ADJ10862354 · April 8, 2024

Applicant sustained overall 100% orthopedic permanent disability based on Dr. Newton's impairment analysis; psychiatric permanent disability need not be decided

From the decision · page 1As explained below, we will affirm the finding that applicant is permanently totally disabled. We find that applicant’s orthopedic condition caused permanent total disability, without

Defendant failed to carry burden of proving apportionment; Dr. Newton's apportionment opinion lacked substantial medical evidence as it did not explain in requisite detail how and why non-industrial conditions contributed to permanent disability

From the decision · page 5Here Dr. Newton did not explain in the requisite detail “how and why” non-industrial conditions were contributing to applicant’s permanent disability and did not adequately explain the level of apportionment decided upon. We therefore amend the decision to reflect that applicant is entitled to an unapportioned award of permanent disability.

Permanent disability indemnity payments commence after the last payment of temporary disability indemnity

From the decision · page 2With regard to the permanent disability indemnity start date, the WCJ correctly found that permanent disability indemnity payments were payable after the last payment of temporary disability indemnity.

Applicant sustained industrial injury on November 30, 2015 to right hand, left trigger thumb, left hand, left wrist, left upper extremity, psyche, and in the form of chronic regional pain syndrome

Favours Applicant prevailed

Established the industrial injury and body parts for which permanent total disability was awarded

From the decision · page 51. It is found the applicant, age 51 on the date of injury, while employed on November 30, 2015, at Santa Barbara, California by Gelson’s Market, sustained injury arising out of and in the course of employment to her right hand, left trigger thumb, left hand, left wrist, left upper extremity, psyche, and in the form of chronic regional pain

Dr. Newton's impairment analysis resulted in 64% WPI from bilateral upper extremity impairments that were added rather than combined due to significant ADL limitations

Favours Applicant prevailed

Formed the basis for finding 100% permanent total disability on orthopedic basis alone

From the decision · page 2Her right and left upper extremity whole person impairments should be added rather than combined and a total of 64% whole person impairment.

Defendant failed to carry burden of proving apportionment; Dr. Newton's apportionment opinion lacked substantial medical evidence

Favours Applicant prevailed

Resulted in unapportioned award of permanent disability

From the decision · page 5Here Dr. Newton did not explain in the requisite detail “how and why” non-industrial conditions were contributing to applicant’s permanent disability and did not adequately explain the level of apportionment decided upon. We therefore amend the decision to reflect that applicant is entitled to an unapportioned award of permanent disability.

Applicant has findings consistent with chronic regional pain syndrome of the right and left wrist; right upper extremity rated at 50% WPI using Table 13-16; left upper extremity rated at 14% WPI; impairments added rather than combined for total 64% WPI; overall limitations with ADLs significantly higher due to bilateral upper extremity limitations

Dr. Newton's rating criteria most accurately reflects applicant's impairment; rating based on accurate reflection of loss of function per AMA Guides Chapters 1 and 2

From the decision · page 3We therefore affirm the WCJ’s finding of overall 100% permanent disability based on Dr. Newton’s impairment analysis.

Almaraz v. Environmental Recovery Services (2009) 74 Cal.Comp.Cases 1127 (en banc); Milpitas Unified School District v. Workers' Comp. Appeals Bd. (Guzman) (2010) 187 Cal.App.4th 808

Almaraz/Guzman standard for rebutting scheduled permanent disability rating by establishing another chapter, table, or method within the AMA Guides most accurately reflects the injured employee's impairment

Dr. Newton's rating using Table 13-16 for chronic regional pain syndrome was properly relied upon as it most accurately reflects applicant's impairment

From the decision · page 3In Almaraz v. Environmental Recovery Services (2009) 74 Cal.Comp.Cases 1127 (Appeals Board en banc) (commonly known as, and hereinafter referred to as Almaraz II ), we held that a “scheduled permanent disability rating may be rebutted by successfully challenging the component element of that rating relating to the employee’s WPI under the AMA

Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604 (en banc)

Apportionment opinion must constitute substantial medical evidence by setting forth reasoning behind physician's opinion, describing in detail the exact nature of the apportionable disability, and setting forth the basis for the opinion

Dr. Newton's apportionment opinion lacked substantial medical evidence as it did not explain how and why non-industrial conditions contributed to permanent disability

From the decision · page 4While it is now well established that one may properly apportion to pathology and asymptomatic prior conditions (see, e.g. Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 617 [Appeals Bd. en banc]), an apportionment opinion must still constitute substantial medical evidence. As we explained in Escobedo:

Lab. Code, § 4650, subd. (b)(1); Brower v. David Jones Construction (2014) 79 Cal.Comp.Cases 550 (en banc)

Permanent disability indemnity liability commences after the last payment of temporary disability indemnity

Permanent disability indemnity payments payable after last payment of temporary disability indemnity

From the decision · page 5With regard to the permanent total disability start date, as correctly noted by the WCJ in the Report (p. 4), permanent disability indemnity liability commences after the last payment of temporary disability indemnity. (Lab. Code, § 4650, subd. (b)(1); Brower v. David Jones Construction (2014) 79 Cal.Comp.Cases 550, 560-562 [Appeals Bd. en banc].)

Dr. Newton's October 18, 2022 report finding applicant cannot use right upper extremity for self-care or ADLs, has no use of right wrist and hand, and has significant right upper extremity limitation

From the decision · page 2This applicant has findings consistent with chronic regional pain syndrome of the right and left wrist with the right significantly more affected than the left. This applicant's right dominant upper extremity is most accurately rated using the table 13-16. the applicant cannot use her right upper extremity for self-care or activities of daily living.

Dr. Newton's finding that applicant's right and left upper extremity whole person impairments should be added rather than combined due to significant limitation of both upper extremities and higher overall ADL limitations

From the decision · page 2Her right and left upper extremity whole person impairments should be added rather than combined and a total of 64% whole person impairment.

Dr. Newton's November 15, 2022 report initially opining apportionment was not indicated

From the decision · page 3However, we also find that defendant did not carry its burden of showing apportionment of the orthopedic permanent disability. We note that Dr. Newton initially opined that apportionment was not indicated. (November 15, 2022 report at p. 5.) However, in a subsequent supplemental report of March 7, 2023, Dr. Newton wrote:

Dr. Newton's March 7, 2023 supplemental report apportioning 25% to April 2000 injury and 75% to November 30, 2015 injury

From the decision · page 4To a reasonable degree of medical probability, 25% of this applicant's right and left wrist condition/disability/impairment is apportioned to the April 2000 injury after which she developed right upper extremity complex regional pain syndrome and 75% to the 11/30/15 injury.