ADJ10133424 · June 27, 2025

The Appeals Board granted reconsideration to allow further review of the merits and the entire record, deferring final decision.

From the decision · page 15For the foregoing reasons, IT IS ORDERED that applicant's Petition for Reconsideration is GRANTED. IT IS FURTHER ORDERED that a final decision after reconsideration is DEFERRED pending further review of the merits of the Petition for Reconsideration and further consideration of the entire record in light of the applicable statutory and decisional law.

The WCJ found compensable injuries with specific WPI ratings but deferred psychiatric injury rating and other issues.

Favours Applicant prevailed

This formed the basis for the Petition for Reconsideration and further review.

From the decision · page 1Applicant seeks reconsideration of the March 17, 2025 Findings, Award, Order issued by the workers' compensation administrative law judge (WCJ). Therein, the WCJ found that applicant sustained injury to his left ankle, lumbar spine, right hip and psyche as a compensable consequence arising out of and in the course of his employment; that applicant sustained injury as a compensable consequence to the right hip based on the report of agreed medical evaluator (AME) William Campbell, D.O., dated July 22, 2020; that based on Dr. Campbell's opinion, before adjustment for age and occupation, there is 20% WPI to the lower left extremity, 9% WPI to the lower left extremity due to scarring and tenderness, 8% WPI for the lumbar spine, and 3% WPI for the right hip; that the record requires further development of the record on whether applicant is entitled to a rating for psychiatric injury; and that the vocational reporting by Diaz and Company dated January 12, 2024 (Exhibit 3) does NOT rebut the standard ratings under the AMA Guides, 5th Edition and the Permanent Disability Ratings Schedule (AMA Guides). The WCJ deferred all other issues.

Vocational expert's opinion that Applicant has 100% loss of labor market access due to synergistic disabling limitations.

Favours Applicant prevailed

Supports Applicant's contention that the AMA Guides rating is rebutted and total disability should be found.

From the decision · page 6"When considering the applicant's individualized work history, the results of the transferrable skills analysis, the medical opinions, impairments, and the synergetic (additive) effect of the labor disabling functional limitations as set forth by Drs. Campbell, Currey, Harvey, Hughes, and Mitchell, accommodations may be available to the applicant in the competitive open labor market, and the applicant's amenableness to vocational rehabilitation, I come to the vocational opinion that the applicant, in all vocational probability, has incurred a one hundred percent (100%) loss of labor market access." (Ex. 3 at 35.)

Psychiatric QME found anxiety and dysthymia attributable to injury but no labor disabling psychiatric treatment or preclusions.

Favours neutral

Affects the evaluation of psychiatric injury rating and vocational rehabilitation potential.

From the decision · page 4Applicant also obtained a QME for psychiatric injury, Dr. Roy Curry. Dr. Curry found that Applicant suffers from anxiety disorder and dysthymia predominantly attributable to his injury. However, causation was at issue as it appears that at the time of the injury, Applicant had worked for the employer for less than six months, one of the requirements for compensability under the Labor Code. Dr. Curry discussed exceptions to the six-month rule, including whether the injury could be regarded as sudden and violent or whether the prolonged nature and course of the claim should render it compensable. By all accounts, Dr. Curry stated that Applicant was cooperative and friendly but frustrated and, though he was not focused in school and did not graduate from high school, Applicant has a good family support system and has worked in his father's businesses. (Ex. 8 at 49-50.)

Surveillance video showed Applicant active and not appearing depressed, contradicting vocational expert's conclusion of non-amenability to rehabilitation.

Favours Defendant prevailed

Challenges the vocational expert's opinion and supports further review.

From the decision · page 5Dr. Curry issued a second report dated 06-19-2023, admitted as exhibit 11. Therein, the QME reviewed additional records, including the functional capacity evaluation of 12-12-2022, which is exhibit 2, and surveillance video taken in 2021. (Ex. 11 at 9-10.) Regarding the surveillance, Dr. Curry noted Applicant was smiling and happy and "One would not consider him to be depressed." (Id. at 10.) Dr. Curry describes Applicant in the surveillance film as "a busy man doing tasks mostly around the house, around the yard and with his pets, but he has limitations and restrictions and pain, and an antalgic gait." (Id. at 11.) Dr. Curry reports new activity including recycling for extra money and the QME states that there are new right shoulder complaints, but the right shoulder is not part of this claim. (Id. at 11.) Though Applicant has considered returning to school, he "was not motivated and has not had psychiatric treatment." (Id.) Dr. Curry did not change his opinion on the disability rating or apportionment.

Provided 7% WPI rating for scarring; recommended physical therapy; no work restrictions or preclusions.

From the decision · page 4In a report of 01-19-2016, panel Qualified Medical Evaluator (QME) Robert A. Harvey, M.D. provides a rating for scarring of 7% WPI. (Ex. 9 at 7.) Dr. Harvey provides recommendations for physical therapy and is confident that this would have "a lot to offer as far as improving function of the ankle and knee" and treatment of the skin would also help. (Ex. 9 at 6.) Dr. Harvey does not offer work restrictions or preclusions.

Found 20% WPI to lower left extremity, 9% WPI for scarring and tenderness, 8% WPI for lumbar spine, and 3% WPI for right hip; no apportionment; work restrictions include no lifting/pushing/pulling over 15 pounds, sit/stand at will, no kneeling/squatting/climbing, use of cane.

From the decision · page 4The orthopedic AME in this case is Dr. William Campbell and Applicant contends that the permanent and stationary date according to Dr. Campbell is 10- 30-2018. However, Applicant was reevaluated as he complained that his condition had worsened: Applicant's leg and ankle were still painful and he reported swelling, and he developed issues with his low back and hip. One of the issues was injury to the right hip and AME Dr. Campbell supports injury to the right hip. It is undisputed that based on Dr. Campbell, there is a 20% WPI rating to the lower left extremity based on functional limitations; 9% WPI to the lower left extremity due to scarring and tenderness; 8% WPI for the lumbar spine; and 3% WPI for the right hip. (Ex. 12 at 28-29.) There is no apportionment. (Id. at 30-31.) In the latest AME report of 07-10-2024, Applicant's functional limitations by the AME are no lifting, pushing, or pulling more than 15 pounds, sit/stand at will, with no kneeling squatting or climbing and use of a cane. (Id., at 28.) These are the same work restrictions dating back to the AME report of 07-22-2020. (Ex. 6 at 14.)

Diagnosed anxiety disorder and dysthymia attributable to injury; no specific work preclusions; noted some functional limitations but not labor disabling; found 10% apportionment to non-industrial family stressors.

From the decision · page 4Applicant also obtained a QME for psychiatric injury, Dr. Roy Curry. Dr. Curry found that Applicant suffers from anxiety disorder and dysthymia predominantly attributable to his injury. However, causation was at issue as it appears that at the time of the injury, Applicant had worked for the employer for less than six months, one of the requirements for compensability under the Labor Code. Dr. Curry discussed exceptions to the six-month rule, including whether the injury could be regarded as sudden and violent or whether the prolonged nature and course of the claim should render it compensable. By all accounts, Dr. Curry stated that Applicant was cooperative and friendly but frustrated and, though he was not focused in school and did not graduate from high school, Applicant has a good family support system and has worked in his father's businesses. (Ex. 8 at 49-50.)

Performed left ankle surgeries; post-surgery physical therapy; persistent pain and swelling; gait derangement; use of cane.

From the decision · page 3Applicant could not continue to work after the accident. His leg did not heal well after the crush injury: on 09-16-2015, Dr. Douglas Chin performed emergency debridement of muscle, fascia, skin, and subcutaneous tissues of the lower left leg. On 11-21-2017, Applicant underwent left ankle arthroscopy with debridement and decompression of anterior impingement. left ankle open posterior tibial tendon repair, and left ankle open posterior tibial tenosynovectomy by Dr. Paul Huges. Applicant has post-surgery physical therapy and treatment, however, problems with the left ankle and leg persisted including pain and swelling, and he developed gait derangement which negatively affected his back. He now uses a cane.

LeBoeuf v. Workers' Comp. Appeals Bd. (1983) 34 Cal. 3d 234

A scheduled rating can be rebutted if the injury impairs rehabilitation and diminishes future earning capacity beyond the scheduled rating, as established in LeBoeuf v. Workers' Comp. Appeals Bd. (1983) 34 Cal. 3d 234.

The Board considered this standard in evaluating the vocational evidence and the need for further development of the record on rebuttal of the AMA Guides rating.

From the decision · page 11Another way the cases have long recognized that a scheduled rating has been effectively rebutted is 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. This is the rule expressed in LeBoeuf v. Workers' Comp. Appeals Bd. (1983) 34 Cal. 3d 234 [193 Cal.Rptr. 547, 666 P.2d 989]. In LeBoeuf, an injured worker sought to demonstrate that, due to the residual effects of his work-related injuries, he could not be retrained for suitable meaningful employment. (Id. at pp. 237-238.) Our Supreme Court concluded that it was error to preclude LeBoeuf from making such a showing, and held that "the fact that an injured employee is precluded from the option of receiving rehabilitation benefits should also be taken into account in the assessment of an injured employee's permanent disability rating."

Applicant's testimony and medical records show persistent pain and functional limitations, including use of a cane and gait derangement.

From the decision · page 3Applicant could not continue to work after the accident. His leg did not heal well after the crush injury: on 09-16-2015, Dr. Douglas Chin performed emergency debridement of muscle, fascia, skin, and subcutaneous tissues of the lower left leg. On 11-21-2017, Applicant underwent left ankle arthroscopy with debridement and decompression of anterior impingement. left ankle open posterior tibial tendon repair, and left ankle open posterior tibial tenosynovectomy by Dr. Paul Huges. Applicant has post-surgery physical therapy and treatment, however, problems with the left ankle and leg persisted including pain and swelling, and he developed gait derangement which negatively affected his back. He now uses a cane.

Surveillance video showed Applicant active around the house, smiling and happy, inconsistent with severe psychiatric disability.

From the decision · page 5Dr. Curry issued a second report dated 06-19-2023, admitted as exhibit 11. Therein, the QME reviewed additional records, including the functional capacity evaluation of 12-12-2022, which is exhibit 2, and surveillance video taken in 2021. (Ex. 11 at 9-10.) Regarding the surveillance, Dr. Curry noted Applicant was smiling and happy and "One would not consider him to be depressed." (Id. at 10.) Dr. Curry describes Applicant in the surveillance film as "a busy man doing tasks mostly around the house, around the yard and with his pets, but he has limitations and restrictions and pain, and an antalgic gait." (Id. at 11.) Dr. Curry reports new activity including recycling for extra money and the QME states that there are new right shoulder complaints, but the right shoulder is not part of this claim. (Id. at 11.) Though Applicant has considered returning to school, he "was not motivated and has not had psychiatric treatment." (Id.) Dr. Curry did not change his opinion on the disability rating or apportionment.