ADJ6692602 · July 8, 2022

Applicant failed to prove new and further disability within five years of injury as required by Labor Code section 5410; medical evidence did not establish a causal connection or timely new disability.

From the decision · page 7With respect to applicant's assertion of aggravation of her diabetic condition, we observe that neither the reporting of Dr. Zlotolow nor that of Dr. Borsada provided an assessment of whether the alleged change in applicant's condition transpired within five years from the original date of injury. Further, we agree with the WCJ's observation that any reporting addressing the alleged aggravation of applicant's diabetes would need to address applicant's other concurrent medical conditions, including her nonindustrial brain surgery, right knee surgery, and thyroid condition. (Report, at p. 6.) Accordingly, we find the reporting of Drs. Zlotolow and Borsada fail to establish a causal connection between applicant's industrial injury and the claimed need for new treatment, or that the need for new treatment arose within the five years of the original date of injury of November 13, 2008. Applicant has not met the burden of establishing a new and further disability, arising within five years of the date of injury. (Cal. Lab. Code § 5410.)

Applicant did not demonstrate new and further disability within five years of injury as required by Labor Code section 5410.

Favours Defendant prevailed

This failure bars jurisdiction and leads to dismissal of the petition for new and further disability.

From the decision · page 7With respect to applicant's assertion of aggravation of her diabetic condition, we observe that neither the reporting of Dr. Zlotolow nor that of Dr. Borsada provided an assessment of whether the alleged change in applicant's condition transpired within five years from the original date of injury. Further, we agree with the WCJ's observation that any reporting addressing the alleged aggravation of applicant's diabetes would need to address applicant's other concurrent medical conditions, including her nonindustrial brain surgery, right knee surgery, and thyroid condition. (Report, at p. 6.) Accordingly, we find the reporting of Drs. Zlotolow and Borsada fail to establish a causal connection between applicant's industrial injury and the claimed need for new treatment, or that the need for new treatment arose within the five years of the original date of injury of November 13, 2008. Applicant has not met the burden of establishing a new and further disability, arising within five years of the date of injury. (Cal. Lab. Code § 5410.)

AME Dr. Craemer's report was found to be substantial medical evidence despite no additional diagnostic testing.

Favours Defendant prevailed

Supports dismissal of petition as no new and further disability was found.

From the decision · page 14Here, Dr. Craemer took a thorough history, conducted a thorough evaluation and reviewed the medical evidence provided. His deposition was taken and he did not change his opinion. Dr. Craemer's findings were not based on surmise, speculation, conjecture or guess. The court in this matter, finds that the AME report of Dr. Craemer meets the test for substantial medical evidence.

Found no new and further orthopedic disability; report met substantial medical evidence standard despite no additional diagnostic testing.

Thorough history, evaluation, and review of medical evidence; findings not based on speculation; deposition confirmed opinion.

From the decision · page 14Here, Dr. Craemer took a thorough history, conducted a thorough evaluation and reviewed the medical evidence provided. His deposition was taken and he did not change his opinion. Dr. Craemer's findings were not based on surmise, speculation, conjecture or guess. The court in this matter, finds that the AME report of Dr. Craemer meets the test for substantial medical evidence.

Found applicant permanent and stationary in 2013 with no new and further disability.

Interim reports showed no change in condition within five years.

From the decision · page 6Here, applicant's date of injury is November 13, 2008, and applicant must establish a "demonstrable change in condition" prior to the expiration of the five-year statutory period on November 13, 2013.

Opined chronic pain aggravated diabetes but reports lacked complete record review and did not establish causation within five years.

Reports lacked review of private diabetes records and did not address other medical conditions affecting diabetes.

From the decision · page 7With respect to applicant's assertion of aggravation of her diabetic condition, we observe that neither the reporting of Dr. Zlotolow nor that of Dr. Borsada provided an assessment of whether the alleged change in applicant's condition transpired within five years from the original date of injury. Further, we agree with the WCJ's observation that any reporting addressing the alleged aggravation of applicant's diabetes would need to address applicant's other concurrent medical conditions, including her nonindustrial brain surgery, right knee surgery, and thyroid condition. (Report, at p. 6.) Accordingly, we find the reporting of Drs. Zlotolow and Borsada fail to establish a causal connection between applicant's industrial injury and the claimed need for new treatment, or that the need for new treatment arose within the five years of the original date of injury of November 13, 2008. Applicant has not met the burden of establishing a new and further disability, arising within five years of the date of injury. (Cal. Lab. Code § 5410.)

Report did not establish causal connection or timely new disability for diabetes aggravation claim.

Lack of assessment of timing and other medical conditions affecting diabetes; incomplete record review.

From the decision · page 7With respect to applicant's assertion of aggravation of her diabetic condition, we observe that neither the reporting of Dr. Zlotolow nor that of Dr. Borsada provided an assessment of whether the alleged change in applicant's condition transpired within five years from the original date of injury. Further, we agree with the WCJ's observation that any reporting addressing the alleged aggravation of applicant's diabetes would need to address applicant's other concurrent medical conditions, including her nonindustrial brain surgery, right knee surgery, and thyroid condition. (Report, at p. 6.) Accordingly, we find the reporting of Drs. Zlotolow and Borsada fail to establish a causal connection between applicant's industrial injury and the claimed need for new treatment, or that the need for new treatment arose within the five years of the original date of injury of November 13, 2008. Applicant has not met the burden of establishing a new and further disability, arising within five years of the date of injury. (Cal. Lab. Code § 5410.)

California Labor Code section 5410

New and further disability must be established within five years of injury to confer jurisdiction under Labor Code section 5410.

Applicant failed to prove new and further disability within five years; petition dismissed for lack of jurisdiction.

From the decision · page 12A Petition to Re-open must be filed within five years from the date of injury. Labor Code section 5410. The filing of a petition alone does not confer jurisdiction on the appeals board, there must be a showing of new and further disability within the five years. The appeals board has noted pursuant to Labor Code section 5410, any claim for "new and further disability" arising more than five years after the date of injury, regardless of whether a petition to reopen was timely filed is barred. The appeals board also stated, "Allowing compensation for new and further...disability commencing more than five years from the date of injury would render the limitations of LC 5410 meaningless, since, if such a rule were adopted, any applicant could avoid the prescriptions of LC 5410 and indefinitely extend the limitations period by simply filing a skeletal petition to reopen on the eve of the expiration of the five-year period." Duran v. WCAB (2007) 72 CCC 488 (writ denied). See also Gomez v. WCAB (2006) 71 CCC 1721 (Court of Appeal opinion unpublished in official reports); Borba v. WCAB (2004) 69 CCC 605 (writ denied); Berry v. WCAB (2004) 69 CCC 1320 (writ denied); Fekkers v. WCAB (2001) 67 CCC 92 (writ denied); Beck (Hambrick) v. WCAB (2000) 65 CCC 845 (writ denied); Mart v. WCAB (2011) 76 CCC 578 (writ denied); Cohen v.

Braewood Convalescent Hosp. v. Workers' Comp. Appeals Bd. (Bolton) (1983) 34 Cal.3d 159

Substantial medical evidence requires relevant evidence a reasonable mind might accept as adequate to support a conclusion, more than a mere scintilla.

AME Dr. Craemer's report met substantial evidence standard despite no additional testing.

From the decision · page 14Applicant's main contention, Dr. Craemer's report does not amount to substantial medical evidence because the doctor failed to request diagnostic testing is unfounded. Dr. Craemer conducted a very thorough examination. Based on the fact the applicant's condition remained essentially the same as when he first examined her, additional testing was not warranted. Applicant's own treating doctor, Dr. Capen did not request any additional diagnostic testing. Testing is not a requirement for a report to amount to substantial medical evidence. Substantial evidence has been described as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion and must be more than a mere scintilla. (Braewood Convalescent Hosp. v. Workers' Comp. Appeals Bd.

Applicant's testimony of worsening condition and diabetes treatment difficulties

From the decision · page 4The parties proceeded to trial on January 2, 2019, and framed issues of the petition for new and further disability and the substantiality of the AME reporting. (January 2, 2019 Minutes of Hearing, at 2:17.) In further trial proceedings held on April 8, 2019, applicant testified that her condition had worsened following her prior Award. (April 8, 2019 Minutes of Hearing and Summary of Evidence (Minutes), at 2:21.) Applicant testified to ongoing depression, her treatment for diabetes, and to difficulties in getting restful sleep. (Id. at 3:3.) Applicant testified her diabetes was first diagnosed 10 years ago, and that she has trouble with frequent falls due to numbness in her left leg. (Id. at 3:17; 4:10.)

Lack of diagnostic testing in AME report not fatal to substantial evidence finding

From the decision · page 5Testing is not a requirement for a report to amount to substantial medical evidence. Substantial evidence has been described as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion and must be more than a mere scintilla. [Citations.]...Here, Dr. Craemer took a thorough history, conducted a thorough evaluation and reviewed the medical evidence provided. His deposition was taken and he did not change his opinion. Dr. Craemer's findings were not based on surmise, speculation, conjecture or guess. The court in this matter, finds that the AME report of Dr. Craemer meets the test for substantial medical evidence. (Report, at pp. 7-8.)