ADJ12933120 — California WCAB decision

What the panel ordered

Petition for Removal dismissed as moot; Petition for Reconsideration denied; WCJ's determination of permanent total disability without apportionment affirmed.

Defendant sought reconsideration of the December 30, 2022 Findings and Award, which found applicant permanently and totally disabled without apportionment; defendant also sought removal of the WCJ's order closing discovery and setting the matter for trial.

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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 prevailedright thumb · skin (allergic dermatitis) · upper extremities · lower extremities · psyche

Medical evidence from Drs. Chang and Miller supported permanent total disability due to industrial injury and sequelae of medical treatment; apportionment was not applicable under Hikida; additive approach to impairment was justified under Kite due to synergistic effect of multiple industrial conditions.

From the decision · page 10In summary, we conclude that the record supports the WCJ's determination that applicant has sustained permanent and total disability arising out of the industrial medical treatment she received following her admitted injury. We concur with the WCJ that under the principles espoused in Hikida, supra, 12 Cal.App.5th at 1260, applicant's disability is not subject to apportionment. Additionally, we agree with the WCJ that Dr. Miller appropriately explicated the rationale for adding, rather than combing, applicant's pain and dermatology-related impairments pursuant to the analysis in Kite, supra, 78 Cal.Comp.Cases 213. We also agree that the reporting of applicant's vocational expert, which reviews the deposition testimony of QME Dr. Miller and QME Dr. Sofen, is the more convincing and persuasive.

The facts that decided it

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

Applicant's permanent total disability arose from sequelae of industrial medical treatment, including chronic pain, CRPS, and allergic dermatitis.

Favours Applicant prevailed

Established industrial causation and precluded apportionment under Hikida.

From the decision · page 10In summary, we conclude that the record supports the WCJ's determination that applicant has sustained permanent and total disability arising out of the industrial medical treatment she received following her admitted injury. We concur with the WCJ that under the principles espoused in Hikida, supra, 12 Cal.App.5th at 1260, applicant's disability is not subject to apportionment. Additionally, we agree with the WCJ that Dr. Miller appropriately explicated the rationale for adding, rather than combing, applicant's pain and dermatology-related impairments pursuant to the analysis in Kite, supra, 78 Cal.Comp.Cases 213. We also agree that the reporting of applicant's vocational expert, which reviews the deposition testimony of QME Dr. Miller and QME Dr. Sofen, is the more convincing and persuasive.

Medical opinions of Drs. Chang and Miller found no basis for apportionment and supported permanent total disability.

Favours Applicant prevailed

Provided substantial evidence for award of 100% permanent disability without apportionment.

From the decision · page 4The court relied on the reporting of Drs. Chang and Miller, the pain management doctors. Neither doctor assigned any psych impairment or nonindustrial apportionment. They both found applicant permanently totally disabled and applied Hikida. Dr. Miller's analysis of apportionment and Hikida was fully discussed in his deposition. (Deposition of Dr. Miller, Volume 2, dated 5/10/22, Exhibit 7.) Moreover, Defendant did not rebut these doctors' findings. (Report, at p. 4.)

Defendant's vocational expert did not review key medical depositions, undermining the credibility of her opinion.

Favours Applicant prevailed

Led to finding that applicant's vocational evidence was more persuasive and that vocational issue was moot.

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.

PTPRelied upon · pain management

Found applicant permanently totally disabled due to chronic pain syndrome, CRPS, and small fiber neuropathy, with no apportionment based on Hikida; concurred with Dr. Miller.

Relied upon for finding of permanent total disability and no apportionment.

From the decision · page 5Applicant's primary treating physician in pain management is Eric Chang, M.D., who found applicant [had sustained] permanently totally disability. Dr. Chang stated "patient has not made any recovery and is not able to return to work. At this time there is complete loss of preinjury work capacity. The patient is considered permanently totally disabled." (PTP report of Dr. Chang dated 6/29/21, Exhibit 14, pp. 5-6.) Dr. Chang was deposed on July 15, 2022, and he made additional findings to his previous reporting. Dr. Chang concluded that the applicant having all three-industrial diagnosis of chronic pain syndrome, CRPS, and small fiber neuropathy was massive, and just one of these diagnoses was enough to make someone unemployable. (Deposition of Dr. Chang dated 7/15/22, Exhibit 33, pp. 20-22.) Dr. Chang testified that applicant's prognosis is very poor.

QMERelied upon · pain management

Found applicant permanently totally disabled, unable to return to work, and no apportionment based on Hikida; used additive approach to impairment per Kite due to synergistic effect of multiple industrial conditions.

Relied upon for finding of permanent total disability, no apportionment, and additive approach to impairment.

From the decision · page 5Dr. Miller found applicant unable to resume work as a registered nurse or compete in any significant capacity in the open labor market. (QME report by Dr. Miller dated 7/23/21, Exhibit 4, p. 13.) Dr. Miller was deposed on May 10, 2022, and he opined applicant "was in miserable continuous neuropathic pain, she is distracted by the pain. You have continuous nagging. It could be just more than just nagging, but you have continuous pain that's going to limit your functions, because this pain becomes the center of, the attention of your life." (Deposition of Dr. Miller date 5/10/2022, Exhibit 7, pp. 27-28.) Dr. Miller also utilized the chronic pain section of the AMA Guides and found 30% for the right upper extremity, 20% for the left upper extremity, and 19% for the lower extremities. (Id., pages 32-35.) Dr. Miller concluded applicant was permanently totaled disabled, and he said she is unable to return to work. (Id., at 37:5-8; 48:3- 4.) Dr. Miller also utilized the Kite case for the most accurate form of disability and added his pain management impairments to the dermatological impairments outlined by Howard Sofen, M.D., the QME in dermatology. (Id., at 40:6-14.) Dr. Miller also found no apportionment based on the Hikida decision. (Id, at 49:7-12.)

QMERelied upon · dermatology

Diagnosed allergic dermatitis secondary to Bactrim reaction, secondary to cellulitis, and secondary to work-related laceration.

Relied upon for dermatological impairment component in additive approach.

From the decision · page 3QME Howard Sofen, M.D., evaluated applicant in dermatology, and diagnosed allergic dermatitis secondary to a Bactrim reaction, secondary to cellulitis, and secondary to a work related laceration. (Ex. 8, report of QME Howard Sofen, M.D., dated August 28, 2020, at p. 9.)

QMERelied upon · psychology

Diagnosed major depressive disorder and anxiety disorder with industrial causation and predominance; psychiatric impairment not assigned in final rating.

Relied upon for causation but not for impairment rating.

From the decision · page 5Applicant was also seen and evaluated by Daniel King, M.D., as the QME in psychology. He opined the predominate (sic) cause of the development of

The rules the panel named

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

Lab. Code §§ 3202.5, 5705; Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604 (en banc); Gay v. Workers' Comp. Appeals Bd. (1979) 96 Cal.App.3d 555

Applicant has the initial burden of establishing industrial injury and permanent disability by a preponderance of the evidence; employer has the burden to show apportionment of permanent disability by reasonable medical probability.

Applied to require defendant to prove apportionment and applicant to prove industrial causation and disability.

From the decision · page 4Applicant has the initial burden of establishing an industrial injury by a preponderance of the evidence. (Lab. Code § 3202.5, 5705; McAllister v. Workers' Comp. Appeals Bd. (1968) 69 Cal.2d 408, 416 [445 P.2d 313, 71 Cal. Rptr. 697] [33 Cal.Comp.Cases 660].) Additionally, applicant has the burden of proving, by a preponderance of the evidence, both the overall level of permanent disability and that at least some of this permanent disability was industrially-caused. (Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 612 [2005 Cal. Wrk. Comp. LEXIS 71] (Appeals Bd. en banc).

Gay v. Workers' Comp. Appeals Bd. (1979) 96 Cal.App.3d 555; Lab. Code §§ 5903, 5952(d); Lamb v. Workmen's Comp. Appeals Bd. (1974) 11 Cal.3d 274; Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312; LeVesque v. Workmen's Comp. Appeals Bd. (1970) 1 Cal.3d 627; Zemke v. Workmen's Comp. Appeals Bd. (1968) 68 Cal.2d 794

Apportionment is a factual matter for the appeals board to determine based upon all the evidence; decisions must be supported by substantial evidence.

Applied to require substantial evidence for apportionment and disability findings.

From the decision · page 6"Apportionment is a factual matter for the appeals board to determine based upon all the evidence." (Gay, supra, 96 Cal.App.3d at p. 564.) Thus, the WCJ has the authority to determine the appropriate amount of apportionment, if any. It is also well established that decisions by the Appeals Board must be supported by substantial evidence. (Lab. Code, § 5903, 5952(d); Lamb v. Workmen's Comp. Appeals Bd. (1974) 11 Cal.3d 274 [39 Cal.Comp.Cases 310]; Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312 [35 Cal.Comp.Cases 500]; LeVesque v. Workmen's Comp. Appeals Bd. (1970) 1 Cal.3d 627 [35 Cal.Comp.Cases 16].) Therefore, the WCJ must determine if the medical opinions regarding apportionment constitute substantial evidence. (See Zemke v. Workmen's Comp. Appeals Bd. (1968) 68 Cal.2d 794, 798 [33 Cal.Comp.Cases 358].)

Hikida v. WCAB (2017) 12 Cal.App.5th 1249; Kite, 78 Cal.Comp.Cases 213

Disability resulting from industrial medical treatment is not subject to apportionment (Hikida); additive approach to impairment is appropriate when synergistic effect of multiple industrial conditions (Kite).

Applied to find no apportionment and to add impairments rather than combine them.

From the decision · page 10In summary, we conclude that the record supports the WCJ's determination that applicant has sustained permanent and total disability arising out of the industrial medical treatment she received following her admitted injury. We concur with the WCJ that under the principles espoused in Hikida, supra, 12 Cal.App.5th at 1260, applicant's disability is not subject to apportionment. Additionally, we agree with the WCJ that Dr. Miller appropriately explicated the rationale for adding, rather than combing, applicant's pain and dermatology-related impairments pursuant to the analysis in Kite, supra, 78 Cal.Comp.Cases 213. We also agree that the reporting of applicant's vocational expert, which reviews the deposition testimony of QME Dr. Miller and QME Dr. Sofen, is the more convincing and persuasive.

ADJ12933120 · March 9, 2023

What the panel ordered

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The facts that decided it

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