ADJ9077153 — California WCAB decision

What the panel ordered

Findings and Award affirmed except permanent disability and attorney fees issues deferred; matter returned to WCJ for further proceedings.

Petition for Reconsideration granted; decision after reconsideration issued affirming Findings and Award except deferring permanent disability and attorney fees issues for further proceedings.

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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.

ApportionmentRemandedcervical spine

Dr. Pelton's apportionment opinion was rejected for lack of explanation and failure to comply with Escobedo requirements, thus no substantial evidence supported apportionment decision.

From the decision · page 5Regarding the issue of apportionment, according to Dr. Pelton, there is 89% apportionment to the non-industrial fusions of 1998 & 2010 under Labor Code section 4663 because the ratio between the pre-existing impairment and the post-industrial injury impairment is 89% (25 [divided by] 28) = 89%.) In applying the ratio between the two impairments to determine apportionment of permanent disability, it appears that Dr. Pelton assumed the pre-existing impairment (25%) was subsumed within applicant's impairment at the time of the evaluation regarding the July 23, 2013 injury (28%). However, Dr. Pelton did not provide an explanation for this assumption. Further, Dr. Pelton treated impairment as the equivalent of permanent disability without explaining why this produces an accurate evaluation of apportionment and an accurate description of applicant's disability caused by the motor vehicle accident.

The facts that decided it

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

Dr. Pelton did not provide an explanation for his apportionment assumption or methodology.

Favours Applicant prevailed

This failure meant his apportionment opinion did not constitute substantial evidence, leading to deferral of apportionment and permanent disability issues.

From the decision · page 5Regarding the issue of apportionment, according to Dr. Pelton, there is 89% apportionment to the non-industrial fusions of 1998 & 2010 under Labor Code section 4663 because the ratio between the pre-existing impairment and the post-industrial injury impairment is 89% (25 [divided by] 28) = 89%.) In applying the ratio between the two impairments to determine apportionment of permanent disability, it appears that Dr. Pelton assumed the pre-existing impairment (25%) was subsumed within applicant's impairment at the time of the evaluation regarding the July 23, 2013 injury (28%). However, Dr. Pelton did not provide an explanation for this assumption. Further, Dr. Pelton treated impairment as the equivalent of permanent disability without explaining why this produces an accurate evaluation of apportionment and an accurate description of applicant's disability caused by the motor vehicle accident.

The motor vehicle accident was found to be a violent act by the Appeals Board panel.

Favours Applicant prevailed

This finding made psychiatric permanent disability compensable as an exception to Labor Code section 4660.1(c), favoring the applicant's claim.

From the decision · page 5We agree with the WCJ's conclusion, based on his review of various Appeals Board panel decisions, that the July 23, 2013 motor vehicle accident was a violent act.3 Therefore, even if applicant's psychiatric permanent disability were construed as arising out of his physical injury, applicant would still be entitled to additional permanent disability for his psychiatric injury as an exception to section 4660.1(c); thus, his psychiatric permanent disability is compensable.

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.

QMERejected · orthopedic

Apportioned 11% of cervical spine impairment to industrial injury and 89% to pre-existing fusion; did not explain apportionment methodology sufficiently to constitute substantial evidence.

From the decision · page 5Regarding the issue of apportionment, according to Dr. Pelton, there is 89% apportionment to the non-industrial fusions of 1998 & 2010 under Labor Code section 4663 because the ratio between the pre-existing impairment and the post-industrial injury impairment is 89% (25 [divided by] 28) = 89%.) In applying the ratio between the two impairments to determine apportionment of permanent disability, it appears that Dr. Pelton assumed the pre-existing impairment (25%) was subsumed within applicant's impairment at the time of the evaluation regarding the July 23, 2013 injury (28%). However, Dr. Pelton did not provide an explanation for this assumption. Further, Dr. Pelton treated impairment as the equivalent of permanent disability without explaining why this produces an accurate evaluation of apportionment and an accurate description of applicant's disability caused by the motor vehicle accident.

AMERelied upon · neuropsychology

Diagnosed cognitive disorder in remission and adjustment disorder with anxiety/depression related directly to industrial injury; assigned GAF score of 62, unchanged over time.

Causation of psychiatric conditions directly related to industrial injury of July 23, 2013.

From the decision · page 4The language of section 4660.1(c) is clear that it applies to sleep dysfunction, sexual dysfunction, or psychiatric disorder "arising out of a compensable physical injury." (Lab. Code, § 4660.1.) Section 4660.1(c) does not preclude increases in impairment ratings when the psychiatric injury arises directly from the events of employment. When the language is clear it is applied "according to its terms." (DuBois v. Workers' Comp. Appeals Bd. (1993) 5 Cal.4th 382, 387 [58 Cal.Comp.Cases 286]; Atlantic Richfield Co. v. Workers' Comp. Appeals Bd. (Arvizu) (1982) 31 Cal.3d 715, 726 [47 Cal. Comp. Cases 500].) As noted above, Dr. Valdiva stated that the causation of the psychiatric conditions he diagnosed was "directly related to the industrial injury of July 23, 2013." (Joint Exh. 8, p. 18.)

ADJ9077153 · January 31, 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

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