ADJ9079416 — California WCAB decision

What the panel ordered

Petition for Reconsideration granted; March 15, 2021 Joint Findings and Order rescinded and substituted; case placed off calendar pending new AME report; penalties and sanctions deferred.

Petition for Reconsideration granted; prior March 15, 2021 Joint Findings and Order rescinded and substituted with new Findings and Order deferring penalties and sanctions and placing case off calendar pending further medical development.

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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 / IMRDeferredright ankle · left elbow

The Board found that the medical record needed further development by the AME Dr. Ray L. Craemer before deciding on new and further disability.

From the decision · page 3FINDINGS OF FACT 1. the applicant, while employed at Fortune Management Corporation of Pomona, whose workers compensation insurance was Springfield Insurance Company administered by AmTrust North America, sustained injury arising out of and in the course of his employment on June 24, 2013 to his right ankle and on August 18, 2015 to his left elbow. 2. There is a need to develop the medical record as to whether the applicant now has new and further disability since his prior awards. 3. The applicant needs to be re-evaluated by the Agreed Medical Examiner who previously examined applicant for these injuries; Dr. Ray L. Craemer. 4. Defendant's petition for sanctions and penalties is deferred.

The facts that decided it

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

Applicant sustained injuries to right ankle on June 24, 2013 and left elbow on August 18, 2015, with prior stipulated permanent disability ratings of 29% and 12% respectively.

Favours Applicant prevailed

These prior injuries and ratings are the basis for the petitions to reopen for new and further disability.

From the decision · page 3FINDINGS OF FACT 1. the applicant, while employed at Fortune Management Corporation of Pomona, whose workers compensation insurance was Springfield Insurance Company administered by AmTrust North America, sustained injury arising out of and in the course of his employment on June 24, 2013 to his right ankle and on August 18, 2015 to his left elbow. 2. There is a need to develop the medical record as to whether the applicant now has new and further disability since his prior awards. 3. The applicant needs to be re-evaluated by the Agreed Medical Examiner who previously examined applicant for these injuries; Dr. Ray L. Craemer. 4. Defendant's petition for sanctions and penalties is deferred.

Applicant's counsel failed to schedule a re-evaluation with AME Dr. Ray L. Craemer after filing petitions to reopen, delaying medical development.

Favours Defendant prevailed

This failure delayed the development of competent medical evidence necessary for decision on new and further disability.

From the decision · page 5The only medical evaluation attended by the applicant since the filing of the petitions to re-open is the 4/23/2019 examination by Dr. Scott Small, D. O. Applicant's attorney acknowledges that none of Dr. Ray L. Craemer's medical reports were sent to Dr. Small to review. Applicant's counsel never set up an examination with Dr. Craemer after the filing of the petitions to re-open.

Dr. Small's medical report was challenged and stricken for inaccurate history and lack of review of prior AME reports.

Favours Applicant prevailed

The report's unreliability necessitated further medical development by the AME.

From the decision · page 6Dr. Small seems to have some incorrect history of the applicant's working history. Dr. Small's report describes the applicant as working full time but without restrictions at the time of his examination. Applicant testified that at that time he was working full time, but with restrictions. Defense counsel moved to strike the report from evidence for not having a correct history. At one point, defense counsel even called applicant a liar because the history was not accurate.

The rules the panel named

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

Cal. Code Regs., tit. 8, former 10843(a), now 10955(a)

WCAB Rule 10955 regarding reconsideration and removal petitions

Petition for reconsideration granted as the prior order was final and reconsideration was an adequate remedy.

From the decision · page 1WCAB Rule 10955 provides that in seeking removal a petitioner must "demonstrate that reconsideration will not be an adequate remedy after the issuance of a final order, decision or award." (Cal. Code Regs., tit. 8, former § 10843(a), now § 10955(a) (eff. Jan. 1, 2020).) A "final" order has been defined as one that either "determines any substantive right or liability of those involved in the case" (Rymer v. Hagler (1989) 211 Cal.App.3d 1171, 1180; Safeway Stores, Inc. v. Workers' Comp. Appeals Bd. (Pointer) (1980) 104 Cal.App.3d 528, 534-535 [45 Cal.Comp.Cases 410, 413]; Kaiser Foundation Hospitals v. Workers' Comp. Appeals Bd. (Kramer) (1978) 82 Cal.App.3d 39, 45 [43 Cal.Comp.Cases 661, 665]) or determines a "threshold"

Labor Code Section 5313

Labor Code Section 5313 requiring decisions to be based on admitted evidence and supported by substantial evidence

Decision must be based on admitted evidence and substantial evidence; WCJ must refer to evidence in opinion on decision.

From the decision · page 2An adequate and complete record is necessary to understand the basis for the WCJ's decision. (Lab. Code, § 5313) A decision "must be based on admitted evidence in the record" (Hamilton v. Lockheed Corporation (Hamilton) (2001) 66 Cal.Comp.Cases 473, 478 (Appeals Board en banc) and must be supported by substantial evidence. (Lab. Code, § 5903, 5952(d); Lamb v. Workmen's Comp. Appeals Bd. (1974) 11 Cal.3d 274 [39 Cal.Comp.Cases 310]; Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312 [35 Cal.Comp.Cases 500]; LeVesque v. Workers' Comp. Appeals Bd. (1970) 1 Cal.3d 627 [35 Cal.Comp.Cases 16].) As required by section 5313 and explained in Hamilton, "the WCJ is charged with the responsibility of referring to the evidence in the opinion on decision, and of clearly designating the evidence that forms the basis of the decision." (Hamilton, supra, at p. 475.) The WCJ's opinion on decision "enables the parties, and the Board if reconsideration is sought, to ascertain the basis for the decision, and makes the right of seeking reconsideration more meaningful." (Hamilton, supra, at pp. 475§ 476, citing Evans v. Workmen's Comp. Appeals Bd. (1968) 68 Cal.2d 753, 755 [33 Cal.Comp.Cases 350, 351].)

Labor Code Section 4067

Labor Code Section 4067 requiring AME to conduct formal evaluation for petitions to reopen

AME Dr. Ray L. Craemer must conduct formal evaluation for new and further disability petitions.

From the decision · page 6Applicant relies on Labor Code § 4067, which includes language that when an AME makes a formal medical evaluation of the same or similar issues now being raised in a petition to reopen for new and further disability, the AME "shall" then conduct a formal evaluation.

ADJ9079416 · May 18, 2021

What the panel ordered

What was disputed, and how it came out

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The facts that decided it

What the panel did with the medical opinions

The rules the panel named

What proof carried it

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