What the panel ordered
Findings, Award and Order of November 3, 2021 affirmed except permanent disability amended to 39%.
Petition for Reconsideration granted to amend permanent disability finding from 40% to 39%.
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.
The applicant's stomach surgery was caused by industrial use of NSAIDs leading to peptic ulcer disease, which caused a misdiagnosis of cancer and the need for surgery.
From the decision · page 2For the reasons stated by the WCJ in the Report and the Opinion on Decision, we agree that applicant's peptic ulcer disease, which resulted from her use of non-steroidal anti- inflammatory medication on an industrial basis, was one of the contributing causes of the need for stomach surgery.
The permanent disability was amended to 39% based on the Combined Values Chart and apportionment was applied due to pre-existing non-industrial gastrointestinal issues.
From the decision · page 1We have considered the allegations of the Petition for Reconsideration and the contents of the report of the workers' compensation administrative law judge (WCJ) with respect thereto. Based on our review of the record, we will grant reconsideration solely to amend the finding of permanent disability to 39%. The WCJ's finding of 40% permanent disability appears to be a clerical error because application of the Combined Values Chart (CVC) to the disability found (i.e., 22% for the upper GI, 17% for the lumbar spine, and 6% for the left knee) results in 39%. The Appeals Board may correct clerical errors at any time. (Toccalino v. Worker's Comp. Appeals Bd. (1982) 128 Cal.App.3d 543, 558 [47 Cal.Comp.Cases 145].) We will otherwise affirm the findings of the WCJ for the reasons stated below and for the reasons stated in the Report and Opinion on Decision, both of which we adopt and incorporate, except the recommendation that we deny reconsideration and the discussion regarding application of the CVC.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Applicant's use of non-steroidal anti-inflammatory medication contributed to peptic ulcer disease causing stomach surgery.
Favours Applicant prevailed
This medical causation linked the industrial injury to the need for surgery, supporting the award.
From the decision · page 2For the reasons stated by the WCJ in the Report and the Opinion on Decision, we agree that applicant's peptic ulcer disease, which resulted from her use of non-steroidal anti- inflammatory medication on an industrial basis, was one of the contributing causes of the need for stomach surgery.
Permanent disability rating corrected from 40% to 39% based on Combined Values Chart.
Favours Applicant prevailed
Correcting the clerical error affected the permanent disability award amount.
From the decision · page 1We have considered the allegations of the Petition for Reconsideration and the contents of the report of the workers' compensation administrative law judge (WCJ) with respect thereto. Based on our review of the record, we will grant reconsideration solely to amend the finding of permanent disability to 39%. The WCJ's finding of 40% permanent disability appears to be a clerical error because application of the Combined Values Chart (CVC) to the disability found (i.e., 22% for the upper GI, 17% for the lumbar spine, and 6% for the left knee) results in 39%. The Appeals Board may correct clerical errors at any time. (Toccalino v. Worker's Comp. Appeals Bd. (1982) 128 Cal.App.3d 543, 558 [47 Cal.Comp.Cases 145].) We will otherwise affirm the findings of the WCJ for the reasons stated below and for the reasons stated in the Report and Opinion on Decision, both of which we adopt and incorporate, except the recommendation that we deny reconsideration and the discussion regarding application of the CVC.
Applicant had pre-existing non-industrial gastrointestinal issues warranting apportionment.
Favours Defendant prevailed
Apportionment was required by law due to non-industrial contribution to disability.
From the decision · page 9The applicant's need for stomach surgery was a result of both her industrial use of medication and non-industrial factors, thus apportionment is warranted. In County of Santa Clara v. WCAB (Justice) 2020 Cal.App. Lexis 461, it was noted where there is unrebutted substantial medical evidence that non-industrial factors played a casual role in producing the permanent disability, the Labor Code demands that the permanent disability "shall" be apportioned. Here there is not dispute the applicant's had pre-existing nonindustrial G.I. problems which contributed to her stomach problems for which apportionment is warranted.
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.
Found that the applicant's use of non-steroidal anti-inflammatory medication contributed to the peptic ulcer disease and that the stomach surgery was industrially related due to the misdiagnosis caused by the ulcer.
Dr. Jay's medical findings supported the industrial causation of the stomach surgery and the 22% WPI for upper gastrointestinal injury.
From the decision · page 8The main issue in this matter was whether the applicant's stomach surgery was a result of her work related injury. Per the findings of Dr. Jay as outlined in his April 22, 2016 report, he notes, "It continues to be my medical opinion, as I testified during my deposition that she would have 22% WPI if the workers' compensation judge decides the stomach surgery was industrial." (Exhibit 11, pg. 3). Dr. Jay had found the applicant's use of non-steroidal anti-inflammatory medication contributed to her peptic ulcer disease. Applicant's peptic ulcer disease combined with her non-industrial H-Pylori are the cause of her stomach issues which in turn led to the misdiagnosis of stomach cancer. Thus, without the industrial peptic ulcer disease stemming from medication use for her work related injury, the applicant would not have been misdiagnosed with stomach
Attributed 50% of lumbar spine disability to pre-existing degenerative changes and 50% to the industrial injury; supported apportionment.
Dr. Katz's findings on apportionment were accepted as substantial medical evidence for pre-existing conditions affecting disability.
From the decision · page 9Per the findings of Dr. Katz, the applicant had long standing degenerative changes when taken into consideration attributed to the applicant's back injury. In his report of June 25, 2015, Dr. Katz changed his opinion on apportionment, noting: "Originally, we stated all of the injuries were 100% apportioned to the industrial injury of May 31, 2012. However, re-review of the records including the x-ray report of May 31, 2012 shows degenerative changes of the lumbosacral spine is already present. It would be impossible for those degenerative changes to have occurred on the date of injury. Rather, they would occur over a period of time. Therefore, base don't he information available, barring any information to the contrary, there is a change in apportionment of the lumbosacral spine as follows: 50% is apportioned to pre-existing degenerative changes and 50% is apportioned to the industrial injury of May 31, 2012."
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Labor Code section 3600
Labor Code section 3600 imposes workers' compensation liability on an employer regardless of negligence when the employment is a contributing cause of the injury.
The injury must be employment-caused or connected in a cause and effect relationship.
From the decision · page 1Labor Code1 section 3600 imposes workers' compensation liability on an employer, regardless of negligence, when the employment is one of the contributing causes without which the injury would not have occurred. (Lab. Code, § 3600.) The phrase "proximately caused by the employment" in section 3600(a)(3) merely means that the injury must be employment-caused or
Granado v. Workers' Comp. Appeals Bd. (1968) 69 Cal.2d 399
Employers are liable for all medical treatment reasonably required to cure or relieve the injured worker from the effects of the injury, even if the treatment is for a nonindustrial condition.
Treatment for nonindustrial conditions may be required if essential in curing or relieving effects of the industrial injury.
From the decision · page 2Moreover, pursuant to section 4600 and the decision in Granado v. Workers' Comp. Appeals Bd. (1968) 69 Cal.2d 399 [33 Cal.Comp.Cases 647], employers are liable for all medical treatment "that is reasonably required to cure or relieve the injured worker from the effects of the injury...," even if the treatment is for a nonindustrial condition. (See Granado v. Workmen's Comp. Appeals Bd. (1968) 69 Cal.2d 399, 406 [33 Cal.Comp.Cases 647, 652] ["So long as the treatment is reasonably required to cure or relieve from the effects of the industrial injury, the employer is required to provide the treatment, and treatment for nonindustrial conditions may be required of the employer where it becomes essential in curing or relieving from the effects of the industrial injury itself."].) In fact, "[s]tatutory authority permits an applicant to seek medical treatment for what he perceives to be an industrial injury." (Cooper v. Workers' Comp. Appeals Bd., 173 Cal.App.3d 44, 49 [50 Cal. Comp.
What proof carried it
The evidence the panel weighed, by kind.
Applicant's credible testimony and medical reports of Dr. Jay and Dr. Katz
From the decision · page 10Based upon applicant's credible testimony and the medical reports of Dr. Jay and Dr. Katz., it is found that applicant is entitled to reimbursement of self- procured medical treatment payable by defendant pursuant to the Official Medical Fee Schedule in an exact amount to be adjusted by and between the parties with the WCAB retaining jurisdiction in the event of a dispute. Medical treatment cannot be apportioned. Although the applicant has non- industrial gastrointestinal issue, Dr. Jay has found that applicant's use of non- steroidal medication contributed to her peptic ulcer disease which contributed to the need for stomach surgery. ATTORNEY FEES
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About this page
- A published decision of the California Workers' Compensation Appeals Board, taken apart by what it turned on. The Board publishes the decision itself; this page adds the extraction and quotes the passage behind every claim.
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