ADJ9385114 — California WCAB decision

ADJ9385114 · February 3, 2023

The panel denied the defendant's petition for reconsideration, affirming the WCJ's Findings and Award of 77% permanent disability after apportionment under Labor Code section 4663, and rejecting the defendant's argument for additional apportionment under section 4664.

Issues decided

Medical opinions weighed

Authorities named

District office

Santa Rosa

What the panel ordered

Defendant sought reconsideration of the WCJ's Findings and Award dated November 10, 2022, which found compensable industrial injury and permanent disability of 77%. The WCJ's report and recommendation on the petition was adopted by the panel.

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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 prevailedelbows · arms · thumbs · wrists · right shoulder

The WCJ properly applied apportionment under Labor Code section 4663 based on Dr. Yung's opinion and rejected additional apportionment under section 4664 due to lack of substantial medical evidence proving overlap with the prior injury rated under a different standard.

From the decision · page 1Defendant seeks reconsideration of a workers' compensation administrative law judge's (WCJ) Findings and Award of November 10, 2022, wherein it was found that while employed during a cumulative period ending on May 19, 2014 as a stocker/cashier, applicant sustained industrial injury to her elbows, arms, thumbs, wrists and to her right shoulder causing compensable permanent disability of 77%. In finding permanent disability of 77%, the WCJ found that the applicant rebutted the scheduled whole person impairment rating in the AMA Guides pursuant to Milpitas Unified School District v. Workers' Comp. Appeals Bd. (Guzman) (2010) 187 Cal.App.4th 808 [75 Cal.Comp.Cases 837]. Additionally, in making her permanent disability findings, the WCJ applied Labor Code section 4663 apportionment, but did not apply Labor Code section 4664 apportionment to a stipulated Award of September 10, 1991 for a cumulative injury through April 8, 1989.

The facts that decided it

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

Applicant sustained a cumulative industrial injury ending May 19, 2014, causing permanent disability to bilateral elbows, arms, thumbs, wrists, and right shoulder.

Favours Applicant prevailed

This established the compensable injury and basis for the permanent disability rating.

From the decision · page 1Defendant seeks reconsideration of a workers' compensation administrative law judge's (WCJ) Findings and Award of November 10, 2022, wherein it was found that while employed during a cumulative period ending on May 19, 2014 as a stocker/cashier, applicant sustained industrial injury to her elbows, arms, thumbs, wrists and to her right shoulder causing compensable permanent disability of 77%. In finding permanent disability of 77%, the WCJ found that the applicant rebutted the scheduled whole person impairment rating in the AMA Guides pursuant to Milpitas Unified School District v. Workers' Comp. Appeals Bd. (Guzman) (2010) 187 Cal.App.4th 808 [75 Cal.Comp.Cases 837]. Additionally, in making her permanent disability findings, the WCJ applied Labor Code section 4663 apportionment, but did not apply Labor Code section 4664 apportionment to a stipulated Award of September 10, 1991 for a cumulative injury through April 8, 1989.

Dr. Yung issued a 77% permanent disability rating after apportionment using Almaraz/Guzman analysis and Table 13-17 of the AMA Guides, considering activities of daily living limitations and chronic pain.

Favours Applicant prevailed

The rating method was upheld as appropriate and justified, supporting the disability finding.

From the decision · page 3In his evaluating report on August 1, 2017, Dr. Yung issued a 10% whole person impairment (WPI) for the right shoulder range of motion loss and 2% WPI for each thumb range of motion loss, as the strict AMA guides rating. (App. Exh. 7, Jeffrey Yung, M.D. August 1, 2017) Dr. Yung subsequently invoked Almaraz/Guzman to issue a 50% WPI based on Table 13-17 due to applicant's limitations of activities of daily living and difficulty with self-care activities. (Id.) Dr. Yung also imposed an additional 3% WPI based on chronic pain. He apportioned 10% of her right shoulder whole person impairment to her prior CT April 8, 1989 injury at Century Market. An additional 10% whole person impairment of her right wrist was apportioned to the applicant's prior fracture to the right wrist while roller blading and prior injury to the right wrist while working at Ray's Food. (Id.)

Defendant failed to prove overlap between the prior 1989 injury award and the current injury under Labor Code section 4664, and the prior injury was rated under a different standard making comparison speculative.

Favours Applicant prevailed

This led to rejection of additional apportionment under section 4664 and upheld the permanent disability rating after apportionment under section 4663.

From the decision · page 6The undersigned WCJ applied apportionment pursuant to Labor Code section 4663 according to Dr. Yung's opinion. Yet, the defendant failed to show overlap between the prior stipulated award and the cumulative trauma through May 19, 2014 pursuant to Labor Code section 4664. Dr. Yung failed to assess the applicant's whole person impairment from the prior injury under the AMA Guides. In fact, at petitioner's insistence, Dr. Yung repeatedly claimed that it would be speculative to rate the applicant's prior injuries under the AMA Guides. At his deposition, Dr. Yung specifically testified,

ADJ9385114 · February 3, 2023

What the panel ordered

What was disputed, and how it came out

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The facts that decided it

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