ADJ8301583 — California WCAB decision

What the panel ordered

The Board affirmed the WCJ's Findings, Award, and Order issued August 12, 2019, with amendments to exclude neurological system injury and admit additional exhibits; the Petition for Reconsideration was denied.

Applicant sought reconsideration of the Findings, Award, and Order issued by the WCJ on August 12, 2019, which found cumulative injury to certain body parts and awarded 48% permanent disability; the WCJ report recommended denial of the Petition for Reconsideration.

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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.

ApportionmentApplicant prevailedcervical spine · lumbar spine · left knee · bilateral hips

The Board found Dr. Hatch's apportionment determination to be substantial evidence and affirmed the WCJ's reliance on it.

From the decision · page 6Addressing the issue of apportionment, the WCJ, "... found Dr. Hatch's apportionment determination to be sufficiently explained as to the causes of applicant's non-industrial apportionment and not based on speculation." (Report, pp. 7 § 9.) Having reviewed Dr. Hatch's report and deposition testimony we agree with the WCJ that the doctor's opinions are substantial evidence. (See (Board Exh. X, p. 40, and Board Exh. Z, p. 25.)

The facts that decided it

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

Dr. Hatch's orthopedic reports were substantial evidence supporting cumulative injury and apportionment findings.

Favours Applicant prevailed

The Board relied on Dr. Hatch's reports to affirm the injury findings and apportionment, excluding neurological injury.

From the decision · page 6Addressing the issue of apportionment, the WCJ, "... found Dr. Hatch's apportionment determination to be sufficiently explained as to the causes of applicant's non-industrial apportionment and not based on speculation." (Report, pp. 7 § 9.) Having reviewed Dr. Hatch's report and deposition testimony we agree with the WCJ that the doctor's opinions are substantial evidence. (See (Board Exh. X, p. 40, and Board Exh. Z, p. 25.)

Medical opinions from neurologists Dr. Fink and Dr. Nudleman diagnosed peripheral neuropathy as non-industrial.

Favours Defendant prevailed

This supported the Board's amendment to exclude neurological injury from industrial causation.

Applicant's counsel did not timely object to the appointment of the Regular Physician and proceeded with the examination, waiving objections.

Favours Defendant prevailed

This procedural fact supported the Board's decision to rely on the Regular Physician's reports and deny reconsideration.

From the decision · page 13It should be noted that after WCJ Barnes' Order Vacating and Notice of Conference was issued, no argument was made at that time from either party that they considered the use of an AME or Regular Physician improper or sought to have the matter returned to their respective doctors to correct the perceived deficiencies in the medical reporting. If applicant's counsel disagreed with the use of an AME or regular Physician, applicant's counsel should have filed a Petition for Removal at that time regarding the WCJ's Order Vacating. At this point, the parties have incurred additional costs in having the applicant re- examined by the Regular Physician, taken her deposition, and procured supplemental reporting. The Court also notes that at the hearing held on December 18, 2017, neither party made any objection to the appointment of such. Failing to timely object, applicant's counsel has waived the objection by proceeding with the examination by the Regular Physician. Applicant's counsel only now makes the argument that such is improper after the parties have

The rules the panel named

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

8 CCR Reg. 10152

A disability is considered permanent and stationary when the employee has reached maximal medical improvement, meaning the condition is well stabilized and unlikely to change substantially in the next year with or without medical treatment.

The WCJ used this standard to determine the permanent and stationary date based on Dr. Hatch's examination.

From the decision · page 108 CCR Reg. 10152 reads that "A disability is considered permanent and stationary when the employee has reached maximal medical improvement, meaning his or her condition is well stabilized and unlikely to change substantially in the next year with or without medical treatment." This WCJ utilized the first date applicant was examined by Dr. Hatch as this contained her opinion as to when applicant had reached maximum medical improvement.

Labor Code sections 4663(c) and 4664(a); Yeager v. Workers' Comp. Appeals Bd (Gatten) (2006); Escobedo v. Marshalls (2005)

A reporting physician must determine the percentage of disability caused by industrial injury and other factors, and provide reasoning based on reasonable medical probability, not speculation.

The Board applied this standard to evaluate Dr. Hatch's apportionment opinion as substantial evidence.

From the decision · page 15A reporting physician is required to determine what percentage of an injured worker's disability "was caused by the direct result of injury arising out of and occurring in the course of employment and what approximate percentage of the permanent disability was caused by other factors..." (Lab. Code, § 4663(c)). For an opinion to be substantial evidence, a physician must discuss industrial causation and determine the applicant's level of permanent disability and, if appropriate, the existence of apportionment between injuries and between industrial and nonindustrial causes. (See Lab. Code, § 4663(c), 4664(a); Yeager v. Workers' Comp. Appeals Bd (Gatten) (2006) 145 Cal.App.4th 922, 928 [71 Cal.Comp.Cases 1687]; Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 612 (en banc), 70 Cal.Comp.Cases 1506 (writ den.)) Moreover, to qualify as

Labor Code section 4906(d); 8 CCR 10775; DWC/WCAB Policy and Procedural Manual Section 1.140

Attorney fees are awarded based on Labor Code section 4906(d), 8 CCR 10775, and DWC/WCAB Policy and Procedural Manual Section 1.140, considering factors such as complexity and results obtained.

The Board applied these standards to deny an increased attorney fee and affirm the 15% fee awarded by the WCJ.

From the decision · page 18Based on the foregoing, this WCJ believes that the 15% attorney fee awarded in this matter is appropriate.

What proof carried it

The evidence the panel weighed, by kind.

Testimony and credibilityfavours Defendant prevailed

Applicant's testimony and medical reports did not support development of newly alleged body parts beyond orthopedic and neurological injuries.

From the decision · page 11When applicant was examined by Dr. Kim on May 10, 2013, all of applicant's complaints were of an orthopedic or neurological nature with the exception of a generalized complaint of "...anxiety which he attributes to the orthopedic injuries sustained as a professional basketball player." (Exhibit 3, page 6). The reporting of defendant's PQME Dr. Green also took a history of complaints that only included orthopedic issues, and none of the newly alleged issues. (Exhibit B, page 2). Dr. Hatch's history again reflects only complaints of both an orthopedic and neurological nature. (Board Exhibit X, page 2, 3). At trial applicant testified to issues stemming from an orthopedic and neurological injury. No mention of the additional body parts is contained in the testimonial record and the medical reporting does not support a need for the development of these issues.

Medical recordsfavours Defendant prevailed

Medical evidence showed neurological issues were non-industrial, favoring denial of neurological injury claim.

From the decision · page 12Applicant's Petition contends that Dr. Hatch failed to address these various body parts and asks applicant be re-evaluated by the reporting neurologists. Dr. Hatch did in fact address these body parts, found them to be of a neurological nature and not orthopedic, and deferred these issues to a specialist, two of which had already examined applicant and opined that the neurological issues were non-industrial. (Exhibit 6, page 3, Exhibit E, page 11). In her Opinion on Decision and Findings and Award WCJ Barnes found applicant to have no industrial neurological problems, and this WCJ reached the same conclusion based upon the reporting of the doctors addressing these issues.

ADJ8301583 · April 29, 2022

What the panel ordered

What was disputed, and how it came out

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The facts that decided it

What the panel did with the medical opinions

The rules the panel named

What proof carried it

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