ADJ10452116 — California WCAB decision

What the panel ordered

Petition for Reconsideration denied.

Petition for Reconsideration filed by defendant Liberty Mutual Insurance Company challenging the finding of industrial injury; WCJ report adopted except as noted; petition denied by WCAB panel.

Read the official decision →

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.

Psyche AOE/COEApplicant prevailedpsyche

The WCJ and WCAB found the reports and deposition testimony of Drs. Curtis, Schwafel, and Windman constitute substantial medical evidence establishing compensability of the psychiatric injury as predominantly caused by employment events, rejecting Dr. Cohen's contrary apportionment opinion as vague and unsupported.

From the decision · page 3We agree with the WCJ that the opinions of Thomas Curtis, M.D., Judith Schwafel, Ph.D., and Gayle Windman, Ph.D., are substantial medical evidence upon which the WCJ properly relied in finding applicant's psychiatric injury was predominantly caused by the industrial injury and thus compensable. It is well-established that the relevant and considered opinion of one physician may constitute substantial evidence, even if inconsistent with other medical opinions. (Place v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 372, 378-379 [35 Cal.Comp.Cases 525].) In order to constitute substantial evidence, a medical opinion must be predicated on reasonable medical probability and it must set forth the reasoning in support of its conclusions. (Escobedo v. Marshalls (2005) 70 Cal. Comp. Cases 604, 621.) A medical opinion is not substantial evidence when based on incorrect facts, history or legal theory, or surmise, speculation, conjecture or guess. (Place v. Workers' Comp Appeals Bd. (Place) (1970) 3 Cal.3d 372, 378 [35 Cal.Comp.Cases 525]; Escobedo v. Marshalls (Escobedo) (2005) 70 Cal.Comp.Cases 604, 620-621.)

The facts that decided it

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

Reports and deposition testimony of Drs. Curtis, Schwafel, and Windman establish compensability of psychiatric injury as predominantly caused by employment events.

Favours Applicant prevailed

These opinions met the substantial medical evidence threshold and were relied upon by the WCJ and WCAB to find compensability.

From the decision · page 3We agree with the WCJ that the opinions of Thomas Curtis, M.D., Judith Schwafel, Ph.D., and Gayle Windman, Ph.D., are substantial medical evidence upon which the WCJ properly relied in finding applicant's psychiatric injury was predominantly caused by the industrial injury and thus compensable. It is well-established that the relevant and considered opinion of one physician may constitute substantial evidence, even if inconsistent with other medical opinions. (Place v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 372, 378-379 [35 Cal.Comp.Cases 525].) In order to constitute substantial evidence, a medical opinion must be predicated on reasonable medical probability and it must set forth the reasoning in support of its conclusions. (Escobedo v. Marshalls (2005) 70 Cal. Comp. Cases 604, 621.) A medical opinion is not substantial evidence when based on incorrect facts, history or legal theory, or surmise, speculation, conjecture or guess. (Place v. Workers' Comp Appeals Bd. (Place) (1970) 3 Cal.3d 372, 378 [35 Cal.Comp.Cases 525]; Escobedo v. Marshalls (Escobedo) (2005) 70 Cal.Comp.Cases 604, 620-621.)

Dr. Cohen's apportionment opinion was vague, conclusory, and unsupported, thus rejected.

Favours Applicant prevailed

Rejection of Dr. Cohen's opinion allowed reliance on other medical opinions establishing compensability.

From the decision · page 8taking a detailed history from the applicant Dr. Cohen apportions 0% of applicant's current psychiatric disability to applicant's past psychiatric history; 0% to applicant being assaulted by an ex-girlfriend; 0% to applicant's ex-wife interfering with applicant visiting his son; 0% to applicant being a victim of an assault and robbery; and 0% to applicant being twice married and divorced. Dr. Cohen fails to address whether the applicant's work stress as a result of being understaffed while working for Staff Pro Inc., or applicant's alleged harassment and discrimination at Allied Barton contributed to his psychiatric impairment. Dr. Cohen appears to give no weight to the emails from applicant to his supervisors at Staff Pro complaining about being understaffed during events that took place in March and April of 201 6, shortly before applicant suffered a stroke. Based on Dr. Cohen's conclusory findings the Court finds Dr. Cohen's reporting does not meet the substantial medical evidence threshold and cannot be relied upon to issue a finding.

Employment records confirm understaffing and harassment issues contributing to psychiatric injury.

Favours Applicant prevailed

Supported finding that employment events were predominant cause of psychiatric injury.

From the decision · page 8Defendant's argument that applicant's psychiatric injury was the result of lawful, nondiscriminatory personnel actions is not supported by the evidence. Defendant submitted employment records from Staff Pro Inc. that confirm applicant was indeed understaffed and unable to take emergency restroom breaks at work events in March and April of 2016 (Exhibit D). The

Dr. Moore's reports establish that stressful work environment contributed to and caused approximately 20% of applicant's hypertension and stroke injury.

Favours Applicant prevailed

Supported compensability of stroke injury arising out of employment.

From the decision · page 9As discussed above, applicant filed an Application for Adjudication of Claim alleging he sustained a cumulative trauma injury while employed by both employers Allied Barton and Staff Pro, Inc., during the period March 1 8, 2016, through April 5, 2016 that caused an injury to his psyche, circulatory system, internal, stress, stroke, heart attack, high blood pressure, paralysis of the right side of the body including right arm, right leg, right upper extremity. Following Labor Code 4060 and 4062.2 applicant was examined by Panel Qualified Medical Examiner in Neurology Dr. Robert Moore who issued three reports dated December 10, 2018; March 4, 2020; and May 19, 2023 finding the predominate cause of applicant's stroke is due to his poorly controlled blood pressure. However, in his most recent supplemental report Dr. Moore states within reasonable medical probability approximately 20% of applicant's hypertension is related to chronic stress. Dr.

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 · psychiatry

Found applicant sustained an industrially related psychiatric injury; apportioned 55% of psychiatric impairment to employment at Staff Pro, 15% to overall Staff Pro employment, 10% to Allied Barton, and 20% to pre-existing nonindustrial condition.

Reports and deposition testimony met substantial medical evidence threshold establishing compensability of psychiatric injury.

From the decision · page 8To rebut Panel QME Dr. Cohen's findings applicant submitted several reports from the Hamlin Psyche Center authored by Dr. Thomas Curtis, Dr. Judith Schwafel, and Dr. Gayle Windman. Dr. Thomas Curtis, Dr. Judith Schwafel, and Dr. Gayle Windman all finding applicant sustained an industrially related psychiatric injury as a result of his employment at both employers Allied Barton and Staff Pro, Inc. The deposition of Dr. Curtis was taken on November 16, 2017 wherein Dr. Curtis explains that while applicant was stressed at both employers he would attribute the stroke to Staff Pro because applicant was disturbed about Staff Pro at the time of the stroke (Exhibit 1 3, page 20 line 9). Dr.

otherRelied upon · psychiatry

Found applicant sustained an industrially related psychiatric injury as a result of employment.

Reports met substantial medical evidence threshold establishing compensability of psychiatric injury.

From the decision · page 8To rebut Panel QME Dr. Cohen's findings applicant submitted several reports from the Hamlin Psyche Center authored by Dr. Thomas Curtis, Dr. Judith Schwafel, and Dr. Gayle Windman. Dr. Thomas Curtis, Dr. Judith Schwafel, and Dr. Gayle Windman all finding applicant sustained an industrially related psychiatric injury as a result of his employment at both employers Allied Barton and Staff Pro, Inc. The deposition of Dr. Curtis was taken on November 16, 2017 wherein Dr. Curtis explains that while applicant was stressed at both employers he would attribute the stroke to Staff Pro because applicant was disturbed about Staff Pro at the time of the stroke (Exhibit 1 3, page 20 line 9). Dr.

otherRelied upon · psychiatry

Found applicant sustained an industrially related psychiatric injury as a result of employment.

Reports met substantial medical evidence threshold establishing compensability of psychiatric injury.

From the decision · page 8To rebut Panel QME Dr. Cohen's findings applicant submitted several reports from the Hamlin Psyche Center authored by Dr. Thomas Curtis, Dr. Judith Schwafel, and Dr. Gayle Windman. Dr. Thomas Curtis, Dr. Judith Schwafel, and Dr. Gayle Windman all finding applicant sustained an industrially related psychiatric injury as a result of his employment at both employers Allied Barton and Staff Pro, Inc. The deposition of Dr. Curtis was taken on November 16, 2017 wherein Dr. Curtis explains that while applicant was stressed at both employers he would attribute the stroke to Staff Pro because applicant was disturbed about Staff Pro at the time of the stroke (Exhibit 1 3, page 20 line 9). Dr.

QMERelied upon · neurology

Found predominant cause of stroke was poorly controlled blood pressure; apportioned 20% of hypertension to chronic stress related to work; accepted as substantial medical evidence that stressful work environment contributed to stroke injury.

Reports accepted as substantial medical evidence establishing compensability of stroke injury.

From the decision · page 9As discussed above, applicant filed an Application for Adjudication of Claim alleging he sustained a cumulative trauma injury while employed by both employers Allied Barton and Staff Pro, Inc., during the period March 1 8, 2016, through April 5, 2016 that caused an injury to his psyche, circulatory system, internal, stress, stroke, heart attack, high blood pressure, paralysis of the right side of the body including right arm, right leg, right upper extremity. Following Labor Code 4060 and 4062.2 applicant was examined by Panel Qualified Medical Examiner in Neurology Dr. Robert Moore who issued three reports dated December 10, 2018; March 4, 2020; and May 19, 2023 finding the predominate cause of applicant's stroke is due to his poorly controlled blood pressure. However, in his most recent supplemental report Dr. Moore states within reasonable medical probability approximately 20% of applicant's hypertension is related to chronic stress. Dr.

The rules the panel named

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

Labor Code section 3208.3(b)(1) and (h)

To establish compensability of psychiatric injury, applicant must prove by preponderance of evidence that actual events of employment were predominant cause of injury; no compensation if injury substantially caused by lawful, nondiscriminatory, good faith personnel action.

Applied to determine compensability of psychiatric injury.

From the decision · page 2We now turn to the merits. In order to establish the compensability of a psychiatric injury under Labor Code section 3208.3, an injured worker has the burden of establishing "by a preponderance of the evidence that actual events of employment were predominant as to all causes combined of the psychiatric injury." (Lab. Code, § 3208.3(b)(1).) "Predominant as to all causes"

Rolda v. Pitney Bowes, Inc. (2001) 66 Cal.Comp.Cases 241 (Appeals Board en banc)

Sequential method to analyze personnel action defense in psychiatric injury cases: determine actual events of employment, industrial causation, personnel actions, lawfulness, and medical causation of personnel actions.

Applied to analyze personnel action defense in psychiatric injury claim.

From the decision · page 7predominant as to all causes combined of the psychiatric injury. (Labor Code Section 3208.3(b)). Additionally, no compensation shall be paid by an employer for a psychiatric injury if the injury was substantially caused by alawful, nondiscriminatory, good faith personnel action (Labor Code Section 3208.3(h)). In Rolda v. Pitney Bowes (2001) 66 Cal.Comp.Cases 24 1 (appeals board en bane), the appeals board set out a sequential method by which to analyze whether the legal, factual and medical requirements of this affirmative defense have been met, in a given case. The board summarized the analysis as follows:

South Coast Framing v. WCAB (Clark) (2015) 80 Cal Comp Cases 489

Employment is a contributing cause of injury if without it the injury would not have occurred.

Applied to establish compensability of stroke injury.

From the decision · page 9In the case of South Coast Framing v. WCAB (Clark),) (2015) 80 Cal Comp Cases 489, the California Supreme Court stated in relevant parts, "All that is required [to prove industrial injury] is that the employment be one of the contributing causes without which the injury would not have occurred."

What proof carried it

The evidence the panel weighed, by kind.

Documentary evidencefavours Applicant prevailed

Emails from applicant to supervisors at Staff Pro complaining about understaffing during events in March and April 2016

From the decision · page 8taking a detailed history from the applicant Dr. Cohen apportions 0% of applicant's current psychiatric disability to applicant's past psychiatric history; 0% to applicant being assaulted by an ex-girlfriend; 0% to applicant's ex-wife interfering with applicant visiting his son; 0% to applicant being a victim of an assault and robbery; and 0% to applicant being twice married and divorced. Dr. Cohen fails to address whether the applicant's work stress as a result of being understaffed while working for Staff Pro Inc., or applicant's alleged harassment and discrimination at Allied Barton contributed to his psychiatric impairment. Dr. Cohen appears to give no weight to the emails from applicant to his supervisors at Staff Pro complaining about being understaffed during events that took place in March and April of 201 6, shortly before applicant suffered a stroke. Based on Dr. Cohen's conclusory findings the Court finds Dr. Cohen's reporting does not meet the substantial medical evidence threshold and cannot be relied upon to issue a finding.

Documentary evidencefavours Applicant prevailed

Employment records from Staff Pro confirming understaffing and inability to take emergency restroom breaks in March and April 2016

From the decision · page 8Defendant's argument that applicant's psychiatric injury was the result of lawful, nondiscriminatory personnel actions is not supported by the evidence. Defendant submitted employment records from Staff Pro Inc. that confirm applicant was indeed understaffed and unable to take emergency restroom breaks at work events in March and April of 2016 (Exhibit D). The

Documentary evidencefavours Applicant prevailed

Records and emails from Allied Barton showing applicant raised issues of harassment and retaliation prior to CVA injury

ADJ10452116 · October 7, 2024

What the panel ordered

What was disputed, and how it came out

Your case already resembles someone else’s. Find whose.

The facts that decided it

What the panel did with the medical opinions

The rules the panel named

What proof carried it

About this page