ADJ7643460 — California WCAB decision

What the panel ordered

Petition for Reconsideration denied

Petition for Reconsideration denied by WCAB panel on 2021-07-26 after review of WCJ's Opinion on 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 / removalDefendant prevailed

Issues not raised at the first opportunity are waived; the petition raised new issues not raised at trial and was therefore denied.

From the decision · page 6Applicant has raised several issues on reconsideration that were not raised at the time of trial. These include an allegation of ex parte communication between defendant and Dr. D'Amico and alleged entitlement to vocational rehabilitation benefits. Issues not raised at the first opportunity that they may properly be raised are waived. (Lab. Code, § 5502(e)(3), see also Gould v. Workers' Comp. Appeals Bd. (1992) 4 Cal.App.4th 1059 [57 Cal.Comp.Cases 157], Griffith v. Workers' Comp. Appeals Bd. (1989) 209 Cal.App.3d 1260 [54 Cal.Comp.Cases 145].) The issues of self- procured medical expenses, penalties as against medical treatment expenses, and applicant's claim of benefits pursuant to section 132a for discrimination and section 4553 for serious and willful misconduct were deferred. Finally, we note that the issue of attorney fees has not been adjudicated and that 12% of the award of permanent disability indemnity is being held in trust pending resolution of applicant's former attorney's lien.

The facts that decided it

What the panel treated as outcome-determinative, and which side it favoured.

Applicant had prior permanent disability award of 84% for spine and right knee under 1997 schedule

Favours Applicant prevailed

Defendant argued for subtraction of prior award under Labor Code section 4664(b) but tribunal rejected this due to different rating schedules and substantial evidence of apportionment by physicians

Wide range of medical opinions with ratings from 38% to 96% permanent disability

Favours Applicant prevailed

Tribunal found the combined rating of 84% permanent disability within the range of evidence and relied on apportionment by examining physicians

From the decision · page 3As referenced above there is a wide range of evidence regarding applicant's disability. Based on Dr. D'Amico, and including the findings of Drs. Straehley and Blott, the overall rating would probably come in at 78%. In contrast, the findings of Dr. Hay, along with Drs. Straehley, and Blott came up as high as 96% according to the DEU. As noted above, the DEU rating provided applicant with two disabilities for her CRPS/causalgia because it included both Dr. Blott's findings as well as Dr. Hay's 65% rating separate from the ratings for all her orthopedic disabilities. Therefore, the most accurate rating would be to take the DEU findings without the 65% taken from Dr. Hay's reports. The remaining disability ratings are 50% (Dr. Blott), 45% (Dr. Straehley), 31% (Dr. Hay, left upper extremity), 15% (Dr. Hay, right upper extremity) and 3% (Dr. Hay, right knee). The combined result is 84% permanent disability which is well within the range of the evidence in this case.

Applicant capable of legal work such as paralegal despite vocational counselor's report of incapacity

Favours Applicant prevailed

Tribunal rejected vocational evidence for diminished future earnings capacity enhancement, finding applicant capable of work in legal field

From the decision · page 5Some comment is required regarding the vocational evidence, submitted to rebut the diminished future earnings capacity (DFEC) in the schedule. First of all the FEC rankings (beginning at p. 2-1 of the schedule) already resulted in significant increases in impairment from that described by the physicians, most likely representing applicant's actual DFEC. Also, the report, especially that offered by applicant's selected vocational counselor Thomas Linville which found applicant incapable of return to gainful employment, ignored the very realities of this case. Applicant has shown herself extremely capable of drafting legal pleadings and presenting evidence in support of her case. As such she is very likely capable of work in the legal field (she has a law degree) as a paralegal or legal assistant. She almost certainly could work as a freelance paralegal if not as an employee in a law office. This has been made especially clear during this past year when, due to Covid-19, many paralegals have worked from home. Accordingly, the permanent disability is accurate without need for enhancement based on DFEC.

Defendant delayed payment of temporary disability benefits and failed to pay 10% penalty on delayed payment

Favours Applicant prevailed

Tribunal found delay unreasonable and assessed 15% penalty on delayed payment

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.

QMERelied upon

Found applicant had 16 diagnoses including CRPS; rated overall impairment at 38% in 2014 with 85% due to industrial injury and 15% due to lupus and aging; later rated overall disability at 77% in 2016 including CRPS.

From the decision · page 2The most relevant medical evidence begins with the March 15, 2013, report of Qualified Medical Examiner (QME) Philip Hay, M.D. In a very thorough review of applicant's medical history and exam findings he concluded that applicant had 16 different diagnoses which included comprehensive regional pain syndrome (CRPS) resulting in chronic pain and sensitization, not yet then permanent and stationary. Dr. Hay also reported that there would be apportionment of (later determined) permanent disability since applicant had documented ongoing lupus before this industrial injury ever occurred. In his follow up report of August 27, 2014, he found that applicant had reached maximal medical improvement/permanent and stationary status. He then went on to rate applicant's impairments in her neck, left shoulder and upper extremity, coming up with overall impairment of 38%. Notably, he reported at that time that the ratings (based on strength, loss of motion and diagnosis for the neck) were an accurate measurement of applicant's disability with no need for analogy to other factors. Dr. Hay also went on to outline the apportionment, noting 85% of the overall disability was due to this injury, with the remaining 15% caused by underlying processes (progression of lupus and degeneration due to aging).

QMERelied upon

Reviewed medical records and agreed mostly with Dr. Hay but disagreed on CRPS diagnosis; rated impairments lower and noted work restrictions preventing even sedentary work.

From the decision · page 2When Dr. Hay retired and was unavailable for a deposition after his last report, Daniel D'Amico, M.D. also reported as a QME. In Dr. D'Amico's report of January 20, 2020, he very exhaustively went through all of applicant's medical records beginning with her initial lupus diagnosis in 1993 and its progression thereafter, along with all of applicant's treatment for her industrial injuries. He then concluded that he agreed for the most part with Dr. Hay on diagnoses, including applicant's fibromyalgia, but differed on the diagnosis of CRPS. He then went on to describe applicant's impairments much lower: 10% for the shoulders, 2% for the right hip, 4% for the left upper extremity, and 3% for right knee pain. Although the sum of those factors is not extremely high, Dr. D'Amico also noted applicant's work restrictions (not ratable factors) meant she could not do even sedentary work.

QMERelied upon · psychiatry

Concluded applicant sustained industrial psyche injury with 80% of psychiatric disability due to industrial factors.

From the decision · page 2The medical evidence also includes reports on applicant's psychiatric injury and disability. Clifford Straehley, M.D., acted as the psychiatric QME on the case and reported initially on July 2, 2016. In that report, he delved into applicant's psychiatric reaction to her injury, as well as her developmental and mental history/status both before and after the injury. After accounting for all the information provided he concluded that applicant sustained an industrial psyche injury predominantly caused by industrial factors. That injury left the

secondary_treaterRelied upon

Treated applicant for lupus and fibromyalgia; agreed with Dr. Blott's 29% impairment rating for fibromyalgia.

From the decision · page 3Finally, the pertinent medical evidence must include the reports of Kenneth Wiesner, M.D., who has treated applicant for her lupus and fibromyalgia since 1993. In his deposition testimony he noted that the symptoms from the two conditions are essentially the same. He also determined that Applicant's injury aggravated her fibromyalgia condition. It also was Dr. Wiesner that referred applicant to Michael Blott, D.C., for an evaluation of her disability. Dr. Blott examined and reported on January 22, 2020, noting that applicant's condition did not fit within any table of the American Medical Association Guides to the Evaluation of Permanent Impairment (AMA Guides). Therefore he analogized to table 13-4 for an arousal (sleep) disorder, noting applicant's condition resulted in 29% impairment. Such analogy rating is authorized by case law (City of Sacramento v WCAB (2013) 222 Cal.App.4th 1360, 1372, 79 Cal.Comp.Cases 1). Dr. Wiesner stated his agreement with Dr. Blott's findings on March 13, 2020. Taken together, the two physicians' opinions provide substantial evidence of the disability due to the fibromyalgia (and separate from the purely orthopedic factors described by Dr. Hay.

otherRelied upon · chiropractic

Analogized applicant's condition to AMA Guides table for arousal disorder and rated 29% impairment for fibromyalgia.

From the decision · page 3Finally, the pertinent medical evidence must include the reports of Kenneth Wiesner, M.D., who has treated applicant for her lupus and fibromyalgia since 1993. In his deposition testimony he noted that the symptoms from the two conditions are essentially the same. He also determined that Applicant's injury aggravated her fibromyalgia condition. It also was Dr. Wiesner that referred applicant to Michael Blott, D.C., for an evaluation of her disability. Dr. Blott examined and reported on January 22, 2020, noting that applicant's condition did not fit within any table of the American Medical Association Guides to the Evaluation of Permanent Impairment (AMA Guides). Therefore he analogized to table 13-4 for an arousal (sleep) disorder, noting applicant's condition resulted in 29% impairment. Such analogy rating is authorized by case law (City of Sacramento v WCAB (2013) 222 Cal.App.4th 1360, 1372, 79 Cal.Comp.Cases 1). Dr. Wiesner stated his agreement with Dr. Blott's findings on March 13, 2020. Taken together, the two physicians' opinions provide substantial evidence of the disability due to the fibromyalgia (and separate from the purely orthopedic factors described by Dr. Hay.

ADJ7643460 · July 26, 2021

What the panel ordered

What was disputed, and how it came out

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The facts that decided it

What the panel did with the medical opinions

The rules the panel named

What proof carried it

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