ADJ7850534 · September 30, 2024

The WCJ found Dr. Angerman deferred permanent total disability findings to the trier of fact and vocational experts, and further record development was ordered; thus, no error in failing to award 100% PD based on Dr. Angerman's reports.

From the decision · page 131. DID THE UNDERSIGNED COMMIT ERR IN FAILING TO AWARD 100% PERMANENT DISABILITY BASED ON THE ORTHPEDIC AME REPORTS OF DR. ANGERMAN?

Dr. Friedman's reports were found not substantial evidence for impairment and apportionment; he failed to provide competent explanation for adding impairments and relied on non-substantial vocational reports; thus, no error in failing to award 100% PD based on his reports.

From the decision · page 152. DID THE UNDERSIGNED COMMIT ERR IN FAILING TO A WARD 100% PERMANENT DISABILITY BASED ON THE PSYCHIATRIC AME REPORTS OF DR. DAVID FRIEDMAN?

The WCJ found no injury arising out of and in the course of employment to these body parts and conditions based on the evidence.

From the decision · page 1applicant seeks reconsideration of the July 8, 2024 Partial Findings of Fact, Award and Orders, wherein the workers' compensation administrative law judge (WCJ) found that applicant sustained injury arising out of and in the course of employment to his lumbar spine and psyche and did not sustain injury to his bilateral lower extremities, ankles (right ankle solely due to cumulative trauma claim), left wrist, right shoulder, or right upper extremity (all right elbow and wrist due to cumulative trauma injury), in the form of sleep and sexual dysfunction, kidney, stomach, brain/hematoma, head, headaches, and liver, arising out of and in the course of employment. The WCJ deferred the issue of injury to applicant's left shoulder pending further development of the record.

The WCJ deferred the issue of injury to the left shoulder pending further development of the record.

From the decision · page 1applicant seeks reconsideration of the July 8, 2024 Partial Findings of Fact, Award and Orders, wherein the workers' compensation administrative law judge (WCJ) found that applicant sustained injury arising out of and in the course of employment to his lumbar spine and psyche and did not sustain injury to his bilateral lower extremities, ankles (right ankle solely due to cumulative trauma claim), left wrist, right shoulder, or right upper extremity (all right elbow and wrist due to cumulative trauma injury), in the form of sleep and sexual dysfunction, kidney, stomach, brain/hematoma, head, headaches, and liver, arising out of and in the course of employment. The WCJ deferred the issue of injury to applicant's left shoulder pending further development of the record.

Dr. Angerman was terminally ill and instructed his office manager to sign his final report if he was unable to do so before his death.

Favours Defendant prevailed

This unique circumstance justified admitting the unsigned report under the doctrine of amanuensis, leading to the grant of defendant's petition for reconsideration.

From the decision · page 3Summarizing, the factual issue: Dr. Angerman dictated his final, five page supplemental report which he sent out for transcription. At the time, Dr. Angerman was experiencing chronic heart failure and was not on a transplant list. He called his office manager of forty years and told him that he was going to the hospital where he thought he would likely die but that he wanted to get his final report out even if he was unable to sign the transcribed report when it was returned. He instructed his office manager to sign for him if he was unable to do so himself. The office manager testified that this was the only time in forty years where the doctor had asked him to sign on his behalf. Dr. Angerman died two days later. The office manager followed Dr. Angerman's orders and signed the transcribed report on his behalf and initialed that he had done so. (Joint Partial Opinion on Decision, p. 8.)

The WCJ deferred findings on permanent disability and apportionment pending further vocational development.

Favours Defendant prevailed

This deferral meant the applicant's contentions for 100% permanent disability were premature and unsupported at this stage, leading to denial of reconsideration on those issues.

From the decision · page 15than finding that applicant had failed to meet his burden of proof, the undersigned ordered further development of the record so that the vocational reporting could be supplemented in conformity with the Nunes decision which issued after the start of trial herein.

Dr. Friedman's psychiatric reports lacked competent explanation for impairment addition and relied on non-substantial vocational evidence.

Favours Defendant prevailed

This lack of substantial evidence led to rejection of the applicant's claim for 100% permanent disability based on psychiatric impairment.

From the decision · page 15No. Dr. Friedman's reporting is not substantial on the issue of impairment and apportionment. He simply concludes that all impairments, in all specialties, should be added without providing a competent explanation why adding everything is more accurate than utilizing the CVC, and he fails to discuss how the various impairments, particularly in areas outside his expertise as a psychiatrist, affect applicant's activities of daily living.

Dr. Gillis's medical opinion found no evidence of stomach injury related to NSAID use despite applicant's history.

Favours Defendant prevailed

The WCJ relied on Dr. Gillis's competent analysis to deny the claim of stomach injury.

From the decision · page 23No. The parties selected Bruce Gillis, M.D. as an agreed medical evaluator in internal medicine to address issues of injury, causation, and apportionment. Dr. Gillis reviewed and competently analyzed applicant' s voluminous prior treatment records. He noted that although

Dr. Angerman deferred permanent total disability findings to the trier of fact and vocational experts; apportioned lumbar impairment between injuries; did not analyze adding impairments for wrist and elbow as more accurate than CVC.

The WCJ found Dr. Angerman's reports did not support 100% PD and deferred to vocational experts; apportionment credible but incomplete for compensable consequence fall.

From the decision · page 131. DID THE UNDERSIGNED COMMIT ERR IN FAILING TO AWARD 100% PERMANENT DISABILITY BASED ON THE ORTHPEDIC AME REPORTS OF DR. ANGERMAN?

Dr. Friedman concluded all impairments should be added but failed to provide competent explanation or discuss impact on activities of daily living; relied on non-substantial vocational reports; his opinions were not substantial evidence.

The WCJ found Dr. Friedman's opinions not substantial evidence and rejected his conclusion of 100% PD.

From the decision · page 152. DID THE UNDERSIGNED COMMIT ERR IN FAILING TO A WARD 100% PERMANENT DISABILITY BASED ON THE PSYCHIATRIC AME REPORTS OF DR. DAVID FRIEDMAN?

Dr. Gillis found no evidence of stomach injury related to NSAID use despite applicant's history; his opinion was relied upon by the WCJ.

The WCJ found no stomach injury based on Dr. Gillis's competent analysis of medical records.

From the decision · page 23No. The parties selected Bruce Gillis, M.D. as an agreed medical evaluator in internal medicine to address issues of injury, causation, and apportionment. Dr. Gillis reviewed and competently analyzed applicant' s voluminous prior treatment records. He noted that although

Labor Code sections 5900(a), 5902, 5903

A petition for reconsideration may properly be taken only from a final order, decision, or award.

The Board denied reconsideration on contentions involving non-final orders as premature.

From the decision · page 5both final and non-final orders. A petition for reconsideration may properly be taken only from a "final" order, decision, or award. (Lab. Code, § 5900(a), 5902, 5903.) A "final" order has been defined as one that either (1) "determines any substantive right or liability of those involved in the case..." (Rymer v. Hagler (1989) 211 Cal.App.3d 1171, 1180; Safeway Stores, Inc. v. Workers' Comp. Appeals Bd. (Pointer) (1980) 104 Cal.App.3d 528, 534-535 [45 Cal.Comp.Cases 410, 413]; Kaiser Foundation Hospitals v. Workers' Comp. Appeals Bd. (Kramer) (1978) 82 Cal.App.3d 39, 45 [43 Cal.Comp.Cases 661, 665]); or (2) determines a "threshold" issue that is fundamental to the claim for benefits. (Maranian v. Workers' Comp. Appeals Bd. (2000) 81 Cal.App.4th 1068, 1070, 1075 [65 Cal.Comp.Cases 650, 650-651, 655-656], emphasis added.) Interlocutory procedural or evidentiary decisions entered in the midst of the workers' compensation proceedings, are not considered "final" orders. (Maranian, supra, 81 Cal.App.4th at p. 1075; Rymer, supra, 211 Cal.App.3d at p. 1180; Kramer, supra, 82 Cal.App.3d at p. 45.)

Ameri-Medical Corp. v. Workers' Compensation Appeals Bd. (1996) 61 Cal.Comp.Cases 149

The doctrine of amanuensis allows admission of a report signed by an authorized person on behalf of a deceased doctor under unique circumstances.

The Board granted defendant's petition to admit Dr. Angerman's unsigned report due to his death and prior instructions to his office manager.

From the decision · page 7C. Defendant's Petition for Reconsideration Defendant urges us to apply the doctrine of amanuensis in order to admit the October 30,

Applicant's testimony about inaccurate drug tests and employer's credible testimony about testing procedures

From the decision · page 21Applicant also testified that he thought the two positive tests, at different labs, taken from the same observed sample, were both inaccurate. This alone would not show discrimination, just the possibility of bad independent lab testing (twice?). Applicant's obtaining of his own private testing seven days following when the employer sample was obtained (resulting in the two positive test reports), is likewise not relevant. The employer credibly testified that there is no provision by the employer or the Department of Transportation for procuring a "rebuttal" private test. In addition, the employer testified that applicant's self-procured testing was not an "observed" test which was required for all employees tested during the year following an initial positive test. Finally, the employer credibly testified that urine samples taken after a positive sample, in this case seven days later, can be reported as negative at that time.