ADJ7882792 · March 9, 2023

The judge found Applicant's vocational expert Laura Wilson more persuasive and better reasoned than Defendant's expert Amy Koellner, supporting the 100% permanent disability finding.

From the decision · page 3The focus of Defendant's argument is challenging the judge's decision to rely on the findings of Applicant's vocational expert Laura Wilson rather than the findings of Defendant's vocational expert Amy Koellner.

Applicant's vocational expert Laura Wilson was found more persuasive and better reasoned than Defendant's expert Amy Koellner.

Favours Applicant prevailed

This supported the judge's conclusion of 100% permanent disability for Applicant.

From the decision · page 6Overall, the judge felt applicant's vocational expert was the better reasoned and more persuasive than that of Defendant's, and that it more accurately provides information relevant to the issue at hand. The judge therefore concludes that applicant is totally and permanently disabled and will be awarded 100%. It was shown by medical and vocational evidence that he is not vocationally feasible, can no longer compete in the active labor force, and has a complete loss of future earning capacity."

applicant was a credible witness who testified to ongoing medical and psychiatric treatment and symptoms.

Favours Applicant prevailed

Credibility supported the permanent disability findings and vocational expert's opinion.

From the decision · page 9applicant WAS CREDIBLE WITNESS.

Provided orthopedic work restrictions and reported on activities of daily living supporting permanent disability.

Dr. Sobol's reports were a main basis for the judge's permanent disability conclusions.

From the decision · page 8DR. SOBOL'S REPORTING AS TO ACTIVITIES OF DAILY LIVING

Diagnosed PTSD, Generalized Anxiety Disorder, and Major Depressive Disorder; recommended ongoing psychological treatment and work restrictions to avoid undue emotional stress.

The vocational expert's failure to review Dr. Jacks' report was a noted shortcoming but did not undermine the overall vocational expert credibility.

From the decision · page 11Dr. Jacks was the AME in psychiatry. There are two reports but all the findings are found in Exhibit W which is the 5/13/21 report. He discussed the repercussions of this injury on the applicant. He is taking Xanax once a day, Prosom at bedtime, Baclofen, Tramadol three times a week, Voltaren, Famotidine, Metformin, Norco and Advair.

Found significant permanent disability with 40% non-industrial apportionment; prior trial judge found apportionment invalid without specific reasons.

The vocational expert Laura Wilson misunderstood or misrepresented Dr. Hirokawa's apportionment findings, affecting her opinion reliability.

From the decision · page 4When this case went to Trial in 2019 before the prior judge, the psychiatric evidence that judge relied on was from Dr. Hirokawa. The psychiatrist found significant permanent disability but apportioned 40% of it as non-industrial. Ultimately, the prior trial judge determined that apportionment was invalid but no specific reasons were given.

Provided medical reports on industrial physical limitations supporting vocational expert's opinion of no vocational feasibility.

Medical reports supported vocational expert Laura Wilson's opinion on vocational feasibility and permanent disability.

From the decision · page 7McCroskey and Volcano 15.0 it is my professional opinion that based on his industrial related impairment and his industrial physical limitations that were provided in the medical reports of Dr. Domenic J. Sisto, Agreed Medical Examiner Jeffrey A. Hirsh, Dr. Philip A. Sobol, Qualified Medical Examiner Karl E. Epstein, and Qualified Medical Examiner Greg Hirokawa, the applicant is not amenable to vocational rehabilitation and is unable to sustain gainful employment and therefore is unable to compete in the open labor market and as result of his work related impairments provided by considering his preinjury capacity and abilities, he has at present no consistent and stable future earning capacity.

Provided substantial medical evidence on impairments including GI, IBS, blood pressure, sexual dysfunction, constipation, and hernia.

Medical evidence from Dr. Hirsh supported the permanent disability findings.

From the decision · page 10Dr. Hirsch was the AME in internal medicine. There are five reports jointly offered into evidence as Exhibits X, T and U. There appears to be just a single exam in 2015 and then supplemental reports thereafter. His reporting is substantial medical evidence concerning how much impairment exists on the upper GI, lower GI, hernia, sleep and sexual dysfunction. (See Formal Rating Instructions)

Cal. Const., art. XIV, § 4

Constitutional mandate to accomplish substantial justice in all cases expeditiously, inexpensively, and without any incumbrance of any character.

The judge made a decision based on the presented record considering this mandate.

From the decision · page 6Per the Minutes of Hearing dated 9/16/19, the prior trial judge "strongly" recommended that an agreed vocational expert be used. But this did not happen and the judge is now required to make a pick or develop the record. Since this case was tried twice, and in consideration of the Constitutional mandate to accomplish substantial justice in all cases expeditiously, inexpensively, and without any incumbrance of any character, the judge did his best to make a decision based on the presented record. (Cal. Const., art. XIV, § 4)

applicant was a credible witness, testifying to ongoing medical and psychiatric treatment and symptoms including nightmares, flashbacks, and medication use.

From the decision · page 9applicant WAS CREDIBLE WITNESS.

The judge found the side effects of medication and pain limiting activity important factors in determining vocational feasibility, favoring Applicant's vocational expert's opinion.

From the decision · page 15Defendant hired vocational expert Amy Koellner who first issued a report dated 5/9/18 (Exhibit A) There was a division as to the vocational experts as to whether consideration of the side effects of medication and pain limiting activity can be a factor in determining vocational feasibility. The judge felt it was an important factor in one's ability to return to work.