ADJ8121665 — California WCAB decision

What the panel ordered

January 24, 2020 Findings and Order rescinded; matter returned to trial level for further proceedings.

Petition for Reconsideration filed by applicant challenging the January 24, 2020 Findings and Order denying eligibility for Subsequent Injuries Benefits Trust Fund benefits; matter returned to trial level for further proceedings to develop record on cumulative trauma injury period.

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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.

Other disputed issueRemandedbilateral hands · back · psyche

The Appeals Board found the medical record regarding the cumulative trauma injury period unclear and returned the matter to the trial level to develop the record further for due process and full adjudication.

From the decision · page 10Nevertheless, the Appeals Board has the discretionary authority to develop the record when the medical record is not substantial evidence or when appropriate to provide due process or fully adjudicate the issues. (Lab. Code, § 5701, 5906; Tyler v. Workers' Comp. Appeals Bd. (1997) 56 Cal.App.4th 389, 392-394 [62 Cal.Comp.Cases 924]; see McClune v. Workers' Comp. Appeals Bd. (1998) 62 Cal.App.4th 1117, 1120-1122 [63 Cal.Comp.Cases 261].) In our en banc decision in McDuffie v. Los Angeles County Metropolitan Transit Authority (2001) 67 Cal.Comp.Cases 138, 141 (Appeals Board en banc), we stated that "[s]ections 5701 and 5906 authorize the WCJ and the Board to obtain additional evidence, including medical evidence, at any time during the proceedings (citations) [but] [b]efore directing augmentation of the medical record... the WCJ or the Board must establish as a threshold matter that specific medical opinions are deficient, for example, that they are inaccurate, inconsistent or incomplete. (Citations.)" (McDuffie, supra, 67 Cal.Comp.Cases at 141.) Here, based on due process grounds, we return this matter to the trial level to develop the record with respect to the timeframe of Dr. Feinberg's opinions of applicant's cumulative trauma injury.

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.

AMERelied upon · Physical Medicine and Rehabilitation

Opined on permanent disability and apportioned percentages to different dates of injury, including a cumulative trauma injury through December 4, 2007; did not mention the December 6, 2010 cumulative trauma injury in reports; opined 50% of permanent disability due to specific injury and 50% due to cumulative trauma injury.

Applicant sought clarification on whether Dr. Feinberg's cumulative trauma opinions should be apportioned to the cumulative trauma injury ending December 4, 2007 or the cumulative trauma injury ending December 6, 2010; the Appeals Board found the record unclear and returned the matter for further development.

From the decision · page 9LEXIS 35] (Appeals Board en banc).) The issue here is whether applicant met the second element regarding the subsequent compensable injury. As indicated in the Petition, Dr. Feinberg authored 16 reports between July 2009 and December 2014 and referenced two injuries in these reports: an August 15, 2003 specific injury and a cumulative trauma injury through December 4, 2007. (Petition, p. 2:10-20.) Although Dr. Feinberg did not mention the December 6, 2010 cumulative trauma injury in any of his reports, applicant seeks to develop the record to allow Dr. Feinberg the opportunity to clarify or correct the date of applicant's cumulative trauma period. (Petition, pp. 4:14 -6:11.)

AMERelied upon · Neuropsychological

Provided AMA ratings for cognitive impairment and apportioned percentages to different dates of injury, including the December 6, 2010 injury.

From the decision · page 4Previous Industrial Injuries For the injuries of 8/15/2003, 8/20/2007, the Continuous Trauma through 12/04/2007, 7/15/2010 and 12/03/2010, the parties obtained the Agreed Medical Opinions of four medical-legal doctors. Steven Feinberg, M.D. opined on a Physical Medicine and Rehabilitation basis, Sandra Klein, M.D. opined on a Neuropsychological basis, Alberto Lopez, M.D. opined on a psychiatric basis and Fredric Newton, M.D. opined on a neurological basis. Each opined permanent disability to specific body parts and each apportioned a percentage of the permanent disability to different dates of injury. Additionally, both AME Klein and AME Feinberg gave AMA guidelines permanent disability and disability under an Almaraz analysis.

AMERelied upon · psychiatric

Provided AMA ratings for psychiatric injury and apportioned percentages to different dates of injury, including the December 6, 2010 injury.

From the decision · page 4Previous Industrial Injuries For the injuries of 8/15/2003, 8/20/2007, the Continuous Trauma through 12/04/2007, 7/15/2010 and 12/03/2010, the parties obtained the Agreed Medical Opinions of four medical-legal doctors. Steven Feinberg, M.D. opined on a Physical Medicine and Rehabilitation basis, Sandra Klein, M.D. opined on a Neuropsychological basis, Alberto Lopez, M.D. opined on a psychiatric basis and Fredric Newton, M.D. opined on a neurological basis. Each opined permanent disability to specific body parts and each apportioned a percentage of the permanent disability to different dates of injury. Additionally, both AME Klein and AME Feinberg gave AMA guidelines permanent disability and disability under an Almaraz analysis.

AMERelied upon · neurological

Provided AMA ratings for headaches and apportioned percentages to different dates of injury, including the December 6, 2010 injury.

From the decision · page 4Previous Industrial Injuries For the injuries of 8/15/2003, 8/20/2007, the Continuous Trauma through 12/04/2007, 7/15/2010 and 12/03/2010, the parties obtained the Agreed Medical Opinions of four medical-legal doctors. Steven Feinberg, M.D. opined on a Physical Medicine and Rehabilitation basis, Sandra Klein, M.D. opined on a Neuropsychological basis, Alberto Lopez, M.D. opined on a psychiatric basis and Fredric Newton, M.D. opined on a neurological basis. Each opined permanent disability to specific body parts and each apportioned a percentage of the permanent disability to different dates of injury. Additionally, both AME Klein and AME Feinberg gave AMA guidelines permanent disability and disability under an Almaraz analysis.

AMERelied upon

Opined 35% whole person impairment to the upper extremities based on Functional Capacity Evaluation on 10/31/2011; included opinion regarding upper extremities disability prior to December 2010; did not allocate additional 5% to subsequent injury.

Disagreed with allocation of gait disability to subsequent injury; opined disability related to prior injuries and not the subsequent injury.

From the decision · page 7Alternatively, and while Dr. Gilbert H. Lang, M.D. was used as AME for the 12/06/2010 date of injury as being the subsequent injury and AME Lang does discuss right leg symptoms (the opposite and corresponding body part), AME Lang agrees with AME Feinberg in opining 15% permanent impairment to the gait [fn omitted]. AME Feinberg apportionment the gait disability to the 8/20/2007 and the 12/04/2007 injuries while AME Lang opined the gait disability to the previous 1977 motor vehicle accident and thus neither, allocates an additional 5% to the subsequent injury.

ADJ8121665 · January 3, 2022

What the panel ordered

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The facts that decided it

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