ADJ953988 — California WCAB decision

What the panel ordered

Petition for Reconsideration denied; Findings and Award affirmed

Petition for Reconsideration of the December 11, 2020 Findings and Award

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 ratingDefendant prevailedright upper extremity · cervical spine · psyche · headaches · upper GI · lower GI · dental · TMJ

The WCJ and panel found the vocational expert's opinion was not substantial evidence to rebut the permanent disability rating based on the AMA Guides and permanent disability rating schedule, as the vocational opinion relied on subjective factors not supported by medical evidence and did not properly segregate non-industrial factors.

From the decision · page 6Applicant asserts that her permanent disability rating should not have been based on a strict application of the AMA Guides, contending that she has rebutted the rating as the medical and vocational evidence in the record establishes she is not amenable to vocational rehabilitation and has experienced a total loss of future earning capacity. Applicant contends that the opinion of her vocational expert, Laura Wilson, supports her claim for permanent total disability on the basis that she is not amenable to vocational rehabilitation due solely to the effects of her industrial injury, and without consideration of impermissible factors.

The rules the panel named

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

Labor Code section 4660; Brodie v. Workers' Comp. Appeals Bd. (2007) 40 Cal.4th 1313; Department of Corrections & Rehabilitation v. Workers' Comp. Appeals Bd. (Fitzpatrick) (2018) 27 Cal.App.5th 607; Almaraz v. Environmental Recovery Service/Guzman v. Milpitas Unified School District (2009) 74 Cal.Comp.Cases 1084; Milpitas Unified School Dist. v. Workers' Comp. Appeals Bd. (Guzman) (2010) 187 Cal.App.4th 808; Ogilvie v. Workers' Comp. Appeals Bd. (2011) 197 Cal.App.4th 1262; Contra Costa County v. Workers' Comp. Appeals Bd. (Dahl) (2015) 240 Cal.App.4th 746; LeBoeuf v. Workers' Comp. Appeals Bd. (1983) 34 Cal.3d 234

Permanent disability is determined by whole person impairment within the AMA Guides and the permanent disability rating schedule, considering the effect on future earning capacity.

The panel applied these standards to reject the vocational expert's opinion as insufficient to rebut the permanent disability rating based on AMA Guides and schedule.

From the decision · page 6Labor Code section 4660 provides that 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 (AMA Guides), the proper application of the permanent disability rating schedule in light of the medical record and the effect of the injury on the worker's future earning capacity. (Brodie v. Workers' Comp. Appeals Bd. (2007) 40 Cal.4th 1313, 1320 [72 Cal.Comp.Cases 565] ["permanent disability payments are intended to compensate workers for both physical loss and the loss of some or all of their future earning capacity"]; Department of Corrections & Rehabilitation v. Workers' Comp. Appeals Bd. (Fitzpatrick) (2018) 27 Cal.App.5th 607, 614 [83 Cal.Comp.Cases 1680]; Almaraz v. Environmental Recovery Service/Guzman v. Milpitas Unified School District (2009) 74 Cal.Comp.Cases 1084 (Appeals Board en banc) as affirmed by the Court of Appeal in Milpitas Unified School Dist. v. Workers' Comp. Appeals Bd. (Guzman) (2010) 187 Cal.App.4th 808 [75 Cal.Comp.Cases 837].)

ADJ953988 · February 22, 2021

What the panel ordered

What was disputed, and how it came out

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The facts that decided it

What the panel did with the medical opinions

The rules the panel named

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