The WCJ found compensable injuries with specific WPI ratings but deferred psychiatric injury rating and other issues.
Favours Applicant prevailed
This formed the basis for the Petition for Reconsideration and further review.
From the decision · page 1Applicant seeks reconsideration of the March 17, 2025 Findings, Award, Order issued by
the workers' compensation administrative law judge (WCJ). Therein, the WCJ found that
applicant sustained injury to his left ankle, lumbar spine, right hip and psyche as a compensable
consequence arising out of and in the course of his employment; that applicant sustained injury as
a compensable consequence to the right hip based on the report of agreed medical evaluator
(AME) William Campbell, D.O., dated July 22, 2020; that based on Dr. Campbell's opinion,
before adjustment for age and occupation, there is 20% WPI to the lower left extremity, 9% WPI
to the lower left extremity due to scarring and tenderness, 8% WPI for the lumbar spine, and 3%
WPI for the right hip; that the record requires further development of the record on whether
applicant is entitled to a rating for psychiatric injury; and that the vocational reporting by Diaz and
Company dated January 12, 2024 (Exhibit 3) does NOT rebut the standard ratings under the AMA
Guides, 5th Edition and the Permanent Disability Ratings Schedule (AMA Guides). The WCJ
deferred all other issues.
Vocational expert's opinion that Applicant has 100% loss of labor market access due to synergistic disabling limitations.
Favours Applicant prevailed
Supports Applicant's contention that the AMA Guides rating is rebutted and total disability should be found.
From the decision · page 6"When considering the applicant's individualized work history,
the results of the transferrable skills analysis, the medical
opinions, impairments, and the synergetic (additive) effect of the
labor disabling functional limitations as set forth by Drs.
Campbell, Currey, Harvey, Hughes, and Mitchell,
accommodations may be available to the applicant in the
competitive open labor market, and the applicant's amenableness
to vocational rehabilitation, I come to the vocational opinion that
the applicant, in all vocational probability, has incurred a one
hundred percent (100%) loss of labor market access." (Ex. 3 at
35.)
Psychiatric QME found anxiety and dysthymia attributable to injury but no labor disabling psychiatric treatment or preclusions.
Favours neutral
Affects the evaluation of psychiatric injury rating and vocational rehabilitation potential.
From the decision · page 4Applicant also obtained a QME for psychiatric injury, Dr. Roy Curry. Dr.
Curry found that Applicant suffers from anxiety disorder and dysthymia
predominantly attributable to his injury. However, causation was at issue as it
appears that at the time of the injury, Applicant had worked for the employer for
less than six months, one of the requirements for compensability under the Labor
Code. Dr. Curry discussed exceptions to the six-month rule, including whether the
injury could be regarded as sudden and violent or whether the prolonged nature and
course of the claim should render it compensable. By all accounts, Dr. Curry stated
that Applicant was cooperative and friendly but frustrated and, though he was not
focused in school and did not graduate from high school, Applicant has a good
family support system and has worked in his father's businesses. (Ex. 8 at 49-50.)
Surveillance video showed Applicant active and not appearing depressed, contradicting vocational expert's conclusion of non-amenability to rehabilitation.
Favours Defendant prevailed
Challenges the vocational expert's opinion and supports further review.
From the decision · page 5Dr. Curry issued a second report dated 06-19-2023, admitted as exhibit 11.
Therein, the QME reviewed additional records, including the functional capacity
evaluation of 12-12-2022, which is exhibit 2, and surveillance video taken in 2021.
(Ex. 11 at 9-10.) Regarding the surveillance, Dr. Curry noted Applicant was smiling
and happy and "One would not consider him to be depressed." (Id. at 10.) Dr. Curry
describes Applicant in the surveillance film as "a busy man doing tasks mostly
around the house, around the yard and with his pets, but he has limitations and
restrictions and pain, and an antalgic gait." (Id. at 11.) Dr. Curry reports new activity
including recycling for extra money and the QME states that there are new right
shoulder complaints, but the right shoulder is not part of this claim. (Id. at 11.)
Though Applicant has considered returning to school, he "was not motivated and
has not had psychiatric treatment." (Id.) Dr. Curry did not change his opinion on the
disability rating or apportionment.