ADJ10573852 · May 19, 2023

The medical evidence supports the existence of one cumulative trauma injury to the bilateral upper extremities, hearing loss, tinnitus, and hypertension, without separate injuries or multiple cumulative trauma injuries.

From the decision · page 2In Case No. ADJ10937269, applicant alleges injury to the bilateral upper extremities, and in the form of hearing loss, tinnitus, and hypertension, while employed a Deputy Sheriff by defendant County of Kern from May 8, 1990 through March 28, 2017. Defendant admits injury to the bilateral upper extremities, but contests injury in the form of hearing loss, tinnitus, and hypertension as arising out of the same cumulative trauma injury.

The WCJ properly relied on IME Dr. Fishman's opinion that adding the bilateral orthopedic disabilities prior to combining with non-orthopedic disabilities results in a more accurate permanent disability rating, supported by substantial medical evidence.

From the decision · page 3followed by the combination of the orthopedic disability with that of the hearing loss, tinnitus and hypertension. The WCJ's Opinion on Decision explained that while "generally impairments are combined rather than added together...when there is a synergistic effect between extremities, those ratings may be added together rather than combined." (F&A, Opinion on Decision, at p. 8.) The WCJ relied on the reporting of IME Dr. Fishman to support adding the orthopedic disability prior to combining it with non-orthopedic disabilities. (Ibid.)

Medical evidence supports one cumulative trauma injury to bilateral upper extremities, hearing loss, tinnitus, and hypertension.

Favours Applicant prevailed

This supports the applicant's claim and rejects defendant's contention of multiple injuries.

From the decision · page 2In Case No. ADJ10937269, applicant alleges injury to the bilateral upper extremities, and in the form of hearing loss, tinnitus, and hypertension, while employed a Deputy Sheriff by defendant County of Kern from May 8, 1990 through March 28, 2017. Defendant admits injury to the bilateral upper extremities, but contests injury in the form of hearing loss, tinnitus, and hypertension as arising out of the same cumulative trauma injury.

IME Dr. Fishman's opinion supports adding bilateral orthopedic disabilities prior to combining with non-orthopedic disabilities for a more accurate permanent disability rating.

Favours Applicant prevailed

This supports the WCJ's rating method and the applicant's permanent disability award.

From the decision · page 3followed by the combination of the orthopedic disability with that of the hearing loss, tinnitus and hypertension. The WCJ's Opinion on Decision explained that while "generally impairments are combined rather than added together...when there is a synergistic effect between extremities, those ratings may be added together rather than combined." (F&A, Opinion on Decision, at p. 8.) The WCJ relied on the reporting of IME Dr. Fishman to support adding the orthopedic disability prior to combining it with non-orthopedic disabilities. (Ibid.)

Attributes hypertension to long-term NSAID use and occupational stress; finds no periods of temporary disability from hypertension.

Supports the existence of one cumulative trauma injury and no separate injuries or temporary disability periods.

From the decision · page 3The WCJ's Report observes that the medical evidence supports the existence of but one cumulative trauma. (Report, at p. 4.) The WCJ observes that internal medicine IME Dr. O'Neill attributes applicant's hypertension to long-term usage of NSAID medications and to occupational

Attributes hearing loss and tinnitus to cumulative noise trauma from employment; finds no periods of temporary disability from these conditions.

Supports the existence of one cumulative trauma injury and no separate injuries or temporary disability periods.

From the decision · page 4stress. Similarly, otolaryngologist IME Dr. Berman attributes applicant's permanent disability to work exposures over the length of his career. (Id. at p. 5.) The Report also observes that the medical record appropriately supports the addition of applicant's orthopedic disabilities, prior to combination with the non-orthopedic disabilities. (Id. at p. 7.) The WCJ recommends we grant defendant's Petition to issue an Amended Findings and Awards as requested in applicant's March 3, 2023 Petition for Amendment.

Supports adding bilateral orthopedic disability prior to combining with non-orthopedic disabilities for a more accurate permanent disability rating due to synergistic effect between extremities.

The physician explained that the inability of one extremity to compensate for the other injured extremity creates a synergistic effect, justifying addition rather than combination of impairments.

From the decision · page 3followed by the combination of the orthopedic disability with that of the hearing loss, tinnitus and hypertension. The WCJ's Opinion on Decision explained that while "generally impairments are combined rather than added together...when there is a synergistic effect between extremities, those ratings may be added together rather than combined." (F&A, Opinion on Decision, at p. 8.) The WCJ relied on the reporting of IME Dr. Fishman to support adding the orthopedic disability prior to combining it with non-orthopedic disabilities. (Ibid.)

Hegglin v. Workmen's Comp. Appeals Bd. (1971) 4 Cal.3d 162

Separate disabilities arising out of a single injury are rated together, even if they do not become permanent and stationary at the same time.

Supports combining disabilities from one cumulative injury into a single rating.

From the decision · page 5It has long been the law that separate disabilities arising out of a single injury are rated together, even if those disabilities do not become permanent and stationary at the same time. (Hegglin v. Workmen's Comp. Appeals Bd. (1971) 4 Cal.3d 162 [36 Cal.Comp.Cases 93] [chef suffered specific back injury but, as a result of blood transfusions given during later back surgery, contracted hepatitis; employee's spinal disability and liver disability were rated together in one combined award, with consideration being given to duplicate or overlapping work limitations]; Morgan v. Workers' Comp. Appeals Bd. (1978) 85 Cal.App.3d 710 [149 Cal. Rptr. 736, 43 Cal.Comp.Cases 1116] (Morgan) [police officer suffered a cumulative injury causing hypertension, peptic ulcer, hepatitis, gastrointestinal bleeding, and hernia; employee's separate disabilities were rated together in one combined award, with consideration being given to duplicate or overlapping work limitations]; Mihesuah v. Workers' Comp. Appeals Bd. (1976) 55 Cal.App.3d

Labor Code section 5412

The date of injury in cumulative injury cases is when the employee first suffered disability and knew or should have known it was caused by employment.

Defines date of injury for cumulative trauma cases.

From the decision · page 7In turn, section 5412 states; "The date of injury in cases of... cumulative injuries is that date upon which the employee first suffered disability therefrom and either knew, or in the exercise of reasonable diligence should have known, that such disability was caused by his present or prior employment." Therefore, in cumulative injury cases, there is no "date of injury" until there is a concurrence of both disability and knowledge. (Bassett-McGregor v. Workers' Comp. Appeals Bd. (1988) 205 Cal.App.3d 1102, 1110 [252 Cal. Rptr. 868, 53 Cal.Comp.Cases 502].) As used in section 5412, "disability" means either compensable temporary disability or permanent disability. (State Compensation Insurance Fund v. Workers' Comp. Appeals Bd. (Rodarte) (2004) 119 Cal.App.4th 998, 1002§ 1004, 1005§ 1006 [14 Cal. Rptr. 3d 793, 69 Cal.Comp.Cases 579]; Chavira v. Workers' Comp. Appeals Bd. (1991) 235 Cal.App.3d 463, 473§ 474 [286 Cal. Rptr. 600, 56 Cal.Comp.Cases 631].)

Los Angeles County Metro. Transp. Authority v. Workers' Comp. Appeals Bd. (La Count) (2015) 80 Cal.Comp.Cases 470

An evaluating physician may determine that adding rather than combining WPI or permanent disability ratings results in a more accurate rating.

Supports adding bilateral orthopedic disabilities prior to combining with non-orthopedic disabilities.

From the decision · page 11However, an evaluating physician may determine that the injured employee's WPI or permanent disability is more accurately measured by adding rather than combining WPI or permanent disability ratings under the CVC. (Los Angeles County Metro. Transp. Authority v. Workers' Comp. Appeals Bd. (La Count) (2015) 80 Cal.Comp.Cases 470 [2015 Cal. Wrk. Comp. LEXIS 47] (La Count); Athens Administrators v. Workers' Comp. Appeals Bd. (Kite) (2013) 78 Cal.Comp.Cases 213 [2013 Cal. Wrk. Comp. LEXIS 34] (writ denied) (Kite).)

Applicant continued to work without restrictions until September 11, 2017, when he went off work following carpal tunnel surgery.

From the decision · page 9Here, however, defendant's petition for reconsideration fails to cite to evidence in the record establishing that, during the May 8, 1990 through March 28, 2017 period of cumulative injury found by the WCJ, applicant's employment caused compensable temporary or permanent disability, after which he returned to work (or continued to work) thereby causing new and additional temporary or permanent disability. Rather, applicant continued to work without restrictions per PTP Dr. Ngo throughout much of 2017, until finally going off work on or about September 11, 2017 following the first of his carpal tunnel surgeries. (Ex. 1, report of IME Bruce Fishman, M.D., dated November 12, 2019, at p. 35.) Applicant did not return to work thereafter.