ADJ9051748 — California WCAB decision

What the panel ordered

Petition for Reconsideration denied, affirming the WCJ's Findings and Order.

Defendant sought reconsideration of the WCJ's Findings and Order of October 10, 2024, which found applicant sustained industrial injury to back, hips, and teeth, and required payment for self-procured dental treatment. The WCJ issued a Report and Recommendation to deny reconsideration, which the WCAB panel adopted.

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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.

Medical treatment / UR / IMRApplicant prevailedteeth

The WCJ and WCAB found substantial medical evidence supporting industrial causation of applicant's dental injury and that defendant must pay for all reasonable and necessary dental treatment without apportionment, based on medical opinions and statutory law.

From the decision · page 1Defendant seeks reconsideration of the Findings and Order (F&O) of October 10, 2024, wherein the workers' compensation administrative law judge (WCJ) found applicant sustained injury arising out of and occurring in the course of employment to her back and bilateral hips while employed as a director for defendant. Additionally, the WCJ found applicant suffered injury arising out of and occurring in the course of employment to her teeth and reasonably required the self-procured medical treatment furnished by The Dental Trauma Center. The value of the services of The Dental Trauma Center was found to be a reasonable amount based on the Official Medical Fee Schedule or other recognized valuation schedule for dental care costs, with jurisdiction reserved in the event of any dispute as to the proper reimbursement. Statutory increase and interest was found to be applied to the amounts found reasonable and remaining unpaid as provided in Labor Code1 section 4603.2(b)(2).

The facts that decided it

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

Dr. Schames diagnosed applicant with bruxism, myofascial pain, trigeminal nerve pain, and aggravated periodontal disease, apportioning 90% of dental complaints to industrial injury.

Favours Applicant prevailed

Supported finding of industrial causation and liability for dental treatment.

From the decision · page 4On November 30, 2020, Dr. Schames issued a report, concluding that applicant was permanent and stationary with respect to her teeth following his reevaluation of her on October 28, 2020. He opined that: "She received an overall subjective improvement of 40% in my area of expertise, with our treatment, with regard to the applicant's facial and jaw complaint." (Exhibit 3, November 30, 2020.) With respect to apportionment, he indicated that:

Dr. Justice's psychiatric report noted applicant's complaints about teeth and reviewed records of Dr. Eroshevich, providing notice to defendant of dental treatment need over a year before first dental evaluation.

Favours Applicant prevailed

Supported notice and substantiation of industrial injury to teeth.

From the decision · page 7Petitioner also contends that the WCJ improperly relied on the unsubmitted records of Kristine Eroshevich, M.D., a treating psychiatrist. (Exhibit 10, p. 2.) As pointed by the WCJ, "Dr. Justice reviewed multiple medical records in her evaluation, including those of Kristine Eroshevich, M.D. which references the applicant's complaints about her teeth." (Report, p. 2.)

Defendant did not proffer medical treatment for applicant's teeth despite notice from Dr. Justice's report.

Favours Applicant prevailed

Supported defendant's liability for dental treatment costs.

From the decision · page 7Since Dr. Justice reviewed the records and considered them in her capacity as the QME in psychiatry, we see no error in the WCJ's reference to them. However, we note that a psychiatrist is a medical doctor who specializes in diagnosing, treating, and preventing mental illnesses and disorders, not dentistry or orthopedic medicine. Rather, the reference in Dr. Justice's report to applicant's teeth complaints is instead significant because it provided notice to defendant over a year before applicant's first appointment with Dr. Schames that applicant required medical treatment for her teeth, and defendant has submitted no evidence that it ever proffered this 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.

QMERelied upon · psychiatry

Noted applicant's complaints about teeth and psychiatric symptoms related to industrial injury.

Her report provided notice to defendant of applicant's need for dental treatment over a year before first dental evaluation.

From the decision · page 2BACKGROUND We will briefly review the relevant facts. Applicant claimed injury to her back, bi-lateral hips, and nervous system while employed by defendant as a director on October 31, 2012. On October 21, 2013, defendant denied injury to applicant's psyche and accepted injury to her back and legs only. On April 1, 2015, applicant filed an Amended Application for Adjudication of Claim adding the following additional body parts; nervous system, circulatory system, ear, throat, reproductive system, excretory system, teeth, and weight gain. (Exhibit A, April 1, 2015.) On October 12, 2018, applicant underwent a panel QME in psychiatry at the office of Barbara Justice, M.D. Dr. Justice issued a report dated November 8, 2018, which makes the following references to applicant's teeth: on page 70, "On the testing administered, the Claimant also reported... trouble with teeth,...."; on page 73, "On the Wahler Physical Symptoms Inventory, the Claimant endorsed the following symptoms at the level of "nearly every day:... trouble with teeth,...."; on page 77, "An `Amended' Application for Adjudication of Claim filed

otherRejected

Diagnosed applicant with bruxism and other dental complaints but did not properly justify industrial causation.

From the decision · page 6(Appeals Board en banc.) Here, defendant contends that lien claimant failed to meet its burden to establish entitlement to reimbursement for its medical treatment lien based on the medical reports from Dr. Schames who diagnosed applicant with bruxism, myofascial pain of the musculature, trigeminal nerve pain, and aggravated periodontal disease/gingival inflammation, without properly justifying the basis for his medical opinion on industrial causation. (Petition, at p. 3) Additionally, defendant contends that Marvin Pietruszka, M.D., diagnosed applicant with a litany of complaints, which included bruxism. (Petition p. 3.) Further, defendant states that Dr. Schames' and Dr. Pietruszka's reports failed to properly justify the basis for their medical opinions on industrial causation. (Petition p.3.) As the WCJ states on page 2 of his Report: Petitioner defendant asserts that the reporting of Mayer Schames D.D.S. and Marvin Pietruska [sic] are not substantial medical evidence based on a failure to review `a plethora of medical reports from [applicant's] prior treating doctors, PQMEs Dr. [Thomas] Hascall, M.D., Dr. [Barbara] Justice, M.D., or Dr. [David] Woods, M.D., or any of the Kaiser records' related to this injury claim. Thus, the reports cannot, so the argument goes, support a finding of industrial injury to applicant's teeth.

otherRelied upon

Diagnosed bruxism, myofascial pain, trigeminal nerve pain, and aggravated periodontal disease; apportioned 90% industrial causation for dental complaints; reports found substantial evidence.

Reports were substantial medical evidence despite not reviewing all prior medical records; apportionment consistent with law requiring full payment for treatment if industrial injury contributed.

From the decision · page 6(Appeals Board en banc.) Here, defendant contends that lien claimant failed to meet its burden to establish entitlement to reimbursement for its medical treatment lien based on the medical reports from Dr. Schames who diagnosed applicant with bruxism, myofascial pain of the musculature, trigeminal nerve pain, and aggravated periodontal disease/gingival inflammation, without properly justifying the basis for his medical opinion on industrial causation. (Petition, at p. 3) Additionally, defendant contends that Marvin Pietruszka, M.D., diagnosed applicant with a litany of complaints, which included bruxism. (Petition p. 3.) Further, defendant states that Dr. Schames' and Dr. Pietruszka's reports failed to properly justify the basis for their medical opinions on industrial causation. (Petition p.3.) As the WCJ states on page 2 of his Report: Petitioner defendant asserts that the reporting of Mayer Schames D.D.S. and Marvin Pietruska [sic] are not substantial medical evidence based on a failure to review `a plethora of medical reports from [applicant's] prior treating doctors, PQMEs Dr. [Thomas] Hascall, M.D., Dr. [Barbara] Justice, M.D., or Dr. [David] Woods, M.D., or any of the Kaiser records' related to this injury claim. Thus, the reports cannot, so the argument goes, support a finding of industrial injury to applicant's teeth.

The rules the panel named

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

South Coast Framing, Inc. v. Workers' Comp. Appeals Bd. (Clark) (2015) 61 Cal.4th 291

It is sufficient if the connection between work and the injury be a contributing cause of the injury; acceleration or aggravation of a preexisting disease is an industrial injury.

Supports finding that applicant's dental condition was industrially caused despite preexisting bruxism.

From the decision · page 8"[F]or the purposes of the causation requirement in workers' compensation, it is sufficient if the connection between work and the injury be a contributing cause of the injury... [Citation.]" (Clark, supra, 61 Cal.4th at p. 298.) Further, "the acceleration, aggravation or `lighting up' of a preexisting disease is an injury in the occupation causing the same." (Id. at p. 301.)

Labor Code section 5705

The burden of proof rests upon the party or lien claimant holding the affirmative of the issue.

Lien claimant must prove entitlement to payment for industrially related medical treatment by preponderance of evidence.

From the decision · page 6II. Pursuant to Labor Code section 5705, "The burden of proof rests upon the party or lien claimant holding the affirmative of the issue." (Lab. Code, § 5705.) It is the applicant's burden to establish that industrial causation is reasonably probable. (South Coast Framing, Inc. v. Workers' Comp. Appeals Bd. (Clark) (2015) 61 Cal.4th 291, 297 [80 Cal.Comp.Cases 489]; Lantz v. Workers' Comp. Appeals Bd. (2014) 226 Cal.App.4th 298 [79 Cal.Comp.Cases 488].) When a lien claimant (rather than the injured worker) is litigating the issue of entitlement to payment for industrially related medical treatment, the lien claimant stands in the shoes of the injured employee and the lien claimant must prove by a preponderance of the evidence all of the elements necessary to the establishment of its lien. (Lab. Code, § 3202.5, 5705; Kunz v. Patterson Floor Coverings, Inc. (2002) 67 Cal.Comp.Cases 1588, 1592.

Labor Code section 4600

Employer must provide medical treatment reasonably required to cure or relieve effects of injury; no apportionment of medical treatment expenses.

Employer must pay all reasonable medical expenses if industrial injury contributed to need for treatment.

From the decision · page 8An employer is required to provide medical treatment "that is reasonably required to cure or relieve the injured worker from the effects of his or her injury... " (Lab. Code, § 4600) There is no apportionment of the expenses of medical treatment. If the need for medical treatment is partially caused by applicant's industrial injury, the employer must pay all of the injured worker's reasonable medical expenses. (See Granado v. Workmen's Comp. Appeals Bd. (1968) 69 Cal.2d 399 [33 Cal.Comp.Cases 647].)

ADJ9051748 · January 6, 2025

What the panel ordered

What was disputed, and how it came out

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The facts that decided it

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