ADJ10757289 — California WCAB decision

What the panel ordered

Petition for Reconsideration denied; Joint Findings and Award affirmed.

Defendant City of San Jose sought reconsideration of the Joint Findings and Award issued August 24, 2021, which found applicant sustained industrial cumulative trauma injuries and permanent total disability; the WCJ recommended denial of the petition for reconsideration.

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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.

Permanent total disabilityApplicant prevailedback · bladder · neck · left upper arm · retrograde ejaculations · sleep disturbance · tinnitus

The WCJ found applicant credible and relied on the AME Dr. Duncan's medical opinion based on applicant's subjective symptoms and vocational expert Frank Diaz's opinion, concluding applicant is permanently totally disabled due to bladder cancer and related impairments, supported by substantial evidence despite lack of urodynamic testing.

From the decision · page 1Defendant City of San Jose, permissibly self-insured, seeks reconsideration of the Joint Findings and Award, issued August 24, 2021, wherein the workers' compensation administrative law judge (WCJ) found that applicant, while employed as a police officer, sustained industrial cumulative trauma injuries over the period ending November 16, 2016, to his back, and over the period ending January 19, 2017, in the form of basal cell carcinoma (neck), squamous cell carcinoma (left upper arm), cancer of the bladder, retrograde ejaculations, sleep disturbance, and tinnitus. The WCJ found the injuries caused permanent total disability, finding applicant rebutted the scheduled rating based on vocational evidence.

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.

AMERelied upon · urology

Dr. Duncan rated bladder cancer impairment at 60% WPI and opined applicant is not capable of working in any capacity due to frequency and incontinence caused by bladder cancer, relying on applicant's credible subjective complaints despite lack of urodynamic testing.

The WCJ found applicant credible and accepted Dr. Duncan's opinion as substantial medical evidence despite the absence of urodynamic testing, based on applicant's detailed and credible testimony of symptoms and medical history.

From the decision · page 6AME Dr. Duncan issued fifteen reports between 05-30-2017 and 12-07- 2020. Initially, applicant was rated at Class II for bladder cancer with a rating of 40% WPI because at the time, he did not have loss of bladder control and was still working at modified duty. (Ex. O.) Upon reevaluation on 01-10-2019, Dr. Duncan elevated the rating to Class III at 70% WPI based on no control of bladder and incontinence. (Ex. K at 5, 6.) Dr. Duncan also reported that it would not be feasible for Applicant to work in any capacity because of frequency and incontinence. (Id. at 7.) In a supplemental report, Dr. Duncan indicated that urodynamic studies would be appropriate to assess Applicant's level of incontinence. (Ex. J at 2.) Urodynamic testing is used to study how the bladder and urethra are performing the job of storing and releasing urine. (Ex. D at 2.) Such testing is used to diagnose patients with urinary incontinence. (Ex. D at 3.) Applicant claimed that the urodynamic studies were too painful to complete. (Ex. H at 2.) As a result, Dr. Duncan suggested two non-invasive alternatives to the urodynamic studies: uroflometry or post-void residual measurement. (Ex. G at 2.)

AMENot substantial evidence

Dr. Moses provided a stipulated 13% permanent disability rating for cumulative trauma to the back with no dispute.

From the decision · page 4In case number ADJ10757289, applicant sustained a cumulative trauma to his back. The AME is Dr. Max Moses and the parties stipulated to a corrected date of injury per the AME is CT ending 11-16-2016 as well as 13% permanent disability with a need for future medical treatment. There is no issue pertaining to this injury or body part.

The rules the panel named

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

Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312, 318-319

Credibility determinations of the WCJ are due great weight and may only be rejected if unsupported by substantial evidence.

The WCJ's credibility findings supported reliance on applicant's subjective complaints as substantial evidence.

From the decision · page 2Additionally, we note that the WCJ's determination was predicated in part upon her finding that applicant was a credible witness, which supported the AME's reliance upon applicant's subjective complaints. The WCJ's credibility determinations are due great weight because the WCJ had the opportunity to observe applicant's testimony and judge its veracity. (Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312, 318-319 [35 Cal.Comp.Cases 500, 504-505].) These credibility determinations may only be rejected where they are not supported by substantial evidence. (Ibid.) Defendant has offered no basis to challenge the veracity of applicant's testimony.

Qualcomm, Inc. v. Workers' Comp. Appeals Bd. (Brown) (2019) 84 Cal.Comp.Cases 531

An AME's medical expertise includes assessing the real-life impact of impairments on vocational capacity.

The AME's opinion on vocational incapacity was considered substantial evidence when combined with vocational expert testimony.

From the decision · page 2Furthermore, we disagree with defendant's assertion that the AME in urology was unqualified to offer an opinion on applicant's ability to perform work in the open labor market, where his assessment is based upon his medical expertise in evaluating the real-life impact of applicant's impairments caused by his industrial injury. His opinion, considered in combination with the vocational evidence, provides additional substantial evidence of applicant's lack of vocational feasibility. (See Qualcomm, Inc. v. Workers' Comp. Appeals Bd. (Brown) (2019) 84 Cal.Comp.Cases 531 [writ denied]; Barrett Business Services, Inc. v. Workers' Comp. Appeals Bd. (Gallagher) (2013) 78 Cal. Comp. Cases 1318 [writ denied].)

ADJ10757289 · October 29, 2021

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