ADJ11296458 · November 4, 2024

The WCAB found the medical record insufficient and the medical opinions conflicting regarding the compensability of the left knee injury and the permanent disability rating, warranting further development and reconsideration.

From the decision · page 4Given the disparity of the medical opinions in the record and questions regarding whether the medical opinions utilized the correct legal standard, we will grant reconsideration, rescind the WCJ's decision and return this matter to the trial level for further development of the record and decision. In the further proceedings, if the parties cannot agree to an agreed medical evaluator, the WCJ should consider appointing an independent medical evaluator (Lab. Code, § 5701.)

Medical opinions conflicted on compensability of left knee injury and permanent disability rating

Favours Applicant prevailed

Led to granting reconsideration and remanding for further medical development

From the decision · page 4Given the disparity of the medical opinions in the record and questions regarding whether the medical opinions utilized the correct legal standard, we will grant reconsideration, rescind the WCJ's decision and return this matter to the trial level for further development of the record and decision. In the further proceedings, if the parties cannot agree to an agreed medical evaluator, the WCJ should consider appointing an independent medical evaluator (Lab. Code, § 5701.)

Found compensable permanent disability only for right knee meniscal tear; left knee meniscectomy was non-industrial; did not believe favoring one extremity could cause meniscal tear in the opposite extremity.

Based on clinical evaluation and medical record review, did not find left knee injury industrially related.

From the decision · page 3Ultimately, Dr. Henrichsen found that the only compensable permanent disability attributable to the industrial injury was the meniscal tear while going up the stairs. Dr. Henrichsen found that the aggravation of the plantar fasciitis had resolved and that the other right lower extremity impairment was non-industrial. (July 3, 2019 report at p. 2.) Applicant also complained of left knee symptoms theorizing that her left knee symptoms were caused by her June 2018 fall or by favoring her right knee. Applicant eventually underwent a meniscectomy in March of 2020. (June 25, 2020 report at p. 2.) Dr. Henrichsen opined that the left knee meniscectomy was non- industrial, explaining that it was not caused by the June 2018 fall because there was no record of applicant complaining of left knee symptoms after the fall, and that his own clinical evaluation during this period did not evidence any meniscal tear. (March 12, 2021 report at p. 5.) Dr. Henrichsen also opined that any left knee injury was not a result of favoring the right knee because the right knee had significantly improved by the time of the left knee complaints and because Dr. Henrichsen did not believe that favoring one extremity could produce a meniscal tear in the opposite extremity. (March 12, 2021 report at p. 5; July 19, 2022 report at pp. 16-17; My 15, 2023 report at p. 4.)

Attributed 90% of right knee impairment to industrial factors; found industrial injury to left knee due to overcompensation; recommended pain add-ons for both knees.

Disputed the non-industrial finding for left knee, attributing impairment to industrial causes and overcompensation.

From the decision · page 3Applicant was also evaluated by secondary treating physician Ritch V. Jacobs, D.C., who in addition to the history taken by Dr. Henrichsen also documented a later fall injuring the left knee. (January 3, 2023 report at p. 2.) Dr. Jacobs found whole person impairment of 7% with regard to the right knee based on gait derangement (AMA Guides, Table 17-5, p. 539.) Although Dr. Jacobs noted degenerative changes that preceded the industrial injury he attributed 90% of applicant's impairment to industrial factors given her 18-20 years of employment. With regard to the left knee, Dr. Jacobs found industrial injury based on overcompensation of her right knee injury and found 5% whole person impairment. Dr. Jacobs opined that applicant should have a pain add- on of 1% for each knee, and opined that 40% of the left knee impairment was attributable to non- industrial factors. (January 3, 2023 report at pp. 6-8.)

Labor Code section 3202.5

Preponderance of the evidence standard for all parties and lien claimants

Applied to evaluate medical opinions and causation

From the decision · page 4Additionally, Labor Code section 3202.5 states, in pertinent part, "All parties and lien claimants shall meet the evidentiary burden of proof on all issues by a preponderance of the evidence in order that all parties are considered equal before the law. `Preponderance of the evidence' means that evidence that, when weighed with that opposed to it, has more convincing force and the greater probability of truth." When translated to the standard necessary for expert medical opinions, this means reasonable medical probability, meaning more likely than not. Certainty, or anything approaching certainty, is not the proper standard. (McAllister v. Workmen's Comp. App. Bd. (1968) 69 Cal.2d 408, 413, 416-417, 419 [33 Cal. Comp. Cases 660].) In order to be considered industrial, work need only be a contributing cause of a physical injury. (South Coast Framing, Inc. v. Workers' Comp. Appeals Bd. (Clark) (2015) 61 Cal.4th 291, 299 [80 Cal. Comp. Cases 489].) "Further, `the acceleration, aggravation or "lighting up" of a preexisting disease is an injury in the occupation causing the same.' [Citations.]" (Clark, 61 Cal.4th at p. 301.)

Disparity of medical opinions and questions about correct legal standards in medical opinions

From the decision · page 4Given the disparity of the medical opinions in the record and questions regarding whether the medical opinions utilized the correct legal standard, we will grant reconsideration, rescind the WCJ's decision and return this matter to the trial level for further development of the record and decision. In the further proceedings, if the parties cannot agree to an agreed medical evaluator, the WCJ should consider appointing an independent medical evaluator (Lab. Code, § 5701.)