ADJ11930142 — California WCAB decision

What the panel ordered

Petition for Reconsideration denied

Petition for Reconsideration following Findings of Award and Opinion on Decision denying reconsideration

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 prevailedneck · thyroid · voice · right eye · vision

The WCJ found the applicant's impairments should be added rather than combined, supported by substantial medical evidence from AME Dr. Anderson and others, leading to a 100% permanent disability rating.

From the decision · page 5In his June 12, 2019 report, Dr. Anderson stated that the impairments for the thyroid disease, scarring and loss of neck tissue, impaired speaking, deglutition/taste, and deconditioning should be added rather than combined as they all derived from his neck surgery. (Joint Exhibit VV, Report of Agreed Medical Evaluator Scott Anderson, Dated June 12, 2019, Page 3.) At his deposition in this matter, Dr. Anderson gave a detailed explanation as to why he believed the impairments should be added rather than combined. He testified when the applicant's thyroid was removed, it led to impaired swallowing and saliva function, which in turn led to impaired nutrition and made his overall recovery more difficult. (Joint Exhibit WW, Transcript of the deposition of Agreed Medical Evaluator Scott Anderson, M.D., dated October 9, 2019, Pages 29, 30 and 33-37.) I found that Dr. Anderson's opinion that the impairments for the thyroid disease, loss of skin in the neck, difficulties with speech and swallowing/deglutition should be added, rather than combined, is substantial medical evidence.

The facts that decided it

What the panel treated as outcome-determinative, and which side it favoured.

Dr. Anderson's opinion that the impairments should be added rather than combined.

Favours Applicant prevailed

This opinion was found to be substantial medical evidence supporting a 100% permanent disability rating.

From the decision · page 5In his June 12, 2019 report, Dr. Anderson stated that the impairments for the thyroid disease, scarring and loss of neck tissue, impaired speaking, deglutition/taste, and deconditioning should be added rather than combined as they all derived from his neck surgery. (Joint Exhibit VV, Report of Agreed Medical Evaluator Scott Anderson, Dated June 12, 2019, Page 3.) At his deposition in this matter, Dr. Anderson gave a detailed explanation as to why he believed the impairments should be added rather than combined. He testified when the applicant's thyroid was removed, it led to impaired swallowing and saliva function, which in turn led to impaired nutrition and made his overall recovery more difficult. (Joint Exhibit WW, Transcript of the deposition of Agreed Medical Evaluator Scott Anderson, M.D., dated October 9, 2019, Pages 29, 30 and 33-37.) I found that Dr. Anderson's opinion that the impairments for the thyroid disease, loss of skin in the neck, difficulties with speech and swallowing/deglutition should be added, rather than combined, is substantial medical evidence.

Vocational expert Scott Simon's opinion that the applicant is not amenable to rehabilitation and permanently totally disabled.

Favours Applicant prevailed

This opinion was consistent with the medical opinions and supported the finding of permanent total disability.

From the decision · page 1In addition to the reasons discussed by the WCJ in the Report and Opinion on Decision, we note that a finding of permanent total disability may also be based upon the opinions of agreed medical examiner (AME) Scott Anderson, M.D., and vocational expert Scott Simon (applicant's Exhibit 2) that establish applicant's inability to participate in vocational rehabilitation and return to gainful employment. (Ogilvie v. City and County of San Francisco (2011) 197 Cal.App.4th 1262 [76 Cal.Comp.Cases 624], LeBoeuf v. Workers' Comp. Appeals Bd. (1983) 34 Cal.3d 234 [48 Cal.Comp.Cases 587].)

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.

AMERelied upon · internal medicine

Dr. Anderson opined the applicant's impairments for thyroid disease, scarring, loss of neck tissue, impaired speaking, deglutition/taste, and deconditioning should be added rather than combined, and that the applicant is permanently totally disabled and not amenable to rehabilitation.

Detailed explanation and testimony supporting adding impairments rather than combining, and permanent total disability opinion.

From the decision · page 5In his June 12, 2019 report, Dr. Anderson stated that the impairments for the thyroid disease, scarring and loss of neck tissue, impaired speaking, deglutition/taste, and deconditioning should be added rather than combined as they all derived from his neck surgery. (Joint Exhibit VV, Report of Agreed Medical Evaluator Scott Anderson, Dated June 12, 2019, Page 3.) At his deposition in this matter, Dr. Anderson gave a detailed explanation as to why he believed the impairments should be added rather than combined. He testified when the applicant's thyroid was removed, it led to impaired swallowing and saliva function, which in turn led to impaired nutrition and made his overall recovery more difficult. (Joint Exhibit WW, Transcript of the deposition of Agreed Medical Evaluator Scott Anderson, M.D., dated October 9, 2019, Pages 29, 30 and 33-37.) I found that Dr. Anderson's opinion that the impairments for the thyroid disease, loss of skin in the neck, difficulties with speech and swallowing/deglutition should be added, rather than combined, is substantial medical evidence.

AMERelied upon · orthopedic surgery

Dr. Edington assigned a 5% WPI for scarring and disfigurement, supporting the finding of permanent total disability.

His impairment rating supports the total disability finding.

From the decision · page 7Defendant contends that the rating of the scarring provided by the orthopedic AME, Dr. Henry Edington, should have been followed as his assessment of impairment was more than a year after Dr. Anderson and showed that applicant continued to improve from his surgery. However, Dr. Edington's impairment for the scarring also supports my finding that the applicant was permanently, totally disabled. Dr. Edington assigned a 5% WPI for the scarring and disfigurement from the surgery. (Joint Exhibit ZZ, Report of Agreed Medical Evaluator, Henry Edington, dated September 15, 2020, Page 9.) Adjusted for age and occupation, the impairment for the scarring would rate to 15%. When added to the ratings for the impairment assigned by the AME Dr. Anderson for the thyroid cancer, deglutition/taste, and phonation, it would still exceed 100%, even before the impairment was combined with the cervical spine impairment assigned by Dr. Henry Edington and the visual impairment assigned by Dr. Philip Edington.

AMERelied upon · ophthalmology

Dr. Edington assigned a 4% WPI for visual impairment and provided work restrictions for the right eye, supporting permanent total disability.

His visual impairment rating and restrictions support the total disability finding.

From the decision · page 11Philip Edington, M.D. evaluated the applicant as the ophthalmology AME on April 17, 2020. He noted the applicant had visual complaints of difficulty adjusting to light and light sensitivity as well as blurred vision. He also has a recent history of drooping eyelid on the right. He diagnosed the applicant with Horner's syndrome as a result of the thyroid cancer surgery which damaged the nervous system and led to eyelid drooping, lack of perspiration, blurriness of vision and inability to adjust to different light conditions. Using Section 12.4B of the AMA Guides, he assigned a 4% WPI for the visual impairment and difficulties with light sensitivity. There was no apportionment. Dr. Edington also provided recommended work restrictions for the right eye, including the need to wear corrective and protective eyewear, no climbing or working overhead, no use of firearms, and limitations on the use of power tools. (Joint Exhibit XX, Report of Agreed Medical Evaluator Philip Edington, M.D., dated May 5, 2020, Pages 4, and 10- 12.)

vocational_expertRelied upon

Vocational expert Scott Simon opined the applicant was not amenable to rehabilitation and permanently totally disabled.

His opinion is consistent with the medical opinions supporting permanent total disability.

From the decision · page 1In addition to the reasons discussed by the WCJ in the Report and Opinion on Decision, we note that a finding of permanent total disability may also be based upon the opinions of agreed medical examiner (AME) Scott Anderson, M.D., and vocational expert Scott Simon (applicant's Exhibit 2) that establish applicant's inability to participate in vocational rehabilitation and return to gainful employment. (Ogilvie v. City and County of San Francisco (2011) 197 Cal.App.4th 1262 [76 Cal.Comp.Cases 624], LeBoeuf v. Workers' Comp. Appeals Bd. (1983) 34 Cal.3d 234 [48 Cal.Comp.Cases 587].)

The rules the panel named

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

Labor Code section 4660.1(h)

The scheduled permanent disability rating is rebuttable.

The WCJ considered this to allow departure from strict AMA Guides ratings with explanation.

From the decision · page 4Permanent impairment must be based on the AMA Guides to the Evaluation of Permanent Impairment. (Labor Code section 4660.1(b).) However, the scheduled permanent disability rating is rebuttable. (Labor Code section 4660.1(h), Milpitas Unified School Dist. v. Workers' Comp Appeals Bd. (Guzman) (2010) 187 Cal. App. 4th 808.) To the extent that an evaluating physician gives impairment ratings that depart from the strict interpretation of the AMA Guides, there must be an explanation as to why the standard method outlined in the Guides does not accurately reflect the applicant's impairment, and why an alternative method better

Labor Code section 4660.1(b)

Permanent impairment must be based on the AMA Guides to the Evaluation of Permanent Impairment.

The WCJ applied this standard to evaluate the impairment ratings.

From the decision · page 4Permanent impairment must be based on the AMA Guides to the Evaluation of Permanent Impairment. (Labor Code section 4660.1(b).) However, the scheduled permanent disability rating is rebuttable. (Labor Code section 4660.1(h), Milpitas Unified School Dist. v. Workers' Comp Appeals Bd. (Guzman) (2010) 187 Cal. App. 4th 808.) To the extent that an evaluating physician gives impairment ratings that depart from the strict interpretation of the AMA Guides, there must be an explanation as to why the standard method outlined in the Guides does not accurately reflect the applicant's impairment, and why an alternative method better

Power v. Workers' Comp. Appeals Bd. (1986) 179 Cal. App. 3d 775

An AME's opinion should be followed unless there is good reason to find it unpersuasive.

The WCJ followed the AME's opinion as substantial evidence.

Escobedo v. Marshalls (2005) 70 Cal. Comp. Cases 604

A medical opinion must be predicated on reasonable medical probability and set forth reasoning in support of conclusions.

The WCJ found Dr. Anderson's opinion met this standard.

From the decision · page 13Analysis Parties typically select an AME because of their expertise and neutrality. (Power v. Workers' Comp. Appeals Bd. (1986) 179 Cal. App. 3d 775, 782.) Thus an AME's opinion should be followed, unless there is good reason to find that opinion unpersuasive. (Id. at 782.) In order to constitute substantial evidence, a medical opinion must be predicated on reasonable medical probability and it must set forth the reasoning in support of its conclusions. (Escobedo v. Marshalls (2005) 70 Cal. Comp. Cases 604, 621.)

What proof carried it

The evidence the panel weighed, by kind.

expert methodologyfavours Applicant prevailed

Dr. Anderson's detailed testimony and report supporting adding impairments rather than combining

From the decision · page 5In his June 12, 2019 report, Dr. Anderson stated that the impairments for the thyroid disease, scarring and loss of neck tissue, impaired speaking, deglutition/taste, and deconditioning should be added rather than combined as they all derived from his neck surgery. (Joint Exhibit VV, Report of Agreed Medical Evaluator Scott Anderson, Dated June 12, 2019, Page 3.) At his deposition in this matter, Dr. Anderson gave a detailed explanation as to why he believed the impairments should be added rather than combined. He testified when the applicant's thyroid was removed, it led to impaired swallowing and saliva function, which in turn led to impaired nutrition and made his overall recovery more difficult. (Joint Exhibit WW, Transcript of the deposition of Agreed Medical Evaluator Scott Anderson, M.D., dated October 9, 2019, Pages 29, 30 and 33-37.) I found that Dr. Anderson's opinion that the impairments for the thyroid disease, loss of skin in the neck, difficulties with speech and swallowing/deglutition should be added, rather than combined, is substantial medical evidence.

work activityfavours Applicant prevailed

Vocational expert Scott Simon's opinion that the applicant is not amenable to rehabilitation

From the decision · page 1In addition to the reasons discussed by the WCJ in the Report and Opinion on Decision, we note that a finding of permanent total disability may also be based upon the opinions of agreed medical examiner (AME) Scott Anderson, M.D., and vocational expert Scott Simon (applicant's Exhibit 2) that establish applicant's inability to participate in vocational rehabilitation and return to gainful employment. (Ogilvie v. City and County of San Francisco (2011) 197 Cal.App.4th 1262 [76 Cal.Comp.Cases 624], LeBoeuf v. Workers' Comp. Appeals Bd. (1983) 34 Cal.3d 234 [48 Cal.Comp.Cases 587].)

ADJ11930142 · November 19, 2021