ADJ9665055 — California WCAB decision

What the panel ordered

WCAB panel affirmed the WCJ's October 14, 2022 Findings and Award, denying defendant's petition for reconsideration.

Defendant sought reconsideration of the WCJ's Findings and Award issued November 3, 2022; WCJ recommended denial of reconsideration; WCAB panel affirmed the WCJ's Findings and Award after reconsideration.

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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.

Earnings / average weekly earningsApplicant prevailed

Psyche AOE/COEApplicant prevailedright upper extremity · right elbow · right hand · right wrist · right shoulder · neck · psyche

Applicant's psychiatric injury was found compensable despite less than six months employment because the injury was caused by a sudden and extraordinary event, supported by expert testimony on unsafe working conditions and the traumatic nature of the injury.

From the decision · page 8Psychiatric injury in this case is denied on the basis that applicant had less than six months of employment. An injured worker must be employed by the employer for at least six months to have a compensable psychiatric injury unless the injury was caused by a sudden and extraordinary employment condition. Labor Code Section 3208.3(d). To determine the sudden and extraordinary element, the Board has excepted injuries that were not caused by a regular or routine employment event. Matea v. Workers' Comp. Appeals Bd. (2006) 71 Cal. Comp. Cases 1522. The court in Matea defined "sudden" as "happening without previous notice or with very brief notice: coming or occurring unexpectedly; not foreseen [sic] or prepared for." The court then defined "extraordinary" as "going beyond what is usual, regular, common, or customary" and "having little or no precedent and usu[ally] totally unexpected." Based on this definition, the court stated, "[I]f an employee carries his or her burden of showing by a preponderance of the evidence that the event or occurrence that caused the alleged psychiatric injury was something other than a regular and routine employment event or condition, that is, that the event was uncommon, unusual, and occurred unexpectedly, the injury may be compensable even if the employee was employed for less than six months." Matea at 1532.

The facts that decided it

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

Applicant suffered a severe industrial injury on January 29, 2014, resulting in loss of function and shortening of right upper extremity.

Favours Applicant prevailed

This injury was the basis for the compensable physical and psychiatric injuries and permanent total disability finding.

Applicant's psychiatric injury was caused by a sudden and extraordinary event, supported by expert testimony on unsafe working conditions and traumatic injury circumstances.

Favours Applicant prevailed

This supported compensability of psychiatric injury despite less than six months employment.

From the decision · page 8Psychiatric injury in this case is denied on the basis that applicant had less than six months of employment. An injured worker must be employed by the employer for at least six months to have a compensable psychiatric injury unless the injury was caused by a sudden and extraordinary employment condition. Labor Code Section 3208.3(d). To determine the sudden and extraordinary element, the Board has excepted injuries that were not caused by a regular or routine employment event. Matea v. Workers' Comp. Appeals Bd. (2006) 71 Cal. Comp. Cases 1522. The court in Matea defined "sudden" as "happening without previous notice or with very brief notice: coming or occurring unexpectedly; not foreseen [sic] or prepared for." The court then defined "extraordinary" as "going beyond what is usual, regular, common, or customary" and "having little or no precedent and usu[ally] totally unexpected." Based on this definition, the court stated, "[I]f an employee carries his or her burden of showing by a preponderance of the evidence that the event or occurrence that caused the alleged psychiatric injury was something other than a regular and routine employment event or condition, that is, that the event was uncommon, unusual, and occurred unexpectedly, the injury may be compensable even if the employee was employed for less than six months." Matea at 1532.

Medical and vocational expert reports found applicant permanently and totally disabled with no apportionment.

Favours Applicant prevailed

This supported the finding of 100% permanent and total disability in favor of applicant.

From the decision · page 6The AME in this case is Dr. Stephen Conrad. The AME endorses applicant's testimony completely. Due to the severity of the elbow injury, Dr. Conrad finds the right hand, right shoulder and neck as compensable consequence injuries. The AME characterizes the result of the elbow surgeries as "poor," indeed, the bone of the right upper extremity was shortened and replacement of the elbow joint failed, thus resulting in difficulties with almost all activities of daily living according to the AME. (Ex. 104 at p. 5-6.) As applicant's right upper extremity is shortened and functions poorly there are limitations defined by the AME to preclude lifting greater than 2 pounds and preclusion of all work above shoulder level, with no pushing, pulling, and torquing greater than 5 pounds, and a limit of fine manipulation (e.g., writing) to no greater than 15 minutes per hour. (Id., at p. 5.) Dr.

Vocational expert found applicant not amenable to rehabilitation or sustained employment due to physical and psychiatric impairments.

Favours Applicant prevailed

This supported the permanent total disability finding and rejection of vocational apportionment.

Favours Applicant prevailed

This supported the wage benefits calculation and award.

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.

AMERelied upon · orthopedics

Found 66% permanent disability rating for right upper extremity and cervical spine with no apportionment; endorsed applicant's testimony on severity and poor surgical outcomes; imposed work restrictions limiting lifting, pushing, pulling, and fine manipulation.

The AME's detailed rating and endorsement of applicant's testimony supported the finding of 100% permanent and total disability without apportionment.

From the decision · page 6The AME in this case is Dr. Stephen Conrad. The AME endorses applicant's testimony completely. Due to the severity of the elbow injury, Dr. Conrad finds the right hand, right shoulder and neck as compensable consequence injuries. The AME characterizes the result of the elbow surgeries as "poor," indeed, the bone of the right upper extremity was shortened and replacement of the elbow joint failed, thus resulting in difficulties with almost all activities of daily living according to the AME. (Ex. 104 at p. 5-6.) As applicant's right upper extremity is shortened and functions poorly there are limitations defined by the AME to preclude lifting greater than 2 pounds and preclusion of all work above shoulder level, with no pushing, pulling, and torquing greater than 5 pounds, and a limit of fine manipulation (e.g., writing) to no greater than 15 minutes per hour. (Id., at p. 5.) Dr.

QMERejected · psychiatry

Found psychiatric impairment causally related to injury; apportioned 20% of residual disability to alcohol abuse without explanation; opined orthopedic and psychiatric injuries are synergistic and additive for permanent disability calculation; apportionment opinion rejected as not substantial evidence.

The QME's apportionment opinion lacked explanation and conflicted with findings of permanent total disability, leading to rejection of apportionment.

From the decision · page 7QME Dr. Piciucco apportioned 20% of the resitudal disability to episodic alcohol abuse but there was no explanation as to how and why this condition caused any portion of the impairment. Dr. Piciucco further opined that the orthopedic and psychiatric injuries are synergestic, do not overlap, and should be added rather than combined to achieve the most accurate method of calculating permanent disability.

The rules the panel named

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

California Labor Code

Labor Code Section 3208.3(d)

Requires six months employment for psychiatric injury compensability unless injury caused by sudden and extraordinary event.

From the decision · page 8Psychiatric injury in this case is denied on the basis that applicant had less than six months of employment. An injured worker must be employed by the employer for at least six months to have a compensable psychiatric injury unless the injury was caused by a sudden and extraordinary employment condition. Labor Code Section 3208.3(d). To determine the sudden and extraordinary element, the Board has excepted injuries that were not caused by a regular or routine employment event. Matea v. Workers' Comp. Appeals Bd. (2006) 71 Cal. Comp. Cases 1522. The court in Matea defined "sudden" as "happening without previous notice or with very brief notice: coming or occurring unexpectedly; not foreseen [sic] or prepared for." The court then defined "extraordinary" as "going beyond what is usual, regular, common, or customary" and "having little or no precedent and usu[ally] totally unexpected." Based on this definition, the court stated, "[I]f an employee carries his or her burden of showing by a preponderance of the evidence that the event or occurrence that caused the alleged psychiatric injury was something other than a regular and routine employment event or condition, that is, that the event was uncommon, unusual, and occurred unexpectedly, the injury may be compensable even if the employee was employed for less than six months." Matea at 1532.

Almaraz v. State Comp. Ins. Fund and Guzman v. Milpitas Unified School Dist. (2009) 74 Cal.Comp.Cases 1084 (Appeals Board en banc)

Allows rating by analogy for permanent disability assessment.

From the decision · page 6Conrad opines that it is appropriate to invoke the "Almaraz/Guzman" decision to rate by analogy. Almaraz v. State Comp. Ins. Fund and Guzman v. Milpitas Unified School Dist. (2009) 74 Cal.Comp.Cases 1084 (Appeals Board en banc), (Almaraz/Guzman II). The AME provides 34% WPI for the right elbow, 9% WPI for the right forearm, hand and wrist; 8% WPI for the right shoulder; and 7% WPI for the cervical spine. (Id., at p. 5-8.) The parties agree that combining of these ratings per the CVC results in 66% permanent disability. There is no apportionment. (Id., at p. 6.)

LeBoeuf v. Workers' Compensation Appeals Board (1983) 48 Cal. Comp. Cases 587

Permanent disability rating should reflect diminished ability to compete in open labor market, including vocational retraining limitations.

From the decision · page 11Moreover, evaluation of applicant's the vocational evidence, including credibility of the vocational reporting, supports a finding that applicant is not vocationally feasible and not amenable to rehabilitation. The California Supreme Court has held "[a] permanent disability rating should reflect as accurately as possible an injured employee's diminished ability to compete in the open labor market." LeBoeuf v. Workers' Compensation Appeals Board, (1983) 48 Cal. Comp. Cases 587. The court went on to state, "The fact that a worker has been precluded from vocational retraining is a significant factor to be taken into account in evaluating his or her potential employability." The court concluded that any permanent disability award that fails to consider these factors is inadequate.

California Labor Code

Labor Code Section 4453(c)(4)

Provides method for average weekly wage determination when other methods are not applicable.

ADJ9665055 · March 20, 2024

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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The rules the panel named

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