ADJ8260868 — California WCAB decision

What the panel ordered

Petition for Reconsideration denied, Third Amended Findings and Award upheld.

Petition for Reconsideration filed by defendant City of Torrance challenging the Third Amended Findings and Award dated November 30, 2020, which found applicant permanently totally disabled due to injuries sustained in the course of employment as a firefighter.

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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 total disabilityApplicant prevailedback · neck · knees · right shoulder · hearing loss · inner ears · hypertension · skin · sexual dysfunction · lungs · heart · GERD · IBS · hernias

The medical expert opinions of the AME and QMEs, along with the vocational expert's opinion, support a finding of 100% permanent total disability due to industrial factors, despite defendant's challenges to the impairment ratings and apportionment.

From the decision · page 3Defendant City of Torrance, permissibly self-insured, has through its counsel filed a timely, verified petition for reconsideration of the November 30, 2020 Third Amended Findings and Award, which found that applicant, while employed on September 2, 2011, as a firefighter, Occupational Group Number 490, at Torrance, California, sustained injury arising out of and in the course of employment to his back, and, while employed during the period of March 11, 1985 through November 15, 2011, as a firefighter, Occupational Group Number 490, at Torrance, California, sustained injury arising out of and in the course of employment to his back, neck, knees, right shoulder, hearing loss, inner ears, hypertension, skin, sexual dysfunction, lungs, heart, GERD, IBS, and hernias, causing permanent disability of 100%. the applicant was 62 years of age on the specific date of injury and end of the cumulative trauma period. The Third Amended Findings and Award was based on the opinions of a vocational expert, Enrique Vega, as well as the medical expert opinions of Agreed Medical Evaluator (AME) Roger S. Sohn, M.D., and Qualified Medical Evaluators (QMEs) in five different specialties: Ronald A. Carlish, M.D., Graham M. Woolf, M.D., Omar Tirmizi, M.D., Howard L. Sofen, M.D., and K.C. Salkinder, M.D.

The facts that decided it

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

Applicant sustained injury arising out of and in the course of employment to multiple body parts including back, neck, knees, right shoulder, hearing loss, inner ears, hypertension, skin, sexual dysfunction, lungs, heart, GERD, IBS, and hernias

Favours Applicant prevailed

This extensive injury finding supports the permanent total disability rating and award.

From the decision · page 3Defendant City of Torrance, permissibly self-insured, has through its counsel filed a timely, verified petition for reconsideration of the November 30, 2020 Third Amended Findings and Award, which found that applicant, while employed on September 2, 2011, as a firefighter, Occupational Group Number 490, at Torrance, California, sustained injury arising out of and in the course of employment to his back, and, while employed during the period of March 11, 1985 through November 15, 2011, as a firefighter, Occupational Group Number 490, at Torrance, California, sustained injury arising out of and in the course of employment to his back, neck, knees, right shoulder, hearing loss, inner ears, hypertension, skin, sexual dysfunction, lungs, heart, GERD, IBS, and hernias, causing permanent disability of 100%. the applicant was 62 years of age on the specific date of injury and end of the cumulative trauma period. The Third Amended Findings and Award was based on the opinions of a vocational expert, Enrique Vega, as well as the medical expert opinions of Agreed Medical Evaluator (AME) Roger S. Sohn, M.D., and Qualified Medical Evaluators (QMEs) in five different specialties: Ronald A. Carlish, M.D., Graham M. Woolf, M.D., Omar Tirmizi, M.D., Howard L. Sofen, M.D., and K.C. Salkinder, M.D.

Vocational expert Enrique Vega found applicant's total loss of earning capacity to be entirely caused by industrial factors

Favours Applicant prevailed

This finding was critical to the award of 100% permanent total disability.

Medical expert opinions of AME and QMEs support the impairment ratings and permanent disability findings despite defendant's challenges

Favours Applicant prevailed

These expert opinions justified the permanent total disability award and rebutted defendant's contentions.

From the decision · page 9What was not raised in the petition is any allegation that the petition is based upon the undersigned acting without or in excess of his authority, which would include the authority to order development of the record with supplemental medical opinions and a vocational opinion. The petition is expressly based on the contention that the evidence does not justify the findings of fact, and that the findings of fact do not support the decision and award. Defendant's detailed arguments in this regard are summarized under the general heading, "Impairments and associated permanent disability are not supportable, since impairment must be based on consistent, reliable findings at Maximal Medical Improvement (MMI), which are lacking in this case. The overall magnitude of impairment and associated permanent disability is inconsistent with the applicant's current level of functioning" (Petition for Reconsideration, dated December 23, 2020, page 5, lines 17-21). The following responses to lettered arguments A through P in defendant's petition will explain why the findings of medical experts and the vocational expert in this case justify the findings and support the award of permanent, total disability.

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.

AMEGiven great weight

Applied AMA Guides with clinical judgment; applied non-industrial apportionment to cervical spine, right shoulder, and knees; opinions entitled to great weight as AME.

AME status and consistent application of AMA Guides with clinical judgment.

From the decision · page 6Sohn's deposition testimony, which substantially explains his method and rationale, with the understanding that the AMA Guides to the Evaluation of Permanent Impairment, Fifth Edition (AMA Guides) provides guidelines that do not override the clinical judgment of the physician. Also based on AME Dr. Sohn, 20% non-industrial apportionment was applied to permanent disability of the cervical spine, 10% non-industrial apportionment was applied to permanent disability of the right shoulder, and 50% non-industrial disability was applied to permanent disability of the knees. All apportionment not precluded by Labor Code § 4663(e) was applied to the rating strings, as shown above, although the result was ultimately rebutted by vocational expert opinion.

QMERelied upon

Provided Whole Person Impairment assessments; supported adding non-overlapping disabilities; opinions considered in permanent disability rating.

From the decision · page 6Even after adding non-overlapping disabilities as instructed by Dr. Woolf and Dr. Carlish in their deposition testimony, the majority of the permanent disability ratings combined in Case Number ADJ8260850 had absolutely no effect on the combined permanent disability rating, due to the compressing effect of the Combined Values Chart.

QMERelied upon

Provided impairment ratings for GERD, IBS, and hernias; called for re-evaluation; opinions considered in permanent disability rating.

From the decision · page 3ysfunction is not supportable; (g) the ratings for orthopedic impairments are not supportable; (h) the Qualified Medical Evaluations for gastroesophageal reflux disease (GERG), irritable bowel syndrome (IBS), inguinal hernia, and ventral hernia were performed by Dr. Graham Woolf, hose role as a qualified medical evaluator was not active when he was initially deposed on March 7, 2017; (i) there are no definitive ratings for GERD; (j) the applicant was not at MMI when rated for IBS; (k) the ventral hernia diagnosis has not been confirmed and observation was not made until over three years after retirement; (l) the inguinal hernia does not cause interference with Activities of Daily Living (ADLs) and thus there is no impairment; (m) Dr. Woolf has called for a re-evaluation of this applicant to ensure the most accurate medical opinion pertaining to any gastrointestinal issues; (n) Dr. Woolf did not sufficiently explain a sufficient basis for not using the Combined Values Chart (CVC) in order to

QMERelied upon

Provided medical opinions on heart and hypertension; opinions considered in permanent disability rating.

From the decision · page 12Defendant's assertion that applicant must not have had arrhythmia because on October 25, 2015, Dr. Tirmizi reported that applicant "denies any exertional chest pain, pressure, palpitations, orthopnea, PND or ankle swelling" is not a conclusion endorsed by Dr. Carlish or any other QME. Defendant certainly had more than adequate opportunity to emphasize such points in the medical records to Dr. Carlish and the other QMEs, who remained of the opinion that applicant is MMI.

QMERelied upon

Provided Whole Person Impairment assessments; opinions considered in permanent disability rating.

From the decision · page 4The original Joint Findings and Award, dated December 29, 2017, was rescinded following the petition for reconsideration of defendant City of Torrance to develop the record by having AME Dr. Sohn, and QMEs Dr. Carlish, Dr. Woolf, Dr. Tirmizi, Dr. Sofen, and Dr. Salkinder answer questions about their Whole Person Impairment (WPI) assessments using the AMA Guides to the Evaluation of Permanent Impairment (AMA Guides), and review surveillance videos that they had not previously reviewed.

QMERelied upon

Provided Whole Person Impairment assessments; opinions considered in permanent disability rating.

From the decision · page 4The original Joint Findings and Award, dated December 29, 2017, was rescinded following the petition for reconsideration of defendant City of Torrance to develop the record by having AME Dr. Sohn, and QMEs Dr. Carlish, Dr. Woolf, Dr. Tirmizi, Dr. Sofen, and Dr. Salkinder answer questions about their Whole Person Impairment (WPI) assessments using the AMA Guides to the Evaluation of Permanent Impairment (AMA Guides), and review surveillance videos that they had not previously reviewed.

vocational_expertRelied upon

Evaluated applicant's diminished earning capacity; found 100% permanent total disability due to industrial factors; opinion relied upon for disability rating.

Vocational expert's opinion on total loss of earning capacity due to industrial factors was critical to the finding of permanent total disability.

From the decision · page 3Defendant City of Torrance, permissibly self-insured, has through its counsel filed a timely, verified petition for reconsideration of the November 30, 2020 Third Amended Findings and Award, which found that applicant, while employed on September 2, 2011, as a firefighter, Occupational Group Number 490, at Torrance, California, sustained injury arising out of and in the course of employment to his back, and, while employed during the period of March 11, 1985 through November 15, 2011, as a firefighter, Occupational Group Number 490, at Torrance, California, sustained injury arising out of and in the course of employment to his back, neck, knees, right shoulder, hearing loss, inner ears, hypertension, skin, sexual dysfunction, lungs, heart, GERD, IBS, and hernias, causing permanent disability of 100%. the applicant was 62 years of age on the specific date of injury and end of the cumulative trauma period. The Third Amended Findings and Award was based on the opinions of a vocational expert, Enrique Vega, as well as the medical expert opinions of Agreed Medical Evaluator (AME) Roger S. Sohn, M.D., and Qualified Medical Evaluators (QMEs) in five different specialties: Ronald A. Carlish, M.D., Graham M. Woolf, M.D., Omar Tirmizi, M.D., Howard L. Sofen, M.D., and K.C. Salkinder, M.D.

ADJ8260868 · February 22, 2021

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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