ADJ8043045 — California WCAB decision

What the panel ordered

The Findings, Award and Order of April 17, 2020 is affirmed by the Appeals Board after reconsideration.

Defendant filed a timely petition for reconsideration of the WCJ's decision; the Board granted reconsideration and issued a Decision After Reconsideration affirming the WCJ's Findings, Award and Order of April 17, 2020.

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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/COEApplicant prevailedright ankle · right lower extremity · bones · veins · arteries · nerves · tendons · psyche

The WCJ found and the Appeals Board affirmed that applicant sustained industrial injury to his right ankle and right lower extremity including bones, veins, arteries, nerves, tendons, and psyche based on substantial medical evidence and credible testimony, despite defendant's denial of some body parts.

From the decision · page 1In the Findings, Award and Order of April 17, 2020, the Workers' Compensation Administrative Law Judge ("WCJ") found that applicant, while employed on August 30, 2010 as an operations supervisor of motor transport by ABF Freight Systems, Inc., sustained injury arising out of and in the course of employment ("industrial injury") to his right ankle, to his right lower extremity including bones, veins, arteries, nerves and tendons, and to his psyche, causing permanent and total disability and the need for further medical treatment.

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.

secondary_treaterRelied upon · psychiatry

Found applicant's psychiatric injury industrial and permanent and stationary as of October 1, 2018.

Report found admissible and relied upon to establish industrial psychiatric injury.

From the decision · page 2In addition, we reject defendant's allegation that the October 1, 2018 medical report of Dr. Houts, a psychiatrist, is inadmissible and therefore the WCJ erred in relying upon it. (Applicant's Exhibit 18.) In making this allegation, it appears that defendant relies upon Labor Code section 4062.2(a), which provides: "Whenever a comprehensive medical evaluation is required to resolve any dispute arising out of an injury or a claimed injury occurring on or after January 1, 2005, and the employee is represented by an attorney, the evaluation shall be obtained only as provided in this section."

QMEGiven great weight · neurology

Diagnosed complex regional pain syndrome type I (CRPS) and other vascular and nerve injuries industrially caused by the August 30, 2010 injury.

Report given great weight as substantial medical evidence supporting industrial injury to veins, arteries, nerves, and tendons.

From the decision · page 7Applicant was treated for his DVT and referred for an MR imaging of his ankle which revealed a fracture. Applicant, at such time, was being treated by Dr. Sharon Dreeben for his ankle area.1 During treatment for his ankle, applicant underwent surgery which included a bone graft as well as removal of a large cyst. However, during recovery applicant developed a pseudoaneurysm resulting in the bottom of his foot turning bluish-purple. (Joint Exhibit 146, page 2) Applicant was referred to Dr. Vincent Guzzetta to have the aneurysm removed. Further treatment to applicant's ankle injury included multiple MRI's as well as multiple Doppler ultrasounds of the right lower extremity and nerve conduction studies. These objective studies revealed and confirmed the diagnoses of DVT, the pseudoanuerysm, right anterior tibial artery, and a diagnosis of complex regional pain syndrome, type I (reflex sympathetic dystrophy) [RSD]. These findings are again confirmed in the reporting of Dr. Baskt who indicates that the CRPS type I is 100 percent apportionable to the August 30, 2010 ankle injury. (Joint Exhibit 146, page 34) This WCJ finds the reporting of Dr.

PTPRelied upon

Supported diagnoses and permanent total disability, opined 100% industrial apportionment.

Report incorporated and relied upon for permanent total disability and apportionment.

QMEGiven great weight · psychiatry

Found psychiatric symptoms predominantly industrially caused and severe, including suicidal ideation.

Report given great weight as substantial medical evidence supporting industrial psychiatric injury.

From the decision · page 8In addition to Dr. Houts' determination of a psyche injury on an industrial basis, applicant presented to Dr. Ramin Shahla in the capacity of a Panel QME in psychiatry. Dr. Shahla noted that prior to this industrial injury applicant did not have any history of psychiatric treatment. (Defendant Exhibit AAAA, page 4) Dr. Shahla reviewed multiple medical records along with sub rosa videos of the applicant. Dr. Shahla examined the applicant in person and administered multiple psyche tests. Dr. Shahla noted treatment that the applicant had been receiving in the form of cognitive behavior therapy due to this industrial injury. Dr. Shahla further noted the pharmacotherapy medications applicant had been taking on an industrial basis prescribed by Dr. Magpile. Dr. Shahla indicated the severity of applicant's highly serious thoughts of suicide. (Defendant Exhibit AAAA, page 104) Under causation, this PQME indicates that "in summary, his psychiatric symptoms started after he felt hopeless and helpless after he knew that he would not be able to return to work because of complications of his fracture and the pain." (Defendant's Exhibit AAAA, page 113) Dr.

QMERelied upon · orthopedics

Found applicant capable of deskwork with orthopedic restrictions.

Report relied upon for medical restrictions relevant to disability and vocational expert review.

secondary_treaterRelied upon

Treated applicant's ankle injury including surgery and complications.

Treatment history supports industrial injury to ankle and related body parts.

From the decision · page 7Applicant was treated for his DVT and referred for an MR imaging of his ankle which revealed a fracture. Applicant, at such time, was being treated by Dr. Sharon Dreeben for his ankle area.1 During treatment for his ankle, applicant underwent surgery which included a bone graft as well as removal of a large cyst. However, during recovery applicant developed a pseudoaneurysm resulting in the bottom of his foot turning bluish-purple. (Joint Exhibit 146, page 2) Applicant was referred to Dr. Vincent Guzzetta to have the aneurysm removed. Further treatment to applicant's ankle injury included multiple MRI's as well as multiple Doppler ultrasounds of the right lower extremity and nerve conduction studies. These objective studies revealed and confirmed the diagnoses of DVT, the pseudoanuerysm, right anterior tibial artery, and a diagnosis of complex regional pain syndrome, type I (reflex sympathetic dystrophy) [RSD]. These findings are again confirmed in the reporting of Dr. Baskt who indicates that the CRPS type I is 100 percent apportionable to the August 30, 2010 ankle injury. (Joint Exhibit 146, page 34) This WCJ finds the reporting of Dr.

secondary_treaterRelied upon

Performed surgery to remove pseudoaneurysm and treated complications.

Treatment history supports industrial injury to ankle and related body parts.

From the decision · page 7Applicant was treated for his DVT and referred for an MR imaging of his ankle which revealed a fracture. Applicant, at such time, was being treated by Dr. Sharon Dreeben for his ankle area.1 During treatment for his ankle, applicant underwent surgery which included a bone graft as well as removal of a large cyst. However, during recovery applicant developed a pseudoaneurysm resulting in the bottom of his foot turning bluish-purple. (Joint Exhibit 146, page 2) Applicant was referred to Dr. Vincent Guzzetta to have the aneurysm removed. Further treatment to applicant's ankle injury included multiple MRI's as well as multiple Doppler ultrasounds of the right lower extremity and nerve conduction studies. These objective studies revealed and confirmed the diagnoses of DVT, the pseudoanuerysm, right anterior tibial artery, and a diagnosis of complex regional pain syndrome, type I (reflex sympathetic dystrophy) [RSD]. These findings are again confirmed in the reporting of Dr. Baskt who indicates that the CRPS type I is 100 percent apportionable to the August 30, 2010 ankle injury. (Joint Exhibit 146, page 34) This WCJ finds the reporting of Dr.

The rules the panel named

Authorities as the decision cited them, with how this panel applied each one.

California Labor Code

Labor Code section 4062.2(a) regarding comprehensive medical evaluations and attorney representation.

The Board rejected defendant's claim that Dr. Houts's report was inadmissible under this section because Dr. Houts was retained as a secondary treating physician.

From the decision · page 2In addition, we reject defendant's allegation that the October 1, 2018 medical report of Dr. Houts, a psychiatrist, is inadmissible and therefore the WCJ erred in relying upon it. (Applicant's Exhibit 18.) In making this allegation, it appears that defendant relies upon Labor Code section 4062.2(a), which provides: "Whenever a comprehensive medical evaluation is required to resolve any dispute arising out of an injury or a claimed injury occurring on or after January 1, 2005, and the employee is represented by an attorney, the evaluation shall be obtained only as provided in this section."

California Labor Code

Labor Code section 4662(b) regarding permanent disability determination 'in accordance with the fact'.

The Board affirmed the WCJ's finding of permanent and total disability supported by substantial evidence.

From the decision · page 3Defendant further contends that in addressing the issue of permanent disability, the WCJ erred in determining that applicant sustained permanent and total disability "in accordance with the fact" under Labor Code section 4662(b). In so contending, defendant relies upon Department of Corrections & Rehabilitation v. Workers' Comp. Appeals Bd. (Fitzpatrick) (2018) 27 Cal.App.5th 607 [83 Cal.Comp.Cases 1680]. Therein the Court of Appeal held that section 4662(b) does not provide an independent basis to find permanent and total disability "in accordance with the fact," where the medical record justifies a scheduled rating of less than 100% and the scheduled rating is not rebutted.

Franklin v. WCAB, 1978

Franklin v. WCAB (1978) defining permanent disability as impairment of earning capacity or use of a member.

The Board applied this standard to support the finding of permanent disability.

From the decision · page 11A permanent disability is one, which causes impairment of earning capacity, impairment of the normal use of a member, or a competitive handicap in the labor market [Franklin v. WCAB, 1978 Cal. App. LEXIS 1377]. It is Applicant's burden to prove the extent of her disability [Labor Code sections 3202.5 and 5705]. Where permanent disability is not conclusively presumed to be total, it may be determined to be so "in accordance with the fact" [Labor Code section 4662(b)]. [...] Such a finding must be supported by substantial evidence. [Lamb v. WCAB, 1974 Cal. LEXIS 297; LeVesque v. WCAB, 1970 Cal. LEXIS 338].

ADJ8043045 · May 14, 2024

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