ADJ9095312 — California WCAB decision

What the panel ordered

The May 6, 2019 Findings and Award is rescinded and substituted with new findings; many issues are deferred for further proceedings.

Applicant and defendant both seek reconsideration of the May 6, 2019 Findings and Award (F&A) regarding industrial injury and disability issues.

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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/COEMixedneck · back · both shoulders · right thumb · right middle finger · both hips · ears · traumatic brain injury · post-traumatic head syndrome · sleep disorder · psyche

The Board rescinded the prior findings and substituted new findings on injury scope and liability, deferring some issues for further development.

From the decision · page 2We have considered the allegations in Applicant's Petition, Defendant's Petition, both Answers, and the contents of the WCJ's Reports. Based on our review of the record, and for the reasons discussed below, we will rescind the F&A and substitute new findings of fact finding that applicant sustained injury to the neck, back, both shoulders, right thumb and right middle finger, both hips, and ears, and in the form of traumatic brain injury and post-traumatic head syndrome; we will defer the issue of injury to the body parts of sleep disorder and psyche; we will find that the date of injury was September 16, 2013 and that applicant's claim is not barred by section 5405; and we will find that applicant is in need of further medical treatment to cure or relieve from the effects of his industrial injury. We will defer issues of applicant's earning capacity, temporary disability, permanent and stationary date, permanent disability, apportionment, and attorney fees. We will also defer the issue of defendant's liability for the Award under section 5005, and the

The facts that decided it

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

Applicant sustained industrial injury to multiple body parts including neck, back, shoulders, fingers, hips, ears, traumatic brain injury, and post-traumatic head syndrome.

Favours Applicant prevailed

This finding formed the basis for rescinding the prior award and substituting new findings.

From the decision · page 2We have considered the allegations in Applicant's Petition, Defendant's Petition, both Answers, and the contents of the WCJ's Reports. Based on our review of the record, and for the reasons discussed below, we will rescind the F&A and substitute new findings of fact finding that applicant sustained injury to the neck, back, both shoulders, right thumb and right middle finger, both hips, and ears, and in the form of traumatic brain injury and post-traumatic head syndrome; we will defer the issue of injury to the body parts of sleep disorder and psyche; we will find that the date of injury was September 16, 2013 and that applicant's claim is not barred by section 5405; and we will find that applicant is in need of further medical treatment to cure or relieve from the effects of his industrial injury. We will defer issues of applicant's earning capacity, temporary disability, permanent and stationary date, permanent disability, apportionment, and attorney fees. We will also defer the issue of defendant's liability for the Award under section 5005, and the

Applicant's claim is not barred by the statute of limitations under Labor Code section 5405.

Favours Applicant prevailed

This supported the Board's decision to proceed with the claim despite defendant's denial.

From the decision · page 305. Applicant's claim is not barred by the one-year statute of limitations under Labor Code section 5405.

Reports from treating physicians were admitted and relied upon despite defendant's denial of liability.

Favours Applicant prevailed

This supported the credibility and admissibility of medical evidence for applicant's injury.

From the decision · page 7Here, applicant instituted proceedings for the collection of benefits by the filing of an Application for Adjudication on September 13, 2013. Defendant denied liability as of December 17, 2013. (Ex. A, Notice of Denial of Claim, December 17, 2013.) Applicant thereafter nominated Michael Einbund, M.D., to act as a treating physician, and Dr. Einbund conducted a clinical examination of applicant on November 20, 2015. (Ex. 2, Report of Michael Einbund, M.D., dated November 20, 2015, at p. 1.) Following his initial evaluation of applicant, Dr. Einbund noted presenting symptoms corresponding to conditions outside his medical specialty and requested authorization to make the appropriate referrals to other physicians specializing in neurology, psychiatry and internal medicine. (Id. at p. 12.) Thereafter, applicant self-procured treatment with Drs. Nudleman, Greenzang, Berman, and Reynolds. As attending and consulting physicians, the reports from each of the doctors are admissible. (Batten v. Workers' Comp. Appeals Bd., supra at 1016.)

Vocational expert report was found unpersuasive due to reliance on incorrect legal theory regarding apportionment.

Favours Defendant prevailed

This led to deferral of permanent disability and apportionment issues for further record development.

From the decision · page 18Here, the vocational expert impermissibly discounts the nonindustrial apportionment identified by the evaluating physicians by asserting that the factors of apportionment did not impair applicant's ability to work "fully duty." (Ex. 16, Report of Luis Mas, Ph.D., March 7, 2017, at p. 39.) However, pursuant to our analysis in Nunes, supra, such "vocational apportionment" is incompatible with section 4663. Accordingly, and for the reasons discussed by the WCJ in the Report on Applicant's Petition, we agree that the vocational reporting does not constitute substantial evidence and the record requires further development pursuant to our decision in Nunes, supra.

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 · orthopedic medicine

Conducted clinical examination and requested referrals for symptoms outside his specialty.

His reports were admitted and relied upon as treating physician evidence.

From the decision · page 7Here, applicant instituted proceedings for the collection of benefits by the filing of an Application for Adjudication on September 13, 2013. Defendant denied liability as of December 17, 2013. (Ex. A, Notice of Denial of Claim, December 17, 2013.) Applicant thereafter nominated Michael Einbund, M.D., to act as a treating physician, and Dr. Einbund conducted a clinical examination of applicant on November 20, 2015. (Ex. 2, Report of Michael Einbund, M.D., dated November 20, 2015, at p. 1.) Following his initial evaluation of applicant, Dr. Einbund noted presenting symptoms corresponding to conditions outside his medical specialty and requested authorization to make the appropriate referrals to other physicians specializing in neurology, psychiatry and internal medicine. (Id. at p. 12.) Thereafter, applicant self-procured treatment with Drs. Nudleman, Greenzang, Berman, and Reynolds. As attending and consulting physicians, the reports from each of the doctors are admissible. (Batten v. Workers' Comp. Appeals Bd., supra at 1016.)

PTPRelied upon · neurology

Provided treatment reports admitted as evidence.

Reports admitted as treating physician evidence despite defendant's denial of liability.

From the decision · page 7Here, applicant instituted proceedings for the collection of benefits by the filing of an Application for Adjudication on September 13, 2013. Defendant denied liability as of December 17, 2013. (Ex. A, Notice of Denial of Claim, December 17, 2013.) Applicant thereafter nominated Michael Einbund, M.D., to act as a treating physician, and Dr. Einbund conducted a clinical examination of applicant on November 20, 2015. (Ex. 2, Report of Michael Einbund, M.D., dated November 20, 2015, at p. 1.) Following his initial evaluation of applicant, Dr. Einbund noted presenting symptoms corresponding to conditions outside his medical specialty and requested authorization to make the appropriate referrals to other physicians specializing in neurology, psychiatry and internal medicine. (Id. at p. 12.) Thereafter, applicant self-procured treatment with Drs. Nudleman, Greenzang, Berman, and Reynolds. As attending and consulting physicians, the reports from each of the doctors are admissible. (Batten v. Workers' Comp. Appeals Bd., supra at 1016.)

PTPRelied upon · otolaryngology

Provided treatment reports admitted as evidence.

Reports admitted as treating physician evidence despite defendant's denial of liability.

From the decision · page 7Here, applicant instituted proceedings for the collection of benefits by the filing of an Application for Adjudication on September 13, 2013. Defendant denied liability as of December 17, 2013. (Ex. A, Notice of Denial of Claim, December 17, 2013.) Applicant thereafter nominated Michael Einbund, M.D., to act as a treating physician, and Dr. Einbund conducted a clinical examination of applicant on November 20, 2015. (Ex. 2, Report of Michael Einbund, M.D., dated November 20, 2015, at p. 1.) Following his initial evaluation of applicant, Dr. Einbund noted presenting symptoms corresponding to conditions outside his medical specialty and requested authorization to make the appropriate referrals to other physicians specializing in neurology, psychiatry and internal medicine. (Id. at p. 12.) Thereafter, applicant self-procured treatment with Drs. Nudleman, Greenzang, Berman, and Reynolds. As attending and consulting physicians, the reports from each of the doctors are admissible. (Batten v. Workers' Comp. Appeals Bd., supra at 1016.)

PTPPartially credited · psychiatry

Provided psychiatric treatment reports; some internal inconsistencies noted regarding psychiatric injury causation and apportionment.

Reports admitted but found internally inconsistent, leading to deferral of psychiatric disability issues.

From the decision · page 21The preferred procedure to develop a deficient record is to allow supplementation of the medical record by the physicians who have already reported in the case. (McDuffie v. Los Angeles County Metropolitan Transit Authority (2002) 67 Cal.Comp.Cases 138 (Appeals Board en banc).) Thereafter, per McDuffie, if the existing physicians cannot cure the need for development of the record, the selection of an agreed medical evaluator (AME) should be considered by the parties. If the parties cannot agree to an AME, then the WCJ can appoint a regular physician to evaluate applicant pursuant to section 5701. Here, the reporting of Dr. Greenzang is internally inconsistent as to the predominant cause of applicant's claimed psychiatric injury, and further offers significant changes to the apportionment analysis without corresponding discussion of the causation analysis. We will therefore amend the F&A to defer then issue of psychiatric disability and return this matter to the trial level for development of the record.

QMERelied upon · orthopedic medicine

Selected as QME in orthopedic medicine; his report was considered substantial evidence.

Defendant contended only his report was appropriate medical-legal evidence; the Board relied on it along with treating physicians' reports.

From the decision · page 5Defendant's Petition contends its pro rata liability for any award is 16 percent, based on applicant's actual days of injurious exposure with the Los Angeles Dodgers. (Defendant's Petition, at 6:17.) Defendant also contends that orthopedic QME Dr. Lewis issued the only appropriately obtained medical-legal reporting, and that the reporting of Drs. Nudleman, Greenzang, and Berman are "cloaked as treating physicians to attempt to circumvent Labor Code section 4062.2." (Id. at 8:22.) Defendant further maintains that the reporting of Dr. Greenzang is not substantial medical evidence, and that "factual error, an inconclusive brain SPECT study and an unsupported assessment of the applicant's brain condition are not substantial evidence to support a finding applicant sustained a catastrophic injury," per section 4660.1(c)(2)(B).

The rules the panel named

Authorities as the decision cited them, with how this panel applied each one.

Labor Code section 5412

Labor Code section 5412 regarding date of injury for cumulative trauma.

Applied to determine the legal date of injury as September 16, 2013.

From the decision · page 304. Pursuant to Labor Code section 5412 the legal date of Applicant's cumulative trauma injury is September 16, 2013.

Labor Code section 5405

Labor Code section 5405 regarding statute of limitations.

Applied to find claim not barred by statute of limitations.

From the decision · page 305. Applicant's claim is not barred by the one-year statute of limitations under Labor Code section 5405.

Labor Code section 4662

Labor Code section 4662 regarding permanent disability and presumptive total disability.

Deferred determination of presumptive total disability and permanent disability pending further evidence.

From the decision · page 28In summary, we agree with the WCJ's decision to rely on the reporting of applicant's treating physicians along with the QME in this matter, and do not find that applicant obtained the reporting in contravention of section 4062.2. We further affirm the WCJ's determination as to the date of injury pursuant to section 5412. We agree that applicant has not established that he is totally disabled "in accordance with the fact" pursuant to section 4662(b), but will defer the issue of whether applicant has established presumptive total disability under section 4662(a)(4). We conclude that the record at present does not adequately address the issue of whether applicant has sustained compensable psychiatric injury or sleep disorder, and we will return the matter to the

Labor Code section 4663

Labor Code section 4663 regarding apportionment analysis.

Deferred apportionment issues pending further record development.

From the decision · page 18Here, the vocational expert impermissibly discounts the nonindustrial apportionment identified by the evaluating physicians by asserting that the factors of apportionment did not impair applicant's ability to work "fully duty." (Ex. 16, Report of Luis Mas, Ph.D., March 7, 2017, at p. 39.) However, pursuant to our analysis in Nunes, supra, such "vocational apportionment" is incompatible with section 4663. Accordingly, and for the reasons discussed by the WCJ in the Report on Applicant's Petition, we agree that the vocational reporting does not constitute substantial evidence and the record requires further development pursuant to our decision in Nunes, supra.

What proof carried it

The evidence the panel weighed, by kind.

Medical recordsfavours Applicant prevailed

Reports from treating physicians were admitted and relied upon despite defendant's denial of liability.

From the decision · page 7Here, applicant instituted proceedings for the collection of benefits by the filing of an Application for Adjudication on September 13, 2013. Defendant denied liability as of December 17, 2013. (Ex. A, Notice of Denial of Claim, December 17, 2013.) Applicant thereafter nominated Michael Einbund, M.D., to act as a treating physician, and Dr. Einbund conducted a clinical examination of applicant on November 20, 2015. (Ex. 2, Report of Michael Einbund, M.D., dated November 20, 2015, at p. 1.) Following his initial evaluation of applicant, Dr. Einbund noted presenting symptoms corresponding to conditions outside his medical specialty and requested authorization to make the appropriate referrals to other physicians specializing in neurology, psychiatry and internal medicine. (Id. at p. 12.) Thereafter, applicant self-procured treatment with Drs. Nudleman, Greenzang, Berman, and Reynolds. As attending and consulting physicians, the reports from each of the doctors are admissible. (Batten v. Workers' Comp. Appeals Bd., supra at 1016.)

expert methodologyfavours Defendant prevailed

Vocational expert report was found unpersuasive due to reliance on incorrect legal theory regarding apportionment.

From the decision · page 18Here, the vocational expert impermissibly discounts the nonindustrial apportionment identified by the evaluating physicians by asserting that the factors of apportionment did not impair applicant's ability to work "fully duty." (Ex. 16, Report of Luis Mas, Ph.D., March 7, 2017, at p. 39.) However, pursuant to our analysis in Nunes, supra, such "vocational apportionment" is incompatible with section 4663. Accordingly, and for the reasons discussed by the WCJ in the Report on Applicant's Petition, we agree that the vocational reporting does not constitute substantial evidence and the record requires further development pursuant to our decision in Nunes, supra.

ADJ9095312 · February 29, 2024

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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