ADJ15351318 — California WCAB decision

What the panel ordered

Petitions for Reconsideration denied.

Petitions for Reconsideration of the Arbitrator's September 21, 2021 Amended Findings and Award of Division of Attorney Fees filed by applicant's current and former attorneys, denied by the Appeals Board on December 27, 2021.

Read the official decision →

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.

Sanctions under Labor Code §5813Defendant prevailed

The Arbitrator found that the majority of the attorney fee should be awarded to the present attorney based on the amount of work done, the contested nature of the case, and the misconduct of the prior attorney, rejecting the prior attorney's claims for a greater fee.

From the decision · page 16After reviewing the case law and expert testimony, the Arbitrator is of the opinion the WCAB does have jurisdiction to consider the conduct of the attorney in determining the Award of a fee or the division of the fee.

The facts that decided it

What the panel treated as outcome-determinative, and which side it favoured.

Applicant became quadriplegic with total loss of motor and sensory function after authorized neck surgery on February 25, 2019.

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.

AMERelied upon · neurology

Found 55% Whole Person Impairment and apportioned 100% of applicant's urological impairment to the industrial environment, with no contribution from pre-existing or non-industrial factors.

From the decision · page 9Fred S. Kuyt, M.D., the Agreed Medical Evaluator in neurology, found due to the absence of pre-existing or non-industrial factors that contribute to the quadriplegia, bladder and bowel dysfunction and their associated symptoms, it is appropriate to apportion 100% of applicant's urological impairment to the industrial environment. Absent the industrial environment, it is with reasonable medical probability the applicant would not suffer any of the above impairments. In this case, the impairments that arose out of the specific date of injury and impairments that arose out of the period of the continuous trauma are truly inextricably intertwined. The applicant was given a 55% Whole Person Impairment.

AMERelied upon · internal medicine

Found applicant quadriplegic and totally disabled, meeting criteria for 100% disability under Labor Code §§4662(a)(2) and (a)(3), with total disability caused by surgery related to industrial injury and not subject to apportionment.

From the decision · page 9Paul S. Grodan, M.D., the Agreed Medical Evaluator in internal medicine, found the applicant is a quadriplegic and cannot move either his left or right arm, hands or his legs. The applicant is wheelchair-bound and dependent on total bodily care. The applicant sustained an injury to the cervical spinal cord, which basically knocked out all of his body functions except for his brain, vision and hearing. The physician finds the applicant is totally disabled. He finds that it is clear the applicant meets the criteria for 100% disability under Labor Code § 4662(a)(3) and Labor Code § 4662( a)(2). The applicant has loss of function of all four limbs and clearly has loss of bowel and bladder action. Essentially his entire body below the neck is nonfunctional except for the anatomic nervous system, which empties his bladder and bowel.

AMERelied upon · neurology

Diagnosed quadriplegia with bowel, bladder and sexual dysfunction, 100% permanently disabled, with disability caused by surgery and not subject to apportionment per Hikida case.

From the decision · page 10The applicant was evaluated by Robert J Shorr, M.D. as Agreed Medical Evaluator in neurology. The physician's assessment was quadriplegia with bowel, bladder and sexual dysfunction. The applicant has lost total use of both hands and upper extremities. The applicant, based on his clinical findings in his examination, is a quadriplegic. The applicant should be considered to have met the criteria of Labor Code § 4662(a)(2) as he has total loss of use of both hands and upper extremities. He had surgery for the industrial neck injury and the outcome of the surgery was quadriplegia, which would be considered consequential and not subject to apportionment according to Hikida. The applicant suffers from quadriplegia, neurogenic bowel and bladder with vertigo, spasticity, chronic pain, insomnia and consequential anxiety and depression. The physician found the applicant 100% permanently disabled.

AMERelied upon · orthopedic surgery

Found applicant quadriplegic with complete paralysis below the neck, 100% permanently totally disabled, with total sensory and motor loss caused by authorized neck surgery related to industrial injury.

From the decision · page 10Steven N. Brourman, M.D. evaluated the applicant has Agreed Medical Evaluator in orthopedic surgery. The history was the applicant began work for the City of Los Angeles as a traffic officer in January 28, 2002. The applicant developed pain in the neck, bilateral upper extremities, hands wrists, back, bilateral lower extremities, which he attributed to performing the physical demands of his job duties. He stated that on July 23, 2015, he was getting out of the city car when he struck his head against the car jolting his upper body causing injuries to his neck, shoulders and back. He described that after the injury of July 23, 2015, he commenced treatment for the specific and cumulative trauma injuries. He does not recall receiving treatment for the cumulative injuries prior to July 23, 2015. The applicant had performed surgery for his cervical spine on February 25, 2019. The applicant stated that after the surgery, he was no longer able to move his arms or legs. He described that from that point, he remained a quadriplegic.

The rules the panel named

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

Labor Code section 5909

Petition for Reconsideration is generally considered denied by operation of law if not granted within 60 days after filing (Labor Code section 5909).

The Appeals Board did not issue a decision within 60 days of the petitions filed by applicant's attorneys, but due process required tolling of the time due to system inadequacies as per Shipley v. Workers' Comp. Appeals Bd.

From the decision · page 1Preliminarily, we note that a petition is generally considered denied by operation of law if the Appeals Board does not grant the petition within 60 days after it is filed. (Lab. Code, § 5909.) However, we believe that "it is a fundamental principle of due process that a party may not be deprived of a substantial right without notice...." (Shipley v. Workers' Comp. Appeals Bd. (1992) 7 Cal.App.4th 1104, 1108 [57 Cal.Comp.Cases 493].) In Shipley, the Appeals Board denied the applicant's petition for reconsideration because it had not acted on the petition within the statutory time limits of Labor Code section 5909. This occurred because the Appeals Board had misplaced the file, through no fault of the parties. The Court of Appeal reversed the Appeals Board's decision holding that the time to act on applicant's petition was tolled during the period that the file was misplaced. (Shipley, supra, 7 Cal.App.4th at p. 1108.) Like the Court in Shipley, "we are not convinced that the burden of the system's inadequacies should fall on [a party]." (Shipley, supra, 7 Cal.App.4th at p. 1108.)

Labor Code sections 5813 and 5814

Attorney fee awards and divisions are governed by Labor Code sections 5813 and 5814.

The Arbitrator applied these statutes in determining the division of attorney fees based on work done and misconduct.

From the decision · page 16After reviewing the case law and expert testimony, the Arbitrator is of the opinion the WCAB does have jurisdiction to consider the conduct of the attorney in determining the Award of a fee or the division of the fee.

What proof carried it

The evidence the panel weighed, by kind.

Medical recordsfavours Applicant prevailed

Applicant was quadriplegic with total loss of motor and sensory function below the neck, requiring 24/7 care, and had no bowel or bladder control after authorized neck surgery.

From the decision · page 9Paul S. Grodan, M.D., the Agreed Medical Evaluator in internal medicine, found the applicant is a quadriplegic and cannot move either his left or right arm, hands or his legs. The applicant is wheelchair-bound and dependent on total bodily care. The applicant sustained an injury to the cervical spinal cord, which basically knocked out all of his body functions except for his brain, vision and hearing. The physician finds the applicant is totally disabled. He finds that it is clear the applicant meets the criteria for 100% disability under Labor Code § 4662(a)(3) and Labor Code § 4662( a)(2). The applicant has loss of function of all four limbs and clearly has loss of bowel and bladder action. Essentially his entire body below the neck is nonfunctional except for the anatomic nervous system, which empties his bladder and bowel.

Medical recordsfavours Defendant prevailed

Applicant was ambulatory and neurologically intact prior to the February 25, 2019 neck surgery authorized by the City of Los Angeles.

From the decision · page 11Steven Brourman, M.D., in his deposition taken on November 17, 2020, noted the applicant was in a wheelchair and he had complete paralysis below the neck with complete absence of motor function of his extremity and loss of sensory function as well. The applicant cannot move anything below the neck and has zero function. The applicant is a quadriplegic. He has an absence of motor function. There is zero range of motion. In his opinion, the applicant is 100% permanently totally disabled. He is totally disabled due to his being a quadriplegic. The applicant has no control of his bowel function. He has no control his bladder function. The applicant cannot control when he urinates or defecates. The applicant is at Casa Colina. This is a facility designated for taking care of this kind of patient. The applicant qualifies under the conclusive presumption of Labor Code § 4662 for loss of both hands and practical total paralysis. The applicant is conclusively presumed to be 100% disabled in two different ways. Prior to the surgery on February 25, 2019, the applicant was an active person. He played tennis. The applicant was working prior to the neck surgery. He was intact from a neurological perspective prior to the surgery on February 25, 2019. The applicant was not in a wheelchair prior to February 25, 2019.

Medical recordsfavours Applicant prevailed

The catastrophic quadriplegia and neurogenic bowel and bladder dysfunction were caused by the authorized neck surgery, which was a direct consequence of the industrial injury and not subject to apportionment.

From the decision · page 10disability was all caused by complications of the surgery and is not subject to apportionment. His total disability is the direct consequence of the surgical procedure for the industrial injury. In this case, the total disability was caused by the catastrophic injury to the cervical spine resulting from the surgery. The injury specifically was industrial. The injury itself is not apportioned as it was a specific injury and that specific injury precipitated the need for surgery. Therefore, if surgery caused incremental increases in the level of disability, that would be apportioned entirely to the surgery. Clearly this is the issue in the Hikida case. The clear documentation was after his industrial injury. The applicant was mobile. He did not have any evidence of quadriplegia or any limitation in his movements.

ADJ15351318 · December 27, 2021