ADJ10451056 · June 30, 2022

The WCJ found applicant permanently and totally disabled based on medical evidence from QMEs and treating physicians, and credible testimony. The WCAB affirmed this finding, rejecting defendant's challenges to medical evidence and vocational evidence, and noting the 100% disability rating.

From the decision · page 1Defendant Dollar Thrifty Automotive Group, insured by ACE American Insurance Company, administered by Sedgwick Claims Management Services, Inc. (defendant) seeks reconsideration of the April 12, 2022 Findings of Fact and Award (F&A) wherein, the workers' compensation administrative law judge (WCJ) found that applicant, while employed as a sales representative on May 12, 2016, sustained industrial injury to right upper extremity, right arm and migraines. The WCJ found that applicant was permanently and totally disabled.

Applicant sustained industrial injury to right upper extremity, right arm, and migraines on May 12, 2016, while employed as sales representative.

Favours Applicant prevailed

This injury was the basis for the permanent and total disability claim and findings.

From the decision · page 1Defendant Dollar Thrifty Automotive Group, insured by ACE American Insurance Company, administered by Sedgwick Claims Management Services, Inc. (defendant) seeks reconsideration of the April 12, 2022 Findings of Fact and Award (F&A) wherein, the workers' compensation administrative law judge (WCJ) found that applicant, while employed as a sales representative on May 12, 2016, sustained industrial injury to right upper extremity, right arm and migraines. The WCJ found that applicant was permanently and totally disabled.

Medical evidence from QMEs and treating physicians consistently found applicant permanently and totally disabled with severe functional loss in both upper extremities and neurological impairment.

Favours Applicant prevailed

The medical opinions formed the foundation for the WCJ and WCAB's finding of permanent and total disability.

From the decision · page 3On October 1, 2019, QME Dr. Kaplan reevaluated applicant, and following his clinical examination, issued a report that observed that applicant had lost all "functional use of the left upper extremity," and that applicant had further developed adhesive capsulitis of the right shoulder and de Quervain's tendinitis of the right wrist. Dr. Kaplan concluded that applicant was "totally disabled," and that the QME had "reviewed the Loboeuf [sic] Analysis provided by Broadus and agree with its conclusions." (Ex. DD, report of Daniel Kaplan, M.D., dated October 1, 2019, p. 4.)

Applicant's credible trial testimony corroborated the medical evidence of severe disability and inability to function or care for herself.

Favours Applicant prevailed

The WCJ credited this testimony, which supported the finding of permanent and total disability.

From the decision · page 7We also observe that this reporting is generally consonant with applicant's trial testimony that she cannot "function or take care of herself most days," which the WCJ found to be forthright and fully credible. (Minutes, at 6:2; Report, at p. 11.) We accord to the WCJ's credibility determination the great weight to which it is entitled. (Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312 [35 Cal.Comp.Cases 500].) Additionally, and despite a different diagnosis, QME Dr. Young reviewed the reporting of the orthopedic and pain management physicians, and determined that the neurologically mediated disability should be added to that of the orthopedic disability identified elsewhere in the record. (Ex. BB, report of PQME Rosabel Young, M.D., dated February 18, 2020, p. 38.) The WCJ's rating instructions were premised on the reporting of QMEs Dr. Kaplan and Dr. Young, and reflected the consistent assessment of severe compromise of applicant's functional abilities across a range of medical specialties.

Diagnosed Complex Regional Pain Syndrome (CRPS) in left arm, adhesive capsulitis and tendinitis in right upper extremity, total disability due to absence of use of left upper extremity and marked limitation in right upper extremity. Noted worsening condition due to delayed treatment and need for inpatient hospitalization.

The WCJ and WCAB relied on Dr. Kaplan's detailed clinical findings and opinions on permanency and disability, including his explanation of the diagnosis and impact of delayed treatment.

From the decision · page 2The parties selected Daniel Kaplan, M.D. as the orthopedic QME, who evaluated applicant on November 29, 2016. Dr. Kaplan reported his findings on clinical examination, and discussed applicant's medical history, which the QME asserted was notable for a lack of treatment authorization. (Ex. RR, report of Daniel Kaplan, M.D., dated November 29, 2016, p. 12)

Declared applicant permanent and stationary with total loss of function of left arm and whole person impairment. Concluded applicant totally and permanently disabled.

The WCJ and WCAB credited Dr. Kohan's opinion on total disability and permanency, consistent with other medical evidence and testimony.

From the decision · page 3Applicant's secondary treating physician Jonathan Kohan, M.D. declared her permanent and stationary on March 6, 2019. Dr. Kohan noted a total loss of function of the left arm, and assessed corresponding whole person impairment for the left arm and also to the lumbar spine. (Ex. 3, reports of Jonathan Kohan, M.D., dated May 22, 2017 to August 11, 2020, p. 7.)

Diagnosed hyperesthesia of left arm, disagreed with CRPS diagnosis, but agreed with other medical opinions on neurological impairment and permanency. Added neurologically mediated disability to orthopedic disability.

The WCJ and WCAB gave weight to Dr. Young's neurological evaluation and her agreement to add neurological disability to the orthopedic disability, supporting the total disability finding.

From the decision · page 3The parties selected QME Rosabel Young, M.D. to report on applicant's alleged neurological complaints. Dr. Young evaluated applicant on February 18, 2020, and diagnosed hyperesthesia of the left arm, rather than Complex Regional Pain Syndrome. (Ex. BB, report of PQME Rosabel Young, M.D., dated February 18, 2020.) The QME identified neurological

Found applicant completely disabled in left upper extremity, noted compensable consequences in right upper extremity, daily narcotic pain medication use, and total disability.

The WCJ and WCAB relied on Dr. Nassos' treating physician reports supporting total disability and permanency.

From the decision · page 2Following the injury, applicant received industrial medical treatment, and was diagnosed with a "fracture at the radial head of the left arm with intraarticular extension and about 2 mm of impaction of the broken end in her left elbow." (Ex. BB, report of PQME Rosabel Young, M.D., dated February 18, 2020, p. 4.) Applicant filed an application for adjudication on June 13, 2016, and began treatment with Jonathan Nassos, M.D. Applicant reported to Dr. Nassos that she had received little or no medical treatment immediately following her injury. (Ex. UU, reports of Jonathan Nassos, M.D., dated September 30, 2016, p. 173.) Dr. Nassos requested authorization for a variety of conservative treatment modalities including physical therapy and medication. (Id. at p. 176.) On December 2, 2016, Dr. Nassos diagnosed Complex Regional Pain Syndrome (CRPS) in the left arm, and requested authority for referral to pain management. (Id. at 157.) Dr. Nassos continued to request various treatment modalities, but also reported that the requests for authorization were denied. (Id. at 134.)

California Labor Code

Labor Code section 4056

Defendant's claim for reduction in permanent disability under LC 4056 was rejected due to lack of competent expert evidence and reliance on excluded evidence.

From the decision · page 7Defendant also contends that applicant's failure to "fully participate" in physical therapy due to pain-related complaints was unreasonable, and entitles defendant to a reduction in disability. (Petition, at 17:1.) However, "the question as to whether the employee has acted reasonably or not in refusing treatment is a question of fact upon which the opinion of the commission, based upon expert medical or surgical advice, is final...[t]he commission's power is, of course, not arbitrary, and its determination must be based upon competent expert evidence, unless the issue pertains to a problem properly falling within the scope of judicial knowledge. (Southern Cal. Edison Co. v. Industrial Acc. Com. (1945) 75 Cal.App. 709 [10 Cal. Comp. Cases 162].) Here, defendant puts forward no competent expert evidence that speaks to the issue of alleged failure to fully participate, and further relies on evidence that has been excluded from the record. (Petition, at 17:17; Exhibit M, Physical therapy notes from Sherry Simsuangco, DPT, dated April 24, 2017.) Accordingly, we find no merit in this argument.

Applicant's credible trial testimony about inability to function or care for herself most days.

From the decision · page 7We also observe that this reporting is generally consonant with applicant's trial testimony that she cannot "function or take care of herself most days," which the WCJ found to be forthright and fully credible. (Minutes, at 6:2; Report, at p. 11.) We accord to the WCJ's credibility determination the great weight to which it is entitled. (Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312 [35 Cal.Comp.Cases 500].) Additionally, and despite a different diagnosis, QME Dr. Young reviewed the reporting of the orthopedic and pain management physicians, and determined that the neurologically mediated disability should be added to that of the orthopedic disability identified elsewhere in the record. (Ex. BB, report of PQME Rosabel Young, M.D., dated February 18, 2020, p. 38.) The WCJ's rating instructions were premised on the reporting of QMEs Dr. Kaplan and Dr. Young, and reflected the consistent assessment of severe compromise of applicant's functional abilities across a range of medical specialties.