ADJ9598012 — California WCAB decision

ADJ9598012 · April 29, 2021

Petition for Reconsideration granted; Findings and Award affirmed as amended to find 71% permanent disability; issues of Labor Code section 4658(d)(2) increase and attorney fees deferred; matter returned to WCJ for further proceedings.

Issues decided

Medical opinions weighed

Authorities named

District office

San Bernardino

What the panel ordered

Defendant sought reconsideration of the Findings and Award issued by the WCJ on February 12, 2021; WCAB granted reconsideration, affirmed the Findings and Award with amendments, and returned the matter to the WCJ for further proceedings.

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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.

AOE/COEDefendant prevailedleft carpal tunnel

The WCJ found no injury arising out of and in the course of employment for left carpal tunnel syndrome, which was not contested on reconsideration.

From the decision · page 1Defendant seeks reconsideration of the Findings and Award, (F&A) issued by the workers' compensation administrative law judge (WCJ) on February 12, 2021, wherein the WCJ found in pertinent part that applicant sustained injury arising out of and occurring in the course of employment (AOE/COE) to her right shoulder, right elbow, right wrist, right hand, and in the form of complex regional pain syndrome in her right upper extremity; that she did not sustain injury AOE/COE in the form of left carpal tunnel syndrome; and that the injury caused 70% permanent disability.

The facts that decided it

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

Dr. Goldman was the applicant's primary treating physician over several years and summarized the treatment history in his report.

Favours Applicant prevailed

This supported the credibility and substantial evidence weight of Dr. Goldman's impairment rating report.

From the decision · page 3Here, the F&A was based on the opinions of PTP Dr. Goldman as stated in his March 1, 2019 report. (See Opinion on Decision, p. 2; Report, pp. 2 § 3.) Defendant argues that Dr. Goldman's report is not substantial evidence because he did not list the records he reviewed to prepare his report and that, "In stark contrast to the de minimis record review of Dr. Goldman, PQME Vincent Gumbs indicated he spent eight and 1/4 hours reviewing records to prepare his September 24, 2019 report." (Petition, pp. 3 § 4.) We first note that Dr. Goldman was applicant's PTP over a course of several years, beginning May 6, 2013. (App. Exh. 1, p. 1.) In the Treatment History section of his report Dr. Goldman summarized applicant's treatment, including the elbow and carpal tunnel surgeries she underwent. (App. Exh. 1, p. 1.) Also, Dr. Gumb's review of the medical record included approximately thirty of Dr. Goldman PR-2s. (Def. Exh I, pp. 3 § 8.) Based on our review of the reports from Dr. Gumb and Dr. Goldman, it appears that Dr. Goldman was well aware of applicant's treatment history. The fact that he did not list the reports and diagnostics prepared and/or reviewed over the course of applicant's treatment, does not mean his report is not substantial evidence.

The issue of the Labor Code section 4658(d)(2) 15% increase was not raised at trial and was deferred to ensure due process.

Favours neutral

The Board deferred this issue to allow proper notice and opportunity to be heard, affecting the final award.

From the decision · page 4Statements in an Opinion on Decision are not findings of fact, their purpose is to explain the basis for the decision. (See Lab. Code § 5313; Twentieth Century-Fox Film Corp. v. Workers' Comp. Appeals Bd., (1983) 41 Cal.App.3d 778 [48 Cal.Comp.Cases 275].) Also, the issue of applicant's entitlement to the section 4658(d)(2) increase was not raised or identified as an issue at trial and it was not an issue submitted for decision. (MOH/SOE, p. 2.) Raising and determining such an issue without providing prior notice to the parties, and giving them an opportunity to be

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

Diagnosed right carpal tunnel syndrome/status post right carpal tunnel release, right upper arm complex regional pain syndrome I, and right cubital tunnel syndrome; assigned 11% whole person impairment for right elbow and 39% for right wrist/hand, totaling 46% WPI; concluded injury caused 70% permanent disability.

Dr. Goldman's report was found to be substantial evidence and consistent with AMA Guides for impairment rating.

From the decision · page 1Defendant seeks reconsideration of the Findings and Award, (F&A) issued by the workers' compensation administrative law judge (WCJ) on February 12, 2021, wherein the WCJ found in pertinent part that applicant sustained injury arising out of and occurring in the course of employment (AOE/COE) to her right shoulder, right elbow, right wrist, right hand, and in the form of complex regional pain syndrome in her right upper extremity; that she did not sustain injury AOE/COE in the form of left carpal tunnel syndrome; and that the injury caused 70% permanent disability.

QMENot substantial evidence · orthopedic

Evaluated applicant multiple times; assigned 45% right upper extremity impairment, converted to 27% whole person impairment with 3% pain add-on.

From the decision · page 2BACKGROUND Applicant claimed injury to her right shoulder, right elbow, right wrist, right hand, and in the form of left arm carpal tunnel syndrome, and bilateral upper extremity complex regional pain syndrome, while employed by defendant as a teaching assistant during the period from October 4, 2010, through August 17, 2012. On January 15, 2013, applicant was evaluated by orthopedic qualified medical examiner (QME) Vincent L. Gumbs, M.D. (Def. Exh. A, Dr. Gumbs, January 15, 2013.) Dr. Gumbs re- evaluated applicant on May 20, 2014, and September 12, 2017. Applicant's primary treating physician (PTP) Scott Goldman, M.D., found that applicant's condition reached maximum medical improvement/permanent and stationary status on March 1, 2019. (App. Exh. 1, Dr. Goldman, March 1, 2019, p. 4.) Dr. Goldman diagnosed applicant as having right carpal tunnel syndrome/status post right carpal tunnel release, right upper arm complex regional pain syndrome I (CPRS I), and right cubital tunnel syndrome. (App. Exh.

ADJ9598012 · April 29, 2021

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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