ADJ14330494 — California WCAB decision

ADJ14330494 · June 11, 2024

The Appeals Board granted reconsideration, affirmed the WCJ's findings except to defer the issue of psychiatric injury and entitlement to psychiatric medical treatment, and returned the matter to the trial level for further development of the record.

Issues decided

Medical opinions weighed

Authorities named

District office

Oakland

What the panel ordered

Applicant seeks reconsideration of the Findings & Orders issued by the WCJ on December 19, 2023, which determined compensable injuries and denied compensability of head and psychiatric injuries; the Appeals Board granted reconsideration and amended the decision to defer psychiatric injury and treatment issues.

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What was disputed, and how it came out

Each issue the panel decided, with the reasoning it gave. An outcome is what this panel did on this record — not a rule, and not a prediction.

AOE/COEMixedhead · eyes · vision

The Appeals Board affirmed the WCJ's finding that applicant did not strike her head and found the record needed further development on the issue of industrial causation for eye and vision injury.

From the decision · page 8Accordingly, we decline to disturb the WCJ's factual determination that applicant did not strike her head on the date of injury (Finding of Fact No. 3), and that further development of the record is necessary to determine if applicant nonetheless sustained the diagnosed traumatic convergence insufficiency as a result of her industrial injuries. (Finding of Fact No. 4.)

The facts that decided it

What the panel treated as outcome-determinative, and which side it favoured.

Applicant did not strike her head on the date of injury as found by the WCJ and affirmed by the Appeals Board.

Favours Defendant prevailed

This fact led to deferral of the issue of industrial causation for head and vision injury and further development ordered.

From the decision · page 8Accordingly, we decline to disturb the WCJ's factual determination that applicant did not strike her head on the date of injury (Finding of Fact No. 3), and that further development of the record is necessary to determine if applicant nonetheless sustained the diagnosed traumatic convergence insufficiency as a result of her industrial injuries. (Finding of Fact No. 4.)

Applicant's trial testimony was found not credible by the WCJ, affecting the finding on head injury.

Favours Defendant prevailed

Credibility assessment influenced the rejection of applicant's claim of striking her head.

From the decision · page 2On December 19, 2023, the WCJ issued the F&O, finding in relevant part that applicant's trial testimony was not credible, and that applicant did not hit or strike her head on the date of injury. (Finding of Fact No. 3.) The WCJ further determined that to the extent the reporting of QME Dr. Edington relied on applicant's account of her injury, the reporting was not substantial medical evidence, and that evidence responsive to the issue of causation of injury to the eyes and "traumatic convergence insufficiency" required further development. (Finding of Fact No. 4.) The WCJ further determined that applicant was employed by defendant for less than the six months required under section 3208.3(d), and that applicant had "failed to prove she is entitled to medical

The record lacks substantial evidence on the need for psychiatric medical treatment except for a single consultative report by Dr. Green.

Favours neutral

This lack of evidence led to deferral of the psychiatric treatment issue for further development.

From the decision · page 10The WCJ correctly observes that the report is a consultative treatment report, rather than a comprehensive medical-legal report, and that Dr. Green does not appear to have been provided with the applicant's complete medical history or treatment records. Accordingly, the WCJ concludes that the reporting of Dr. Green is not substantial evidence. However, to the extent that the reporting of Dr. Green is not currently substantial evidence on the issue of the need for medical treatment, the record discloses no other substantial evidence addressing the need for psychiatric medical treatment to cure or relieve from the effects of applicant's admitted industrial injuries.

What the panel did with the medical opinions

The role the physician served, and the weight the opinion carried. Physicians are named here as the decision names them; we do not score them.

QMERelied upon · ophthalmology

Provided medical-legal reporting on injury to eyes and vision including convergence disorder; indicated causation opinion might change if history was incorrect but whiplash alone might be causal.

The WCJ and Appeals Board considered Dr. Edington's reports in assessing injury to eyes and vision and the need for further development.

From the decision · page 7concussion like symptoms. He indicated that if the history was not correct, his opinion on industrial causation might well change, although he also said that a whiplash effect alone, without a blow to the head, might be sufficiently causal, even if she did not hit her head. (Applicant's 5, at p. 28, lines 22-25 and p. 29, lines 1-8., and he also expressed the same opinion in his second report dated January 13, 2022 at p. 3, Applicant's 2.) That last opinion is why I felt it necessary to order development of the record, specifically in the form of either supplemental reporting and/or a new deposition of the QME to provide an explicit and final opinion if he still believed the convergence disorder was industrial if she did not strike her head.

secondary_treaterPartially credited

Reported applicant suffers from chronic pain with psychiatric sequelae and requires combined biofeedback and cognitive therapy; report not substantial evidence due to incomplete medical history.

The WCJ found Dr. Green's report not substantial evidence but the Appeals Board recognized the need for further development on psychiatric treatment.

From the decision · page 9Here, applicant relies on the reporting of David L. Green, Ph.D., acting in the capacity of a consulting treating physician, who has authored a single report in evidence. Therein, Dr. Green describes applicant as suffering from chronic pain with psychiatric sequelae, and opines that applicant requires a "trial of combined biofeedback and cognitive therapy," to address her chronic

The rules the panel named

Authorities as the decision cited them, with how this panel applied each one.

Labor Code section 5909; Shipley v. Workers' Comp. Appeals Bd. (1992) 7 Cal.App.4th 1104

Petition for reconsideration must be acted upon within 60 days unless tolling applies due to irregularities outside petitioner's control.

The Appeals Board granted reconsideration despite delay due to lack of notice by district office, preserving due process rights.

From the decision · page 3Section 5909 provides that a petition for reconsideration is deemed denied unless the Appeals Board acts on the petition within 60 days of filing. (Lab. Code, § 5909.) However, "it is a fundamental principle of due process that a party may not be deprived of a substantial right without notice...." (Shipley v. Workers' Comp. Appeals Bd. (1992) 7 Cal.App.4th 1104, 1108 [57 Cal.Comp.Cases 493] (Shipley); Rea v. Workers' Comp. Appeals Bd. (2005) 127 Cal.App.4th 625, 635 fn. 22 [70 Cal.Comp.Cases 312] ["irregularity which deprives reconsideration under the statutory scheme denies due process"].) In Shipley, applicant sought a writ of review of a decision of the Appeals Board denying his petition for reconsideration by operation of law (Lab. Code, § 5909). The Court there granted a writ of review, stating that while the "language [of section 5909] appears mandatory and jurisdictional, the time periods must be based on a presumption that a claimant's file will be available to the board; any other result deprives a claimant of due process

Bolton case precedent

Psychiatric treatment may be required to cure or relieve effects of industrial injury even if psychiatric injury claim is non-compensable.

The Appeals Board deferred the issue of psychiatric injury and treatment, recognizing the need for further development.

From the decision · page 9We therefore agree with the applicant's position that she need not have suffered a compensable psychiatric injury to obtain psychiatric treatment, so long as the nonindustrial condition "must be treated in order to cure or relieve the effects of the industrial injury." (Bolton, supra, at p. 165.)

Clark v. Workers' Comp. Appeals Bd. (2001) 66 Cal.Comp.Cases 269; Puc-Perez v. Workers' Comp. Appeals Bd. (1999) 64 Cal.Comp.Cases 595

Presumption of compensability under Labor Code section 5402 applies only when defendant fails to deny industrial injury entirely within the relevant time period.

The Appeals Board found the presumption of compensability did not apply to the amended claim for concussion as the original injury was accepted.

From the decision · page 11In Clark v. Workers' Comp. Appeals Bd. (2001) 66 Cal.Comp.Cases 269, 270 [2001 Cal. Wrk. Comp. LEXIS 4865] (writ denied), we concluded that "[s]ection 5402 applies to claims of injury, not to parts of the body claimed to be injured as a result of an industrial injury." We explained that "[j]ust as a claim which is amended after the passing of the statute of limitations to include injury to a new part of the body relates back to the date of the original filing, so does an amendment adding a new part of the body to the claim form relate back for purposes of Section 5402." (Id. at 270-271 (citation omitted).) Therefore, we "concluded that Applicant's amended claim form to allege new parts of the body did not trigger a new period for rejecting a claim of injury." (Id. at 270.)

ADJ14330494 · June 11, 2024

What the panel ordered

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The facts that decided it

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