ADJ2344089 — California WCAB decision

What the panel ordered

Reconsideration granted; May 23, 2023 Joint Findings and Award affirmed except Findings of Fact Nos. 7 and 8 amended to defer permanent disability and scheduled rating rebuttal issues pending further record development.

Applicant sought reconsideration and removal of the May 23, 2023 Joint Findings and Award; the WCJ had found industrial injury but deferred permanent disability and apportionment issues; the WCAB granted reconsideration, affirmed the decision except to defer permanent disability and scheduled rating rebuttal issues pending further record development.

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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.

Permanent disability ratingRemandedlow back · lumbar spine · esophagus · urinary system · thoracic outlet syndrome

The WCJ deferred permanent disability and scheduled rating rebuttal issues pending further record development, as the nature and extent of injuries and work restrictions overlap require further medical-legal and vocational expert analysis.

From the decision · page 6Here, the WCJ has determined that applicant has not rebutted the applicable PDRS, and is therefore not entitled to an award of permanent and total disability. (Findings of Fact, Nos. 7, 8.) The WCJ also deferred final findings of fact as to body parts injured, including injury in the form of thoracic outlet syndrome, as well as a final determination of permanent disability and apportionment. (Findings of Fact, Nos. 9, 10, 11, 12.)

The facts that decided it

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

WCJ deferred permanent disability and scheduled rating rebuttal issues pending further record development due to unresolved nature and extent of injuries and work restrictions overlap.

Favours neutral

This deferral required the WCAB to amend findings and remand for further development.

From the decision · page 6Although the WCJ is tasked with entering findings responsive to the issues submitted for decision by the parties, the WCJ's determination as to whether applicant has rebutted the PDRS is necessarily premised on the identification of the level of permanent disability under the PDRS in the first instance. That is, the scheduled rating will generally need to be established prior to a determination as to whether applicant has rebutted the scheduled rating. (Ogilvie, supra, at 1274.) Here, the WCJ has deferred her determination as to the nature and extent of the injuries sustained, including body parts, permanent disability, and apportionment. Accordingly, a determination as to whether applicant has or has not rebutted the scheduled rating is premature. We will therefore amend Findings of Fact Nos. 7 and 8, to defer issues of whether applicant has rebutted the PDRS, as further to defer issues of permanent disability.

Applicant's self-employment characterized as sheltered work with flexible schedule and accommodations not typical in open labor market.

Favours Applicant prevailed

This raised a colorable issue of permanent total disability requiring further vocational and medical-legal analysis.

From the decision · page 8Here, applicant successfully completed a vocational rehabilitation program, followed by two separate attempts to reenter the labor market. (Minutes of Hearing and Summary of Evidence (Minutes), July 28, 2022, at 4:6.) Neither attempt resulted in applicant's successful reintegration into the competitive job market. However, applicant has been self-employed by the company she founded in 2001. (Id. at p. 5:1.) In her self-employment, applicant has no set schedule, and works sporadically two to eight hours per week. (Id. at p. 6:19.) Applicant further testified that she tries to never pass a bathroom, and that her symptoms of incontinence have been unchanged for twenty years. (Ibid.)

Defense vocational expert disputed sheltered employment concept and argued applicant's injuries did not impair vocational rehabilitation participation.

Favours Defendant prevailed

This opposing view required further development of the record to resolve.

The rules the panel named

Authorities as the decision cited them, with how this panel applied each one.

Labor Code sections 4660, 4662(b)

Permanent disability is determined by whole person impairment under AMA Guides and PDRS, considering medical record and effect on future earning capacity.

Applied to assess permanent disability and rebuttal of scheduled rating.

From the decision · page 4Section 4660 provides that permanent disability is determined by consideration of whole person impairment within the four corners of the AMA Guides to the Evaluation of Permanent Impairment, Fifth Edition (AMA Guides), as applied by the Permanent Disability Rating Schedule (PDRS) in light of the medical record and the effect of the injury on the worker's future earning capacity. (Brodie, supra, at p. 1320 ["permanent disability payments are intended to compensate workers for both physical loss and the loss of some or all of their future earning capacity"]; Department of Corrections & Rehabilitation v. Workers' Comp. Appeals Bd. (Fitzpatrick) (2018) 27 Cal. App. 5th 607, 614 [238 Cal. Rptr. 3d 224, 83 Cal. Comp. Cases 1680] (Fitzpatrick); Milpitas Unified School Dist. v. Workers' Comp. Appeals Bd. (Guzman) (2010) 187 Cal. App. 4th 808 [115 Cal. Rptr. 3d 112, 75 Cal. Comp. Cases 837] (Guzman).)

LeBoeuf v. Workers' Comp. Appeals Bd. (1983) 34 Cal. 3d 234

Scheduled rating can be rebutted by showing impairment of rehabilitation and greater loss of future earning capacity than reflected in scheduled rating.

Vocational evidence relevant to rebuttal of scheduled rating.

From the decision · page 5Another way the cases have long recognized that a scheduled rating has been effectively rebutted is when the injury to the employee impairs his or her rehabilitation, and for that reason, the employee's diminished future earning capacity is greater than reflected in the employee's scheduled rating. This is the rule expressed in LeBoeuf v. Workers' Comp. Appeals Bd. (1983) 34 Cal. 3d 234 [193 Cal. Rptr. 547, 666 P.2d 989]. In LeBoeuf, an injured worker sought to demonstrate that, due to the residual effects of his work-related injuries, he could not be retrained for suitable meaningful employment. (Id. at pp. 237§ 238.) Our Supreme Court concluded that it was error to preclude LeBoeuf from making such a showing, and held that "the fact that an injured employee is precluded from the option of receiving rehabilitation benefits should also be taken into account in the assessment of an injured employee's permanent disability rating."

Spartech Plastics v. Workers' Comp. Appeals Bd. (Ochoa-Pena) (1998) 64 Cal.Comp.Cases 124; Pacific Greyhound Lines v. Workers' Comp. Appeals Bd. (Dickow) (1973) 38 Cal.Comp.Cases 359

Limitation to sheltered employment consistent with total loss of market competitiveness supports permanent total disability finding.

Applicant cited these cases to support permanent total disability based on sheltered employment.

From the decision · page 3Applicant's Petition for Reconsideration and Petition for Removal (Petition) avers that applicant's permanent and total disability is established by her limitation to sheltered employment, as supported by relevant case law. (Petition, at 3:26.) Applicant cites to Spartech Plastics v. Workers' Comp. Appeals Bd. (Ochoa-Pena) (1998) 64 Cal.Comp.Cases 124 [1998 Cal. Wrk. Comp. LEXIS 4202] (writ den.) (Ochoa-Pena), and Pacific Greyhound Lines v. Workers' Comp. Appeals Bd. (Dickow) (1973) 38 Cal.Comp.Cases 359 [1973 Cal. Wrk. Comp. LEXIS 2209] (writ den.) (Dickow) for the proposition that a limitation to sheltered employment is consistent with a finding of total loss of market competitiveness, rendering applicant permanently and totally disabled. (Petition, at 6:28.) Applicant further contends she is permanently and totally disabled "in accordance with the fact," pursuant to section 4662(b). Alternatively, applicant contends that removal of the matter to the WCAB is warranted given the prejudice and delay that will result from the WCJ's order for development of the record. (Id. at 12:18) Applicant further contends that

ADJ2344089 · August 14, 2023

What the panel ordered

What was disputed, and how it came out

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The facts that decided it

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