ADJ3482353 — California WCAB decision

What the panel ordered

Petition for Reconsideration denied; Findings and Award affirmed except amended to find permanent and stationary date as September 10, 2012, and permanent disability at 95%.

Petition for Reconsideration filed by applicant Marlene the applicant seeking review of the March 2, 2022 Opinion and Decision After Reconsideration by the Appeals Board, which was denied.

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This docket was decided more than once. Shown here is the latest released decision; we also hold March 2, 2022.

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 prevailedpsyche · cardiovascular system · upper urinary tract

The psychiatric disability was combined with the added hypertensive cardiovascular disease and upper urinary tract disabilities, as there was no substantial psychiatric medical evidence to support adding the psychiatric disability separately.

From the decision · page 3The record does not contain psychiatric medical evidence that addresses the issue of combining vs. adding disability, so the psychiatric disability is being combined with the Hypertensive Cardiovascular Disease/Upper Urinary Tract disability after those are added. (Opinion, p. 6, fn. 4.)

The facts that decided it

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

QME Dr. Marusak's psychiatric reports stating psychiatric condition was permanent and stationary as of October 7, 2010.

Favours Applicant prevailed

Supported the permanent and stationary date for the psychiatric condition, influencing the overall permanent and stationary date determination.

From the decision · page 9On October 7, 2010, QME Dr. Marusak said the applicant's psychiatric condition was permanent and stationary. (Joint Exh. 10, p. 31.) In his May 5, 2016 report Dr. Marusak again said the applicant's psychiatric condition was permanent and stationary as of October 7, 2010. (Joint Exh. 9, p. 48.) On September 10, 2012, AME Dr. Hirsch stated that the applicant had reached maximum medical improvement/permanent and stationary status "from an Internal Medicine standpoint." (Joint Exh. 5, p. 18.) In his August 22, 2017 re- evaluation report Dr. Hirsch reiterated his earlier opinion regarding the applicant's maximum medical improvement/permanent and stationary status. He also stated that the applicant, "... did not require temporary total disability on an industrial basis due to problems in the arena of Internal Medicine." (Joint Exh. 4, p. 10.) The reports from Dr. Marusak and Dr. Hirsch are substantial evidence that the applicant's condition was permanent and stationary as of September 10, 2012.

AME Dr. Hirsch's opinion that renal insufficiency and hypertension conditions reached permanent and stationary status as of September 10, 2012.

Favours Applicant prevailed

Provided substantial evidence for the permanent and stationary date for the internal medicine conditions, supporting the overall permanent and stationary date.

From the decision · page 9On October 7, 2010, QME Dr. Marusak said the applicant's psychiatric condition was permanent and stationary. (Joint Exh. 10, p. 31.) In his May 5, 2016 report Dr. Marusak again said the applicant's psychiatric condition was permanent and stationary as of October 7, 2010. (Joint Exh. 9, p. 48.) On September 10, 2012, AME Dr. Hirsch stated that the applicant had reached maximum medical improvement/permanent and stationary status "from an Internal Medicine standpoint." (Joint Exh. 5, p. 18.) In his August 22, 2017 re- evaluation report Dr. Hirsch reiterated his earlier opinion regarding the applicant's maximum medical improvement/permanent and stationary status. He also stated that the applicant, "... did not require temporary total disability on an industrial basis due to problems in the arena of Internal Medicine." (Joint Exh. 4, p. 10.) The reports from Dr. Marusak and Dr. Hirsch are substantial evidence that the applicant's condition was permanent and stationary as of September 10, 2012.

No psychiatric medical evidence addressing combining vs adding disability; psychiatric disability combined with added hypertensive cardiovascular disease and upper urinary tract disability.

Favours Applicant prevailed

Justified the decision to combine psychiatric disability rather than add it, affecting the permanent disability rating outcome.

From the decision · page 3The record does not contain psychiatric medical evidence that addresses the issue of combining vs. adding disability, so the psychiatric disability is being combined with the Hypertensive Cardiovascular Disease/Upper Urinary Tract disability after those are added. (Opinion, p. 6, fn. 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.

QMERelied upon · psychiatry

Psychiatric condition was permanent and stationary as of October 7, 2010, with no temporary total psychiatric disability.

Dr. Marusak's psychiatric reports support the permanent and stationary date for the psychiatric condition.

From the decision · page 9On October 7, 2010, QME Dr. Marusak said the applicant's psychiatric condition was permanent and stationary. (Joint Exh. 10, p. 31.) In his May 5, 2016 report Dr. Marusak again said the applicant's psychiatric condition was permanent and stationary as of October 7, 2010. (Joint Exh. 9, p. 48.) On September 10, 2012, AME Dr. Hirsch stated that the applicant had reached maximum medical improvement/permanent and stationary status "from an Internal Medicine standpoint." (Joint Exh. 5, p. 18.) In his August 22, 2017 re- evaluation report Dr. Hirsch reiterated his earlier opinion regarding the applicant's maximum medical improvement/permanent and stationary status. He also stated that the applicant, "... did not require temporary total disability on an industrial basis due to problems in the arena of Internal Medicine." (Joint Exh. 4, p. 10.) The reports from Dr. Marusak and Dr. Hirsch are substantial evidence that the applicant's condition was permanent and stationary as of September 10, 2012.

AMERelied upon · internal medicine

Renal insufficiency and hypertension conditions reached permanent and stationary status as of September 10, 2012; no overlap in impairment between these conditions; opinions constitute substantial evidence.

Dr. Hirsch's opinions on permanent and stationary status and lack of overlap were found substantial evidence and persuasive.

From the decision · page 10As an AME, Dr. Hirsch was presumably chosen by the parties because of his expertise and neutrality. Therefore, his opinions should be followed unless there is a good reason to find his opinions unpersuasive. (Power v. Workers' Comp. Appeals Bd. (1986) 179 Cal.App.3d 775, 782 [51 Cal.Comp.Cases 114, 117].) There is no evidence in the record that contradicts or otherwise disputes Dr. Hirsch's opinions. We see no basis for finding his opinions unpersuasive and

AMEPartially credited · internal medicine

No overlap medically between hypertension, renal insufficiency, and psychiatric conditions; appropriate to add impairments but legal decision deferred to trier of fact.

Dr. Hirsch's testimony on no overlap medically was considered but not substantial evidence for psychiatric impairment; legal decision on adding vs combining deferred to trier of fact.

From the decision · page 2Q Similarly, medically, do you see any overlap between the hypertension condition and the renal insufficiency condition and the psychiatric condition? A No, I don't. Q And, again, medically, those would be appropriate to be added, but legally you will defer that to the trier of fact? A Yes, sir. (Joint Exh. 15, p. 13.)

The rules the panel named

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

California Ins. Guarantee Assn. v. Workers' Comp. Appeals Bd. (2006) 136 Cal.App.4th 1528; Sweeney v. Industrial Acc. Com. (1951) 107 Cal.App.2d 155

An injured worker's condition is deemed permanent and stationary when the level of impairment is stable and unlikely to change with or without treatment for a reasonable period.

Applied to determine the permanent and stationary date for the applicant's condition.

From the decision · page 3Applicant asserts that the applicant's condition became permanent and stationary on June 22, 2009 (See App. Exh. 5, Barry A. Halote, Ph.D., June 22, 2009, p. 22)2 or in the alternative that the permanent and stationary date is October 7, 2010. (Joint Exh. 10, Carl E. Marusak, M.D., October 7, 2010, p. 31.) The doctors' reports state the applicant's "psychological condition can be considered permanent and stationary at this time" (App. Exh. 5, p. 22) and that the applicant's "condition is Permanent and Stationary from a psychiatric perspective." (Joint Exh. 10, p. 31.) An injured worker's condition is deemed permanent and stationary when the level of impairment is stable and is unlikely to change with or without treatment for a reasonable period. (California Ins. Guarantee Assn. v. Workers' Comp. Appeals Bd. (2006) 136 Cal.App.4th 1528 [71 Cal.Comp.Cases 139]; Sweeney v. Industrial Acc. Com. (1951) 107 Cal.App.2d 155 [16 Cal.Comp.Cases 264].) Applicant argues that, "There is no legal or logical reason to delay the payment of permanent disability until

Athens Administrators v. Workers' Comp. Appeals Bd. (Kite) (2013) 78 Cal.Comp.Cases 213; Los Angeles County Metropolitan Transportation Authority v. Workers' Comp. Appeals Bd. (La Count) (2015) 80 Cal.Comp.Cases 470; University of California, Berkeley v. Workers' Compensation Appeals Board (Sedlack) (2020) 85 Cal. Comp. Cases 311

If adding the disability factors provides a more accurate rating of the injured worker's disability, it is appropriate to use additive approach rather than rigid application of the Combined Values Chart (CVC).

Applied to decide whether to add or combine disability factors in this case.

From the decision · page 9Regarding the issue of whether the applicant's factors of permanent disability should be combined per the Combined Values Chart (CVC) or should be added, we note that the Appeals Board has addressed this issue in several panel decisions. For example, the Appeals Board affirmed a WCJ's decision that if adding the disability factors provides a more accurate rating of the injured worker's disability, it is appropriate to use additive approach because AMA Guides describe several methods of combining impairments and rigid application of CVC is not mandated. (Athens Administrators v. Workers' Comp. Appeals Bd. (Kite) (2013) 78 Cal.Comp.Cases 213 [2013 Cal. Wrk. Comp. LEXIS 34] (writ den.).) Also, it has been held that it was appropriate to add impairments rather than use the CVC based on an AME's opinion that there was synergistic effect as to the injured worker's orthopedic injuries so they should be added rather than combined. (Los Angeles County Metropolitan Transportation Authority v. Workers' Comp. Appeals Bd. (La Count) (2015) 80 Cal.Comp.Cases 470 [2015 Cal. Wrk. Comp. LEXIS 47] (writ den.).) It is also important to note that although the phrase "synergistic effect" was used in various decisions, the existence of a "synergistic effect" is not a prerequisite to

ADJ3482353 · May 20, 2022

What the panel ordered

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The facts that decided it

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