ADJ10800441 — California WCAB decision

What the panel ordered

Petition for Reconsideration granted in part; permanent disability rating amended to 87% excluding skin cancer; skin cancer injury deferred as separate claim.

Applicant seeks reconsideration of a WCJ's Findings and Award of November 22, 2021, regarding permanent disability rating and combination method.

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What was disputed, and how it came out

Each issue the panel decided, with the reasoning it gave. An outcome is what this panel did on this record — not a rule, and not a prediction.

Permanent disability ratingApplicant prevailedknees · lumbar spine · cervical spine · wrists · ears

The WCAB affirmed the WCJ's use of the Combined Values Chart to combine orthopedic and hearing loss disabilities, rejecting the applicant's argument to add the values, based on expert opinions and legal precedent.

From the decision · page 1Applicant seeks reconsideration of a workers' compensation administrative law judge's (WCJ) Findings and Award of November 22, 2021 wherein it was found that, while employed during a cumulative period ending on October 28, 2016 as a correctional officer, applicant sustained industrial injury to his knees, lumbar spine, cervical spine, wrists, ears (in the form of hearing loss) and in the form of skin cancer, but not to the shoulders, hips, elbows or heart, causing permanent disability of 90%. In finding permanent disability of 90%, it was found that applicant sustained 85% orthopedic disability, 23% skin disability and 17% hearing disability. These disabilities were combined utilizing the Combined Values Chart in the 2005 Schedule for Rating Permanent Disabilities. (2005 Schedule for Rating Permanent Disabilities at pp. 8-1 § 8-4.)

The facts that decided it

What the panel treated as outcome-determinative, and which side it favoured.

Expert medical opinions found no synergistic effect or overlap between orthopedic, hearing loss, and skin cancer impairments.

Favours Applicant prevailed

Supported the use of the Combined Values Chart rather than adding impairments, affecting the permanent disability rating outcome.

From the decision · page 7Based on Dr. Renbaum's opinions, the record supports adding the right knee with the left knee and adding the right wrist with the left wrist when combining disabilities for the purposes of determining permanent disability. This is consistent with the agreement by the parties. Dr. Renbaum is the AME, and his findings are better reasoned and more persuasive than the QME report[] by Dr. Shear.... The opinions of Dr. Renbaum do not support the application of Kite to the other impairments. The remaining impairments should be combined using the Combined Values Chart.

Expert opinion by Dr. Shear that skin cancer is a separate injury with separate causation.

Favours Applicant prevailed

Led to deferral of the skin cancer injury as a separate claim, affecting the scope of the award.

From the decision · page 2a separate injury, in accordance with the opinion of panel qualified medical evaluator dermatologist Stuart Shear, M.D.

Applicant sustained cumulative trauma injuries to knees, lumbar spine, cervical spine, wrists, ears, and skin (skin cancer).

Favours Applicant prevailed

These injuries formed the basis for the permanent disability rating and the dispute over combination method.

From the decision · page 1Applicant seeks reconsideration of a workers' compensation administrative law judge's (WCJ) Findings and Award of November 22, 2021 wherein it was found that, while employed during a cumulative period ending on October 28, 2016 as a correctional officer, applicant sustained industrial injury to his knees, lumbar spine, cervical spine, wrists, ears (in the form of hearing loss) and in the form of skin cancer, but not to the shoulders, hips, elbows or heart, causing permanent disability of 90%. In finding permanent disability of 90%, it was found that applicant sustained 85% orthopedic disability, 23% skin disability and 17% hearing disability. These disabilities were combined utilizing the Combined Values Chart in the 2005 Schedule for Rating Permanent Disabilities. (2005 Schedule for Rating Permanent Disabilities at pp. 8-1 § 8-4.)

What the panel did with the medical opinions

The role the physician served, and the weight the opinion carried. Physicians are named here as the decision names them; we do not score them.

AMERelied upon · Orthopedic Surgery

Supports adding right knee with left knee and right wrist with left wrist for permanent disability; opposes adding other impairments; finds no overlap between orthopedic, internal, hearing, or cancer issues; supports use of Combined Values Chart for remaining impairments.

His findings are better reasoned and more persuasive than the QME report by Dr. Shear; does not support application of Kite to other impairments.

From the decision · page 6Orthopedic surgeon and AME, Dr. Renbaum was deposed on September 23, 2019. He testified in pertinent part as follows: He adds disabilities according to the Kite decision when there are bilateral disabilities like both knees. Without further information, he would not apply Kite unless there is a bilateral condition. He agreed that there could be overlap between the lumbar spine and knees based on potential lift restrictions affecting both. He applies Kite when there is bilateral impairment such as a knee and a knee, or a shoulder and a shoulder. (Joint Exhibit GG)

QMERelied upon · Otolaryngology

Finds no overlap or synergy between hearing and orthopedic impairments; supports use of Combined Values Chart; opines applicant is not totally disabled; believes adding impairments is not a more accurate assessment; acknowledges Combined Values Chart reduces hearing impairment impact but follows it as mandated.

His opinions do not support adding disabilities by simple addition; finds no synergistic effect between hearing loss, orthopedic injuries, and skin cancer.

QMERelied upon · Dermatology

Opines skin cancer should be treated as a separate cumulative trauma claim; finds causation for skin cancer separate from orthopedic and hearing loss injuries.

His expert opinion supports deferring the skin cancer injury as a separate claim due to separate causation.

From the decision · page 2a separate injury, in accordance with the opinion of panel qualified medical evaluator dermatologist Stuart Shear, M.D.

The rules the panel named

Authorities as the decision cited them, with how this panel applied each one.

Athens Administrators v. Workers' Comp. Appeals Bd. (Kite) (2013) 78 Cal.Comp.Cases 213 (writ den.)

Use of the Combined Values Chart for combining permanent disabilities unless substantial medical evidence supports adding impairments as more accurate.

Applied to reject applicant's argument to add orthopedic and hearing loss disabilities rather than combine.

From the decision · page 2In Athens Administrators v. Workers' Comp. Appeals Bd. (Kite) (2013) 78 Cal.Comp.Cases 213 (writ den.), we held that adding, rather than combining, two different impairments better reflected a worker's impairment when substantial medical evidence supported the notion that the two impairments in effect combined and the resultant impairment was more than the sum of the two impairments. In Kite, the evaluator explained why the disparate impairments were not actually disparate, and the impairments in question were all under the physician's expertise. In contrast, to the extent panel qualified medical evaluator otolaryngologist Michael Kearns, M.D. is even recommending that the hearing loss permanent disability be added to the orthopedic permanent

Pasquotto v. Hayward Lumber (2006) 71 Cal.Comp.Cases 223, 229

Granting reconsideration reopens the whole subject matter for further consideration, including issues not raised in the petition.

Applied to defer the issue of skin cancer injury as a separate claim.

From the decision · page 31 Although applicant did not directly raise this issue in his Petition for Reconsideration, it is raised indirectly by the statement that "Dr. Shear was of the opinion the skin impairment should be a stand-alone CT claim" (Petition at p. 11) and "applicant would be better off with 2 separate cumulative trauma claims [if we do not find permanent total disability by adding all of the permanent disabilities.]" (Petition at p. 12.) In any case, "it is settled law that a grant of reconsideration has the effect of causing `the whole subject matter [to be] reopened for further consideration and determination' (Great Western Power Co. v. Industrial Acc. Com. (Savercool) (1923) 191 Cal. 724, 729 [10 I.A.C. 322]) and of `[throwing] the entire record open for review.' (State Comp. Ins. Fund v. Industrial Acc. Com. (George) (1954) 125 Cal.App.2d 201, 203 [19 Cal.Comp.Cases 98].) Thus, once reconsideration has been granted, the Appeals Board has the full power to make new and different findings on issues presented for determination at the trial level, even with respect to issues not raised in the petition for reconsideration before it. [Citations.]" (Pasquotto v. Hayward Lumber (2006) 71 Cal.Comp.Cases 223, 229, fn. 7 [Appeals Bd. en banc].)

ADJ10800441 · February 7, 2022

What the panel ordered

What was disputed, and how it came out

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The facts that decided it

What the panel did with the medical opinions

The rules the panel named

What proof carried it

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