ADJ7644093 — California WCAB decision

What the panel ordered

Petition for Reconsideration denied; Findings and Award affirmed.

Defendant filed a timely Petition for Reconsideration of the Findings and Award served March 8, 2021, contesting the permanent total disability award.

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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 total disabilityApplicant prevailedright shoulder · right leg · bilateral upper extremities · right lower extremity · lumbar spine · right elbow · right hip · right knee · psyche · internal

The WCJ found the applicant permanently totally disabled based on credible vocational and medical expert evidence, including unrebutted testimony, showing the applicant is unable to compete in the open labor market and is not amenable to vocational rehabilitation, consistent with Ogilvie and distinguished from Fitzpatrick.

The facts that decided it

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

Applicant sustained a catastrophic industrial injury on 9/14/2010 resulting in multiple surgeries and constant pain, especially in the right leg.

Favours Applicant prevailed

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.

PTPRelied upon · psychiatry

Found catastrophic physical injury with severe pain and complete loss of ability to return to work; total and permanent disability due to physical and psychological impairments.

Based on combination of physical and psychological injuries leading to total and permanent disability.

From the decision · page 6Dr. Shamie reports that the applicant has difficulty sleeping in part due to the pain (Exhibit 5 page 7, Exhibit 4 page 6, Exhibit 5 page 7). Dr. Shamie finds that the applicant has suffered a catastrophic physical injury followed by more than five years of severe pain and attempts to control the pain have failed, numerous surgeries have not relieved the pain, continuing physical impairments, and the applicant has suffered a complete loss of his ability to return to work. Dr. Shamie finds that a combination of the applicant's physical impairments and psychological impairments have led to the applicant being totally and permanently disabled (Exhibit 3 page 9).

QMERelied upon · psychiatry

Found applicant unable to compete in open labor market due to physical and mild to moderate psychiatric disability; apportioned 100% to industrial injury.

Combination of physical and psychiatric injuries prevent labor market competition.

From the decision · page 6Psych PQME Yatin Patel, M.D., "found that the applicant has not been able to perform his regular work duties as a consequence of the industrial

AMERelied upon · psychiatry

Could not foresee any job applicant could do in open labor market due to internal, orthopedic, and psychiatric disabilities; agreed with other experts on total permanent disability.

Based on all disabilities, applicant unable to compete in labor market.

From the decision · page 7Dr. Stalberg stated that based on all of the applicant's disabilities, internal, orthopedic, and psychiatric he could not foresee any job the applicant could do in the open labor market. Dr. Stalberg further stated that he is not a vocational expert but felt that further investigation would "be a waste of time as Applicant will never be returning to work." (Exhibit Y1 page 6). Dr. Stalberg also notes that the applicant's main problem with sleeping is caused by pain (Exhibit Y1 page 8 and 27). Dr. Stalberg testified in his deposition that he basically agreed with Dr. Patel that the applicant is unable to compete in the open labor market mainly due to his physical injuries but partially due to his mild to moderate psychiatric disability (Exhibit Y2 page 7 lines 5- page 8 line 8). Dr. Stalberg also

vocational_expertRelied upon

Both experts found applicant unemployable and not amenable to vocational rehabilitation due to industrial injury effects; absenteeism and bed-ridden days support unemployability.

Based on expert testimony and applicant's unrebutted testimony showing inability to maintain employment.

The rules the panel named

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

Labor Code section 4662(b)

Permanent total disability may be found in accordance with the fact under Labor Code section 4662(b) when vocational expert evidence shows greater loss of future earning capacity than the scheduled rating.

Applied to support finding of permanent total disability based on vocational and medical expert evidence.

From the decision · page 2Contrary to defendant's contention, the WCJ's determination was predicated on applicant's presentation of vocational expert evidence rebutting the diminished future earning capacity factor supplied by the rating schedule, as provided in Ogilvie v. Workers' Comp. Appeals Bd. (2011) 197 Cal.App.4th 1262 [76 Cal.Comp.Cases 624]. A primary method for rebutting the scheduled rating is based upon a determination that the injured worker is "not amenable to rehabilitation and, for that reason, the employee's diminished future earning capacity is greater than reflected in the scheduled rating." (Ogilvie, supra, at pp. 1274§ 1275.) This method for reaching 100% permanent disability was acknowledged in Fitzpatrick, as the court recognized that under Ogilvie, vocational expert opinion may be relied upon to establish that an injured worker has a greater loss of future earning capacity than provided by the permanent disability rating schedule. (Fitzpatrick, supra, at pp. 619-620.)

Ogilvie v. Workers' Comp. Appeals Bd. (2011) 197 Cal.App.4th 1262

Vocational expert opinion may rebut scheduled rating to establish greater loss of future earning capacity (Ogilvie v. WCAB).

Cited to support use of vocational expert evidence to rebut scheduled rating.

From the decision · page 2Contrary to defendant's contention, the WCJ's determination was predicated on applicant's presentation of vocational expert evidence rebutting the diminished future earning capacity factor supplied by the rating schedule, as provided in Ogilvie v. Workers' Comp. Appeals Bd. (2011) 197 Cal.App.4th 1262 [76 Cal.Comp.Cases 624]. A primary method for rebutting the scheduled rating is based upon a determination that the injured worker is "not amenable to rehabilitation and, for that reason, the employee's diminished future earning capacity is greater than reflected in the scheduled rating." (Ogilvie, supra, at pp. 1274§ 1275.) This method for reaching 100% permanent disability was acknowledged in Fitzpatrick, as the court recognized that under Ogilvie, vocational expert opinion may be relied upon to establish that an injured worker has a greater loss of future earning capacity than provided by the permanent disability rating schedule. (Fitzpatrick, supra, at pp. 619-620.)

Department of Corrections & Rehabilitation v. WCAB (Fitzpatrick) (2018) 27 Cal.App.5th 607

Fitzpatrick decision does not preclude finding of permanent total disability in accordance with the fact when vocational rebuttal evidence is presented.

Distinguished Fitzpatrick as not applicable where vocational rebuttal evidence is presented.

From the decision · page 2Additionally, we note defendant's contention that the WCJ applied an incorrect legal standard when determining that applicant had rebutted the scheduled permanent disability rating, in that she cited Labor Code section 4662(b), "in accordance with the fact," to find permanent total disability. Defendant argues that the finding of permanent total disability cannot be based on application of Section 4662(b), citing the decision in Fitzpatrick, supra, which held that a finding of permanent total disability must be based on application of the permanent disability rating schedule.

ADJ7644093 · May 24, 2021

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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