ADJ10305363 · June 24, 2024

Applicant established compensable cumulative trauma injury to psyche and spine based on unrebutted medical reports and credible testimony of job duties.

From the decision · page 6it was requested that the undersigned make a finding of whether applicant sustained cumulative trauma injury through 8/24/2015 to the aforementioned body parts. (11/02/2023 MOH/SOE, p. 2: 8-17; 01/11/2024 MOH/SOE, p. 2: 8-18) To establish his burden of proof on the issue of AOE/COE, applicant offered the unrebutted medical reports of Dr. Chen and Dr. O'Dowd, which the undersigned found to constitute substantial medical evidence of applicant's cumulative trauma injury. Applicant also offered credible testimony of the various lifting duties requiring him to lift up to 50 pounds during the 11 years he worked for Call Henry. In fact, at trial, defense counsel aptly cross-examined applicant, in great detail, about his job duties while at Call Henry and about each of the job duties that required lifting. (11/02/2023 MOH/SOE, pp. 6-8)

Medical reports of Dr. Chen and Dr. O'Dowd supported pre-existing labor disabling conditions, which defendant did not fully contest.

From the decision · page 9Pursuant to medical reports and opinions of Dr. Christopher Chen and Dr. James O'Dowd, applicant had the following supported pre-existing labor disabling conditions due to thalassemia, pulmonary, hypertension, erectile dysfunction, right inguinal hernia, osteoarthritis of fingers, and psyche:

Applicant met the 35% permanent disability threshold for SIBTF benefits based on substantial medical evidence from Dr. Chen and Dr. O'Dowd, despite defendant's challenges.

From the decision · page 4III. DISCUSSION APPLICANT MEETS THE 35% THRESHOLD OF LC SECTION 4751 Pursuant to section 4751, the permanent disability resulting from the subsequent industrial injury, when considered alone and without regard to or adjustment for the occupation or age of the employee, must be 35% or more. As previously indicated, at the time of Dr. Dixit's 12/12/2015 evaluation, applicant was not permanent and stationary. Notwithstanding this, applicant settled his claim by way of Compromise and Release prior to obtaining a P&S report. In order to establish his eligibility for SIBTF benefits, applicant offered the unrebutted medical reports and opinions of Dr. Chen and Dr. O'Dowd, which the undersigned found to constitute substantial medical evidence of applicant's subsequent industrial injury. Defendant argues Dr. O'Dowd's reporting does not constitute substantial medical evidence because he failed to explain why he deemed applicant to have reached maximal medical improvement despite applicant's lack of psychiatric treatment and counseling, despite a lack of medication, and despite his worsening condition to the point of experiencing suicidal ideation. In her 01/05/2016 report, Dr. Dixit opined applicant's psychiatric injury was not yet permanent and stationary and recommended psychological treatment.

Applicant's psychiatric condition deteriorated after initial evaluation and was supported by unrebutted medical evidence from Dr. O'Dowd and Dr. Chen.

Favours Applicant prevailed

Supported finding that applicant met the 35% permanent disability threshold for SIBTF benefits.

From the decision · page 4III. DISCUSSION APPLICANT MEETS THE 35% THRESHOLD OF LC SECTION 4751 Pursuant to section 4751, the permanent disability resulting from the subsequent industrial injury, when considered alone and without regard to or adjustment for the occupation or age of the employee, must be 35% or more. As previously indicated, at the time of Dr. Dixit's 12/12/2015 evaluation, applicant was not permanent and stationary. Notwithstanding this, applicant settled his claim by way of Compromise and Release prior to obtaining a P&S report. In order to establish his eligibility for SIBTF benefits, applicant offered the unrebutted medical reports and opinions of Dr. Chen and Dr. O'Dowd, which the undersigned found to constitute substantial medical evidence of applicant's subsequent industrial injury. Defendant argues Dr. O'Dowd's reporting does not constitute substantial medical evidence because he failed to explain why he deemed applicant to have reached maximal medical improvement despite applicant's lack of psychiatric treatment and counseling, despite a lack of medication, and despite his worsening condition to the point of experiencing suicidal ideation. In her 01/05/2016 report, Dr. Dixit opined applicant's psychiatric injury was not yet permanent and stationary and recommended psychological treatment.

Applicant credibly testified about his job duties involving lifting up to 50 pounds over 11 years.

Favours Applicant prevailed

Supported finding of compensable cumulative trauma injury to psyche and spine.

From the decision · page 6it was requested that the undersigned make a finding of whether applicant sustained cumulative trauma injury through 8/24/2015 to the aforementioned body parts. (11/02/2023 MOH/SOE, p. 2: 8-17; 01/11/2024 MOH/SOE, p. 2: 8-18) To establish his burden of proof on the issue of AOE/COE, applicant offered the unrebutted medical reports of Dr. Chen and Dr. O'Dowd, which the undersigned found to constitute substantial medical evidence of applicant's cumulative trauma injury. Applicant also offered credible testimony of the various lifting duties requiring him to lift up to 50 pounds during the 11 years he worked for Call Henry. In fact, at trial, defense counsel aptly cross-examined applicant, in great detail, about his job duties while at Call Henry and about each of the job duties that required lifting. (11/02/2023 MOH/SOE, pp. 6-8)

Medical reports of Dr. Chen and Dr. O'Dowd documented pre-existing labor disabling conditions including thalassemia, pulmonary, hypertension, erectile dysfunction, right inguinal hernia, osteoarthritis of fingers, and psyche.

Favours Applicant prevailed

Supported finding of pre-existing conditions being labor disabling and supported by substantial medical evidence.

From the decision · page 9Pursuant to medical reports and opinions of Dr. Christopher Chen and Dr. James O'Dowd, applicant had the following supported pre-existing labor disabling conditions due to thalassemia, pulmonary, hypertension, erectile dysfunction, right inguinal hernia, osteoarthritis of fingers, and psyche:

Diagnosed depressive and anxiety disorders; opined psychiatric injury not yet permanent and stationary; recommended psychological treatment; assessed 15% WPI at evaluation.

Dr. Dixit's 2015 evaluation found applicant not permanent and stationary but assessed 15% WPI; recommended treatment that was not undertaken.

Found cumulative trauma injury to cervical, thoracic, lumbar spine and psyche; assigned WPI ratings for each; supported pre-existing labor disabling conditions.

Dr. Chen's unrebutted medical reports supported cumulative trauma injury and pre-existing conditions.

From the decision · page 6it was requested that the undersigned make a finding of whether applicant sustained cumulative trauma injury through 8/24/2015 to the aforementioned body parts. (11/02/2023 MOH/SOE, p. 2: 8-17; 01/11/2024 MOH/SOE, p. 2: 8-18) To establish his burden of proof on the issue of AOE/COE, applicant offered the unrebutted medical reports of Dr. Chen and Dr. O'Dowd, which the undersigned found to constitute substantial medical evidence of applicant's cumulative trauma injury. Applicant also offered credible testimony of the various lifting duties requiring him to lift up to 50 pounds during the 11 years he worked for Call Henry. In fact, at trial, defense counsel aptly cross-examined applicant, in great detail, about his job duties while at Call Henry and about each of the job duties that required lifting. (11/02/2023 MOH/SOE, pp. 6-8)

Found applicant's psychiatric condition deteriorated; assigned 30% WPI with 5% pre-existing; supported cumulative trauma injury and pre-existing conditions; found applicant credible.

Dr. O'Dowd's report found applicant's psychiatric condition worsened and supported permanent disability rating above threshold.

From the decision · page 4III. DISCUSSION APPLICANT MEETS THE 35% THRESHOLD OF LC SECTION 4751 Pursuant to section 4751, the permanent disability resulting from the subsequent industrial injury, when considered alone and without regard to or adjustment for the occupation or age of the employee, must be 35% or more. As previously indicated, at the time of Dr. Dixit's 12/12/2015 evaluation, applicant was not permanent and stationary. Notwithstanding this, applicant settled his claim by way of Compromise and Release prior to obtaining a P&S report. In order to establish his eligibility for SIBTF benefits, applicant offered the unrebutted medical reports and opinions of Dr. Chen and Dr. O'Dowd, which the undersigned found to constitute substantial medical evidence of applicant's subsequent industrial injury. Defendant argues Dr. O'Dowd's reporting does not constitute substantial medical evidence because he failed to explain why he deemed applicant to have reached maximal medical improvement despite applicant's lack of psychiatric treatment and counseling, despite a lack of medication, and despite his worsening condition to the point of experiencing suicidal ideation. In her 01/05/2016 report, Dr. Dixit opined applicant's psychiatric injury was not yet permanent and stationary and recommended psychological treatment.

California Labor Code

Labor Code section 4751

Applicant must meet 35% permanent disability threshold for SIBTF benefits.

From the decision · page 4III. DISCUSSION APPLICANT MEETS THE 35% THRESHOLD OF LC SECTION 4751 Pursuant to section 4751, the permanent disability resulting from the subsequent industrial injury, when considered alone and without regard to or adjustment for the occupation or age of the employee, must be 35% or more. As previously indicated, at the time of Dr. Dixit's 12/12/2015 evaluation, applicant was not permanent and stationary. Notwithstanding this, applicant settled his claim by way of Compromise and Release prior to obtaining a P&S report. In order to establish his eligibility for SIBTF benefits, applicant offered the unrebutted medical reports and opinions of Dr. Chen and Dr. O'Dowd, which the undersigned found to constitute substantial medical evidence of applicant's subsequent industrial injury. Defendant argues Dr. O'Dowd's reporting does not constitute substantial medical evidence because he failed to explain why he deemed applicant to have reached maximal medical improvement despite applicant's lack of psychiatric treatment and counseling, despite a lack of medication, and despite his worsening condition to the point of experiencing suicidal ideation. In her 01/05/2016 report, Dr. Dixit opined applicant's psychiatric injury was not yet permanent and stationary and recommended psychological treatment.

Applicant's credible testimony about job duties and lifting requirements over 11 years.

From the decision · page 6it was requested that the undersigned make a finding of whether applicant sustained cumulative trauma injury through 8/24/2015 to the aforementioned body parts. (11/02/2023 MOH/SOE, p. 2: 8-17; 01/11/2024 MOH/SOE, p. 2: 8-18) To establish his burden of proof on the issue of AOE/COE, applicant offered the unrebutted medical reports of Dr. Chen and Dr. O'Dowd, which the undersigned found to constitute substantial medical evidence of applicant's cumulative trauma injury. Applicant also offered credible testimony of the various lifting duties requiring him to lift up to 50 pounds during the 11 years he worked for Call Henry. In fact, at trial, defense counsel aptly cross-examined applicant, in great detail, about his job duties while at Call Henry and about each of the job duties that required lifting. (11/02/2023 MOH/SOE, pp. 6-8)

Psychological testing indicating suicidal ideation despite applicant's denial of suicidal thoughts.

From the decision · page 5paranoia and long-standing characterological trains that pre-dated the industrial injury. Dr. O'Dowd opined that, based on applicant's moderate symptoms of depression, thought disorganization and suicidal ideation, applicant qualified for a GAF of 50, equivalent to 30% WPI, and assigned 5% WPI due to applicant's silent and underlying psychiatric disability that was labor disabling prior to the subsequent injury. With regard to Dr. Dixit's GAF rating, he indicated that had captured applicant's psychological disability at the time of the 12/12/2015 evaluation, however, his condition continued to deteriorate between the 2015 evaluation and his, 2018 evaluation. (Exhibit 5)