What the panel ordered
Defendant's Petition for Reconsideration of the WCJ's Findings and Award is denied.
Petition for Reconsideration filed by defendant and denied by the Appeals Board.
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 AME's medical opinions and vocational experts' reports support a finding of 100% permanent total disability due to severe work restrictions and loss of earning capacity.
From the decision · page 3In this case, John Lavorgna, M.D., served as the Agreed Medical Evaluator (AME), and his opinions provided the sole medical evidence submitted by the parties. We presume that the AME was chosen by the parties because of his expertise and neutrality, and that his opinions should ordinarily be followed unless there is good reason to find those opinions unpersuasive. (Power v. Workers' Comp. Appeals Bd. (1986) 179 Cal.App.3d 775, 782 [51 Cal.Comp.Cases 114, 117].) In his report dated December 17, 2020, the AME determined that applicant had reached Maximal Medical Improvement and assigned Whole Person Impairment percentages for applicant's cervical spine (8 percent for a Cervical Category II Diagnosis-Related Estimate according to The AMA Guides to the Evaluation of Permanent Impairment, Fifth Edition), lumbar spine (8 percent for a Lumbar Category II Diagnosis-Related Estimate per the AMA Guides), left shoulder (16 percent whole person impairment), and left hip (20 percent for full-time use of a cane and moderately severe gait derangement). (Joint Exhibit 101, Report of AME John Lavorgna, M.D., dated December 17, 2020, page 10, paragraphs 3-6.) The AME apportioned 100 percent of these impairments to applicant's industrial injury of June 23, 2018. (Id.)
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
AME John Lavorgna assigned severe whole person impairments and work restrictions, including need to lie down most of the day.
Favours Applicant prevailed
These medical findings supported the finding of 100% permanent total disability due to inability to work.
From the decision · page 3In this case, John Lavorgna, M.D., served as the Agreed Medical Evaluator (AME), and his opinions provided the sole medical evidence submitted by the parties. We presume that the AME was chosen by the parties because of his expertise and neutrality, and that his opinions should ordinarily be followed unless there is good reason to find those opinions unpersuasive. (Power v. Workers' Comp. Appeals Bd. (1986) 179 Cal.App.3d 775, 782 [51 Cal.Comp.Cases 114, 117].) In his report dated December 17, 2020, the AME determined that applicant had reached Maximal Medical Improvement and assigned Whole Person Impairment percentages for applicant's cervical spine (8 percent for a Cervical Category II Diagnosis-Related Estimate according to The AMA Guides to the Evaluation of Permanent Impairment, Fifth Edition), lumbar spine (8 percent for a Lumbar Category II Diagnosis-Related Estimate per the AMA Guides), left shoulder (16 percent whole person impairment), and left hip (20 percent for full-time use of a cane and moderately severe gait derangement). (Joint Exhibit 101, Report of AME John Lavorgna, M.D., dated December 17, 2020, page 10, paragraphs 3-6.) The AME apportioned 100 percent of these impairments to applicant's industrial injury of June 23, 2018. (Id.)
Vocational experts agreed applicant lost 100% earning capacity due to work restrictions, especially the need to lie down most of the day exceeding employer tolerances.
Favours Applicant prevailed
This consensus supported the finding of permanent total disability.
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 whole person impairment percentages for cervical spine, lumbar spine, left shoulder, and left hip; apportioned 100% to industrial injury; provided severe work restrictions including limited sedentary work, full-time cane use, no lifting over 2-3 pounds, and need to lie down most of the day.
The AME's opinions were relied upon as the sole medical evidence and supported the finding of permanent total disability.
From the decision · page 3In this case, John Lavorgna, M.D., served as the Agreed Medical Evaluator (AME), and his opinions provided the sole medical evidence submitted by the parties. We presume that the AME was chosen by the parties because of his expertise and neutrality, and that his opinions should ordinarily be followed unless there is good reason to find those opinions unpersuasive. (Power v. Workers' Comp. Appeals Bd. (1986) 179 Cal.App.3d 775, 782 [51 Cal.Comp.Cases 114, 117].) In his report dated December 17, 2020, the AME determined that applicant had reached Maximal Medical Improvement and assigned Whole Person Impairment percentages for applicant's cervical spine (8 percent for a Cervical Category II Diagnosis-Related Estimate according to The AMA Guides to the Evaluation of Permanent Impairment, Fifth Edition), lumbar spine (8 percent for a Lumbar Category II Diagnosis-Related Estimate per the AMA Guides), left shoulder (16 percent whole person impairment), and left hip (20 percent for full-time use of a cane and moderately severe gait derangement). (Joint Exhibit 101, Report of AME John Lavorgna, M.D., dated December 17, 2020, page 10, paragraphs 3-6.) The AME apportioned 100 percent of these impairments to applicant's industrial injury of June 23, 2018. (Id.)
Found no residual neurological issues on an industrial basis.
From the decision · page 7Stephen Francis, PhD performed a neuropsychological consult on August 22, 2022. He found that there were no residual neurological issues on an industrial basis.
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
California Labor Code
Labor Code section 4660.1
Applied to adjust Whole Person Impairment percentages for permanent disability rating.
From the decision · page 3Applicant's Whole Person Impairment percentages, when adjusted in accordance with Labor Code section 4660.1 and the current rating schedule, produce the following percentages of permanent disability:
California Workers' Compensation Appeals Board
East Bay Municipal Utility District v. Workers' Compensation Appeals Board (Kite) (2013) 78 Cal.Comp.Cases 213 (writ den.)
Applied for combining impairments in permanent disability rating.
From the decision · page 3In his subsequent report dated January 5, 2021, the AME opined that these impairments should be added instead of combined because they "act synergistically to create a greater level of impairment" as contemplated in the case of East Bay Municipal Utility District v. Workers' Compensation Appeals Board (Kite) (2013) 78 Cal.Comp.Cases 213 (writ den.). (Joint Exhibit 102, Report of AME John Lavorgna, M.D., dated January 5, 2021, page 1, last paragraph, and page 2, first paragraph.) Dr. Lavorgna confirmed this opinion at his deposition of May 11, 2021. (Joint Exhibit 104, Transcript of the Deposition of John Lavorgna, M.D., dated May 11, 2021, page 20, line 6 to page 21, line 24.) In his re-evaluation of December 13, 2023, Dr. Lavorgna revised the Whole Person Impairment of the left shoulder to 13 percent. (Joint Exhibit 103, Report of AME John Lavorgna, M.D., dated December 19, 2023, page 6, paragraph 2.)
California Workers' Compensation Appeals Board
Vigil v. County of Kern (2024) 89 Cal.Comp.Cases 686 (Appeals Board en banc)
Applied to assess rebuttal of Combined Values Chart in impairment rating.
From the decision · page 4If added, the adjusted Whole Person Impairment percentages would total 90 percent. However, because Dr. Lavorgna's discussion of the interaction between applicant's impairments lacks specificity and does not apply the current standards for rebuttal of the Combined Values Chart set forth in Vigil v. County of Kern (2024) 89 Cal.Comp.Cases 686 (Appeals Board en banc), a strict rating of applicant's impairments would have to be based upon the Combined Values Chart in the rating schedule. On that chart, permanent disability of 36, 24, 15, and 15 percent combine to a total of 64 percent permanent disability.
What proof carried it
The evidence the panel weighed, by kind.
Applicant's need to lie down most of the day as a severe work restriction
From the decision · page 4Ultimately, whether applicant's impairments combine to 64 percent or add to 90 percent is of no moment, because the AME also provides several quite severe restrictions on applicant's ability to work. Dr. Lavorgna found that applicant can only work up to one hour at a time in a sedentary position, with full-time use of a cane whenever she is up. He also found that applicant cannot do any lifting, pushing, pulling, or carrying, and that she must lie down once or twice a day. (Joint Exhibit 101, December 17, 2020, page 9, last paragraph.) At deposition, Dr. Lavorgna clarified that applicant could lift, push, pull, or carry up to two or three pounds. (Joint Exhibit 104, May 11, 2021, page 19, lines 21-24.) In his last report, the AME further clarified that applicant cannot work with her left arm away from her body, requires assistance getting up and sitting down, and has to lie down not just once or twice a day, but "most of the day." (Joint Exhibit 103, December 19, 2023, page 5, second to last paragraph.)
Vocational experts' agreement on 100% loss of earning capacity due to work restrictions
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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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