ADJ9553015 · July 17, 2023

Both AMEs recommended adding impairments for tinnitus, headaches, dizziness, cognitive dysfunction, and psyche to cervical and lumbar spine impairments, supported by substantial evidence. Defendant's arguments regarding compensability and rating method were rejected. Applicant's credible testimony and vocational evidence supported 100% disability.

From the decision · page 12Here, as explained in the Opinion on Decision, both of the AMEs recommended adding the impairments for applicant's tinnitus, headaches, dizziness, cognitive dysfunction and psyche to the impairments for the cervical and lumbar spine. Further, both doctors explained that this would produce the most accurate rating. (Exhibit D at p. 15; Exhibit F at p. 4; Exhibit R at pp. 2-3.) Their recommendations were followed because their opinions constituted substantial evidence and there was nothing in the evidentiary file that would constitute good cause to set aside their determinations. (Power, supra, 179 Cal.App.3d 782.)

Both AMEs recommended adding impairments for tinnitus, headaches, dizziness, cognitive dysfunction, and psyche to the spinal impairments, and their opinions were found to be substantial evidence.

Favours Applicant prevailed

This medical evidence supported the method of rating and the finding of permanent total disability.

From the decision · page 12Here, as explained in the Opinion on Decision, both of the AMEs recommended adding the impairments for applicant's tinnitus, headaches, dizziness, cognitive dysfunction and psyche to the impairments for the cervical and lumbar spine. Further, both doctors explained that this would produce the most accurate rating. (Exhibit D at p. 15; Exhibit F at p. 4; Exhibit R at pp. 2-3.) Their recommendations were followed because their opinions constituted substantial evidence and there was nothing in the evidentiary file that would constitute good cause to set aside their determinations. (Power, supra, 179 Cal.App.3d 782.)

Applicant's credible trial testimony and vocational evaluation established inability to return to work and 100% loss of access to the open labor market.

Favours Applicant prevailed

Supported the finding of permanent total disability.

Recommended adding impairments for tinnitus, headaches, dizziness, cognitive dysfunction, and psyche to cervical and lumbar spine impairments; opined this would produce the most accurate rating; found applicant permanent and stationary and questioned ability to return to work; apportionment did not apply.

Both AMEs recommended adding impairments for applicant's conditions to the spinal impairments, and their opinions were followed as substantial evidence.

From the decision · page 12Here, as explained in the Opinion on Decision, both of the AMEs recommended adding the impairments for applicant's tinnitus, headaches, dizziness, cognitive dysfunction and psyche to the impairments for the cervical and lumbar spine. Further, both doctors explained that this would produce the most accurate rating. (Exhibit D at p. 15; Exhibit F at p. 4; Exhibit R at pp. 2-3.) Their recommendations were followed because their opinions constituted substantial evidence and there was nothing in the evidentiary file that would constitute good cause to set aside their determinations. (Power, supra, 179 Cal.App.3d 782.)

Recommended adding psychiatric and cognitive impairments to orthopedic impairments; found 80% of psychiatric impairment compensable and directly caused by work injury; provided detailed causation and impairment analysis.

Both AMEs recommended adding impairments for applicant's conditions to the spinal impairments, and their opinions were followed as substantial evidence.

From the decision · page 12Here, as explained in the Opinion on Decision, both of the AMEs recommended adding the impairments for applicant's tinnitus, headaches, dizziness, cognitive dysfunction and psyche to the impairments for the cervical and lumbar spine. Further, both doctors explained that this would produce the most accurate rating. (Exhibit D at p. 15; Exhibit F at p. 4; Exhibit R at pp. 2-3.) Their recommendations were followed because their opinions constituted substantial evidence and there was nothing in the evidentiary file that would constitute good cause to set aside their determinations. (Power, supra, 179 Cal.App.3d 782.)

Found tinnitus and its impact on sleep was a direct result of the injury; recommended 2% WPI for tinnitus interfering with sleep.

Dr. Ross's opinions on tinnitus and sleep disturbance were found well reasoned and supported compensability.

From the decision · page 11Continuing, Dr. Ross explained that applicant's tinnitus and its impact on applicant's sleep was a direct result of the injury. (Exhibit C-1 at p. 6.) His opinions are also well reasoned, and again, there is nothing in the record reflecting that the tinnitus and its resulting sleep disturbance was a compensable consequence of the injury. Accordingly, the impairment for the tinnitus is also compensable. (Wilson, supra, 84 Cal. Comp. Cases 403.

Lab. Code § 4660.1(c)

Section 4660.1(c) bars increases in impairment rating for psychiatric injuries that are compensable consequences of physical injuries, but not for direct psychiatric injuries caused by employment events.

Applied to determine compensability of psychiatric impairment; found 80% of applicant's psychiatric impairment compensable as directly caused by work injury.

From the decision · page 10Labor Code section 4660.1(c) provides in relevant part that, "the impairment ratings for sleep dysfunction, sexual dysfunction, or psychiatric disorder, or any combination thereof, arising out of a compensable physical injury shall not increase." (Cal Lab Code § 4660.1(c).) The Appeals Board issued an en banc case discussing the compensability of psychiatric injuries and this statute stating in relevant part that, "section 4660.1(c) does not apply to psychiatric injuries directly caused by events of employment. Section 4660.1(c)(1) only bars an increase in the employee's permanent impairment rating for a psychiatric injury that is a compensable consequence of a physical injury occurring on or after January 1, 2013. (Wilson v. State Cal Fire (2019) 84 Cal. Comp. Cases 393, 403 (Appeals Board en banc).)

Power v. Workers' Comp. Appeals Bd. (1986) 179 Cal.App.3d 775, 782

Opinion of an AME should be followed unless there is good reason to find it unpersuasive; substantial evidence standard for medical opinions.

Followed AME opinions as substantial evidence for impairment rating and causation.

From the decision · page 11Comp. Appeals Bd. (1970) 3 Cal. 3d 312; LeVesque v. Workmen's Comp. Appeals Bd. (1970) 1 Cal.3d 627.) 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).) Additionally, "the relevant and considered opinion of one physician, though inconsistent with other medical opinions, normally constitutes substantial evidence. [Citations.] Medical reports and opinions are not, however, substantial evidence if they are based on surmise, speculation, or conjecture, or if they are known to be erroneous or based on inadequate medical histories and examinations. [Citations.]" (Patterson v. Workers' Comp. Appeals Bd. (1975) 53 Cal.App.3d 916, 921.) Further, it is presumed that parties chose a physician to act as an agreed medical evaluator because of that physician's expertise and neutrality. (Power v. Workers' Comp. Appeals Bd. (1986) 179 Cal.App.3d 775, 782.) Therefore, an agreed medical evaluator's opinion should be followed unless there is good reason to find the opinion unpersuasive. (Ibid.)

Athens Administrators v. WCAB (Kite) (2013) 78 Cal.Comp.Cases 213

Adding, rather than combining, impairments is appropriate when substantial medical evidence supports that impairments do not overlap and adding produces the most accurate reflection of impairment.

Applied to add psychiatric, cognitive, and physical impairments for most accurate rating.

Applicant's credible trial testimony regarding job duties, symptoms, and inability to work.

From the decision · page 9As relevant herein, applicant testified during the trial that: As a Labor Forman, he was required to check work and lay pipe. He would go into the trenches and shovel. He did not operate heavy equipment. He fell while loading a ladder into his truck. He has dizziness, headaches, a buzzing in his ear, neck pain, and headaches. These symptoms are unpredictable and he has them often. He does not know why the physician who wrote Exhibit E-1 said that he was working because he has not worked since his accident. He would attend Alcoholics Anonymous meetings at San Quentin, but he did not work there. He got a dog at his son's suggestion for exercise, but had to put the dog down after a few months since he could not care for it and no one would take the dog. He will occasionally meet friends for coffee or breakfast. He does not think he can work because of his injuries. He has to nap and lie down. He does not recall telling anyone that his prior right knee injury caused problems with sleeping.