ADJ11244503 · April 8, 2024

The WCJ found Dr. Bernicker's medical opinion to be substantial evidence and gave it great weight over Dr. Inman's conflicting opinion, resulting in a 35% permanent disability rating for the applicant.

From the decision · page 4However, if the Board finds the Petition cites grounds upon which the decision can be appealed, including the incorporation of Labor Code Section 5952(c), this WCJ maintains that the Petition for Reconsideration should be denied as petitioner has failed to establish that the Findings and Award was not justified or it was unreasonable. Furthermore, this WCJ finds that the reporting of Dr. Jeffrey Bernicker rose to the level of substantial medical evidence such that any determination based on these reports are valid findings.

Dr. Bernicker found cervical muscle spasm and assigned 5% whole person impairment for the neck, which Dr. Inman agreed would be appropriate if present.

Favours Applicant prevailed

This agreement supported the WCJ's finding that the 5% impairment rating for the neck was appropriate.

From the decision · page 8Turning my attention initially to the cervical spine, Dr. Inman indicated on page 4 of his report, that he did not appreciate any muscle spasm at the time of his evaluation, thereby supporting his decision to assign 0% Whole Person Impairment. He indicated, however, that, "If indeed [the patient] demonstrated cervical muscle spasm at the time of (Dr. Bernicker's) evaluation, then it would be appropriate to place her in Category II and apply a 5% whole person impairment". I was indeed able to appreciate spasm at the time of my examination of the patient on 12/06/22. As such, I reiterate the 5% Whole Person Impairment rating that I had initially assigned which Dr. Inman indicated he would support. Now that I have addressed Dr. lnman's concerns, it would appear that he and I are in complete agreement with respect to the Whole Person Impairment arising out of the cervical aspect of the claim.

Dr. Bernicker provided detailed reasoning supporting a higher permanent disability rating for the shoulders based on loss of range of motion and strength deficit, while Dr. Inman questioned the validity of strength deficit rating and did not address pain add-on.

Favours Applicant prevailed

The WCJ found Dr. Bernicker's report to be substantial medical evidence and gave it great weight, rejecting Dr. Inman's lower rating.

From the decision · page 5It is well established that any decision by the appeals board or a WCJ "must be supported by substantial evidence in the light of the entire record."1 It has been well established under California Workers' Compensation law that an award for benefits must be supported by substantial evidence.2 The Appeals Board may not blindly accept a medical opinion that lacks a solid underlying basis and must carefully judge its weight and credibility.3 In order to constitute substantial evidence, a medical opinion must be predicated on reasonable medical probability.4 Medical reports are not substantial evidence if they are known to be erroneous, or if they are based on facts no longer germane, on inadequate medical histories or examinations or on incorrect legal theories.5 A medical report is not substantial evidence unless it offers the reasoning behind the physician's opinion, not merely his or her conclusions.6 In addition to the reasoning already given in the Opinion on Decision for the reliance on Dr.

Found 35% permanent disability based on loss of range of motion and strength deficit in bilateral shoulders and 5% whole person impairment for cervical spine muscle spasm; gave detailed reasoning supporting impairment ratings and disagreed with Dr. Inman's lower rating.

His report was found to be substantial medical evidence and given great weight by the WCJ, supporting the applicant's permanent disability rating.

From the decision · page 3applicant, while employed on February 27, 2014, as a Senior Operator, Occupational Group Number 221, by Abbott Cardiovascular Systems, Inc., sustained injury arising out of and in the course of employment to her neck, bilateral shoulders, back and psyche. At the time of the injury, the employer's workers' compensation carrier was Travelers Property Casualty Company of America. Applicant's primary treating physician is Dr. Jeffrey Bernicker. Applicant also presented to Dr. Wayne Inman in the capacity of the Panel QME. Parties proceeded to trial on December 13, 2023, with the undersigned issuing a Findings and Award on January 26, 2024. Defendant filed a timely, verified Petition for Reconsideration on February 6, 2024.

Provided a lower permanent disability rating than Dr. Bernicker, questioned the use of strength deficit in impairment rating, and deferred to the trier of fact to decide on manual muscle testing accuracy; did not find muscle spasm in cervical spine at evaluation times.

His report was found not to be substantial medical evidence by the WCJ due to incomplete assessment and failure to address pain add-on; his lower rating was rejected in favor of Dr. Bernicker's.

From the decision · page 5It is well established that any decision by the appeals board or a WCJ "must be supported by substantial evidence in the light of the entire record."1 It has been well established under California Workers' Compensation law that an award for benefits must be supported by substantial evidence.2 The Appeals Board may not blindly accept a medical opinion that lacks a solid underlying basis and must carefully judge its weight and credibility.3 In order to constitute substantial evidence, a medical opinion must be predicated on reasonable medical probability.4 Medical reports are not substantial evidence if they are known to be erroneous, or if they are based on facts no longer germane, on inadequate medical histories or examinations or on incorrect legal theories.5 A medical report is not substantial evidence unless it offers the reasoning behind the physician's opinion, not merely his or her conclusions.6 In addition to the reasoning already given in the Opinion on Decision for the reliance on Dr.

California Labor Code

Labor Code Section 5903 - Grounds for Petition for Reconsideration

Petition for Reconsideration must be based on statutory grounds; petitioner failed to state such grounds.

From the decision · page 3First, it should be noted that the Petitioner has failed to state any of the statutory basis on which Reconsideration should be granted. Labor Code Section 5903 states,

Substantial medical evidence standard in California Workers' Compensation law

Medical opinions must be supported by reasonable medical probability and sound reasoning; the WCJ gave great weight to Dr. Bernicker's report as substantial evidence.

From the decision · page 5It is well established that any decision by the appeals board or a WCJ "must be supported by substantial evidence in the light of the entire record."1 It has been well established under California Workers' Compensation law that an award for benefits must be supported by substantial evidence.2 The Appeals Board may not blindly accept a medical opinion that lacks a solid underlying basis and must carefully judge its weight and credibility.3 In order to constitute substantial evidence, a medical opinion must be predicated on reasonable medical probability.4 Medical reports are not substantial evidence if they are known to be erroneous, or if they are based on facts no longer germane, on inadequate medical histories or examinations or on incorrect legal theories.5 A medical report is not substantial evidence unless it offers the reasoning behind the physician's opinion, not merely his or her conclusions.6 In addition to the reasoning already given in the Opinion on Decision for the reliance on Dr.

Applicant's credible and consistent medical reporting by Dr. Bernicker, including noted cervical muscle spasm and detailed impairment assessment.

From the decision · page 9Based on the reporting of both Dr. Bernicker and Dr. Inman, it can be concluded that due to the presence of cervical muscle spasm found in the evaluation with Dr. Bernicker, applicant's proper WPI for her neck is the 5%. Dr. Inman concurred with this conclusion when he noted that if during Dr. Bernicker's evaluation applicant had the presence of specific muscle spasm in her cervical spine, then the 5% would be appropriate. There is nothing in the records to indicate that applicant in any way was not forthcoming, truthful, or not credible. Furthermore, Dr. Bernicker did clearly note the presence of such spasm. With these findings, and the agreement between the doctors, this WCJ does find that the 5% WPI assigned for applicant's neck is appropriate.