ADJ13913670 · February 17, 2023

Applicant successfully rebutted the AMA Guide impairment rating of 83% by showing he is permanently and totally disabled due to urinary incontinence preventing return to work, supported by medical and vocational expert opinions.

From the decision · page 5Both parties agreed that the AMA guide rating was 83%. There is no dispute that rating is substantial medical evidence. The issue here is whether applicant has successfully rebutted the permanent disability rating derived from application of the AMA Guide impairment ratings by establishing that he is not able to benefit from vocational rehabilitation and is not capable of returning to the open labor market, and has therefore lost all of his earning capacity.

Applicant's urinary incontinence prevents return to work and causes permanent total disability.

Favours Applicant prevailed

This fact supports the finding that applicant has a complete loss of future earning capacity, justifying permanent total disability.

From the decision · page 5It is my medical opinion based on a reasonable degree of probability that the applicant is permanently and totally disabled to work as a Deputy Sheriff since July 10, 2019 and is highly unlikely to return back to work as his urinary incontinence. He is unlikely to improve and he is most likely to expelience some side effects related to chemotherapy and androgen deprivation treatment. If his incontinence is improved, radiation treatment has been recommended, which, more is likely than not, results in additional

Applicant's vocational expert report supports inability to return to competitive employment due to incontinence.

Favours Applicant prevailed

Supports the conclusion that applicant is not able to benefit from vocational rehabilitation or return to the open labor market.

From the decision · page 6In view of his involuntary urinary control, at best, he would be able to do light work or less as physical stress of the body increases his lack of urinary control. Given the frequency of the need to change to a clean, dry diaper and change clothes, he would not be considered a productive worker due to the multiple, unscheduled need for restroom breaks. Further, at best, 2-3 days a week he would have to leave work to go home, shower and clean up due to having wet on his clothes. (Exhibit I at 9) He further opines "the applicant is presently not considered amenable for vocational services. He is not able to return to any competitive employment, in the open labor market." (Id.) Urinary incontinence is a symptom every single day for the rest of his life, unpredictable in both the frequency and amount, and cannot leakage cannot be mitigated or prevented by setting a reminder on his phone.

Opined that applicant is permanently and totally disabled due to urinary incontinence and side effects of cancer treatment, unlikely to return to work.

Medical opinion that applicant's urinary incontinence prevents return to work and causes permanent total disability.

From the decision · page 5Under the heading of permanent total disability, QME Dr. Mahawar opined:

Labor Code sections 4660.1 and 4662

Permanent total disability is determined by complete loss of future earning capacity.

Applicant's industrial injury caused complete loss of future earning capacity due to urinary incontinence preventing return to work.

Applicant's testimony about incontinence and inability to maintain employment due to frequent restroom needs

From the decision · page 4the applicant testified that the incontinence issues began after his prostate cancer surgery. He constantly wears diapers to prevent accidents. He retired from Alameda County as a deputy sheriff and was unable to look for a job for one year. He obtained a job as a security officer but had frequent needs to go to the restroom due to his incontinence which was affecting his ability to do his job. There was a mutual parting of ways due to his incontinence.

Vocational expert Steve Ramirez's report supporting permanent total disability due to incontinence

From the decision · page 6In view of his involuntary urinary control, at best, he would be able to do light work or less as physical stress of the body increases his lack of urinary control. Given the frequency of the need to change to a clean, dry diaper and change clothes, he would not be considered a productive worker due to the multiple, unscheduled need for restroom breaks. Further, at best, 2-3 days a week he would have to leave work to go home, shower and clean up due to having wet on his clothes. (Exhibit I at 9) He further opines "the applicant is presently not considered amenable for vocational services. He is not able to return to any competitive employment, in the open labor market." (Id.) Urinary incontinence is a symptom every single day for the rest of his life, unpredictable in both the frequency and amount, and cannot leakage cannot be mitigated or prevented by setting a reminder on his phone.

Defendant's vocational expert report by Emily Tincher found not substantial or convincing