ADJ8410465 — California WCAB decision

What the panel ordered

December 16, 2020 Findings of Fact and Order rescinded; matter returned to trial level for further proceedings

Petition for Reconsideration granted; December 16, 2020 Findings of Fact and Order rescinded; matter returned to trial level for further development of the record

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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.

Reopening / new and further disabilityApplicant prevailedlow back

Applicant established a demonstrable change in condition with a new need for medical treatment within five years of injury, conferring continuing jurisdiction under Labor Code section 5410 and Sarabi.

From the decision · page 7Based on our review of the record, we believe applicant has established demonstrable change in his condition as evidenced by the new need for medical treatment. Applicant underwent a left L5-S1microdiscecomy procedure on October 4, 2013. AME Dr. Lundeen declared applicant to be permanent and stationary on July 10, 2014. (Ex. 2, report of Jeffrey Lundeen, M.D., dated July 10, 2014, at p.9.) The applicant later told Dr. Watson that following his 2013 surgery, he enjoyed about a year and a half of relief, but that his symptoms were returning despite the surgery. (Ex. 20, report of Timothy Watson, M.D., November 9, 2016, p.5.) Thereafter, applicant sought treatment from multiple physicians for his worsening back condition, including evaluations with Dr. Calhoun in September, 2015, and Dr. Nazarian in May, 2016, (Ex. 1, report of Jeffrey Lundeen, M.D., May 15, 2018, pp.2-3.) After physical therapy and medication management were unsuccessful, Dr. Nazarian referred applicant for a surgical evaluation with orthopedic surgeon Dr. Watson. In the November 9, 2016 evaluation with Dr.

The facts that decided it

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

Applicant filed a timely Petition to Reopen on January 5, 2016, within five years of the May 25, 2012 injury date

Favours Applicant prevailed

Filing within five years is required to confer continuing jurisdiction under Labor Code section 5410

From the decision · page 2On January 5, 2016, applicant filed a Petition to Reopen, alleging his condition had worsened.

Applicant developed a new need for medical treatment, including surgical intervention recommended by Dr. Watson in 2016, within five years of injury

Favours Applicant prevailed

A new need for medical treatment within five years constitutes new and further disability under Sarabi, conferring continuing jurisdiction

From the decision · page 7Based on our review of the record, we believe applicant has established demonstrable change in his condition as evidenced by the new need for medical treatment. Applicant underwent a left L5-S1microdiscecomy procedure on October 4, 2013. AME Dr. Lundeen declared applicant to be permanent and stationary on July 10, 2014. (Ex. 2, report of Jeffrey Lundeen, M.D., dated July 10, 2014, at p.9.) The applicant later told Dr. Watson that following his 2013 surgery, he enjoyed about a year and a half of relief, but that his symptoms were returning despite the surgery. (Ex. 20, report of Timothy Watson, M.D., November 9, 2016, p.5.) Thereafter, applicant sought treatment from multiple physicians for his worsening back condition, including evaluations with Dr. Calhoun in September, 2015, and Dr. Nazarian in May, 2016, (Ex. 1, report of Jeffrey Lundeen, M.D., May 15, 2018, pp.2-3.) After physical therapy and medication management were unsuccessful, Dr. Nazarian referred applicant for a surgical evaluation with orthopedic surgeon Dr. Watson. In the November 9, 2016 evaluation with Dr.

Utilization Review approved a neurosurgical consultation requested by Dr. Orme in 2020, indicating ongoing medical necessity

Favours Applicant prevailed

The approval supports continuing jurisdiction for new medical treatment despite delay in surgery

From the decision · page 8We also observe that just as in Sarabi, where applicant's treatment was deferred for treatment of nonindustrial conditions, a delay in the contemplated treatment does not preclude the Board's continuing jurisdiction following a timely petition under section 5410. Applicant's treating physician Dr. Orme requested authorization for applicant to receive a surgical consultation, which Utilization Review certified as medically necessary on July 1, 2020. (Exhibit 25, Careworks Utilization Review determination, dated July 1, 2020.) Additionally, applicant testified at trial that he was unaware of the authorization for surgery, and wished to have the surgery "because he wants to get better and be able to work and support himself." (October 6, 2020 Minutes at 4:16.)

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.

PTPRelied upon · orthopedic surgeon

Dr. Watson evaluated the applicant in 2016 and discussed surgical intervention as medically necessary, recommending surgery within five years of injury.

Dr. Watson's 2016 evaluations and surgical recommendation supported the finding of new and further disability within five years.

From the decision · page 7Based on our review of the record, we believe applicant has established demonstrable change in his condition as evidenced by the new need for medical treatment. Applicant underwent a left L5-S1microdiscecomy procedure on October 4, 2013. AME Dr. Lundeen declared applicant to be permanent and stationary on July 10, 2014. (Ex. 2, report of Jeffrey Lundeen, M.D., dated July 10, 2014, at p.9.) The applicant later told Dr. Watson that following his 2013 surgery, he enjoyed about a year and a half of relief, but that his symptoms were returning despite the surgery. (Ex. 20, report of Timothy Watson, M.D., November 9, 2016, p.5.) Thereafter, applicant sought treatment from multiple physicians for his worsening back condition, including evaluations with Dr. Calhoun in September, 2015, and Dr. Nazarian in May, 2016, (Ex. 1, report of Jeffrey Lundeen, M.D., May 15, 2018, pp.2-3.) After physical therapy and medication management were unsuccessful, Dr. Nazarian referred applicant for a surgical evaluation with orthopedic surgeon Dr. Watson. In the November 9, 2016 evaluation with Dr.

AMERejected · orthopedic

Dr. Lundeen found no new temporary or permanent disability in 2018, but his report was prior to later developments including surgical authorization in 2020.

The panel found Dr. Lundeen's 2018 report not substantial evidence due to lack of updated medical history and subsequent developments.

From the decision · page 8We acknowledge the May 15, 2018 report of AME Dr. Lundeen, which found no new temporary or permanent disability. (Ex. K, Report of Jeffrey M. Lundeen, M.D., May 15, 2018, pp.11-12.) However, the report was written before Dr. Orme's June 23, 2020 request for neurosurgical consult, and before the Utilization Review certified the request. (Exhibit 24, report of Nicholas Orme, M.D., dated June 23, 2020, p.1; Exhibit 25, Careworks Utilization Review determination, dated July 1, 2020.) In order for a report to be substantial medical evidence, "a medical opinion must be framed in terms of reasonable medical probability, it must not be speculative, it must be based on pertinent facts and on an adequate examination and history, and it must set forth reasoning in support of its conclusions." (Escobedo v. Marshalls (2005) 70 Cal.Comp. Cases 604, 611 [2005 Cal. Wrk. Comp. LEXIS 71](Appeals Bd. en banc).) Additionally, a medical report is not substantial evidence where it "based on facts no longer germane, on inadequate medical histories and examinations." (Hegglin v. Workmen's Comp. Appeals Bd.

PTPRelied upon · orthopedic

Dr. Orme requested authorization for neurosurgical consultation in 2020, which was approved, indicating ongoing medical need.

Dr. Orme's 2020 request and the subsequent Utilization Review approval supported continuing jurisdiction for new medical treatment.

From the decision · page 8We also observe that just as in Sarabi, where applicant's treatment was deferred for treatment of nonindustrial conditions, a delay in the contemplated treatment does not preclude the Board's continuing jurisdiction following a timely petition under section 5410. Applicant's treating physician Dr. Orme requested authorization for applicant to receive a surgical consultation, which Utilization Review certified as medically necessary on July 1, 2020. (Exhibit 25, Careworks Utilization Review determination, dated July 1, 2020.) Additionally, applicant testified at trial that he was unaware of the authorization for surgery, and wished to have the surgery "because he wants to get better and be able to work and support himself." (October 6, 2020 Minutes at 4:16.)

The rules the panel named

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

Applied Materials, supra, 64 Cal.App.5th, at 1080

A finding of no new permanent or temporary disability does not preclude continuing jurisdiction based on new need for medical treatment

The Board found continuing jurisdiction despite no new disability found by AME, due to new medical treatment need

From the decision · page 8(1971) 4 Cal.3d 162 [36 Cal.Comp.Cases 93]; Granado v. Workers' Comp. Appeals Bd. (1970) 69 Cal.2d 399 [33 Cal.Comp.Cases 647]; Escobedo, supra, at 621.) Here, an updated medical history including developments occurring after Dr. Lundeen's evaluation in 2018, such as the applicant's referral for neurosurgical consult and the utilization review authorization are necessary for the AME reporting to be considered substantial evidence. Additionally, we observe that just as in Applied Materials, a finding of no new additional permanent or temporary disability does not preclude a finding of continuing jurisdiction based on a new need for medical treatment. (Applied Materials, supra, 64 Cal.App.5th, at 1080.)

Labor Code section 5410

Labor Code section 5410 confers continuing jurisdiction over a prior award when a timely petition is filed within five years of the date of injury

Applicant filed a timely petition and demonstrated new and further disability within five years, conferring continuing jurisdiction

From the decision · page 4Turning to the substantive issues presented, we observe that Labor Code section 5410 confers the Workers' Compensation Appeals Board with continuing jurisdiction over a prior award when a timely petition is filed within five years of the date of injury.1 The section provides:

Sarabi v. Workers' Comp. Appeals Bd. (2007) 151 Cal. App. 4th 920

A new need for medical treatment within five years of injury constitutes new and further disability under Sarabi v. Workers' Comp. Appeals Bd.

Applicant's worsening condition and surgical need within five years met the Sarabi standard for new and further disability

From the decision · page 6`"[N]ew and further disability" has been defined to mean disability... result[ing] from some demonstrable change in an employee's condition...' [citation]," including a "`gradual increase in disability.'" (Nicky Blair's Restaurant v. Workers' Comp. Appeals Bd. (1980) 109 Cal.App.3d 941, 955 [167 Cal. Rptr. 516].) "`"Historically, a change in physical condition necessitating further medical treatment ha[s] been considered new and further disability...[Citation.]" Thus, "[c]ommonly, new and further disability refers to a recurrence of temporary disability, a new need for medical treatment, or the change of a temporary disability into a permanent disability." [Citation.]' "... [T]he need for surgery was clear as early as May 26, 2004, when Dr. McCarthy made his recommendation for right shoulder surgery, or at the latest by August 17, 2004, when Dr. Edington opined that Sarabi had a TTD and needed right shoulder surgery. Because Sarabi's disability worsened and further medical treatment in the form of right shoulder surgery became necessary within the five- year period, Sarabi suffered "new and further disability" within the meaning of section 5410 and the Board had jurisdiction to award him additional TTD benefits. (Sarabi, supra, at 926.)

ADJ8410465 · March 15, 2022

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