What the panel ordered
Defendant's petition for reconsideration denied; Applicant's petition for reconsideration granted; Findings of Fact and Award amended to increase permanent disability to 100% and adjust earnings and temporary disability indemnity
Petitions for reconsideration filed by applicant and defendant; defendant's petition denied, applicant's petition granted, resulting in amended findings and award
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.
AOE/COEApplicant prevailedthoracic spine · lumbar spine · shoulders · elbows · wrists · knees · ankles · feet
The WCJ and WCAB found the applicant sustained cumulative industrial injuries to multiple body parts during employment, supported by substantial medical evidence from Dr. Rubanenko.
From the decision · page 1Applicant and defendant both seek reconsideration of the Findings of Fact and Award (F&A) issued by a workers' compensation administrative law judge (WCJ) on February 27, 2025, wherein the WCJ found that applicant, while employed as a server, waitress, manager, and kitchen worker during the period of January 1, 1986 to June 19, 2020, sustained injury arising out of and during the course of employment to her thoracic spine, lumbar spine, shoulders, elbows, wrists, knees, ankles, and feet, causing permanent disability of 95 percent. The decision also found that applicant's claim is not barred by the statute of limitations because the date of injury of the cumulative injury is June 7, 2023, based on Labor Code section 54121 (Finding of Fact #11), and because this date is after the date of applicant's termination, her claim is not barred by the post- termination defense (Finding of Fact #12). The F&A further found that the reports of Gabriel Rubanenko, M.D., constitute substantial medical evidence on the issues of injury, temporary disability, date of maximal medical improvement, permanent disability based on whole person
Permanent disability ratingApplicant prevailedwhole person
Permanent disability was found to be 100%, increased from the prior 95%, based on substantial medical evidence and application of the Vigil decision for adding impairments.
Jurisdiction / venueApplicant prevailedwhole person
The claim was not barred by the post-termination defense because the injury date was after termination.
From the decision · page 1Applicant and defendant both seek reconsideration of the Findings of Fact and Award (F&A) issued by a workers' compensation administrative law judge (WCJ) on February 27, 2025, wherein the WCJ found that applicant, while employed as a server, waitress, manager, and kitchen worker during the period of January 1, 1986 to June 19, 2020, sustained injury arising out of and during the course of employment to her thoracic spine, lumbar spine, shoulders, elbows, wrists, knees, ankles, and feet, causing permanent disability of 95 percent. The decision also found that applicant's claim is not barred by the statute of limitations because the date of injury of the cumulative injury is June 7, 2023, based on Labor Code section 54121 (Finding of Fact #11), and because this date is after the date of applicant's termination, her claim is not barred by the post- termination defense (Finding of Fact #12). The F&A further found that the reports of Gabriel Rubanenko, M.D., constitute substantial medical evidence on the issues of injury, temporary disability, date of maximal medical improvement, permanent disability based on whole person
Statute of limitationsApplicant prevailedwhole person
The claim was found not barred by the statute of limitations because the date of injury was June 7, 2023, within the statutory period.
From the decision · page 1Applicant and defendant both seek reconsideration of the Findings of Fact and Award (F&A) issued by a workers' compensation administrative law judge (WCJ) on February 27, 2025, wherein the WCJ found that applicant, while employed as a server, waitress, manager, and kitchen worker during the period of January 1, 1986 to June 19, 2020, sustained injury arising out of and during the course of employment to her thoracic spine, lumbar spine, shoulders, elbows, wrists, knees, ankles, and feet, causing permanent disability of 95 percent. The decision also found that applicant's claim is not barred by the statute of limitations because the date of injury of the cumulative injury is June 7, 2023, based on Labor Code section 54121 (Finding of Fact #11), and because this date is after the date of applicant's termination, her claim is not barred by the post- termination defense (Finding of Fact #12). The F&A further found that the reports of Gabriel Rubanenko, M.D., constitute substantial medical evidence on the issues of injury, temporary disability, date of maximal medical improvement, permanent disability based on whole person
Temporary disabilityApplicant prevailedwhole person
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Applicant sustained cumulative industrial injuries to multiple body parts during employment.
Favours Applicant prevailed
Supported the finding of compensable injury and permanent disability.
From the decision · page 1Applicant and defendant both seek reconsideration of the Findings of Fact and Award (F&A) issued by a workers' compensation administrative law judge (WCJ) on February 27, 2025, wherein the WCJ found that applicant, while employed as a server, waitress, manager, and kitchen worker during the period of January 1, 1986 to June 19, 2020, sustained injury arising out of and during the course of employment to her thoracic spine, lumbar spine, shoulders, elbows, wrists, knees, ankles, and feet, causing permanent disability of 95 percent. The decision also found that applicant's claim is not barred by the statute of limitations because the date of injury of the cumulative injury is June 7, 2023, based on Labor Code section 54121 (Finding of Fact #11), and because this date is after the date of applicant's termination, her claim is not barred by the post- termination defense (Finding of Fact #12). The F&A further found that the reports of Gabriel Rubanenko, M.D., constitute substantial medical evidence on the issues of injury, temporary disability, date of maximal medical improvement, permanent disability based on whole person
Applicant's credible testimony and Dr. Rubanenko's medical reports constituted substantial evidence.
Favours Applicant prevailed
Supported the award of 100% permanent disability and temporary disability indemnity.
From the decision · page 15As explained by the WCJ, Dr. Rubanenko provided sufficiently substantial medical evidence to form the basis for a decision, and his reporting was more persuasive than the opinions of Dr. Hekmat.
Date of injury of cumulative injury was June 7, 2023, within statute of limitations.
Favours Applicant prevailed
Supported claim not barred by statute of limitations and post-termination defense.
From the decision · page 1Applicant and defendant both seek reconsideration of the Findings of Fact and Award (F&A) issued by a workers' compensation administrative law judge (WCJ) on February 27, 2025, wherein the WCJ found that applicant, while employed as a server, waitress, manager, and kitchen worker during the period of January 1, 1986 to June 19, 2020, sustained injury arising out of and during the course of employment to her thoracic spine, lumbar spine, shoulders, elbows, wrists, knees, ankles, and feet, causing permanent disability of 95 percent. The decision also found that applicant's claim is not barred by the statute of limitations because the date of injury of the cumulative injury is June 7, 2023, based on Labor Code section 54121 (Finding of Fact #11), and because this date is after the date of applicant's termination, her claim is not barred by the post- termination defense (Finding of Fact #12). The F&A further found that the reports of Gabriel Rubanenko, M.D., constitute substantial medical evidence on the issues of injury, temporary disability, date of maximal medical improvement, permanent disability based on whole person
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.
PTPRelied upon
Provided substantial medical evidence on injury, temporary disability, permanent disability, apportionment, and need for further medical treatment, supporting applicant's claims.
Reports constitute substantial medical evidence on injury and disability issues.
From the decision · page 1Applicant and defendant both seek reconsideration of the Findings of Fact and Award (F&A) issued by a workers' compensation administrative law judge (WCJ) on February 27, 2025, wherein the WCJ found that applicant, while employed as a server, waitress, manager, and kitchen worker during the period of January 1, 1986 to June 19, 2020, sustained injury arising out of and during the course of employment to her thoracic spine, lumbar spine, shoulders, elbows, wrists, knees, ankles, and feet, causing permanent disability of 95 percent. The decision also found that applicant's claim is not barred by the statute of limitations because the date of injury of the cumulative injury is June 7, 2023, based on Labor Code section 54121 (Finding of Fact #11), and because this date is after the date of applicant's termination, her claim is not barred by the post- termination defense (Finding of Fact #12). The F&A further found that the reports of Gabriel Rubanenko, M.D., constitute substantial medical evidence on the issues of injury, temporary disability, date of maximal medical improvement, permanent disability based on whole person
PTPRelied upon
More persuasive than Dr. Hekmat's opinions; supported 100% permanent disability rating based on AMA Guides and Vigil decision.
WCJ found Dr. Rubanenko's reports more persuasive than Dr. Hekmat's.
From the decision · page 15As explained by the WCJ, Dr. Rubanenko provided sufficiently substantial medical evidence to form the basis for a decision, and his reporting was more persuasive than the opinions of Dr. Hekmat.
QMEPartially credited
Provided QME reports with differing opinions on body parts injured but agreed on overlapping effects on ADLs; disagreed with extent of permanent disability.
Disagreed with extent of permanent disability but agreed on overlapping ADL effects.
From the decision · page 1717.01.04.00-5-[x1.4]7-322F-7-9% PD, left foot As already explained in the Opinion, a 3% Whole Person Impairment (WPI) pain add-on under Chapter 18 of the AMA Guides was added to 8% WPI for Lumbar DRE Class 2 under Table 15-3, for a total of 11% WPI total of the lumbar spine. Also, 2% WPI for the right foot (medial plantar nerve) was added under Table 17-37 (i.e., 5% WPI total of the right foot), and 2% WPI for the left foot (medial plantar nerve) under Table 17-37 (i.e., 5% WPI total of the left foot). All of the other WPI percentages are the same as those set forth in Dr. Rubanenko's reports. The Appeals Board's en banc decision in Vigil v. County of Kern, 89 Cal.Comp.Cases 686, 688-689, held that the Combined Values Chart (CVC) in the current PDRS may be rebutted and impairments may be added where an applicant establishes the impact of each impairment on the activities of daily living (ADLs) and that either (a) there is no overlap between the effects on ADLs as between the body parts rated, or (b) there is overlap, but the overlap increases or amplifies the impact on the overlapping ADLs. Both PTP Dr. Rubanenko and PQME Dr. Hekmat issued supplemental reports addressing how the holding in Vigil might apply to the present case. (Exhibit 1, Report of Dr. Rubanenko dated October 14, 2024, pages 13-15; Exhibit E, Report of Dr. Hekmat dated January 16, 2025, pages 11-12).
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Escobedo v. Marshalls (2007) 70 Cal. Comp. Cases 604
Substantial medical evidence must be based on reasonable medical probability and relevant facts, not guesswork.
Applied to evaluate the medical evidence of injury and disability.
From the decision · page 13The 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 substantial evidence, a medical opinion must be predicated on reasonable medical probability." (Escobedo, cited above, 70 Cal. Comp. Cases
AMA Guides to the Evaluation of Permanent Impairment, Fifth Edition
Used to rate permanent disability.
From the decision · page 1Applicant and defendant both seek reconsideration of the Findings of Fact and Award (F&A) issued by a workers' compensation administrative law judge (WCJ) on February 27, 2025, wherein the WCJ found that applicant, while employed as a server, waitress, manager, and kitchen worker during the period of January 1, 1986 to June 19, 2020, sustained injury arising out of and during the course of employment to her thoracic spine, lumbar spine, shoulders, elbows, wrists, knees, ankles, and feet, causing permanent disability of 95 percent. The decision also found that applicant's claim is not barred by the statute of limitations because the date of injury of the cumulative injury is June 7, 2023, based on Labor Code section 54121 (Finding of Fact #11), and because this date is after the date of applicant's termination, her claim is not barred by the post- termination defense (Finding of Fact #12). The F&A further found that the reports of Gabriel Rubanenko, M.D., constitute substantial medical evidence on the issues of injury, temporary disability, date of maximal medical improvement, permanent disability based on whole person
Vigil v. County of Kern, 89 Cal.Comp.Cases 686
Applied to add impairments for permanent disability rating.
From the decision · page 1717.01.04.00-5-[x1.4]7-322F-7-9% PD, left foot As already explained in the Opinion, a 3% Whole Person Impairment (WPI) pain add-on under Chapter 18 of the AMA Guides was added to 8% WPI for Lumbar DRE Class 2 under Table 15-3, for a total of 11% WPI total of the lumbar spine. Also, 2% WPI for the right foot (medial plantar nerve) was added under Table 17-37 (i.e., 5% WPI total of the right foot), and 2% WPI for the left foot (medial plantar nerve) under Table 17-37 (i.e., 5% WPI total of the left foot). All of the other WPI percentages are the same as those set forth in Dr. Rubanenko's reports. The Appeals Board's en banc decision in Vigil v. County of Kern, 89 Cal.Comp.Cases 686, 688-689, held that the Combined Values Chart (CVC) in the current PDRS may be rebutted and impairments may be added where an applicant establishes the impact of each impairment on the activities of daily living (ADLs) and that either (a) there is no overlap between the effects on ADLs as between the body parts rated, or (b) there is overlap, but the overlap increases or amplifies the impact on the overlapping ADLs. Both PTP Dr. Rubanenko and PQME Dr. Hekmat issued supplemental reports addressing how the holding in Vigil might apply to the present case. (Exhibit 1, Report of Dr. Rubanenko dated October 14, 2024, pages 13-15; Exhibit E, Report of Dr. Hekmat dated January 16, 2025, pages 11-12).
What proof carried it
The evidence the panel weighed, by kind.
Testimony and credibilityfavours Applicant prevailed
Applicant's credible testimony about her job duties and injury knowledge
From the decision · page 1Applicant and defendant both seek reconsideration of the Findings of Fact and Award (F&A) issued by a workers' compensation administrative law judge (WCJ) on February 27, 2025, wherein the WCJ found that applicant, while employed as a server, waitress, manager, and kitchen worker during the period of January 1, 1986 to June 19, 2020, sustained injury arising out of and during the course of employment to her thoracic spine, lumbar spine, shoulders, elbows, wrists, knees, ankles, and feet, causing permanent disability of 95 percent. The decision also found that applicant's claim is not barred by the statute of limitations because the date of injury of the cumulative injury is June 7, 2023, based on Labor Code section 54121 (Finding of Fact #11), and because this date is after the date of applicant's termination, her claim is not barred by the post- termination defense (Finding of Fact #12). The F&A further found that the reports of Gabriel Rubanenko, M.D., constitute substantial medical evidence on the issues of injury, temporary disability, date of maximal medical improvement, permanent disability based on whole person
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About this page
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