What the panel ordered
Petition for reconsideration granted; WCJ decision rescinded; case remanded for further proceedings and decision.
Petition for reconsideration of WCJ Findings of Fact and Orders of August 22, 2024 granted; WCJ decision rescinded and case remanded for further proceedings.
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.
The WCJ found no industrial cumulative injury due to lack of evidence of orthopedic cumulative injury, but the WCAB found the record incomplete and remanded for further development to determine if orthopedic injury caused the gastrointestinal issues.
From the decision · page 1Applicant seeks reconsideration of a workers' compensation administrative law judge's (WCJ) Findings of Fact and Orders of August 22, 2024 in case ADJ16748561, wherein it was found applicant did not sustain industrial cumulative injury during a cumulative period ending October 2008 to his back, neck, shoulders, elbows, wrists, hands, fingers, hips, knees, heart, gastrointestinal system, head, or in the forms of varicose veins or sexual dysfunction. The WCJ thus issued an order that applicant take nothing by way of his workers' compensation claim.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
No evidence of orthopedic cumulative trauma injury in the record
Favours Defendant prevailed
The WCJ found no industrial cumulative injury due to lack of orthopedic injury evidence; the WCAB remanded for further development to determine causation.
From the decision · page 3Since any gastrointestinal cumulative trauma injury would be derivative of an orthopedic cumulative trauma injury, and no evidence of an orthopedic cumulative trauma injury was introduced into evidentiary record, the WCJ correctly determined on the current record that applicant has not carried his burden of proving industrial cumulative injury. However, we believe that the record must be developed so that an agreed medical evaluator or qualified medical evaluator may determine whether applicant sustained orthopedic cumulative injury which at least partially caused the need for nonsteroidal anti-inflammatory medications. While Dr. Berman's reports were properly admitted into evidence, applicant is entitled to an evaluation of his current claim by a new reporting physician (see generally Navarro v. City of Montebello (2014) 79 Cal.Comp.Cases 418 [Appeals Bd. en banc]). We note that Dr. Berman was never selected as
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.
Found applicant permanent and stationary in 2012, apportioned 90% impairment to 2008 injury and 10% to 1995 injury, required further medical treatment.
From the decision · page 3August 21, 1995 (ADJ5506215) and October 8, 2008 (ADJ7449546) and orthopedist Jeffrey A. Berman, M.D. was selected as agreed medical evaluator with regard to those injuries. Dr. Berman found applicant to be permanent and stationary in a November 8, 2012 report, found applicant to require further medical treatment, and apportioned 90 percent of applicant's permanent impairment to his 2008 injury and 10 percent to the 1995 injury. On October 28, 2014, stipulated awards were issued finding 38% permanent disability in case ADJ7449546 and 4% permanent disability in case ADJ5506215 and finding of a need for medical treatment to the low back.
Found gastrointestinal injury compensable as derivative of orthopedic injury caused by nonsteroidal anti-inflammatory medications; no independent gastrointestinal injury.
Gastrointestinal issues are compensable to orthopedic issues; no independent injury other than that.
From the decision · page 3In the instant proceedings, the only expert medical opinion procured was the April 7, 2023 medical report and the September 19, 2023 deposition testimony of qualified medical evaluator internist James H. Sherman, MD. Dr. Sherman found that applicant had sustained injury as a consequence of taking nonsteroidal anti-inflammatory medications to relieve his back symptoms. (April 7, 2023 report at pp. 9-10, 12-13; September 19, 2023 deposition at p. 8, 27.) Dr. Sherman testified that applicant's gastrointestinal issues "are compensable to his orthopedic issues. There's no independent [injury] other than that." (September 19, 2023 deposition at p. 26.)
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Labor Code section 5909
Labor Code section 5909 regarding timely action on petitions for reconsideration
The Appeals Board must act on a petition for reconsideration within 60 days of transmission of the case to the Appeals Board.
From the decision · page 1Preliminarily, we note that former Labor Code 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, Labor Code section 5909 was amended to state in relevant part that:
Tyler v. Workers' Comp. Appeals Bd. (1997) 56 Cal.App.4th 389; McClune v. Workers' Comp. Appeals Bd. (1998) 62 Cal.App.4th 1117; Kuykendall v. Workers' Comp. Appeals Bd. (2000) 79 Cal.App.4th 396
Duty of the WCAB to further develop the record when there is insufficient medical evidence on an issue
The WCAB has a constitutional mandate to ensure substantial justice and must develop the record when medical evidence is absent or insufficient.
From the decision · page 4The WCAB has a duty to further develop the record when there is a complete absence of (Tyler v. Workers' Comp. Appeals Bd. (1997) 56 Cal.App.4th 389, 393-395 [62 Cal.Comp.Cases 924]) or even insufficient (McClune v. Workers' Comp. Appeals Bd. (1998) 62 Cal.App.4th 1117, 1121-1122 [63 Cal.Comp.Cases 261]) medical evidence on an issue. The WCAB has a constitutional mandate to ensure "substantial justice in all cases." (Kuykendall v. Workers' Comp. Appeals Bd. (2000) 79 Cal.App.4th 396, 403 [65 Cal.Comp.Cases 264].) In accordance with that mandate, we will grant reconsideration, rescind the WCJ's decision, and return this matter to the trial level for further proceedings and decision on the issue of industrial causation and all other outstanding issues. We take no position on the ultimate resolution of any outstanding issue in this matter.
What proof carried it
The evidence the panel weighed, by kind.
No evidence of orthopedic cumulative trauma injury in record
From the decision · page 3Since any gastrointestinal cumulative trauma injury would be derivative of an orthopedic cumulative trauma injury, and no evidence of an orthopedic cumulative trauma injury was introduced into evidentiary record, the WCJ correctly determined on the current record that applicant has not carried his burden of proving industrial cumulative injury. However, we believe that the record must be developed so that an agreed medical evaluator or qualified medical evaluator may determine whether applicant sustained orthopedic cumulative injury which at least partially caused the need for nonsteroidal anti-inflammatory medications. While Dr. Berman's reports were properly admitted into evidence, applicant is entitled to an evaluation of his current claim by a new reporting physician (see generally Navarro v. City of Montebello (2014) 79 Cal.Comp.Cases 418 [Appeals Bd. en banc]). We note that Dr. Berman was never selected as
The same issues, filtered across the whole corpus — or paste your own facts and let the search rank by factor match.
About this page
- A published decision of the California Workers' Compensation Appeals Board, taken apart by what it turned on. The Board publishes the decision itself; this page adds the extraction and quotes the passage behind every claim.
- The injured worker is not named here, and the case caption is not printed. Physicians appear as the decision names them, because a medical opinion is an act in a public proceeding.
- Issues, outcomes and weights were extracted by AI and released only where the source passage checked. Read the official decision before relying on anything here. Not legal advice.
- If you are named in this decision and want this page removed, write to privacy@similarcase.com.