California WCABPanel decision

ADJ12265574 · October 14, 2024

The WCAB granted defendant's petition for reconsideration, rescinded the July 12, 2024 Findings and Award, amended findings regarding injured body parts and average weekly wage, and deferred issues of permanent disability, apportionment, and attorney fees.

Issues decided: 2
Medical opinions weighed: 2
Authorities named: 3
District office: Santa Barbara

What the panel ordered

Defendant petitioned for reconsideration of the July 12, 2024 Findings and Award; the WCAB granted reconsideration, rescinded the prior decision, and issued a new decision on October 14, 2024.

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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.

Earnings / average weekly earningsApplicant prevailed

Reopening / new and further disabilityDeferredmouth/teeth · cranial nerve · digestive tract · psyche · head · lumbar spine · cervical spine

The WCAB found the medical evidence regarding addition versus combination of disabilities was incomplete and did not conform to the en banc Vigil decision, thus deferring permanent disability, apportionment, and attorney fees for further development.

The facts that decided it

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

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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 · psychology

Opined applicant no longer had the ability to compete in the open labor market, supporting permanent and total disability without apportionment.

Supports finding of permanent and total disability without apportionment under the Kite doctrine.

From the decision · page 7Defendant's Petition also contends that the medical record does not substantiate the award of permanent and total disability. The F&A found applicant's industrial disability to be both permanent and total. (Finding of Fact No. 7.) The accompanying Opinion on Decision notes that psychology QME Dr. Rotnofsky opined that applicant no longer had the ability to compete in the

QMERejected · dentistry

Testified that dental, head, and facial disabilities should be added rather than combined, but did not adequately address ADLs overlap as required by Vigil en banc decision.

The opinion was found analytically incomplete and insufficient to support addition of disabilities without further ADL analysis.

From the decision · page 11rather than combined, Dr. Gabriel testified: "Absolutely. Her head and face injuries are stand-alone injuries... the stand-alone injuries are severe enough to be considered a -- a separate type of injury and should not be with the CVC...." (Ex. 7, Transcript of the Deposition of William Gabriel, DDS, dated October 6, 2023, at p. 29:13.) Dr. Gabriel thus addresses the affected body parts, rather than the effects of the injury on applicant's ADLs. While Dr. Gabriel does testify that the injury has generally affected applicant's ADLs, there insufficient identification of the impacted ADLs or whether these those ADLs overlap to adequately address the issue of whether the departure from the CVC would provide a more accurate assessment of disability. (See, e.g., Ex. 7, Transcript of the Deposition of William Gabriel, DDS, dated October 6, 2023, at p. 21:20.) Thus, the present record does not support the addition of the percentages of permanent disability arising out of applicant's dental, facial and head injuries. We acknowledge, however, that both the October 6, 2023 deposition of the Dr. Gabriel and subsequent April 4, 2024 trial took place before we issued our en banc decision in Vigil, supra, on June 10, 2024.

What proof carried it

The evidence the panel weighed, by kind.

Testimony and credibilityfavours Applicant prevailed

Applicant's credible testimony regarding her work hours and wage capacity

From the decision · page 7We agree with the defendant that the calculation of applicant's wages based on 60 hours worked each week does not reasonably reflect a "prediction of what an employee's earnings would have been had he not been injured," as applicant testified to only two occasions during which she worked 60 or more hours in a single week. (Montana, supra, at p. 594-595.) Applicant also testified that "there were also times when she worked less than 36 hours and three days a week due to lack of need by the employer." (Minutes, at p. 8:15.) This variability in hours worked is reflected in applicant's wage statement, which includes 11 weeks for which applicant worked no hours, but also several instances of more than 40 hours, and in one instance, 50 hours worked per week. (Ex. A, Wage Statement, dated January 19, 2019.) We also note applicant's testimony that she was hired to work three twelve-hours days each week, comprised of 24 hours of regular time and an additional 12 hours of overtime. (Minutes, at p. 7:3.) The PWCJ deemed applicant's testimony to be fully credible, and we accord great weight to that determination. (Garza v. Workmen's Comp. App. Bd. (1970) 3 Cal.3d 312, 317-319 [35 Cal.Comp.Cases 500]; Lamb v. Workmen's Comp. Appeals Bd. (1974) 11 Cal.3d 274, 281 [39 Cal.Comp.Cases 310].)

Medical recordsfavours Defendant prevailed

Inadequate medical evidence addressing ADLs overlap for addition of disabilities

From the decision · page 11Following our independent review of the record occasioned by defendant's Petition, we conclude that the current evidentiary record does not adequately address the issue of the specific ADLs impacted by each impairment to be added, and whether the ADLs do not overlap, or whether the ADLs overlap in a way that increases or amplifies the impact on the overlapping ADLs. (Vigil, supra, 89 Cal. Comp. Cases at pp. 688-689.)