ADJ3642528 — California WCAB decision

What the panel ordered

Petition for Reconsideration denied

Petition for Reconsideration denied by WCAB panel, affirming WCJ's 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 prevailedlumbar spine · psychiatric · internal · dental

The WCJ and WCAB gave great weight to the agreed medical examiners' opinions, especially Dr. Wieseltier's extensive evaluations and reports, finding the applicant permanently and totally disabled with 100% disability rating, with 60% industrial apportionment based on substantial medical evidence from Dr. Addario and Dr. Bressler.

From the decision · page 4lumber spine completely duplicate each other because they both involve the same limitation; i.e., applicant is limited to part-time, sedentary work. In order to avoid duplication of the disabilities, the work restriction to the lumbar spine shall be rated alone. (Schedule for Rating Permanent Disability, p. 1-10.) The rating of the applicant's permanent disability to the lumbar spine per the opinion of Dr. Wieseltier is as follows: 12.1-85-351 G-86=87%. Dr. Wieseltier opines 100% of the applicant's lumbar spine disability is due to her specific injury on February 1, 2002. (Joint Exhibit 9, p. 36; Joint Exhibit 27, p. 26:4-17.) Therefore, the permanent disability attributable to applicant's lumbar spine injury on February 1, 2002, is 87%.

The facts that decided it

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

Applicant has undergone six lumbar surgeries resulting in fusion of four levels and requires daily narcotic medication

Favours Applicant prevailed

Supports the finding of permanent total disability and unemployability in the open labor market

From the decision · page 25Pursuant to LeBoeuf v. WCAB (1983) 34 Cal.3d 234, a finding of vocational non-feasibility is equivalent to a 100% disability, thereby rebutting the scheduled rating. Although the applicant's permanent disability is determined by the 1997 Schedule and not the 2005 Schedule, Dr. Wieseltier's analysis is consistent with the analysis required by Milpitas Unified School District v. WCAB (Guzman) (2010) 187 Cal.App.4th 808; i.e., Dr. Wieseltier provides an assessment of the applicant's disability under the 1997 Schedule, and then provides his analysis to rebut the scheduled rating. Based upon the applicant's six lumbar spine surgeries (resulting in the fusion of four levels of her spine), the results of her two-day functional evaluation testing, applicant's narcotic medication usage on a daily basis in order to function, her need to constantly rest or lie down during the day, and his seven evaluations of the applicant over a ten year period, Dr. Wieseltier concludes the applicant is permanently, totally disabled and unemployable in the open labor market. (Joint Exhibit 2, p.54; Joint Exhibit 1, p. 2.)

Dr. Addario's deposition thoroughly discussed applicant's extensive mental health history predating industrial injury by over 10 years

Favours Applicant prevailed

Supports substantial medical evidence for apportionment and disability rating

From the decision · page 9Following his review of the Kaiser records, Dr. Addario opines during his deposition on August 30, 2023, that 60% of applicant's permanent disability is due to her industrial disability arising out of her orthopedic injury on February 1, 2002 and multiple surgeries and medication use arising therefrom and 40% of her disability is due to her nonindustrial, pre-existing issues outlined above. (Joint Exhibit 29, pp. 16:21-17: 14 & p. 19:9-15.) Based on Dr. Addario's deposition testimony that thoroughly discusses the applicant's extensive history of mental health problems that pre-date her industrial injury by over 10 years, Dr. Addario's opinion regarding apportionment is found to be substantial medical evidence.

Dr. Bressler's medical reports and deposition showed ongoing treatment for pelvic pain predating industrial injury by at least three years

Favours Applicant prevailed

Supports substantial medical evidence for apportionment of internal injury disability

From the decision · page 107-10; Joint Exhibit 28, 25:3- 26:23.) Based upon his review of the applicant's medical records summarized in his medical reporting showing that the applicant had complaints of pelvic pain and medical treatment for her non-industrial condition prior to her industrial injury on February 1, 2002, he opined that one-third of the applicant's permanent disability is due to her pre-existing, nonindustrial condition and two-thirds of the applicant's permanent disability is attributable to her industrial medication usage. (Joint Exhibit 28, 26:24-28:8.) Based on Dr. Bressler's deposition testimony that sets forth the applicant's ongoing medical treatment for pelvic pain that precedes the applicant's industrial injury by at least three years, Dr. Bressler's medical opinion is found to be substantial medical evidence on the issue of apportionment. (E.L. Yeager Construction v. WCAB (Gatten) (2006) 145 Cal.App. 4th 922. 929- 930.) Based upon the opinions provided by Dr. Bressler in his medical reports and deposition testimony, applicant's permanent disability attributable to her internal injury, following apportionment, is 18%.

Applicant's credible testimony about daily pain, limited activities, and need for medication and rest

Favours Applicant prevailed

Supports the finding of permanent total disability and credibility of medical opinions

From the decision · page 11Wielseltier reviewed the functional evaluation report from the two days of testing in June 2020. (Joint Exhibit 4, pp. 144- 147.) Dr. Wieseltier's summary of the functional evaluation report notes the applicant is able perform activities of daily living but is selective in the chores she performs based on how her pain is during any particular day. (Joint Exhibit 4, p. 145.) Applicant reports she awakens around 7:00 a.m. daily, takes her medication, waits for the relief from the medication to start, and then spends the majority of the day transitioning between sitting and laying down, while occasionally attempting to perform light household chores. (Joint Exhibit 4, p. 145.) Applicant's trial testimony was consistent with the activity level she reported during the functional capacity evaluation. At trial, the applicant testified to being stuck inside her apartment during an average day. (MOH/SOE, 2/2/23, 10:9-10.) Applicant's ability to perform chores is limited due to pain. (MOH/SOE, 2/2/23, 10:10-11.) She can only vacuum for a short period of time

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.

AMERelied upon · orthopedic

Dr. Wieseltier opined the applicant's lumbar spine permanent disability is 87%, 100% due to the industrial injury, and concluded the applicant is permanently, totally disabled and unemployable in the open labor market based on multiple evaluations and functional testing.

The WCJ and WCAB gave great weight to Dr. Wieseltier's extensive evaluations, reports, and deposition, finding no good reason to disregard his opinion.

From the decision · page 4lumber spine completely duplicate each other because they both involve the same limitation; i.e., applicant is limited to part-time, sedentary work. In order to avoid duplication of the disabilities, the work restriction to the lumbar spine shall be rated alone. (Schedule for Rating Permanent Disability, p. 1-10.) The rating of the applicant's permanent disability to the lumbar spine per the opinion of Dr. Wieseltier is as follows: 12.1-85-351 G-86=87%. Dr. Wieseltier opines 100% of the applicant's lumbar spine disability is due to her specific injury on February 1, 2002. (Joint Exhibit 9, p. 36; Joint Exhibit 27, p. 26:4-17.) Therefore, the permanent disability attributable to applicant's lumbar spine injury on February 1, 2002, is 87%.

AMERelied upon · psychiatric

Dr. Addario provided a 35% psychiatric disability rating and opined 60% of the applicant's permanent disability is due to industrial causes and 40% due to nonindustrial pre-existing issues, which was found substantial medical evidence for apportionment.

Dr. Addario's deposition thoroughly discussed the applicant's extensive mental health history predating the industrial injury, supporting apportionment.

From the decision · page 4The medical opinions submitted by the parties regarding the applicant's psychiatric injury are contained in the medical reports and deposition testimony of agreed medical evaluator Dr. Addario. (Joint Exhibits 19, 20, 21 & 29.) Dr. Addario provides work function impairments in his June 11, 2018, report that result in a standard disability of 35%. (Joint Exhibit 20, p. 49.) During his deposition conducted on August 30, 2023, Dr. Addario amended his opinion as to work function 4. (Joint Exhibit 29, 14: 1-5.) Dr. Addario changes his assessment of work function 4 from slight impairment to moderate impairment. (Joint Exhibit 29, 14:1-5.) The change in work function 4 from slight to moderate does not alter the standard disability of 35%. Therefore, the applicant's permanent disability for her psychiatric injury based on the opinions of Dr. Addario is as follows: 1.4-35-351 G-38=40%.

AMERelied upon · internal

Dr. Bressler rated the applicant's internal injury permanent disability at 27%, and after apportionment, 18% due to industrial causes, based on medical records showing pre-existing pelvic pain and treatment.

Dr. Bressler's deposition and medical reports showed ongoing treatment for pelvic pain predating the industrial injury, supporting apportionment.

From the decision · page 6Based upon the reporting and deposition testimony of Dr. Bressler, the applicant's permanent disability for her internal injury rates as follows: 13.2-25-351 F- 25=27%.

AMERelied upon · dental

Dr. Rosenson concluded the applicant has no work restrictions due to her dental injury.

Dr. Rosenson's medical reports showed no work restrictions from dental injury.

From the decision · page 6The medical reporting submitted by the parties regarding the applicant's dental injury consists of the medical reporting of Dr. Rosenson. (Joint Exhibits 22, 23 & 24.) Dr. Rosenson concludes in his June 1, 2015 report that the applicant does not have any work restrictions as the result of her dental injury. (Joint Exhibit 22, p. 2.)

The rules the panel named

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

Power v. WCAB (1986) 179 Cal.App.3d 775

Agreed medical examiners' opinions should be followed unless unpersuasive

The WCJ and WCAB followed the AME opinions of Drs. Wieseltier, Addario, Bressler, and Rosenson as substantial medical evidence.

From the decision · page 3In the present case, the parties utilized agreed medical examiners to assess applicant's orthopedic, internal, psychiatric, and dental injuries. Parties typically select an AME because of the examiner's expertise and neutrality. (See, Power v. WCAB (1986) 179 Cal.App.3d 775, 782.) "[W]orkers' compensation law favors agreed medical examiners in resolving medical disputes fairly and expeditiously." (Green v. Workers' Comp. Appeals Bd. (2005) 127 Cal.App.4th 1426, 1444, fn; omitted.) Thus, an AME's opinion should be followed, unless there is good reason to, find that opinion unpersuasive. (Power v. WCAB (1986) 179 Cal.App.3d 775, 782.)

Escobedo v. Marshalls (2005) 70 Cal. Comp. Cases 604

Burden of proving apportionment rests with defendant; apportionment opinion must be substantial medical evidence with reasoning

The WCJ found Dr. Addario and Dr. Bressler's apportionment opinions to be substantial medical evidence with proper reasoning.

From the decision · page 6B. Permanent Disability Attributable to Applicant's Specific Injury on March 18, 2002 and Applicant's Cumulative Trauma Injury from April 22, 1990, through June 18, 2002 Based on Her Work Restrictions Pursuant to the medical opinions of agreed medical evaluators Dr. Wieseltier (Joint Exhibit 9, pp. 35-36; Joint Exhibit 4, pp. 148-150; Joint Exhibit 2, pp. 54-55 & Joint Exhibit 1, pp.17-18), Dr. Addario (Joint Exhibit 29, 15:21-19:14), and Dr. Bressler (Joint Exhibit 16, p. 5 & Joint Exhibit 28, 10:22-13:2), applicant did not sustain any permanent disability from the specific injury sustained on March 18, 2002 or the cumulative trauma injury from April 22, 1990 through June 18, 2002. II. APPORTIONMENT The burden of proving that some portion of the applicant's permanent disability is due to factors other than the industrial injury rests with the defendant. (Escobedo v. Marshalls (2005) 70 Cal. Comp. Cases 604, 613.) Moreover, in order for the WCJ to rely on an apportionment opinion in a medical report, the report must constitute substantial medical evidence. (Escobedo v. Marshalls (2005) 70 Cal. Comp. Cases 604, 620-621.) A medical report that makes an apportionment determination by simply identifying a percentage of permanent disability due to non-industrial causes, without more, is not substantial

LeBoeuf v. WCAB (1983) 34 Cal.3d 234

A finding of vocational non-feasibility is equivalent to 100% disability, rebutting the scheduled rating

Dr. Wieseltier's opinion that the applicant is permanently, totally disabled and unemployable rebutted the scheduled rating.

From the decision · page 25Pursuant to LeBoeuf v. WCAB (1983) 34 Cal.3d 234, a finding of vocational non-feasibility is equivalent to a 100% disability, thereby rebutting the scheduled rating. Although the applicant's permanent disability is determined by the 1997 Schedule and not the 2005 Schedule, Dr. Wieseltier's analysis is consistent with the analysis required by Milpitas Unified School District v. WCAB (Guzman) (2010) 187 Cal.App.4th 808; i.e., Dr. Wieseltier provides an assessment of the applicant's disability under the 1997 Schedule, and then provides his analysis to rebut the scheduled rating. Based upon the applicant's six lumbar spine surgeries (resulting in the fusion of four levels of her spine), the results of her two-day functional evaluation testing, applicant's narcotic medication usage on a daily basis in order to function, her need to constantly rest or lie down during the day, and his seven evaluations of the applicant over a ten year period, Dr. Wieseltier concludes the applicant is permanently, totally disabled and unemployable in the open labor market. (Joint Exhibit 2, p.54; Joint Exhibit 1, p. 2.)

ADJ3642528 · April 8, 2024

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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