ADJ9580793 · November 8, 2022

The Board found erectile dysfunction compensable based on Dr. Tirmizi's opinion linking it to cardiac medication and defendant's acceptance of liability.

From the decision · page 5In reference to the WCJ's finding of industrial erectile dysfunction, it appears defendant alleges applicant did not sustain a cumulative trauma through July 22, 2014 because applicant already had erectile dysfunction in 2004 due to a vasectomy, not in 2015 when applicant informed Dr. Tirmizi that his complaints started when he began taking medication for his heart. (Petition for Reconsideration, p. 10.) We reject the allegation. The fact that applicant had complaints of erectile dysfunction after undergoing a vasectomy does not preclude a finding that his industrial heart conditions also aggravated or contributed to the dysfunction, as opined by Dr. Tirmizi in his deposition of June 6, 2018, applicant's exhibit 1 at pp. 9-11. (South Coast Framing v. Workers' Comp. Appeals. Bd. (2015) 61 Cal.4th 291 (80 Cal.Comp.Cases 489) [affirming industrial injury where employment is a contributing cause of the injury].)

The Board applied the heart trouble presumption under Labor Code section 3212.2 and found permanent disability for cardiac arrhythmia supported by Dr. Tirmizi's opinion and medical evidence of ongoing symptoms.

From the decision · page 1In the Findings and Award of February 21, 2020, the Workers' Compensation Judge ("WCJ") found that applicant, while employed as a correctional counselor by the Department of Corrections during the period February 19, 1990 to July 22, 2014, sustained industrial injury to his knees, neck, low back, left hand/wrist, cardiac arrhythmia, hypertensive heart disease, gastrointestinal reflux disorder ("GERD"), right hip, varicose veins, and erectile dysfunction, that applicant is entitled to the heart trouble presumption of Labor Code section 3212.2, that the injury resulted in permanent and total disability "based on the addition method of applicant's cardiac arrhythmia and hypertensive heart disease," that the addition method provides a more accurate rating and assessment of applicant's impairment, that applicant is entitled to further medical treatment, and that applicant's claim for varicose veins is not barred by the statute of limitations.

The Appeals Board found substantial evidence supporting the WCJ's finding of permanent and total disability based on the addition method of cardiac arrhythmia and hypertensive heart disease, relying on Dr. Tirmizi's medical opinion and relevant case law.

From the decision · page 1In the Findings and Award of February 21, 2020, the Workers' Compensation Judge ("WCJ") found that applicant, while employed as a correctional counselor by the Department of Corrections during the period February 19, 1990 to July 22, 2014, sustained industrial injury to his knees, neck, low back, left hand/wrist, cardiac arrhythmia, hypertensive heart disease, gastrointestinal reflux disorder ("GERD"), right hip, varicose veins, and erectile dysfunction, that applicant is entitled to the heart trouble presumption of Labor Code section 3212.2, that the injury resulted in permanent and total disability "based on the addition method of applicant's cardiac arrhythmia and hypertensive heart disease," that the addition method provides a more accurate rating and assessment of applicant's impairment, that applicant is entitled to further medical treatment, and that applicant's claim for varicose veins is not barred by the statute of limitations.

The Board rejected defendant's statute of limitations defense for the right hip injury because it was not raised at trial and there was no evidence applicant was advised the injury was work-related before November 13, 2017.

From the decision · page 6Finally, defendant contends that applicant did not sustain an industrial injury to his right hip during the period February 19, 1990 to July 22, 2014. However, defendant's objection goes to the date of injury, not to the existence of the injury itself. Specifically, defendant alleges that under Labor Code section 5412, the date of injury is February 19, 1990 to November 13, 2017. We reject the allegation for two reasons. First, at trial defendant did not raise a statute of limitations defense to the claimed right hip injury, so the defense is not properly raised now. (U.S. Auto Stores v. Workers' Comp. Appeals Bd. (Brenner) (1971) 4 Cal.3d 469 [36 Cal.Comp.Cases 173; Los Angeles Unified Sch. Dist. v Workers' Comp. Appeals Bd. (Henry) (2001) 66 Cal.Comp.Cases 1220 (writ den.); Hollingsworth v Workers' Comp. Appeals Bd.

The Board found the varicose veins claim was not barred by the statute of limitations because defendant failed to meet its burden of proof and accepted liability in partial denial letters.

From the decision · page 5Turning to the WCJ's finding of industrial varicose veins, defendant contends that this injury is barred by the one-year statute of limitations of Labor Code section 5405. Defendant alleges that it has been more than one year since applicant received medical treatment for a prior claim of cumulative trauma for the period February 19, 1990 through February 2, 2000. Again, this allegation is contradicted by the medical record. In his deposition of September 23, 2015, Dr. Tirmizi explained that applicant's employment as a correctional counselor continued exposing his condition of varicose veins to further injury after 2000 and continuing. (Applicant's exhibit 6, Tirmizi deposition of 9/23/15, p. 57.) Thus, the substance of applicant's claim of injury for the period February 19, 1990 through July 22, 2014 is the previously uncompensated period from 2000 through 2014, for which no statute of limitations defense is raised. In footnote 13 of its petition for reconsideration, defendant improperly cites to a 2014 Thermal Ablation Study published in the Scientific World Journal, which is not in evidence. In any event, the study does not rebut Dr. Tirmizi's opinion, specific to this case, that applicant's varicose veins are industrially-related due

Dr. Tirmizi's medical opinion supports the addition method for rating permanent disability due to cardiac arrhythmia and hypertensive heart disease.

Favours Applicant prevailed

This opinion was relied upon by the WCJ and Appeals Board to find 100% permanent and total disability.

Applicant continues to have symptoms of cardiac arrhythmia such as palpitations and shortness of breath.

Favours Applicant prevailed

Supports the finding of permanent disability for cardiac arrhythmia under the heart trouble presumption.

From the decision · page 1In the Findings and Award of February 21, 2020, the Workers' Compensation Judge ("WCJ") found that applicant, while employed as a correctional counselor by the Department of Corrections during the period February 19, 1990 to July 22, 2014, sustained industrial injury to his knees, neck, low back, left hand/wrist, cardiac arrhythmia, hypertensive heart disease, gastrointestinal reflux disorder ("GERD"), right hip, varicose veins, and erectile dysfunction, that applicant is entitled to the heart trouble presumption of Labor Code section 3212.2, that the injury resulted in permanent and total disability "based on the addition method of applicant's cardiac arrhythmia and hypertensive heart disease," that the addition method provides a more accurate rating and assessment of applicant's impairment, that applicant is entitled to further medical treatment, and that applicant's claim for varicose veins is not barred by the statute of limitations.

Defendant accepted liability for varicose veins and erectile dysfunction in partial denial letters.

Favours Applicant prevailed

This acceptance undermined defendant's statute of limitations defense and supported compensability findings.

From the decision · page 11The court disagrees. There is no evidence to support defendant's argument. Moreover, defendant had accepted liability for applicant's claim which included varicose veins in partial denial letters dated February 16, 2016 (Exhibit R), September 25, 2017 (Exhibit N), December 4, 2017 (Exhibit O or Exhibit 20), and February 8, 2018 (Exhibit P).

Defendant did not raise statute of limitations defense for right hip injury at trial and no evidence showed applicant was advised the injury was work-related before November 13, 2017.

Favours Applicant prevailed

This led to rejection of defendant's statute of limitations defense for the right hip injury claim.

From the decision · page 6Finally, defendant contends that applicant did not sustain an industrial injury to his right hip during the period February 19, 1990 to July 22, 2014. However, defendant's objection goes to the date of injury, not to the existence of the injury itself. Specifically, defendant alleges that under Labor Code section 5412, the date of injury is February 19, 1990 to November 13, 2017. We reject the allegation for two reasons. First, at trial defendant did not raise a statute of limitations defense to the claimed right hip injury, so the defense is not properly raised now. (U.S. Auto Stores v. Workers' Comp. Appeals Bd. (Brenner) (1971) 4 Cal.3d 469 [36 Cal.Comp.Cases 173; Los Angeles Unified Sch. Dist. v Workers' Comp. Appeals Bd. (Henry) (2001) 66 Cal.Comp.Cases 1220 (writ den.); Hollingsworth v Workers' Comp. Appeals Bd.

Dr. Tirmizi opined that the addition method was the most medically accurate way to rate the applicant's permanent disability due to cardiac arrhythmia and hypertensive heart disease, finding a synergistic effect between the two injuries.

Dr. Tirmizi testified that the heart is targeted by two separate injuries, making addition more accurate than combination for rating disability.

Dr. Tirmizi found permanent disability for cardiac arrhythmia based on ongoing symptoms and the heart trouble presumption under Labor Code section 3212.2.

Applicant continues to have symptoms of palpitations and shortness of breath; no evidence controverting the heart trouble presumption.

From the decision · page 1In the Findings and Award of February 21, 2020, the Workers' Compensation Judge ("WCJ") found that applicant, while employed as a correctional counselor by the Department of Corrections during the period February 19, 1990 to July 22, 2014, sustained industrial injury to his knees, neck, low back, left hand/wrist, cardiac arrhythmia, hypertensive heart disease, gastrointestinal reflux disorder ("GERD"), right hip, varicose veins, and erectile dysfunction, that applicant is entitled to the heart trouble presumption of Labor Code section 3212.2, that the injury resulted in permanent and total disability "based on the addition method of applicant's cardiac arrhythmia and hypertensive heart disease," that the addition method provides a more accurate rating and assessment of applicant's impairment, that applicant is entitled to further medical treatment, and that applicant's claim for varicose veins is not barred by the statute of limitations.

Dr. Tirmizi opined that the applicant's erectile dysfunction was related to cardiac medication.

Defendant accepted liability for erectile dysfunction; Dr. Tirmizi linked it to cardiac medication.

From the decision · page 5In reference to the WCJ's finding of industrial erectile dysfunction, it appears defendant alleges applicant did not sustain a cumulative trauma through July 22, 2014 because applicant already had erectile dysfunction in 2004 due to a vasectomy, not in 2015 when applicant informed Dr. Tirmizi that his complaints started when he began taking medication for his heart. (Petition for Reconsideration, p. 10.) We reject the allegation. The fact that applicant had complaints of erectile dysfunction after undergoing a vasectomy does not preclude a finding that his industrial heart conditions also aggravated or contributed to the dysfunction, as opined by Dr. Tirmizi in his deposition of June 6, 2018, applicant's exhibit 1 at pp. 9-11. (South Coast Framing v. Workers' Comp. Appeals. Bd. (2015) 61 Cal.4th 291 (80 Cal.Comp.Cases 489) [affirming industrial injury where employment is a contributing cause of the injury].)

Labor Code section 5705

Statute of limitations defense burden of proof

Defendant bears burden to prove statute of limitations defense for varicose veins claim; defendant failed to meet burden.

From the decision · page 11The burden of proof rests upon the party holding the affirmative of the issue according to Labor Code section 5705. Here, defendant is asserting a statutory defense, asserting applicant's claim for varicose veins should be barred by the statute of limitations.

Labor Code section 3212.2

Heart trouble presumption under Labor Code section 3212.2

Applied to find permanent disability for cardiac arrhythmia based on ongoing symptoms and medical opinion.

From the decision · page 1In the Findings and Award of February 21, 2020, the Workers' Compensation Judge ("WCJ") found that applicant, while employed as a correctional counselor by the Department of Corrections during the period February 19, 1990 to July 22, 2014, sustained industrial injury to his knees, neck, low back, left hand/wrist, cardiac arrhythmia, hypertensive heart disease, gastrointestinal reflux disorder ("GERD"), right hip, varicose veins, and erectile dysfunction, that applicant is entitled to the heart trouble presumption of Labor Code section 3212.2, that the injury resulted in permanent and total disability "based on the addition method of applicant's cardiac arrhythmia and hypertensive heart disease," that the addition method provides a more accurate rating and assessment of applicant's impairment, that applicant is entitled to further medical treatment, and that applicant's claim for varicose veins is not barred by the statute of limitations.

Taina v. County of Santa Clara/Valley Medical Center (2018)

Addition method for combining disabilities when no overlap and synergistic effect exists

Applied to support the use of addition method for permanent disability rating of cardiac arrhythmia and hypertensive heart disease.

McAllister v. Workmen's Comp. App. Bd. (1968)

Substantial evidence test for medical opinion based on reasonable medical probability

Applied to uphold Dr. Tirmizi's medical opinion despite lack of scientific studies, relying on reasonable medical probability.

From the decision · page 5combining applicant's cardiovascular disabilities, to a reasonable medical probability. (Id., pp. 12-16.) Dr. Tirmizi's reliance on his own medical expertise and judgment in evaluating applicant's disability meets the test of substantial evidence. Contrary to defendant's petition for reconsideration (5:11-23), Dr. Tirmizi was not required to rely upon "objective scientific evidence" or "prevailing medical opinion" because reasonable medical probability, not medical certainty, is the test of substantial evidence. (McAllister v. Workmen's Comp. App. Bd. (1968) 69 Cal.2d 408, 413 [33 Cal.Comp.Cases 660].)

Labor Code section 5412

Date of injury under Labor Code section 5412 requires knowledge of industrial nature

Applied to reject defendant's statute of limitations defense for right hip injury due to lack of knowledge of industrial nature before November 13, 2017.

From the decision · page 6Finally, defendant contends that applicant did not sustain an industrial injury to his right hip during the period February 19, 1990 to July 22, 2014. However, defendant's objection goes to the date of injury, not to the existence of the injury itself. Specifically, defendant alleges that under Labor Code section 5412, the date of injury is February 19, 1990 to November 13, 2017. We reject the allegation for two reasons. First, at trial defendant did not raise a statute of limitations defense to the claimed right hip injury, so the defense is not properly raised now. (U.S. Auto Stores v. Workers' Comp. Appeals Bd. (Brenner) (1971) 4 Cal.3d 469 [36 Cal.Comp.Cases 173; Los Angeles Unified Sch. Dist. v Workers' Comp. Appeals Bd. (Henry) (2001) 66 Cal.Comp.Cases 1220 (writ den.); Hollingsworth v Workers' Comp. Appeals Bd.

Dr. Tirmizi's medical opinion and deposition testimony

Defendant's acceptance of liability in partial denial letters for varicose veins and erectile dysfunction

From the decision · page 11The court disagrees. There is no evidence to support defendant's argument. Moreover, defendant had accepted liability for applicant's claim which included varicose veins in partial denial letters dated February 16, 2016 (Exhibit R), September 25, 2017 (Exhibit N), December 4, 2017 (Exhibit O or Exhibit 20), and February 8, 2018 (Exhibit P).