ADJ8908424 — California WCAB decision

What the panel ordered

Findings and Award issued by the WCJ on September 5, 2019 is rescinded and the matter is returned to the trial level for further proceedings consistent with the opinion.

Defendant sought reconsideration of the Findings and Award issued by the WCJ on September 5, 2019, which found injury AOE/COE to arm, left elbow, skin and psyche; the WCJ awarded permanent disability for arm, left elbow and skin; the WCJ's findings were rescinded and the matter was returned to trial level for further proceedings.

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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/COERemandedskin · psyche

The medical evidence on causation for the skin and psyche injuries was found insufficient and not substantial evidence; the temporal relationship alone was inadequate to establish industrial causation for psoriasis; psychiatric injury as a compensable consequence depends on compensability of the physical injury; further medical development is necessary.

From the decision · page 1Defendant seeks reconsideration of the Findings and Award (F&A) issued by the workers' compensation administrative law judge (WCJ) on September 5, 2019. By the F&A, the WCJ found that applicant sustained injury arising out of and in the course of employment (AOE/COE) to the arm, left elbow, skin and psyche. An award was made for permanent disability to the arm, left elbow and skin.

The facts that decided it

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

Medical opinion by Dr. Sofen that psoriasis flare was triggered by industrial injury was based mainly on temporal relationship and was not substantial evidence for causation.

Favours Defendant prevailed

This undermined the finding of injury AOE/COE for psoriasis, leading to the need for further development.

From the decision · page 8Where stress causes a physical injury, the predominant causation threshold in section 3208.3 does not apply. Therefore, if stress from applicant's orthopedic injury caused the psoriasis, applicant is only required to show that the industrial injury was a contributing cause of the psoriasis to a reasonable medical probability. Dr. Sofen opined that "the fact that the applicant's psoriasis flared subsequent to his industrially related injury, it may have triggered his dermatological disease." This conclusion is tenuous at best and suggests that Dr. Sofen's causation opinion for applicant's psoriasis is based solely on the temporal relationship of the flare occurring after his orthopedic injury. This does not constitute substantial evidence to support a finding of injury AOE/COE for applicant's psoriasis.

Dr. Pretsky's psychiatric opinion was based on inadequate history and discrepancies, and psychiatric injury as compensable consequence depends on compensability of physical injury (psoriasis).

Favours Defendant prevailed

This led to rejection of psychiatric injury compensability and need for further development.

From the decision · page 9experienced symptoms severe enough to diagnose a Major Depression." He considered applicant's psychiatric condition to be the "[s]equelae of his work-related physical injury," i.e., his depression was considered a compensable consequence of the physical injury, not directly caused by his work. Dr. Pretsky's report indicates that applicant's depression resulted from his psoriasis. However, if the physical injury to which applicant's psychiatric injury is attributed is not found to be industrially caused by the trier of fact, then there can be no "compensable" consequence psychiatric injury flowing from the non-industrial condition. In other words, if the underlying physical injury claim (in this case psoriasis) is not compensable, then the psychiatric condition that is a consequence of that claim is also not compensable. (See e.g., Doke v. Workers' Comp. Appeals Bd. (2004) 69 Cal.Comp.Cases 1577 (writ den.) [the Board concluded that it was inconsistent with both the workers' compensation statutory scheme and the compensable consequence doctrine for a consequential injury to be compensable when the primary injury is not compensable].) As outlined above, further development of the record is necessary to determine if the psoriasis is compensable.

Applicant's testimony about injury, stress, and psoriasis flare after claim rejections supported applicant's position but was insufficient to establish causation without substantial medical evidence.

Favours Applicant prevailed

Supported applicant's claim but insufficient alone for causation finding.

From the decision · page 5Applicant testified as follows in relevant part:

ADJ8908424 · April 22, 2022

What the panel ordered

What was disputed, and how it came out

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The facts that decided it

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