ADJ10641716 — California WCAB decision

ADJ10641716 · October 7, 2022

WCAB rescinded the WCJ decision in ADJ10641716 and issued a new decision finding industrial injury to cardiovascular system and skin with temporary and permanent disability; WCAB amended the WCJ decision in ADJ10749935 to affirm industrial injury but deny temporary disability and increase permanent disability award

Issues decided

Medical opinions weighed

Authorities named

District office

Marina Del Rey

What the panel ordered

Petitions for reconsideration of two separate WCJ decisions granted; WCJ Report and Recommendation filed; WCJ decisions rescinded or amended by WCAB panel

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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.

AOE/COEApplicant prevailedcardiovascular system · skin

Applicant's coronary heart disease and skin scarring were found industrial based on medical opinion and testimony establishing work stress as a contributing factor within two years of the cardiac event.

From the decision · page 2As explained below, we rescind the WCJ's decision in case ADJ10641716 and issue a new decision reflecting that applicant sustained industrial injury in the forms of coronary heart disease and skin scarring causing temporary disability from November 11, 2015 to February 21, 2016, and 40% permanent disability. With regard to case ADJ10749935, we will affirm the finding of industrial injury, but we amend the decision to reflect that applicant did not prove entitlement to temporary disability. We also amend the decision to reflect that applicant sustained permanent disability of 21%, as it appears that the 8% referenced in the decision was the unadjusted whole person impairment rather than the permanent disability after adjustment for the 1.4 multiplier, occupation and age. I. Applicant's Petition in case ADJ10641716

The facts that decided it

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

Applicant experienced workplace stress within two years of heart surgery

Favours Applicant prevailed

Supported industrial causation of coronary heart disease and skin injury

From the decision · page 3However, at his January 11, 2018 deposition, Dr. Capen clarified that industrial causation would still apply if applicant experienced work stress within two years of the November 2015 heart surgery. Dr. Capen testified, "[T]he medical literature is based on patient-reported stress within two years of the cardiac event, and he may have had a stress free interval. If his stress had occurred within those two years, it would still be applicable." (January 11, 2018 deposition at pp. 19-20.)

Applicant was off work from November 11, 2015 to February 21, 2016

Favours Applicant prevailed

Supported temporary disability entitlement for heart injury

From the decision · page 3B. Temporary Disability Dr. Capen opined that applicant was temporarily totally disabled from November 11, 2015 through February 21, 2016 as a result of heart injury. (August 3, 2017 report at p. 51.) These dates are consistent with applicant's testimony that he was off work for three months after his surgery and returned to work in February. (Minutes of Hearing and Summary of Evidence of February 13, 2019 trial at p. 9.) We therefore find temporary disability corresponding to those dates.

Applicant worked without wage loss from return after heart surgery until retirement

Favours Defendant prevailed

Supported denial of temporary disability for orthopedic injury

From the decision · page 6However, we will delete any finding of temporary disability. Applicant testified that he worked from his return from his heart temporary disability on February 21, 2016 until his retirement in July of 2017. (Minutes of Hearing and Summary of Evidence of February 13, 2019 trial at p. 9.) There was no evidence or allegation that applicant retired due to any disability or defendant not accommodating applicant's work restrictions. In State Compensation Ins. Fund v. Workers' Comp.Appeals Bd. (Rodarte) (2004) 119 Cal.App.4th 998, 1003 [69 Cal.Comp.Cases 579], the Court of Appeal made clear that neither medical treatment nor modified work restrictions without wage loss, in and of themselves, are sufficient to constitute "disability." "[T]here is no compensable temporary disability until the worker suffers wage loss." (Rodarte, 119 Cal.App.4th at p. 1003.) "[T]emporary disability indemnity is payable during the injured worker's healing period from the injury until the worker has recovered sufficiently to return to work, or until his/her condition reaches a permanent and stationary status." (Huston v. Workers' Comp. Appeals Bd. (1979) 95 Cal.App.3d 856, 868 [44 Cal.Comp.Cases 798].) Here, applicant did not present any evidence supporting wage loss as a result of his orthopedic injury. We therefore find that applicant did not prove entitlement to temporary disability in this case.

Medical opinion favored treating physician over defense QME for orthopedic injury

Favours Applicant prevailed

Supported affirmation of industrial injury and permanent disability award

From the decision · page 6record compelling enough for us to reject the WCJ's determination that the opinions of Dr. Tabibian were more persuasive than the opinions of Dr. Woods. We therefore affirm the finding of industrial injury.

The rules the panel named

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

Jones v. Workmen's Comp. Appeals Bd. (1968) 68 Cal.2d 476

Applied to the WCJ's discretion to choose among conflicting medical opinions

From the decision · page 5The relevant and considered opinion of one physician, though inconsistent with other medical opinions, may constitute substantial evidence. (Le Vesque v. Workmen's Comp. Appeals Bd. (1970) 1 Cal.3d 627, 639 [35 Cal.Comp.Cases 16].) The WCJ is empowered to choose among conflicting medical reports and rely on those deemed most persuasive. (Jones v. Workmen's Comp. Appeals Bd. (1968) 68 Cal.2d 476, 479 [33 Cal.Comp.Cases 221].) There is nothing in the

Labor Code Section 4663

Applied to apportionment of permanent disability

From the decision · page 4Apportionment of the cause of the permanent impairment due to coronary artery disease is considered pursuant to Labor Code Section 4663 as clarified by the Escobedo decision. In my opinion, it is reasonably medically probable that the coronary artery disease developed as a result of non-industrial factors. That being said, the stress occurring in the workplace as the applicant has described tipped the condition over the edge and resulted in the need for bypass surgery. On that basis, I believe there is a reasonably medial probable basis to apportion 75% of the cause of the permanent impairment/disability to non-industrial factors and apportion 25% to the perceived workplace stress as described above.

Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604

Applied to requirements for substantial medical evidence on apportionment

From the decision · page 4asymptomatic prior conditions (see, e.g. Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604,

Huston v. Workers' Comp. Appeals Bd. (1979) 95 Cal.App.3d 856

Applied to temporary disability entitlement period

From the decision · page 3B. Temporary Disability Dr. Capen opined that applicant was temporarily totally disabled from November 11, 2015 through February 21, 2016 as a result of heart injury. (August 3, 2017 report at p. 51.) These dates are consistent with applicant's testimony that he was off work for three months after his surgery and returned to work in February. (Minutes of Hearing and Summary of Evidence of February 13, 2019 trial at p. 9.) We therefore find temporary disability corresponding to those dates.

Le Vesque v. Workmen's Comp. Appeals Bd. (1970) 1 Cal.3d 627

Applied to the WCJ's discretion to choose among conflicting medical opinions

From the decision · page 5The relevant and considered opinion of one physician, though inconsistent with other medical opinions, may constitute substantial evidence. (Le Vesque v. Workmen's Comp. Appeals Bd. (1970) 1 Cal.3d 627, 639 [35 Cal.Comp.Cases 16].) The WCJ is empowered to choose among conflicting medical reports and rely on those deemed most persuasive. (Jones v. Workmen's Comp. Appeals Bd. (1968) 68 Cal.2d 476, 479 [33 Cal.Comp.Cases 221].) There is nothing in the

State Compensation Ins. Fund v. Workers' Comp.Appeals Bd. (Rodarte) (2004) 119 Cal.App.4th 998

Applied to deny temporary disability without wage loss evidence

From the decision · page 6However, we will delete any finding of temporary disability. Applicant testified that he worked from his return from his heart temporary disability on February 21, 2016 until his retirement in July of 2017. (Minutes of Hearing and Summary of Evidence of February 13, 2019 trial at p. 9.) There was no evidence or allegation that applicant retired due to any disability or defendant not accommodating applicant's work restrictions. In State Compensation Ins. Fund v. Workers' Comp.Appeals Bd. (Rodarte) (2004) 119 Cal.App.4th 998, 1003 [69 Cal.Comp.Cases 579], the Court of Appeal made clear that neither medical treatment nor modified work restrictions without wage loss, in and of themselves, are sufficient to constitute "disability." "[T]here is no compensable temporary disability until the worker suffers wage loss." (Rodarte, 119 Cal.App.4th at p. 1003.) "[T]emporary disability indemnity is payable during the injured worker's healing period from the injury until the worker has recovered sufficiently to return to work, or until his/her condition reaches a permanent and stationary status." (Huston v. Workers' Comp. Appeals Bd. (1979) 95 Cal.App.3d 856, 868 [44 Cal.Comp.Cases 798].) Here, applicant did not present any evidence supporting wage loss as a result of his orthopedic injury. We therefore find that applicant did not prove entitlement to temporary disability in this case.

ADJ10641716 · October 7, 2022

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