ADJ6741809 — California WCAB decision

What the panel ordered

The WCAB granted defendant's petition for reconsideration, rescinded the WCJ's April 3, 2024 Findings and Award, and returned the matter to the trial level for further proceedings consistent with the WCAB's decision.

Defendant sought reconsideration of the WCJ's April 3, 2024 Findings and Award, challenging the finding of permanent total disability. The WCJ had found applicant permanently totally disabled based on QME ratings and application of Guzman and Kite. The WCAB granted reconsideration and rescinded the WCJ's decision, returning the matter for further proceedings.

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 disabilityRemandedcervical spine · lumbar spine · right shoulder · psyche · gastrointestinal system (sleep disorder)

The WCJ found permanent total disability based on QME ratings and application of Guzman and Kite, but the WCAB found the psychiatric QME's opinion stale and inadequate to support the addition of internal impairments, requiring further development of the record.

From the decision · page 1Defendant seeks reconsideration of the "Findings of Fact Findings and Award Opinion on Decision" (F&A) issued on April 3, 2024, by the workers' compensation administrative law judge (WCJ).

The facts that decided it

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

Applicant's psychological QME report did not review internal medicine QME report and was issued in 2017, before internal evaluation in 2021.

Favours Defendant prevailed

This made the psychiatric QME's opinion stale and inadequate to support addition of internal impairments, requiring further record development.

From the decision · page 12be added and not combined using the CVC. However, the WCJ exceeded the scope of Dr. Price's opinion and added the psychological impairments with both the orthopedic and the internal impairments. To the extent that applicant is seeking to add all impairments, Dr. Price never addressed this. Her ratings report issued in 2014. Her CVC rebuttal report and deposition issued in 2017. Dr. Price never reviewed the ratings report of internist Dr. Raphael, which issued in 2021. Accordingly, to the extent that applicant seeks to add all impairments, Dr. Price's report is not substantial evidence because it is based upon an inadequate review of the records and did not address the issue raised.

Applicant's activities of daily living changed between 2016 and 2021 examinations, and new internal evaluations warranted independent ratings.

Favours Applicant prevailed

This change undermined the substantiality of the psychiatric QME's opinion and supported the need for further proceedings.

From the decision · page 12Defendant argues that the reporting of Dr. Price is stale. Reports do not generally have expiration dates. Where years have passed since a report's issuance, the question to answer is whether the report remains substantial evidence. In other words, have the facts of the case substantively changed to the extent that the prior report is no longer based upon an adequate history or examination. Here, applicant's ADLs changed from Dr. Ryan's 2016 examination to the 2021 examination. Furthermore, applicant sought an internal evaluation, which resulted in multiple

The rules the panel named

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

Milpitas Unified School Dist. v. Workers' Comp. Appeals Bd. (Guzman) (2010) 187 Cal.App.4th 808, 822

To constitute substantial evidence, a medical opinion must be framed in terms of reasonable medical probability, not speculative, based on pertinent facts and adequate examination and history, and must set forth reasoning in support.

The WCJ found the QME ratings and Guzman analysis substantial medical evidence supporting permanent total disability.

From the decision · page 1The WCJ found, in pertinent part, that applicant sustained permanent total disability after finding that applicant's disability rating as assigned by the qualified medical evaluators (QMEs) constituted substantial medical evidence per the holding of Milpitas Unified School Dist. v. Workers' Comp. Appeals Bd. (Guzman) (2010) 187 Cal.App.4th 808, 822 [75 Cal.Comp.Cases 837].) The WCJ further found that applicant rebutted the Combined Values Chart (CVC) of the Permanent Disability Ratings Schedule (PDRS) and after application of Kite added applicant's impairments to reach 100% permanent total disability. (East Bay Municipal Utility District v. Workers' Compensation Appeals Board (Kite) (2013) 78 Cal.Comp.Cases 213 (writ den.).)

Vigil v. County of Kern, 2024 Cal. Wrk. Comp. LEXIS 23 (Appeals Board en banc)

The Combined Values Chart (CVC) in the Permanent Disability Ratings Schedule (PDRS) may be rebutted where applicant establishes no overlap or amplification of impairments' impact on activities of daily living.

Applicant presented evidence to rebut CVC for psychological and orthopedic impairments, but WCJ exceeded scope by adding internal impairments without evidence.

From the decision · page 12The Combined Values Chart (CVC) in the Permanent Disability Ratings Schedule (PDRS) may be rebutted and impairments may be added where an applicant establishes the impact of each impairment on the activities of daily living (ADLs) and that either:

Department of Corrections and Rehabilitation v. Workers' Comp. Appeals Bd., (Fitzpatrick) (2018) 83 Cal.Comp.Cases 1680

Scheduled ratings may be rebutted based on specific circumstances of a case.

The WCAB rejected defendant's argument that Fitzpatrick precludes rebuttal of PDRS in this case.

From the decision · page 13Finally, defendant argues that the holding in Fitzpatrick precludes applicant from rebutting the PDRS in this case. (Department of Corrections & Rehabilitation v. Workers' Comp. Appeals Bd., (Fitzpatrick), (2018) 27 Cal. App. 5th 607, 238 Cal. Rptr. 3d 224.). The holding in Fitzpatrick and multiple other cases from the Court of Appeals directly contradict defendant's argument.

ADJ6741809 · June 25, 2024

What the panel ordered

What was disputed, and how it came out

Your case already resembles someone else’s. Find whose.

The facts that decided it

What the panel did with the medical opinions

The rules the panel named

What proof carried it

About this page