California WCABPanel decision

ADJ3108970 · February 14, 2023

Petition for reconsideration granted in part; Findings and Award affirmed except issues of dental injury causation, psychiatric disability percentage, permanent disability level, and attorney fee deferred; matter remanded to WCJ for further proceedings.

Issues decided: 4
Medical opinions weighed: 2
Authorities named: 3
District office: Santa Ana

What the panel ordered

Applicant seeks reconsideration of the Findings and Award issued by the WCJ on December 1, 2022, challenging findings on psychiatric injury causation and dental injury claim development.

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 §5813Deferred

Deferred pending further development of the record.

From the decision · page 6*** 9. The applicant's attorney is entitled to a fee of 15% of the awarded permanent disability; the amount of the attorney fee is deferred.

AOE/COEDeferreddental system

No substantial medical evidence directly correlating dental injury to employment; record development deferred for further medical evaluation.

Private workspace

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

Paste the dispute. The extractor builds the factors, the search finds the decisions the same facts won, and the matter stays saved. Free account.

Start a matter Search without an account →

The facts that decided it

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

Dr. Nathan's psychiatric apportionment reports did not explain causation percentages

Favours Defendant prevailed

Reports lacked explanation of how employment and pre-existing conditions caused disability percentages, thus not substantial evidence for apportionment

From the decision · page 4Marshalls, supra, at 621) Further, it is important to note that "the percentage to which an applicant's injury is causally related to his or her employment is not necessarily the same as the percentage to which an applicant's permanent disability is causally related to his or her injury. The analyses of these issues are different and the medical evidence for any percentage conclusions might be different." (Ibid. at 611.) Here, in his December 27, 2010, report, as quoted above, Dr. Nathan concluded that 66- 2/3% of applicant's psychiatric permanent disability was a result of his industrial orthopedic injury and 33-1/3% of his psychiatric disability was a result of his psychopathology "due to his personality functioning, his prior history of Alcohol Abuse and Dependence." (Def. Exh. C, p. 24.) Dr. Nathan did not explain how and why applicant's employment with defendant and his pre- existing alcohol abuse were causing his permanent disability at the time of the evaluation, nor did he explain how and why those factors were responsible for the percentage of disability he assigned. Thus, his reports are not substantial evidence regarding the issue of permanent disability/ apportionment and cannot be the basis for determining applicant's psychiatric disability caused by his industrial injury.

No medical report directly correlates dental injury to applicant's medication use

Favours Defendant prevailed

Lack of direct medical causation evidence led to deferral of dental injury claim development

From the decision · page 5As to the issue of applicant's dental injury claim, it has long been recognized that evidence from a lay witness on an issue requiring expert opinion is not substantial evidence, and medical proof is required when issues of diagnosis, prognosis, and treatment are beyond the bounds of ordinary knowledge. (City & County of San Francisco v. Industrial Acc. Com. (Murdock) (1953) 117 Cal.App.2d 455 [18 Cal.Comp.Cases 103]; Bstandig v. Workers' Comp. Appeals Bd. (1977) 68 Cal.App.3d 988 [42 Cal.Comp.Cases 114].) Therefore, applicant's testimony that the medication he has been taking has affected his teeth, is not substantial evidence. As the WCJ stated in his Report, "Dr. Dimmick does not provide an affirmative opinion about the diagnosis's causation but suggests that further evaluations would be appropriate." (Report p.

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.

QMERejected · psychiatry

Concluded 66-2/3% of psychiatric permanent disability caused by industrial injury; 33-1/3% due to personality and prior alcohol abuse; reports found not substantial evidence for apportionment due to lack of explanation.

Did not explain how employment and pre-existing conditions caused the disability percentages assigned.

From the decision · page 4Marshalls, supra, at 621) Further, it is important to note that "the percentage to which an applicant's injury is causally related to his or her employment is not necessarily the same as the percentage to which an applicant's permanent disability is causally related to his or her injury. The analyses of these issues are different and the medical evidence for any percentage conclusions might be different." (Ibid. at 611.) Here, in his December 27, 2010, report, as quoted above, Dr. Nathan concluded that 66- 2/3% of applicant's psychiatric permanent disability was a result of his industrial orthopedic injury and 33-1/3% of his psychiatric disability was a result of his psychopathology "due to his personality functioning, his prior history of Alcohol Abuse and Dependence." (Def. Exh. C, p. 24.) Dr. Nathan did not explain how and why applicant's employment with defendant and his pre- existing alcohol abuse were causing his permanent disability at the time of the evaluation, nor did he explain how and why those factors were responsible for the percentage of disability he assigned. Thus, his reports are not substantial evidence regarding the issue of permanent disability/ apportionment and cannot be the basis for determining applicant's psychiatric disability caused by his industrial injury.

QMEPartially credited · internal medicine

Diagnosed dry mouth and other conditions possibly related to medication; did not provide affirmative causation opinion for dental injury; suggested further evaluations.

No direct medical correlation between dental injury and medication use established.

From the decision · page 5As to the issue of applicant's dental injury claim, it has long been recognized that evidence from a lay witness on an issue requiring expert opinion is not substantial evidence, and medical proof is required when issues of diagnosis, prognosis, and treatment are beyond the bounds of ordinary knowledge. (City & County of San Francisco v. Industrial Acc. Com. (Murdock) (1953) 117 Cal.App.2d 455 [18 Cal.Comp.Cases 103]; Bstandig v. Workers' Comp. Appeals Bd. (1977) 68 Cal.App.3d 988 [42 Cal.Comp.Cases 114].) Therefore, applicant's testimony that the medication he has been taking has affected his teeth, is not substantial evidence. As the WCJ stated in his Report, "Dr. Dimmick does not provide an affirmative opinion about the diagnosis's causation but suggests that further evaluations would be appropriate." (Report p.

The rules the panel named

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

Lab. Code, § 5952(d)

Award, order, or decision must be supported by substantial evidence

Applied to review of medical evidence and apportionment

From the decision · page 4DISCUSSION It is well established that any award, order, or decision of the Appeals Board. must be supported by substantial evidence. (Lab. Code, § 5952(d); Lamb v. Workmen's Comp. Appeals Bd. (1974) 11 Cal.3d 274, 281 [39 Cal.Comp.Cases 310]; Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312, 317 [35 Cal.Comp.Cases 500]; LeVesque v. Workmen's Comp. Appeals Bd. (1970) 1 Cal.3d 627, 635 [35 Cal.Comp.Cases 16].) In order to constitute substantial evidence as to the issue of apportionment, the medical opinion must disclose the reporting physician's familiarity with the concepts of apportionment and must delineate the approximate percentages of permanent disability due to the direct results of the injury and the approximate percentage of permanent disability due to other factors. (Acme Steel v. Workers' Comp. Appeals Bd. (Borman) (2013) 218 Cal.App.4th 1137 [78 Cal.Comp.Cases 751]; Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604 (Appeals Board en banc).) Also, the physician must explain the nature of the other factors, how and why those factors are causing permanent disability at the time of the evaluation, and how and why those factors are responsible for the percentage of disability assigned by the physician. (Escobedo v.

Acme Steel v. Workers' Comp. Appeals Bd. (Borman) (2013) 218 Cal.App.4th 1137

Medical opinion must disclose familiarity with apportionment concepts and explain percentages assigned

Applied to evaluate Dr. Nathan's apportionment opinion

From the decision · page 4DISCUSSION It is well established that any award, order, or decision of the Appeals Board. must be supported by substantial evidence. (Lab. Code, § 5952(d); Lamb v. Workmen's Comp. Appeals Bd. (1974) 11 Cal.3d 274, 281 [39 Cal.Comp.Cases 310]; Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312, 317 [35 Cal.Comp.Cases 500]; LeVesque v. Workmen's Comp. Appeals Bd. (1970) 1 Cal.3d 627, 635 [35 Cal.Comp.Cases 16].) In order to constitute substantial evidence as to the issue of apportionment, the medical opinion must disclose the reporting physician's familiarity with the concepts of apportionment and must delineate the approximate percentages of permanent disability due to the direct results of the injury and the approximate percentage of permanent disability due to other factors. (Acme Steel v. Workers' Comp. Appeals Bd. (Borman) (2013) 218 Cal.App.4th 1137 [78 Cal.Comp.Cases 751]; Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604 (Appeals Board en banc).) Also, the physician must explain the nature of the other factors, how and why those factors are causing permanent disability at the time of the evaluation, and how and why those factors are responsible for the percentage of disability assigned by the physician. (Escobedo v.

City & County of San Francisco v. Industrial Acc. Com. (Murdock) (1953) 117 Cal.App.2d 455

Medical proof required for diagnosis and causation beyond lay knowledge

Applied to dental injury claim requiring expert evidence

From the decision · page 5As to the issue of applicant's dental injury claim, it has long been recognized that evidence from a lay witness on an issue requiring expert opinion is not substantial evidence, and medical proof is required when issues of diagnosis, prognosis, and treatment are beyond the bounds of ordinary knowledge. (City & County of San Francisco v. Industrial Acc. Com. (Murdock) (1953) 117 Cal.App.2d 455 [18 Cal.Comp.Cases 103]; Bstandig v. Workers' Comp. Appeals Bd. (1977) 68 Cal.App.3d 988 [42 Cal.Comp.Cases 114].) Therefore, applicant's testimony that the medication he has been taking has affected his teeth, is not substantial evidence. As the WCJ stated in his Report, "Dr. Dimmick does not provide an affirmative opinion about the diagnosis's causation but suggests that further evaluations would be appropriate." (Report p.