«

»

Jun 16 2015

Applicant Sustains Heart Attack during Defendant-authorized Back Surgery

Barrero V. Knudsen Dairy Corporation (BPD) (ADJ 3855232):

 

Applicant sustained industrial injury on March 31, 1975 causing 240 weeks of temporary disability, 89 ¾% permanent disability and need for future medical treatment. The award issued November 13, 1991.

 

On October 26, 2012, a findings and award and order issued that applicant’s CIDP and intravenous immungoglobulin treatment were a compensable consequence of his industrial ay 21, injury. Applicant, in Pro per, and defendant file petitions for reconsideration, and on M2013 the WCAB rescinded the order and return the matter to the WCJ for the parties to obtain medical opinion addressing industrial causation of the CIDP treatment.

 

 

On May 23 2013, applicant had a severe heart attack during back surgery authorized by defendant as part of the prior award for medical treatment.

 

In a report dated October 28, 2013, Dr. Orfuss opined that applicant CIDP did not arise from the industrial injury or multiple back surgeries. The physician agreed the treatment for the CDIP  was needed, but deferred causation to the trier fact considering all testing indicates chronic CDIP would not be attributed to the industrial injury or residuals of the surgery.

 

Dr. Alpern indicated the applicant’s heart disease is a combination of his long-standing hypertension and stress with the back surgeries. The physician explained the applicant had no evidence of heart disease until the back surgery, which was precipitating stress. The physician’s deposition was taken and he did not change his opinions.

 

The WCJ issued a decision finding that the applicant did not sustain his burden of proving that the CIPD was a compensable consequence of his industrial injury. The WCJ further found that the WCAB has jurisdiction to enforce the award of medical treatment more than five years from the date of injury even though no petition for new and further disability was filed. The WCJ ruled that he had jurisdiction to amend the findings and award of November 13, 1991 by allowing medical treatment for a cardiovascular injury, even though was more than five years from the date of injury.

 

Both sides file petitions for reconsideration.

 

The applicant’s petition for reconsideration  from the fact that he failed to meet his burden of proof that the CDIP was a compensable consequence of his industrial injury, defendant had voluntarily authorized benefits and the applicant claimed more than five years from the date of injury occurred and the finding on the CIDP was being rescinded. The WCAB denied applicants petition for reconsideration indicating there was substantial evidence to support the judge’s finding that the CIDP was not a compensable consequence of his industrial injury, voluntary provision of benefits is not necessarily an admission of future liability and the order was timely appealed and was never final therefore the board had continuing jurisdiction over the prior award on the issue of CIDP.

 

The defendant contended the award is limited to industrial injury and treatment for the back, psych and urological system and that the WCJ’s findings amended the award by adding cardiovascular injury as a new body part. Defendants contended the WCJ lacked jurisdiction to amend the award more than five years from the date of injury pursuant to Labor Code §§ 5410, 5803 and 5804 and the case of Nicholsberg.

 

The WCAB concluded that it has continuing over all its orders, decisions and awards pursuant to Labor Code § 5803. The WCAB’s authority to enforce the order, decision or award under section 5803, including ancillary proceedings involving commutation and penalty, is different from the continuing jurisdiction to alter or amend the order, decision or award by benefit argumentation limited by sections 5804 and 5410. (Barnes 65 CCC 780) (No jurisdiction to terminate lifetime medical award based on petition filed more than five years from the date of injury).

 

The WCAB agreed with the WCJ that the finding applicant’s heart attack or cardiovascular injury and require treatment or a compensable consequence of the industrial injury and his enforcement of medical treatment under the 1991 award and Labor Code 5803. Enforcement of the medical portion of the Award is not an amendment of the disability portion of the award, which is prohibited more than five years from the date of injury by sections 5410 and 5804 and the case of Nicholsberg.

 

Treatment of the applicant’s heart attack and resulting cardiovascular damage is within the scope of the award of medical treatment under the 1991 award in Labor Code section 4600. Dr. Alpern reported that applicant’s heart attack was caused in part by the back surgery, which was authorized by defendant under the award. It is well settled that injuries during treatment of the industrial injury are compensable consequences of the industrial injury. Even treatment for a non-industrial condition may be compensable if necessary for treatment of the industrial injury. Therefore, treatment of the applicant’s heart attack and resulting cardiovascular damage resulting from authorized back surgeries a compensable consequence of the industrial injury.

 

The board concluded that the WCJ’s findings more than five years from the date of injury, which established treatment for applicant’s cardiac condition as a compensable consequence of the industrial injury, was enforcement of the medical portion of the award under Labor Code § 5803. Temporary or permanent disability indemnity is oddly included in the WCJ’s findings. Enforcement of the medical portion of the award under 5803 is not an amendment of the award more than five years from the date of injury, which is prohibited unless a petition is filed within five years of the date of injury pursuant to sections 5410 and 5804.

 

Defendants also contended that the physician’s opinion was not substantial evidence. The WCAB concluded that the medical report relied on by the WCJ was substantial evidence to support the award.

 

Further, the WCAB noted to the extent applicants need for cardiovascular treatment stems from the heart attack during the industrial back surgery, the treatment may not be apportioned to nonindustrial causes. (Granato 33 CCC 647).

 

The WCJ firm the award and amended it to indicate the applicant had sustained his burden of proof that the injury to his cardiovascular system was a compensable consequence of his industrial work injuries. This requires medical treatment on an industrial basis.

Leave a Reply

Your email address will not be published. Required fields are marked *

You may use these HTML tags and attributes: <a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <s> <strike> <strong>