What the panel ordered
Petition for Reconsideration denied.
Petition for Reconsideration filed by defense counsel challenging the rating method of the AME report; WCJ report recommended denial of 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.
The WCJ and panel found substantial medical evidence supporting the addition of orthopedic disability to cognitive dysfunction and sleep/arousal disability based on the AME Dr. Silverman's reasonably articulated medical basis and synergistic effect.
From the decision · page 1Here, the WCJ determined that applicant's orthopedic disability should be added rather than combined with her cognitive dysfunction and sleep/arousal disability. (Formal Rating Instructions, dated October 21, 2022, p. 2; Report and Recommendation on Petition for Reconsideration, dated December 20, 2022, at p. 3.) The WCJ based her decision on the recommendations of Stuart Silverman, M.D., the Agreed Medical Examiner (AME) in rheumatology. (Opinion on Decision, dated November 21, 2022, at pp. 4-5.) Defendant contends Dr. Silverman offered only a conclusory statement in deposition that he "would add [orthopedic disability] to the rheumatological impairments," but otherwise failed to explain his reasoning in reaching this conclusion. (Petition for Reconsideration, dated December 9, 2022, at 3:22.)
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
AME Dr. Stuart Silverman opined that cognitive dysfunction and sleep/arousal impairments should be rated separately and added due to different physiologies and synergistic effect.
Favours Defendant prevailed
This medical opinion provided a substantial medical basis for the WCJ and panel to uphold the additive rating method rather than combining impairments.
From the decision · page 2However, we note that in his March 24, 2022 report, AME Dr. Silverman opined that, "[i]f we rate fatigue and cognitive impairment or functional losses, they need to be separately rated and are additive and cannot be used in the combined value scale since they are different physiologies." (Ex. 4, report of AME Stuart Silverman, M.D., dated March 24, 2022, at p. 6.) Additionally, Dr. Silverman testified in deposition that cognitive and sleep/arousal impairment should be added because they were based on separate physiological systems, and that there was synergistic effect between applicant's fatigue and sleep problems, and her cognitive function. (Ex. 5, transcript of the deposition of AME Stuart Silverman, M.D., at 21:4; 22:8.)
The WCJ adopted and incorporated the report recommending denial of the Petition for Reconsideration based on the AME's opinion.
Favours Defendant prevailed
The WCJ's report formed the basis for the panel's decision to deny reconsideration.
From the decision · page 1We have considered the allegations of the Petition for Reconsideration and the contents of the report of the workers' compensation administrative law judge (WCJ) with respect thereto. Based on our review of the record, and for the reasons stated in the WCJ's report, which we adopt and incorporate, and for the reasons discussed below, we will deny reconsideration.
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.
Recommended adding orthopedic disability to cognitive dysfunction and sleep/arousal disability due to different physiologies and synergistic effect; supported rating method for impairment.
Dr. Silverman provided a reasonably articulated medical basis for adding impairments separately rather than combining, which was found substantial medical evidence by the WCJ and panel.
From the decision · page 1Here, the WCJ determined that applicant's orthopedic disability should be added rather than combined with her cognitive dysfunction and sleep/arousal disability. (Formal Rating Instructions, dated October 21, 2022, p. 2; Report and Recommendation on Petition for Reconsideration, dated December 20, 2022, at p. 3.) The WCJ based her decision on the recommendations of Stuart Silverman, M.D., the Agreed Medical Examiner (AME) in rheumatology. (Opinion on Decision, dated November 21, 2022, at pp. 4-5.) Defendant contends Dr. Silverman offered only a conclusory statement in deposition that he "would add [orthopedic disability] to the rheumatological impairments," but otherwise failed to explain his reasoning in reaching this conclusion. (Petition for Reconsideration, dated December 9, 2022, at 3:22.)
Recommended 4% whole person impairment for each hand/wrist injury; defendant did not challenge this rating.
Dr. Meier's orthopedic impairment ratings were accepted and not challenged in the Petition for Reconsideration.
From the decision · page 4At trial, defendant objected to the opinion of the orthopedic Agreed Medical Examiner, Dr. Steven Meier, as to the applicant's wrist disability for bilateral de Quervain's tenosynovitis and mild ulnar neuropathy across the elbow. Dr. Meier rebutted the AMA guides recommending 4% whole person impairment for each of applicant's hands/wrists. I found that recommendation reasonable. Defendant is not challenging that finding in his Petition for Reconsideration.
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Athens Administrators v. Workers' Comp. Appeals Bd. (Kite) (2013) 78 Cal.Comp.Cases 213
Adding impairments rather than combining them is appropriate when substantial medical evidence supports a synergistic effect, as held in Athens Administrators v. Workers' Comp. Appeals Bd. (Kite) (2013).
The panel applied this standard to uphold the WCJ's decision to add orthopedic disability to cognitive and sleep/arousal impairments based on AME Dr. Silverman's opinion.
From the decision · page 1In Athens Administrators v. Workers' Comp. Appeals Bd. (Kite) (2013) 78 Cal.Comp.Cases 213 (writ den.), we held that adding, rather than combining, two different impairments better reflected a worker's impairment when substantial medical evidence supported the notion that the two impairments had a synergistic effect where, in effect, the resultant impairment was more than the sum of the two impairments.
What proof carried it
The evidence the panel weighed, by kind.
Dr. Silverman's deposition testimony and reports supporting additive rating of impairments due to different physiologies and synergistic effect.
From the decision · page 2However, we note that in his March 24, 2022 report, AME Dr. Silverman opined that, "[i]f we rate fatigue and cognitive impairment or functional losses, they need to be separately rated and are additive and cannot be used in the combined value scale since they are different physiologies." (Ex. 4, report of AME Stuart Silverman, M.D., dated March 24, 2022, at p. 6.) Additionally, Dr. Silverman testified in deposition that cognitive and sleep/arousal impairment should be added because they were based on separate physiological systems, and that there was synergistic effect between applicant's fatigue and sleep problems, and her cognitive function. (Ex. 5, transcript of the deposition of AME Stuart Silverman, M.D., at 21:4; 22:8.)
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