ADJ13363747 · December 30, 2024

The petition for reconsideration was granted to amend the lien claims order by removing the Dental Trauma Center from retrospective utilization review due to lack of proper service of the UR deferral letter, while affirming other findings and orders.

From the decision · page 1We have considered the allegations of the Petition for Reconsideration and the contents of the report of the workers' compensation administrative law judge (WCJ) with respect thereto. Based on our review of the record, and for the reasons stated in the WCJ's report, which we adopt and incorporate, we will grant reconsideration, amend the first paragraph of the Amended Joint Order to remove lien claimants Dental Trauma Center from the provisions ordering a retrospective utilization review, and otherwise affirm the findings and order.

The utilization review deferral letter to the Dental Trauma Center was not properly served on applicant or his attorney as required by regulation.

Favours Applicant prevailed

This procedural defect required striking the Dental Trauma Center from retrospective utilization review.

From the decision · page 7Specifically, it appeared that in the case of The Dental Trauma Center's Request for Authorization (RFA) dated April 28, 2021, defendants' UR deferral letter dated May 6, 2921, at pages 10-11 of Defendant's F, did not comply with the requirement of Cal. Code Regs., tit. 8, § 9792.9. l (b)(1) that such a deferral "must be sent to the requesting physician, the injured worker, and if the injured worker is represented by counsel, the injured worker's attorney." The September 16, 2024 First Amended Joint Findings and Order Re: Lien Claims found that the conjunction "and" in§ 9792.9.l(b)(l) clearly means that the communication is supposed to be sent to directly to the injured worker, as well as to the injured worker's attorney.

The orthopedic QME's conclusory opinion of no cumulative trauma lacked analysis and was legally and medically insufficient.

Favours Applicant prevailed

The lack of substantial rebuttal evidence supported finding cumulative trauma injury based on treating physicians' reports.

From the decision · page 7It was found that the medical reports of orthopedic QME C. Thomas Vangsness, Jr., M.D., issued under the specific injury case and admitted into evidence as Joint 1 and Joint 2, do not constitute substantial medical evidence with respect to the existence or non-existence of a cumulative trauma. Dr. Vangsness provides no analysis whatsoever in support of his conclusory statement that he finds no cumulative trauma, which he attributed simply to a lack of evidence. While it is understandable why defendants might have wanted to rely upon this comment by Dr. Vangsness, it was error to do so because it is a legally and medically unsubstantiated conclusion. Defendants were provided an opportunity to develop the record with supplemental reports or deposition testimony following rescission of the February 5, 2024 Joint Findings and Order Re: Lien Claims, but even after being apprised of the undersigned's assessment of the deficiency of this evidence, defendants declined to obtain any supplemental evidence to strengthen the record. Accordingly, based on the same record of medical opinions, and after an opportunity to develop the record that was declined by defendants, it should come as no surprise that the same findings were made with respect to injuries and parts of body injured.

The treating physicians' reports provided substantial medical evidence of cumulative trauma injury considering applicant's job duties as mechanism.

Favours Applicant prevailed

These reports were credited over the QME's opinion, supporting compensability of cumulative trauma injury.

From the decision · page 7The reports of Albert Kandkhorov, DC and Kiet Nguyen, DC of North Valley Health Center admitted as Lien Claimant Edwin Haronian's 3, 4, and 5, and Lien Claimant North Valley Health Center's 9, and 11, as well as the reports of Edwin Haronian, MD admitted as Lien Claimant Edwin Haronian's 15, 16, 17, and 18, were found to provide sufficiently substantial medical evidence of cumulative trauma injury to the upper extremities, neck, back, and right lower extremity and foot, on which basis cumulative injury arising out of and in the course of

Found no cumulative trauma but provided no analysis or reasoning, thus his opinion was found insufficient to rebut treating physicians' opinions.

Lacked specialized expertise in dentistry and did not provide analysis supporting his conclusion of no cumulative trauma.

From the decision · page 7It was found that the medical reports of orthopedic QME C. Thomas Vangsness, Jr., M.D., issued under the specific injury case and admitted into evidence as Joint 1 and Joint 2, do not constitute substantial medical evidence with respect to the existence or non-existence of a cumulative trauma. Dr. Vangsness provides no analysis whatsoever in support of his conclusory statement that he finds no cumulative trauma, which he attributed simply to a lack of evidence. While it is understandable why defendants might have wanted to rely upon this comment by Dr. Vangsness, it was error to do so because it is a legally and medically unsubstantiated conclusion. Defendants were provided an opportunity to develop the record with supplemental reports or deposition testimony following rescission of the February 5, 2024 Joint Findings and Order Re: Lien Claims, but even after being apprised of the undersigned's assessment of the deficiency of this evidence, defendants declined to obtain any supplemental evidence to strengthen the record. Accordingly, based on the same record of medical opinions, and after an opportunity to develop the record that was declined by defendants, it should come as no surprise that the same findings were made with respect to injuries and parts of body injured.

Provided unrebutted reports supporting dental injury causation from employment injury, including direct injury and compensable consequences such as bruxism.

No expert opinion in dentistry rebutted his reports; his opinions were credited over the orthopedic QME's.

From the decision · page 5Based on the medical expert opinions of Mayer Schames, D.D.S., whose completely unrebutted reports were admitted into evidence as Lien Claimant Dental Trauma Center's 3, 4, 5, 6, and 8, it was found that applicant also sustained dental injury arising out of and in the course of employment to his face, jaw, gums, and teeth. The utilization review (UR) deferral letter from defendants to the Dental Trauma Center admitted as Defendant's F, page 10, shows that defendant regarded the body parts treated by Dr. Schames to be non- compensable, and denied responsibility for medical care to these body parts. The non-dental opinion of orthopedic QME C. Thomas Vangsness, Jr., MD, cited in defendants' petition for reconsideration as evidence that there is no dental injury, is found to constitute an insufficient rebuttal of Dr. Schames' opinions because Dr. Vangsness lacks Dr. Schames' specialized expertise in dentistry. Accordingly, it was found that applicant was permitted to treat outside defendants' Medical Provider Network (MPN) for the denied body parts, including dental.

Provided substantial medical evidence of cumulative trauma injury to upper extremities, neck, back, and right lower extremity and foot, supporting compensability.

His reports considered applicant's job duties and affirmed mechanism for cumulative injury.

From the decision · page 7The reports of Albert Kandkhorov, DC and Kiet Nguyen, DC of North Valley Health Center admitted as Lien Claimant Edwin Haronian's 3, 4, and 5, and Lien Claimant North Valley Health Center's 9, and 11, as well as the reports of Edwin Haronian, MD admitted as Lien Claimant Edwin Haronian's 15, 16, 17, and 18, were found to provide sufficiently substantial medical evidence of cumulative trauma injury to the upper extremities, neck, back, and right lower extremity and foot, on which basis cumulative injury arising out of and in the course of

Supported cumulative trauma injury findings consistent with primary treating physician and orthopedic secondary treater.

Reports found to provide substantial medical evidence of cumulative trauma injury.

From the decision · page 7The reports of Albert Kandkhorov, DC and Kiet Nguyen, DC of North Valley Health Center admitted as Lien Claimant Edwin Haronian's 3, 4, and 5, and Lien Claimant North Valley Health Center's 9, and 11, as well as the reports of Edwin Haronian, MD admitted as Lien Claimant Edwin Haronian's 15, 16, 17, and 18, were found to provide sufficiently substantial medical evidence of cumulative trauma injury to the upper extremities, neck, back, and right lower extremity and foot, on which basis cumulative injury arising out of and in the course of

Provided substantial medical evidence supporting cumulative trauma injury to multiple body parts, considered job duties as mechanism for injury.

Reports expressly considered job duties and affirmed mechanism for cumulative injury; not effectively rebutted by QME opinion.

From the decision · page 7The reports of Albert Kandkhorov, DC and Kiet Nguyen, DC of North Valley Health Center admitted as Lien Claimant Edwin Haronian's 3, 4, and 5, and Lien Claimant North Valley Health Center's 9, and 11, as well as the reports of Edwin Haronian, MD admitted as Lien Claimant Edwin Haronian's 15, 16, 17, and 18, were found to provide sufficiently substantial medical evidence of cumulative trauma injury to the upper extremities, neck, back, and right lower extremity and foot, on which basis cumulative injury arising out of and in the course of

Escobedo v. Marshalls (2007) 70 Cal. Comp. Cases 604

Substantial medical evidence requires reasoning based on relevant facts, adequate history and examination, correct legal theories, and reasonable medical probability, not guesswork.

The reports relied upon met these criteria, supporting the findings of cumulative trauma injury and dental injury.

From the decision · page 10The Workers' Compensation Appeals Board (WCAB) has held, en banc, that "it is well established that any decision of the WCAB must be supported by substantial evidence." (Escobedo v. Marshalls (2007) 70 Cal. Comp, Cases 604, 620, citing Labor Code § 5952(d), Lamb v. Workmen's Comp. Appeals Bd. (1974) 11 Cal.3d 274, 281 [39 Cal. Comp. Cases 310], Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312,317 [35 Cal. Comp, Cases 500]; LeVesque v. Workmen's Comp. Appeals Bd. (1970) 1 Cal.3d 627, 635 [35 Cal. Comp. Cases 16].) "In this regard, it has been long established that, in order to constitute

Labor Code section 5909

Labor Code section 5909 regarding petition for reconsideration timing and processing.

The petition for reconsideration was granted under this statute to amend the lien claims order.

From the decision · page 1Former Labor Code section 59091 provided that a petition for reconsideration was deemed denied unless the Appeals Board acted on the petition within 60 days from the date of filing. (Lab. Code, § 5909.) Effective July 2, 2024, Labor Code section 5909 was amended to state in relevant part that:

Credible reports of specific injury on September 13, 2019, including injury to shoulder and face by hose strike

From the decision · page 14Schames, but given the existence of the history in the report, it is defendants who ought to have required the testimony of applicant to rebut it. In the absence of further input from applicant, what otherwise remains in the record is a credibly-reported specific injury of September 13, 2019, when he was struck by a hose that was flung about, which quite credibly and plausibly was indicated by reporting physicians to have struck both his shoulder and face. Applicant's alleged delay of approximately IO months in reporting symptoms, pointed out by defendants in the petition, does not automatically require that the existence of such symptoms be rejected. Indeed, since Dr. Schames describes compensable consequences of pain related to the admitted specific orthopedic injury, some delay in onset of these symptoms would be expected. In any event, the lack of any other expert opinion in dentistry to rebut the opinions of Dr. Schames with respect to causation supports the finding that applicant sustained dental injury both as the result of direct mechanism of injury (being struck in the face by an out-of-control rubber hose) as well as compensable consequences (bruxism from pain).

Lack of proper service of utilization review deferral letter to Dental Trauma Center on applicant and counsel

From the decision · page 7Specifically, it appeared that in the case of The Dental Trauma Center's Request for Authorization (RFA) dated April 28, 2021, defendants' UR deferral letter dated May 6, 2921, at pages 10-11 of Defendant's F, did not comply with the requirement of Cal. Code Regs., tit. 8, § 9792.9. l (b)(1) that such a deferral "must be sent to the requesting physician, the injured worker, and if the injured worker is represented by counsel, the injured worker's attorney." The September 16, 2024 First Amended Joint Findings and Order Re: Lien Claims found that the conjunction "and" in§ 9792.9.l(b)(l) clearly means that the communication is supposed to be sent to directly to the injured worker, as well as to the injured worker's attorney.

Defendants declined to supplement deficient QME medical evidence despite opportunity

From the decision · page 13This gap in the evidence was expressly pointed out to defendants, and they were provided an opportunity to develop the record with supplemental reports or deposition testimony from Dr. Vangsness following rescission of the February 5, 2024 Joint Findings and Order Re: Lien Claims. Even after being apprised of the undersigned's assessment of the evidence, defendants declined to obtain any supplemental evidence to strengthen the deficient reporting of Dr. Vangsness. Accordingly, based on the same record of medical opinions, the same findings were made with respect to injuries and parts of body injured, and a cumulative trauma injury was found based on the treating physicians' reasoning, which were not effectively rebutted by the lack of evidence offered by Dr. Vangsness.