ADJ9687495 · December 3, 2021

The Appeals Board found that the physical injury was significant but not catastrophic based on factors including treatment intensity, ultimate outcome, and impact on activities of daily living, relying on the orthopedic AME's opinion and applicant's deposition testimony.

From the decision · page 6In the instant case, the first three factors are the only that apply to this matter. First, with respect to the intensity of treatment, applicant underwent two surgeries to his lower back within five months, and had at least some pain relief following the fusion. He will need significant further treatment in the form of physician visits, physical therapy, medications and injections. Applicant also related in volume 3 of his deposition transcript that he may need additional surgery to remove hardware from his spine. This factor weighs the closest to catastrophic among the three applicable categories here.

Applicant underwent two lumbar surgeries and requires ongoing treatment including physician visits, physical therapy, medications, and injections.

Favours Defendant prevailed

Indicates significant but not catastrophic injury severity.

From the decision · page 6In the instant case, the first three factors are the only that apply to this matter. First, with respect to the intensity of treatment, applicant underwent two surgeries to his lower back within five months, and had at least some pain relief following the fusion. He will need significant further treatment in the form of physician visits, physical therapy, medications and injections. Applicant also related in volume 3 of his deposition transcript that he may need additional surgery to remove hardware from his spine. This factor weighs the closest to catastrophic among the three applicable categories here.

Applicant uses a cane regularly and sometimes a walker, but orthopedic AME did not recommend these devices or place applicant in the highest impairment category.

Favours Defendant prevailed

Supports finding that injury is not catastrophic.

From the decision · page 6Regarding the second Wilson factor (the ultimate outcome of the physical injury), applicant's outcome is somewhat poor, and there are factors which weight [sic] both for and against a catastrophic condition. He was placed in Category IV (with Category V being the most severe) at Table 15-3 of the AMA Guides for his lumbar spine injury. He uses a cane regularly, and sometimes uses a walker. On the other hand, Dr. Renbaum did not specifically recommend the use of a cane or a walker. He also did not place applicant in the highest level of Table 15-3, and did not provide an analogous Almaraz/Guzman rating over and above the strict AMA Guides level of impairment.

Applicant can perform many activities of daily living independently, including walking short distances, using the bathroom, lifting 20-30 pounds, and sitting for over an hour.

Favours Defendant prevailed

Shows significant but not catastrophic impact on ADLs.

From the decision · page 6Regarding the third factor applicable here, the deposition testimony of applicant establishes that the majority of his physical difficulties relate to his ambulation. He is, however, still able to walk on his own for short distances, albeit with difficulty. He is able to use the bathroom on his own, and can lift 20-30 pounds, sit for over an hour, and feels like everybody else when he is sitting down or stationary. There is no indication that he is unable to groom himself or take care of his general personal needs. Overall, the third factor shows that the physical injury has a significant, but not catastrophic, impact on applicant's ability to perform ADL's.

Found 36% permanent disability to lumbar spine, no permanent impairment to right hip, did not recommend use of cane or walker, and did not increase permanent disability beyond DRE Category IV of AMA Guides.

Relied upon for assessment of physical injury severity and impact on disability rating and catastrophic injury determination.

From the decision · page 4Applicant's August 19, 2014 injury is described at page 3 of Dr. Renbaum's February 10, 2017 report (Exh. E) as, "[H]e was working on tracks, a train was coming, on trying to get out of the way he slipped on wet tracks and hit his right hip on a railroad tie. He noted increased lower back pain as well as right hip pain." As further detailed by Dr. Renbaum at page 4 of this report, applicant underwent two surgeries. The first was a laminectomy and discectomy in January of 2016, which did not provide any change in his low back pain. He then underwent a two level decompression and fusion in May of 2016, which gave him some improvement in his pain level. He was recommended for physician visits, physical therapy, medications and injections in the future by Dr. Renbaum.

Diagnosed adjustment disorder with mixed mood (chronic) caused by work injury; noted reactive depression due to physical injury's impact on life and pain.

From the decision · page 5In his March 19, 2018 report (Exh. H), the psychiatric AME, Dr. Joshua Kirz, diagnosed applicant's psychiatric condition as an adjustment disorder with mixed mood (chronic). He further described the causation of the psychiatric injury at page 17 as follows:

Wilson v. State of California; Cal Fire (2019) 84 Cal.Comp.Cases 393 (Appeals Board en banc)

Factors to determine catastrophic injury under Labor Code section 4660.1(c)(2)(B) as set forth in Wilson v. State of California; Cal Fire (2019) 84 Cal.Comp.Cases 393 (Appeals Board en banc).

Applied to assess whether applicant's injury is catastrophic based on treatment, outcome, and impact on ADLs.

From the decision · page 5With respect to whether the effects of applicant's physical injury are catastrophic, such that his psychiatric permanent disability should be awarded pursuant to the Wilson, supra, the Appeals Board stated:

Applicant's deposition testimony about his daily activities and use of assistive devices.

From the decision · page 4In volume 2 of his deposition (Exh. L) taken on December 12, 2016 (volume 1 occurred prior to his surgeries), applicant testified regarding his daily activities at pages 76-81. He stated that he cannot stand for more than five minutes without becoming aware of searching for a wall or something to lean on. He cannot walk for more than 2-3 minutes. He uses a cane, and also uses a walker if he is going on a longer walk in a park. On the rare occasions when he goes shopping, he uses a cart to lean on. He is able to lift groceries from the shopping cart to his car, but cannot walk while carrying weight. He benefits from utilizing the steam room, sauna and pool at the gym. He considers his upper body to be strong, and can lift 20-30 pounds. When sitting down, he feels "just like everybody else." He can sit for an hour before needing to get up, which he considers to probably be almost a normal amount of time. He confirmed many

Opinion of orthopedic AME Dr. Joel Renbaum that applicant did not require cane or walker and rated impairment at DRE Category IV.