ADJ9088316 · September 20, 2022

The WCJ and WCAB found insufficient medical evidence to support permanent total disability under section 4662(a)(4) based on brain injury, relying on Dr. Nudleman's rating and rejecting Dr. Reynolds' conclusory opinion; however, jurisdiction over permanent disability was reserved due to the progressive nature of the neurological condition.

From the decision · page 4Here, the WCJ rejected this contention, based on the July 17, 2017 report of Dr. Kenneth Nudleman, the Qualified Medical Evaluator (QME) in neurology. (Ex. 28; Report, p. 6.) In that report, Dr. Nudleman determined that pursuant to the AMA Guides (Guides),4 applicant has a posttraumatic head syndrome, that is "constant slight becoming occasionally slight to moderate," posttraumatic headaches that are "intermittent and slight," a sleep disorder that is "constant and slight becoming intermittently moderate," and a panic and anxiety disorder that is "frequent and slight." Dr. Nudleman found that these disabilities resulted in applicant having a 20% Whole Person Impairment under the Guides. (Ex. 28.)

Applicant failed to show medical evidence that he was unable to work or wished to return to work during the claimed period; thus, no temporary disability was awarded.

From the decision · page 6III. Applicant contends that he is entitled to total temporary disability for the period from November 1, 2013, to December 6, 2016. Temporary disability connotes an inability to work and an inability to earn any income during the period when an employee is recovering from the effects of the injury. (§ 4654; Herrera v. Worker's Comp. Appeals Bd. (1969) 71 Cal.2d 254, 257 [34 Cal.Comp.Cases 382].) Here, applicant testified that following his career as a football player, he began a career in teaching, and eventually was employed as a high school vice principal and later a high school principal until his retirement in 2014. (10/31/2017 MOH, p. 6.) Applicant relies on the opinion of orthopedic QME Dr. Kim, as expressed in Dr. Kim's report of December 16, 2014. In this report, however, and in his December 16, 2016 report, Dr. Kim states under "Ability to Return To Work"

Dr. Nudleman's medical opinion rated applicant's neurological impairment at 20% Whole Person Impairment and found progressive posttraumatic head syndrome and CTE.

Favours Defendant prevailed

This opinion was relied upon by the WCJ and WCAB to deny permanent total disability under section 4662(a)(4) and to reserve jurisdiction over permanent disability due to progressive nature.

From the decision · page 4Here, the WCJ rejected this contention, based on the July 17, 2017 report of Dr. Kenneth Nudleman, the Qualified Medical Evaluator (QME) in neurology. (Ex. 28; Report, p. 6.) In that report, Dr. Nudleman determined that pursuant to the AMA Guides (Guides),4 applicant has a posttraumatic head syndrome, that is "constant slight becoming occasionally slight to moderate," posttraumatic headaches that are "intermittent and slight," a sleep disorder that is "constant and slight becoming intermittently moderate," and a panic and anxiety disorder that is "frequent and slight." Dr. Nudleman found that these disabilities resulted in applicant having a 20% Whole Person Impairment under the Guides. (Ex. 28.)

Dr. Reynolds' opinion diagnosing Parkinson's disease and CTE and concluding permanent mental incapacity was rejected as conclusory and less comprehensive.

Favours Defendant prevailed

Rejection of this opinion supported denial of permanent total disability under section 4662(a)(4).

From the decision · page 4Applicant relies on the opinion of his treating physician, Leighton Reynolds, M.D., to support his contention that he has an injury to his brain "resulting in permanent mental incapacity" and is conclusively presumed to be 100% disabled. In Dr. Reynold's report of June 11, 2017, he found that applicant has the signs and symptoms of both Parkinson's disease and Chronic Traumatic Encephalopathy (CTE). He concluded that applicant "has suffered an industrial injury to his brain/mind resulting in a permanent loss of mental capacity under section 466[2] (a) (4) (`injury to the brain')." (Ex. 19.)

Applicant testified he retired from work as a high school principal in 2014 and there was no substantial medical evidence he was unable to work or wished to return to work during claimed temporary disability period.

Favours Defendant prevailed

This supported denial of temporary disability for the claimed period.

From the decision · page 7that: "[i]n consideration of the above-noted findings [concerning applicant's work restrictions], the applicant will be unable to return to his prior occupation as a professional football player. The patient is currently retired from the open labor market; however, should he wish to return to the work force, he may do so within the parameters outlined above." (Exh 1, p. 31 and 5, p. 39 [italics added]; 10/31/2017 MOH, p. 6; see Gonzalez v. Worker's Comp. Appeals Bd. (1998) 68 Cal.App.4th, 843.) Although applicant testified that he left work due to his neurological disability, there is no substantial medical evidence that applicant was precluded from returning to his job as a principal or that he wished to return to the work force following his retirement. Accordingly, we find no basis in the record before us to award temporary disability for the period claimed by applicant.

Rated applicant's neurological impairments as 20% Whole Person Impairment under AMA Guides; found progressive posttraumatic head syndrome and CTE; opinion relied upon by WCJ and WCAB to deny permanent total disability under section 4662(a)(4).

More comprehensive and supported by medical evidence than treating physician's opinion.

From the decision · page 4Here, the WCJ rejected this contention, based on the July 17, 2017 report of Dr. Kenneth Nudleman, the Qualified Medical Evaluator (QME) in neurology. (Ex. 28; Report, p. 6.) In that report, Dr. Nudleman determined that pursuant to the AMA Guides (Guides),4 applicant has a posttraumatic head syndrome, that is "constant slight becoming occasionally slight to moderate," posttraumatic headaches that are "intermittent and slight," a sleep disorder that is "constant and slight becoming intermittently moderate," and a panic and anxiety disorder that is "frequent and slight." Dr. Nudleman found that these disabilities resulted in applicant having a 20% Whole Person Impairment under the Guides. (Ex. 28.)

Treated applicant and diagnosed Parkinson's disease and Chronic Traumatic Encephalopathy (CTE); concluded applicant had permanent mental incapacity under section 4662(a)(4); opinion rejected as conclusory and less comprehensive than QME's.

Incomplete review of medical records and conclusory.

From the decision · page 4Applicant relies on the opinion of his treating physician, Leighton Reynolds, M.D., to support his contention that he has an injury to his brain "resulting in permanent mental incapacity" and is conclusively presumed to be 100% disabled. In Dr. Reynold's report of June 11, 2017, he found that applicant has the signs and symptoms of both Parkinson's disease and Chronic Traumatic Encephalopathy (CTE). He concluded that applicant "has suffered an industrial injury to his brain/mind resulting in a permanent loss of mental capacity under section 466[2] (a) (4) (`injury to the brain')." (Ex. 19.)

Found applicant stopped working due to multiple conditions including Parkinson's disease; declared applicant permanent and stationary as of December 16, 2016; found no basis for temporary disability award for claimed period.

No substantial medical evidence applicant was precluded from work or wished to return after retirement.

From the decision · page 5Applicant also contends that he is permanently and totally disabled "in accordance with the fact," pursuant to section 4662 (b). In this regard, applicant points out that orthopedic QME Dr. Kim noted in his report that applicant stopped working on February 28, 2014 because of multiple conditions including Parkinson's disease, hypertension, heart attack, arterial stent, hip replacement, hip provision, left knee replacement, tinnitus, torn rotator cuff, bulging discs, diabetes, and GERD. (Ex. 31, page 6.) Applicant argues that these conditions, in addition to conditions related to his brain injury and the effects of his medication, all contributed to his total disability.

California Labor Code

Labor Code section 4662

Governs permanent total disability claims including conclusive presumption for brain injury under subsection (a)(4).

From the decision · page 2In his Petition, applicant contends that: (1) he is permanently and totally disabled under Labor Code section 4662 (a) (4)2 based on his traumatic brain injury from playing football that resulted in a severe cognitive disorder, including Parkinson's disease, dementia, and other disorders; (2) he is entitled to PTD under section 4662(b) based on the combination of his neurological, psychiatric, and orthopedic disability and the disabling effects of his medication; (3) pursuant to Gen. Foundry Serv. v. Worker's Comp. Appeals Bd. (Jackson) (1986) 42 Cal.3d 331, [51 Cal.Comp.Cases 375], he should be awarded total temporary disability until his condition becomes permanent and stationary based on the progressive nature of his neurological disorder; (4) he is entitled to total temporary disability for the period from November 1, 2013 to December 16, 2016; and (5) applicant's attorney should receive 18% of the benefits awarded due to the complexity of the case, the work performed, and the results obtained.

California Supreme Court

Gen. Foundry Serv. v. Worker's Comp. Appeals Bd. (Jackson) (1986) 42 Cal.3d 331

Establishes criteria for reserving jurisdiction over permanent disability in progressive disease cases.

From the decision · page 7IV. Next, applicant contends that, pursuant to Jackson, supra, his head injuries should be considered an insidious progressive disease, and that as a result, he should be found totally and temporarily disabled until he is permanent and stationary, and the WCAB should retain jurisdiction over permanent disability. We agree that, based on the medical evidence concerning applicant's neurological disability, jurisdiction should be reserved over the issue of permanent disability, notwithstanding the jurisdictional limits of sections 54107 and 5804. As we explain, however, we do not find applicant is entitled to total temporary disability as claimed. Applicant's treating doctor, neuropsychologist Dr. Reynolds and neurological QME Dr. Nudleman both found applicant's head trauma and presumed CTE to be progressive. Dr. Nudelman reported that "it is anticipated with time that this man's mental capacity, from a combination of his Parkinson's disease, dementia, and the beginning of presumed CTE (CTE actually cannot be officially diagnosed until postmortem), will lead to a progressive deterioration in his mental function over time." (Ex. 6, p. 23.) Dr. Reynolds also concluded that applicant's head trauma resulted in CTE, with continuing deterioration of applicant's symptoms. (Ex. 19, pp. 12- 13.)

California Labor Code

Labor Code section 4654

Defines temporary disability as inability to work and earn income during recovery period.

From the decision · page 6III. Applicant contends that he is entitled to total temporary disability for the period from November 1, 2013, to December 6, 2016. Temporary disability connotes an inability to work and an inability to earn any income during the period when an employee is recovering from the effects of the injury. (§ 4654; Herrera v. Worker's Comp. Appeals Bd. (1969) 71 Cal.2d 254, 257 [34 Cal.Comp.Cases 382].) Here, applicant testified that following his career as a football player, he began a career in teaching, and eventually was employed as a high school vice principal and later a high school principal until his retirement in 2014. (10/31/2017 MOH, p. 6.) Applicant relies on the opinion of orthopedic QME Dr. Kim, as expressed in Dr. Kim's report of December 16, 2014. In this report, however, and in his December 16, 2016 report, Dr. Kim states under "Ability to Return To Work"

California Supreme Court

Herrera v. Worker's Comp. Appeals Bd. (1969) 71 Cal.2d 254

Clarifies temporary disability requirements.

From the decision · page 6III. Applicant contends that he is entitled to total temporary disability for the period from November 1, 2013, to December 6, 2016. Temporary disability connotes an inability to work and an inability to earn any income during the period when an employee is recovering from the effects of the injury. (§ 4654; Herrera v. Worker's Comp. Appeals Bd. (1969) 71 Cal.2d 254, 257 [34 Cal.Comp.Cases 382].) Here, applicant testified that following his career as a football player, he began a career in teaching, and eventually was employed as a high school vice principal and later a high school principal until his retirement in 2014. (10/31/2017 MOH, p. 6.) Applicant relies on the opinion of orthopedic QME Dr. Kim, as expressed in Dr. Kim's report of December 16, 2014. In this report, however, and in his December 16, 2016 report, Dr. Kim states under "Ability to Return To Work"

Applicant's testimony and medical reports of Dr. Nudleman and Dr. Reynolds on progressive neurological condition

From the decision · page 7IV. Next, applicant contends that, pursuant to Jackson, supra, his head injuries should be considered an insidious progressive disease, and that as a result, he should be found totally and temporarily disabled until he is permanent and stationary, and the WCAB should retain jurisdiction over permanent disability. We agree that, based on the medical evidence concerning applicant's neurological disability, jurisdiction should be reserved over the issue of permanent disability, notwithstanding the jurisdictional limits of sections 54107 and 5804. As we explain, however, we do not find applicant is entitled to total temporary disability as claimed. Applicant's treating doctor, neuropsychologist Dr. Reynolds and neurological QME Dr. Nudleman both found applicant's head trauma and presumed CTE to be progressive. Dr. Nudelman reported that "it is anticipated with time that this man's mental capacity, from a combination of his Parkinson's disease, dementia, and the beginning of presumed CTE (CTE actually cannot be officially diagnosed until postmortem), will lead to a progressive deterioration in his mental function over time." (Ex. 6, p. 23.) Dr. Reynolds also concluded that applicant's head trauma resulted in CTE, with continuing deterioration of applicant's symptoms. (Ex. 19, pp. 12- 13.)

Lack of substantial medical evidence that applicant was unable to work or wished to return to work during claimed temporary disability period

From the decision · page 7that: "[i]n consideration of the above-noted findings [concerning applicant's work restrictions], the applicant will be unable to return to his prior occupation as a professional football player. The patient is currently retired from the open labor market; however, should he wish to return to the work force, he may do so within the parameters outlined above." (Exh 1, p. 31 and 5, p. 39 [italics added]; 10/31/2017 MOH, p. 6; see Gonzalez v. Worker's Comp. Appeals Bd. (1998) 68 Cal.App.4th, 843.) Although applicant testified that he left work due to his neurological disability, there is no substantial medical evidence that applicant was precluded from returning to his job as a principal or that he wished to return to the work force following his retirement. Accordingly, we find no basis in the record before us to award temporary disability for the period claimed by applicant.