ADJ11354883 · April 25, 2024

The WCJ erred in using a 'range of evidence' approach rather than the method mandated by Brodie, which requires subtracting the old rating from the new rating to calculate the percentage of disability attributable to the new injury.

From the decision · page 1OPINION AND DECISION AFTER RECONSIDERATION We previously granted defendant's Petition for Reconsideration of the Findings and Award (F&A) issued on June 26, 2020, by the workers' compensation administrative law judge (WCJ), in order to further study the factual and legal issues. This is our Opinion and Decision After Reconsideration. The WCJ found, in pertinent part, that applicant's permanent partial disability rated to 75% after apportionment per Labor Code1, section 4664, but used a "range of evidence" analysis and reduced by the value of the permanent disability award by the monetary value of a prior award of permanent disability and did not subtract the percentage. Defendant contends that the WCJ erred because the opinion does not follow the California Supreme Court's holding in Brodie v. Workers' Comp. Appeals Bd. (2007) 40 Cal. 4th 1313, 57 Cal. Rptr.

The WCJ used a 'range of evidence' approach rather than the method mandated by Brodie for apportionment calculation.

Favours Applicant prevailed

This was improper and led to rescinding the Findings and Award and remanding for further proceedings.

From the decision · page 1OPINION AND DECISION AFTER RECONSIDERATION We previously granted defendant's Petition for Reconsideration of the Findings and Award (F&A) issued on June 26, 2020, by the workers' compensation administrative law judge (WCJ), in order to further study the factual and legal issues. This is our Opinion and Decision After Reconsideration. The WCJ found, in pertinent part, that applicant's permanent partial disability rated to 75% after apportionment per Labor Code1, section 4664, but used a "range of evidence" analysis and reduced by the value of the permanent disability award by the monetary value of a prior award of permanent disability and did not subtract the percentage. Defendant contends that the WCJ erred because the opinion does not follow the California Supreme Court's holding in Brodie v. Workers' Comp. Appeals Bd. (2007) 40 Cal. 4th 1313, 57 Cal. Rptr.

Found applicant had supraventricular tachycardia requiring ablation, left ventricular hypertrophy on echocardiogram, hypertension and chronic pain; assigned 35% WPI for hypertensive heart disease and 20% WPI for supraventricular tachycardia; combined disability of 75% before apportionment.

From the decision · page 2In ADJ11354883 (present case) Dr. Glassman found that the applicant had supraventricular tachycardia that required ablation, left ventricular hypertrophy on echocardiogram, hypertension and chronic pain. Dr. Glassman assigned a 35% WPI for the hypertensive heart disease and 20% WPI for the supraventricular tachycardia (Jt. Ex. 2). The parties had the report of Dr. Glassman rated by the Disability evaluation Unit which bound a combined disability of 75% before apportionment (60% for left ventricular hypertrophy on echocardiogram and 38% for the arrhythmia).

Found impairment to the heart as a conduction abnormality known as bundle branch block and left ventricular relaxation abnormality, hallmarks of hypertensive heart disease; prior award for 18% permanent disability for heart/hypertension.

From the decision · page 2the applicant sustained an admitted cumulative trauma during the period of March 6, 2006 to June 15, 2018. He sustained injury to his heart, hypertension, back, neck and bilateral knees while working as a correctional officer. (MOH/SOE page 2:3-8). He also sustained a prior award for 18% for heart/hypertension in ADJ9126146 for a cumulative trauma period of March 6, 2006 to November 12, 2012. The parties utilized Dr. Stuart Kramer as the PQME for the heart in ADJ9126146; and utilized Dr. Jerrold Glassman for the heart in ADJ11354883 (the current case). (See Jt. Exhibits 3 and 4). In ADJ9126146 Dr. Kramer found impairment to the heart as "a conduction abnormality known as a bundle branch block" and "left ventricular (LV) relaxation abnormality which he opined was one of the hallmarks of hypertensive end-organ damage also known as hypertensive heart disease (ADJ9126146 Dr. Kramer Report).

Brodie v. Workers' Comp. Appeals Bd. (2007) 40 Cal. 4th 1313

Correct method for applying apportionment is to subtract the old rating from the new rating to calculate the percentage of disability attributable to the new injury.

The WCJ's use of 'range of evidence' was improper as it did not follow Brodie's mandated method.

From the decision · page 1OPINION AND DECISION AFTER RECONSIDERATION We previously granted defendant's Petition for Reconsideration of the Findings and Award (F&A) issued on June 26, 2020, by the workers' compensation administrative law judge (WCJ), in order to further study the factual and legal issues. This is our Opinion and Decision After Reconsideration. The WCJ found, in pertinent part, that applicant's permanent partial disability rated to 75% after apportionment per Labor Code1, section 4664, but used a "range of evidence" analysis and reduced by the value of the permanent disability award by the monetary value of a prior award of permanent disability and did not subtract the percentage. Defendant contends that the WCJ erred because the opinion does not follow the California Supreme Court's holding in Brodie v. Workers' Comp. Appeals Bd. (2007) 40 Cal. 4th 1313, 57 Cal. Rptr.

Defendant failed to meet burden of proving overlap of prior permanent disability with current disability for apportionment under section 4664.

From the decision · page 4Bank of America (2010), 75 Cal.Comp.Cases 613, 625 (Appeals Board en banc) (rating must be based on substantial medical evidence).) Today, range of evidence is not often used, but remains permissible when deciding between competing reports, both of which constitute substantial medical evidence. `Range of evidence' cannot be used merely to achieve equity, no matter how noble a goal that may be. The WCJ's use of `range of evidence' was not proper in this case. The WCJ was not presented with competing opinions on disability, both of which constituted substantial medical evidence. In her Report, the WCJ simply questions whether defendant met its burden of proving overlap. In such cases, a WCJ may exercise their discretion and order development of the record or find that defendant failed to meet their burden. If defendant ultimately failed their burden of apportionment, applicant is entitled to an unportioned award of disability. Accordingly, as our Decision After Reconsideration we will rescind the June 26, 2020 F&A and return this matter to the trial level for further proceedings consistent with this opinion.