ADJ10080187 — California WCAB decision

What the panel ordered

Petition for Reconsideration is denied.

Defendant filed a timely Petition for Reconsideration of the Findings & Award with Opinion on Decision dated June 1, 2022, which was denied by the WCAB panel.

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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/COEApplicant prevailedheart · lungs

The WCJ found that the QME Dr. Ganzhorn's opinion, which changed to attribute the heart and lung injuries to compensable consequence of weight gain caused by reduced physical activity from accepted orthopedic injuries, was substantial medical evidence supporting injury AOE/COE to heart and lungs.

From the decision · page 5The basic allegation in [defendant's] Petition is that Dr. Ganzhorn's opinion on injury AOE/COE with respect to the heart and lungs is not substantial evidence because he did not sufficiently explain or provide a basis for his mechanism of injury theory, which is the Applicant gained a significant amount of weight post-injury as a compensable consequence of his accepted orthopedic injuries, which reduced and limited his physical activity level, and in turn contributed to the development of obesity, OSA, hyperventilation syndrome, and right sided heart failure obesity. (See Petition at p. 3.) It is true that Dr. Ganzhorn did not come around to this opinion until his deposition on March 26, 2021, (Joint 102 at pp. 21-22, when the light seemed to come as to that concept with questioning by Applicant's attorney Ryan Smith.

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 · pulmonology

Initially opined no industrial causation for pulmonary/heart issues due to pre-existing overweight, but later changed to find compensable consequence injury due to weight gain caused by reduced physical activity from accepted orthopedic injuries.

The QME's later opinion was found substantial medical evidence supporting injury AOE/COE to heart and lungs.

From the decision · page 5The basic allegation in [defendant's] Petition is that Dr. Ganzhorn's opinion on injury AOE/COE with respect to the heart and lungs is not substantial evidence because he did not sufficiently explain or provide a basis for his mechanism of injury theory, which is the Applicant gained a significant amount of weight post-injury as a compensable consequence of his accepted orthopedic injuries, which reduced and limited his physical activity level, and in turn contributed to the development of obesity, OSA, hyperventilation syndrome, and right sided heart failure obesity. (See Petition at p. 3.) It is true that Dr. Ganzhorn did not come around to this opinion until his deposition on March 26, 2021, (Joint 102 at pp. 21-22, when the light seemed to come as to that concept with questioning by Applicant's attorney Ryan Smith.

QMENot substantial evidence · pain specialist

Evaluated accepted orthopedic injuries; reporting not disputed.

From the decision · page 3A summary of the relevant facts follows, which is an abridged version of the facts outlined in the Opinion on Decision (Opinion) at pages 4-9. Applicant sustained an accepted specific injury to his low back, left hip, right ribs, and right clavicle on July 3, 2015, while employed as a roofer by Bret Hummer DBA Modern Method Roofing, when he fell while carrying a heavy roll of roofing material, which ended up on top of his chest, crushing his torso. (Id. at p. 4, Minutes of Hearing and Summary of Evidence (MOH/SOE) dated 2/24/22 at pp. 5-6.) The current primary QME is pain specialist, Lawrence Weil, M.D., who evaluated the accepted orthopedic injuries and whose reporting, at this point and so far as I can tell, is not disputed. (Id. at p. 3.) Applicant later alleged heart and lung/pulmonary injuries either as a direct specific injury and/or as a compensable consequence. The Applicant was ultimately evaluated for that claim by QME, Dr. Frank Ganzhorn, after defendant agreed with Applicant's request for an additional panel in pulmonology at an

QMENot substantial evidence · pain specialist

Initially found Applicant not P&S for orthopedic injuries; later found P&S and suggested pulmonary consultation for breathing complaints.

From the decision · page 4The original QME, pain specialist Leslie Schofferman, M.D., in his initial report dated November 22, 2016, found the Applicant was not yet P&S for the orthopedic injuries. He also incidentally referenced shortness of breath complaints. (Joint 105, Report of 11/22/16 at p. 16.) In a re-exam on June 27, 2017, Dr. Schofferman found Applicant to be P&S for the orthopedic injuries, provided impairment ratings, diagnosed a pulmonary contusion, and suggested ("it would not be unreasonable") a pulmonary consultation with respect to the Applicant's complaints of nocturnal cough and shortness of breath. (MOH/SOE at p.

secondary_treaterNot substantial evidence · pulmonology

Diagnosed dyspnea, suspected obstructive sleep apnea, GERD, obesity; noted weight gain post-injury.

From the decision · page 45, Joint 105, Report of 6/27/17 at pp. 16-17.) Those conditions were subsequently evaluated by a consulting pulmonologist, Narendra Malani, M.D., in November 2018, who among other things, diagnosed dyspnea, unspecified type, daytime hypersomonolence, with strongly suspected obstructive sleep apnea (OSA), GERD, and obesity, with a reported weight gain of 30 pounds in the past year. (Id. at p. 5, Joint 103, Report/Office Visit Note of 11/7/18 at p. 1.) At the time of that first report, Dr. Malani recorded the Applicant's weight as 245 pounds, and by the time of a second visit with Dr. Malani on October 28, 2019, the Applicant's weight had increased to 260 pounds. (Id. at p. 6, Joint 103, Report of 12/18/19 at p. 3.) By the time the QME Dr. Ganzhorn examined Applicant on August 20, 2020, the Applicant weighed 262 pounds. (Id. at p. 6, Joint 101, Report of 8/20/20 at p. 7.)

The rules the panel named

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

Labor Code section 5952(d); Escobedo v. Marshalls (2005); Lamb v. Workmen's Comp. Appeals Bd. (1974); Garza v. Workmen's Comp. Appeals Bd. (1970); LeVesque v. Workmen's Comp. Appeals Bd. (1970); E.L. Yeager Construction v. Workers' Comp. Appeals Bd. (Gatten) (2006)

Substantial evidence standard for medical opinion in workers' compensation cases

The QME's opinion was found to meet the substantial evidence standard as it was based on reasonable medical probability, accurate history, examination, and explained reasoning.

From the decision · page 5The alleged error is my finding that the Dr. Ganzhorn's opinion on this subject, which changed during his deposition and which he stood by in later supplemental reports, is substantial medical evidence, and was a proper basis for the F&A with respect to injury AOE/COE to the heart and lungs. As I noted in the Opinion at p. 9, any finding or award by a WCJ must be supported by substantial evidence in light of the entire record. (Labor Code section 5952(d); Escobedo v. Marshalls (2005) (Appeals Board en banc) 70 Cal.Comp.Cases 604, 620; Lamb v. Workmen's Comp. Appeals Bd. (1974) 11 Cal.3d 274, 281 [39 Cal.Comp.Cases 310, 314]; Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312, 317 [35 Cal.Comp.Cases 500, 503]; LeVesque v. Workmen's Comp. Appeals Bd. (1970) 1 Cal.3d 627, 635 [35 Cal.Comp.Cases 16, 22].) To be substantial evidence, expert medical opinion must be framed in terms of reasonable

South Coast Framing, Inc. v. Workers' Comp. Appeals Bd. (2015) 80 Cal.Comp.Cases 489, 495-496, 61 Cal.4th 291

Causation and compensability standard for injury AOE/COE in California workers' compensation law

Any measurable contribution to a new injury by consequences of an accepted injury is sufficient to render the injury compensable as a consequence; proximate cause is a question of fact for the judge.

From the decision · page 6Most significantly, when assessing industrial causation of injury and the closely related question of proximate cause, the leading California case to keep in mind is South Coast Framing, Inc. v. Workers' Comp. Appeals Bd. (2015) 80 Cal.Comp.Cases 489, 495-496, 61 Cal.4th 291, which although referenced in my Opinion at pp. 10, 11, was not formally cited. In that case, the California Supreme Court makes clear that essentially any measurable and/or discernable amount of causation or contribution to a new injury by the consequences of an accepted injury, is sufficient to render such an injury industrial as a compensable consequence. The opinion also notes there is a significant difference between the legal concepts and standards of causation and compensability in the context of California workers' compensation law as compared to tort law, and the court left no doubt as to where they stand or the applicable rule with respect to injury AOE/COE.

What proof carried it

The evidence the panel weighed, by kind.

Testimony and credibilityfavours Applicant prevailed

Applicant's trial testimony of breathing problems worsening post-injury and weight gain

From the decision · page 4The Applicant testified through a Spanish interpreter at trial on February 23, 2022. (MOH/SOE at pp. 5-11.) With respect to the key issues of injury to his heart and lungs, he had breathing problems immediately after the injury, and upon release from the hospital was given a device an instructed to perform breathing exercises with it by exhaling to keep a ball in the air inside the device. (MOH/SOE at p. 6.) Over time, his breathing problems did not abate and actually got worse, and he sometimes wakes up with a choking sensation. (Id. at p. 6, 7.) Once post-injury, he had to go to the ER because of breathing issues, and he believes they have increased and gotten worse as his weight has increased over time. (Id. at p. 7.) He denied any problems with snoring or shortness of breath before his injury. (Id. at p. 10.)

Medical recordsfavours Applicant prevailed

Medical reports and deposition testimony of QME Dr. Ganzhorn supporting compensable consequence injury due to weight gain

From the decision · page 5The basic allegation in [defendant's] Petition is that Dr. Ganzhorn's opinion on injury AOE/COE with respect to the heart and lungs is not substantial evidence because he did not sufficiently explain or provide a basis for his mechanism of injury theory, which is the Applicant gained a significant amount of weight post-injury as a compensable consequence of his accepted orthopedic injuries, which reduced and limited his physical activity level, and in turn contributed to the development of obesity, OSA, hyperventilation syndrome, and right sided heart failure obesity. (See Petition at p. 3.) It is true that Dr. Ganzhorn did not come around to this opinion until his deposition on March 26, 2021, (Joint 102 at pp. 21-22, when the light seemed to come as to that concept with questioning by Applicant's attorney Ryan Smith.

ADJ10080187 · August 23, 2022

What the panel ordered

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