What the panel ordered
Petition for Reconsideration is denied.
Defendant filed a Petition for Reconsideration of the Amended Findings & Award dated June 17, 2022, which was denied by the WCAB panel.
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.
The WCAB gave great weight to the WCJ's credibility determination and found no substantial evidence to reject it, thus denying the Petition for Reconsideration.
From the decision · page 1We have considered the allegations of the Petition for Reconsideration and the contents of the report of the workers' compensation administrative law judge (WCJ) with respect thereto. Based on our review of the record, and for the reasons stated in the WCJ's report, which we adopt and incorporate, we will deny reconsideration.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Applicant's trial testimony supported that merchandising was an integral part of her job as store manager, justifying the use of occupational group 360 for permanent disability rating.
Favours Applicant prevailed
This finding supported the WCJ's use of the dual occupation rule and the increased permanent disability rating from 56% to 64%.
From the decision · page 3INTRODUCTION By a timely and verified Petition for Reconsideration (Petition) dated and e-filed on July 11, 2022, defense counsel Slade Neigbors seeks reconsideration of the Amended Findings & Award with Opinion on Decision (Amended F&A) dated and served on June 17, 2022, which found injury AOE/COE to Applicant's low back and bilateral hands and wrists, with permanent disability of 64%, based on the reporting of the AME, Steven Isono, M.D., and awarded further medical treatment for those body parts. That Amended F&A issued pursuant to Rule 10961(c) (Tit. 8, Cal.Code.Regs. § 10961(c)),1 in response to Applicant attorney's earlier Petition for Reconsideration dated June 2, 2022, filed in response to my original Findings and Award with Opinion on Decision dated June 2, 2022. In the Amended F&A, I changed my finding of the applicable occupational group from 212 to 360, which in turn resulted in a significant increase in the awarded PD from 56% to 64%.
Dr. Isono's medical opinions using Almaraz/Guzman and Kite methods were sufficiently explained and constituted substantial medical evidence for impairment ratings.
Favours Applicant prevailed
These opinions were relied upon by the WCJ and upheld by the WCAB panel, supporting the permanent disability rating and further medical treatment.
From the decision · page 9The second claimed substantive error in the Petition is really the intertwined issues of the AME Dr. Isono's Almaraz/Guzman rating for the bilateral upper extremities and his adding that impairment to his impairment for the low back pursuant to Kite rather than using the Combined Value Chart (CVC) of the PDRS. (Petition at pp. 5-7.) Rather than breaking these out as separate issues, the Petition lumps them together. (Id.) Although the Petition cites boilerplate authority, I agree and there is no dispute that it is Applicant's burden to rebut the presumed scheduled ratings and the use of the CVC, which applies when both Almaraz/Guzman and/or Kite are invoked by the medical-legal evaluator. However, after reviewing the record again in responding to the Petition, I remain convinced that Applicant has meet that burden in this case and that I was not mistaken in finding the opinions of the AME, Dr. Isono, to be substantial medical evidence on both those points.
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.
Performed lumbar surgery on the Applicant on September 30, 2015.
From the decision · page 4BACKGROUND A summary of the relevant facts follows, which is an abridged version of the facts outlined in the Amended F&A at pages 4-6. Applicant was employed as a men's clothing store manager by Jos. A. Bank. (MOH/SOE at p. 4, Joint 101, Report of 6/5/19 at p. 2.) She sustained an accepted low back injury on October 15, 2014, while lifting a box with a computer printer that she intended to install in her office in the store. She continued to work on nominal modified duty for a few months thereafter, but eventually had lumbar surgery on September 30, 2015 with Dr. Abid Quereshi. (Joint 106 at pp. 2-3.) At the time of her first
Performed left wrist and thumb surgery including CMC resection on May 27, 2020.
From the decision · page 5By the time of Dr. Isono's fourth and final re-exam on May 4, 2021, the Applicant had undergone a left wrist and thumb surgery, which included a CMC resection, with Dr. Mathias Masem on May 27, 2020. Dr. Isono reviewed and discussed these procedures and related records in that report. (Joint 103 at pp. 2-3.) He also found the applicant to be P&S and provided impairment ratings and apportionment opinions. (Id. at pp. 9-11.) Specifically, he used the ROM method to rate the lumbar spine at 22% whole person impairment (WPI), and provided a 3 WPI pain add on, which although not specifically
Dr. Isono provided substantial medical evidence supporting the permanent disability rating using Almaraz/Guzman and Kite methods for the upper extremities and low back, which was upheld by the WCJ and WCAB panel.
The Petition challenged the AME's rating methods but the WCJ and WCAB found Dr. Isono's opinions sufficiently explained and substantial.
From the decision · page 3INTRODUCTION By a timely and verified Petition for Reconsideration (Petition) dated and e-filed on July 11, 2022, defense counsel Slade Neigbors seeks reconsideration of the Amended Findings & Award with Opinion on Decision (Amended F&A) dated and served on June 17, 2022, which found injury AOE/COE to Applicant's low back and bilateral hands and wrists, with permanent disability of 64%, based on the reporting of the AME, Steven Isono, M.D., and awarded further medical treatment for those body parts. That Amended F&A issued pursuant to Rule 10961(c) (Tit. 8, Cal.Code.Regs. § 10961(c)),1 in response to Applicant attorney's earlier Petition for Reconsideration dated June 2, 2022, filed in response to my original Findings and Award with Opinion on Decision dated June 2, 2022. In the Amended F&A, I changed my finding of the applicable occupational group from 212 to 360, which in turn resulted in a significant increase in the awarded PD from 56% to 64%.
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Labor Code section 5952(d)
Findings and awards must be supported by substantial evidence in light of the entire record.
Applied to assess the sufficiency of evidence supporting the Findings and Award.
From the decision · page 9ALMARAZ/GUZMAN AND KITE ISSUES As I noted in the Amended F&A at page 6, any finding or award by a WCJ must be supported by substantial evidence in light of the entire record. (Labor Code section 5952(d); Escobedo v. Marshalls (2005) (Appeals Board en banc) 70 Cal.Comp.Cases 604,
Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604
Expert medical opinion must be framed in terms of reasonable medical probability, based on accurate history and examination, and must set forth reasoning to support conclusions.
Applied to evaluate the AME's medical opinions on impairment ratings.
From the decision · page 9ALMARAZ/GUZMAN AND KITE ISSUES As I noted in the Amended F&A at page 6, any finding or award by a WCJ must be supported by substantial evidence in light of the entire record. (Labor Code section 5952(d); Escobedo v. Marshalls (2005) (Appeals Board en banc) 70 Cal.Comp.Cases 604,
Power v. Workers' Comp. Appeals Bd. (1986) 179 Cal.App.3d 775
AME opinions have special legal significance and are ordinarily followed unless found unpersuasive.
AME opinions of Dr. Isono were given special weight and followed by the WCJ and WCAB panel.
From the decision · page 10compensation law. Specifically, the opinions of AMEs should and will ordinarily be followed by a judge, unless there is good reason to find them unpersuasive. (Power v. Workers' Comp. Appeals Bd. (1986) 179 Cal.App.3d 775 [51 Cal.Comp.Cases 114]; Siqueros v. Workers' Comp. Appeals Bd. (1985) 60 Cal.Comp.Cases 150 (writ den.).) As a result, the opinions of Dr. Isono in this case have unique and special weight and should be followed absent a compelling reason and/or good cause not to do so. Since I believe he has sufficiently explained those opinions despite the Petition's conclusory assertions otherwise, they stand unrebutted and in my view constitute substantial medical evidence, which is why I used them to rate the Applicant's PD. I also note that Dr. Isono is a very experienced AME quality orthopedist who is well known and well respected at the Oakland Board, is used almost exclusively as an AME, and based on my six plus years of experience as a WCJ seeing him report in many cases, is an excellent physician who knows and is familiar with the relevant portions of California workers' compensation law related to medical/legal evaluations.
What proof carried it
The evidence the panel weighed, by kind.
WCJ's credibility determination given great weight due to opportunity to observe witness demeanor.
From the decision · page 1We have given the WCJ's credibility determination great weight because the WCJ had the opportunity to observe the demeanor of the witness. (Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312, 318-319 [35 Cal.Comp.Cases 500].) Furthermore, we conclude there is no evidence of considerable substantiality that would warrant rejecting the WCJ's credibility determination. (Id.)
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