What Is Substantial Medical Evidence?

The applicant filed a claim alleging a cumulative trauma to the back, lower extremities, neck and diabetes. The applicant later amended the claim to include a claim for hypertension.

The case was eventually tried before a Workers’ Compensation Judge (WCJ). The WCJ found the applicant’s hypertension non industrial. The WCJ believed the applicant’s history of job stress was not credible. The WCJ found the orthopedic injuries and the diabetes industrially related.

The judge found on a physician report that indicated the diabetes was stress related. However, the WCJ did not find that stress caused the diabetes, but rather it was caused by an injection of epinephrine for the industrial back injury.

This case, even though it is non published, cites cases that our published. Substantial evidence is considered in light of the whole record. Levesque v. WCAB. Medical reports cannot be based on surmise, speculation or conjecture. Hegglin v WCAB.

It is important to read this case because they differentiate between an aggravation of short duration and one that has long- term effects. They indicate that the medical cause of an ailment is a scientific question.. You must have a medical opinion based upon scientific knowledge.

In this case the judge made a lay opinion. The court indicated that where an issue is exclusively a matter of scientific medical knowledge you need expert medical evidence form a physician. Lay testimony or opinion is not sufficient to meet the test of substantial evidence.

There was no medical evidence in this case to support the finding that the diabetes was industrial related. The case was remanded to the trial level for further development of the record.

New Apportionment Decision Under Section 4664

This is an important decision that will surely be vigorously fought at the appellate level.

The applicant sustained an injury to his left knee in 1995. The applicant stipulated to a 34 per cent permanent disability based on a restriction of no heavy lifting.

The applicant had a second injury in 1999 to the left shoulder, left knee, left ankle and right wrist. There was a stipulation to 42 percent permanent disability based on limitation to light work. There was apportionment to the prior restriction of no heavy lifting.

The current case involves a back injury and a limitation to semi-sedentary work. The Workers’ Compensation Judge (WCJ) subtracted the rating for the light work and gave the applicant a 10 percent disability after apportionment. The applicant petitioned for reconsideration.

The Workers’ Compensation Appeals Board (WCAB) determined that Labor Code section 4664 still requires the apportionment of overlapping disabilities. This includes the situation where you have a new area of the body. In this case the new area was the back, which was not included in either of the prior awards. Apportionment was still appropriate
The defendant has the burden of proving the existence of a prior award. The defendant must offer into evidence a copy of the prior award or ask the WCJ to take judicial notice of the prior award. If not available, it can also be shown by secondary evidence.

This is a conclusive presumption and applicant can not contend they rehabilitated themself. Once shown the prior award will be subtracted from the current award. Overlap will be determined using the principles that were in existence prior to the new legislation.

Opinion On Decision Discussing Applicant Working At Home

The applicant had an injury on November 15, 2000, while employed by homeowners as a painter. He had a very serious injury. He was an Australian temporarily in California. The applicant did not testify at trial. There was no deposition taken of the applicant, no affidavit, or statement offered into evidence.

The Workers’ Compensation Judge (WCJ) found the injury industrial related. The defendant filed a petition for reconsideration.

The Workers’ Compensation Appeals Board (WCAB) issued this decision as a significant panel decision.

The WCAB analyzed Labor Code sections 3351 (d) and 3352 (h). The applicant did not work for a licensed contractor. The defendant argued this two sections were applicable to the facts since the applicant did not work 52 hours or earn at least $100.00 in the 90 days prior to his injury.

The Board found the applicant was an employee under Labor Code section 3715 (b). They determined 3715 (b) applies to all residential employees even if there is homeowners insurance.

The Legislature intended that three types of residential employees would be covered under this section. They indicated if the applicant would have been covered by the law in effect prior to January 1, 1977, and the work to be performed was contemplated to last more than 10 days or the total labor cost was at least $100 the applicant was covered.

Rebuttal To Heart Presumption Discussion

This is an important case to read even though it is a non published decision. This opinion reviews the relevant law under Labor Code section 3212.2 dealing with the heart presumption.

The applicant was a correctional officer with the Department of Corrections. During the Thanksgiving holiday the applicant developed an upper respiratory infection. The applicant then developed bronchitis which spread to his heart. The virus caused a viral
myocarditis which led to his sudden death.

A death claim was filed and Labor Code section 3212.2 was raised. The applicant’s reporting physician indicated that the death resulted from a heart problem that resulted from the respiratory illness. The defendant’s medical indicated there was no medical basis for linking the death to the applicant’s employment.

The Workers’ Compensation Judge (WCJ) determined the case was industrial related because the defendant’s medical did not overcome the presumption. The Workers’ Compensation Appeals Board (WCAB), on petition for reconsideration, reversed the WCJ stating the injury was non-industrial.

The appellate court, on review, indicated that the presumption is one affecting the burden of proof and is rebuttable.

The burden is on the employer to prove the applicant’s trouble did not rise out of and in the course of employment. The employer must show a contemporaneous nonwork-related event to show it is non industrial.

The employer must show a nonindustrial event occurring at the same time as the heart trouble developed or manifested itself. Concluding that there is no medical evidence is not sufficient for overcoming the presumption.

Appellate Court Issues Published Apportionment Decision

The applicant sustained an industrial injury to his back. The parties stipulated to a 46 % permanent disability. This was based on an agreed medical examiner opinion. The stipulation was approved in March 2001, before the new apportionment law went into effect.

In November 2001, the applicant filed a petition to reopen for new and further disability.

The case was presented to a Workers’ Compensation Judge (WCJ) in February 2004. The WCJ found the applicant was entitled to 70 % permanent disability without apportionment.

Apportionment was considered under the old apportionment law prior to April 19,2004. The defendant petitioned the Workers’ Compensation Appeals Board (WCAB) for review because the new apportionment law was passed 10 days after the WCJ’s decision. The WCAB remanded for the WCJ to determine whether SB 899 applied. The applicant preempted the WCJ by immediately filing a WRIT.

The appellate court discussed the conclusive presumption of Labor Code section 4664 (b). They further discussed the WCAB’s continuing jurisdiction under Labor Code sections 5410, 5803, and 5804.

They concluded that reopening discovery and further developing the record may be required to consider apportionment. They indicated it was not relevant that many cases in the pipeline may have been blind sided by the new legislation.

The important concept with this case is that even if there was no apportionment in the first stipulation you may get apportionment on reopening.

WCAB Issues Apportionment Decision

The applicant sustained an industrial injury to his low back. The major issue at the time of trial was permanent disability and apportionment. The applicant had a prior injury at the same employer to the same part of the body. The applicant received a stipulated Award on the prior injury of 49%.

The current injury went to trial. The Workers’ Compensation Judge (WCJ) took judicial notice of the prior 49% award. The WCJ then issued rating instructions to the Disability Evaluation Unit which yielded an overall rating of 80%.

The disability evaluator recommended a rating of 31%. This was the subtraction method of subtracting the prior 49% award from the current 80 % rating. The WCJ agreed and issued a Findings and Award for 31%.

The applicant attorney filed a petition for reconsideration asking that the percentage not be subtracted but rather the dollar value be subtracted. The applicant argued that Fuentes was no longer controlling because of the passage of SB 899.

The Workers’ Compensation Appeals Board (WCAB) issued this en banc decision stating that Labor Code sections 4663 (c) and 4664 (a) mandate that the
percentage of disability (not the dollar amount) be subtracted.

The WCAB indicates the fact that Fuentes was an analysis of the apportionment law under Labor Code section 4750, which was repealed, does not change the legislative intent in adopting the new apportionment statutes.

They indicated you find the overall permanent disability. You then subtract the percentage of permanent disability caused by other factors under section 4663 (c) or previously awarded under section 4664 (b).

Substantial Evidence Required To Discontinue Temporary Disability

The question often arises as to when you can cease paying temporary disability. This case presents an interesting scenario.

The applicant had an admitted specific injury and was paid temporary disability benefits. The applicant’s treating physician told the applicant to remain off work until April 1, 2004.

The defense obtained a Qualified Medical Examination (QME) dated February 11, 2004. The report indicated the applicant was not yet permanent and stationary, but the applicant could return to his usual and customary occupation.

The applicant was deposed February 12, 2004, and indicated the QME asked him if he could return to work. The applicant indicated he could. The applicant indicated he was not an expert.

The employer ceased temporary disability payments on February 13, 2004. The applicant continued treatment with his primary treating physician.

The applicant filed for an expedited hearing because he did not return to work. The Workers’ Compensation Judge (WCJ) concluded that temporary disability benefits could be terminated by the employer on February 12, 2004.

A petition for reconsideration was filed and the Workers’ Compensation Appeals Board agreed with the WCJ. The applicant then filed a WRIT.

The appellate court indicated there is no statutory definition of temporary disability. It has been defined by the courts. Temporary disability is a substitute for lost wages. The court indicated you could not bolster a medical opinion, not in existence, with the applicant’s lay opinion. Therefore, there was no substantial evidence,

Appeals Board Reviews Apportionment Under The New Law

The applicant had an industrial injury to her left knee. The applicant alleged as a compensable consequence of that a right knee problem. The applicant had surgery to the left knee.

The defense doctor apportioned the applicant’s disability on the fact that the applicant had significant degenerative arthritis in both knees. This was based on reasonable medical probability.

The Workers’ Compensation Judge (WCJ) agreed with the defense doctor and apportioned. The applicant filed a petition for reconsideration.

The Workers’ Compensation Appeals Board ( WCAB) issued a n En Banc decision. They reviewed SB 899.

They indicated that Labor Code section 4663 (a)’s apportionment of permanent disability is based on causation of permanent disability , not causation of injury.

Section 4663 (c) indicates what standards the WCAB must use for this determination and how to determine what percentage of permanent disability was caused by other factors.

The applicant has the burden of determining the percentage of
disability caused by the injury while the defendant has the burden of what disability was caused by other factors.

Disability can be apportioned to pathology, asymptomatic prior conditions, and a retroactive prophylactic work preclusion, even though this had been disallowed in the past under prior case law. There must be substantial medical evidence of the apportionment. The doctor must state the reasons for the opinions and that it is based on reasonable medical probability.

Labor Code Section 5814 Is Reviewed Under The New Law

The applicant claimed an industrial injury for orthopedics, psychiatric and internal injuries. The applicant filed an application and indicated vocational rehabilitation was in issue

The defendant denied the case. The parties referred the applicant to an orthopedist and psychiatric agreed medical examiner, who both found the injury industrial related. The doctor also recommended vocational rehabilitation.

The applicant petitioned for increased compensation under Labor Code section 5814, for denying benefits. The parties, thereafter, entered into a Stipulation with Requests for Award for a 58 percent permanent disability. The penalty issue was submitted at a trial without testimony.

The Workers’ Compensation Judge (WCJ) awarded a 10 percent penalty under former section 5814 against temporary and permanent disability, medical treatment and vocational rehabilitation. The WCJ awarded only one penalty and the applicant petitioned for reconsideration contending a separate penalty based on each medical. This all transpired prior to April 19, 2004.

The appellate court determined that the new legislation affected substantive rights and therefore, the legislation was retroactive.

The appellate court ruled that each agreed medical examiner report was a separate, legally significant event under the Chrisitian case so that multiple penalties might be awarded.

The appellate court also indicated that applicant waived his right to vocational rehabilitation benefits by not raising the argument before the Workers’ Compensation Appeals Board.

90 Days To Deny Injury Explained

The applicant claimed an industrial injury to his body and psyche for a period of January 1, 1995 through October 16,1998. The company medical record indicated in July that the applicant’s private physician had prescribed the applicant medications for work related stress.

On October 16, the applicant’s wife called the employer and informed the employer the applicant had been admitted to a psychiatric facility for a nervous breakdown. The hospital records did indicate work problems

A claim form was not sent until January 1999. The claim form was returned January 15, 1999 and the case was denied March 31, 1999.

The matter was tried before a Workers’ Compensation Judge (WCJ) on the grounds that the employer did not deny the claim timely pursuant to Labor Code section 5402. Therefore, the case should be presumed compensable. The WCJ found it compensable on the grounds the employer had sufficient knowledge in October.

The Workers’ Compensation Appeals Board issued an en banc decision on petition for reconsideration and rescinded the WCJ decision. The case eventually made it to the Court of Appeal and finally the Supreme Court.

The Supreme Court ruled that the 90 days runs from the filing of the claim form only. The employer can be estopped from the running of the 90 days from the filing of the claim form only under three circumstances. These are elucidated in the decision and will be applied on a case by case basis.

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