ADJ2804586 — California WCAB decision

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 ratingDefendant prevailedbilateral knees · right hip · lumbar spine

Dr. Schwarz's opinions were found not to constitute substantial evidence to support addition of impairments rather than combining them using the Combined Values Chart, due to lack of analysis and contradictory statements.

From the decision · page 8Furthermore, the Court did not find that Dr. Schwartz' opinions constituted substantial medical evidence on the issue of adding impairments because the opinion was only an partial assessment of the analysis required and was contradictory to itself. In Kite, the medical evaluator noted that there was a "synergistic effect of the injury to the same body parts bilaterally versus body parts from different regions." (Athens Administrators v. Workers' Comp. Appeals Bd. (Kite), 78 Cal. Comp. Cases 213, 214), but legal precedent also dictates that the ratings must not overlap. Simply using the term "synergistic effect" is insufficient to rebut the schedule. Dr. Schwartz provides no analysis on how adding the bilateral knee and hip impairments would not be overlapping. Petitioner has cited no specific evidence in support thereof. The Court is unable to make this determination without substantial medical evidence.

Permanent disability ratingDefendant prevailed

The 2005 PDRS applies because there was no substantial medical evidence indicating permanent disability existed prior to January 1, 2005, as required by Labor Code section 4660(d).

The facts that decided it

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

No substantial medical evidence existed indicating permanent disability prior to January 1, 2005

Favours Defendant prevailed

This fact triggered the application of the 2005 PDRS rather than the 1997 PDRS for rating permanent disability

From the decision · page 8The determination that an injury has resulted or may result in permanent disability is a medical determination and the existence of any report by a treating physician indicating same is necessary in order to trigger the applicability of the 1997 PDRS. Petitioner expects the Court to make a leap of inference without substantial medical evidence alluding to the existence or even the possibility of permanent disability simply because a surgery occurred. Not all arthroscopic surgeries result in disability. The only evidence provided appeared to be discharge documentation and nothing more. In the instant matter, applicant continued to earn full wages, was able to perform his duties with care and self- modification for his knee and no evidence was presented by Petitioner to suggest anything else. Petitioner makes no reference to the evidence, or to case law or statute that would support its argument based on these facts. It is not the Court's burden to make arguments on Petitioner's behalf on appeal. (Dills v. Redwoods Associates, Ltd. (1994) 23 Cal.App.4th 888, 890, fn1).

Dr. Schwarz's opinions were contradictory and lacked probative value on whether impairments should be added or combined

Favours Defendant prevailed

The court rejected Dr. Schwarz's opinion, finding it insufficient to support addition of impairments, thus affirming the use of the Combined Values Chart for combining impairments

From the decision · page 9Last, Dr. Schwartz continued to waffle over this point as evidenced in his deposition, which the Court ultimately determined gave it no probative value on this point. He attempted to add all the impairments Joint Exhibit J, Deposition transcript, Dr. Schwarz, 8/19/19, 23:3-15) citing synergistic effect, but also confirmed he could not definitively state if the lumbar spine (and presumably right hip) should be added or combined with the lower extremities. He concluded that he would combine the lumbar spine after all, but did not state why he changed his mind. (Joint Exhibit J, Deposition transcript, Dr. Schwarz, 8/19/19, 22:10-20). The Court did not find Dr. Schwartz' opinion particularly helpful or that it constituted substantial medical evidence.

The rules the panel named

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

Labor Code section 4660(d)

Determines applicability of 1997 vs 2005 PDRS based on existence of medical evidence of permanent disability prior to 2005

From the decision · page 3Labor Code section 4660(d) states in part:

Aldi v. Carr, McClellan, Ingersoll, Thompson & Horn (2006) 71 Cal.Comp.Cases 783, 790 (Appeals Board en banc)

Clarifies that 2005 PDRS applies unless exceptions in Labor Code section 4660(d) are met

From the decision · page 3We hold that section 4660(d) requires that the revised permanent disability rating schedule be applied to injuries arising on or after the January 1, 2005 effective date of the rating schedule, subject to the specified exceptions for "compensable claims arising before January 1, 2005... " The prior rating schedule may only be used to rate permanent disabilities arising from compensable injuries that occurred prior to January 1, 2005, where one of the exceptions described in the third sentence of section 4660(d) has been established. If none of the specified exceptions is established, the revised permanent disability rating schedule applies to injuries occurring before its January 1, 2005 effective date. (Aldi v. Carr, McClellan, Ingersoll, Thompson & Horn (2006) 71 Cal.Comp.Cases 783, 790 (Appeals Board en banc).)

Athens Administrators v. Workers' Comp. Appeals Bd. (Kite), 78 Cal. Comp. Cases 213, 214

Establishes that impairments must not overlap and that addition of impairments requires substantial medical evidence

From the decision · page 8Furthermore, the Court did not find that Dr. Schwartz' opinions constituted substantial medical evidence on the issue of adding impairments because the opinion was only an partial assessment of the analysis required and was contradictory to itself. In Kite, the medical evaluator noted that there was a "synergistic effect of the injury to the same body parts bilaterally versus body parts from different regions." (Athens Administrators v. Workers' Comp. Appeals Bd. (Kite), 78 Cal. Comp. Cases 213, 214), but legal precedent also dictates that the ratings must not overlap. Simply using the term "synergistic effect" is insufficient to rebut the schedule. Dr. Schwartz provides no analysis on how adding the bilateral knee and hip impairments would not be overlapping. Petitioner has cited no specific evidence in support thereof. The Court is unable to make this determination without substantial medical evidence.

What proof carried it

The evidence the panel weighed, by kind.

Medical recordsfavours Defendant prevailed

Applicant's testimony and discharge documentation showed surgery but no substantial medical evidence of permanent disability prior to 2005

From the decision · page 8The determination that an injury has resulted or may result in permanent disability is a medical determination and the existence of any report by a treating physician indicating same is necessary in order to trigger the applicability of the 1997 PDRS. Petitioner expects the Court to make a leap of inference without substantial medical evidence alluding to the existence or even the possibility of permanent disability simply because a surgery occurred. Not all arthroscopic surgeries result in disability. The only evidence provided appeared to be discharge documentation and nothing more. In the instant matter, applicant continued to earn full wages, was able to perform his duties with care and self- modification for his knee and no evidence was presented by Petitioner to suggest anything else. Petitioner makes no reference to the evidence, or to case law or statute that would support its argument based on these facts. It is not the Court's burden to make arguments on Petitioner's behalf on appeal. (Dills v. Redwoods Associates, Ltd. (1994) 23 Cal.App.4th 888, 890, fn1).

expert methodologyfavours Defendant prevailed

Dr. Schwarz's contradictory opinions on impairment addition versus combination

From the decision · page 9Last, Dr. Schwartz continued to waffle over this point as evidenced in his deposition, which the Court ultimately determined gave it no probative value on this point. He attempted to add all the impairments Joint Exhibit J, Deposition transcript, Dr. Schwarz, 8/19/19, 23:3-15) citing synergistic effect, but also confirmed he could not definitively state if the lumbar spine (and presumably right hip) should be added or combined with the lower extremities. He concluded that he would combine the lumbar spine after all, but did not state why he changed his mind. (Joint Exhibit J, Deposition transcript, Dr. Schwarz, 8/19/19, 22:10-20). The Court did not find Dr. Schwartz' opinion particularly helpful or that it constituted substantial medical evidence.

ADJ2804586 · July 18, 2022

What was disputed, and how it came out

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The facts that decided it

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