ADJ13056523 — California WCAB decision

What the panel ordered

Petition for Reconsideration granted; Findings and Award of June 11, 2021 rescinded; matter returned to WCJ for further proceedings.

Applicant sought reconsideration of the Findings and Award issued by the WCJ on June 11, 2021, which found no cumulative injury AOE/COE and barred the claim under Labor Code section 3600 post termination defense. The WCJ's decision was rescinded and the matter was returned for further proceedings.

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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/COERemandedback · psyche

The WCJ's initial decision was not supported by substantial evidence because the QME's reports were inconsistent and did not clearly establish causation. The Appeals Board found the record needed further development, including a psychiatric evaluation, to clarify whether the injury was caused by physical work demands, psychiatric conditions, or both.

From the decision · page 4Regarding the issue of injury AOE/COE, at the trial applicant claimed a psychiatric injury and injury to his back. As noted above, QME Dr. Feinberg diagnosed applicant as having chronic low back pain and psychiatric comorbidity. (Joint Exh. 100, p. 7.) He later stated that the nature of applicant's work duties over a course of years, would have contributed to his low back pain. (Joint Exh. 100, p. 8.) In his supplemental report Dr. Feinberg concluded that there was "no way to prove" whether applicant's back problems are secondary to psychiatric issues or to musculoskeletal discomfort related to his work activities. Based on applicant's deposition testimony, it appeared to Dr. Feinberg that applicant's emotional state "has a lot to do with his musculoskeletal discomfort." (Joint Exh. 101, p. 3.)

The facts that decided it

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

QME Dr. Feinberg's reports were inconsistent and did not constitute substantial evidence for causation of injury.

Favours Applicant prevailed

This undermined the WCJ's initial finding and required further development of the record.

From the decision · page 5Although Dr. Feinberg's July 13, 2020 report indicates applicant's work for defendant was a cause of his back symptoms, his statement in the November 12, 2020 report, that there was, "no way to prove" whether applicant's back problems were "secondary to psychiatric issues or to musculoskeletal discomfort related to his work activities" is inconsistent with his earlier stated opinions. Thus, his reports do not constitute substantial evidence.

Applicant's treating physicians diagnosed adjustment disorder and acute stress disorder related to work stress causing symptoms including back spasms.

Favours Applicant prevailed

Supported the claim of psychiatric injury related to work stress.

From the decision · page 5condition. In his report, Dr. Feinberg also noted that Dr. Bunyaviroch and Dr. Puryear diagnosed applicant as having an adjustment disorder and an acute stress disorder, which caused various symptoms including "back spasms," as a result of applicant's work stress. (Joint Exh. 100, p. 7.)

Applicant testified he was forced to quit due to pay cut and stress, describing symptoms consistent with psychiatric injury.

Favours Applicant prevailed

Applicant's credible testimony supported injury claim.

From the decision · page 3He testified that Dr. Arnold Bunyaviroch saw him for chest pain, back spasms, and vertigo. The diagnosis was due to stress. The doctor tried to give him pills. Muscle relaxants made him tired so he stopped taking them. Dr. Bunyaviroch prescribed other pills. Those were for his psyche. Those were for a psych patient. They made him constipated so he stopped taking them. He was referred to Dr. Debra Puryear in 2020. He recalls seeing a psychologist in 2020. He was diagnosed with adjustment disorder. He was told stress was causing his back pain....... He quit in 2019. He describes his quitting as he was forced to quit. He was not terminated; he resigned....... He testified that he was forced to quit because everyone has bills to pay, and he was reduced to $16 an hour. He had to look for a different job to pay the same as Kaiser. (MOH/SOE, pp. 5 and 6.)

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.

QMERejected · physical medicine and rehabilitation

Diagnosed chronic low back pain and psychiatric comorbidity; opined work duties contributed to low back pain; later stated no way to prove if back problems were secondary to psychiatric or musculoskeletal causes; reports inconsistent and not substantial evidence.

Reports were inconsistent and did not constitute substantial evidence for causation.

From the decision · page 2On July 13, 2020, QME Dr. Feinberg evaluated applicant. (Join Exh. 100, Dr. Feinberg, July 13, 2020.) Dr. Feinberg examined applicant, took a history, and reviewed the medical record. The diagnoses included "History of chronic low back pain" and "Psychiatric comorbidity." (Joint Exh. 100, p. 7.) In the Records Summary section of his report Dr. Feinberg noted that in a December 11, 2019 Doctor's First Report of Injury, Dr. Bunyaviroch stated:

PTPGiven great weight

Diagnosed adjustment disorder and acute stress disorder causing symptoms including back spasms related to work stress.

Diagnosis supported the claim of psychiatric injury related to work stress.

From the decision · page 2He [applicant] was having bad chest pains, difficulty breathing, back spasms, and vertigo. He had been unable to get a full night's sleep due to an unusual stress level over the past year. He had tingling of his right leg. He was diagnosed with adjustment disorder and acute stress disorder. His care was transferred to a psychologist or psychiatrist. He was able to continue working full duty. (Joint Exh. 100, p. 7.)

secondary_treaterGiven great weight

Diagnosed adjustment disorder with anxiety, severe, related to work stress.

Diagnosis supported the claim of psychiatric injury related to work stress.

From the decision · page 2Psychologist Dr. Debra Puryear evaluated him on 2/13/20. He was having trouble sleeping, anxiety attacks, erratic behavior, and night sweats. He felt better after leaving his job. He was diagnosed with adjustment disorder with anxiety, severe. (Joint Exh. 100, 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)

Substantial evidence required to support any award, order, or decision of the Appeals Board.

The WCJ's initial decision was not supported by substantial evidence because the QME's reports were inconsistent and did not clearly establish causation, requiring further development of the record.

From the decision · page 5Any award, order, or decision of the Appeals Board must be supported by substantial evidence. (Lab. Code, § 5952(d); Lamb v. Workmen's Comp. Appeals Bd. (1974) 11 Cal.3d 274, 281 [39 Cal.Comp.Cases 310]; Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312, 317 [35 Cal.Comp.Cases 500].) The Appeals Board has the discretionary authority to develop the record when the record does not contain substantial evidence pertaining to a threshold issue, or when it is necessary in order to fully adjudicate the issues. (Lab. Code § 5701, 5906; Tyler v. Workers' Comp. Appeals Bd. (1997) 56 Cal.App.4th 389 [62 Cal.Comp.Cases 924]; see McClune v. Workers' Comp. Appeals Bd. (1998) 62 Cal.App.4th 1117 [63 Cal.Comp.Cases 261].) Dr. Feinberg's reports are the only medical evidence in the trial record and since they are not substantial evidence, the record must be further developed.

Bell v. Workers' Comp. Appeals Bd. (1987 W/D) 52 Cal.Comp.Cases 72

Laches defense requires unreasonable delay causing prejudice to bar claim.

No evidence defendant was prejudiced by applicant's delay; laches defense rejected.

From the decision · page 4Regarding defendant's laches/lack of due diligence argument, the doctrine of laches is an equitable defense by which an unreasonable delay by a party may bar the party's right to any benefits claimed or defenses asserted. (See Bell v. Workers' Comp. Appeals Bd. (1987 W/D) 52 Cal.Comp.Cases 72; Midas Recovery Services v. Workers' Comp. Appeals Bd. (Baker) (1995 W/D) 60 Cal.Comp.Cases 783; Truck Insurance Exchange v. Workers' Comp. Appeals Bd. (Cyr- Remus) (1997 W/D) 62 Cal.Comp.Cases 240; K-Mart v. Workers' Comp. Appeals Bd. (Acevedo) (2003 W/D) 68 Cal.Comp.Cases 494.) But "[d]elay alone ordinarily does not constitute laches, as lapse of time is separately embodied in statutes of limitation. [Citation.] What makes the delay unreasonable in the case of laches is that it results in prejudice." (Lam v. Bureau of Security & Investigative Services (1995) 34 Cal.App.4th 29, 36 [40 Cal.Rptr.2d 137], citing Brown v. State Personnel Bd. (1985) 166 Cal.App.3d 1151, 1159 [213 Cal. Rptr. 53].) Here, there is no evidence in the record that defendant was in any way prejudiced by applicant's delay in replying to defendant's psychiatry Panel Request correspondence. (Def. Exh. D, November 16, 2020 correspondence.) Therefore, applicant's injury claim is not barred by the laches defense.

ADJ13056523 · August 27, 2021

What the panel ordered

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The facts that decided it

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