ADJ11889290 — California WCAB decision

What the panel ordered

Petition for Reconsideration denied by the Workers' Compensation Appeals Board panel.

Petition for Reconsideration filed by Defendants Macy's, Inc. and Sedgwick Claims Management Services, challenging the permanent disability rating assigned by the WCJ.

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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 prevailedneck · back · head · headaches · vision · brain · psyche

The panel found no basis to second-guess the permanent disability rating given by Dr. Shorr and Dr. Garbus, which was supported by substantial medical evidence and proper application of AMA Guides with clinical judgment.

From the decision · page 2In this case, we find no basis to second-guess the opinions of neurologist panel qualified medical examiner Robert Shorr, M.D., and optometrist agreed medical examiner (AME) Carl Garbus, D.O. (See City of Sacramento v. Workers' Comp. Appeals Bd. (Cannon) (2013) 222 Cal.App.4th 1360 [79 Cal.Comp.Cases 1][police officer's plantar fasciitis, manifested only by his subjective experience of pain, fell into the Almaraz-Guzman category of cases wherein the AMA Guides call for the physician's exercise of clinical judgment to assess the impairment most accurately]. For the reasons stated by the WCJ in the Report, we agree that the opinions Dr. Shorr and Dr. Garbus are substantial medical evidence upon which he properly relied. (See Power v. Workers' Comp. Appeals Bd. (1986) 179 Cal.App.3d 775, 782 [51 Cal.Comp.Cases 114].)

The facts that decided it

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

No prism glasses were provided to the applicant four years after injury, so reducing the permanent disability rating based on prism correction was speculative.

Favours Applicant prevailed

This fact supported the panel's rejection of defendants' argument to reduce the rating and upheld the 15% WPI rating for PTVS.

From the decision · page 5The court has considered the Defendants position with respect to the issue of P.D. for the Cranial Nerves (PTVS- Post Traumatic Visual Syndrome) The court is rejecting the Defendants argument for various reasons, first, at the time of trial, approximately 4 years after the date of injury, no "prism" lenses had been provided to the Applicant, let alone tested to insure their efficacy. Therefore, to reduce the P.D. would be speculative. Further, the disability provided by the QME was the equivalent of an Almarez-Guzman rating, even if not defined as such, since there is no AMA guide for the cranial nerves effecting the eyes and or eye perception. Dr. Shorr referred to the problem as a P.T.V.S.- Post Traumatic Visual Syndrome. It wasn't singularly defined as double vision which may speculatively have been corrected by prism glasses. Further, whether the eye acuity should have been classified as a Class I or a Class II, assumes that was the only issue as well. It was not, therefore this court believes that when considering all the effects of the P.T.V.S. Dr. Shorr purposefully used the Class II, basically as the Almarez-Guzman equivalent to encompass the applicants entire Syndrome. Further a Class II includes an acuity of 20/60 or better. So it would also include a Class I acuity, but it not limited to a Class I. Again, acuity was not the only concern.

The permanent disability rating for Post Traumatic Visual Syndrome was based on analogy to AMA Guides using Class II impairment to encompass multiple symptoms beyond visual acuity.

Favours Applicant prevailed

This fact justified the panel's acceptance of the rating method and rejection of defendants' narrower Class I argument.

From the decision · page 6"Regarding the claimant's post-traumatic visual syndrome, I am referring to page 330, § 13.4c, cranial nerves III, IV and VI, the oculomotor, trochlear, and abducens nerves. There are no rating guides other than rating by analogy and AMA guides advise using the impairment rating based on visual acuity loss in Chapter 12, pages 284-285. If diplopia exists, this also would be based on well- documented individualized considerations as discussed Chapter 12. Referring to Table 12-4 on page 285 and 12-10 on pages 298, the claimant would be considered a Class II, which allows for a 10-29% impairment of the whole person for visual acuity as she does have near normal vision. Taking into consideration that the claimant has diplopia when not corrected, whole-person impairment would be calculated per Table 12-10 to be 15% impairment of the whole person without corrective lenses. If the claimant were to have corrective lenses with prisms, she would fall into a Class I, which is 0-9% impairment of the whole person."

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.

QMERelied upon · Neurologist

Dr. Shorr assigned a 15% whole person impairment (WPI) rating for Post Traumatic Visual Syndrome (PTVS) using analogy to AMA Guides, Class II impairment, considering multiple symptoms beyond visual acuity, and explained that corrective prism lenses might reduce impairment to Class I but were not provided.

Dr. Shorr's rating was upheld as substantial medical evidence and properly applied clinical judgment in the absence of prism glasses.

From the decision · page 2In this case, we find no basis to second-guess the opinions of neurologist panel qualified medical examiner Robert Shorr, M.D., and optometrist agreed medical examiner (AME) Carl Garbus, D.O. (See City of Sacramento v. Workers' Comp. Appeals Bd. (Cannon) (2013) 222 Cal.App.4th 1360 [79 Cal.Comp.Cases 1][police officer's plantar fasciitis, manifested only by his subjective experience of pain, fell into the Almaraz-Guzman category of cases wherein the AMA Guides call for the physician's exercise of clinical judgment to assess the impairment most accurately]. For the reasons stated by the WCJ in the Report, we agree that the opinions Dr. Shorr and Dr. Garbus are substantial medical evidence upon which he properly relied. (See Power v. Workers' Comp. Appeals Bd. (1986) 179 Cal.App.3d 775, 782 [51 Cal.Comp.Cases 114].)

AMERelied upon · Optometrist

Dr. Garbus confirmed the diagnosis of Post Traumatic Visual Syndrome and explained that AMA Guides do not address vision conditions beyond visual acuity and visual field loss, supporting the broader rating approach.

Dr. Garbus's opinion supported the broader interpretation of PTVS symptoms beyond visual acuity, which was credited by the WCJ and panel.

From the decision · page 2In this case, we find no basis to second-guess the opinions of neurologist panel qualified medical examiner Robert Shorr, M.D., and optometrist agreed medical examiner (AME) Carl Garbus, D.O. (See City of Sacramento v. Workers' Comp. Appeals Bd. (Cannon) (2013) 222 Cal.App.4th 1360 [79 Cal.Comp.Cases 1][police officer's plantar fasciitis, manifested only by his subjective experience of pain, fell into the Almaraz-Guzman category of cases wherein the AMA Guides call for the physician's exercise of clinical judgment to assess the impairment most accurately]. For the reasons stated by the WCJ in the Report, we agree that the opinions Dr. Shorr and Dr. Garbus are substantial medical evidence upon which he properly relied. (See Power v. Workers' Comp. Appeals Bd. (1986) 179 Cal.App.3d 775, 782 [51 Cal.Comp.Cases 114].)

The rules the panel named

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

Milpitas Unified School Dist. v. Workers' Comp. Appeals Bd. (Almaraz-Guzman III) (2010) 187 Cal.App.4th 808

Scheduled rating is prima facie evidence of permanent disability but rebuttable by showing a more accurate impairment assessment method under AMA Guides.

The panel applied this standard to evaluate the permanent disability rating and the use of AMA Guides with clinical judgment.

From the decision · page 1Pursuant to Labor Code section 4660.1(d), the scheduled rating is prima facie evidence of an employee's permanent disability. However, the scheduled rating is rebuttable. (Milpitas Unified School Dist. v. Workers' Comp. Appeals Bd. (Almaraz-Guzman III) (2010) 187 Cal.App.4th 808 [75 Cal.Comp.Cases 837, 852§ 853].) Specifically, the Whole Person Impairment (WPI) portion of the scheduled rating may be rebutted by showing that "a different chapter, table, or method of assessing impairment of the AMA Guides more accurately reflects the injured employee's impairment than the chapter, table, or method used by the physician being challenged." (Almaraz v. Environmental Recovery Services/Guzman v. Milpitas Unified School Dist. (Almaraz-Guzman II) (2009) 74 Cal.Comp.Cases 1084, 1106 (Appeals Board en banc).) Physicians must still evaluate permanent impairment while staying within the "four comers of the Guides" pursuant to the Labor Code. (Id. at p. 1101.)

Almaraz v. Environmental Recovery Services/Guzman v. Milpitas Unified School Dist. (Almaraz-Guzman II) (2009) 74 Cal.Comp.Cases 1084 (Appeals Board en banc)

AMA Guides allow physician's clinical judgment and experience to assess whole person impairment beyond rigid application of tables.

The panel relied on this standard to uphold the physician's use of clinical judgment in rating impairment for PTVS.

From the decision · page 2... while the AMA Guides often sets forth an analytical framework and methods for a physician in assessing WPI, the Guides does not relegate a physician to the role of taking a few objective measurements and then mechanically and uncritically assigning a WPI that is based on a rigid and standardized protocol and that is devoid of any clinical judgment. Instead, the AMA Guides expressly contemplates that a physician will use his or her judgment, experience, training, and skill in assessing WPI. (Almaraz-Guzman II, supra, at pp. 1103§ 1104.)

What proof carried it

The evidence the panel weighed, by kind.

Medical recordsfavours Applicant prevailed

Applicant had multiple symptoms of Post Traumatic Visual Syndrome including visual midline shift, vertical heterophoria, dizziness, abnormal balance, abnormal visual evoked response, photosensitivity, and tilted optic nerves.

From the decision · page 5P.T.V.S. is more clearly explained in the AME report of Dr. Garbus, (Exhibit G). Dr. Garbus clearly explains that the AMA Guides do not address the vision conditions outside of visual acuity and visual field loss. The Applicant clearly had multiple symptoms of P.T.V.S., including but not limited to Visual Midline Shift, vertical heterophoria that decompensates to double vision, dizziness/disorientation, abnormal balance/unsteady gait, abnormal visual evoked response, visual discomfort/photosensitivity and tilted optic nerves.

treatment coursefavours Applicant prevailed

No prism glasses were provided to the applicant four years post-injury, making any reduction in permanent disability rating speculative.

From the decision · page 5The court has considered the Defendants position with respect to the issue of P.D. for the Cranial Nerves (PTVS- Post Traumatic Visual Syndrome) The court is rejecting the Defendants argument for various reasons, first, at the time of trial, approximately 4 years after the date of injury, no "prism" lenses had been provided to the Applicant, let alone tested to insure their efficacy. Therefore, to reduce the P.D. would be speculative. Further, the disability provided by the QME was the equivalent of an Almarez-Guzman rating, even if not defined as such, since there is no AMA guide for the cranial nerves effecting the eyes and or eye perception. Dr. Shorr referred to the problem as a P.T.V.S.- Post Traumatic Visual Syndrome. It wasn't singularly defined as double vision which may speculatively have been corrected by prism glasses. Further, whether the eye acuity should have been classified as a Class I or a Class II, assumes that was the only issue as well. It was not, therefore this court believes that when considering all the effects of the P.T.V.S. Dr. Shorr purposefully used the Class II, basically as the Almarez-Guzman equivalent to encompass the applicants entire Syndrome. Further a Class II includes an acuity of 20/60 or better. So it would also include a Class I acuity, but it not limited to a Class I. Again, acuity was not the only concern.

ADJ11889290 · July 19, 2021