ADJ10755277 · May 26, 2026

Record insufficient to determine whether sleep disturbance was original industrial injury or whether rib injury constitutes new and further disability; due process requires further development of record

From the decision · page 2Reconsideration, we will rescind the WCJ’s March 7, 2024 F&O and return the matter to the trial level for further proceedings consistent with this decision.

PTP and psychiatric nurse reports conclusory, lacked detailed discussion of records reviewed or examinations conducted, and conclusions not based on reasonable medical probability

From the decision · page 7Panchal’s reports were conclusory, lacked any detailed discussion of records reviewed or examination(s) conducted, and any conclusions issued were not based upon reasonable medical probability. ( Gatten, supra, 145 Cal.App.4th at p. 928; Lab. Code, § 5903, 5952(d).)

Sleep disturbance was raised at July 29, 2020 trial but September 21, 2020 Findings and Award is silent as to this body part

Favours neutral

Without finding whether sleep was original industrial injury, cannot determine if rib injury constitutes new and further disability from sleep disturbance

From the decision · page 5Turning to the claimed body part of “sleep,” the issue was raised at the July 29, 2020 trial, and yet, the September 21, 2020 Findings and Award is silent as to the body part of sleep.

QME Gagnon found rib subluxation compensable consequence of industrial injury with 5% WPI, but WCJ found it arose after five-year period

Favours neutral

Timing of rib injury relative to five-year limitation period under section 5410 is outcome-determinative

From the decision · page 3On March 7, 2024, the WCJ issued the disputed F&O, finding that applicant failed to demonstrate that her disability worsened in accordance with the requirements of Lab. Code, § 5410. The WCJ also concluded that applicant’s rib injury (and 5% new PD) arose after

Applicant proceeding in pro per and requested six-month continuance to obtain evidence, which WCJ denied

Favours Applicant prevailed

Due process requires opportunity to obtain comprehensive reporting, especially given COVID-19 pandemic difficulties

From the decision · page 3On February 29, 2024, the parties proceeded to trial on applicant’s petition to reopen. Applicant was now proceeding in pro per. Applicant made a request to take the matter off calendar for six months so that she could obtain further evidence, which the WCJ denied.

Remain of the opinion that applicant developed sleep disorder, gastroesophageal reflux disease and irritable bowel syndrome as a result of her injury

Opinion noted but merits not reached due to due process concerns regarding original injury finding

From the decision · page 5Nacouzi opined that he “remain[ed] of the opinion that” applicant developed sleep disorder, gastroesophageal reflux disease and irritable bowel syndrome as a result of her injury.

Left rib subluxation is compensable consequence of industrial injury; 5% WPI from rib sprain is 100% industrial and should be added

Opinion noted but merits not reached due to due process concerns regarding timing of injury

From the decision · page 3settled, there is no exacerbation or aggravation of injuries.” ( Ibid. ) On December 8, 2022, Dr. Gagnon found that applicant was permanent and stationary on her rib sprain, and that it caused 5% whole person impairment (WPI). (Def. Exh. D, p. 3.) On February 2, 2023, Dr.

January 31, 2024 PR-2 report lacks findings sufficient to show new and further disability

Report conclusory, lacked detailed discussion of records reviewed or examinations conducted, conclusions not based on reasonable medical probability

From the decision · page 7Panchal’s reports were conclusory, lacked any detailed discussion of records reviewed or examination(s) conducted, and any conclusions issued were not based upon reasonable medical probability. ( Gatten, supra, 145 Cal.App.4th at p. 928; Lab. Code, § 5903, 5952(d).)

Nicky Blair's Restaurant v. Workers' Comp. Appeals Bd. (1980) 109 Cal.App.3d 941

New and further disability under Lab. Code § 5410 requires demonstrable change in employee's condition within five years of injury

Applied to determine whether rib injury and sleep-related disability constitute new and further disability

From the decision · page 4The court in Nicky Blair’s Restaurant v. Workers’ Comp. Appeals Bd. (1980) 109 Cal.App.3th 941 [45 Cal.Comp.Cases 876] found that, under section 5410, “[the] term ‘new and further disability’ has been defined to mean disability which results from some demonstrable change in an employee’s condition.” ( Id. at p.

E.L. Yeager v. Workers' Comp. Appeals Bd. (Gatten) (2006) 145 Cal.App.4th 922

Substantial evidence requires expert medical opinion framed in terms of reasonable medical probability, based on accurate history and examination, with reasoning to support conclusions

Applied to find PTP and psychiatric nurse reports insufficient

From the decision · page 6Workers’ Comp. Appeals Bd. (1970) 1 Cal.3d. 627 [35 Cal.Comp.Cases 16].) To be substantial evidence, expert medical opinion must be framed in terms of reasonable medical probability, be based on an accurate history and an examination, and must set forth reasoning to support the expert conclusions reached. ( E.L. Yeager v. Workers’ Comp.

Tyler v. Workers' Comp. Appeals Bd. (1997) 56 Cal.App.4th 389

WCAB has duty to develop record where insufficient evidence exists to determine issues raised for trial

Applied to remand for further development of record regarding sleep and rib injuries

From the decision · page 6“[I]n order to ensure reliance on substantial evidence, and a complete adjudication of the issues consistent with due process,” the WCJ and the Appeals Board both have a duty to develop the record further where there is an absence of, or insufficient evidence to determine the issues raised for trial. ( Tyler v. Workers’ Comp. Appeals Bd.

QME Gagnon's multiple reports (Def. Exh. A-F) documenting rib subluxation as compensable consequence of poor sleep posture from industrial injury

From the decision · page 3On February 10, 2022, Dr. Gagnon opined that applicant “was found to have a rib subluxation secondary to the awkward postures while trying to sleep. Her neck and upper extremity pain has been constant and unrelenting, even at night, forcing her to change position frequently in

AME Nacouzi's December 2021 report opining sleep disorder, GERD, and IBS as industrial

From the decision · page 5Nacouzi opined that he “remain[ed] of the opinion that” applicant developed sleep disorder, gastroesophageal reflux disease and irritable bowel syndrome as a result of her injury.

PTP Panchal's January 31, 2024 PR-2 report and psychiatric nurse Willis's reports found conclusory and lacking reasonable medical probability

From the decision · page 7Panchal’s reports were conclusory, lacked any detailed discussion of records reviewed or examination(s) conducted, and any conclusions issued were not based upon reasonable medical probability. ( Gatten, supra, 145 Cal.App.4th at p. 928; Lab. Code, § 5903, 5952(d).)