ADJ1786046 · April 18, 2022

The WCAB noted the stipulation that there was no permanent disability from the 1993 cervical spine injury and expressed no final opinion on orthopedic apportionment, remanding for further proceedings.

From the decision · page 6car accident actually occurred. Defendant apparently does not challenge this part of the WCJ's decision. However, in its petition for reconsideration (in contrast to its supplemental pleading) defendant asserts that 50% of any new and further orthopedic disability should be apportioned to the natural progression of the effects of the specific (cervical spine) injury of September 20, 1993. In support of this assertion, defendant relies upon the May 25, 2017 deposition testimony of Dr. Jackson, the AME in orthopedics. (Petition for Reconsideration, p. 12:3-20; Exhibit Y, pp. 28- 32.) However, we note that the Stipulated Award of July 15, 2002 included a stipulation that "[t]here is no permanent disability as a result of the 9/20/93 [cervical spine] claim." This stipulation long ago became final and binding, so it is unclear how defendant can prove apportionment based on the cervical spine injury dating back to 1993. (See Fireman's Fund Ins. Co. v. Workers' Comp. Appeals Bd.

The WCAB agreed that the WCJ failed to properly address apportionment of psychiatric disability and remanded for further proceedings on this issue.

From the decision · page 5Defendant has the burden of proof on the issue of apportionment. (Kopping v. Workers' Comp. Appeals Bd. (2006) 142 Cal.App.4th 1099, 1114 [71 Cal.Comp.Cases 1229].) We express no opinion as to whether defendant can meet its burden of proof, but we agree with defendant that the WCJ failed to properly address the issue of apportionment. Dr. Feldman apportioned 5% of applicant's psychiatric permanent disability to "personal and family" issues, as conceded in applicant's answer herein. (See Exhibit Z, Feldman report dated June 3, 2015, p. 35.) But according to the formula found on page four of the WCJ's Opinion on Decision, it appears that Dr. Feldman's assessment of five percent non-industrial apportionment was not included in the WCJ's rating of psychiatric disability.

The WCAB found substantial evidence in Dr. Feldman's reports and medical history showing a demonstrable change in applicant's psychiatric condition within five years of the cumulative trauma period ending, supporting new and further psychiatric disability.

From the decision · page 4Contrary to defendant's allegation, the above history of injury/medical history recorded by

Dr. Feldman's medical reports and applicant's medical history show a demonstrable change in psychiatric condition within five years of cumulative trauma period end, supporting new and further psychiatric disability.

Favours Applicant prevailed

This evidence supports the finding of new and further psychiatric disability within the statutory period.

From the decision · page 4Contrary to defendant's allegation, the above history of injury/medical history recorded by

Applicant's trial testimony shows ability to perform some activities of daily living, which defendant argues contradicts extent of psychiatric disability.

Favours Defendant prevailed

This testimony was considered in evaluating the credibility and extent of psychiatric disability, relevant to apportionment.

From the decision · page 5Applicant testified at trial that he does not have problems being with other people and does not have trouble picking out clothes to wear, grocery shopping or doing simple repetitive tasks. Applicant also testified that he is able to socialize and see family and friends on occasion, and that he gets along with his family and is able to do small household chores such as laundry and simple cooking. (Summary of Evidence, 10/10/18, p. 9). In his report dated June 3, 2015, Dr. Feldman concluded that applicant has slight to moderate psychiatric disability and a GAF score of 60 (moderate symptoms of psychiatric disability), with frustration, depression and anxiety related to the significant extent of his orthopedic disability. (Exhibit Z, Feldman report dated 6/3/15, p. 35.)

Dr. Feldman found slight to moderate psychiatric disability with a GAF score of 60, related to orthopedic disability, and apportioned 5% non-industrial psychiatric disability to personal and family issues.

Dr. Feldman's report was relied upon to find new and further psychiatric disability and to consider apportionment of psychiatric disability.

From the decision · page 4Dr. Feldman is substantial evidence that applicant suffered new and further psychiatric disability within five years from the date of original injury.2 In other words, Dr. Feldman's report of June

Sarabi v. Workers' Comp. Appeals Bd. (2007) 151 Cal.App.4th 920

To recover additional benefits, the injured worker must file a timely petition to reopen and show new and further disability within five years, unless good cause exists. New and further disability means a demonstrable change in condition including gradual increase, recurrence, new treatment need, or change from temporary to permanent disability.

Applied to determine if applicant's psychiatric disability arose within five years of cumulative trauma period end.

From the decision · page 3To recover additional benefits, the injured worker must not only file a timely petition to reopen but must also have suffered a "new and further disability" within that five-year period, unless there is otherwise "good cause" to reopen the prior award. [Sarabi v. Workers' Comp. Appeals Bd. (2007) 151 Cal.App.4th 920, 926 (72 Cal.Comp.Cases 778).] An injured worker cannot confer jurisdiction on the WCAB by filing a petition to reopen before the five-year period has expired for anticipated new and further disability that may occur after the five-year limitation period has run. (Ibid.) "New and further disability" means disability resulting from some demonstrable change in the employee's condition, including a gradual increase in disability, a recurrence of TD, a new need for medical treatment, or the change of a temporary disability into a permanent disability. (Ibid.)

Kopping v. Workers' Comp. Appeals Bd. (2006) 142 Cal.App.4th 1099

Defendant has the burden of proof on apportionment of disability.

Applied to apportionment of psychiatric disability issue.

From the decision · page 5Defendant has the burden of proof on the issue of apportionment. (Kopping v. Workers' Comp. Appeals Bd. (2006) 142 Cal.App.4th 1099, 1114 [71 Cal.Comp.Cases 1229].) We express no opinion as to whether defendant can meet its burden of proof, but we agree with defendant that the WCJ failed to properly address the issue of apportionment. Dr. Feldman apportioned 5% of applicant's psychiatric permanent disability to "personal and family" issues, as conceded in applicant's answer herein. (See Exhibit Z, Feldman report dated June 3, 2015, p. 35.) But according to the formula found on page four of the WCJ's Opinion on Decision, it appears that Dr. Feldman's assessment of five percent non-industrial apportionment was not included in the WCJ's rating of psychiatric disability.

Applicant's medical history and Dr. Feldman's report showing new and further psychiatric disability within five years of cumulative trauma period end.

From the decision · page 4Contrary to defendant's allegation, the above history of injury/medical history recorded by

Applicant's trial testimony showing ability to perform some activities of daily living, consistent with slight to moderate psychiatric disability.

From the decision · page 5Applicant testified at trial that he does not have problems being with other people and does not have trouble picking out clothes to wear, grocery shopping or doing simple repetitive tasks. Applicant also testified that he is able to socialize and see family and friends on occasion, and that he gets along with his family and is able to do small household chores such as laundry and simple cooking. (Summary of Evidence, 10/10/18, p. 9). In his report dated June 3, 2015, Dr. Feldman concluded that applicant has slight to moderate psychiatric disability and a GAF score of 60 (moderate symptoms of psychiatric disability), with frustration, depression and anxiety related to the significant extent of his orthopedic disability. (Exhibit Z, Feldman report dated 6/3/15, p. 35.)