What the panel ordered
Petition for reconsideration granted; WCJ decision amended to find 78% permanent disability; life pension rate set at $64.50 per week; issue of penalties deferred.
Applicant sought reconsideration of a WCJ Findings and Award of March 23, 2022; the WCAB granted reconsideration and amended the 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.
The WCJ erred in the calculation of permanent disability and in not incorporating Dr. Betoushana's range of motion and lifting impairment findings; the WCAB corrected the calculation and found 78% permanent disability.
From the decision · page 2We note that there is an error in the calculation of permanent disability in the WCJ's decision. The WCJ awards 80% permanent disability, with the following calculation of permanent disability appearing on page 8 of the Opinion on Decision: 35C23=64+9=73C13=77C9=79C6=80 [Emphasis added.]
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
WCJ's permanent disability calculation was mathematically incorrect, overstating combined impairment.
Favours Applicant prevailed
Correcting the calculation reduced the combined impairment from 80% to 78%, affecting the award amount.
From the decision · page 2We note that there is an error in the calculation of permanent disability in the WCJ's decision. The WCJ awards 80% permanent disability, with the following calculation of permanent disability appearing on page 8 of the Opinion on Decision: 35C23=64+9=73C13=77C9=79C6=80 [Emphasis added.]
Dr. Betoushana's impairment ratings for lumbar spine and left wrist were more accurate and should be incorporated.
Favours Applicant prevailed
Incorporating these ratings increased the lumbar spine impairment to 41% and left wrist impairment to 15%, supporting a higher permanent disability rating.
From the decision · page 2Consistent with fundamental principles of due process, therefore, and in keeping with common sensibilities, we are persuaded, under these circumstances, that the running of the 60-day statutory period for reviewing and acting upon a petition for reconsideration begins no earlier than the Appeals Board's actual notice of the petition for reconsideration. (See Shipley v. Workers' Comp. Appeals Bd. (1992) 7 Cal.App.4th 1104 [57 Cal.Comp.Cases 493]; State Farm Fire and Casualty v. Workers' Comp. Appeals Bd. (Felts) (1981) 119 Cal.App.3d 193 [46 Cal.Comp.Cases 622].) In this case, the Appeals Board received actual notice of the Petition for Reconsideration on June 21, 2022, making this decision timely. We find that the WCJ erred in rating applicant's lumbar spine permanent disability at 35%. The WCJ wrote in the Report, "Dr. Betoushana noted in deposition while there was an argument for ROM rating, he felt the DEU rating with an add on for pain most appropriate." (Report at p. 7.) To the contrary, we have reviewed Dr. Betoushana's reports and deposition testimony (October
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.
Opined that the most accurate rating for lumbar spine impairment includes loss of range of motion, add-on for pain, and loss of lifting capacity; found 41% lumbar spine permanent disability and 9% left wrist impairment.
The WCAB found that Dr. Betoushana's impairment ratings for lumbar spine and left wrist should be incorporated into the permanent disability rating.
From the decision · page 2Consistent with fundamental principles of due process, therefore, and in keeping with common sensibilities, we are persuaded, under these circumstances, that the running of the 60-day statutory period for reviewing and acting upon a petition for reconsideration begins no earlier than the Appeals Board's actual notice of the petition for reconsideration. (See Shipley v. Workers' Comp. Appeals Bd. (1992) 7 Cal.App.4th 1104 [57 Cal.Comp.Cases 493]; State Farm Fire and Casualty v. Workers' Comp. Appeals Bd. (Felts) (1981) 119 Cal.App.3d 193 [46 Cal.Comp.Cases 622].) In this case, the Appeals Board received actual notice of the Petition for Reconsideration on June 21, 2022, making this decision timely. We find that the WCJ erred in rating applicant's lumbar spine permanent disability at 35%. The WCJ wrote in the Report, "Dr. Betoushana noted in deposition while there was an argument for ROM rating, he felt the DEU rating with an add on for pain most appropriate." (Report at p. 7.) To the contrary, we have reviewed Dr. Betoushana's reports and deposition testimony (October
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Athens Administrators v. Workers' Comp. Appeals Bd. (Kite) (2013) 78 Cal.Comp.Cases 213
Use of Combined Values Chart for combining orthopedic and internal medicine/dental impairments unless substantial medical evidence supports adding impairments with synergistic effect.
The WCAB affirmed combining impairments rather than adding them because specialists did not provide compelling reasons for adding disparate impairments.
From the decision · page 3However, we affirm the WCJ's decision to combine the orthopedic permanent disability and the internal medicine and dental permanent disabilities utilizing the Combined Values Chart rather than add them. In Athens Administrators v. Workers' Comp. Appeals Bd. (Kite) (2013) 78 Cal.Comp.Cases 213 (writ den.), we held that adding, rather than combining, two different impairments better reflected a worker's impairment when substantial medical evidence supported the notion that the two impairments had a synergistic effect where, in effect, the resultant impairment was more than the sum of the two impairments. In Kite, the evaluator explained why the disparate impairments were not actually disparate, and the impairments in question were all under the physician's expertise.2 In contrast, here specialists are suggesting that we add impairments found by them in their own specialty to impairments in completely different body systems found by a different specialist. The specialists did not give any compelling reason why the impairments should be added, and questions beyond applicant's impairment in the specialists' specific fields, including applicant's overall impairment or the operation of the CVC, are beyond the specialists' expertise. (Applied Materials v. Workers' Comp. Appeals Bd. (D.C.) (2021) 64 Cal.App.5th 1042, 1097 [86 Cal.Comp.Cases 331].)
What proof carried it
The evidence the panel weighed, by kind.
Dr. Betoushana's reports and deposition testimony supporting range of motion and lifting impairment ratings
From the decision · page 2Consistent with fundamental principles of due process, therefore, and in keeping with common sensibilities, we are persuaded, under these circumstances, that the running of the 60-day statutory period for reviewing and acting upon a petition for reconsideration begins no earlier than the Appeals Board's actual notice of the petition for reconsideration. (See Shipley v. Workers' Comp. Appeals Bd. (1992) 7 Cal.App.4th 1104 [57 Cal.Comp.Cases 493]; State Farm Fire and Casualty v. Workers' Comp. Appeals Bd. (Felts) (1981) 119 Cal.App.3d 193 [46 Cal.Comp.Cases 622].) In this case, the Appeals Board received actual notice of the Petition for Reconsideration on June 21, 2022, making this decision timely. We find that the WCJ erred in rating applicant's lumbar spine permanent disability at 35%. The WCJ wrote in the Report, "Dr. Betoushana noted in deposition while there was an argument for ROM rating, he felt the DEU rating with an add on for pain most appropriate." (Report at p. 7.) To the contrary, we have reviewed Dr. Betoushana's reports and deposition testimony (October
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