What the panel ordered
Petition for Reconsideration granted; Findings and Award amended; matter returned to trial level for further proceedings
Petition for Reconsideration granted; matter returned to trial level for further proceedings on lower extremity veins injury
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 Board found that the prior awards totaling 63% for injuries in the same body region under section 4664(c)(1)(G) limit the current award to 37%, rejecting applicant's argument to treat cancer and heart injuries as separate regions.
From the decision · page 310. Defendant met their burden to establish applicant had prior awards totaling 63% in the same region as the current injuries to the heart, both lungs in the form of pulmonary emboli, and cancer in the form of malignant melanoma with metastasis, pursuant to Labor Code, section 4664(c)(1)(G).
The Board granted reconsideration and remanded the matter to develop the record on the injury to the lower extremity veins, which may fall under a different body region than the other injuries.
From the decision · page 2We agree with the WCJ that section 4664(c)(1) limits the award for applicant's malignant melanoma, coronary heart disease, and pulmonary emboli, as all these conditions fall under the "catch-all" region in section 4664(c)(1)(G). However, applicant's injury to his lower extremity veins arguably fall under a different body region under section 4664(c)(1)(F). We, thus, grant reconsideration and return this matter to the trial level to develop the records as to applicant's injury to his lower extremity veins. (Tyler v. Workers' Comp. Appeals Bd. (1997) 56 Cal. App.4th 389, 393-395 [62 Cal.Comp.Cases 924]; McClune v. Workers' Comp. Appeals Bd. (1998) 62 Cal.App.4th 1117, 1121-1122 [63 Cal.Comp.Cases 261]; see § 5701 and 5906 and McDuffie v. Los Angeles County Metropolitan Transit Authority (2001) 67 Cal.Comp.Cases 138 (Appeals Bd. en banc).)
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Applicant had prior awards totaling 63% for injuries in the same body region under Labor Code section 4664(c)(1)(G).
Favours Defendant prevailed
This prior award total limits the current permanent disability award to 37% under the statutory 100% lifetime cap.
From the decision · page 310. Defendant met their burden to establish applicant had prior awards totaling 63% in the same region as the current injuries to the heart, both lungs in the form of pulmonary emboli, and cancer in the form of malignant melanoma with metastasis, pursuant to Labor Code, section 4664(c)(1)(G).
Applicant's injury to lower extremity veins may fall under a different body region under Labor Code section 4664(c)(1)(F).
Favours Applicant prevailed
The Board granted reconsideration and remanded to develop the record on this injury separately from the other injuries.
From the decision · page 2We agree with the WCJ that section 4664(c)(1) limits the award for applicant's malignant melanoma, coronary heart disease, and pulmonary emboli, as all these conditions fall under the "catch-all" region in section 4664(c)(1)(G). However, applicant's injury to his lower extremity veins arguably fall under a different body region under section 4664(c)(1)(F). We, thus, grant reconsideration and return this matter to the trial level to develop the records as to applicant's injury to his lower extremity veins. (Tyler v. Workers' Comp. Appeals Bd. (1997) 56 Cal. App.4th 389, 393-395 [62 Cal.Comp.Cases 924]; McClune v. Workers' Comp. Appeals Bd. (1998) 62 Cal.App.4th 1117, 1121-1122 [63 Cal.Comp.Cases 261]; see § 5701 and 5906 and McDuffie v. Los Angeles County Metropolitan Transit Authority (2001) 67 Cal.Comp.Cases 138 (Appeals Bd. en banc).)
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.
Assigned 80% whole person impairment for malignant melanoma with widespread metastasis and 25% whole person impairment for coronary heart disease; reports used by WCJ for rating permanent disability.
From the decision · page 5The parties utilized Dr. Ernest Levister as an AME and jointly offered his reports dated July 27, 2021, October 18, 2022 and March 9, 2023. (Joint Exhibit X, Y and Z.) Dr. Levister utilized Table 5-11 on page 106 to rate applicant's malignant melanoma with widespread metastasis and assigns 80% whole person impairment. (Joint Exhibit Y page 26.) The undersigned rated this impairment at 100% per the following rating string: 05.03.00.00-80-[1.4]-112-490I-100- 100% permanent disability. Dr. Levister assigned 25% whole person impairment for the heart due to coronary heart disease per Table 3-6a on page 26. (Joint Exhibit Y page 25.) The undersigned rated this impairment at 52% based on the following rating string: 03.02.00.00-25-[1.4]-35-490I- 44-52% permanent disability. Combining 100% with 52% renders a value of 100%.
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Labor Code Section 4664(c)(1)
Labor Code Section 4664(c)(1) limits the accumulation of permanent disability awards to 100% per body region.
Applied to limit applicant's permanent disability award to 37% for injuries in the same body region.
From the decision · page 6"The accumulation of all permanent disability awards issued with respect to any one region of the body in favor of one individual employee shall not exceed 100 percent over the employee's lifetime unless the employee's injury or illness is conclusively presumed to be total in character pursuant to Section 4662. As used in this section, the regions of the body are the following:
What proof carried it
The evidence the panel weighed, by kind.
reporting of AME Dr. Ernest Levister
From the decision · page 8Applicant was the moving party, who jointly requested trial to include the issue of permanent disability and made no objection on the day of Trial that further discovery was needed. The first time applicant takes issue with the medical reporting is on reconsideration. Defendant raised the limitations of Labor Code Section 4664(c)(1) on the Pre-Trial Conference statement and yet, there was no objection to proceeding to Trial on the current record. Therefore, while a WCJ may have a duty to develop the record where the entire record is inadequate to enable a decision, this duty does not permit a judge to rescue a party from their obligation of developing their own case and obtaining medical evidence. (see San Bernardino Community Hospital v WCAB (McKernan)(1999) 64 CCC 986). In light of the above, and as discussed in the Opinion on Decision, the undersigned finds the reporting of the AME Dr. Levister to be substantial medical evidence on the issue of permanent disability.
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About this page
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