What the panel ordered
Petition for Reconsideration denied.
Petition for Reconsideration filed by defendants challenging injury findings, permanent disability award, case merging, and vocational report reliance; WCJ report adopted and reconsideration denied.
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 evidence showed the applicant sustained injury to the knees on November 19, 2014, reported the injury to employer, and the injury arose out of and in the course of employment without permanent impairment.
From the decision · page 4In his initial report of August 4, 2015, Agreed Medical Evaluator, Dr. Lawrence Feiwell, addresses the specific injury of November 19, 2014, involving the Applicant's right and left knee, noting that the Applicant fell in the parking lot and notified his employer of the injury but received no medical treatment. He notes that the Applicant continued working subsequent to this injury. As referenced in the report of Marc Nehorayan, M.D. dated December 28, 2017 (Exhibit 2, EAMS ID 38678301), he notes review of records that include Applicant's initial treatment report and Doctor's First Report of Injury of March 19, 2015, by Dr. Phillip Sobol which note a specific injury of November 19, 2014, due to a fall in the parking lot, for which no treatment was provided although the Applicant notified his employer of the injury. Dr. Sobol notes contusions to both knees. Dr. Sobol provided treatment for the Applicant's orthopedic injuries including the knees, which included medication. No rebuttal evidence or testimony of any witness was provided at trial to rebut that a fall occurred on November 19, 2014, causing injury to the Applicant's knees, or to indicate that the Applicant did not report the injury to his employer or request treatment, as is stated in the reports.
The applicant was found permanently totally disabled based on combined injuries and fibromyalgia, supported by medical and vocational expert reports, with no apportionment possible due to intertwined injuries.
From the decision · page 6For the underlying orthopedic injuries, apportionment in line with Benson v. Workers' Compensation Appeals Board, 170 Cal. App 4th 1535, could be appropriate. However, as Defendant stipulated, the Applicant sustained further admitted injuries as a compensable consequence, simultaneously, for both the specific injury and the cumulative trauma injury, and the Applicant developed fibromyalgia as a result of the collective pain associated with the combination of the specific and cumulative trauma injuries as indicated in the cross-examination of Dr. Silverman, dated April 2, 2021. Dr. Silverman indicates that neither injury on its own would have likely been sufficient to manifest the resulting fibromyalgia, and it required the widespread pain associated with both injuries combined for the development of this component of the injuries. Apportionment to either injury was not possible, as the cause was necessarily inextricably intertwined.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Applicant sustained injury to bilateral knees on November 19, 2014, reported injury to employer, and injury arose out of and in the course of employment.
Favours Applicant prevailed
Supported finding of compensable injury without permanent impairment.
From the decision · page 4In his initial report of August 4, 2015, Agreed Medical Evaluator, Dr. Lawrence Feiwell, addresses the specific injury of November 19, 2014, involving the Applicant's right and left knee, noting that the Applicant fell in the parking lot and notified his employer of the injury but received no medical treatment. He notes that the Applicant continued working subsequent to this injury. As referenced in the report of Marc Nehorayan, M.D. dated December 28, 2017 (Exhibit 2, EAMS ID 38678301), he notes review of records that include Applicant's initial treatment report and Doctor's First Report of Injury of March 19, 2015, by Dr. Phillip Sobol which note a specific injury of November 19, 2014, due to a fall in the parking lot, for which no treatment was provided although the Applicant notified his employer of the injury. Dr. Sobol notes contusions to both knees. Dr. Sobol provided treatment for the Applicant's orthopedic injuries including the knees, which included medication. No rebuttal evidence or testimony of any witness was provided at trial to rebut that a fall occurred on November 19, 2014, causing injury to the Applicant's knees, or to indicate that the Applicant did not report the injury to his employer or request treatment, as is stated in the reports.
Applicant's fibromyalgia developed as a result of combined specific and cumulative trauma injuries, causing permanent disability that could not be apportioned.
Favours Applicant prevailed
Supported finding of 100% permanent disability award based on intertwined injuries and fibromyalgia.
From the decision · page 6For the underlying orthopedic injuries, apportionment in line with Benson v. Workers' Compensation Appeals Board, 170 Cal. App 4th 1535, could be appropriate. However, as Defendant stipulated, the Applicant sustained further admitted injuries as a compensable consequence, simultaneously, for both the specific injury and the cumulative trauma injury, and the Applicant developed fibromyalgia as a result of the collective pain associated with the combination of the specific and cumulative trauma injuries as indicated in the cross-examination of Dr. Silverman, dated April 2, 2021. Dr. Silverman indicates that neither injury on its own would have likely been sufficient to manifest the resulting fibromyalgia, and it required the widespread pain associated with both injuries combined for the development of this component of the injuries. Apportionment to either injury was not possible, as the cause was necessarily inextricably intertwined.
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.
Confirmed total disability due to pain, fatigue, cognitive problems, bowel problems, and sleep disturbance; opined applicant not employable.
Supported vocational expert's findings and explained fibromyalgia impact.
From the decision · page 4The determinations of Dr. Anthony Reyes in his report of December 12, 2019 (Exhibit 1, EAMS IDS 37516963 and 37516964, uploaded in two parts due to its size) were confirmed by the QME, Dr. Stuart Silverman both in his initial report of August 20, 2018, when he opined that the Applicant was totally disabled not only from his pain, but by fatigue, cognitive problems, bowel
Confirmed injury to knees from fall on November 19, 2014, but noted no residual impairment.
From the decision · page 4In his initial report of August 4, 2015, Agreed Medical Evaluator, Dr. Lawrence Feiwell, addresses the specific injury of November 19, 2014, involving the Applicant's right and left knee, noting that the Applicant fell in the parking lot and notified his employer of the injury but received no medical treatment. He notes that the Applicant continued working subsequent to this injury. As referenced in the report of Marc Nehorayan, M.D. dated December 28, 2017 (Exhibit 2, EAMS ID 38678301), he notes review of records that include Applicant's initial treatment report and Doctor's First Report of Injury of March 19, 2015, by Dr. Phillip Sobol which note a specific injury of November 19, 2014, due to a fall in the parking lot, for which no treatment was provided although the Applicant notified his employer of the injury. Dr. Sobol notes contusions to both knees. Dr. Sobol provided treatment for the Applicant's orthopedic injuries including the knees, which included medication. No rebuttal evidence or testimony of any witness was provided at trial to rebut that a fall occurred on November 19, 2014, causing injury to the Applicant's knees, or to indicate that the Applicant did not report the injury to his employer or request treatment, as is stated in the reports.
Noted specific injury of November 19, 2014, with contusions to both knees and provided treatment including medication.
From the decision · page 4In his initial report of August 4, 2015, Agreed Medical Evaluator, Dr. Lawrence Feiwell, addresses the specific injury of November 19, 2014, involving the Applicant's right and left knee, noting that the Applicant fell in the parking lot and notified his employer of the injury but received no medical treatment. He notes that the Applicant continued working subsequent to this injury. As referenced in the report of Marc Nehorayan, M.D. dated December 28, 2017 (Exhibit 2, EAMS ID 38678301), he notes review of records that include Applicant's initial treatment report and Doctor's First Report of Injury of March 19, 2015, by Dr. Phillip Sobol which note a specific injury of November 19, 2014, due to a fall in the parking lot, for which no treatment was provided although the Applicant notified his employer of the injury. Dr. Sobol notes contusions to both knees. Dr. Sobol provided treatment for the Applicant's orthopedic injuries including the knees, which included medication. No rebuttal evidence or testimony of any witness was provided at trial to rebut that a fall occurred on November 19, 2014, causing injury to the Applicant's knees, or to indicate that the Applicant did not report the injury to his employer or request treatment, as is stated in the reports.
Determined applicant was permanently totally disabled and unable to compete in the open labor market due to injuries and fibromyalgia.
Report found more comprehensive and accurate than defendant's vocational expert report.
From the decision · page 4The determinations of Dr. Anthony Reyes in his report of December 12, 2019 (Exhibit 1, EAMS IDS 37516963 and 37516964, uploaded in two parts due to its size) were confirmed by the QME, Dr. Stuart Silverman both in his initial report of August 20, 2018, when he opined that the Applicant was totally disabled not only from his pain, but by fatigue, cognitive problems, bowel
Indicated applicant unable to return to open labor market due to orthopedic, psychiatric, and rheumatologic compromise; recommended vocational evaluation.
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Labor Code Section 4664(a), Labor Code Section 5705, Benson v. Workers' Compensation Appeals Board
Employer liability for permanent disability is limited to the percentage directly caused by the industrial injury; apportionment requires reasonable medical probability.
Applied to determine that apportionment was not possible due to intertwined injuries and that a combined permanent disability award was appropriate.
From the decision · page 6For the underlying orthopedic injuries, apportionment in line with Benson v. Workers' Compensation Appeals Board, 170 Cal. App 4th 1535, could be appropriate. However, as Defendant stipulated, the Applicant sustained further admitted injuries as a compensable consequence, simultaneously, for both the specific injury and the cumulative trauma injury, and the Applicant developed fibromyalgia as a result of the collective pain associated with the combination of the specific and cumulative trauma injuries as indicated in the cross-examination of Dr. Silverman, dated April 2, 2021. Dr. Silverman indicates that neither injury on its own would have likely been sufficient to manifest the resulting fibromyalgia, and it required the widespread pain associated with both injuries combined for the development of this component of the injuries. Apportionment to either injury was not possible, as the cause was necessarily inextricably intertwined.
What proof carried it
The evidence the panel weighed, by kind.
Applicant reported injury to employer on November 19, 2014, but received no treatment initially.
From the decision · page 4In his initial report of August 4, 2015, Agreed Medical Evaluator, Dr. Lawrence Feiwell, addresses the specific injury of November 19, 2014, involving the Applicant's right and left knee, noting that the Applicant fell in the parking lot and notified his employer of the injury but received no medical treatment. He notes that the Applicant continued working subsequent to this injury. As referenced in the report of Marc Nehorayan, M.D. dated December 28, 2017 (Exhibit 2, EAMS ID 38678301), he notes review of records that include Applicant's initial treatment report and Doctor's First Report of Injury of March 19, 2015, by Dr. Phillip Sobol which note a specific injury of November 19, 2014, due to a fall in the parking lot, for which no treatment was provided although the Applicant notified his employer of the injury. Dr. Sobol notes contusions to both knees. Dr. Sobol provided treatment for the Applicant's orthopedic injuries including the knees, which included medication. No rebuttal evidence or testimony of any witness was provided at trial to rebut that a fall occurred on November 19, 2014, causing injury to the Applicant's knees, or to indicate that the Applicant did not report the injury to his employer or request treatment, as is stated in the reports.
Vocational expert report of Dr. Reyes considered more comprehensive and accurate than defendant's expert report.
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About this page
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