ADJ10641716 · October 7, 2022

Applicant's coronary heart disease and skin scarring were found industrial based on medical opinion and testimony establishing work stress as a contributing factor within two years of the cardiac event.

From the decision · page 2As explained below, we rescind the WCJ's decision in case ADJ10641716 and issue a new decision reflecting that applicant sustained industrial injury in the forms of coronary heart disease and skin scarring causing temporary disability from November 11, 2015 to February 21, 2016, and 40% permanent disability. With regard to case ADJ10749935, we will affirm the finding of industrial injury, but we amend the decision to reflect that applicant did not prove entitlement to temporary disability. We also amend the decision to reflect that applicant sustained permanent disability of 21%, as it appears that the 8% referenced in the decision was the unadjusted whole person impairment rather than the permanent disability after adjustment for the 1.4 multiplier, occupation and age. I. Applicant's Petition in case ADJ10641716

WCJ's finding of industrial injury to back, neck and right shoulder was affirmed based on credible testimony and medical opinions favoring applicant's treating physician over defense QME.

From the decision · page 6record compelling enough for us to reject the WCJ's determination that the opinions of Dr. Tabibian were more persuasive than the opinions of Dr. Woods. We therefore affirm the finding of industrial injury.

Permanent disability was awarded at 40% without apportionment due to insufficient medical explanation for apportionment by Dr. Capen.

From the decision · page 5Accordingly, we find applicant entitled to an unapportioned award of permanent disability. Since Dr. Capen did not adequately discuss apportionment of the heart impairment, apportionment any apportionment of the resultant skin impairment is also not supported by substantial medical evidence. Since there is not substantial medical evidence of apportionment, there is no need to consider the applicability of Hikida v. Workers' Comp. Appeals Bd. (2017) 12 Cal.App.5th 1249 [82 Cal.Comp.Cases 679] to the instant case. We find that applicant's injury in the instant case caused permanent disability of 40%.2 II. Defendant's Petition in case ADJ10749935

Permanent disability was amended to 21% based on adjusted rating from treating physician's report.

From the decision · page 6Finally, we will amend the decision to reflect that applicant has sustained 21% permanent disability. The decision erroneously states 8% permanent disability, but the 8% refers to the WPI before adjustment. (January 31, 2018 report of Dr. Tabibian at p. 8.) The 21% permanent disability is calculated as follows: 15.03.01.00 § 8 [1.4] 11 [480I] 16 § 21.

Applicant was found temporarily disabled from November 11, 2015 to February 21, 2016 due to heart surgery recovery, supported by medical opinion and applicant's testimony.

From the decision · page 3B. Temporary Disability Dr. Capen opined that applicant was temporarily totally disabled from November 11, 2015 through February 21, 2016 as a result of heart injury. (August 3, 2017 report at p. 51.) These dates are consistent with applicant's testimony that he was off work for three months after his surgery and returned to work in February. (Minutes of Hearing and Summary of Evidence of February 13, 2019 trial at p. 9.) We therefore find temporary disability corresponding to those dates.

Applicant did not prove entitlement to temporary disability for orthopedic injury due to lack of wage loss evidence despite medical treatment and work restrictions.

From the decision · page 6However, we will delete any finding of temporary disability. Applicant testified that he worked from his return from his heart temporary disability on February 21, 2016 until his retirement in July of 2017. (Minutes of Hearing and Summary of Evidence of February 13, 2019 trial at p. 9.) There was no evidence or allegation that applicant retired due to any disability or defendant not accommodating applicant's work restrictions. In State Compensation Ins. Fund v. Workers' Comp.Appeals Bd. (Rodarte) (2004) 119 Cal.App.4th 998, 1003 [69 Cal.Comp.Cases 579], the Court of Appeal made clear that neither medical treatment nor modified work restrictions without wage loss, in and of themselves, are sufficient to constitute "disability." "[T]here is no compensable temporary disability until the worker suffers wage loss." (Rodarte, 119 Cal.App.4th at p. 1003.) "[T]emporary disability indemnity is payable during the injured worker's healing period from the injury until the worker has recovered sufficiently to return to work, or until his/her condition reaches a permanent and stationary status." (Huston v. Workers' Comp. Appeals Bd. (1979) 95 Cal.App.3d 856, 868 [44 Cal.Comp.Cases 798].) Here, applicant did not present any evidence supporting wage loss as a result of his orthopedic injury. We therefore find that applicant did not prove entitlement to temporary disability in this case.

Applicant experienced workplace stress within two years of heart surgery

Favours Applicant prevailed

Supported industrial causation of coronary heart disease and skin injury

From the decision · page 3However, at his January 11, 2018 deposition, Dr. Capen clarified that industrial causation would still apply if applicant experienced work stress within two years of the November 2015 heart surgery. Dr. Capen testified, "[T]he medical literature is based on patient-reported stress within two years of the cardiac event, and he may have had a stress free interval. If his stress had occurred within those two years, it would still be applicable." (January 11, 2018 deposition at pp. 19-20.)

Applicant was off work from November 11, 2015 to February 21, 2016

Favours Applicant prevailed

Supported temporary disability entitlement for heart injury

From the decision · page 3B. Temporary Disability Dr. Capen opined that applicant was temporarily totally disabled from November 11, 2015 through February 21, 2016 as a result of heart injury. (August 3, 2017 report at p. 51.) These dates are consistent with applicant's testimony that he was off work for three months after his surgery and returned to work in February. (Minutes of Hearing and Summary of Evidence of February 13, 2019 trial at p. 9.) We therefore find temporary disability corresponding to those dates.

Applicant worked without wage loss from return after heart surgery until retirement

Favours Defendant prevailed

Supported denial of temporary disability for orthopedic injury

From the decision · page 6However, we will delete any finding of temporary disability. Applicant testified that he worked from his return from his heart temporary disability on February 21, 2016 until his retirement in July of 2017. (Minutes of Hearing and Summary of Evidence of February 13, 2019 trial at p. 9.) There was no evidence or allegation that applicant retired due to any disability or defendant not accommodating applicant's work restrictions. In State Compensation Ins. Fund v. Workers' Comp.Appeals Bd. (Rodarte) (2004) 119 Cal.App.4th 998, 1003 [69 Cal.Comp.Cases 579], the Court of Appeal made clear that neither medical treatment nor modified work restrictions without wage loss, in and of themselves, are sufficient to constitute "disability." "[T]here is no compensable temporary disability until the worker suffers wage loss." (Rodarte, 119 Cal.App.4th at p. 1003.) "[T]emporary disability indemnity is payable during the injured worker's healing period from the injury until the worker has recovered sufficiently to return to work, or until his/her condition reaches a permanent and stationary status." (Huston v. Workers' Comp. Appeals Bd. (1979) 95 Cal.App.3d 856, 868 [44 Cal.Comp.Cases 798].) Here, applicant did not present any evidence supporting wage loss as a result of his orthopedic injury. We therefore find that applicant did not prove entitlement to temporary disability in this case.

Medical opinion favored treating physician over defense QME for orthopedic injury

Favours Applicant prevailed

Supported affirmation of industrial injury and permanent disability award

From the decision · page 6record compelling enough for us to reject the WCJ's determination that the opinions of Dr. Tabibian were more persuasive than the opinions of Dr. Woods. We therefore affirm the finding of industrial injury.

Opined that workplace stress within two years of heart surgery contributed to coronary heart disease and caused temporary disability and permanent disability of 40% without apportionment due to insufficient explanation of non-industrial factors.

Medical opinion supported industrial causation of coronary heart disease and skin injury, temporary disability, and permanent disability without apportionment.

From the decision · page 2As explained below, we rescind the WCJ's decision in case ADJ10641716 and issue a new decision reflecting that applicant sustained industrial injury in the forms of coronary heart disease and skin scarring causing temporary disability from November 11, 2015 to February 21, 2016, and 40% permanent disability. With regard to case ADJ10749935, we will affirm the finding of industrial injury, but we amend the decision to reflect that applicant did not prove entitlement to temporary disability. We also amend the decision to reflect that applicant sustained permanent disability of 21%, as it appears that the 8% referenced in the decision was the unadjusted whole person impairment rather than the permanent disability after adjustment for the 1.4 multiplier, occupation and age. I. Applicant's Petition in case ADJ10641716

Treating physician's opinion favored over defense QME for industrial injury to back, neck and right shoulder; permanent disability rating adjusted to 21%.

WCJ found treating physician's opinion more persuasive and credible than defense QME.

From the decision · page 6record compelling enough for us to reject the WCJ's determination that the opinions of Dr. Tabibian were more persuasive than the opinions of Dr. Woods. We therefore affirm the finding of industrial injury.

Jones v. Workmen's Comp. Appeals Bd. (1968) 68 Cal.2d 476

Jones v. Workmen's Comp. Appeals Bd. (1968) 68 Cal.2d 476

Applied to the WCJ's discretion to choose among conflicting medical opinions

From the decision · page 5The relevant and considered opinion of one physician, though inconsistent with other medical opinions, may constitute substantial evidence. (Le Vesque v. Workmen's Comp. Appeals Bd. (1970) 1 Cal.3d 627, 639 [35 Cal.Comp.Cases 16].) The WCJ is empowered to choose among conflicting medical reports and rely on those deemed most persuasive. (Jones v. Workmen's Comp. Appeals Bd. (1968) 68 Cal.2d 476, 479 [33 Cal.Comp.Cases 221].) There is nothing in the

Labor Code Section 4663

Applied to apportionment of permanent disability

From the decision · page 4Apportionment of the cause of the permanent impairment due to coronary artery disease is considered pursuant to Labor Code Section 4663 as clarified by the Escobedo decision. In my opinion, it is reasonably medically probable that the coronary artery disease developed as a result of non-industrial factors. That being said, the stress occurring in the workplace as the applicant has described tipped the condition over the edge and resulted in the need for bypass surgery. On that basis, I believe there is a reasonably medial probable basis to apportion 75% of the cause of the permanent impairment/disability to non-industrial factors and apportion 25% to the perceived workplace stress as described above.

Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604

Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604

Applied to requirements for substantial medical evidence on apportionment

From the decision · page 4asymptomatic prior conditions (see, e.g. Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604,

Huston v. Workers' Comp. Appeals Bd. (1979) 95 Cal.App.3d 856

Huston v. Workers' Comp. Appeals Bd. (1979) 95 Cal.App.3d 856

Applied to temporary disability entitlement period

From the decision · page 3B. Temporary Disability Dr. Capen opined that applicant was temporarily totally disabled from November 11, 2015 through February 21, 2016 as a result of heart injury. (August 3, 2017 report at p. 51.) These dates are consistent with applicant's testimony that he was off work for three months after his surgery and returned to work in February. (Minutes of Hearing and Summary of Evidence of February 13, 2019 trial at p. 9.) We therefore find temporary disability corresponding to those dates.

Le Vesque v. Workmen's Comp. Appeals Bd. (1970) 1 Cal.3d 627

Le Vesque v. Workmen's Comp. Appeals Bd. (1970) 1 Cal.3d 627

Applied to the WCJ's discretion to choose among conflicting medical opinions

From the decision · page 5The relevant and considered opinion of one physician, though inconsistent with other medical opinions, may constitute substantial evidence. (Le Vesque v. Workmen's Comp. Appeals Bd. (1970) 1 Cal.3d 627, 639 [35 Cal.Comp.Cases 16].) The WCJ is empowered to choose among conflicting medical reports and rely on those deemed most persuasive. (Jones v. Workmen's Comp. Appeals Bd. (1968) 68 Cal.2d 476, 479 [33 Cal.Comp.Cases 221].) There is nothing in the

State Compensation Ins. Fund v. Workers' Comp.Appeals Bd. (Rodarte) (2004) 119 Cal.App.4th 998

State Compensation Ins. Fund v. Workers' Comp.Appeals Bd. (Rodarte) (2004) 119 Cal.App.4th 998

Applied to deny temporary disability without wage loss evidence

From the decision · page 6However, we will delete any finding of temporary disability. Applicant testified that he worked from his return from his heart temporary disability on February 21, 2016 until his retirement in July of 2017. (Minutes of Hearing and Summary of Evidence of February 13, 2019 trial at p. 9.) There was no evidence or allegation that applicant retired due to any disability or defendant not accommodating applicant's work restrictions. In State Compensation Ins. Fund v. Workers' Comp.Appeals Bd. (Rodarte) (2004) 119 Cal.App.4th 998, 1003 [69 Cal.Comp.Cases 579], the Court of Appeal made clear that neither medical treatment nor modified work restrictions without wage loss, in and of themselves, are sufficient to constitute "disability." "[T]here is no compensable temporary disability until the worker suffers wage loss." (Rodarte, 119 Cal.App.4th at p. 1003.) "[T]emporary disability indemnity is payable during the injured worker's healing period from the injury until the worker has recovered sufficiently to return to work, or until his/her condition reaches a permanent and stationary status." (Huston v. Workers' Comp. Appeals Bd. (1979) 95 Cal.App.3d 856, 868 [44 Cal.Comp.Cases 798].) Here, applicant did not present any evidence supporting wage loss as a result of his orthopedic injury. We therefore find that applicant did not prove entitlement to temporary disability in this case.

Applicant's testimony about conflicts with foreman and work stress

Applicant's testimony of working without wage loss after heart surgery until retirement

From the decision · page 6However, we will delete any finding of temporary disability. Applicant testified that he worked from his return from his heart temporary disability on February 21, 2016 until his retirement in July of 2017. (Minutes of Hearing and Summary of Evidence of February 13, 2019 trial at p. 9.) There was no evidence or allegation that applicant retired due to any disability or defendant not accommodating applicant's work restrictions. In State Compensation Ins. Fund v. Workers' Comp.Appeals Bd. (Rodarte) (2004) 119 Cal.App.4th 998, 1003 [69 Cal.Comp.Cases 579], the Court of Appeal made clear that neither medical treatment nor modified work restrictions without wage loss, in and of themselves, are sufficient to constitute "disability." "[T]here is no compensable temporary disability until the worker suffers wage loss." (Rodarte, 119 Cal.App.4th at p. 1003.) "[T]emporary disability indemnity is payable during the injured worker's healing period from the injury until the worker has recovered sufficiently to return to work, or until his/her condition reaches a permanent and stationary status." (Huston v. Workers' Comp. Appeals Bd. (1979) 95 Cal.App.3d 856, 868 [44 Cal.Comp.Cases 798].) Here, applicant did not present any evidence supporting wage loss as a result of his orthopedic injury. We therefore find that applicant did not prove entitlement to temporary disability in this case.