ADJ15715449 · August 5, 2024

The WCJ's permanent disability rating was found not to be based on substantial medical evidence because it impermissibly combined muscle strength and range of motion impairments contrary to AMA Guides Table 17-2. The WCAB granted reconsideration to allow further development of the medical record and reanalysis of the permanent disability issue.

From the decision · page 1Defendant seeks reconsideration of a workers' compensation administrative law judge's (WCJ) Findings and Award of May 20, 2024, wherein it was found that while employed on December 15, 2021, as a ramp service employee, applicant sustained industrial injury to the left heel, left ankle, and in the form of a scar causing permanent disability of 59%.

The permanent disability rating combined muscle strength impairment and range of motion impairment, which is impermissible under AMA Guides Table 17-2.

Favours Defendant prevailed

This combination was the basis for rejecting the WCJ's permanent disability rating as not supported by substantial medical evidence, leading to reconsideration and deferral of the issue.

From the decision · page 1Defendant seeks reconsideration of a workers' compensation administrative law judge's (WCJ) Findings and Award of May 20, 2024, wherein it was found that while employed on December 15, 2021, as a ramp service employee, applicant sustained industrial injury to the left heel, left ankle, and in the form of a scar causing permanent disability of 59%.

Opined 16% whole person impairment for loss of muscle strength in the ankle, 6% for loss of range of motion in the ankle, and 3% for peripheral nerve injury (sensory loss) in the ankle; proposed a combined rating for these impairments which was adopted by the WCJ but found impermissible under AMA Guides Table 17-2.

The combined rating was not consistent with AMA Guides Table 17-2, which does not allow combining muscle strength and range of motion impairments.

From the decision · page 2In her January 25, 2024 report, qualified medical evaluator chiropractor Kirsten Schick, D.C. opined that applicant's injury caused 16% whole person impairment (WPI) for loss of muscle strength in the ankle, 6% WPI for loss of range of motion in the ankle, and 3% for peripheral nerve injury (sensory loss) in the ankle. (January 25, 2024 report at p. 13.)1 Dr. Schick proposed a combined rating for these three impairments, which was adopted by the WCJ. However, these ratings cannot be combined under a "strict" AMA Guides rating. (AMA Guides, Table 17-2, p. 526.) Dr. Schick apparently believes that the muscle strength and range of motion impairments may be combined because Table 17-2 lists "ROM Ankylosis" rather than having separate entries for ROM and Ankylosis. Dr. Schick interprets this as meaning that range of motion can be combined with other methods so long as ankylosis is not present.

Blackledge v. Bank of America (2010) 75 Cal.Comp.Cases 613, 620 [Appeals Bd. en banc]

Permanent disability ratings must be based on substantial medical evidence consistent with the AMA Guides as interpreted by appellate and en banc decisions.

Applied to reject the combined rating that did not comply with AMA Guides Table 17-2.

From the decision · page 2All findings of the WCAB must be based on substantial evidence. (Le Vesque v. Workmen's Comp. Appeals Bd. (1970) 1 Cal.3d 627, 637 [35 Cal.Comp.Cases 16]; Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 620 [Appeals Bd. en banc].) "[T]o constitute substantial evidence regarding a WPI, a physician's opinion must comport with the AMA Guides, including as applied and interpreted in published appellate opinions and en banc decisions of the

Defendant's attached medical report was already in the record and a consultive rating from the Disability Evaluation Unit was inadmissible; these procedural errors were noted but did not affect the substantive reconsideration.

From the decision · page 1Preliminarily, we note that defendant has attached a medical report to its Petition that had already been entered into the evidentiary record, in violation of Appeals Board Rule 10945(c)(1). (Cal. Code Regs., tit. 8, § 10945, subd. (c)(1).) Additionally, defendant has attached a consultive rating determination from the Disability Evaluation Unit, despite the fact that such determinations are not admissible in judicial proceedings. (Administrative Rule 10166(b), Cal. Code Regs., tit. 8, § 10166, subd. (b).) We have not considered this document. Defense counsel is strongly cautioned to adhere to WCAB and Appeals Board rules in future proceedings.