ADJ9352174 — California WCAB decision

What the panel ordered

Petition for Reconsideration denied.

Defendant sought reconsideration of the Findings of Fact, Awards and Orders issued on November 30, 2023, which the WCAB panel denied on February 20, 2024.

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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 ratingApplicant prevailedright upper extremity · neck · teeth · psyche · left wrist

The WCJ found the applicant sustained 100% permanent disability after combining impairments from right upper extremity CRPS, cervical spine, psychiatric, and dental injuries based on credible testimony and expert medical opinions supporting addition rather than combined values chart (CVC).

From the decision · page 1Defendant seeks reconsideration of the Findings of Fact, Awards and Orders (F&O) issued on November 30, 2023, wherein the workers' compensation administrative law judge (WCJ) found in pertinent part that (1) while employed as a supervising cook on June 20, 2012, applicant sustained injury to her right upper extremity, neck, teeth and psyche, with a sequela to her left wrist; (2) applicant requires further medical care to cure or relieve the effects of her industrial injury; (3) applicant sustained permanent disability of 100 percent after adjustments as a result of her industrial injury; (4) the date for commencement of permanent disability benefits was June 19, 2014; and (5) applicant's attorney provided valuable services on applicant's claim.

The facts that decided it

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

PQME reports provided well-reasoned explanations for adding psychiatric and dental impairments to physical impairments based on distinct impacts on activities of daily living.

Favours Applicant prevailed

Supported the finding that impairments should be added rather than combined using the CVC.

From the decision · page 7Here, as stated in the Opinion on Decision, Dr. Egert, the PQME in physical medicine and rehabilitation/pain management, opined that applicant's CRPS and cervical facet syndrome impairments should be combined using the CVC, and that these combined impairments should be added to the psychological and teeth/jaw impairments; Dr Piciucco, the PQME in psychology, also opined that applicant's psychological impairment should be added to the combined CRPS and cervical facet syndrome impairments; and Dr. Villafuerte, the PQME in dentistry, also opined that applicant's teeth/jaw impairments should be added to the combined CRPS and cervical facet syndrome impairments. (Opinion on Decision, pp. 4-5.)

Applicant's credible testimony that she does not use her right arm for activities of daily living and relies on her left arm.

Favours Applicant prevailed

Supported the WCJ's finding that Dr. Egert's impairment rating was more accurate and persuasive.

From the decision · page 3Applicant credibly testified at trial that the symptoms in her right arm cause her to rely on her left arm to perform day-to-day life activities. She is limited to lifting two pounds with her right arm but she will use her left arm to shift and steer while she is driving. On some days she could carry a cup of water and on other days she cannot do anything with her right hand. Based on Applicant's credible testimony Dr. Egert's use of Table 16-4 to establish 60% WPI is found more accurate and persuasive than Dr. Santaniello's use of Table 13-22.[fn.] Therefore, Dr. Egert's disability analysis is found to be more persuasive than Dr. Santaniello's and will be used for determination of Applicant's permanent disability.

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.

QMEPartially credited · Orthopedic Surgery

Found 39% WPI for right upper extremity CRPS, 5% WPI for cervical condition, no WPI for left upper extremity; opined 100% industrial apportionment and addition of psychiatric and jaw disability rather than CVC.

His WPI findings were less persuasive than Dr. Egert's due to underestimating loss of use of right arm.

From the decision · page 2Applicant was evaluated by Dr. John Santaniello, M.D. as a Panel Qualified Medical Examiner in the specialty of Orthopedic Surgery. Dr. Santaniello examined Applicant on June 5, 2013, February 20, 2018, and November 2, 2020, and issued reports dated June 5, 2013, February 20, 2018, November 2, 2020, December 11, 2020, April 18, 2022, and December 18, 2022. (Joint Ex. 4, 5, 6, 7, 8 & 9) Dr. Santaniello gave his expert medical opinion that Applicant has CRPS in her right upper extremity resulting in 39% Whole Person Impairment (WPI) based on Chapter 13, Table 13-22 of the AMA Guidelines 5th Edition, 5% WPI for her cervical condition based on Chapter 15, Table 15-5 and no WPI for her left upper extremity. (Joint Ex. 9 Pages 13 § 15) Dr. Santaniello also gave his expert opinion that Applicant's permanent disability in her right upper extremity and cervical spine were 100% apportioned to the industrial injury and should be combined with Applicant's psychiatric and T/jaw disability by addition rather than the CVC as there is no overlap between the systems or impairments. (Joint Ex. 8 Pages 3 § 4) Dr. Santaniello's WPI findings adjust as follows:

QMERelied upon · Physical Medicine & Rehabilitation/Pain Management

Found 60% WPI for right upper extremity CRPS based on nearly nonfunctional limb, 14% WPI for cervical impairment combined with soft tissue lesion; opined 100% industrial apportionment and addition of psychiatric and dental impairments.

His opinion was found more accurate and persuasive based on applicant's credible testimony of right arm limitations.

From the decision · page 2Applicant was evaluated by Dr. Robert Egert, M.D., as a Panel Qualified Medical Examiner in the specialty of Physical Medicine & Rehabilitation/Pain Management. Dr. Egert examined Applicant on July 14, 2016, September 27, 2017, October 22, 2020, and August 9, 2021, and issued reports dated July 14, 2016,

QMERelied upon · Psychology

Found 23% WPI for psychological injury with 100% industrial apportionment; opined psychological disability should be added to physical impairments.

His opinion was supported by medical record and consistent with other PQMEs and applicant's testimony.

From the decision · page 3Applicant was evaluated by Dr. Luigi Piciucco, Ph. D. as the Panel Qualified Medical Examiner for psychological issues. Dr. Piciucco examined Applicant on November 20, 2020, and issued reports dated November 23, 2020, and January 13, 2021. (Joint Ex. 10 & 11) He gave his expert medical opinion that Applicant has a GAF Score of 55 which equates to 23% WPI. He also determined that Applicant's psychological injury was caused by the industrial injury and that 100% of the psychological disability was apportioned to the industrial injury. (Joint Ex. 11) He also gives his expert opinion that the psychological disability should be added to the other disabilities as it is separate and distinct from the disabilities given by other specialists. He identified the psychiatric injury impacting Applicant's activities of daily living as moderate impairment reflected by sleep disturbance and sexual

QMERelied upon · Dentistry

Found 7% WPI for dental impairment caused by industrial injury; opined dental disability should be added to other impairments.

His opinion was supported by medical record and consistent with other PQMEs and applicant's testimony.

From the decision · page 4Applicant was evaluated by Dr. Ernesto Villafuerte, D.D.S. as the Panel Qualified Medical Examiner for dental issues. Dr. Villafuerte examined Applicant on April 8, 2016, and October 27, 2020, and issued reports dated April 8, 2016, October 27, 2020, and January10, 2021. (Joint Ex. 1, 2 & 3) Applicant's use of pain medications to relieve the symptoms of her industrial injury led to tooth decay resulting in extraction of all of her teeth. She now wears permanent upper and lower fixed prosthesis over 4 implants in the upper arch and 4 implants in the lower arch. He gave his expert opinion that Applicant has 7% WPI based on Applicant's problems with chewing pursuant to Table 11-7 of the AMA Guides 5th Edition. He determined Applicant's industrial injury caused the problems with her teeth and apportioned all of the disability to the industrial injury. (Joint Ex. 2) He also gave his expert medical opinion that the disability related to Applicant's oral issues was separate from that established by other specialties and should be added to them and that the CVC should not be used. (Joint Ex. 1 page 2) The activities of daily living affected by the oral problems are also distinct from those caused by her orthopedic and psychiatric problems. (Joint Ex. 2 Page 3) Dr. Villafuerte's WPI adjusts as follows:

The rules the panel named

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

Braewood Convalescent Hosp. v. Workers' Comp. Appeals Bd. (Bolton) (1983) 34 Cal.3d 159

Substantial evidence standard for medical opinions in workers' compensation cases.

The WCJ's reliance on PQME reports was upheld as supported by substantial evidence.

From the decision · page 7described as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion and must be more than a mere scintilla. (Braewood Convalescent Hosp. v. Workers' Comp. Appeals Bd. (Bolton) (1983) 34 Cal.3d 159 [48 Cal.Comp.Cases 566].) To constitute substantial evidence "... a medical opinion must be framed in terms of reasonable medical probability, it must not be speculative, it must be based on pertinent facts and on an adequate examination and history, and it must set forth reasoning in support of its conclusions." (Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 621 (Appeals Board en banc).) "Medical reports and opinions are not substantial evidence if they are known to be erroneous, or if they are based on facts no longer germane, on inadequate medical histories and examinations, or on incorrect legal theories. Medical opinion also fails to support the Board's findings if it is based on surmise, speculation, conjecture or guess." (Hegglin v. Workmen's Comp. Appeals Bd. (1971) 4 Cal.3d 162, 169 [93 Cal. Rptr. 15, 480 P.2d 967, 36 Cal.Comp.Cases 93, 97].)

Almaraz v. Environmental Recovery Services/Guzman v. Milpitas Unified School District (2009) 74 Cal.Comp.Cases 1084

AMA Guides 5th Edition and Almaraz/Guzman II for rating whole person impairment and combining impairments.

Physicians may use clinical judgment to add impairments rather than use the Combined Values Chart when supported by medical evidence.

From the decision · page 9In Almaraz v. Environmental Recovery Services/Guzman v. Milpitas Unified School District (2009) 74 Cal.Comp.Cases 1084, 1086 (Appeals Board en banc) (Almaraz/Guzman II).), the Appeals Board stated that "when determining an injured employee's WPI, it is not permissible to go outside the four comers of the AMA Guides; however, a physician may utilize any chapter, table, or method in the AMA Guides that most accurately reflects the injured employee's impairment. (Id. at p. 1086.)

ADJ9352174 · February 20, 2024

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