Opinion
B225515 W.C.A.B. No. ADJ1170386 W.C.A.B. No. ADJ2465830
11-17-2011
LARRY SALIT, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD et al., Respondents.
Law Firm of Kenneth H. Rowen and Clint W. Feddersen, for Petitioner. Grancell, Lebovitz, Stander, Reubens and Thomas and Sam L. Lebovitz, for Respondent City of Inglewood. No appearance for Respondent Workers' Compensation Appeals Board.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
PROCEEDINGS to review a decision of the Workers' Compensation Appeals Board. Annulled and remanded.
Law Firm of Kenneth H. Rowen and Clint W. Feddersen, for Petitioner.
Grancell, Lebovitz, Stander, Reubens and Thomas and Sam L. Lebovitz, for Respondent City of Inglewood.
No appearance for Respondent Workers' Compensation Appeals Board.
Petitioner Larry Salit filed a petition for writ of review to determine the lawfulness of an award and an order denying reconsideration in a proceeding before respondent Workers' Compensation Appeals Board (Board). We conclude that the Workers' Compensation Judge's (WCJ) finding that petitioner did not sustain industrial injury in the form of irritable bowel syndrome (IBS) is not supported by substantial evidence. Further, we find the WCJ's apportionment findings related to petitioner's fibromyalgia injury are not supported by substantial evidence. We annul the Board's decision.
FACTUAL AND PROCEDURAL SUMMARY
Petitioner was employed by the City of Inglewood (City) as a police officer. On February 7, 1990, he sustained injuries to his left knee and back at work. On September 29, 1991, he sustained additional work-related injuries to his right shoulder and back. The agreed medical examiner, Dr. Melvin R. Stoltz, rated petitioner's permanent disability at 42.75 percent. City and petitioner stipulated to an award for the injuries to fully compensate petitioner at 24.25 percent disability, which was calculated as the difference between Dr. Stoltz's rating of 42.75 percent and a prior award of 18.5 percent.
While still a police officer with City, petitioner sustained injury during a mandated department training on October 11, 1995. While petitioner was on his hands and knees, a police officer weighing more than 200 pounds held him in a choke hold and drove him into a mat, face first. Petitioner was taken off work for approximately one and a half years. On June 27, 1996, petitioner filed a claim based on this injury (claim no. VNO 334877). He claimed temporomandibular joint syndrome (TMJ), hearing loss, fibromyalgia, IBS, and injuries to his neck and upper extremities.
Petitioner subsequently retired from the police force. He then worked for Alpha Industries as an information technology technician, a position that required him to build, maintain, and relocate computers. He began to experience problems in his hand, leading to a second claim on July 28, 2003, based on cumulative injury to his neck, back, and upper extremities from his work at Alpha Industries (claim no. OXN 133453). The two claims were consolidated.
In a medical report dated April 2004, Sean Leoni, M.D., diagnosed petitioner with fibromyalgia, TMJ, tension headaches, gatroesophageal reflux, and IBS. Dr. Leoni explained that IBS should be considered an industrial injury because it developed due to events of anxiety and stress occurring at work.
In January 2006, petitioner's treating orthopedist, Steven Nagelberg, M.D., reported on petitioner's condition. He apportioned 85 percent of the cervical and lumbar disability to the October 11, 1995 industrial injury petitioner sustained while employed by City, and 15 percent to nonindustrial, preexisting degenerative disc disease. He wrote that 100 percent of the petitioner's disability involving his upper extremities was attributable to the cumulative work injury petitioner sustained while employed at Alpha Industries.
In October 2007, qualified medical evaluator (QME) and orthopedist Jeffrey A. Berman, M.D., conducted an agreed-upon orthopedic medical examination for City. Reporting on petitioner's cervical and lumbar disability, Dr. Berman wrote "[o]f the subsequent disability beyond the prior award, I would agree with Dr. Nagelberg and apportion 85% of the 1995 incident and 15% to nonindustrial causation." ~(Ex. 19, p.23.)~ However, Dr. Berman allocated petitioner's upper extremity disability at one-third due to his employment with City and two-thirds due to his subsequent employment with Alpha Industries. Regarding petitioner's fibromyalgia diagnosis, Dr. Berman "defer[red] to the internal medicine/rheumatologic specialists to address this issue."
"'Qualified medical evaluator' means [a] physician[] appointed by the administrative director pursuant to Section 139.2." (Lab. Code, § 110, subd. (e).) All further statutory citations are to the Labor Code, unless otherwise indicated.
In October 2007, QME Seymour Levine, M.D., a rheumatologist, evaluated petitioner for City. Dr. Levine's report addressed petitioner's fibromyalgia syndrome. He explained that there are no objective factors of disability related to fibromyalgia, and that it is a subjective syndrome. He apportioned 65 percent of the fibromyalgia to the injury on October 11, 1995, 25 percent to preexisting industrial injuries, and 10 percent to injuries that occurred at Alpha Industries.
Dr. Levine wrote, "[p]atients with fibromyalgia may develop IBS, characterized by constipation and/or diarrhea and associated with abdominal pain, gas, bloating, cramping and painful defecation. The patient has had symptoms compatible with [IBS]." He further noted that Dr. Leoni had diagnosed IBS and that petitioner complained of gas, bloating, diarrhea, and occasional constipation. He stated "[petitioner] has signs and symptoms of colonic disease, infrequent and of brief duration. I would give him the 3% impairment of the whole person regarding his irritable bowel syndrome." Regarding petitioner's orthopedic injuries, he "defer[red] to the appropriate specialist in this area for further comments."
In December 2008, petitioner's treating rheumatologist, Allen I. Salick, M.D., reported on petitioner's condition. He diagnosed petitioner with fibromyalgia. Dr. Salick did not believe any of the permanent disability caused by the fibromyalgia was apportionable to injuries that occurred prior to the October 11, 1995 injury.
At trial, petitioner testified that he experienced gastrointestinal problems. He stated that he had IBS for which he took medication and altered his diet. He said the IBS symptoms were ongoing at the time of trial. He also stated that he had received treatment from Dr. Leoni.
The WCJ submitted the claim to the Disability Evaluation Unit (DEU) for a determination of a final permanent disability rating with instructions to the disability rater that the factors of disability were to be determined using the 1978 Schedule for Rating Permanent Disabilities (Schedule). After objections from both sides, the WCJ vacated her original rating instructions. She issued amended instructions based on the opinion of Dr. Berman. For fibromyalgia, the WCJ apportioned 7.75 percent for the neck and 7.75 percent for the back based on Dr. Stoltz's report. She then apportioned 65 percent of the remainder to City based on the October 11, 1995, injury and nothing to Alpha Industries.
Where the issue of permanent disability is submitted to the trier of fact, the WCJ may formally request a recommended permanent disability rating from the DEU. (Cal. Code Reg., tit. 8, § 10156.) The DEU bases its recommendations on rating instructions supplied by the trier of fact and the Schedule for Rating Permanent Disabilities. (Mihesuah v. Workers' Compensation Appeals Bd. (1976) 55 Cal.App.3d 720; Department of Motor Vehicles v. Workmen's Comp. Appeals Bd. (1971) 20 Cal.App.3d 1039.)
The rater recommended a rating of 42.5 percent permanent disability under the multiple disabilities table after apportionment. Petitioner objected to the WCJ's rating instructions and moved to strike the rating and cross-examine the rater. The rater explained that she used the restrictions and subjective factors of disability for fibromyalgia rather than the restrictions for the upper extremities, neck, and back because the resulting rating was higher.
In the amended findings and award, the WCJ found that petitioner sustained injuries to his back, neck, both upper extremities, hearing loss, TMJ, and fibromyalgia arising out of and occurring during the course of his employment with City. The WCJ did not find that applicant sustained industrial injury in the form of IBS. The WCJ adopted the recommended 42.5 percent final permanent disability rating after apportionment. Related to petitioner's employment with Alpha Industries, the WCJ found that petitioner sustained injury arising out of and in the course of his employment to his bilateral upper extremities. The final permanent disability rating after apportionment came to 7 percent.
Petitioner filed a petition for reconsideration. He argued that: the rating instructions, including the findings on apportionment, were incorrect; the fibromyalgia injury should have been apportioned to Alpha Industries; the WCJ's finding of no IBS injury was not supported by substantial evidence; the WCJ should have relied on the reports of his treating physicians rather than the defense QMEs; and City failed to show that his prior awards overlapped with his claims for disability.
The WCJ denied the petition. She stated that she apportioned for the prior injuries based on the 1993 report of Dr. Stoltz and the 1994 stipulated award. Further, she noted that her rating instructions were based on Dr. Berman's report because she found it to be the most persuasive. The Board denied reconsideration and adopted and incorporated the WCJ's report without further comment on the issues. This petition for a writ of review followed.
DISCUSSION
We review the entire record to determine whether the Board's conclusion is supported by substantial evidence. (Hegglin v. Workers' Comp. App. Bd. (1971) 4 Cal.3d 162, 169; see § 5952, subd. (d).) "Substantial evidence generally means evidence that is credible, reasonable, and of solid value, which a reasonable mind might accept as probative on the issues and adequate to support a conclusion." (Zenith Ins. Co. v. Workers' Comp. Appeals Bd. (2008) 159 Cal.App.4th 483, 490.)
I
Petitioner claims the WCJ's determination is not supported by substantial evidence. The WCJ based the finding of no industrial IBS injury on two grounds. First, the WCJ found that petitioner did not expressly testify that he suffered from constipation or diarrhea and associated abdominal pain, gas, bloating, cramping, and painful defecation—the symptoms associated with IBS. Second, the WCJ explained that Dr. Levine also did not specifically state which IBS symptoms petitioner experienced. These two grounds, City argues, constitute sufficient evidence to support the WCJ's finding.
While the Board did not make an appearance, we requested that the Board respond by letter and address two issues: (1) whether the WCJ's finding of no industrial IBS injury is supported by substantial evidence; and (2) whether the fibromyalgia award contains duplicative apportionment. The Board's letter response conceded that the IBS finding is not supported by substantial evidence. On the second issue, the Board also conceded that substantial evidence does not support the apportionment determination. However, the Board argued the WCJ's apportionment was not duplicative, because the WCJ based her determination on Dr. Berman's opinion and he apportioned causation for disability "beyond the prior award."
But petitioner testified he experienced gastrointestinal problems and had been diagnosed and treated for IBS. The WCJ summarized petitioner's testimony as follows: "In addition to [other] symptoms . . . , he has experienced gastrointestinal problems. He has irritable bowel syndrome and takes medication for that. He takes frequent bathroom stops and eats differently. He saw Dr. Leoni for that condition a couple of times. He still has those symptoms." Respondent did not contradict or impeach petitioner's testimony.
Dr. Leoni, petitioner's treating physician, diagnosed petitioner with IBS. In his report, Dr. Leoni described the symptoms and causes of IBS and reported ratable factors of permanent disability due to IBS. He concluded, "irritable bowel syndrome must be considered industrial, and it needs to be treated on an industrial basis." While Dr. Levine, City's QME, wrote that he did not obtain an IBS medical history from petitioner, he did review records from Dr. Leoni which detailed that history. Specifically, Dr. Levine's report indicated that Dr. Leoni treated petitioner for IBS and complaints of gas, bloating, diarrhea, and occasional constipation and that petitioner used Metamucil to treat these symptoms. Dr. Levine noted, "[p]atients with fibromyalgia may develop [IBS], characterized by constipation and/or diarrhea and associated with abdominal pain, gas, bloating, cramping, and painful defecation. The patient has had symptoms compatible with [IBS]." Dr. Levine rated petitioner's IBS as 3 percent whole body impairment under the American Medical Association's Guides to the Evaluation of Permanent Impairment. Dr. Leoni's reports also were submitted to the court. This medical evidence was uncontradicted.
On cross-examination, the DEU rater testified that there is no medical consensus that fibromyalgia affects the gastrointestinal system. The WCJ's order did not indicate that she relied on this testimony in determining that petitioner did not sustain industrial injury in the form of IBS. In addition, City does not argue that this was proper medical evidence, presumably because reports compiled by raters constitute evidence only as to the percentage of the permanent disability based on the factors described, not "evidence as to the existence of the permanent disability described." (Cal. Code Reg., tit. 8, § 10602.) Therefore, we do not consider the DEU rater's testimony as evidence that contradicts the other evidence of IBS injury proffered by both parties at trial.
"[W]hen a party testifies to facts favorable to his own position and any contradictory evidence is within the ability of the opposing party to produce, the latter party's failure to bring forth such evidence will require acceptance of the uncontradicted testimony unless there is some other rational basis for disbelieving it." (Braewood Convalescent Hospital v. Workers' Comp. Appeals Bd. (1983) 34 Cal.3d 159, 167.) We do not find a rational basis for disbelieving either petitioner's testimony or the reports of Drs. Levine and Leoni. Because evidence that petitioner's IBS injury was industrial was uncontradicted at trial, the WCJ's finding of no industrial IBS injury is not based on substantial evidence.
II
Petitioner also challenges the WCJ's apportionment of his fibromyalgia injury. Apportionment is the process of "segregat[ing] the residuals of an industrial injury from those attributable to other industrial injuries, or to nonindustrial factors, in order to fairly allocate the legal responsibility." (Ashley v. Workers' Comp. Appeals Bd. (1995) 37 Cal.App.4th 320, 326; Marsh v. Workers' Comp. Appeals Bd. (2005) 130 Cal.App.4th 906, 911.) An employer is liable for only the percentage of permanent disability directly caused by the injury arising out of and occurring in the course of employment. (§ 4664, subd. (a).)
"Section 4663 provides that apportionment of [permanent disability] shall be based on causation as determined and discussed in the physician's report." (Andersen v. Workers' Comp. Appeals Bd. (2007) 149 Cal.App.4th 1369, 1381.) The report must state "what approximate percentage of the permanent disability was caused by the direct result of injury arising out of and occurring in the course of employment and what approximate percentage of the permanent disability was caused by other factors both before and subsequent to the industrial injury, including prior industrial injuries." (§ 4663, subd. (c).) The mere recitation of a percentage of disability for apportionment without sufficient explanation is inadequate. (Escobedo v. Marshalls, CNA Insurance Co. (2005) 70 Cal.Comp.Cases 604, 620; see also Cal. Code Regs., tit. 8, § 10606, subd. (n).)
If the applicant has received a prior award of permanent disability, it is conclusively presumed that the prior permanent disability exists at the time of any subsequent industrial injury. (§ 4664, subd. (b).) Nonetheless, the employer has the burden of proving overlap between the two injuries in order to establish its right to an apportionment of the employee's permanent disability. (Kopping v. Workers'Comp. Appeals Bd. (2006) 142 Cal.App.4th 1099, 1108-1115.)
As it related to the fibromyalgia injury, the WCJ instructed the DEU rater to apportion 7.75 percent for "pre-existing permanent disability to neck" and 7.75 percent for "pre-existing permanent disability to back" based on Dr. Stoltz's report, and then to apportion 65 percent of the remainder to the injury on October 11, 1995. In her order denying reconsideration, the WCJ explained that because Dr. Levine "deferred to the orthopedic surgeon, Dr. Berman's findings were used in order to prepare the rating instructions."
But Dr. Berman did not discuss fibromyalgia in his report other than to say, "[a]s it relates to issues of fibromyalgia, I must defer to the internal medicine/rheumatologic specialists to address this issue." Dr. Levine did not defer to Dr. Berman with regards to fibromyalgia, but rather deferred to him regarding any orthopedic injuries. Because the WCJ's apportionment figures for fibromyalgia more closely corresponded to Dr. Levine's report, it is likely that she actually based her apportionment instructions on Dr. Levine's report. To the extent the WCJ based the instructions on Dr. Berman's report, they are not based upon substantial evidence.
Even if the WCJ based the instructions on Dr. Levine's report, the additional 15.5 percent apportionment (7.75 percent each for the neck and back injuries) is not supported by substantial evidence. City argues the additional apportionment for the prior stipulated award was proper because evidence adduced at trial showed that fibromyalgia can result from back and neck trauma. Dr. Levine's report addressed the correlation between neck and back trauma and fibromyalgia. Specifically, he explained "[fibromyalgia] usually follows from trauma to the back and neck. This patient had pre-existing back and neck injuries on an industrial basis prior to the injury of October 11, 1995." Based on this evidence, Dr. Levine assigned "25% of the fibromyalgia to the pre-existing injuries that occurred to this patient's neck and back prior to October 11, 1995, 65% to the specific injury of October 11, 1995, and 10% to the subsequent injuries sustained at Alpha Industries."
Petitioner offered his own treating rheumatologist, Dr. Salick, who opined that the fibromyalgia injury could not be apportioned to any of the injuries petitioner sustained before October 11, 1995. Drs. Levine and Salick explained that their apportionment opinions were based on medical evaluations of petitioner and reviews of petitioner's medical history, including his prior disability awards and industrial injuries. Thus, the opinions of Drs. Levine and Salick accounted for petitioner's prior award and supported an apportionment of between zero and 25 percent to petitioner's prior injuries.
City not only concedes but argues that Dr. Levine's report constitutes substantial evidence.
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A review of the entire record shows no evidence to support apportioning 15.5 percent to pre-1995 injuries, in addition to apportioning 25 percent to these same injuries. The WCJ, however, instructed the rater to make this additional apportionment. The WCJ's opinion does not explain how she arrived at the 15.5 percent number other than to say that she relied on Dr. Stoltz's medical report from 1993. However, at the time of Dr. Stoltz's report, petitioner had not been diagnosed with fibromyalgia. Moreover, Dr. Stoltz's report does not reflect an opinion that there should be an apportionment of 7.75 percent for both the neck and the back. The stipulated award reflects that, based on Dr. Stoltz's report, petitioner's overall back disability rated only 8 percent. It is unclear from the record how Dr. Stoltz's report supports an apportionment of 7.75 percent each for neck and back injuries.
Dr. Levine's report incorporated Dr. Stoltz's report in his apportionment of 25 percent to the prior injuries, 65 percent to the October 11, 1995 injury, and 10 percent to subsequent injuries. The record does not provide any basis for an additional 15.5 percent apportionment to injuries that occurred prior to 1995. On matters of scientific knowledge, the board may not impermissibly substitute its judgment for that of a medical expert. (E.L. Yeager Construction v. Workers' Comp. Appeals Bd. (2006) 145 Cal.App.4th 922, 930.) Accordingly, we conclude that the additional 15.5 percent apportionment is not supported by substantial evidence.
III
Petitioner also claims the WCJ should have relied on the opinions of his own treating physicians rather than the opinions of City's qualified medical experts. He argues that his treating physicians had more familiarity with his condition because they had treated him frequently over the course of many years.
In order to constitute substantial evidence, a medical opinion must be predicated on reasonable medical probability. (Andersen, supra, 149 Cal.App.4th at p. 1381.) It is not substantial evidence if it is based on facts no longer germane, on inadequate medical histories or examinations, on incorrect legal theories, or on surmise, speculation, conjecture, or guess. (Rosas v. Workers' Comp. Appeals Bd. (1993) 16 Cal.App.4th 1692, 1702.) Further, the report must set forth the reasoning behind the physician's opinion, not merely his or her conclusions. (Andersen, supra, 149 Cal.App.4th at p. 1381.) The fact that a physician has limited familiarity with the patient's condition as compared to another physician does not render his or her opinion insubstantial medical evidence. We do not hold otherwise.
DISPOSITION
The Board's decision is annulled. City's request for attorney fees and costs is denied. The matter is remanded to the Board for further proceedings consistent with this opinion.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
EPSTEIN, P. J. We concur:
WILLHITE, J.
MANELLA, J.