What the panel ordered
Petition for Reconsideration granted; applicant found permanently totally disabled; defendant's petition otherwise denied
Petition for Reconsideration granted to amend Findings of Fact number 13 to find applicant permanently totally disabled; otherwise affirming the April 17, 2024 First Amended Findings and Award
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.
The WCJ and panel found applicant permanently totally disabled based on medical and vocational expert opinions, including the vocational expert's finding of unemployability and corroboration by treating physicians, with no apportionment found.
From the decision · page 1We have considered the allegations of the Petition for Reconsideration and the contents of the Report and the Opinion on Decision of the workers' compensation administrative law judge (WCJ) with respect thereto. Based on our review of the record, and for the reasons stated below, we will grant reconsideration to amend Findings of Fact number 13 to find that applicant is permanently totally disabled. For the reasons stated below and for the reasons stated in the WCJ's Report and Opinion on Decision, both of which we adopt and incorporate, except as noted below, we will otherwise affirm the April 17, 2024 First Amended Findings and Award (F&A).
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Medical-legal evaluations rate applicant at 85% permanent disability with no medical apportionment
Favours Applicant prevailed
Supports finding of permanent total disability without apportionment
Vocational expert found applicant unemployable and not amenable to vocational rehabilitation
Favours Applicant prevailed
Supports permanent total disability finding
Applicant's primary treating physician and secondary treater adopted vocational expert's opinion of unemployability
Favours Applicant prevailed
Corroborates permanent total disability
Applicant's credible testimony about her limitations and need for assistance in activities of daily living
Favours Applicant prevailed
Supports credibility and permanent total disability
From the decision · page 17For completeness, defendant has attempted to argue that applicant's testimony at trial regarding her limitations are inconsistent with the symptoms she reported experiencing. Defendant argues that applicant testified in a coherent and concise manner and did not show any signs of difficulty with clear thinking or focus. First, this WCJ finds that applicant is credible and finds no inconsistencies with her testimony and the medical records. Second, applicant credibly testified 1) that her ability to appear at medical appointments came with the caveat that she had missed appointments, 2) she needs assistance in remembering to take her medications, and 3) cannot perform all activities of daily living without assistance. In addition, it was noted that the first day of trial lasted less than one hour and the second day of trial lasted approximately 1.5 hours. Therefore, defendant's contention that applicant's presentation during trial appeared to be inconsistent with the symptoms she reported experiencing is not substantiated.
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.
Applicant is permanently totally disabled from an employment perspective due to a combination of physical and psychiatric impairments, chronic pain disorder, and vision impairments, requiring assistance in activities of daily living.
Relied upon by WCJ and panel to find permanent total disability.
From the decision · page 6Dr. Sivtsov reported in his Panel QME Re-Evaluation dated April 12, 2021, indicated that at that time, applicant was not ready to join the workforce due to abnormally low GAF score. (Defendant's Exhibit H) Dr. Schweller, in his report dated June 20, 2022, indicated that applicant has a combination of physical and psychiatric impairments, chronic pain disorder and vision impairments that make her unemployable. She is permanently totally disabled from an employment perspective. (Applicant's Exhibit 1) Furthermore, in Dr. Schweller's permanent and stationary report states that applicant has a "Total disability: it appears to me that the combination of physical and psychiatric impairments, chronic pain disorder and vision impairments make this woman unemployable, totally disabled from an employment perspective and she requires assistance in her activities of daily living especially needing someone to help her with activities involving running or maintaining her home, as well as assisting her in activities where she would be likely to provoke episodes of pain or vertigo." Dr. Lyons indicated in his 8/10/2022 report that he reviewed the
Reviewed vocational expert's opinion of unemployability and adopted it, supporting permanent total disability finding.
Supported vocational expert's opinion and WCJ's finding.
Found applicant suffered diminished future earning capacity and is not amenable to vocational rehabilitation, supporting permanent total disability.
Relied upon by WCJ and panel for unemployability and diminished earning capacity.
Found applicant not amenable to vocational rehabilitation and meeting criteria for total disability under Labor Code 4600 and 4662.
Supported permanent total disability finding.
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Permanent total disability criteria under Labor Code sections 4660 and 4662, and LeBoeuf v. WCAB
Applied to find applicant permanently totally disabled based on medical and vocational evidence
What proof carried it
The evidence the panel weighed, by kind.
Applicant's credible testimony about her limitations and need for assistance in activities of daily living
From the decision · page 17For completeness, defendant has attempted to argue that applicant's testimony at trial regarding her limitations are inconsistent with the symptoms she reported experiencing. Defendant argues that applicant testified in a coherent and concise manner and did not show any signs of difficulty with clear thinking or focus. First, this WCJ finds that applicant is credible and finds no inconsistencies with her testimony and the medical records. Second, applicant credibly testified 1) that her ability to appear at medical appointments came with the caveat that she had missed appointments, 2) she needs assistance in remembering to take her medications, and 3) cannot perform all activities of daily living without assistance. In addition, it was noted that the first day of trial lasted less than one hour and the second day of trial lasted approximately 1.5 hours. Therefore, defendant's contention that applicant's presentation during trial appeared to be inconsistent with the symptoms she reported experiencing is not substantiated.
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About this page
- A published decision of the California Workers' Compensation Appeals Board, taken apart by what it turned on. The Board publishes the decision itself; this page adds the extraction and quotes the passage behind every claim.
- The injured worker is not named here, and the case caption is not printed. Physicians appear as the decision names them, because a medical opinion is an act in a public proceeding.
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