ADJ10908652 · September 16, 2025

The WCAB found that the WCJ erred in denying compensability of psychiatric cumulative injury and permanent disability. The medical record showed industrial injury to psyche on a cumulative basis and the QME's intertwined disability opinion required further development. The matter was returned for further proceedings.

From the decision · page 1Applicant seeks reconsideration of the "Joint Findings and Award and Opinion on Decision" (F&A) issued on June 4, 2025, by the workers' compensation administrative law judge (WCJ). The WCJ found, in pertinent part, that applicant did not sustain industrial injury to her psyche during the cumulative period ending on May 25, 2017. The WCJ further found that applicant sustained industrial injury to the psyche in her specific injury case but barred any permanent disability from such injury pursuant to Labor Code1 section 4660.1.

The WCJ erred in denying compensability of psychiatric cumulative injury and permanent disability based on the medical record and QME opinions.

Favours Applicant prevailed

This error led to granting reconsideration and rescinding the original decision.

From the decision · page 1Applicant seeks reconsideration of the "Joint Findings and Award and Opinion on Decision" (F&A) issued on June 4, 2025, by the workers' compensation administrative law judge (WCJ). The WCJ found, in pertinent part, that applicant did not sustain industrial injury to her psyche during the cumulative period ending on May 25, 2017. The WCJ further found that applicant sustained industrial injury to the psyche in her specific injury case but barred any permanent disability from such injury pursuant to Labor Code1 section 4660.1.

The QME's opinion that the psychiatric disability is intertwined with physical injury was conclusory and insufficient as substantial evidence.

Favours Applicant prevailed

This required further development and prevented final decision on intertwined disability compensability.

From the decision · page 10It is not possible to determine on the present medical record whether applicant's impairment to the psyche was caused by applicant's physical injury, or as a direct injury via cumulative trauma. No substantial opinion explains the cause of disability. Dr. Maloff provided a conclusory opinion that the disability is intertwined, which does not constitute substantial medical evidence. Dr. Maloff must explain why it is not possible to parse out the causes of psychological disability.

Applicant underwent serious treatment including two back surgeries and physical therapy, impacting activities of daily living but not to a catastrophic degree.

Favours Applicant prevailed

This fact influenced the analysis of catastrophic injury exception and permanent disability evaluation.

From the decision · page 11In this case, Applicant underwent two back surgeries as well as several epidural steroid injections and physical therapy. The Court finds that this is intense and serious treatment, but there is no indication that it was life-threatening like the treatment in the Wilson case that supported a finding of catastrophic injury. The ultimate outcome, severity of the injury and impact on activities of daily living were also substantial, but not akin to paralysis or the loss of a limb. Applicant worked for years after leaving PIH. PQME reported that the Applicant was able to cook, drive, do house chores, and perform personal hygiene, albeit with some difficulty and limitations. [Defendant's Exhibit Fat p. 5] This is not the same situation as a person who is paralyzed and unable to do these things at all, and the Court therefore finds that the catastrophic injury exception has not been established.

Authored six reports describing lumbar spine injury and treatment, including MRI findings and surgeries.

From the decision · page 2Applicant was seen by orthopedic qualified medical evaluator (QME)

Diagnosed major depression and adjustment disorder with anxiety and depression; opined psychiatric injury was industrial and intertwined with physical injury; causation percentages given; opinion on intertwined disability was conclusory and required further explanation.

The QME's intertwined disability opinion was found conclusory and insufficient as substantial evidence, requiring further development.

From the decision · page 3Applicant was seen by psychiatric qualified medical evaluator (QME) Perry Maloff, M.D., who authored four reports in evidence. (Defendant's Exhibits G through J.) Dr. Maloff took a history of injury to the psyche following applicant's specific injury which included pain flowing from her specific injury. (Defendant's Exhibit G, Report of Perry Maloff, M.D., November 17, 2017, p. 3.) Applicant further reported that her employer assigned her to work full duty when applicant had modified work restrictions. (Id. at p. 4.) Applicant further reported that her supervisor was upset at the number of breaks applicant required and limited her breaks to two 15-minute breaks and lunch. (Ibid.) There was also an issue over whether applicant was permitted to close the door to her workstation. (Id. at pp. 4-5.) Applicant perceived that her supervisor had an attitude while talking with her. (Id. at p. 5.) Applicant further disputed with her supervisor whether she properly notified him of time off. (Ibid.)

Treated applicant for lumbar spine injury; prescribed pain medication.

From the decision · page 2She claims she was referred for two lumbar epidural injections which were not helpful. She was later referred to Dr. Alex Etemad. Prescribed pain medication and also ibuprofen. She has not returned to work since 06/16/17. She denies any additional injury or trauma to her lumbosacral spine. The lumbar spine has remained essentially unchanged over the past three months. She claims she was harassed by her supervisor and developed anxiety and depression. She was referred to Dr. Maloff for psychiatric treatment and has been prescribed Lorazepam and Lexapro.

Labor Code section 5909

Section 5909 requires the Appeals Board to act on a petition for reconsideration within 60 days of transmission of the case to the Appeals Board.

The Board found the petition timely as the case was transmitted and served on July 18, 2025, starting the 60-day period.

From the decision · page 5I. Former section 5909 provided that a petition for reconsideration was deemed denied unless the Appeals Board acted on the petition within 60 days from the date of filing. (Lab. Code, § 5909.) Effective July 2, 2024, section 5909 was amended to state in relevant part that:

Labor Code section 5313

Section 5313 requires the WCJ to state reasons or grounds for the determination based on admitted evidence and supported by substantial evidence.

The Board found the WCJ's opinion lacked proper reference to evidence and adequate explanation, requiring reconsideration.

From the decision · page 6II. Section 5313 requires a WCJ to state the "reasons or grounds upon which the determination was made." The WCJ's opinion on decision "enables the parties, and the Board if reconsideration is sought, to ascertain the basis for the decision, and makes the right of seeking reconsideration more meaningful." (Hamilton v. Lockheed Corporation (Hamilton) (2001) 66 Cal.Comp.Cases 473, 476 (Appeals Board en banc), citing Evans v. Workmen's Comp. Appeals Bd. (1968) 68 Cal.2d 753, 755 [33 Cal.Comp.Cases 350, 351].) A decision "must be based on admitted evidence in the record" (Hamilton, supra, at p. 478), and must be supported by substantial evidence (Lab. Code, § 5903, 5952(d); Lamb v. Workmen's Comp. Appeals Bd. (1974) 11 Cal.3d 274 [39 Cal.Comp.Cases 310]; Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312 [35 Cal.Comp.Cases 500]; LeVesque v. Workmen's Comp. Appeals Bd. (1970) 1 Cal.3d 627 [35 Cal.Comp.Cases 16]).

Rolda v. Pitney Bowes, Inc. (2001) 66 Cal.Comp.Cases 241

The Board applied Rolda to require proper causation analysis for psychiatric injury and disability.

From the decision · page 7In Rolda v. Pitney Bowes, Inc. (2001), 66 Cal.Comp.Cases 241, 245-246 (Appeals Board en banc), we addressed the factors that a psychological evaluator must consider in opining on causation of psychological injury and disability under section 3208.3. Per Rolda, the evaluator is required to list all factors causing psychological injury and address the percentage of causation that each factor contributes to psychological injury, and list all factors causing psychological permanent disability and address the percentage of causation that each factor contributes to permanent disability.

Labor Code section 3208.3

Section 3208.3(h) requires the WCJ to determine if employment events were lawful, non-discriminatory, and good faith personnel actions to assess compensability of psychological injury.

The Board applied this to evaluate compensability of psychiatric injury based on employment events.

From the decision · page 7In Rolda v. Pitney Bowes, Inc. (2001), 66 Cal.Comp.Cases 241, 245-246 (Appeals Board en banc), we addressed the factors that a psychological evaluator must consider in opining on causation of psychological injury and disability under section 3208.3. Per Rolda, the evaluator is required to list all factors causing psychological injury and address the percentage of causation that each factor contributes to psychological injury, and list all factors causing psychological permanent disability and address the percentage of causation that each factor contributes to permanent disability.

Labor Code section 4660.1

Section 4660.1(c) precludes increases in impairment ratings for psychiatric disorders arising out of compensable physical injury, except when directly caused by the industrial injury.

The Board clarified that psychiatric disability directly caused by industrial injury is compensable and requires proper apportionment.

From the decision · page 8(c) (1) Except as provided in paragraph (2), there shall be no increases in impairment ratings for sleep dysfunction, sexual dysfunction, or psychiatric disorder, or any combination thereof, arising out of a compensable physical injury. Nothing in this section shall limit the ability of an injured employee to obtain treatment for sleep dysfunction, sexual dysfunction, or psychiatric disorder, if any, that are a consequence of an industrial injury.

Benson v. Permanente Med. Group (2007) 72 Cal. Comp. Cases 1620 (Appeals Board en banc)

Benson en banc decision allows joint and several awards for intertwined permanent disability from multiple industrial injuries when they cannot be reasonably parceled out.

The Board noted the need for substantial evidence to support intertwined disability and that the current record was insufficient.

From the decision · page 10In our en banc opinion in Benson, we explained that limited situations may exist where a joint and several award of permanent disability may issue across multiple dates of injury. (Benson v. Permanente Med. Group, (2007), 72 Cal. Comp. Cases 1620, 1634 (Appeals Board en banc), (emphasis added); aff'd Benson v. Workers' Comp. Appeals Bd. (2009) 170 Cal.App.4th 1535.) Where some aspects of the industrially caused permanent disability form two or more separate industrial injuries that cannot reasonably be parceled out, then a combined joint and several award of permanent disability must issue even though other aspects of the industrially caused permanent disability from those injuries can be parceled out with reasonable medical probability. (See, e.g. Alea North American Insurance Co. v. Workers' Comp. Appeals Bd. (Herrera) (2018) 84 Cal. Comp. Cases 17 [2018 Cal. Wrk. Comp.

Applicant's medical treatment included two back surgeries, epidural steroid injections, and physical therapy, indicating serious treatment but not life-threatening.

From the decision · page 11In this case, Applicant underwent two back surgeries as well as several epidural steroid injections and physical therapy. The Court finds that this is intense and serious treatment, but there is no indication that it was life-threatening like the treatment in the Wilson case that supported a finding of catastrophic injury. The ultimate outcome, severity of the injury and impact on activities of daily living were also substantial, but not akin to paralysis or the loss of a limb. Applicant worked for years after leaving PIH. PQME reported that the Applicant was able to cook, drive, do house chores, and perform personal hygiene, albeit with some difficulty and limitations. [Defendant's Exhibit Fat p. 5] This is not the same situation as a person who is paralyzed and unable to do these things at all, and the Court therefore finds that the catastrophic injury exception has not been established.

Applicant was able to perform activities of daily living such as cooking, driving, house chores, and personal hygiene with some difficulty, indicating impact on ADLs but not catastrophic injury.

From the decision · page 11In this case, Applicant underwent two back surgeries as well as several epidural steroid injections and physical therapy. The Court finds that this is intense and serious treatment, but there is no indication that it was life-threatening like the treatment in the Wilson case that supported a finding of catastrophic injury. The ultimate outcome, severity of the injury and impact on activities of daily living were also substantial, but not akin to paralysis or the loss of a limb. Applicant worked for years after leaving PIH. PQME reported that the Applicant was able to cook, drive, do house chores, and perform personal hygiene, albeit with some difficulty and limitations. [Defendant's Exhibit Fat p. 5] This is not the same situation as a person who is paralyzed and unable to do these things at all, and the Court therefore finds that the catastrophic injury exception has not been established.