ADJ10074517 · October 30, 2023

Applicant did not produce sufficient evidence of good cause to reopen or new and further disability regarding the cervical spine; no substantial medical evidence supported industrial injury to the cervical spine.

From the decision · page 2With regard to the cervical spine injury, while we reject the notion that the cervical spine was not subject to reopening because any cervical spine claim was dismissed without prejudice, applicant has not produced sufficient evidence of either good cause to reopen (Lab. Code, § 5803) or new and further disability (Lab. Code section 5410) with regard to the cervical spine. With regard to the issue of new and further disability, orthopedist Elana Harway, M.D., who was the panel qualified medical evaluator in the reopening proceedings, did not find any cervical spine new and further disability. With regard to good cause to reopen, both Dr. Proctor's and Dr. Baldwin's reporting prior to the stipulated Award noted neck complaints (although Dr. Baldwin appears to say that these were related to the accepted shoulder injury), but neither found compensable cervical spine injury.

Remanded for reanalysis of whether the totality of applicant's low back permanent disability was 'new and further' and whether good cause exists to include the entire low back disability in the calculation of overall permanent disability.

From the decision · page 4Thus, we grant reconsideration and return this matter to the trial level for the WCJ to consider whether the totality of applicant's low back permanent disability was "new and further" disability given the fact that applicant's condition was not yet permanent and stationary. Additionally, if still relevant, the WCJ and the parties may also consider if there was good cause under Labor Code section 5803 to include applicant's entire low back disability in the calculation of overall permanent disability given the fact that Dr. Moelleken's report appears to have not been received by the parties until after the issuance of the stipulated Award. In Benavides v. Workers' Comp. Appeals Bd. (2014) 227 Cal.App.4th 1496 [79 Cal.Comp.Cases 483], section 5803 was invoked to set aside a stipulated Award.

Applicant did not produce sufficient evidence of good cause to reopen or new and further disability regarding the cervical spine; no substantial medical evidence supported industrial injury to the cervical spine.

Favours Defendant prevailed

Led to denial of reopening for cervical spine injury.

From the decision · page 2With regard to the cervical spine injury, while we reject the notion that the cervical spine was not subject to reopening because any cervical spine claim was dismissed without prejudice, applicant has not produced sufficient evidence of either good cause to reopen (Lab. Code, § 5803) or new and further disability (Lab. Code section 5410) with regard to the cervical spine. With regard to the issue of new and further disability, orthopedist Elana Harway, M.D., who was the panel qualified medical evaluator in the reopening proceedings, did not find any cervical spine new and further disability. With regard to good cause to reopen, both Dr. Proctor's and Dr. Baldwin's reporting prior to the stipulated Award noted neck complaints (although Dr. Baldwin appears to say that these were related to the accepted shoulder injury), but neither found compensable cervical spine injury.

Dr. Moelleken did not evaluate the applicant's neck condition and did not adequately explain how applicant sustained an industrial neck injury.

Favours Defendant prevailed

His opinion was not considered substantial evidence for cervical spine injury or for ratable permanent disability for the lower back at the time of the stipulated Award.

From the decision · page 3Dr. Moelleken did not evaluate the applicant's neck condition and did not adequately explain how applicant sustained an industrial neck injury. In any case, a new medical opinion that merely disagrees with the conclusions of prior medical opinions based on the same existing evidence is not a basis for reopening for good cause. (Nicky Blair's Restaurant v. Workers' Comp. Appeals Bd. (Macias) 109 Cal.App.3d 941, 958 [45 Cal.Comp.Cases 876].)

Dr. Harway found lumbar spine permanent impairment of 13% WPI, adjusted to 20% permanent disability.

Favours neutral

Her findings were central to the remand for reanalysis of overall permanent disability calculation.

From the decision · page 3However, we grant reconsideration, rescind the decision, and return this matter to the trial level for reanalysis of the calculation of overall permanent disability. In the reopening proceedings, Dr. Harway found lumbar spine permanent impairment of 13% WPI (May 21, 2020 report at p. 4), which adjusted to 20% permanent disability. The WCJ found that, despite the fact that it appears that low back disability was not a basis for the stipulated Award, applicant had 7% whole person impairment at the time of the stipulated Award. Just a week prior to the stipulated Award, on September 11, 2017 applicant was evaluated by his new primary treating physician orthopedist Allan Moelleken, M.D., who found low back injury. However, in the verified Petition for Reconsideration, applicant writes that this report "was not received until 10-4-17, weeks after the Stipulation had been approved." (Petition for Reconsideration at p.

Did not find any cervical spine new and further disability; found lumbar spine permanent impairment of 13% WPI, adjusted to 20% permanent disability.

Her opinion was relied upon to deny reopening for cervical spine injury and to support lumbar spine impairment.

From the decision · page 2With regard to the cervical spine injury, while we reject the notion that the cervical spine was not subject to reopening because any cervical spine claim was dismissed without prejudice, applicant has not produced sufficient evidence of either good cause to reopen (Lab. Code, § 5803) or new and further disability (Lab. Code section 5410) with regard to the cervical spine. With regard to the issue of new and further disability, orthopedist Elana Harway, M.D., who was the panel qualified medical evaluator in the reopening proceedings, did not find any cervical spine new and further disability. With regard to good cause to reopen, both Dr. Proctor's and Dr. Baldwin's reporting prior to the stipulated Award noted neck complaints (although Dr. Baldwin appears to say that these were related to the accepted shoulder injury), but neither found compensable cervical spine injury.

Opined at deposition that the neck should have been accepted as industrial, but had not evaluated the neck; found low back injury in September 11, 2017 report, but did not find applicant permanent and stationary or ascribe permanent impairment to the lower back at that time.

His opinion was not considered substantial evidence for cervical spine injury or for ratable permanent disability for the lower back at the time of the stipulated Award.

From the decision · page 2Indeed, applicant admits in his Petition that "there was not medical evidence supporting a finding of industrial injury to the cervical spine arising out of the 11-20-14 injury specific injury at the time the Stipulations were made." (Petition for Reconsideration at p. 7.) The only evidence that applicant points to in his Petition is the 2021 deposition testimony of new primary treating physician orthopedist Allan Moelleken, M.D. who opined at deposition that the neck should have been accepted as industrial, but that he had not evaluated the neck. (June 14, 2021 deposition at p. 9-11.)

Prior to the stipulated Award, did not include any back impairment in permanent and stationary reports; noted neck complaints but did not find compensable cervical spine injury.

His reports were considered in determining the absence of substantial evidence for cervical spine injury and back impairment at the time of the stipulated Award.

From the decision · page 2With regard to the cervical spine injury, while we reject the notion that the cervical spine was not subject to reopening because any cervical spine claim was dismissed without prejudice, applicant has not produced sufficient evidence of either good cause to reopen (Lab. Code, § 5803) or new and further disability (Lab. Code section 5410) with regard to the cervical spine. With regard to the issue of new and further disability, orthopedist Elana Harway, M.D., who was the panel qualified medical evaluator in the reopening proceedings, did not find any cervical spine new and further disability. With regard to good cause to reopen, both Dr. Proctor's and Dr. Baldwin's reporting prior to the stipulated Award noted neck complaints (although Dr. Baldwin appears to say that these were related to the accepted shoulder injury), but neither found compensable cervical spine injury.

Prior to the stipulated Award, did not include any back impairment in permanent and stationary reports; noted neck complaints but did not find compensable cervical spine injury.

His reports were considered in determining the absence of substantial evidence for cervical spine injury and back impairment at the time of the stipulated Award.

From the decision · page 2With regard to the cervical spine injury, while we reject the notion that the cervical spine was not subject to reopening because any cervical spine claim was dismissed without prejudice, applicant has not produced sufficient evidence of either good cause to reopen (Lab. Code, § 5803) or new and further disability (Lab. Code section 5410) with regard to the cervical spine. With regard to the issue of new and further disability, orthopedist Elana Harway, M.D., who was the panel qualified medical evaluator in the reopening proceedings, did not find any cervical spine new and further disability. With regard to good cause to reopen, both Dr. Proctor's and Dr. Baldwin's reporting prior to the stipulated Award noted neck complaints (although Dr. Baldwin appears to say that these were related to the accepted shoulder injury), but neither found compensable cervical spine injury.

E.L. Yeager Construction v. Workers' Comp. Appeals Bd. (Gatten) (2006) 145 Cal.App.4th 922, 928 [71 Cal.Comp.Cases 1687]

A medical opinion must be predicated on reasonable medical probability and set forth the reasoning behind the physician's opinion, not merely conclusions.

Applied to determine that Dr. Moelleken's opinion was not substantial evidence for cervical spine injury.

From the decision · page 3As the Court of Appeal wrote in E.L. Yeager Construction v. Workers' Comp. Appeals Bd. (Gatten) (2006) 145 Cal.App.4th 922, 928 [71 Cal.Comp.Cases 1687], "In order to constitute substantial evidence, a medical opinion must be predicated on reasonable medical probability. [Citation.] Also, a medical opinion is not substantial evidence if it is based on facts no longer germane, on inadequate medical histories or examinations, on incorrect legal theories, or on surmise, speculation, conjecture, or guess. [Citation.] Further, a medical report is not substantial evidence unless it sets forth the reasoning behind the physician's opinion, not merely his or her conclusions. [Citation.]"

Nicky Blair's Restaurant v. Workers' Comp. Appeals Bd. (Macias) 109 Cal.App.3d 941, 958 [45 Cal.Comp.Cases 876]

A new medical opinion that merely disagrees with the conclusions of prior medical opinions based on the same existing evidence is not a basis for reopening for good cause.

Applied to reject reopening for cervical spine injury based on Dr. Moelleken's opinion.

From the decision · page 3Dr. Moelleken did not evaluate the applicant's neck condition and did not adequately explain how applicant sustained an industrial neck injury. In any case, a new medical opinion that merely disagrees with the conclusions of prior medical opinions based on the same existing evidence is not a basis for reopening for good cause. (Nicky Blair's Restaurant v. Workers' Comp. Appeals Bd. (Macias) 109 Cal.App.3d 941, 958 [45 Cal.Comp.Cases 876].)

Chavira v. Workers' Comp. Appeals Bd. (1991) 235 Cal.App.3d 463, 473 [56 Cal.Comp.Cases 631]

Permanent disability is not compensable until it is ratable, i.e., permanent and stationary, except in the case of insidious, progressive diseases.

Applied to determine that Dr. Moelleken's September 11, 2017 report did not support ratable permanent disability for the lower back at the time of the stipulated Award.

From the decision · page 34.) While the WCJ is correct that "new and further" disability must be "new," meaning having arisen after the issuance of an Award (Macias, supra, 109 Cal.App.3d at pp. 954-955), Dr. Moelleken's September 11, 2017 report did not find applicant permanent and stationary with regard to the lower spine, nor did Dr. Moelleken ascribe any permanent impairment to the lower back. Permanent disability is not compensable until it is ratable. Except in the case of insidious, progressive diseases, a disability is not ratable until it is permanent and stationary. (Chavira v. Workers' Comp. Appeals Bd. (1991) 235 Cal.App.3d 463, 473 [56 Cal.Comp.Cases 631].)

Benavides v. Workers' Comp. Appeals Bd. (2014) 227 Cal.App.4th 1496 [79 Cal.Comp.Cases 483]

Section 5803 accords the WCAB continuing jurisdiction to rescind or revise its awards upon good cause shown, including newly discovered evidence previously unavailable, a change in the law, or any factor or circumstance unknown at the time the original award or order was made which renders the previous findings and award inequitable.

Applied to remand for consideration of whether good cause exists to include entire low back disability in overall permanent disability calculation.

From the decision · page 4As the Benavides court explained, "Section 5803 accords the [WCAB] continuing jurisdiction to rescind or revise its awards, `upon good cause shown.' Such cause may consist of newly discovered evidence previously unavailable, a change in the law, or `any factor or circumstance unknown at the time the original award or order was made which renders the previous findings and award "inequitable."' [Citation.] More specifically, an award based upon a stipulation may be reopened or rescinded if the `stipulation has been "entered into through inadvertence, excusable neglect, fraud, mistake of fact or law... or where special circumstances exist rendering it unjust to enforce the stipulation...."' [Citation.]"

Applicant's own admission that there was not medical evidence supporting a finding of industrial injury to the cervical spine at the time the Stipulations were made.

From the decision · page 2Indeed, applicant admits in his Petition that "there was not medical evidence supporting a finding of industrial injury to the cervical spine arising out of the 11-20-14 injury specific injury at the time the Stipulations were made." (Petition for Reconsideration at p. 7.) The only evidence that applicant points to in his Petition is the 2021 deposition testimony of new primary treating physician orthopedist Allan Moelleken, M.D. who opined at deposition that the neck should have been accepted as industrial, but that he had not evaluated the neck. (June 14, 2021 deposition at p. 9-11.)

Dr. Moelleken did not evaluate the applicant's neck condition and did not adequately explain how applicant sustained an industrial neck injury.

From the decision · page 3Dr. Moelleken did not evaluate the applicant's neck condition and did not adequately explain how applicant sustained an industrial neck injury. In any case, a new medical opinion that merely disagrees with the conclusions of prior medical opinions based on the same existing evidence is not a basis for reopening for good cause. (Nicky Blair's Restaurant v. Workers' Comp. Appeals Bd. (Macias) 109 Cal.App.3d 941, 958 [45 Cal.Comp.Cases 876].)