page 3Pursuant to Labor Code section 4061(i): No issue relating to a dispute over the existence or extent of permanent impairment and limitations resulting from the injury may be the subject of a declaration of readiness to proceed unless there has first been a medical evaluation by a treating physician and by either an agreed or qualified medical evaluator. With the exception of an evaluation or evaluations prepared by the treating physician or physicians, no evaluation of permanent impairment and limitations resulting from the injury shall be obtained, except in accordance with Section 4062.1 or 4062.2. Evaluations obtained in violation of this prohibition shall not be admissible in any proceeding before the appeals board. (Lab. Code, § 4061.)

Cal. Code Regs., tit. 8, 10109

Claims administrator must conduct reasonable and timely investigation and deal fairly and in good faith with claimants.

The Appeals Board emphasized the duty to investigate and develop the record fully to provide due process and fair adjudication.

From the decision · page 4(a) To comply with the time requirements of the Labor Code and the Administrative Director's regulations, a claims administrator must conduct a reasonable and timely investigation upon receiving notice or knowledge of an injury or claim for a workers' compensation benefit. (b) A reasonable investigation must attempt to obtain the information needed to determine and timely provide each benefit, if any, which may be due the employee. (1) The administrator may not restrict its investigation to preparing objections or defenses to a claim, but must fully and fairly gather the pertinent information, whether that information requires, or excuses benefit payment. The investigation must supply the information needed to provide timely benefits and to document for audit the administrator's basis for its claims decisions.

ADJ11060751 · January 20, 2023

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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