ADJ11196484 — California WCAB decision

What the panel ordered

Petition for Reconsideration granted; WCJ's decision amended to reflect 26% permanent disability instead of 39%.

Defendant sought reconsideration of the WCJ's Findings and Award of January 29, 2024, challenging the permanent disability rating; WCJ filed a Report and Recommendation on Petition for Reconsideration.

Read the official decision →

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 prevailedleft knee · right hip · right knee · bilateral ankles

The WCJ's original 39% rating was not based on substantial medical evidence; the rating was amended to 26% based on Dr. Thompson's revised opinion after reviewing surveillance and applicant testimony showing she sometimes walks without a cane, which lowered the impairment class from III to II under AMA Guides Table 13-15.

From the decision · page 1Defendant seeks reconsideration of a workers' compensation administrative law judge's (WCJ) Findings and Award of January 29, 2024, wherein it was found that while employed on May 2, 2017 as a substitute teacher, applicant sustained admitted industrial injury to her left knee, right hip, right knee, and ankles causing permanent disability of 39% and the need for further medical treatment.

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 · pain management specialist

Initially rated 23% WPI based on applicant's use of cane almost all the time; later revised to 15% WPI after reviewing surveillance footage and applicant testimony showing she sometimes walks without a cane, placing her in Class II impairment under AMA Guides Table 13-15.

Dr. Thompson's initial rating was based on the assumption applicant used a cane almost all the time, but after reviewing surveillance and testimony, he revised the rating to reflect less impairment consistent with Class II under AMA Guides.

From the decision · page 2The matter went to trial on the issues of permanent disability and need for further medical treatment on June 6, 2022. However, on June 15, 2022, the WCJ vacated the order submitting the matter, and ordered further development of the record. On July 13, 2022, the WCJ appointed pain management specialist Blake Thompson, M.D. as independent medical evaluator pursuant to Labor Code section 5701.

QMEPartially credited · orthopedist

Rated 7% WPI based on mild reduced flexion in left knee and pain add-on; noted healed patella fracture and muscle atrophy but did not combine ratings per AMA Guides instructions.

Dr. Kelly's rating was a baseline for impairment but was not combined with other factors per AMA Guides, leading to a lower rating than others.

From the decision · page 1Applicant was initially evaluated by panel qualified medical evaluator orthopedist Jon P. Kelly, MD and primary treating physician pain management specialist Michael Moon, MD. Dr. Kelly rated applicant's permanent impairment based on mild reduced flexion in the left knee (4% WPI) as well as a pain add-on (3% WPI) for a total of 7% WPI. Dr. Kelly also noted that applicant had a healed patella fracture and muscle atrophy which were ratable under the AMA Guides, but could not be combined with the reduced range of motion impairment per the AMA Guides instructions. (October 11, 2021 report at pp. 19-21.) Dr. Moon agreed with Dr. Kelly's impairment

PTPPartially credited · pain management specialist

Agreed with Dr. Kelly's impairment ratings but opined that combining patella fracture and muscle atrophy ratings with range of motion and pain add-on better reflected permanent disability, resulting in 10% WPI.

Dr. Moon provided an alternative view to Dr. Kelly's rating, suggesting a higher impairment by combining ratings against AMA Guides instructions.

From the decision · page 1Applicant was initially evaluated by panel qualified medical evaluator orthopedist Jon P. Kelly, MD and primary treating physician pain management specialist Michael Moon, MD. Dr. Kelly rated applicant's permanent impairment based on mild reduced flexion in the left knee (4% WPI) as well as a pain add-on (3% WPI) for a total of 7% WPI. Dr. Kelly also noted that applicant had a healed patella fracture and muscle atrophy which were ratable under the AMA Guides, but could not be combined with the reduced range of motion impairment per the AMA Guides instructions. (October 11, 2021 report at pp. 19-21.) Dr. Moon agreed with Dr. Kelly's impairment

The rules the panel named

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

Le Vesque v. Workmen's Comp. Appeals Bd. (1970) 1 Cal.3d 627

All findings must be based on substantial evidence, including medical opinions based on reasonable medical probability and proper application of AMA Guides.

The WCJ's original rating was not based on substantial evidence; the revised rating was based on substantial medical evidence including expert testimony and AMA Guides.

From the decision · page 6(Opinion on Decision at p. 6.) All findings of the WCAB must be based on substantial evidence. (Le Vesque v.

Blackledge v. Bank of America (2010) 75 Cal.Comp.Cases 613

Medical opinion must comport with AMA Guides as applied and interpreted in published appellate opinions and en banc decisions of the Appeals Board.

Dr. Thompson's revised rating was consistent with AMA Guides and was relied upon by the WCAB.

From the decision · page 6"Expert testimony is necessary `where the truth is occult and can be found only by resorting to the sciences.' [Citation.]" (Peter Kiewit Sons v. Ind. Acc. Com. (McLaughlin) (1965) 234 Cal.App.2d 831, 838 [30 Cal.Comp.Cases 188].) A decision must be based on legally competent evidence, not on the WCAB's lay belief regarding matters requiring an expert opinion. (City & County of San Francisco v. Ind. Acc. Comm. (Murdock) (1953) 117 Cal.App.2d 455, 460 [18 Cal.Comp.Cases 103]; Bstanding v. Workers' Comp. Appeals Bd. (1977) 68 Cal.App.3d 988, 996 [42 Cal.Comp.Cases 114].) In the specific context of AMA Guides permanent impairment ratings, WCJ it is the physician's role to assess an injured worker's whole person impairment. (Blackledge v. Bank of America (2010) 75 Cal.Comp.Cases 613, 619-621 [Appeals Bd. en banc].) "[T]o constitute substantial evidence regarding a WPI, a physician's opinion must comport with the AMA Guides, including as applied and interpreted in published appellate opinions and en banc decisions of the Appeals Board." (Id. at p. 20.)

ADJ11196484 · April 22, 2024

What the panel ordered

What was disputed, and how it came out

Your case already resembles someone else’s. Find whose.

The facts that decided it

What the panel did with the medical opinions

The rules the panel named

What proof carried it

About this page