ADJ1201899 — California WCAB decision

What the panel ordered

WCAB affirmed WCJ's decision of 100% permanent and total disability, deferred issue of indemnity rate for permanent partial disability, and ordered further medical treatment

Petition for Reconsideration granted; WCJ decision of November 7, 2022 affirmed with amendments

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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.

AOE/COEApplicant prevailedright ankle · right knee · right hip

Dr. Cheng's medical report constituted substantial evidence supporting injury to the right ankle, knee, and hip.

From the decision · page 8Dr. Ernest Cheng ("Dr. Cheng") was utilized as PQME in orthopedic medicine. He reviewed extensive medical reports and obtained a complete history of the applicant. He diagnosed chronic right knee, ankle and hip; chronic lumbar radiculopathy; bilateral carpal tunnel syndrome; bilateral rotator cuff tear; traumatic brain injury; seizure disorder; right trigeminal nerve injury; dental injury and chronic tinnitus. Future medical care consisted of physician office visits, pain medications and periodic injections. He indicated that "given the multiple other body systems involved, it is quite possible that as a whole she is totally permanently disabled." (Ex. 102, pg. 28). Dr. Cheng found injury to right knee, right hip, and right ankle. Dr. Cheng's medical reporting constitutes substantial medical evidence.

The facts that decided it

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

Applicant sustained injury to multiple body parts including neck, back, shoulders, right lower extremity, psyche, cognitive disorder, head, face, diet, right hip, right ankle, and right knee

Favours Applicant prevailed

Extensive injuries supported the finding of permanent total disability

From the decision · page 11. the applicant, while employed on May 4, 2007, as a human resources manager, by D.R. Horton, insured by XL Workers Compensation, adjusted by

Vocational Expert Scott Simon's report found applicant unable to be vocationally rehabilitated and 100% disabled

Favours Applicant prevailed

Report was persuasive and consistent with medical evidence and testimony, supporting permanent total disability

Medical reports from multiple QME and AME physicians diagnosed extensive injuries and impairments

Favours Applicant prevailed

Medical evidence constituted substantial evidence supporting disability and injury to right ankle, knee, and hip

From the decision · page 8Neurology PQME Dr. Robert Shorr in his March 5, 2020 medical report (Ex. 106) was of the opinion that given the multiple impairments the applicant was likely not employable. (Ex. 106, pg. 37). Dr. Shorr reviewed extensive medical reports and obtained a complete history of the applicant. He diagnosed her with traumatic brain injury and right orbital fracture; posttraumatic head syndrome with balance issues, posttraumatic visual syndrome, cognitive deficits and bilateral median neuropathy at the wrists. He commented in the vocational rehabilitation part of the report that she was "unable to compete in the open labor market and would be considered 100% disabled". (Ex 106, pg. 40) Dr. Shorr's medical reporting constitutes substantial medical evidence.

Applicant was declared permanent and stationary on January 12, 2019; last temporary disability payment was May 29, 2009

Favours Applicant prevailed

Determined start date for permanent total disability benefits as May 30, 2009

From the decision · page 10The applicant asserts the permanent and stationary date is May 30, 2009. Labor Code 4650(b)(1) "...when an award of permanent disability indemnity is made, the amount then due shall be calculated from the last date for which temporary disability indemnity was paid, or the date the employee's disability became permanent and stationary, whichever is earlier." the applicant was declared permanent and stationary on January 12, 2019. The last date of which she received temporary disability benefits was May 29, 2009, following the 104-week cap. Therefore, the start date of permanent total disability benefits is May 30, 2009.

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 · Neurology

Applicant is likely not employable and 100% disabled due to multiple impairments including traumatic brain injury and seizures.

Dr. Shorr's medical reporting constitutes substantial medical evidence supporting permanent total disability.

From the decision · page 4Neurology QME Dr. Shorr was of the opinion that "[g]iven the claimant's multiple impairments, she likely is not employable" by analogy the applicant is 100% permanently disabled. (Ex 106, pg. 37) It is also noted that Dr. Shorr was of the opinion that the applicant "...did have seizures following the head injury.." the applicant required future medical care in regards to her seizures. (Ex 106, pg. 40) Notwithstanding the non-industrial apportionment, the Applicant is found to be permanent and totally disability. The finding was based on the entire record including the medical reports, testimony of the applicant and Vocational Expert reporting of Scott Simon.

QMERelied upon · Orthopedic Medicine

Diagnosed chronic right knee, ankle, hip injuries and multiple other impairments; opined applicant likely totally permanently disabled.

Dr. Cheng's medical report constitutes substantial medical evidence supporting injury and disability.

From the decision · page 8Dr. Ernest Cheng ("Dr. Cheng") was utilized as PQME in orthopedic medicine. He reviewed extensive medical reports and obtained a complete history of the applicant. He diagnosed chronic right knee, ankle and hip; chronic lumbar radiculopathy; bilateral carpal tunnel syndrome; bilateral rotator cuff tear; traumatic brain injury; seizure disorder; right trigeminal nerve injury; dental injury and chronic tinnitus. Future medical care consisted of physician office visits, pain medications and periodic injections. He indicated that "given the multiple other body systems involved, it is quite possible that as a whole she is totally permanently disabled." (Ex. 102, pg. 28). Dr. Cheng found injury to right knee, right hip, and right ankle. Dr. Cheng's medical reporting constitutes substantial medical evidence.

QMERelied upon · Ophthalmic

Reported significant facial injuries requiring orbital floor implant and vision problems including diplopia.

Dr. Sami's medical report constitutes substantial medical evidence supporting injury.

From the decision · page 8the applicant's injuries were quite extensive. Ophthalmic QME Dr. David Sami stated that the applicant had significant facial injuries, which required an orbital floor implant. She had problems with her vision including persistent diplopia. Neuropsychologist AME Dr. Claude S. Munday diagnosed the applicant with depressive disorder, anxiety disorder with post-traumatic stress features, cognitive disorder due to mild traumatic brain injury, and psychological stressors including concussion. (Ex 115, pg. 23) Dental QME Dr. Greg Goddard also diagnosed her with chronic pain from her treating physician Dr. Peter Abaci and TMJ, broken teeth, facial deformity right maxilla, trigeminal neuralgia, and right maxillary division. (Ex. 116, pg. 51). ENT QME Dr. Joel Ross diagnosed tinnitus. (Ex. 117) Dr. Peter Abaci, Dr. Claude S. Munday, Dr. Greg Goddard, and Dr. David Sami medical reports constitute substantial medical evidence.

AMERelied upon · Neuropsychologist

Diagnosed depressive disorder, anxiety disorder with PTSD features, cognitive disorder due to mild traumatic brain injury, and psychological stressors including concussion.

Dr. Munday's medical report constitutes substantial medical evidence supporting injury.

From the decision · page 8the applicant's injuries were quite extensive. Ophthalmic QME Dr. David Sami stated that the applicant had significant facial injuries, which required an orbital floor implant. She had problems with her vision including persistent diplopia. Neuropsychologist AME Dr. Claude S. Munday diagnosed the applicant with depressive disorder, anxiety disorder with post-traumatic stress features, cognitive disorder due to mild traumatic brain injury, and psychological stressors including concussion. (Ex 115, pg. 23) Dental QME Dr. Greg Goddard also diagnosed her with chronic pain from her treating physician Dr. Peter Abaci and TMJ, broken teeth, facial deformity right maxilla, trigeminal neuralgia, and right maxillary division. (Ex. 116, pg. 51). ENT QME Dr. Joel Ross diagnosed tinnitus. (Ex. 117) Dr. Peter Abaci, Dr. Claude S. Munday, Dr. Greg Goddard, and Dr. David Sami medical reports constitute substantial medical evidence.

QMERelied upon · Dental

Diagnosed chronic pain, TMJ, broken teeth, facial deformity, trigeminal neuralgia, and right maxillary division injury.

Dr. Goddard's medical report constitutes substantial medical evidence supporting injury.

From the decision · page 8the applicant's injuries were quite extensive. Ophthalmic QME Dr. David Sami stated that the applicant had significant facial injuries, which required an orbital floor implant. She had problems with her vision including persistent diplopia. Neuropsychologist AME Dr. Claude S. Munday diagnosed the applicant with depressive disorder, anxiety disorder with post-traumatic stress features, cognitive disorder due to mild traumatic brain injury, and psychological stressors including concussion. (Ex 115, pg. 23) Dental QME Dr. Greg Goddard also diagnosed her with chronic pain from her treating physician Dr. Peter Abaci and TMJ, broken teeth, facial deformity right maxilla, trigeminal neuralgia, and right maxillary division. (Ex. 116, pg. 51). ENT QME Dr. Joel Ross diagnosed tinnitus. (Ex. 117) Dr. Peter Abaci, Dr. Claude S. Munday, Dr. Greg Goddard, and Dr. David Sami medical reports constitute substantial medical evidence.

QMERelied upon · ENT

Diagnosed tinnitus.

Dr. Ross's medical report constitutes substantial medical evidence supporting injury.

From the decision · page 8the applicant's injuries were quite extensive. Ophthalmic QME Dr. David Sami stated that the applicant had significant facial injuries, which required an orbital floor implant. She had problems with her vision including persistent diplopia. Neuropsychologist AME Dr. Claude S. Munday diagnosed the applicant with depressive disorder, anxiety disorder with post-traumatic stress features, cognitive disorder due to mild traumatic brain injury, and psychological stressors including concussion. (Ex 115, pg. 23) Dental QME Dr. Greg Goddard also diagnosed her with chronic pain from her treating physician Dr. Peter Abaci and TMJ, broken teeth, facial deformity right maxilla, trigeminal neuralgia, and right maxillary division. (Ex. 116, pg. 51). ENT QME Dr. Joel Ross diagnosed tinnitus. (Ex. 117) Dr. Peter Abaci, Dr. Claude S. Munday, Dr. Greg Goddard, and Dr. David Sami medical reports constitute substantial medical evidence.

PTPRelied upon

Diagnosed chronic pain syndrome; supported vocational expert's opinion on inability to work due to pain and impairments.

Dr. Abaci's diagnosis and reports support the finding of permanent total disability.

The rules the panel named

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

Labor Code Section 4660.1(d); LeBouef v Workers' Comp. Appeals Bd. (1983) 34 Cal.3d 234; Contra Costa County v. Workers' Comp. Appeals Bd. (Dahl) (2015) 240 Cal.App.4th 746

Scheduled rating is prima facie evidence of permanent disability but can be rebutted by showing diminished future earning capacity due to work-related injury

Applied to determine if applicant's vocational report and medical evidence rebut the scheduled rating

From the decision · page 9Labor Code § 4660.1(d) provides that the scheduled rating is prima facie evidence of an employee's permanent disability. A scheduled rating "is effectively rebutted...when the injury to the employee impairs his or her rehabilitation, and for that reason, the employee's diminished future earning capacity is greater than reflected in the employee's scheduled rating." (LeBouef v Workers' Comp. Appeals Bd. (1983) 34 Cal.3d 234)

Liberty Mutual Ins. Co. v. IAC (Serafin) (1948) 33 Cal. 2d 89; U.S. Auto Stores v. WCAB (Brenner) (1971) 4 Cal. 3d 469

Workers' compensation judge may make disability determination based on all evidence including testimony and record, not bound to exact expert opinion

Applied to support WCJ's discretion in disability rating

From the decision · page 7The Supreme Court has recognized the degree of difficulty in assessing permanent disability when presented with widely disparate expert opinions. "Applicable here is the rule followed in other cases where the trier of fact does not adopt exactly the view of any expert witness as to value. The trier of fact may accept the evidence of any one expert or choose a figure between them based on all the evidence." Liberty Mutual Ins. Co. v. IAC (Serafin) (1948) 33 Cal. 2d 89 [13 Cal.Comp.Cases 267, 270], citations omitted. Many cases have followed this "range of evidence" rule. See, e.g., Rios v. SCIF (2002) 30 Cal. Workers'Comp. Rptr. 17. The judge is therefore not bound to endorse all factors of disability described by an evaluating physician he can make a determination based on all evidence combined including testimony and the record. "It is

ADJ1201899 · January 23, 2023

What the panel ordered

What was disputed, and how it came out

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The facts that decided it

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