ADJ11140372 — California WCAB decision

What the panel ordered

Decision of June 17, 2022 rescinded; matter returned to WCJ for further proceedings and decision.

Petition for reconsideration granted; prior WCJ decision rescinded and matter remanded for further proceedings and decision.

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.

Reconsideration / removalRemanded

The Appeals Board found that the medical evidence was insufficiently developed to make final decisions on complex issues, and thus vacated the prior decision and remanded for further development of the record.

From the decision · page 3The following information shall be contained in the introduction of the report: Defendant1 has filed a timely and verified petition for reconsideration (Petition) to this judge's decision on July 1, 2022. That decision, which was served on June 17, 2022, issued a 76% award without Benson2 apportionment amongst a specific injury and a cumulative injury. Defendant has several complaints about the decision, and urges separate awards with much lower permanent disability. Applicant3 has filed a timely and verified answer (Answer) to the Petition. Applicant generally supports the decision, although she also urges that the award should be increased due to a mistaken nonindustrial apportionment for her psyche injury. (Defendant urges that there should be no award on permanent disability at all for psyche.) As both parties have urged some action by the appeals board, this judge has submitted this report and cases for the board's review. However, this judge recommends that the board vacate the findings and award, and remand this matter for further development of the record. As will be summarized, both parties are arguing about complex issues over which there is no substantial medical evidence to make final decisions.

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 · psyche

Found 14% WPI for psyche injury with 10% nonindustrial apportionment; apportioned 65% industrial causation to physical injuries and 25% to personnel actions.

From the decision · page 78. Psyche Dr. Myron Nathan served as the parties' psyche AME. He found that applicant sustained 14% WPI.20 Regarding apportionment, Dr. Nathan found 10% apportionment to nonindustrial factors of disability.21 Regarding the industrial factors of causation, Dr. Nathan specified: "[Of industrial causation, 65% is due to] permanent physical industrial injury/injuries and disability which are inextricably intertwined and deferred to the trier of fact.... [to] only her neurologic and orthopedic disability. 25% of the applicant's permanent disability has been caused as a result of the lack of personnel actions and personnel actions."22 D. Summary of Evidence re. Date of Injury Cumulative Trauma Period The parties disputed the correct cumulative trauma (CT) period, which would in part determine the appropriateness of providing permanent disability indemnity due to applicant's psyche injury.

AMERelied upon · orthopedic

Found whole person impairment (WPI) percentages for lumbar spine, cervical spine, right and left upper extremities; found disability entirely industrial with no apportionment among injury dates.

From the decision · page 5Dr. Peter Newton served as the parties' orthopedic agreed medical examiner (AME),

AMERelied upon · internal medicine

Found WPI for gastrointestinal and respiratory issues with varying apportionment; could not apportion among injury dates.

From the decision · page 5Dr. Arthur Lipper served as the parties' internal AME. Regarding applicant's

AMERelied upon · dental

Found 4% WPI to face and dental issues without nonindustrial apportionment; could not apportion among injury dates.

From the decision · page 6Dr. Jeffrey Miller served as the parties' dental AME. He found that applicant sustained 4%

AMERelied upon · neurological

Found cognitive impairment and headache WPI with some nonindustrial apportionment; causation tied to specific injury in July 2015.

From the decision · page 6Dr. Lawrence Richman served as the parties' neurological AME. Regarding cognitive

AMERelied upon · rheumatological

Found no industrial injury on a rheumatological basis.

From the decision · page 6Dr. Rodney Bluestone served as the parties' rheumatological AME. He concluded that applicant had no industrial injury on a rheumatological basis.17 Dr. Seymour Levine opined differently, finding permanent disability due to sleep and arousal disorder18.

QMERelied upon · ophthalmological

Found no industrial causation for eye injury in 2010 report.

From the decision · page 6Dr. Marvin Teitelbaum served as the parties' ophthalmological qualified medical examiner (QME). From a report in 2010, it appears the doctor found no industrial causation.19

The rules the panel named

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

California Labor Code

Labor Code section 4662

Governs permanent disability indemnity and apportionment issues.

From the decision · page 3The following information shall be contained in the introduction of the report: Defendant1 has filed a timely and verified petition for reconsideration (Petition) to this judge's decision on July 1, 2022. That decision, which was served on June 17, 2022, issued a 76% award without Benson2 apportionment amongst a specific injury and a cumulative injury. Defendant has several complaints about the decision, and urges separate awards with much lower permanent disability. Applicant3 has filed a timely and verified answer (Answer) to the Petition. Applicant generally supports the decision, although she also urges that the award should be increased due to a mistaken nonindustrial apportionment for her psyche injury. (Defendant urges that there should be no award on permanent disability at all for psyche.) As both parties have urged some action by the appeals board, this judge has submitted this report and cases for the board's review. However, this judge recommends that the board vacate the findings and award, and remand this matter for further development of the record. As will be summarized, both parties are arguing about complex issues over which there is no substantial medical evidence to make final decisions.

California Labor Code

Labor Code section 5412

Governs date of injury and cumulative trauma period determinations.

From the decision · page 3The following information shall be contained in the introduction of the report: Defendant1 has filed a timely and verified petition for reconsideration (Petition) to this judge's decision on July 1, 2022. That decision, which was served on June 17, 2022, issued a 76% award without Benson2 apportionment amongst a specific injury and a cumulative injury. Defendant has several complaints about the decision, and urges separate awards with much lower permanent disability. Applicant3 has filed a timely and verified answer (Answer) to the Petition. Applicant generally supports the decision, although she also urges that the award should be increased due to a mistaken nonindustrial apportionment for her psyche injury. (Defendant urges that there should be no award on permanent disability at all for psyche.) As both parties have urged some action by the appeals board, this judge has submitted this report and cases for the board's review. However, this judge recommends that the board vacate the findings and award, and remand this matter for further development of the record. As will be summarized, both parties are arguing about complex issues over which there is no substantial medical evidence to make final decisions.

ADJ11140372 · September 27, 2023

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