ADJ10131609 · March 12, 2021

The Board found the medical evidence supporting permanent total disability was not substantial due to the AME's revised opinion removing the head injury component and the need for further development of the record to clarify the cause of applicant's symptoms and disability.

From the decision · page 5Dr. Richman's reporting on applicant's industrial impairments cannot be relied upon as substantial medical evidence in light of his subsequent consideration of the contemporaneous emergency room records of applicant's treatment for his industrial injury, which revealed that applicant denied he sustained an injury to his head, and which did not establish applicant sustained a loss of consciousness. While Dr. Richman determined that only his 10% WPI rating of applicant's traumatic head syndrome was no longer applicable, he has not provided an explanation for his findings with regard to applicant's symptoms which he had previously attributed directly to a posttraumatic head syndrome. Dr. Richman concluded that applicant still suffers from ratable industrial sequelae of anxiety, depression and headaches, and from lightheadedness associated with his anxiety, which he had attributed to a posttraumatic head syndrome.

Dr. Richman's amended opinion removed the 10% whole person impairment rating for posttraumatic head syndrome after reviewing emergency room records showing no head injury at the time of the accident.

Favours Defendant prevailed

This undermined the medical basis for the permanent total disability finding which was premised on the head injury and related impairments.

From the decision · page 5Dr. Richman's reporting on applicant's industrial impairments cannot be relied upon as substantial medical evidence in light of his subsequent consideration of the contemporaneous emergency room records of applicant's treatment for his industrial injury, which revealed that applicant denied he sustained an injury to his head, and which did not establish applicant sustained a loss of consciousness. While Dr. Richman determined that only his 10% WPI rating of applicant's traumatic head syndrome was no longer applicable, he has not provided an explanation for his findings with regard to applicant's symptoms which he had previously attributed directly to a posttraumatic head syndrome. Dr. Richman concluded that applicant still suffers from ratable industrial sequelae of anxiety, depression and headaches, and from lightheadedness associated with his anxiety, which he had attributed to a posttraumatic head syndrome.

Applicant's testimony of head injury and loss of consciousness was contradicted by contemporaneous emergency room records and inconsistencies in the record.

Favours Defendant prevailed

This affected the credibility of the claim of head injury and the medical opinions relying on it, impacting the permanent total disability finding.

From the decision · page 2to non-industrial factors, and were based on a non-existent head injury, which issues were not addressed by the vocational expert and renders his report not substantial evidence. Defendant also argues that the medical opinions on applicant's ability to return to the labor market are not substantial medical evidence because the limitations cited were based on the existence of an industrial head injury. Defendant further contests the credibility of applicant's testimony that he sustained a head injury and lost consciousness, as contemporaneous medical records fail to support his claim. Defendant cites to other inconsistencies in the record to demonstrate that applicant's testimony is not believable. Defendant next argues that the findings on applicant's benefit rate for temporary disability and permanent disability are inconsistent and not supported by applicant's actual earnings. Defendant next argues that Labor Code section 4660.1 prevents impairment ratings for sleep and psychiatric impairment. Finally, defendant argues applicant cannot rebut the scheduled rating pursuant to the methods provided in Ogilvie v. Workers' Comp. Appeals Bd. (2011) 197 Cal.App.4th 1262 [76 Cal.Comp.Cases 624], because Section 4660.1 eliminated reference to diminished future earning capacity.

Initially diagnosed posttraumatic head syndrome with headaches, anxiety, depression, and syncopal seizures causing neurologic impairment and rated whole person impairment including 10% WPI for head syndrome. Later amended opinion removing 10% WPI for head syndrome after reviewing emergency room records showing no head injury at time of accident, but did not explain cause of symptoms attributed to head injury.

The Board found Dr. Richman's amended opinion insufficient to support the permanent total disability finding without further explanation of the cause of symptoms after removing head injury impairment.

From the decision · page 5Dr. Richman's reporting on applicant's industrial impairments cannot be relied upon as substantial medical evidence in light of his subsequent consideration of the contemporaneous emergency room records of applicant's treatment for his industrial injury, which revealed that applicant denied he sustained an injury to his head, and which did not establish applicant sustained a loss of consciousness. While Dr. Richman determined that only his 10% WPI rating of applicant's traumatic head syndrome was no longer applicable, he has not provided an explanation for his findings with regard to applicant's symptoms which he had previously attributed directly to a posttraumatic head syndrome. Dr. Richman concluded that applicant still suffers from ratable industrial sequelae of anxiety, depression and headaches, and from lightheadedness associated with his anxiety, which he had attributed to a posttraumatic head syndrome.

Labor Code section 4660.1; Ogilvie v. Workers' Comp. Appeals Bd. (2011) 197 Cal.App.4th 1262

Permanent disability rating must be based on impairment ratings obtained through application of the AMA Guides pursuant to Labor Code section 4660.1; rebuttal of scheduled rating pursuant to Ogilvie is still viable.

The Board held that the prior permanent total disability finding based on posttraumatic head syndrome was not supported and must be redetermined using the AMA Guides and Labor Code section 4660.1 methodology, with opportunity for rebuttal under Ogilvie.

From the decision · page 6Though he referenced the vocational expert's opinion, the WCJ disclaimed any reliance on Ogilvie v. Workers' Comp. Appeals Bd. (2011) 197 Cal.App.4th 1262 [76 Cal.Comp.Cases 624] to find applicant had rebutted the scheduled rating of his impairments. In the absence of a rebuttal based upon applicant's vocational evidence, the rating of applicant's permanent disability must be based on impairment ratings obtained through application of the AMA Guides pursuant to Labor Code section 4660.1. A finding of permanent disability cannot be based on Labor Code section 4662(b). (Department of Corrections and Rehabilitation v. Workers' Comp. Appeals Bd. (Fitzpatrick) (2018) 27 Cal.App.5th 607, 614 [83 Cal.Comp.Cases 1680].)

Applicant's testimony of head injury and loss of consciousness contradicted by contemporaneous emergency room records and inconsistencies in the record, undermining credibility.

From the decision · page 2to non-industrial factors, and were based on a non-existent head injury, which issues were not addressed by the vocational expert and renders his report not substantial evidence. Defendant also argues that the medical opinions on applicant's ability to return to the labor market are not substantial medical evidence because the limitations cited were based on the existence of an industrial head injury. Defendant further contests the credibility of applicant's testimony that he sustained a head injury and lost consciousness, as contemporaneous medical records fail to support his claim. Defendant cites to other inconsistencies in the record to demonstrate that applicant's testimony is not believable. Defendant next argues that the findings on applicant's benefit rate for temporary disability and permanent disability are inconsistent and not supported by applicant's actual earnings. Defendant next argues that Labor Code section 4660.1 prevents impairment ratings for sleep and psychiatric impairment. Finally, defendant argues applicant cannot rebut the scheduled rating pursuant to the methods provided in Ogilvie v. Workers' Comp. Appeals Bd. (2011) 197 Cal.App.4th 1262 [76 Cal.Comp.Cases 624], because Section 4660.1 eliminated reference to diminished future earning capacity.