ADJ3802146 — California WCAB decision

What the panel ordered

The WCJ's February 11, 2022 Findings of Fact and Award is rescinded and the matter is returned to the trial level for further proceedings and development of the record.

Applicant sought reconsideration of the Findings of Fact and Award issued on February 11, 2022, by the WCJ. The WCJ found applicant was not 100% permanently totally disabled but awarded 80% permanent partial disability. The WCJ's decision was rescinded and the matter returned to the trial level for further proceedings and record development.

Read the official 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 ratingRemandedshoulders · knees · wrists · psyche · heart · hips · psoriatic arthritis · sleep disorder

The WCJ's award of 80% permanent partial disability after apportionment was rescinded because the matter requires further development of the record, particularly regarding medical evidence on work restrictions and apportionment.

From the decision · page 1Applicant seeks reconsideration of the "Findings of Fact and Award" (F&A) issued on February 11, 2022, by the workers' compensation administrative law judge (WCJ). The WCJ found, in pertinent part, that applicant was not 100% permanently totally disabled and instead awarded 80% permanent partial disability with a corresponding life pension pursuant to the stipulations of the parties.

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 · dermatology

Diagnosed psoriasis and dyshidrosis aggravated by industrial exposures with 30% industrial causation.

From the decision · page 3Applicant was evaluated by dermatology qualified medical evaluator (QME) Paul McKenna, M.D., who authored four reports in evidence. (Applicant's Exhibits 1 through 4.) Dr. McKenna took a history of applicant developing a skin rash diagnosed as psoriasis around December 2003. (Applicant's Exhibit 1, Report of Paul McKenna, M.D., May 2, 2005, p. 2.) Dr. McKenna noted that applicant had a history of both work stress, non-industrial work stress, and a recent use of green nitrile gloves. (Id. at pp. 9-10.) He diagnosed applicant with psoriasis and dyshidrosis, which were aggravated by industrial exposures. (Id. at p. 10.) He found 30% industrial causation. (Id. at p. 11.)

AMERelied upon · internal medicine

Restricted applicant to no excessive stress and no heavy lifting.

From the decision · page 3Applicant was evaluated in internal medicine by agreed medical evaluator (AME) Craig Joseph, M.D., who authored three reports in evidence. (Joint Exhibits 101 through 103.) Dr. Joseph restricted applicant to no excessive stress and no heavy lifting. (Joint Exhibit 102, Report of Craig Joseph, M.D., October 2, 2014, p. 27.)

AMERelied upon · psychiatry

Assigned GAF score of 55 with 45% non-industrial impairment and slight to moderate work function impairments.

From the decision · page 3Applicant was evaluated in psychology by agreed medical evaluator (AME) Richard Greenberg, M.D., who authored two reports in evidence. (Joint Exhibits 104 and 105.) Dr. Greenberg assigned applicant a GAF score of 55, of which 45% was found to be non-industrial. (Joint Exhibits 104, Report of Richard Greenberg, M.D., June 7, 2012, pp. 50-51.) He opined that applicant had slight to moderate impairment in the following work functions: ability to comprehend and follow instructions; ability to perform simple and repetitive tasks; ability to maintain work pace appropriate to given work load; ability to perform complex or varied tasks; ability to relate to other people beyond giving and receiving instructions; ability to influence

AMERelied upon · orthopedics

Assigned work restrictions consistent over evaluations in 2009 and 2011.

From the decision · page 4Applicant was evaluated by orthopedic agreed medical evaluator (AME) Phillip Kanter, M.D., who authored two reports in evidence. (Joint Exhibits 106 and 107.) Dr. Kanter assigned the following work restrictions:

AMERelied upon · rheumatology

Evaluated psoriatic arthritis, deferred work restrictions to Dr. Kanter, and provided a rating with 30% non-industrial apportionment.

From the decision · page 4Levine, M.D., who authored three reports in evidence and was deposed. (Joint Exhibits 108 through 111.) Dr. Levine evaluated applicant's psoriatic arthritis and provide a rating to it, but deferred to Dr. Kanter to address work restrictions. (Joint Exhibit 109, Report of Seymour Levine, M.D., August 26, 2011, p. 23.)

The rules the panel named

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

Nunes v. State of California, Dept. of Motor Vehicles (2023) 88 Cal.Comp.Cases 741

Labor Code section 4663 requires a reporting physician to make an apportionment determination and prescribes the standard for apportionment; vocational apportionment is not valid.

Vocational evidence may address permanent disability but cannot substitute for medical apportionment.

From the decision · page 124. `Vocational Apportionment' and Rebuttal of the PDRS under Ogilvie In the en banc decision in Nunes v. State of California, Dept. of Motor Vehicles (June 22, 2023) 2023 Cal. Wrk. Comp. LEXIS 30 [88 Cal.Comp.Cases 741] ("Nunes I"), the Appeals Board held that Labor Code section 4663 requires a reporting physician to make an apportionment determination and prescribes the standard for apportionment, and that the Labor Code makes no statutory provision for "vocational apportionment." The Board further held that vocational evidence may be used to address issues relevant to the determination of permanent disability, and that vocational evidence must address apportionment, but such evidence may not substitute impermissible "vocational apportionment" in place of otherwise valid medical apportionment. The Board explained that an analysis of whether there are valid sources of apportionment is still required, even when applicant is deemed not feasible for vocational retraining and is permanently and totally disabled as a result. In such cases, the WCJ must determine whether the cause of the permanent and total disability includes nonindustrial or prior industrial factors, or whether the permanent disability reflected in applicant's inability to meaningfully participate in vocational

East Bay Municipal Utility District v. Workers' Compensation Appeals Board (Kite) (2013) 78 Cal.Comp.Cases 213

The Combined Values Chart (CVC) may be rebutted by substantial medical evidence showing a synergistic effect of injuries on activities of daily living (ADLs).

Synergistic amplification of ADLs allows adding impairments beyond the CVC.

From the decision · page 11b. Overlapping ADLs with a Synergistic Effect The next method for rebutting the CVC was first discussed in East Bay Municipal Utility District v. Workers' Compensation Appeals Board, (Kite), where applicant was awarded permanent disability by adding the permanent disability to each hip and not by combing the disabilities as ordinarily required by the PDRS under the CVC.

ADJ3802146 · May 3, 2024

What the panel ordered

What was disputed, and how it came out

Your case already resembles someone else’s. Find whose.

The facts that decided it

What the panel did with the medical opinions

The rules the panel named

What proof carried it

About this page