ADJ7358979 — California WCAB decision

What the panel ordered

Reconsideration granted; July 19, 2023 decision affirmed except amended to specify April 22, 2009 as the date of injury and that applicant is entitled to a combined permanent disability award.

Defendant sought reconsideration of the July 19, 2023 Joint Findings and Award and Order, which found applicant sustained industrial injury resulting in permanent and total disability; the WCJ prepared a Report recommending granting reconsideration to clarify the date of injury and combined award.

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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 ratingApplicant prevailedcervical spine · lumbar spine · psyche · internal colon · sleep cycle · gait disturbance · chronic constipation

The psychiatric AME was unable to parcel out the respective percentages of disability attributable to the injuries, justifying a combined award; the date of injury for the award is April 22, 2009.

From the decision · page 4The WCJ's Report recommends we amend the F&A to reflect April 22, 2009 as the date of injury for the permanent disability rating. (Report, at pp. 5-6.) With respect to the addition rather than combination of the psychiatric disability, the WCJ observes that the rationale provided by the AME is well supported in the record and constitutes substantial evidence. (Id. at p. 7.) With respect to apportionment as between the various claimed injuries, the WCJ noted that the psychiatric AME was unable to parcel out the respective percentages of disability attributable to the injuries, and that applicant is entitled to an unapportioned award as a result. (Id. at pp. 8-9.) The WCJ further notes that the neurology QME identified ratable gait impairment "because of moderate to high- grade cervical stenosis, compression of the spinal cord, and progression of myelopathy in the cervical spine," and that the resulting disability is supported in the medical record. (Id. at pp. 9- 10.) The WCJ also explains that the reporting of applicant's vocational expert was more persuasive than the reporting offered by the defense, in part because defendant's expert opined to impermissible "vocational apportionment," in her analysis. (Id. at p. 11.)

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 · orthopedics

Apportioned orthopedic permanent disability among four dates of injury; identified gait disturbance as derivative of possible cervical myelopathy but deferred myelopathy diagnosis to Dr. Shorr.

The orthopedic AME's apportionment was noted but the psychiatric AME's inability to parcel out psychiatric disability justified a combined award.

From the decision · page 4Defendant avers the WCJ failed to apply the orthopedic apportionment identified by AME Dr. Feiwell. Defendant observes that in his December 5, 2017 report, Dr. Feiwell apportioned the permanent disability as between the four pending dates of injury. (Petition at 6:8, citing Ex. 101,

AMERelied upon · psychiatry

Unable to parcel out psychiatric disability among the four injuries due to synergistic impact; supports combined award.

The psychiatric AME's opinion that psychiatric disability could not be parceled out was relied upon to justify the combined award.

From the decision · page 5However, the parties' psychiatric AME Dr. Nehorayan has determined that while applicant has sustained psychiatric injury, apportionment as between the various injuries is not possible. Dr. Nehorayan states:

QMERelied upon · neurology

Confirmed sleep impairment and gait disturbance related to cervical spine conditions; supported permanent disability rating.

The QME's findings on sleep and gait disturbance were accepted as substantial evidence supporting disability.

From the decision · page 7Defendant contends the WCJ erred in finding injury and disability arising out of applicant's alleged sleep disturbance. Defendant avers the reporting of AME Dr. Shorr relies on the opinions of the prior AME in psychiatry Dr. Nehamen, who diagnosed the sleep disturbance, but who was ultimately replaced by another AME in psychiatry. The reporting of Dr. Nehamen has not been lodged in evidence. (Petition, at 10:6.) However, the WCJ's Report observes that the sleep impairment identified by Dr. Shorr "coincides with the findings of AME Dr. Marc Nehorayan, who also indicates Applicant has a sleep disorder secondary to a general medical condition, orthopedic condition, and insomnia," and that the reporting of Dr. Shorr confirms applicant's ongoing symptomatology. (Report, at p. 10.) We further note that Dr. Shorr discussed the sleep rating in deposition, and confirmed that former AME Dr. Nehamen's assessment of Class I sleep disturbance was consistent with Dr. Shorr's clinical findings and assessment of applicant. (Ex. 118, Transcript of the Deposition of Robert Shorr, M.D., December 6, 2021, at p. 18:9.) Accordingly, we concur with the WCJ's findings of injury and disability regarding the alleged sleep disturbance.

ADJ7358979 · September 28, 2023

What the panel ordered

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The facts that decided it

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