ADJ11201608 — California WCAB decision

What the panel ordered

Order Amending Findings of Fact, Awards and Orders issued May 5, 2020, rescinded; matter returned to trial level for further proceedings consistent with en banc opinion.

Petition for reconsideration filed by defendant after WCJ's Findings of Fact, Awards and Orders and subsequent amendment; WCJ Report and Recommendation to deny reconsideration; matter assigned en banc for decision 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.

Permanent disability ratingRemandedleft hip · right hip · lumbar spine

The en banc decision holds that the Combined Values Chart (CVC) may be rebutted and impairments added if the applicant establishes the impact of each impairment on activities of daily living (ADLs) and shows either no overlap or an amplifying overlap of ADLs. The WCJ's prior finding to add impairments was not supported by substantial medical evidence because the QME did not analyze ADLs. The Hikida case was misapplied as the applicant's hip surgeries were successful. Defendant failed to prove apportionment due to lack of substantial evidence from the QME.

From the decision · page 2Defendant seeks reconsideration of the "Rulings on Evidence, Findings of Fact, Awards and Orders" (F&A) issued on April 20, 2020, and the subsequent amendment to the F&A in the "Order Amending Findings of Fact, Awards and Orders; Opinion on Decision" (Order) issued on May 5, 2020, by the workers' compensation administrative law judge (WCJ).4 The WCJ found, in pertinent part, that applicant sustained 68% permanent partial disability by adding the impairment to applicant's left and right hip pursuant to East Bay Municipal Utility District v. Workers' Compensation Appeals Board (Kite) (2013) 78 Cal.Comp.Cases 213 (writ den.). The WCJ further found that apportionment to the hips was not permissible pursuant to Hikida v. Workers' Comp. Appeals Bd. (2017) 12 Cal.App.5th 1249 [82 Cal.Comp.Cases 679] because the disability was caused by hip replacement surgery.

The rules the panel named

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

East Bay Municipal Utility District v. Workers' Compensation Appeals Board (Kite) (2013) 78 Cal.Comp.Cases 213

Combined Values Chart (CVC) in the Permanent Disability Ratings Schedule (PDRS) may be rebutted and impairments added where applicant establishes impact on activities of daily living (ADLs) and either no overlap or amplifying overlap of ADLs.

Applied to hold that impairments may be added if ADL impact is shown and overlap conditions met.

From the decision · page 2Defendant seeks reconsideration of the "Rulings on Evidence, Findings of Fact, Awards and Orders" (F&A) issued on April 20, 2020, and the subsequent amendment to the F&A in the "Order Amending Findings of Fact, Awards and Orders; Opinion on Decision" (Order) issued on May 5, 2020, by the workers' compensation administrative law judge (WCJ).4 The WCJ found, in pertinent part, that applicant sustained 68% permanent partial disability by adding the impairment to applicant's left and right hip pursuant to East Bay Municipal Utility District v. Workers' Compensation Appeals Board (Kite) (2013) 78 Cal.Comp.Cases 213 (writ den.). The WCJ further found that apportionment to the hips was not permissible pursuant to Hikida v. Workers' Comp. Appeals Bd. (2017) 12 Cal.App.5th 1249 [82 Cal.Comp.Cases 679] because the disability was caused by hip replacement surgery.

Labor Code Section 4663(c)

Apportionment must be made by physician to reasonable medical probability considering all factors before and after industrial injury, including prior injuries and nonindustrial factors.

Requires physician to make apportionment determination with reasoning; failure to do so means no substantial evidence for apportionment.

From the decision · page 11(c) In order for a physician's report to be considered complete on the issue of permanent disability, the report must include an apportionment determination. A physician shall make an apportionment determination by finding what approximate percentage of the permanent disability was caused by the direct result of injury arising out of and occurring in the course of employment and what approximate percentage of the permanent disability was caused by other factors both before and subsequent to the industrial injury, including prior industrial injuries.

Hikida v. Workers' Comp. Appeals Bd. (2017) 12 Cal.App.5th 1249

Hikida precludes apportionment for new disabling conditions resulting from industrial surgery, but does not apply where surgery was successful and did not cause increased impairment.

Misapplication of Hikida by WCJ reversed; successful hip replacement surgery does not preclude apportionment.

From the decision · page 2Defendant seeks reconsideration of the "Rulings on Evidence, Findings of Fact, Awards and Orders" (F&A) issued on April 20, 2020, and the subsequent amendment to the F&A in the "Order Amending Findings of Fact, Awards and Orders; Opinion on Decision" (Order) issued on May 5, 2020, by the workers' compensation administrative law judge (WCJ).4 The WCJ found, in pertinent part, that applicant sustained 68% permanent partial disability by adding the impairment to applicant's left and right hip pursuant to East Bay Municipal Utility District v. Workers' Compensation Appeals Board (Kite) (2013) 78 Cal.Comp.Cases 213 (writ den.). The WCJ further found that apportionment to the hips was not permissible pursuant to Hikida v. Workers' Comp. Appeals Bd. (2017) 12 Cal.App.5th 1249 [82 Cal.Comp.Cases 679] because the disability was caused by hip replacement surgery.

ADJ11201608 · June 10, 2024

What the panel ordered

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