ADJ9103770 — California WCAB decision

What the panel ordered

Findings of Fact of September 23, 2019 affirmed except Finding 2 rescinded and substituted; orthopedic injuries found industrial; internal injuries deferred for further proceedings.

Petition for reconsideration granted to study factual and legal issues; decision after reconsideration issued affirming orthopedic injury findings and rescinding internal injury findings for further development.

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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.

Reopening / new and further disabilityRemandedabdomen (hernia) · cardiovascular system (hypertension) · endocrine system (diabetes and obesity) · gastrointestinal system (GERD/gastritis) · psoriasis · headaches · sleep disorder

The WCJ's findings on internal injuries were rescinded and the matter was returned for further medical development due to insufficient evidence and conflicting medical opinions.

From the decision · page 3Turning to applicant's claims of internal injury, we are persuaded that further development of the medical record is required to properly address and resolve the claims. Therefore, we will amend the WCJ's decision to rescind the finding on the internal injuries, and we will defer the issue and return this matter to trial level for further proceedings and new decision by the WCJ.

The facts that decided it

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

Dr. Brown's medical opinions were found persuasive and based on accurate understanding of applicant's job duties and medical history.

Favours Applicant prevailed

Supported the finding of industrial injury to orthopedic body parts.

From the decision · page 15In regard to causation, Dr. Brown stated the job duties the applicant performed for the employer were a viable mechanism of cumulative trauma injury and that the amount of weight applicant lifted was not an issue as applicant spent a lot of time loading and unloading packages, standing, driving, twisting his neck and back, bending and stooping, activities which were reasonably arduous.

Dr. Pietruszka's medical reports were found insufficient and not substantial evidence by the WCJ.

Favours Defendant prevailed

Led to rescinding internal injury findings and ordering further medical development.

From the decision · page 38, § 10517.) Further, the fact that applicant may have sustained a specific hernia injury around the same time does not preclude a finding he also sustained a cumulative trauma injury, e.g., during the period 2008 through 2010 or 2011. In any case, "the Board may not leave undeveloped matters which its acquired specialized knowledge should identify as requiring further [inquiry or] evidence." (Telles Transport, Inc. v. Workers' Comp. Appeals Bd. (2001) 92 Cal.App.4th 1159, 1164 [66 Cal.Comp.Cases 1290].) Therefore, we conclude that the WCJ must further develop the medical record concerning applicant's claimed cumulative trauma hernia injury. It seems clear that the WCJ does not have confidence in the reporting of Dr. Pietruszka. Therefore, if the parties are unable to agree on an Agreed Medical Evaluator (AME), the WCJ may consider appointing a "regular physician" to further develop the medical record concerning this issue. (McDuffie v. Los Angeles County Metropolitan Transit Authority (2002) 67 Cal.Comp.Cases 138 [Appeals Board en banc].)

Applicant's credible testimony on headaches supported further inquiry on industrial origin of headaches and sleep disorder.

Favours Applicant prevailed

Supported deferral and further development of internal injury claims.

From the decision · page 5Applicant's last substantive contention is that the WCJ erred in disallowing his claim of industrial headaches and sleep disorder. Based on the WCJ's Report, it appears he again rejected Dr. Pietruszka's medical opinion on this issue because the doctor inaccurately recorded applicant's weight. Regardless of whether this inaccuracy is germane to the headache and sleep disorder claim, we note the WCJ evidently found applicant credible in testifying that he has headaches, which interfere with his sleep. We further note the WCJ refers to no medical evidence rebutting Dr. Pietruszka's opinion that applicant's headaches and sleep disorder are industrial in origin. (See WCJ's Report at p. 26.) As with applicant's other claims of internal injury, we are persuaded that further medical inquiry is necessary to determine whether applicant's headaches and sleep order may be industrial, in reference to the claimed period of cumulative trauma.

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.

otherRelied upon · orthopedics

Dr. Brown found applicant's job duties a viable mechanism of cumulative trauma injury and his opinions were persuasive and based on accurate understanding of employment and medical history.

The WCJ relied on Dr. Brown's medical opinions to find industrial injury to orthopedic body parts.

From the decision · page 15In regard to causation, Dr. Brown stated the job duties the applicant performed for the employer were a viable mechanism of cumulative trauma injury and that the amount of weight applicant lifted was not an issue as applicant spent a lot of time loading and unloading packages, standing, driving, twisting his neck and back, bending and stooping, activities which were reasonably arduous.

PTPRejected

Dr. Pietruszka opined that applicant's hernia and internal conditions may be industrial cumulative trauma injuries, but his reports were found not substantial evidence by the WCJ.

The WCJ found Dr. Pietruszka's medical opinion insufficient and ordered further development of the medical record.

From the decision · page 3Concerning applicant's claim of hernia injury, he alleges that the June 17, 2014 medical report of Dr. Pietruszka, his treating physician, supports a finding that his hernia injury is the result of cumulative trauma related to his job. (Defense Exhibit E.) On page 11 of said report, Dr. Pietruszka states, "[i]n 2010 it was discovered that [applicant] had an umbilical hernia as a result of continuous lifting of heavy boxes at work." In his Report and Recommendation, the WCJ states, "the evidence submitted could support a conclusion that applicant sustained a hernia on an industrial basis as a result of a specific incident, as pled in [the companion case] ADJ9103317, or as a result of a continuous trauma ending sometime in 2010 or 2011. However, no such claims are before [the WCJ]." (Italics added.) Although the period of claimed injury is July 14, 2008 to July 24, 2013, the WCJ thus concedes that the evidence may support a cumulative trauma hernia injury in 2010 or 2011. This date is within the period of alleged cumulative trauma, subject to conforming the claimed period of injury to proof. (WCAB Rule 10517, Cal. Code Regs., tit.

The rules the panel named

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

Place v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 372

Industrial injury includes acceleration or aggravation of preexisting conditions by employment.

The WCJ's reasoning on diabetes and hypertension was corrected to consider acceleration or aggravation by industrial orthopedic injuries.

From the decision · page 4To the extent the WCJ has reasoned that applicant's diabetes and hypertension are not industrial because they preexisted his orthopedic injuries, the WCJ's reasoning is incorrect because the diabetes and hypertension may be industrial if the industrial orthopedic injuries accelerated or aggravated those conditions. (See Place v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 372, 375 fn. 2 [35 Cal.Comp.Cases 525]; Guerra v. Workers' Comp. Appeals Bd. (2016) 246 Cal.App.4th 1301, 1307-1308 [81 Cal.Comp.Cases 324], citing California etc. Exchange v. Ind. Acc. Com. (1946) 76 Cal.App.2d 836, 840 (Industrial liability exists for disability arising from a preexisting nonindustrial condition, brought on by any strain or excitement incident to the employment; the acceleration or aggravation of a pre-existing disease is an injury in the occupation causing such acceleration.).) Further, 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 may be different. (Reyes v. Hart Plastering (2005) 70 Cal.Comp.Cases 223 [Significant Panel Decision].)

Telles Transport, Inc. v. Workers' Comp. Appeals Bd. (2001) 92 Cal.App.4th 1159

Board must further develop medical record when evidence is insufficient or conflicting.

The Board ordered further development of medical record on internal injuries due to insufficient evidence.

From the decision · page 38, § 10517.) Further, the fact that applicant may have sustained a specific hernia injury around the same time does not preclude a finding he also sustained a cumulative trauma injury, e.g., during the period 2008 through 2010 or 2011. In any case, "the Board may not leave undeveloped matters which its acquired specialized knowledge should identify as requiring further [inquiry or] evidence." (Telles Transport, Inc. v. Workers' Comp. Appeals Bd. (2001) 92 Cal.App.4th 1159, 1164 [66 Cal.Comp.Cases 1290].) Therefore, we conclude that the WCJ must further develop the medical record concerning applicant's claimed cumulative trauma hernia injury. It seems clear that the WCJ does not have confidence in the reporting of Dr. Pietruszka. Therefore, if the parties are unable to agree on an Agreed Medical Evaluator (AME), the WCJ may consider appointing a "regular physician" to further develop the medical record concerning this issue. (McDuffie v. Los Angeles County Metropolitan Transit Authority (2002) 67 Cal.Comp.Cases 138 [Appeals Board en banc].)

ADJ9103770 · April 22, 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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