ADJ2492589 — California WCAB decision

ADJ2492589 · December 27, 2022

Findings and Award & Orders affirmed as amended: injury found in the form of gastritis, permanent total disability of 100% awarded, permanent disability payments to commence within 14 days of last temporary disability payment, and COLA to begin January 1, 2007.

Issues decided

Medical opinions weighed

Authorities named

District office

Long Beach

What the panel ordered

Defendant sought reconsideration of the WCJ's Findings and Award & Orders issued June 7, 2022, which found injury, temporary disability, permanent and stationary status, 100% permanent disability, and no apportionment. The Board granted reconsideration, reviewed the record, and issued this decision after reconsideration.

Read the official decision →

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 total disabilityApplicant prevailedneck · right shoulder · neurological system (complex regional pain syndrome) · psyche · gastritis

Applicant successfully rebutted the Permanent Disability Rating Schedule based on vocational evidence, establishing 100% permanent disability, and is entitled to an award without apportionment.

The facts that decided it

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

Applicant's injury caused permanent disability of 100%, as established by vocational evidence and credited expert testimony.

The rules the panel named

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

Lab. Code § 4660.1; Ogilvie v. Workers' Comp. Appeals Bd. (2011) 197 Cal.App.4th 1262

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. To rebut a scheduled permanent disability rating, an injured worker must establish that their future earning capacity is less than that anticipated by the scheduled rating.

Applied to determine that applicant rebutted the scheduled rating and established 100% permanent disability based on vocational evidence.

From the decision · page 3Permanent 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. (Lab. Code, § 4660.1). To rebut a scheduled permanent disability rating, an injured worker must establish that their future earning capacity is less than that anticipated by the scheduled rating. The court in Ogilvie v. Workers' Comp. Appeals Bd. (2011) 197 Cal.App.4th 1262 [76 Cal.Comp.Cases 624] addressed the issue of "[w]hat showing is required by an employee who contests a scheduled rating on the basis that the employee's diminished future earning capacity is different than the earning capacity used to arrive at the scheduled rating?" (Id. at p. 1266.) The primary method for rebutting the scheduled rating is based upon a determination that the injured worker is "not amenable to rehabilitation and therefore has suffered a greater loss of future earning capacity than reflected in the scheduled rating." (Id. at p. 1277.) The employee's diminished future earnings must be directly attributable to the employee's work-related injury and not due to nonindustrial factors such as general economic conditions, illiteracy, proficiency in speaking English, or an employee's lack of education. (Id. at p. 1275.)

Contra Costa County v. Workers' Comp. Appeals Bd. (Dahl) (2015) 240 Cal.App.4th 746

To rebut the scheduled rating, applicant must prove that the industrial injury precludes vocational rehabilitation, requiring an individualized assessment.

Applied to support the finding that applicant's injury precluded vocational rehabilitation, justifying 100% permanent disability.

From the decision · page 3In Contra Costa County v. Workers' Comp. Appeals Bd. (Dahl) (2015) 240 Cal.App.4th 746 [80 Cal.Comp.Cases 119], the Court of Appeal held that to rebut the scheduled rating, applicant must prove that the industrial injury precludes vocational rehabilitation, writing in pertinent part as follows:

ADJ2492589 · December 27, 2022

What the panel ordered

What was disputed, and how it came out

The facts that decided it

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What the panel did with the medical opinions

The rules the panel named

What proof carried it

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