ADJ10373160 — California WCAB decision

What the panel ordered

Petition for Reconsideration denied.

Subsequent Injuries Benefits Trust Fund (SIBTF) seeks reconsideration of the January 30, 2023 Findings and Award, which found applicant entitled to SIBTF benefits with 65% permanent disability and pre-existing disabilities of 55%, resulting in overall permanent total disability.

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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.

QME/AME processApplicant prevailed

The Board found that the medical-legal process under Labor Code section 4062.21 applies to disputes between employee and employer, not to SIBTF claims, so applicant is not bound by it for the SIBTF claim.

From the decision · page 2Section 4062.2 provides the process in which a represented employee and an employer must follow to select a qualified medical evaluator. (§ 4062.2.) It specifically states that if the employee fails to make an appointment with the selected qualified medical evaluator, the employer may arrange the appointment and notify the employee. (§ 4062.2(d).)

Substantial evidence / credibility

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

Dr. Chen reviewed extensive medical records and found substantial medical evidence of applicant's industrial disability including pre-existing GERD and addiction impairments. He opined addiction impairment did not worsen after subsequent injury.

Dr. Chen reviewed 300 pages of medical records and issued reports supporting pre-existing GERD and addiction impairments, which were admitted without objection and found substantial.

QMERejected · Chiropractor

Dr. Whitelaw examined applicant in underlying case but his report was found inadmissible in this proceeding.

The only medical report objected to was Dr. Whitelaw's, which was found inadmissible.

From the decision · page 7Defendant SIBTF argues that the medical-legal reports offered by applicant for the determination of industrial disability can only be obtained by way of Labor Code Section 4062.2. SIBTF asserts that section 4062.2 expressly prohibits the opinions of these evaluators be used to establish applicant's industrial disability and thus Dr. Chens reports are inadmissible because they were not obtained through the section 4062.2 medical-legal process. First, as previously noted, the only report that defendant objected to at trial was Applicant's Exhibit 1, the report of Dr. Stephen Whitelaw, dated 1/28/2022. This report was marked for identification and the undersigned subsequently determined Exhibit 1 was inadmissible. All other medical reports were admitted without objection. Further, as was indicated in the Opinion, it has been established that applicant is not bound to conduct discovery within the Section 4062.2 medical-legal process1. In this instance, applicant did not obtain Dr. Chen's reports to offer them in the underlying workers' compensation case. Rather, the reports were obtained to pursue applicant's SIBTF case.

otherRelied upon

Dr. O'Dowd opined applicant's psyche impairment was pre-existing and found substantial medical evidence supporting it.

Dr. O'Dowd found psyche impairment pre-existing based on psychological testing and medical record review, which was unrebutted and found substantial.

From the decision · page 8Dr. O'Dowd opined applicant's current impairment is 18% WPI and attributed 10% WPI to the subsequent injury and 8% WPI to pre-existing injury. (Exhibit 7, p. 26-27) Defendant initially argued that applicant did not raise the issue of psyche as to the industrial injury and did not raise it as to the SIBTF claim. However, Dr. O'Dowd found psyche to be a pre-existing condition, and it was considered as such by the undersigned. Defendant further argues there were no contemporaneous records relating to psychiatric symptoms. However, Dr. O'Dowd indicated that "Prior to the subsequent injury, the applicant reported a pathological pattern of alcohol abuse that began in adolescence, increased steadily throughout his adult life and led to 2 D.U.I.s and incarceration. the applicant also suffered an intense, 1-year depressive period following his

What proof carried it

The evidence the panel weighed, by kind.

Medical recordsfavours Applicant prevailed

Applicant's testimony and medical records documented GERD prior to subsequent injury, including epigastric pain noted in records from 1/13/2015.

Medical recordsfavours Applicant prevailed

Dr. O'Dowd's psychological testing and medical record review found long-standing characterological traits and depressive episodes supporting pre-existing psyche impairment.

From the decision · page 8Dr. O'Dowd opined applicant's current impairment is 18% WPI and attributed 10% WPI to the subsequent injury and 8% WPI to pre-existing injury. (Exhibit 7, p. 26-27) Defendant initially argued that applicant did not raise the issue of psyche as to the industrial injury and did not raise it as to the SIBTF claim. However, Dr. O'Dowd found psyche to be a pre-existing condition, and it was considered as such by the undersigned. Defendant further argues there were no contemporaneous records relating to psychiatric symptoms. However, Dr. O'Dowd indicated that "Prior to the subsequent injury, the applicant reported a pathological pattern of alcohol abuse that began in adolescence, increased steadily throughout his adult life and led to 2 D.U.I.s and incarceration. the applicant also suffered an intense, 1-year depressive period following his

Medical recordsfavours Applicant prevailed

Dr. Chen's reports documented ongoing substance abuse before and after the subsequent injury, supporting pre-existing addiction impairment.

From the decision · page 10Applicant testified he has a history of alcohol and drug problems, that he has received treatment, and that he still struggles with it every day. (MOH/SOE, p. 5: 1-2). On cross-examination, applicant testified he was in an outpatient alcohol recovery program in 2005. He testified the last time he used alcohol was over a year ago, and the last time he used methamphetamines was two years ago, around 2020. He has continued to use alcohol and methamphetamines since his 2015 injury on and off. (MOH/SOE, p. 6: 14-21). Defendant's argument that Dr. Chen's reports are based on inadequate medical history is unfounded. Both reports document current abuse of drugs and alcohol and Dr. Chen opined he did not find that the subsequent injury had worsened his substance abuse condition.

ADJ10373160 · April 25, 2023

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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