ADJ11297325 · January 14, 2022

The WCJ found the Applicant's date of knowledge of the varicose veins condition was October 30, 2018, when diagnosed by Dr. Townsend, and that the claim was timely filed within one year of that date, rejecting Defendant's argument that the claim was barred by the statute of limitations.

From the decision · page 4diagnosed with varicose veins by a medical provider, Internal Medicine PQME Dr. Denise Townsend, and was advised by said provider that the varicose veins had at least one causative factor related to her occupation. (Applicant's Exhibit 1, pages 12-13.) In turn, the undersigned found that the Applicant's claim was not barred by the statute of limitations under Labor Code section 5405(a) as the Applicant filed her Application for Adjudication of Claim within one year of the October 30, 2018 date of injury.

The WCJ found the Applicant in need of future medical treatment for varicose veins on an industrial basis, relying on Dr. Townsend's opinion.

From the decision · page 14Dr. Townsend indicated that the Applicant should be eligible for future medical treatment on an industrial basis for the varicose veins condition found in the lower extremities. This Court finds the opinions of Dr. Townsend as to future medical treatment to be reasonable and well-reasoned. Thus, this Court finds that Applicant is in need of future medical treatment subject to the applicable sections of the Labor Code and California Code of Regulations.

The WCJ found the Applicant entitled to an 18% final permanent disability award unapportioned to the employer, rejecting Dr. Townsend's apportionment opinion as not substantial medical evidence.

The WCAB panel found no error in the WCJ's findings or decision and denied the Petition for Reconsideration.

From the decision · page 1We have considered the allegations of the Petition for Reconsideration, the contents of the Report and Opinion on Decision of the workers' compensation administrative law judge (WCJ) with respect thereto. Based on our review of the record, and for the reasons stated in the WCJ's Report and Opinion on Decision, which are both adopted and incorporated herein, we will deny reconsideration.

Applicant was not diagnosed with varicose veins until October 30, 2018 by Dr. Denise Townsend.

Favours Applicant prevailed

This established the date of knowledge for the injury, making the claim timely and overcoming the statute of limitations defense.

From the decision · page 4diagnosed with varicose veins by a medical provider, Internal Medicine PQME Dr. Denise Townsend, and was advised by said provider that the varicose veins had at least one causative factor related to her occupation. (Applicant's Exhibit 1, pages 12-13.) In turn, the undersigned found that the Applicant's claim was not barred by the statute of limitations under Labor Code section 5405(a) as the Applicant filed her Application for Adjudication of Claim within one year of the October 30, 2018 date of injury.

Applicant's retirement on August 9, 2012 was due to symptoms related to varicose veins, constituting compensable disability.

Favours Applicant prevailed

This supported the finding of compensable disability and entitlement to benefits.

From the decision · page 10In the instant case, the Applicant testified that at the time of her retirement on August 9, 2012, the aches and pains all over her body, including the swelling in her legs, made her feel as though she could no longer work. (MOH/SOE, September 9, 2021, page 7, lines 8-10). She described her retirement as a "disability retirement." (Id., at page 4, lines 24-25.) Based on her testimony, Applicant's retirement appears to be related, at least in part, to the symptoms in her legs, which was eventually determined to be varicose veins. As such, at the time of her retirement, the Applicant cannot be said to have been unwilling to work; she felt unable to work due to her various ailments. Thus, by retiring due to her injuries, the Applicant's earning capacity has been diminished, which is akin to wage loss. (Compare with Gonzales v. Workers' Comp. Appeals. Bd. (1998) 63 Cal. Comp. Cases 1477 [applicant did not have any earning capacity after retirement when she unequivocally denied interest in further employment of any sort].) Thus, the Applicant suffered compensable disability relating to her varicose veins as early as the time of her retirement from the Department of Corrections and Rehabilitation on August 9, 2012.

Dr. Townsend's impairment rating and diagnosis were relied upon as substantial medical evidence.

Favours Applicant prevailed

This supported the award of permanent disability and future medical treatment benefits.

From the decision · page 13However, there is a scrivener's error in that Dr. Townsend erroneously labeled the 20% impairment as being whole person impairment. Table 17-38 categorizes the impairment due to peripheral vascular disease as lower extremity impairment, which must then be converted to whole person impairment using Table 17-3 on page 527; this is exhibited in Example 17-19 of which Dr. Townsend explicitly relied upon. Accordingly, the Applicant's varicose veins condition is rated at 20% lower extremity impairment, which then converts to 8% whole person impairment. This Court finds Dr. Townsend's opinion regarding impairment to be substantial medical evidence.

Diagnosed varicose veins related to employment on October 30, 2018; rated 20% lower extremity impairment converting to 8% whole person impairment; apportioned 30% industrial and 70% non-industrial causes but apportionment opinion rejected; recommended future medical treatment.

Her diagnosis and impairment rating were relied upon; apportionment opinion was rejected as not substantial medical evidence; her opinion on future medical treatment was credited.

From the decision · page 4diagnosed with varicose veins by a medical provider, Internal Medicine PQME Dr. Denise Townsend, and was advised by said provider that the varicose veins had at least one causative factor related to her occupation. (Applicant's Exhibit 1, pages 12-13.) In turn, the undersigned found that the Applicant's claim was not barred by the statute of limitations under Labor Code section 5405(a) as the Applicant filed her Application for Adjudication of Claim within one year of the October 30, 2018 date of injury.

Labor Code section 5900(a)

A Petition for Reconsideration may only be taken from a final order, decision, or award under Labor Code section 5900(a).

The WCAB panel applied this standard to deny the Petition for Reconsideration as the WCJ's decision was final.

From the decision · page 4Under Labor Code section 5900(a), a Petition for Reconsideration may only be taken from a "final" order, decision, or award. A "final" order has been defined as one that either "determines any substantive right or liability of those involved in the case" (Rymer v. Hagler (1989) 211 Cal. App. 3d 1171, 1180) or determines a threshold issue that is fundamental to the claim for benefits (Maranian v. Workers' Comp. Appeal Bd. (2000) 81 Cal. App. 4th 1068, 1070.) Pursuant to Labor Code section 5903, any person aggrieved by any final order, decision, or award may petition for reconsideration upon one or more of the following grounds:

Labor Code section 5412

The date of injury for cumulative trauma is when the employee first suffered disability and knew or should have known it was caused by employment under Labor Code section 5412.

The WCJ applied this standard to find the Applicant's date of knowledge was October 30, 2018, rejecting Defendant's statute of limitations defense.

From the decision · page 10Labor Code section 5412 defines the date of injury of a cumulative trauma injury to be the date upon which the employee first suffered disability and either knew, or should have known upon the exercise of reasonable diligence, that such disability was caused by her employment. The 3rd District Court of Appeal has defined disability under Labor Code section 5412 to mean an impairment of bodily functions which results in the impairment of earnings capacity. (J.T. Thorp v. Workers' Comp. Appeals Bd., 153 Cal.App.3d 327, 336). This definition was further delineated to mean "compensable disability," that is, temporary disability or permanent disability. (State Comp. Ins. Fund v. Workers' Comp. Appeals Bd. (Rodarte) (2004) 119 Cal. App. 4th 998, 1005; cf. Herrera v. Workmen's Comp. App. Bd. (Goleta Lemon Assn.) (1969) 71 Cal.2d 254, 257 [no compensable temporary disability is found until the worker suffers wage loss]; Dept. of Motor Vehicles v. Indus. Acc. Com. (Dinan) (1939) 14 Cal.2d 189 [wage loss is not required for an injured worker to be entitled to permanent disability compensation].) Medical treatment alone is not disability, but may be evidence of compensable permanent disability. (Rodarte (supra) 119 Cal. App. 4th at 1005.) These are questions for the trier of fact to determine and may require expert medical opinion. (Id., at 1006.)

Labor Code sections 4663 and 4664

Apportionment of permanent disability must be based on reasonable medical probability and supported by pertinent facts under Labor Code sections 4663 and 4664.

The WCJ applied this standard to reject Dr. Townsend's apportionment opinion and award 18% unapportioned permanent disability.

From the decision · page 13Apportionment of permanent disability is based on causation, and the employer shall only be liable for the percentage of permanent disability directly caused by the injury arising out of and occurring in the course of employment. (Lab. Code, sections 4663, subd., (a) and 4664, subd. (a).) Physicians are required to make an apportionment determination by finding what approximate percentage of the permanent disability was caused by the direct result of the industrial injury and what approximate percentage of the permanent disability was caused by other factors both before and subsequent to the industrial injury. (Lab. Code, § 4663, subd. (c).) For a medical opinion on apportionment to constitute substantial evidence, it must be framed in terms of reasonable medical probability it must be based on pertinent facts and on an adequate examination and history, and it must set forth reasoning in support of its conclusions. (Escobedo v. Marshalls (2005) 70 Cal. Comp. Cases 604, 621-622.

Labor Code sections 4600 and 4603

Future medical treatment is awarded under Labor Code sections 4600 and 4603 when the applicant is found to be in need of such treatment.

The WCJ relied on Dr. Townsend's opinion to award future medical treatment for varicose veins.

From the decision · page 14Dr. Townsend indicated that the Applicant should be eligible for future medical treatment on an industrial basis for the varicose veins condition found in the lower extremities. This Court finds the opinions of Dr. Townsend as to future medical treatment to be reasonable and well-reasoned. Thus, this Court finds that Applicant is in need of future medical treatment subject to the applicable sections of the Labor Code and California Code of Regulations.

Applicant's testimony and medical records showing no prior diagnosis of varicose veins until 2018

From the decision · page 5Defendant's Petition for Reconsideration suggests that the Applicant and her attorney did nothing in the nine years leading up to her eventual varicose veins diagnosis by Internal Medicine QME Dr. Townsend on October 30, 2018. However, the evidence in the record suggests otherwise. The Applicant availed herself of various medical providers through her earlier-filed 2010 cumulative trauma injury and through her private insurance; she was evaluated by various physicians of varying specialties within and outside of the Workers' Compensation system over the course of a few years. This included evaluations with medical personnel at Kaiser Permanente in 2011, Internal Medicine AME Dr. Jonathan Green in 2011, Orthopedic AME Dr. Michael Luciano in 2011, Vascular Surgeon Dr. Bakhtiar Ahmad in 2012, and Internal Medicine consult Dr. Glenn Marshak in 2013. None of these physicians definitely diagnosed the Applicant with varicose veins.

Defendant's denial of liability based on prior rulings and statute of limitations defenses

From the decision · page 3Defendant denied liability of this cumulative trauma injury on December 23, 2019, reasoning that the varicose veins condition was previously ruled out and that the injury was barred by legal defenses under Labor Code sections 5405 and 5412.