ADJ9900622 · July 8, 2022

The WCJ found applicant 100% totally permanently disabled based on the persuasive vocational expert opinion that applicant was not amenable to vocational rehabilitation and incapable of employment, and the combined medical evidence rated at 98% disability. The WCAB adopted this reasoning and found no error.

From the decision · page 4The parties submitted a total of 39 exhibits which included multiple medical reports, 4 Cross- examination transcripts, 10 vocational expert reports, and medical reporting from 6 different specialties. The Court reviewed each page of the evidence and outlined the multiple findings from the various doctors in describing the basis for the finding that the applicant was entitled to a finding of 100% total permanent disability.

Applicant was found not amenable to vocational rehabilitation and incapable of employment by the applicant's vocational expert, whose opinion was found more persuasive than the defense expert.

Favours Applicant prevailed

This finding justified the award of 100% permanent total disability.

Combined medical reporting from multiple specialties rated applicant's disability at 98%.

Favours Applicant prevailed

This rating, combined with the vocational evidence, supported the finding of total permanent disability.

From the decision · page 4In arriving at that conclusion, this judge rated each medical report personally and determined that, using only the AMA guides and the Combined Disabilities Chart, the applicant sustained a total of 98% disability.

Dr. Frank determined applicant suffered from a major neurocognitive disorder but opined that the psychiatric disability resulted in a whole person impairment of only 30%.

Cited as substantial evidence for psychiatric impairment, but not sole basis for total disability.

From the decision · page 5In the present case, Dr. Frank, the AME in Psychiatry determined that the applicant suffered from a major neuro cognitive disorder, but does not change his opinion that the applicant's disability results in whole person impairment of only 30%.

Dr. Schreiber's reports, along with Dr. Frank's, were considered substantial evidence regarding applicant's impairment and disability.

Reports considered substantial evidence for impairment and disability.

From the decision · page 5Further, as stated above, neither Labor Code Section § 4662(a)(4), nor the Kite case were determined to be applicable in this matter. The principles for which the LeBoeuf case is generally cited were considered, but consideration of the reports of Dr. Patterson was not necessary in light of the reports and deposition testimony of Dr. Frank and Dr. Shreiber, which were considered to constitute substantial evidence, along with the reports of Dr. Markovitz, Dr. Berman, Dr. Sami and Dr. Tertzakian, as was so stated in the Opinion on Decision.

Dr. Patterson's reports were not necessary to the outcome in light of the reports and deposition testimony of Dr. Frank and Dr. Schreiber.

Consideration of Dr. Patterson's reports was not necessary to the outcome.

From the decision · page 5Further, as stated above, neither Labor Code Section § 4662(a)(4), nor the Kite case were determined to be applicable in this matter. The principles for which the LeBoeuf case is generally cited were considered, but consideration of the reports of Dr. Patterson was not necessary in light of the reports and deposition testimony of Dr. Frank and Dr. Shreiber, which were considered to constitute substantial evidence, along with the reports of Dr. Markovitz, Dr. Berman, Dr. Sami and Dr. Tertzakian, as was so stated in the Opinion on Decision.

Guzman v. Milpitas Unified School District (2009) 74 CCC 470; Labor Code § 4660.1(g); Labor Code § 4662(b)

A finding by a vocational expert that an injured worker is not amenable to vocational rehabilitation and incapable of employment is sufficient to justify a finding of 100% permanent total disability.

Applied to support the finding of 100% permanent total disability based on vocational evidence.

From the decision · page 4The finding by a vocational expert that an injured worker is not amenable to vocational rehabilitation and incapable of employment is sufficient to justify a finding of 100% permanent total disability. Guzman vs. Milpitas Unified Scholl District, (2009), 74 CCC470; Labor Code § 4660.1(g); Labor Code § 4662(b).

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

A permanent disability rating should reflect as accurately as possible an injured employee's diminished ability to compete in the open labor market. The fact that a worker has been precluded from vocational retraining is a significant factor to be taken into account in evaluating his or her potential employability.

Principles of LeBoeuf were applied as the basis for the finding of total permanent disability, even if not cited in the original decision.

From the decision · page 4A permanent disability rating should reflect as accurately as possible an injured employee's diminished ability to compete in the open labor market. The fact that a worker has been precluded from vocational retraining is a significant factor to be taken into account in evaluating his or her potential employability. 34 Cal.3d 234, 246.

Medical reports from multiple specialties were reviewed and rated, resulting in a combined disability rating of 98%.

From the decision · page 4In arriving at that conclusion, this judge rated each medical report personally and determined that, using only the AMA guides and the Combined Disabilities Chart, the applicant sustained a total of 98% disability.