ADJ2958205 — California WCAB decision

ADJ2958205 · May 9, 2022

Defendant's Petition for Reconsideration is granted in part and denied in part; the Findings of Fact and Award of February 14, 2022 is amended to defer permanent disability and attorney's fees for re-rating and to correct a clerical error; all other findings are affirmed.

Issues decided

Medical opinions weighed

Authorities named

District office

Marina Del Rey

What the panel ordered

Defendant sought reconsideration of the WCJ's Findings of Fact and Award dated February 14, 2022; the WCAB granted reconsideration in part and amended the decision to defer permanent disability and attorney's fees for re-rating.

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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 ratingMixedlow back · psyche · neurologic system · gastroesophageal reflux disorder · sexual dysfunction · sleep disorder

The WCJ's permanent disability rating was found to include a duplicative sleep disorder rating; the WCAB deferred permanent disability for re-rating without the separate sleep disorder rating, affirming other apportionment findings and occupational group number findings based on credible testimony and medical evidence.

The facts that decided it

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

Applicant's credible and unrebutted testimony supported finding of dual occupational group numbers 214 and 380.

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.

QMERelied upon · neurologist

Sleep disorder is majorly contributed by pain and psyche; 10% nonindustrial pain, 45% industrial psyche, 45% industrial pain; sleep disorder caused by pain is encompassed by underlying pain-causing impairment.

Supports deferral of permanent disability rating without separate sleep disorder rating as duplicative.

QMERelied upon

Psychiatric permanent disability is 100% industrial with no non-industrial apportionment.

His opinion was relied upon as substantial medical evidence supporting no non-industrial apportionment for psychiatric disability.

From the decision · page 5Defendant challenges the apportionment determination of the panel QME Dr. Moussai. Applicant points out in her Answer that Defendant had the opportunity to change Dr. Moussai's opinion in his deposition set on 6/8/2020. This deposition transcript was admitted into evidence as Joint Exhibit Y.

QMERelied upon

Sexual dysfunction permanent disability arises as a separate and distinct injury related to lumbar spine surgery.

His opinion was credited as supporting a separate permanent disability rating for sexual dysfunction.

From the decision · page 6[T]he permanent disability identified by the Panel QME's, Dr. Mark Vogel [and] Dr. Said Rahban, document separate and distinct injuries within their medical specialties which are entitled to separate permanent disability ratings.

QMERelied upon

Gastroenterological conditions causing permanent disability are separate and distinct from other impairments.

His opinion was credited as supporting a separate permanent disability rating for GERD.

From the decision · page 6[T]he permanent disability identified by the Panel QME's, Dr. Mark Vogel [and] Dr. Said Rahban, document separate and distinct injuries within their medical specialties which are entitled to separate permanent disability ratings.

AMERelied upon

75% industrial apportionment attributed to lumbar spine impairment.

His apportionment opinion was incorporated in the amended Findings of Fact.

From the decision · page 43. There is 75% industrial apportionment attributed to applicant's lumbar spine impairment according to AME Dr. Steven Brourman. There is 100% apportionment attributed to applicant's psychiatric impairment according to the Panel QME Dr. Jacob Moussai. There is 100% apportionment attributed to applicant's internal (GERD) impairment according to the Panel QME Dr. Said Rabhan. There is 100% apportionment attributed to applicant's sexual dysfunction impairment according to the Panel QME Dr. Mark Vogel. [Reference to sleep disorder impairment and apportionment is redacted.]

What proof carried it

The evidence the panel weighed, by kind.

Testimony and credibilityfavours Applicant prevailed

Applicant's credible and unrebutted testimony regarding job duties and amendments to the Job Analysis supporting dual occupational group number 214 and 380.

From the decision · page 5Defendant objects to the WCJ's finding of dual occupation between occupational group numbers 214 and 380. Defendant argues that occupational group number of 214 is the most applicable group number to Applicant's job as a Special Events Coordinator. However, the Defendants argument in this regard ignores both the trial testimony of the Applicant concerning her job duties and Applicant's amendments to the Job Analysis. The credible and unrebutted testimony of the Applicant and the entire record supports the WCJ's finding of dual occupation.

Medical recordsfavours Applicant prevailed

Defendant offered no documentary or testimonial evidence to rebut Dr. Moussai's opinion that psychiatric permanent disability is 100% industrial.

From the decision · page 5The WCJ determined that the medical reporting of the Panel QME Dr. Moussai including his deposition testimony was substantial medical evidence regarding all of the issues he addressed including apportionment. The reporting and deposition of Panel QME Dr. Moussai is based on a thorough examination with an accurate history and his statement regarding apportionment is supported by substantial medical evidence. Defendant offered no documentary or testimonial evidence to rebut Dr. Moussai's opinion that Applicant's psychiatric permanent disability is 100% industrial. Ultimately, Defendant was unable meet

Medical recordsfavours Applicant prevailed

Defendant did not provide any documentary or testimonial evidence to challenge Dr. Vogel's opinion on sexual dysfunction permanent disability.

From the decision · page 6As Applicant points out in her Answer, The Panel QME Dr. Mark Vogel indicates that Applicant's diagnostic impression of female sexual aversion occurred as a result of her lumbar spine surgery and the two surgeries to relieve her of the effects of the injury. He indicates that not all lumbar surgeries result in develops sexual dysfunction. Dr. Vogel's reporting supports permanent disability arising from a separate and distinct part of the body. (See Exhibit Q) Defendant did not provide any documentary or testimonial evidence to challenge Dr. Vogel's opinion.

Medical recordsfavours Applicant prevailed

Defendant did not provide any documentary or testimonial evidence to challenge Dr. Rabhan's opinion on GERD permanent disability.

From the decision · page 6The Panel QME Dr. Said Rahban identifies separate and distinct gastroenterological conditions, which resulted in his diagnosis of cyclic vomiting syndrome in his 5/17/017 report. Defendant did not provide any documentary or testimonial evidence to challenge Dr. Rahban's opinion.

ADJ2958205 · May 9, 2022

What the panel ordered

What was disputed, and how it came out

The facts that decided it

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What the panel did with the medical opinions

The rules the panel named

What proof carried it

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