What the panel ordered
Reconsideration granted; Finding of Fact and award amended to 87% permanent partial disability without apportionment; other findings affirmed; matter deferred for petition to reopen
Petition for Reconsideration granted, WCJ decision amended and otherwise affirmed
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 Board deferred issues related to new and further disability raised in the petition to reopen.
From the decision · page 18G. Issues related to applicant's petition to reopen should be deferred.
The Board granted reconsideration and amended the award to 87% permanent partial disability without apportionment, correcting an error in apportionment to a compensable consequence injury.
From the decision · page 20For the foregoing reasons, IT IS ORDERED that reconsideration of the September 15, 2021 Findings and Award is GRANTED. IT IS FURTHER ORDERED as the Decision After Reconsideration of the Workers' Compensation Appeals Board that the September 15, 2021 Findings and Award is AFFIRMED, EXCEPT that it is AMENDED as follows:
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Applicant sustained an industrial injury to lumbar spine, left ankle, and CRPS of left ankle on September 20, 2016
Favours Applicant prevailed
This injury was the basis for the permanent partial disability rating and award.
From the decision · page 2Applicant worked for Kohls Department Store as a retail sales clerk, when she sustained an admitted industrial injury to her lumbar spine, left ankle, and in the form of Complex Regional Pain Syndrome (CRPS) of the left ankle on September 20, 2016. (Minutes of Hearing and Summary of Evidence (MOH), June 24, 2021, p. 2, lines 10-19.) Applicant claimed further injury to her face, jaw, in the form of headaches, and in the form of CRPS to the upper and lower extremities. (Ibid.) Applicant was injured while pushing a rack of clothes, when she developed pain in the left ankle. (Joint Exhibit 101, Report of AME Mark Anderson, M.D., November 8, 2018, p. 4.)
The Board corrected an error in apportionment to a compensable consequence injury and amended the award to 87% permanent partial disability without apportionment
Favours Applicant prevailed
This correction increased the applicant's disability rating and award, favoring the applicant.
From the decision · page 18Applicant correctly points out that the parties stipulated to applicant sustaining a compensable consequence injury at the Panera restaurant one week after her industrial surgery. Accordingly, it was not proper to include the 10% apportionment that the AME awarded. An amended award should issue to correct that error. My apologies to the parties.
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.
Assigned 78% permanent partial disability after apportionment; opined 100% of permanent disability to ankle was industrial; deferred causation of CRPS to pain management specialist; opined applicant would need sheltered work environment and extra rest breaks due to medications.
The Board adopted and incorporated the WCJ's report which relied on Dr. Anderson's medical evaluations and opinions for the disability rating and apportionment issues.
From the decision · page 2Applicant was evaluated by agreed medical evaluator ("AME") Mark Anderson, M.D., who authored nine reports in evidence and was deposed twice.2 (Joint Exhibits 101 through 111.) Dr. Anderson took a history of initial injury, including a prior injury to the same body part, as follows:
Opined CRPS to left ankle and distal left lower extremity was industrial and caused by a combination of strain injury, industrial surgery, and non-industrial surgery; assigned work restrictions; disagreed with vocational evaluation methods.
The Board considered Dr. Gupta's reports and opinions on causation and work restrictions as part of the medical evidence for disability rating.
From the decision · page 4Applicant was evaluated by qualified medical evaluator (QME) Anuj Gupta, M.D., for comment upon causation of CRPS. Dr. Gupta issued four reports in evidence. (Joint Exhibits 112 through 115.)
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
California Labor Code
Permanent disability rating under Labor Code sections 4660 and 4660.1
The Board applied these statutes to determine the permanent partial disability rating and apportionment.
From the decision · page 1Applicant alleges that I acted in excess of my powers in denying permanent total disability in accordance with the fact per Labor Code1, sections 4660 and
What proof carried it
The evidence the panel weighed, by kind.
AME's opinions on medication effects and vocational rehabilitation were outside his expertise and not persuasive
From the decision · page 12I would also note that per Ogilvie and as described further in Dahl, the non- amenability to vocational rehabilitation must be due to industrial factors. (Contra Costa County v. Workers' Comp. Appeals Bd., (Dahl) 240 Cal. App. 4th 746.) Many of the prescriptions that the AME believe were impacting applicant's ability to rehabilitate were being prescribed long before applicant's industrial injury. The AME failed to offer any opinion on causation of such prescriptions and improperly assumed that the prescriptions were industrial. The AME's opinions on this matter are both outside his area of expertise and not persuasive given the medical record.
Applicant's vocational expert opined applicant may return to work despite work restrictions
From the decision · page 11Applicant failed to meet her burden of proof as her own vocational expert opined that applicant may return to work.
The same issues, filtered across the whole corpus — or paste your own facts and let the search rank by factor match.
About this page
- A published decision of the California Workers' Compensation Appeals Board, taken apart by what it turned on. The Board publishes the decision itself; this page adds the extraction and quotes the passage behind every claim.
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