ADJ10496163 — California WCAB decision

What the panel ordered

Denied defendant's Petition for Reconsideration; granted applicant's Petition for Reconsideration; amended Findings and Award to remove apportionment and award permanent total disability; remanded for new award.

Petitions for reconsideration filed by applicant and defendant; WCJ issued Findings and Award on 2021-06-15; Board reviewed and issued decision on 2021-08-30.

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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 prevailedpsyche · neck · shoulders

The Board found Dr. Dixit's apportionment determination legally insufficient as it did not adequately support apportionment to pre-existing conditions, and granted applicant's petition to remove apportionment and award permanent total disability.

From the decision · page 1applicant, and Defendant City of San Jose, permissibly self-insured, seek reconsideration of the Findings and Award, issued June 15, 2021, wherein a workers' compensation administrative law judge (WCJ) found that as the result of an admitted cumulative trauma injury to his psyche while employed as a 911 Operator over the period July 20, 2003 through October 19, 2015, applicant sustained 70% permanent disability, after 30% apportionment to non-industrial causes.

The facts that decided it

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

Dr. Dixit's apportionment to pre-existing depression and chronic pain was not adequately supported or explained.

Favours Applicant prevailed

This lack of adequate support led the Board to find the apportionment legally insufficient and grant applicant's petition for reconsideration removing apportionment.

From the decision · page 2With regard to applicant's Petition for Reconsideration, we find Dr. Dixit's apportionment determination does not constitute legal apportionment as she does not adequately support the apportionment to pre-existing conditions. Accordingly, we will grant applicant's Petition for Reconsideration and amend the Findings and Award to award applicant an unapportioned award of permanent disability. We will return this matter to the trial level for a new award of permanent total disability.

Applicant's psychological condition is predominantly due to industrial injury with non-industrial factors playing a minor role.

Favours Applicant prevailed

Supports the removal of apportionment and awarding permanent total disability.

From the decision · page 4the applicant is currently experiencing symptoms of depression and anxiety that are predominantly a consequence of his industrial injury of 10/20/15. There is evidence to indicate that there are non-industrial factors, preceding his industrial injury that play a part in his current psychological distress. These continue to take the form of a lowgrade depression resulting from the passing of his daughter several years ago. It appears that the applicant continues to be mildly adversely affected by that loss. In addition, a part of the applicant's psychological distress is attributable to his chronic physical pain in his upper body-bilateral shoulders and neck. The pain is attributed to repetitive cumulative trauma of staring at multiple computer screens for long periods of time causing neck damage and data entry, while balancing the hands-free phone device. This issue is discussed under Apportionment. (Ex. V, 6/12/18 QME Report, p. 16.)

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 · psychiatry

Found applicant suffered PTSD, anxiety and depression; apportioned 20% of permanent disability to non-industrial factors including pre-existing depression related to daughter's death, and 10% to chronic neck and shoulder pain; found applicant permanently and stationary as of 8/27/2016; opined applicant not capable of meeting vocational requirements and totally disabled.

Dr. Dixit's apportionment was found legally insufficient by the Board as she did not adequately support apportionment to pre-existing conditions.

From the decision · page 1Applicant contests the award of 70% permanent disability, contending that he is entitled to an award of permanent total disability as the WCJ erred in apportioning 30% of applicant's permanent disability to non-industrial causes, because Dr. Aparna Dixit, the Qualified Medical Evaluator (QME) failed to adequately explain how non-industrial factors caused a percentage of his permanent disability. Applicant argues that Dr. Dixit's 20% apportionment to non-industrial personal factors causing mild depression was unrelated to his PTSD, and not proportional to his overall permanent disability. Applicant further argues that the WCJ improperly relied upon Dr. Dixit's 10% apportionment to his chronic neck and shoulder pain, as that pain was causally related to his work, and because Dr. Dixit did not explain how this factor caused 10% of his permanent disability.

PTPRelied upon · psychiatry

Treated applicant for major depression and PTSD; opined applicant unable to work anytime, anywhere without serious possibility of decompensation; supported total disability finding.

Dr. Henry's opinion supported total disability finding and rebutted AMA Guides ratings.

From the decision · page 12Dr. Michael Henry Ph.D was the treating physician who issued several reports. (App's. Exs. 1 to 5). Temporary disability was paid based upon his reporting wherein he diagnosed major depression and Post Traumatic Stress Disorder (App's Ex. 1).

ADJ10496163 · August 30, 2021

What the panel ordered

What was disputed, and how it came out

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The facts that decided it

What the panel did with the medical opinions

The rules the panel named

What proof carried it

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