ADJ10843970 · August 6, 2022

The QME Dr. Kipperman found the psychiatric impairment was inextricably intertwined with the orthopedic injuries and the hostile work environment, making apportionment impossible with reasonable medical certainty. The Board adopted the WCJ's report and denied the petition for reconsideration, affirming the 100% permanent disability award for all cases combined.

From the decision · page 3Petitioner's Contention: Defendant contends the QME Dr. Allan Kipperman's opinion that he cannot apportion causation of disability between multiple injuries because applicant's various causes of disability are "inextricably intertwined" is conclusory and not substantial medical evidence.

The Board adopted the QME's opinion that the applicant is 100% permanently disabled due to the combined orthopedic and psychiatric injuries, with no apportionment possible. The award was affirmed and the petition for reconsideration denied.

From the decision · page 3Applicant suffered four injuries and a joint Findings and Award and Opinion on Decision issued on 05-19-2022 awarding applicant 100% permanent disability overall for all four cases. Applicant's three orthopedic claims case numbers ADJ8222844, ADJ10843970, and ADJ8827855 were accepted and not contested at trial. The fourth claim, case number ADJ8971975 is a cumulative trauma psychiatric injury ending 12-07-2012, wherein Dr. Allan L.Kipperman was selected as QME when applicant was unrepresented. Dr. Kipperman reported extensively on the facts of applicant's environment of harassment, including bullying and documented disparate treatment while she was working for capital projects department through the date of injury. Based on extensive records review, testing results, evaluation and reevaluation, Dr. Kipperman concluded that applicant sustained psychiatric injury due to the work environment. Dr. Kipperman also felt applicant's psychiatric impairment was the result of both emotional psychological ramifications of the work environment and sequela from the orthopedic injuries as well as compensable consequence conditions that are all intertwined. In the decision, 33 separate situations of harassment are found. Any contention by defendant that any of the incidents is a good faith

The Board found the psychiatric injury compensable as caused by the combination of orthopedic injuries and hostile work environment, supported by credible testimony and QME reports. The employer's contention that the injury was caused by lawful personnel actions was rejected due to lack of evidence and applicant's credible testimony.

From the decision · page 3Applicant suffered four injuries and a joint Findings and Award and Opinion on Decision issued on 05-19-2022 awarding applicant 100% permanent disability overall for all four cases. Applicant's three orthopedic claims case numbers ADJ8222844, ADJ10843970, and ADJ8827855 were accepted and not contested at trial. The fourth claim, case number ADJ8971975 is a cumulative trauma psychiatric injury ending 12-07-2012, wherein Dr. Allan L.Kipperman was selected as QME when applicant was unrepresented. Dr. Kipperman reported extensively on the facts of applicant's environment of harassment, including bullying and documented disparate treatment while she was working for capital projects department through the date of injury. Based on extensive records review, testing results, evaluation and reevaluation, Dr. Kipperman concluded that applicant sustained psychiatric injury due to the work environment. Dr. Kipperman also felt applicant's psychiatric impairment was the result of both emotional psychological ramifications of the work environment and sequela from the orthopedic injuries as well as compensable consequence conditions that are all intertwined. In the decision, 33 separate situations of harassment are found. Any contention by defendant that any of the incidents is a good faith

QME Dr. Allan Kipperman found the psychiatric impairment was inextricably intertwined with the orthopedic injuries and hostile work environment, making apportionment medically uncertain.

Favours Applicant prevailed

This finding supported the denial of defendant's petition for reconsideration and affirmed the 100% permanent disability award for all cases combined.

From the decision · page 3Petitioner's Contention: Defendant contends the QME Dr. Allan Kipperman's opinion that he cannot apportion causation of disability between multiple injuries because applicant's various causes of disability are "inextricably intertwined" is conclusory and not substantial medical evidence.

Applicant's credible testimony and extensive documentation of hostile work environment and harassment incidents.

Favours Applicant prevailed

Supported compensability of psychiatric injury and rejection of defendant's good faith personnel action defense.

From the decision · page 7QME Dr. Kipperman developed "rapport" with applicant and described her sincere and ashamed, embarrassed, and self-conscious about revealing her emotional state. (Ex. 108 at 36, 62; Ex. 104 at 4.) There is no doubt that Dr. Kipperman found applicant credible and her testimony over two days of trial is consistent with the extensive reporting of Dr. Kipperman. Applicant was an extremely credible witness at trial.

Found psychiatric injury due to work environment and orthopedic injuries, with psychiatric impairment inextricably intertwined with orthopedic injuries and hostile work environment, making apportionment impossible.

The psychiatric impairment flowed from emotional and psychological ramifications and sequelae of orthopedic injuries and compromised activities of daily living, making apportionment medically uncertain.

From the decision · page 3Petitioner's Contention: Defendant contends the QME Dr. Allan Kipperman's opinion that he cannot apportion causation of disability between multiple injuries because applicant's various causes of disability are "inextricably intertwined" is conclusory and not substantial medical evidence.

Provided apportionment ratings for orthopedic injuries: 18% for back, 3% for neck, 1% each for knees, 5% for groin, and combined 34% for bilateral wrists.

His apportionment ratings were noted but the psychiatric impairment was found inextricably intertwined and not apportionable.

From the decision · page 4Defendant requested further clarification as to why the QME could not apportion and Dr. Kipperman issued the report of 07-23-2021, admitted as exhibit 102. Defendant's advocacy letter is partially summarized in exhibit 102 and defendant notes that the orthopedic AME Dr. Warbritton found apportionment of 10% for the low back disability and 50% apportionment for the bilateral knees. In response, Dr. Kipperman explained:

Provided psychological testing incorporated by QME and vocational experts, noting psychological issues limit vocational success despite orthopedic limitations.

California Labor Code

Labor Code section 3208.3

Applied to determine compensability and apportionment of psychiatric injury.

From the decision · page 10Based on the QME and affirmed during uncontroverted and credible testimony at trial, applicant has met her initial burden of proof under Labor Code section 3208.3 to show by a preponderance of evidence that actual events of employment were predominanant as to all causes combinned of the psychiatric injury. The cause of the psychological impairment is a combination of the effects of the accepted orthopedic injuries and the hostile work environment outlined above.

California Labor Code

Labor Code section 4662

Applied to permanent disability rating and apportionment.

From the decision · page 6In case number ADJ8222844, for date of injury 11-27-2007, applicant sustained injury to the back, neck, bilateral knees and shoulders. She was coming from a meeting regarding Doe Library when a student on a bicycle hit her from behind. It was an extremely hard impact, as he was coming downhill on Oxford Street with quite a bit of speed. The bike wheel went between her legs, the pedal was in her knee, and the handlebars hit her. The bike picked her up, and it was like a hit and then whiplash. She injured her knees, legs, spine meaning her back including the lower and upper, neck, and shoulders. This injury and all the body parts are accepted. The parties agree that based on AME Dr. John Warbritton, the back rates 18% permanent disability, the neck rates 3% permanent disability and the knees each rate 1%, for a combined permanent disability rating of 22%.

Applicant's credible testimony and extensive documentation of hostile work environment and harassment incidents.

From the decision · page 7QME Dr. Kipperman developed "rapport" with applicant and described her sincere and ashamed, embarrassed, and self-conscious about revealing her emotional state. (Ex. 108 at 36, 62; Ex. 104 at 4.) There is no doubt that Dr. Kipperman found applicant credible and her testimony over two days of trial is consistent with the extensive reporting of Dr. Kipperman. Applicant was an extremely credible witness at trial.

QME Dr. Kipperman's extensive reports and evaluations over several years supporting psychiatric injury and intertwined causation.

From the decision · page 3Petitioner's Contention: Defendant contends the QME Dr. Allan Kipperman's opinion that he cannot apportion causation of disability between multiple injuries because applicant's various causes of disability are "inextricably intertwined" is conclusory and not substantial medical evidence.