Radiator USA v. WCAB CA2/8 ( 2015 )

Filed 2/18/15 Radiator USA v. WCAB CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
RADIATOR USA et al., B255839
Petitioners, (WCAB No. ADJ7750590)
v.
WORKERS’ COMPENSATION
APPEALS BOARD etc., et al.,
Respondents.
PROCEEDING to review a decision of the Workers’ Compensation Appeals
Board. Anne J. Horelly, Workers’ Compensation Administrative Law Judge. Annulled
and remanded with directions.
Floyd, Skeren & Kelly, David L. Zimmerman and Phillip Scuderi for Petitioners.
Solov and Teitell, James A. Teitell and John Reff for Respondent Am Kang.
__________________________
Petitioners seek a writ of review after the Workers’ Compensation Appeals Board
denied reconsideration of the decision of the workers’ compensation judge (WCJ) finding
industrial causation of a psychiatric injury and sleep disorder.1
The issue presented is whether there is competent medical evidence to support
industrial causation of the psychiatric injury and sleep disorder. We hold that the medical
evidence on the cause of the psychiatric injury and sleep disorder is not substantial
evidence because it is based on an inadequate medical history. We remand the case for
further development of the record on the industrial nature of the cause of the psychiatric
injury and sleep disorder.
FACTS
A. The Employee’s Injury
The employee, Am Kang (Kang), sustained an admitted injury to his back on
December 24, 2010 while working as a driver for Radiator USA. Kang additionally
claimed to have sustained injury to his psyche in the form of a sleep disorder.
B. The Medical Reports
On February 28, 2012, the agreed medical evaluator (AME) in orthopedics,
David B. Pechman, M.D., noted compression fractures in Kang’s vertebrae that appeared
old. Dr. Pechman thought that most of Kang’s pain related to the compression fractures.
Dr. Pechman opined Kang was permanent and stationary from an orthopedic standpoint
on the date of his examination. However, he requested an EMG and nerve conduction
study to determine how many of the fractures were radicular and a bone scan to evaluate
the cause of Kang’s collapsing bones. Dr. Pechman apportioned 50 percent of the
orthopedic injury to nonindustrial preexisting metabolic bone disease.
1 The Petitioners are Radiator USA, the employer; Start Insurance Company, the
insurer; and Illinois Midwest Insurance Company, the adjuster. For ease of reference, we
will refer to petitioners as Radiator USA.
2
On July 2, 2012, Rodney Bluestone, MB, FRCP, the qualified medical evaluator
of rheumatology, confirmed Kang had metabolic bone disease (osteopenia and
osteoporosis) but could not determine a cause. Although Dr. Bluestone requested
additional testing to determine the cause of the metabolic bone disease, there was no
supplemental report that addressed causation. Dr. Bluestone had a “strong impression
that this patient [was] suffering from significant depression, which probably lower[ed] his
pain threshold and which [might] impact the quality of his sleep, resulting in greater
fatigue and a sleep-and-arousal disorder.”
In this report of August 25, 2012, Dr. Pechman acknowledged Dr. Bluestone’s
report but did not change his opinion on apportionment.
Ana L. Nogales, Ph.D., ABPS, FACFE evaluated Kang as a secondary treating
physician in psychology. As reflected in her September 14, 2012 report, Dr. Nogales
obtained a history of the injury, history of the treatment, and physical and emotional
complaints exclusively from Kang. Dr. Nogales explicitly noted that she did not receive
medical or employment records for review.2
On the issue of causation, Dr. Nogales found that, as a “consequence of his
industrial accident, Mr. Kang developed anxiety that increased with the passage of time
and deteriorated at the end of 2011 when he saw that his condition is not improving.” Dr.
Nogales opined that the “percentage of total causation of Mr. Kang’s current mental
disorder is estimated at a higher level than the legal threshold of industrial causation of
50 [percent].” She specifically noted a nonindustrial causal factor of a dog bite in 2005
requiring stitches.
Dr. Nogales concluded Kang’s condition was not stabilized to the point where
residual permanent disability was evident. She found Kang totally and temporarily
disabled and unable to return to regular or modified work. Dr. Nogales made no mention
of Dr. Pechman’s orthopedic diagnosis or his apportionment to the preexisting bone
disease.
2 Kang does not contend otherwise.
3
Significantly, Dr. Nogales deferred apportionment to the time of the permanent
and stationery report “after I have the opportunity to review previous medical, psychiatric
and employment records.”
C. Facts Adduced at the Hearing
The matter was heard on September 26, 2013. Four of Dr. Pechman’s reports
were admitted into evidence. Five of Dr. Nogales’s progress reports and the
September 14, 2012 report were submitted by Kang and admitted with no apparent
objection from Radiator USA. Radiator USA submitted Dr. Bluestone’s July 2, 2012
report.
Kang was the only witness who testified at the hearing. Kang stated he saw Dr.
Nogales because he was nervous, had feelings of dread, and could not sleep. He told Dr.
Nogales he could not sleep, he was nervous, and sometimes he wanted to die. Dr.
Nogales told him her diagnosis was “deep depression.”
Kang told Dr. Nogales about a dog bite requiring stitches in 2005 but he did not
recall telling Dr. Nogales that he was bothered by images of his accident or that he was
reliving the traffic accident. Kang divorced in 1996, which had an emotional impact.
Kang felt it would be harder to raise his children as he was the one taking care of them.3
He was unable to see two of his grandchildren because of his finances but continued to
hope that he would. Kang did not recall if he discussed grandchildren with Dr. Nogales.
At the time of the hearing, Kang continued to have trouble sleeping. His difficulty
sleeping began after his injury because he claimed to have received no treatment for four
months after the accident.
3 At the time of his deposition on July 25, 2011, his children were aged 45, 40 and
38. Accordingly, in 1996, his children were approximately 30, 25 and 23, all adults.
4
D. The Rulings of the WCJ and the Appeals Board
On December 26, 2013, the WCJ issued findings of fact concluding Kang
sustained industrial injury to his back, to his psyche, and in the form of a sleep disorder.
The WCJ found Kang reached maximum medical improvement for his physical injury on
February 28, 2012, but was still temporarily disabled from the psychiatric injury. The
WCJ relied on the doctors’ reports as well as the “credible testimony” of Kang.
Radiator USA petitioned for reconsideration. Reconsideration was sought based
“upon a lack of medical evidence to support this finding.” Radiator USA claimed Dr.
Bluestone was a rheumatologist, not a psychologist/psychiatrist or sleep specialist, and
his impression of Kang’s depression and sleep problems was not substantial evidence.
Similarly, Dr. Pechman was an AME in orthopedics, not a psychologist/psychiatrist or
sleep specialist.
As to the psychologist’s opinions, Radiator USA criticized Dr. Nogales’s failure to
acknowledge Kang’s nonindustrial metabolic bone disease as a cause of the pain and
sleep disorder, the inconsistency between Dr. Nogales’s report and Kang’s testimony at
trial regarding reliving the accident, and the omission of other causal factors including the
divorce and separation from grandchildren. Radiator USA argued that without a review
of past and present medical records and a true history of applicant’s past emotional
events, there was no support for a finding of industrial psychiatric injury.
On March 17, 2014, the appeals board issued an opinion and order denying
reconsideration. The appeals board found the doctors “based their opinions on extensive
discussions with [Kang] regarding how he sustained his injury and his condition
thereafter.” The appeals board found that, based on these discussions, Dr. Nogales
concluded the industrial cause of Kang’s psychiatric injury was higher than the legal
threshold. The appeals board found the doctors explained the reasoning behind their
conclusions. On the other hand, Radiator USA offered no evidence, documentary or
testimonial, rebutting or impeaching the medical reports. The appeals board specifically
determined that the medical reports constituted substantial evidence. In addition, the
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appeals board gave great weight to the WCJ’s determination that Kang was credible,
especially in light of the lack of contradictory witness or medical evidence.
We granted Radiator USA’s petition for writ of review.
DISCUSSION
A. There is a Reviewable Threshold Issue
As a preliminary matter, a petition for writ of review may be sought only from a
final order, decision, or award of the appeals board. (Lab. Code, §§ 5900, 5901;4
Maranian v. Workers’ Comp. Appeals Bd. (2000) 81 Cal. App. 4th 1068, 1074; 2 Hanna,
Cal. Law of Employee Injuries and Workers’ Compensation (rev. 2d ed.) § 34.10[2],
p. 34-9.) However, certain threshold issues that are dispositive of the case are reviewable
before there is a final decision in the case. Whether the injury arose out of and in the
course of employment, as is the issue in this case, is a recognized threshold issue.
(Safeway Stores, Inc. v. Workers’ Comp. Appeals Bd. (1980) 104 Cal. App. 3d 528, 533-
534, fn. 2 and accompanying text.) Thus, the decision in this case is reviewable under the
aegis of a writ of review.
B. General Principles
A psychiatric injury is compensable if actual events of employment were
predominant as to all causes combined of the psychiatric injury. (§ 3208.3, subd. (b)(1).)
The phrase “ ‘predominant as to all causes’ ” has been found to be “greater than a 50
percent share of the entire set of causal factors.” (Department of Corrections v. Workers’
Comp. Appeals Bd. (1999) 76 Cal. App. 4th 810, 816.) Causation of a psychiatric injury
requires competent medical evidence. (San Francisco Unified School Dist. v. Workers’
Comp. Appeals Bd. (2010) 190 Cal. App. 4th 1, 9 citing to Rolda v. Pitney Bowes Inc.
(2001) 66 Cal.Comp.Cases 241, 245.)
4 Further statutory references are to the Labor Code.
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When determining whether the appeals board’s conclusion was supported by
substantial evidence, the evidence should be considered in light of the entire record.
(§ 5952, subd. (d); Le Vesque v. Workers’ Comp. Appeals Bd. (1970) 1 Cal. 3d 627, 637.)
“Medical reports and opinions are not substantial evidence if they are known to be
erroneous, or if they are based on facts no longer germane, on inadequate medical
histories and examinations, or on incorrect legal theories.” (Hegglin v. Workers’ Comp.
Appeals Bd. (1971) 4 Cal. 3d 162, 169, italics added.)
C. The Flaw in Dr. Nogales’ Conclusion
The sole medical evidence of industrial causation came from psychologist Dr.
Nogales. It is true that the appeals board addressed the examination conducted by Dr.
Bluestone, the rheumatologist, noting Kang to be severely fatigued and suffering from a
significant depression. However, apart from the fact that Dr. Bluestone is not qualified to
render a psychiatric evaluation as to depression, there is nothing in Dr. Bluestone’s
reporting that speaks to the cause of Kang’s condition.
Dr. Nogales found that Kang’s psychiatric condition was the result of his
orthopedic injuries. Dr. Nogales, however, was completely unaware of the fact that Dr.
Pechman had apportioned 50 percent of the orthopedic injury to nonindustrial preexisting
metabolic bone disease. Does this mean that 50 percent of the psychiatric injury is
attributable to nonindustrial causes? While we acknowledge that these determinations
cannot be made with mathematical precision, it is at least a major issue what portion of
the psychiatric injury is attributable to nonindustrial causes. Although 50 percent is a
reasonable surmise, on this silent record it is equally plausible to suppose that, given that
psychiatric evaluations are unavoidably case-specific, 60 percent of the psychiatric injury
- or 40 percent thereof - is attributable to nonindustrial causes. In short, what is needed
here is an expert opinion that is based on a complete medical history, which necessarily
includes Dr. Pechman’s finding that 50 percent of the orthopedic injury is attributable to
nonindustrial causes.
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As far as the firmness of Dr. Pechman’s 50 percent apportionment to nonindustrial
causes is concerned, Dr. Pechman maintained this opinion after he reviewed Dr.
Bluestone’s report.
It does Dr. Nogales credit that she expressly deferred the issue of apportionment to
a time when she would have seen the medical and employment records. Notwithstanding
her refusal to comment on apportionment, and irrespective of Dr. Pechman’s allocating
50 percent of the orthopedic injury to nonindustrial causes, the appeals board accepted
Dr. Nogales’s conclusion that the “percentage of total causation of Mr. Kang’s current
mental disorder is estimated at a higher level than the legal threshold of industrial
causation of 50 [percent].” This opinion, however, could hardly have been anything
more than tentative and entirely conditional on the review of records that Dr. Nogales
very candidly acknowledged she had not seen. Given its admitted limitations, Dr.
Nogales’s report is not competent medical evidence on the cause of Kang’s psychiatric
injury and sleep disorder.
D. The Appeals Board’s Duty to Develop the Record
Given the lack of competent medical evidence on causation, the decision of the
appeals board cannot stand. The question now becomes whether it is appropriate to
return the case for further development of the record on the issue of the cause of the
psychiatric injury and sleep disorder.
Section 5906 specifically empowers the appeals board to take additional evidence
upon the filing or granting of a petition for reconsideration.5 Independently of a petition
5 “Upon the filing of a petition for reconsideration, or having granted
reconsideration upon its own motion, the appeals board may, with or without further
proceedings and with or without notice affirm, rescind, alter, or amend the order,
decision, or award made and filed by the appeals board or the workers’ compensation
judge on the basis of the evidence previously submitted in the case, or may grant
reconsideration and direct the taking of additional evidence.” (§ 5906.)
8
for reconsideration, section 5701 empowers the appeals board to cause testimony to be
taken and, among other things, to direct the performance of medical examinations.6
This power to take additional evidence has long been recognized:
“The [appeals board] is a court [citation] deliberately clothed
by the Legislature with administrative facilities to permit it to
develop the facts in reference to matters not generally known
to laymen. It was not intended that the litigants before it be
impaled upon the results of their lack of familiarity with the
often occult problems of medical science frequently arising in
compensation cases. As a consequence the [appeals board]
may not leave undeveloped matters which it acquired,
specialized knowledge should identify as requiring further
evidence. In this case the resolution of the issues of injury
and disability was not patent. Medical evidence thereon was
therefore required. Under these circumstances the [appeals
board] had the responsibility of seeing to it that such evidence
was reasonably complete, whether by use of its own medical
experts or otherwise.” (West v. Industrial Acci. Com. (1947)
79 Cal. App. 2d 711, 719.)
It is not too much to say that the appeals board is more than simply empowered to
take additional evidence. It is now well established that the appeals board has an
affirmative duty to develop an adequate record. As an example, where the medical
evidence was evenly balanced on the issue of industrial causation, our Supreme Court
held that the appeals board was not free to simply rule that the employee had failed to
sustain his burden of proof but was required to take additional evidence in order to
resolve the doubts raised by the existing medical reports. (Lundberg v. Workers’ Comp.
Appeals Bd. (1968) 69 Cal. 2d 436, 440.)
6 “The appeals board may, with or without notice to either party, cause testimony to
be taken, or inspection of the premises where the injury occurred to be made, or the
timebooks and payroll of the employer to be examined by any member of the board or a
workers’ compensation judge appointed by the appeals board. The appeals board may
also from time to time direct any employee claiming compensation to be examined by a
regular physician. The testimony so taken and the results of any inspection or
examination shall be reported to the appeals board for its consideration.” (§ 5701.)
9
This principle has enjoyed continuing support. (Kuykendall v. Workers’ Comp.
Appeals Bd. (2000) 79 Cal. App. 4th 396, 404 [“it is well established that the WCJ or the
Board may not leave undeveloped matters which it acquired specialized knowledge
should identify as requiring further evidence”]; M/A Com-Phi v. Workers’ Comp. Appeals
Bd. (1998) 65 Cal. App. 4th 1020, 1025; McClune v. Workers’ Comp. Appeals Bd. (1998)
62 Cal. App. 4th 1117, 1120.) In fact, it has been held that a full development of the
record to enable a “complete adjudication [on the merits]” is an employee’s due process
right. (Tyler v. Workers’ Comp. Appeals Bd. (1997) 56 Cal. App. 4th 389, 394.)
The medical reporting in this case had a serious flaw which the appeals board
should have recognized and, had the responsibility, to cure. Dr. Nogales’s report could
not sustain a finding of industrial causation because her evaluation, as acknowledged in
her report, was not yet complete. Instead of focusing on the lack of medical evidence on
the issue of causation, the appeals board noted that the defendant had not offered any
evidence rebutting or impeaching the medical reporting, i.e., Dr. Nogales’s report. ~(RP
403.)~ While the defendant could have acted more vigorously, it is also true that the
appeals board “may not leave undeveloped matters which it acquired, specialized
knowledge should identify as requiring further evidence.” (West v. Industrial Acci. Com.
supra, 79 Cal.App.2d at p. 719.)
DISPOSITION
The decision of the appeals board is annulled and the matter is remanded for
further proceedings consistent with this opinion. Petitioners to recover their costs.
RUBIN, J.
WE CONCUR:
BIGELOW, P. J. GRIMES, J.
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