ADJ13007518 · October 8, 2021

The date of injury was established as 1/22/2021 when knowledge of industrial causation and disability concurred, based on Dr. Gagnon's evaluation and Labor Code 5412 requirements.

From the decision · page 5The equally critical issue raised by Petitioner is when Applicant first suffered disability from the cumulative injury. Petitioner argues that Applicant first suffered disability when she self-imposed a restriction from heavy lifting. The record does not show when she first did so, but it does not matter: for purposes of satisfying the second prong of 5412, there must be evidence of either temporary or permanent disability. [Chavira v. WCAB (1991) 56 CCC 631] It is undisputed that Applicant was never taken off work by a physician for a temporary disability caused by this injury. Permanent disability was not found until Dr. Gagnon's evaluation on 1/22/2021. It was only then that there was concurrence of knowledge and disability, thus establishing the 1/22/2021 date of injury under Labor Sec. 5412.

Dr. Gagnon's updated impairment rating of 9% WPI for the right shoulder, based on loss of strength and function, was accepted as substantial evidence supporting the permanent disability award.

From the decision · page 1In my report of January 22, 2021, I specifically note as part of my examination findings that the right shoulder ranges of motion are normal but there exists a significant strength deficit resulting from the patient's SLAP tear. The MRI also noted mild supraspinatus and infraspinatus strain and tendinitis with perhaps minimal partial-thickness undersurface tear near their conjoined insertion but no gross defect or retraction of the rotator cuff tendons. I provided an impairment rating of 0% as ranges of motion are normal. No ligamentous laxity was present. I finalized a rating based on weakness with 2% WPI using table 16-3 on page 439.

Dr. Gagnon's April 14, 2021 report updated the right shoulder impairment rating from 2% to 9% WPI based on 25% loss of strength and functional limitations.

Favours Applicant prevailed

This updated rating was accepted as substantial evidence supporting the permanent disability award to Applicant.

From the decision · page 2is damaged, loss of motion and strength usually ensue. The muscular strength and endurance of the rotator cuff also decreases. The outcome of all this is usually pain, some instability, loss of function, loss of motion and muscle strength. In her situation, the limitation of no lifting greater than 15 pounds above the shoulder is reasonable. The bicep tendon does not appear to be involved. As I re-analyze her loss of function, I estimate that she has lost approximately 25% of her shoulder strength. Therefore, with this great loss of function, it is my opinion that a more accurate impairment of her condition can be provided. I am therefore updating my impairment analysis by using the following analogy: Looking at page 499, Table 16-18, the glenohumeral joint has a maximum impairment value of 36% WPI. Therefore, 25% of 36% or one quarter of 36% is a total of 9% WPI. This updated impairment reflects her total loss of function in the right shoulder and is an accurate impairment. This takes into account the loss of strength noted in my examination findings. (Dr. Gagnon's 4/14/21 report, at p. 2, applicant's Exhibit A-1.)

Applicant first gained knowledge of industrial causation and suffered permanent disability on 1/22/2021, establishing the date of injury under Labor Code 5412.

Favours Applicant prevailed

This concurrence of knowledge and disability established the date of injury for the cumulative trauma claim in ADJ13007517.

From the decision · page 5The equally critical issue raised by Petitioner is when Applicant first suffered disability from the cumulative injury. Petitioner argues that Applicant first suffered disability when she self-imposed a restriction from heavy lifting. The record does not show when she first did so, but it does not matter: for purposes of satisfying the second prong of 5412, there must be evidence of either temporary or permanent disability. [Chavira v. WCAB (1991) 56 CCC 631] It is undisputed that Applicant was never taken off work by a physician for a temporary disability caused by this injury. Permanent disability was not found until Dr. Gagnon's evaluation on 1/22/2021. It was only then that there was concurrence of knowledge and disability, thus establishing the 1/22/2021 date of injury under Labor Sec. 5412.

Initially rated 2% WPI for right shoulder based on AMA Guides strict rating; later updated to 9% WPI considering 25% loss of shoulder strength and functional impairment under Almaraz/Guzman analysis.

Dr. Gagnon's April 14, 2021 report provided a reasoned update to the impairment rating reflecting loss of strength and function, which was accepted as substantial evidence.

From the decision · page 1In his April 14, 2021 report, panel qualified medical examiner (PQME) Michel Gagnon, D.C., stated:

E.L. Yeager Construction v. Workers' Comp. Appeals Bd. (Gatten) (2006) 145 Cal.App.4th 922

To be substantial evidence, a medical opinion must be predicated on reasonable medical probability, not speculative, based on pertinent facts and adequate examination, and set forth reasoning in support of conclusions.

The WCJ properly relied on Dr. Gagnon's opinion as substantial medical evidence meeting these criteria.

From the decision · page 2For the reasons stated in the WCJ's report, we agree that the Dr. Gagnon's opinion is substantial medical evidence upon which the WCJ properly relied. To be considered substantial evidence, a medical opinion "must be predicated on reasonable medical probability." (E.L. Yeager Construction v. Workers' Comp. Appeals Bd. (Gatten) (2006) 145 Cal.App.4th 922, 928 [71 Cal.Comp.Cases 1687]; McAllister v. Workmen's Comp. Appeals Bd. (1968) 69 Cal.2d 408, 413, 416§ 17, 419 [33 Cal.Comp.Cases 660].) A physician's report must also be framed in terms of reasonable medical probability, it must not be speculative, it must be based on pertinent facts and on an adequate examination and history, and it must set forth reasoning in support of its conclusions. (Yeager Construction v. Workers' Comp. Appeals Bd. (Gatten) (2006) 145 Cal.App.4th 922, 928 [71 Cal.Comp.Cases 1687]; Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 612 (Appeals Board en banc), 70 Cal.Comp.Cases 1506 (writ den.); see also Milpitas Unified School Dist. v. Workers' Comp. Appeals Bd. (Almaraz-Guzman III) (2010) 187 Cal.App.4th 808 [75 Cal.Comp.Cases 837] [an evaluating physician may deviate from a "strict" application of the AMA Guides in order to provide a rating within the four corners of the Guides that more accurately reflects the employee's impairment based on the physician's judgment, training and experience].)

Labor Code Section 5412

Labor Code Section 5412 defines the date of injury in cumulative trauma cases as the date when knowledge of industrial causation concurs with the date when the employee first suffers disability.

The date of injury was established under this statute based on concurrence of knowledge and disability.

From the decision · page 5The equally critical issue raised by Petitioner is when Applicant first suffered disability from the cumulative injury. Petitioner argues that Applicant first suffered disability when she self-imposed a restriction from heavy lifting. The record does not show when she first did so, but it does not matter: for purposes of satisfying the second prong of 5412, there must be evidence of either temporary or permanent disability. [Chavira v. WCAB (1991) 56 CCC 631] It is undisputed that Applicant was never taken off work by a physician for a temporary disability caused by this injury. Permanent disability was not found until Dr. Gagnon's evaluation on 1/22/2021. It was only then that there was concurrence of knowledge and disability, thus establishing the 1/22/2021 date of injury under Labor Sec. 5412.

Milpitas Unified School Dist. v. WCAB (Guzman) (2010) 75 CCC 837

AMA Guides should not be applied mechanically; physicians should use clinical judgment to provide a rating that accurately reflects the actual impairment.

Dr. Gagnon's updated rating was accepted as consistent with this standard allowing clinical judgment.

From the decision · page 6WCAB (Guzman) (2010) 75 CCC 837, where the Court said that the Guides should not be applied mechanically, "...without regard to how accurately and completely they reflect the actual impairment sustained by the patient." Instead, said the Court, doctors should use their "clinical judgment" in evaluating the impairment. I conclude that Dr. Gagnon neglected to consider these principles, when he prepared his January report and that the April report was appropriately intended to correct this omission. Consequently, the April report is substantial evidence in support of my finding of permanent disability in the cumulative trauma case.

Applicant's self-imposed restriction from heavy lifting and breaks at work, continuing full-time employment without physician-imposed temporary disability.

From the decision · page 4The medical evidence consists solely of a series of reports from QME Michel Gagnon, DC. When he initially saw Applicant on 1/23/2020, he reported that Applicant complained of symptoms in her neck, right shoulder and upper extremities (Gagnon report, 1/23/2020, Ex. A-6, p. 4). She told Dr. Gagnon that her injury "...has been ongoing due to the repetitive movements that my job requires me to do." She was still employed in the same job, full-time, without restrictions, except for the self-imposed restriction from heavy lifting and taking breaks as needed (Id, p. 5). She said she was 80% recovered but not permanent and stationary, had not lost any time from work and was expected to make a full recovery with recommended treatment (Id, pp. 8-9).