ADJ13474651 · November 25, 2024

The Appeals Board found the WCJ erred in barring the claim by res judicata because the prior settlement did not clearly include the brain, nervous system related to psych or stress, or neurological problems aside from Parkinson's disease, and the applicant did not intend to settle those injuries.

From the decision · page 1Applicant seeks reconsideration of the Findings and Order (F&O), issued by the workers' compensation administrative law judge (WCJ) on August 14, 2024, wherein the WCJ found in pertinent part that applicant's claims are barred by the doctrine of res judicata because applicant previously settled a case involving the same employers, similar injuries, and the same body parts.

The prior C&R settlement did not clearly include brain, nervous system related to psych or stress, or neurological problems aside from Parkinson's disease.

Favours Applicant prevailed

This meant the prior settlement did not bar the current claim for those injuries.

From the decision · page 9(Sepulveda) (2004) 117 Cal.App.4th 1180, 1184 [69 Cal.Comp.Cases 193].) The plain language of the 2017 C&R describes the body parts being released at that time as 198 head, 398 upper extremities, 498 trunk, 598 lower extremities, and 700 multiple parts. (C&R, § 1, p. 3 and § 9, comments, p. 7.) The dates of injury covered by the settlement are during the period from February 1, 1970 to October 2, 1991. (C&R, § 1, p. 3.) There is no evidence that this language was intended to include the brain, the nervous system as it relates to psych or stress, neurological problems aside from Parkinson's, or CTE. Applicant testified that it was not his intention to settle the case for brain injury, neurological, psych, or stress. (MOH/SOE, May 2, 2024 trial, p. 4.) Moreover, applicant testified that he did not know that any of his neurological problems, aside from the Parkinson's Disease, were the result of cumulative trauma. (MOH/SOE, May 2, 2024 trial, p. 3.) Applicant testified that he has problems with CTE, and had some problems with forgetfulness. (MOH/SOE, May 2, 2024 trial, p. 4.) We note that CTE (chronic traumatic encephalopathy) is a brain disorder linked to repeated trauma to the head.

Applicant testified he did not intend to settle brain, neurological, psych, or stress injuries in prior C&R.

Favours Applicant prevailed

Applicant's testimony supported that the prior settlement did not cover these injuries, favoring his claim.

From the decision · page 9(Sepulveda) (2004) 117 Cal.App.4th 1180, 1184 [69 Cal.Comp.Cases 193].) The plain language of the 2017 C&R describes the body parts being released at that time as 198 head, 398 upper extremities, 498 trunk, 598 lower extremities, and 700 multiple parts. (C&R, § 1, p. 3 and § 9, comments, p. 7.) The dates of injury covered by the settlement are during the period from February 1, 1970 to October 2, 1991. (C&R, § 1, p. 3.) There is no evidence that this language was intended to include the brain, the nervous system as it relates to psych or stress, neurological problems aside from Parkinson's, or CTE. Applicant testified that it was not his intention to settle the case for brain injury, neurological, psych, or stress. (MOH/SOE, May 2, 2024 trial, p. 4.) Moreover, applicant testified that he did not know that any of his neurological problems, aside from the Parkinson's Disease, were the result of cumulative trauma. (MOH/SOE, May 2, 2024 trial, p. 3.) Applicant testified that he has problems with CTE, and had some problems with forgetfulness. (MOH/SOE, May 2, 2024 trial, p. 4.) We note that CTE (chronic traumatic encephalopathy) is a brain disorder linked to repeated trauma to the head.

Diagnosed chronic pain bilaterally to low back, shoulders, elbows, wrists, hips, and ankles; Hallux rigidus, left great toe; Parkinson's disease deferred to neurology.

From the decision · page 2BACKGROUND In case number ADJ8651899, applicant claimed injury to various body parts, while employed by defendants as a professional baseball player, during the period from February 1, 1970 to October 2, 1991. Applicant settled case number ADJ8651899 by way of a Compromise and Release (C&R), which was fully executed on March 7, 2017. The only med-legal report in FileNet at the time of the C&R is from Stephen M. Weiss, M.D., Agreed Medical Evaluator (AME) in orthopedics, dated September 9, 2013. (Exhibit G, AME report of Dr. Stephen Weiss, dated September 9, 2013.) Dr. Weiss diagnosed: chronic pain bilaterally to the low back, shoulders, elbows, wrists, hips, and ankles; as well as Hallux rigidus, left great toe; and Parkinson's disease, deferred to neurology. (Exhibit G, AME report of Dr. Weiss, dated September 9, 2013, pp. 18-19.) In addition to Dr.

Diagnosed headaches, Parkinson's disease, and sleep disorder; concluded cumulative trauma injury caused headaches, sleep disorder, and Parkinson's disease; referenced literature on Parkinson-like syndrome linked to repeated head trauma.

From the decision · page 2Weiss, applicant was previously evaluated by two AMEs: Charles Glatstein, M.D., in neurology, who issued two reports (Exhibit E, Dr. Glatstein's AME report, September 10, 2013; Exhibit D, Dr. Glatstein's report, June 30, 2014) and Mark H. Hyman, M.D., in internal medicine (Exhibit C, Dr. Hyman's AME report, September 11, 2013). Dr. Glatstein diagnosed applicant with headaches, Parkinson's disease, and sleep disorder. (Exhibit E, Dr. Glatstein's AME report, September 10, 2013, p. 7.) He concluded that applicant sustained a CT injury resulting in headaches, the sleep disorder, and the Parkinson's disease. (Id., pp. 11-12; Exhibit D, Dr.

Diagnosed metabolic-type syndrome, hypertension, diabetes, hypercholesterolemia, obesity, gout, headaches, gastroesophageal reflux disease, helicobacter pylori infection, and aortic stenosis.

From the decision · page 2Weiss, applicant was previously evaluated by two AMEs: Charles Glatstein, M.D., in neurology, who issued two reports (Exhibit E, Dr. Glatstein's AME report, September 10, 2013; Exhibit D, Dr. Glatstein's report, June 30, 2014) and Mark H. Hyman, M.D., in internal medicine (Exhibit C, Dr. Hyman's AME report, September 11, 2013). Dr. Glatstein diagnosed applicant with headaches, Parkinson's disease, and sleep disorder. (Exhibit E, Dr. Glatstein's AME report, September 10, 2013, p. 7.) He concluded that applicant sustained a CT injury resulting in headaches, the sleep disorder, and the Parkinson's disease. (Id., pp. 11-12; Exhibit D, Dr.

Diagnosed depressive disorder not otherwise specified, Parkinson's disease by history, etiology to be determined by appropriate medical practitioner.

From the decision · page 3Since filing the instant matter, applicant was evaluated by Ted R. Greenzang, M.D., Qualified Medical Evaluator (QME) in psychiatry. In pertinent part, Dr. Greenzang diagnosed:

Labor Code section 3600; South Coast Framing v. Workers' Comp. Appeals Bd. (Clark) (2015) 61 Cal.4th 291

To be compensable, injury must arise out of and occur in course of employment; burden on employee to prove AOE/COE by preponderance of evidence; medical evidence of reasonable probability is substantial evidence for injury AOE/COE.

Applied to determine compensability and injury causation.

From the decision · page 7II. To be compensable, an injury must arise out of and occur in the course of employment. (Lab. Code, § 3600.) The employee bears the burden of proving injury AOE/COE by a preponderance of the evidence. (South Coast Framing v. Workers' Comp. Appeals Bd. (Clark) (2015) 61 Cal.4th 291, 297-298, 302 [80 Cal.Comp.Cases 489]; Lab. Code, § 3600(a); 3202.5.) Medical evidence that industrial causation was reasonably probable, although not certain, constitutes substantial evidence for a finding of injury AOE/COE. (McAllister v. Workmen's Comp. Appeals Bd. (1968) 69 Cal.2d 408, 417 [33 Cal.Comp.Cases 660].) "That burden manifestly does not require the applicant to prove causation by scientific certainty." (Rosas v. Worker's Comp. Appeals Bd. (1993) 16 Cal.App.4th 1692, 1701 [58 Cal.Comp.Cases 313].) It is well established that "there can be more than one injury, either specific or cumulative or a combination of both, arising from the same event or from separate events." (Western Growers Ins. Co. v. Workers' Comp. Appeals Bd. (Austin) (1993) 16 Cal.App.4th 227, 234 [58 Cal.Comp.Cases 323].) Section 3208.1 defines "injury" as follows:

Labor Code section 3208.1; Labor Code section 5412

Definition of injury includes specific and cumulative injuries; date of cumulative injury determined under Labor Code section 5412.

Applied to define injury and date of injury for cumulative trauma claims.

From the decision · page 7II. To be compensable, an injury must arise out of and occur in the course of employment. (Lab. Code, § 3600.) The employee bears the burden of proving injury AOE/COE by a preponderance of the evidence. (South Coast Framing v. Workers' Comp. Appeals Bd. (Clark) (2015) 61 Cal.4th 291, 297-298, 302 [80 Cal.Comp.Cases 489]; Lab. Code, § 3600(a); 3202.5.) Medical evidence that industrial causation was reasonably probable, although not certain, constitutes substantial evidence for a finding of injury AOE/COE. (McAllister v. Workmen's Comp. Appeals Bd. (1968) 69 Cal.2d 408, 417 [33 Cal.Comp.Cases 660].) "That burden manifestly does not require the applicant to prove causation by scientific certainty." (Rosas v. Worker's Comp. Appeals Bd. (1993) 16 Cal.App.4th 1692, 1701 [58 Cal.Comp.Cases 313].) It is well established that "there can be more than one injury, either specific or cumulative or a combination of both, arising from the same event or from separate events." (Western Growers Ins. Co. v. Workers' Comp. Appeals Bd. (Austin) (1993) 16 Cal.App.4th 227, 234 [58 Cal.Comp.Cases 323].) Section 3208.1 defines "injury" as follows:

Burbank Studios v. Workers' Comp. Appeals Bd. (Yount) (1982) 134 Cal.App.3d 929

Compromise and release agreements are contracts governed by contract law principles; mutual consent and meeting of minds required; clear language of contract governs interpretation.

Applied to interpret the scope of the prior C&R settlement.

From the decision · page 9III. Contract principles apply to settlements of workers' compensation disputes. The legal principles governing compromise and release agreements are the same as those governing other contracts. (Burbank Studios v. Workers' Co. Appeals Bd. (Yount) (1982) 134 Cal.App.3d 929, 935.) For a compromise and release agreement to be effective, the necessary elements of a contract must exist, which includes the mutual consent of the parties. (Civ. Code, § 1550, 1565, 1580; Yount, supra.) There can be no contract unless there is a meeting of the minds and the parties mutually agree upon the same thing. (Civ. Code, § 1550, 1565, 1580; Sackett v. Starr (1949) 95 Cal.App.2d 128; Sieck v. Hall (1934) 139 Cal.App. 279, 291; American Can Co. v. Agricultural Ins. Co. (1909) 12 Cal.App.

Johnson v. Workers' Comp. Appeals Bd. (1970) 2 Cal.3d 964

Employer bears burden of proving claim barred by prior compromise and release.

Applied to burden of proof on res judicata defense.

From the decision · page 10First, if the section 5412 date of injury for a body part is after the date of the C&R, the parties could not have settled that body part. (See Camacho v. Target Corp. (2018) 24 Cal.App.5th 291, 301 [83 Cal.Comp.Cases 1014] ["[e]ven with respect to claims within the workers' compensation system, execution of the form does not release certain claims unless specific findings are made. [Citations.] [Emphasis in original.]"].) Moreover, the employer has the burden of proving that a claim is barred by an earlier compromise and release. (Johnson v. Workers' Comp. Appeals Bd. (1970) 2 Cal.3d 964, 975 [35 Cal Comp. Cases 362].) Defendant presented no medical evidence that describes injury to brain, to the nervous system as it relates to psych or stress, or neurological problems aside from Parkinson's as part of the settlement.

Navarro v. City of Montebello (2014) 79 Cal.Comp.Cases 418 (Appeals Bd. en banc)

When a subsequent claim is filed involving same parties and body parts, injured worker has right to new QME evaluation.

Applied to right to new QME evaluation for subsequent claims.

From the decision · page 10In Navarro v. City of Montebello (2014) 79 Cal.Comp.Cases 418 (Appeals Bd. en banc), we held that when a subsequent claim of injury is filed, and even if the subsequent claim of injury involves the same parties and the same body parts, the injured worker has the right to be evaluated by a new QME with regard to the subsequently filed claim(s) of injury. (Navarro v. City of Montebello (2014) 79 Cal.Comp.Cases 418, 428 (Appeals Bd. en banc).)

Applicant's testimony that he did not intend to settle brain, neurological, psych, or stress injuries in prior C&R; that he did not know neurological problems aside from Parkinson's were due to cumulative trauma.

From the decision · page 9(Sepulveda) (2004) 117 Cal.App.4th 1180, 1184 [69 Cal.Comp.Cases 193].) The plain language of the 2017 C&R describes the body parts being released at that time as 198 head, 398 upper extremities, 498 trunk, 598 lower extremities, and 700 multiple parts. (C&R, § 1, p. 3 and § 9, comments, p. 7.) The dates of injury covered by the settlement are during the period from February 1, 1970 to October 2, 1991. (C&R, § 1, p. 3.) There is no evidence that this language was intended to include the brain, the nervous system as it relates to psych or stress, neurological problems aside from Parkinson's, or CTE. Applicant testified that it was not his intention to settle the case for brain injury, neurological, psych, or stress. (MOH/SOE, May 2, 2024 trial, p. 4.) Moreover, applicant testified that he did not know that any of his neurological problems, aside from the Parkinson's Disease, were the result of cumulative trauma. (MOH/SOE, May 2, 2024 trial, p. 3.) Applicant testified that he has problems with CTE, and had some problems with forgetfulness. (MOH/SOE, May 2, 2024 trial, p. 4.) We note that CTE (chronic traumatic encephalopathy) is a brain disorder linked to repeated trauma to the head.