ADJ2554534 — California WCAB decision

What the panel ordered

Petition for Reconsideration denied.

Defendant sought reconsideration of the Findings, Award and Order issued by the WCJ on March 16, 2022, which found applicant sustained industrial injuries and was permanently totally disabled with no apportionment to non-industrial factors.

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.

AOE/COEApplicant prevailedlumbar spine · cervical spine · left shoulder · right hip · right knee · psyche · irritable bowel syndrome · chronic pain syndrome

Substantial evidence supports the WCJ's finding that applicant sustained injury AOE/COE to multiple body parts including chronic pain syndrome as a result of the 2002 industrial injury.

From the decision · page 1Defendant seeks reconsideration of the Findings, Award and Order (FA&O) issued by the workers' compensation administrative law judge (WCJ) on March 16, 2022.1 By the FA&O, the WCJ found that applicant sustained an injury arising out of and in the course of employment (AOE/COE) to her lumbar spine, cervical spine, left shoulder, right hip, right knee, psyche, irritable bowel syndrome (IBS) and chronic pain syndrome. The WCJ further found that applicant was permanently totally disabled and there was no basis for apportionment to non-industrial factors.

The facts that decided it

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

Applicant has significant orthopedic work restrictions and psychiatric impairments caused by the industrial injury.

Favours Applicant prevailed

Supports finding of permanent total disability and injury AOE/COE to multiple body parts.

From the decision · page 3I concur that the applicant is not capable of returning to the open labor market as a result of her March 15, 2002 injury. She has significant orthopedic work restrictions as has been noted, the internal medicine, AME opined that the applicant lost 25% of her preinjury capacity to work and perform physical activities and restricted her to no undue emotional stress and unrestricted access to bathroom on an as needed basis or urgent basis. The psychiatric AME also noted work function impairments caused by her psychiatric and pain disorders.

Psychiatric impairment is 95% caused by the March 15, 2002 industrial injury.

Favours Applicant prevailed

Supports compensability of psychiatric conditions and chronic pain syndrome as industrial consequences.

From the decision · page 5Based on the extensive apportionment discussion by AME orthopedic evaluator Dr. Danzig, M.D., his additional reports summarized in detail in the record review section of this report, it is reasonably medically probable with respect to psychiatric permanent disability/impairment, whole person impairment 20, 95% of this psychiatric whole person impairment is caused by specific injury March 15, 2002 at EDD. The psychiatric chronic pain disorder with its psychological component, the depressive disorder not otherwise specified with associated anxiety, is a compensable consequence of the orthopedic injury and its associated orthopedic disability, and based on AME orthopedic apportionment opinion, which I have summarized in the record review section of this report, it is reasonably medically probable 95% of psychiatric whole person impairment 20 is caused by specific injury March 15, 2002 and 5% is caused by factors other than injury arising out of and in the course of employment.

Applicant is not amenable to vocational rehabilitation and unable to compete in the open labor market due to industrial injury.

Favours Applicant prevailed

Supports rebuttal of scheduled rating and finding of permanent total disability.

From the decision · page 17There is substantial evidence in the record showing that applicant is not amenable to vocational rehabilitation and is unable to compete in the open labor market as a result of her industrial injury. We therefore agree with the WCJ's finding that applicant has successfully rebutted the scheduled rating and is permanently totally disabled.

Medical opinions on apportionment lacked sufficient explanation or were based on incorrect legal theories.

Favours Applicant prevailed

Supports rejection of apportionment to non-industrial factors for cervical spine, lumbar spine, and psyche.

From the decision · page 18The orthopedic AME Dr. Danzig apportioned 10% of the permanent disability for the cervical spine and lumbar spine to degenerative disc disease. Dr. Danzig opined for both parts of the spine that "the level of disability was greater than it would have been just due to the on-the- job injury alone" and her "response to treatment was worse than it would have been." (Joint Exhibit Z, Ortho AME Dr. Danzig, October 31, 2017, pp. 105-106.) In discussing an example in Escobedo, we expressly stated that "if a physician opines that 50% of an employee's back disability is caused by degenerative disc disease, the physician must explain the nature of the degenerative disc disease, how and why it is causing permanent disability at the time of the evaluation, and how and why it is responsible for approximately 50% of the disability." (Escobedo, supra, 70 Cal.Comp.Cases at p. 621.) Dr. Danzig does not explain the nature of applicant's degenerative disc disease or how and why it causes part of applicant's permanent disability for the cervical and lumbar spine. His summary conclusions that this non-industrial condition increased applicant's level of disability and worsened her response to treatment are insufficient to support a finding of apportionment for the permanent disability attributed to these parts.

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 · psychiatry

Diagnosed chronic pain disorder and depressive disorder, opining 95% of psychiatric impairment caused by industrial injury.

From the decision · page 4Joel Frank, M.D. evaluated applicant as the psychiatric AME. He diagnosed applicant with

AMERejected · orthopedics

Provided work restrictions for multiple body parts and apportioned 10% of permanent disability for cervical and lumbar spine to degenerative disc disease but without sufficient explanation to support apportionment.

Dr. Danzig's apportionment opinion lacked sufficient explanation to support apportionment finding.

From the decision · page 18The orthopedic AME Dr. Danzig apportioned 10% of the permanent disability for the cervical spine and lumbar spine to degenerative disc disease. Dr. Danzig opined for both parts of the spine that "the level of disability was greater than it would have been just due to the on-the- job injury alone" and her "response to treatment was worse than it would have been." (Joint Exhibit Z, Ortho AME Dr. Danzig, October 31, 2017, pp. 105-106.) In discussing an example in Escobedo, we expressly stated that "if a physician opines that 50% of an employee's back disability is caused by degenerative disc disease, the physician must explain the nature of the degenerative disc disease, how and why it is causing permanent disability at the time of the evaluation, and how and why it is responsible for approximately 50% of the disability." (Escobedo, supra, 70 Cal.Comp.Cases at p. 621.) Dr. Danzig does not explain the nature of applicant's degenerative disc disease or how and why it causes part of applicant's permanent disability for the cervical and lumbar spine. His summary conclusions that this non-industrial condition increased applicant's level of disability and worsened her response to treatment are insufficient to support a finding of apportionment for the permanent disability attributed to these parts.

AMERejected · psychiatry

Diagnosed chronic pain disorder and depressive disorder; opined psychiatric impairment was 95% caused by industrial injury but apportionment opinion was based on incorrect legal theory and was rejected.

Dr. Frank's apportionment opinion was based on incorrect legal theory and was rejected.

From the decision · page 19It is the responsibility of each medical evaluator to determine apportionment for the body parts or body systems within his or her area of expertise. Doctors may not simply mirror the apportionment opinions of other doctors in a case without providing independent justification for their opinion. To the extent that Dr. Frank attempted to mirror his apportionment opinion for the psychiatric condition to Dr. Danzig's apportionment for the orthopedic parts to degenerative disc disease, this was improper. Additionally, if Dr. Frank believed that he must provide apportionment to other factors for the psyche because there was apportionment for the spine, his opinion is based on an incorrect legal theory. (See Hegglin v. Workmen's Comp. Appeals Bd. (1971) 4 Cal.3d 162, 169 [36 Cal.Comp.Cases 93] [medical opinions are not substantial evidence if they are based on incorrect legal theories].)

AMERelied upon · internal medicine

Provided work restrictions including avoiding undue emotional stress and access to bathroom on an as needed basis.

From the decision · page 16Applicant has work restrictions for a myriad of body parts. The orthopedic AME Dr. Danzig provided applicant with several restrictions for the orthopedic parts including: precluded from heavy lifting for the cervical spine; limited to light work for the lumbar spine; precluded from repetitive work at or above shoulder level with the left upper extremity for the left shoulder; and precluded from prolonged weightbearing, repetitive squatting and kneeling, and repetitive climbing for the right knee. (Joint Exhibit Z, Ortho AME Dr. Danzig, October 31, 2017, pp. 102- 104.) The internal medicine AME Dr. Levister concluded that applicant "should avoid undue emotionally stressful situations" and "she could probably function in a situation where she would have regular unrestrained access to the bathroom on an as needed or urgent basis." (Joint Exhibit S, Internal AME Dr. Levister, October 25, 2016, pp. 3-4.) The neurologist Dr. Nudleman similarly stated that applicant "had to work in an environment, in my opinion, that there was no perceived undue stress." (Joint Exhibit TTT, Dr. Nudleman report, June 8, 2021, p. 2.)

AMERelied upon · neurology

Opined headaches, migraines and sleep disorder were industrially caused with 100% permanent disability attributable to the 2002 industrial injury.

From the decision · page 11Dr. Nudleman evaluated applicant on March 9, 2021. (Joint Exhibit ZZ, Dr. Nudleman report, March 9, 2021.) Dr. Nudleman opined that applicant's headaches, migraines and sleep disorder are industrially caused. (Joint Exhibit QQQ, Dr. Nudleman report, April 7, 2021, p. 8.) He assigned the headaches a 9% WPI rating. (Joint Exhibit TTT, Dr. Nudleman report, June 8, 2021, p. 2.) Dr. Nudleman apportioned permanent disability for the headaches "40% to the March 15, 2002 specific injury and cumulatively 60% based on the mutifactorial issues of stress, poor sleep, pain and an underlying anxiety." (Id.) He opined that applicant "had to work in an environment, in my opinion, that there was no perceived undue stress." (Id.) Dr. Nudleman subsequently clarified in his deposition testimony that the permanent disability for the headaches is 100% attributable to applicant's 2002 industrial injury. (Joint Exhibit UUU, Dr. Nudleman deposition transcript, August 25, 2021, pp. 11-13.)

AMERelied upon · orthopedics

Evaluated applicant with significant orthopedic work restrictions and apportioned most orthopedic impairment to industrial injury with small apportionment to degenerative changes.

From the decision · page 3I concur that the applicant is not capable of returning to the open labor market as a result of her March 15, 2002 injury. She has significant orthopedic work restrictions as has been noted, the internal medicine, AME opined that the applicant lost 25% of her preinjury capacity to work and perform physical activities and restricted her to no undue emotional stress and unrestricted access to bathroom on an as needed basis or urgent basis. The psychiatric AME also noted work function impairments caused by her psychiatric and pain disorders.

The rules the panel named

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

South Coast Framing v. Workers' Comp. Appeals Bd. (Clark) (2015) 61 Cal.4th 291

The employee bears the burden of proving injury AOE/COE by a preponderance of the evidence.

Decisions of the Appeals Board must be supported by substantial evidence.

From the decision · page 12The employee bears the burden of proving injury AOE/COE by a preponderance of the evidence. (South Coast Framing v. Workers' Comp. Appeals Bd. (Clark) (2015) 61 Cal.4th 291, 297-298, 302 [80 Cal.Comp.Cases 489]; Lab. Code, § 3600(a); 3202.5.) Decisions of the Appeals Board must be supported by substantial evidence. (Lab. Code, § 5903, 5952(d); Lamb

Fitzpatrick v. Workers' Comp. Appeals Bd. (2020) 27 Cal.App.5th 614

Permanent total disability shall be determined in accordance with the fact under Labor Code section 4662(b).

Applicant rebutted scheduled rating and proved permanent total disability based on work restrictions and vocational expert opinion.

From the decision · page 15Section 4662(b) states that in all cases where permanent disability is not presumed total, "permanent total disability shall be determined in accordance with the fact." (Lab. Code, § 4662(b).) The Court of Appeal in Fitzpatrick analyzed how an employee may show permanent total disability "in accordance with the fact" under section 4662(b). The Court held that "Section 4660 is mandatory" and "addresses how the determination on the facts shall be made in each case for injuries occurring before January 1, 2013." (Fitzpatrick, supra, 27 Cal.App.5th at pp. 622, 618, emphasis in original.) As discussed above, a permanent disability rating derived from application of section 4660 is rebuttable though and therefore, an employee may "present evidence supporting a 100 percent disability rating when the scheduled rating is less." (Id. at p. 620.)

Gay v. Workers' Comp. Appeals Bd. (1979) 96 Cal.App.3d 555

The employer must demonstrate reasonable medical probability for apportionment of permanent disability.

Medical opinions on apportionment must provide independent justification and be legally sound to constitute substantial evidence.

From the decision · page 17Lastly, defendant contends that the WCJ improperly disregarded the apportionment provided by the AMEs for the cervical spine, lumbar spine and psyche. While the employee holds the burden of proof regarding the approximate percentage of permanent disability directly caused by the industrial injury, the employer holds the burden of proof to show apportionment of permanent disability. (Lab. Code, § 5705; see also Escobedo, supra, 70 Cal.Comp.Cases at p. 613, Pullman Kellogg v. Workers' Comp. Appeals Bd. (Normand) (1980) 26 Cal.3d 450 [45 Cal.Comp.Cases 170].) To meet this burden, the employer "must demonstrate that, based upon reasonable medical probability, there is a legal basis for apportionment." (Gay v. Workers' Comp. Appeals Bd. (1979) 96 Cal.App.3d 555, 564 [44 Cal.Comp.Cases 817]; see also Escobedo, supra, 70 Cal.Comp.Cases at p. 620.)

ADJ2554534 · January 3, 2023

What the panel ordered

What was disputed, and how it came out

Your case already resembles someone else’s. Find whose.

The facts that decided it

What the panel did with the medical opinions

The rules the panel named

What proof carried it

About this page