ADJ1424684 · August 2, 2024

The WCAB amended the findings to assign sole responsibility for future medical treatment of the back and right leg to Clarendon, excluding Hani/CIGA from this responsibility.

From the decision · page 3Accordingly, we grant reconsideration, amend the F&A in ADJ1556152 and the F&O in ADJ1424684 to find that future medical treatment for applicant's back and right leg shall be by defendant Clarendon (Finding of Fact 8 (ADJ1424684) Finding of Fact 12 (ADJ1556152)), and we will defer the issue of calculation of the award and of attorney's fees in ADJ1556152 (Findings of Fact 11 and 13), and otherwise affirm the F&A in ADJ1556152 and the F&Os in ADJ1424684 and ADJ11379405.

The WCAB deferred the issue of calculation of the award and attorney's fees to be determined later.

From the decision · page 3Accordingly, we grant reconsideration, amend the F&A in ADJ1556152 and the F&O in ADJ1424684 to find that future medical treatment for applicant's back and right leg shall be by defendant Clarendon (Finding of Fact 8 (ADJ1424684) Finding of Fact 12 (ADJ1556152)), and we will defer the issue of calculation of the award and of attorney's fees in ADJ1556152 (Findings of Fact 11 and 13), and otherwise affirm the F&A in ADJ1556152 and the F&Os in ADJ1424684 and ADJ11379405.

The WCAB upheld the WCJ's finding that the claim filed in ADJ11379405 was barred by the statute of limitations.

From the decision · page 18E. The WCJ recommends he be upheld on his decision that the Statute of Limitations bar the claim filed in ADJ11379405.

The claim filed in ADJ11379405 is barred by the statute of limitations.

Favours Defendant prevailed

This fact supports the denial of the claim in ADJ11379405.

From the decision · page 18E. The WCJ recommends he be upheld on his decision that the Statute of Limitations bar the claim filed in ADJ11379405.

Applicant has a totally diminished future earning capacity and cannot work in the open labor market.

Favours Applicant prevailed

This fact supports the finding of permanent total disability of 100%.

From the decision · page 4Compensation Appeals Board that the Findings and Award in ADJ1556152 issued by the WCJ on May 8, 2024 is AFFIRMED, EXCEPT that it is AMENDED as follows:

Future medical treatment for back and right leg is solely the responsibility of Clarendon.

Favours Applicant prevailed

This fact led to the amendment of findings assigning sole medical treatment responsibility to Clarendon.

From the decision · page 3Accordingly, we grant reconsideration, amend the F&A in ADJ1556152 and the F&O in ADJ1424684 to find that future medical treatment for applicant's back and right leg shall be by defendant Clarendon (Finding of Fact 8 (ADJ1424684) Finding of Fact 12 (ADJ1556152)), and we will defer the issue of calculation of the award and of attorney's fees in ADJ1556152 (Findings of Fact 11 and 13), and otherwise affirm the F&A in ADJ1556152 and the F&Os in ADJ1424684 and ADJ11379405.

Dr. Gillis opined that the applicant's internal medical disabilities were solely caused by employment at Hani, Inc.

The WCJ found Dr. Gillis' revised opinions substantial medical evidence supporting that internal disabilities were solely due to Hani employment.

From the decision · page 12To attempt to accommodate the concerns of the defense attorney for CIGA, the WCJ ordered Dr. Gillis to complete a supplemental report to explain supposed discrepancies alleged by CIGA regarding Dr. Gillis' conclusions in his report of 09-14-2012 and his deposition of 03-21-2013. Dr. Gillis prepared a report dated 01-08-2019, as set out in Joint Exhibit X17. Dr. Gillis again provided his explanation about applicant's internal disability and stated "... the applicant's disability was indeed solely the consequence of his employment at Hani."

Dr. Angerman diagnosed a work-related lumbosacral spine herniated disc syndrome from the 1998 injury at RK Chevron.

Dr. Angerman's reports were part of the medical evidence supporting the need for medical treatment for back and right leg injuries.

From the decision · page 12The applicant worked at RK Chevron insured by Clarendon/Enstar from 1991 through July 2, 1998. Applicant suffered a specific injury at RK Chevron on July 2, 1998 and was evaluated for his condition by orthopedic AME Dr. Alexander Angerman. Dr. Angerman's first report is dated 12-02-1999 and is set out in Joint Exhibit X37. On page two is a description of how the injury occurred as a specific event. On page 4 is a description of

Dr. Greils provided opinions on the predominant cause of psychiatric injury, supporting the WCJ's findings.

Dr. Greils' deposition was substantial evidence on the issue of predominant cause for psychiatric injury and statute of limitations.

From the decision · page 16Could the parties have phrased the questions more precisely for Dr. Greils? Could Dr. Greils have more fully explained the significance of his answer? The WCJ feels that the Dr. Greils' deposition of 11-09-2021 remains substantial evidence for the issue of predominant cause for the injury of 07-02-1998 and for the CT claim of 12-03-2001 through 02-05- 2002. The WCJ feels that Dr. Greils has indicated that there was predominant cause for the injury date for the CT of 12-03-2001 through 02-05-2002. If this is true, there cannot be predominant cause for the remaining date of injury; there cannot be two causes totaling more than 50% each. It is a misfortune for the applicant that Dr. Greils chose the date of injury at the employer who could not meet the six-month employment requirement.

Hamilton v. Lockheed Corporation (2001) 66 Cal.Comp.Cases 473

A decision must be based on admitted evidence and supported by substantial evidence.

The WCAB applied this standard in reviewing the Petition for Reconsideration and the WCJ's Report.

From the decision · page 3A decision must be based on admitted evidence and must be supported by substantial evidence. (Hamilton v. Lockheed Corporation (Hamilton) (2001) 66 Cal.Comp.Cases 473, 476 (Appeals Board en banc) citing Evans v. Workmen's Comp. Appeals Bd. (1968) 68 Cal. 2d 753, 755 [33 Cal.Comp.Cases 350] [a full and complete record allows for a meaningful right of reconsideration].) If a novel issue arises, a case may be returned to the trial judge for consideration in the first instance. (Gangwish vs. Workers' Comp. Appeals Bd. (2001) 89 Cal.App.4th1284, 1295 [66 Cal.Comp. Cases 584].) All parties to a workers' compensation proceeding retain the fundamental right to due process and a fair hearing under both the California and United States Constitutions. (Rucker v. Workers' Comp. Appeals Bd.

LC 3208.3 (b) (1)

To establish compensability for psychiatric injury, the employee must show employment events were predominant cause.

Applied in evaluating the psychiatric injury claim and predominant cause issue.

From the decision · page 15psychiatric injury at RK Chevron, the insured of Clarendon/Enstar. LC 3208.3 (b) (1) is the law governing the requirement for predominant cause for a psychiatric injury. It says that "to establish that a psychiatric injury is compensable, an employee shall demonstrate by a preponderance of the evidence that actual events of employment were predominant as to all causes combined of the psychiatric injury."

Applicant's inconsistent testimony and dimming memory affected credibility.

From the decision · page 8The WCJ feels that it is noteworthy that CIGA has paid over 13 years of TD for the CT claim of 12-03-2001 through 02-05-2002 in ADJ1556152. The applicant has been deposed several times and he has failed to be consistent. At the 20-plus trial dates in this matter, the applicant most recently has been "consistently inconsistent." He has given starkly contradictory answers to questions asked within a few minutes of each other. The applicant is in his seventies now and his memory and cognition might be dimming. The applicant makes an average to slightly below average witness in terms of his credibility. The attorney for CIGA impeached the applicant to a point where one began to feel it was not guile for secondary gain but something far more serious causing the applicant to give so many inconsistent answers. The applicant has not worked for the last 22 years.