ADJ8969732 · July 2, 2021

The evidence, including consistent testimony and reports from the primary treating physician and orthopedic AME, supports that the gastrointestinal injury is a compensable consequence of the low back injury, despite the rejection of Dr. Rahban's reports as not substantial medical evidence.

From the decision · page 31) the applicant, while employed on 03/03/2013 as a meat receiver, occupational group 460, at Valley Glen, California by Vallarta Supermarkets sustained injury to his low back, and claims to have sustained gastro-intestinal injury as a compensable consequence thereof, as a new and further disability. At the time of the 03/03/2013 date of injury, the carrier was Safety National Casualty Corporation, administered by Sedgwick CMS.

Reports of Dr. Rahban were incomplete, not ratable, and rejected as substantial medical evidence.

Favours Defendant prevailed

Rejection of Dr. Rahban's reports affected the evaluation of medical evidence but did not overturn the finding of compensability based on other medical opinions and testimony.

From the decision · page 6Dr. Valdez continued to treat the injured worker and noted, in each report that the medication was causing gastrointestinal issues. The Primary Treating Physician referred the matter to Dr. Rahban, who did not complete a ratable report.

Applicant sustained gastrointestinal injury as a compensable consequence of the low back injury of March 3, 2013.

Favours Applicant prevailed

This fact was the central issue challenged by the Petition for Reconsideration and was supported by substantial medical evidence and consistent testimony, leading to denial of the petition.

From the decision · page 31) the applicant, while employed on 03/03/2013 as a meat receiver, occupational group 460, at Valley Glen, California by Vallarta Supermarkets sustained injury to his low back, and claims to have sustained gastro-intestinal injury as a compensable consequence thereof, as a new and further disability. At the time of the 03/03/2013 date of injury, the carrier was Safety National Casualty Corporation, administered by Sedgwick CMS.

Reports were incomplete and not ratable; rejected as substantial medical evidence for causation and apportionment.

Reports were rejected as not substantial medical evidence due to lack of reasonable medical probability statements.

From the decision · page 6Dr. Valdez continued to treat the injured worker and noted, in each report that the medication was causing gastrointestinal issues. The Primary Treating Physician referred the matter to Dr. Rahban, who did not complete a ratable report.

Found the applicant remained at MMI and P&S for orthopedic injury; noted gastrointestinal complaints but did not include them in diagnosis; disagreed with TTD findings of Dr. Valdez; found gastrointestinal issues arising from the condition independently from Dr. Rahban's reports.

The AME's report was relied upon to support compensability of gastrointestinal injury as a consequence of the low back injury.

From the decision · page 32) The parties had entered Stipulations with Request for Award, with Award of 10/14/2014 of 21 % Permanent disability to the low back based on the findings of Orthopedic Agreed Medical Evaluator William Mouradian, MD.

Consistently noted gastrointestinal issues caused by medication used for pain relief of the admitted injury; reports were substantial medical evidence supporting compensability.

The PTP's consistent reports were relied upon to support compensability of gastrointestinal injury as a consequence of the low back injury.

From the decision · page 6Dr. Valdez continued to treat the injured worker and noted, in each report that the medication was causing gastrointestinal issues. The Primary Treating Physician referred the matter to Dr. Rahban, who did not complete a ratable report.

California Labor Code

Labor Code 5903(c) - substantial medical evidence required to support findings of fact

Applied to assess sufficiency of medical evidence for compensability of gastrointestinal injury

From the decision · page 45) The Petitioner is the Employer/Carrier in this matter. The statutory basis for Petition for Reconsideration is that the evidence does not justify the findings of fact per LC § 5903 (c), asserting that there is no substantial medical evidence to support the finding of fact that Applicant sustained gastrointestinal injury as a compensable consequence of the low back injury of March 3, 2013.

California Labor Code

Labor Code 4067 - formal medical evaluation requirements for recurrence or increase of injury effects

Referenced regarding the need for formal medical evaluation by the same AME for additional evaluations

From the decision · page 5Labor Code § 4067 states that, "If the jurisdiction of the appeals board is invoked pursuant to Section 5803 upon the grounds that the effects of the injury have recurred, increased... a formal medical evaluation shall be obtained pursuant to this article.

California Labor Code

Labor Code 5402(a) - employer's duty to investigate facts

Noted employer's responsibility to investigate facts related to injury

From the decision · page 5Further note that Labor Code § 5402 (a) puts the onus on the employer to investigate the facts.

California Supreme Court

South Coast v. WCAB, 61 Cal.4th 291 (2015) - compensability of subsequent injuries related to initial industrial injury

Applied to support compensability of gastrointestinal injury as a consequence of the initial low back injury

From the decision · page 8This is what the WCJ was left with. "[W]orkers' compensation liability may... encompass a subsequent nonindustrial injury... attributable to the initial industrial accident." (South Coast, 61 Cal.4th at p. 297.) It has long been the rule that "the aggravation of an industrial injury or the infliction of a new injury resulting from its treatment or examination are compensable under the [Workers' Compensation Act] and, therefore, within the exclusive cognizance of the [WCAB]." (Fitzpatrick v. Fidelity & Casualty Co. (1936) 7 Cal.2d 230, 232.) In Maher v. Workers' Comp. Appeals Bd. (1983) 33 Cal.3d 729, 735-738 Applicant had an adverse drug reaction when treatment was required for employment.

California Supreme Court

Fitzpatrick v. Fidelity & Casualty Co., 7 Cal.2d 230 (1936) - aggravation of injury by medical treatment compensable

Cited to support compensability of injury caused by medical treatment

From the decision · page 8This is what the WCJ was left with. "[W]orkers' compensation liability may... encompass a subsequent nonindustrial injury... attributable to the initial industrial accident." (South Coast, 61 Cal.4th at p. 297.) It has long been the rule that "the aggravation of an industrial injury or the infliction of a new injury resulting from its treatment or examination are compensable under the [Workers' Compensation Act] and, therefore, within the exclusive cognizance of the [WCAB]." (Fitzpatrick v. Fidelity & Casualty Co. (1936) 7 Cal.2d 230, 232.) In Maher v. Workers' Comp. Appeals Bd. (1983) 33 Cal.3d 729, 735-738 Applicant had an adverse drug reaction when treatment was required for employment.

California Supreme Court

Maher v. WCAB, 33 Cal.3d 729 (1983) - adverse drug reaction compensable

Referenced for compensability of adverse drug reaction as industrial injury

From the decision · page 8This is what the WCJ was left with. "[W]orkers' compensation liability may... encompass a subsequent nonindustrial injury... attributable to the initial industrial accident." (South Coast, 61 Cal.4th at p. 297.) It has long been the rule that "the aggravation of an industrial injury or the infliction of a new injury resulting from its treatment or examination are compensable under the [Workers' Compensation Act] and, therefore, within the exclusive cognizance of the [WCAB]." (Fitzpatrick v. Fidelity & Casualty Co. (1936) 7 Cal.2d 230, 232.) In Maher v. Workers' Comp. Appeals Bd. (1983) 33 Cal.3d 729, 735-738 Applicant had an adverse drug reaction when treatment was required for employment.

California Court of Appeal

Hikida v. WCAB, 12 Cal.App.5th 1249 (2017) - aggravation of injury by medical treatment compensable

Applied to affirm compensability of gastrointestinal injury caused by medication used for pain relief

From the decision · page 8Further, an employee is entitled to compensation for a new or aggravated injury that results from the medical treatment of an industrial injury, whether the doctor was furnished by the employer, the insurance carrier, or was selected by the employee. (Hikida v. Workers' Comp. Appeals Bd. (20 17) 12 Cal.App.5th 1249, 1262 (Hikida) citing Fitzpatrick v. Fidelity & Casualty Co., supra, 7 Cal.2d at p. 232.) "Aggravation of the original injury by medical treatment is considered 'a foreseeable consequence of the original compensable injury, compensable within the workers' compensation proceeding and not the proper subject of an independent common law damage proceeding against the employer.'" (Hikida, at p.

Consistent testimony of Applicant regarding gastrointestinal symptoms and medication effects

From the decision · page 6All that was left to rely upon was the Applicant's consistent testimony to the court, to the AME, the primary treating physician and the secondary treating physician. Certainly, the secondary treating physician's report was incomplete and was disallowed.

Consistent reports from Primary Treating Physician Dr. Valdez noting gastrointestinal issues caused by medication

From the decision · page 6Dr. Valdez continued to treat the injured worker and noted, in each report that the medication was causing gastrointestinal issues. The Primary Treating Physician referred the matter to Dr. Rahban, who did not complete a ratable report.