What the panel ordered
The panel denied the defendant's petition for reconsideration, affirming the WCJ's Findings and Award of 77% permanent disability after apportionment under Labor Code section 4663, and rejecting the defendant's argument for additional apportionment under section 4664.
Defendant sought reconsideration of the WCJ's Findings and Award dated November 10, 2022, which found compensable industrial injury and permanent disability of 77%. The WCJ's report and recommendation on the petition was adopted by the panel.
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 WCJ properly applied apportionment under Labor Code section 4663 based on Dr. Yung's opinion and rejected additional apportionment under section 4664 due to lack of substantial medical evidence proving overlap with the prior injury rated under a different standard.
From the decision · page 1Defendant seeks reconsideration of a workers' compensation administrative law judge's (WCJ) Findings and Award of November 10, 2022, wherein it was found that while employed during a cumulative period ending on May 19, 2014 as a stocker/cashier, applicant sustained industrial injury to her elbows, arms, thumbs, wrists and to her right shoulder causing compensable permanent disability of 77%. In finding permanent disability of 77%, the WCJ found that the applicant rebutted the scheduled whole person impairment rating in the AMA Guides pursuant to Milpitas Unified School District v. Workers' Comp. Appeals Bd. (Guzman) (2010) 187 Cal.App.4th 808 [75 Cal.Comp.Cases 837]. Additionally, in making her permanent disability findings, the WCJ applied Labor Code section 4663 apportionment, but did not apply Labor Code section 4664 apportionment to a stipulated Award of September 10, 1991 for a cumulative injury through April 8, 1989.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Applicant sustained a cumulative industrial injury ending May 19, 2014, causing permanent disability to bilateral elbows, arms, thumbs, wrists, and right shoulder.
Favours Applicant prevailed
This established the compensable injury and basis for the permanent disability rating.
From the decision · page 1Defendant seeks reconsideration of a workers' compensation administrative law judge's (WCJ) Findings and Award of November 10, 2022, wherein it was found that while employed during a cumulative period ending on May 19, 2014 as a stocker/cashier, applicant sustained industrial injury to her elbows, arms, thumbs, wrists and to her right shoulder causing compensable permanent disability of 77%. In finding permanent disability of 77%, the WCJ found that the applicant rebutted the scheduled whole person impairment rating in the AMA Guides pursuant to Milpitas Unified School District v. Workers' Comp. Appeals Bd. (Guzman) (2010) 187 Cal.App.4th 808 [75 Cal.Comp.Cases 837]. Additionally, in making her permanent disability findings, the WCJ applied Labor Code section 4663 apportionment, but did not apply Labor Code section 4664 apportionment to a stipulated Award of September 10, 1991 for a cumulative injury through April 8, 1989.
Dr. Yung issued a 77% permanent disability rating after apportionment using Almaraz/Guzman analysis and Table 13-17 of the AMA Guides, considering activities of daily living limitations and chronic pain.
Favours Applicant prevailed
The rating method was upheld as appropriate and justified, supporting the disability finding.
From the decision · page 3In his evaluating report on August 1, 2017, Dr. Yung issued a 10% whole person impairment (WPI) for the right shoulder range of motion loss and 2% WPI for each thumb range of motion loss, as the strict AMA guides rating. (App. Exh. 7, Jeffrey Yung, M.D. August 1, 2017) Dr. Yung subsequently invoked Almaraz/Guzman to issue a 50% WPI based on Table 13-17 due to applicant's limitations of activities of daily living and difficulty with self-care activities. (Id.) Dr. Yung also imposed an additional 3% WPI based on chronic pain. He apportioned 10% of her right shoulder whole person impairment to her prior CT April 8, 1989 injury at Century Market. An additional 10% whole person impairment of her right wrist was apportioned to the applicant's prior fracture to the right wrist while roller blading and prior injury to the right wrist while working at Ray's Food. (Id.)
Defendant failed to prove overlap between the prior 1989 injury award and the current injury under Labor Code section 4664, and the prior injury was rated under a different standard making comparison speculative.
Favours Applicant prevailed
This led to rejection of additional apportionment under section 4664 and upheld the permanent disability rating after apportionment under section 4663.
From the decision · page 6The undersigned WCJ applied apportionment pursuant to Labor Code section 4663 according to Dr. Yung's opinion. Yet, the defendant failed to show overlap between the prior stipulated award and the cumulative trauma through May 19, 2014 pursuant to Labor Code section 4664. Dr. Yung failed to assess the applicant's whole person impairment from the prior injury under the AMA Guides. In fact, at petitioner's insistence, Dr. Yung repeatedly claimed that it would be speculative to rate the applicant's prior injuries under the AMA Guides. At his deposition, Dr. Yung specifically testified,
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.
Issued a 77% permanent disability rating after apportionment based on Almaraz/Guzman analysis, using Table 13-17 of the AMA Guides to account for limitations in activities of daily living and chronic pain. Apportioned some impairment to prior injuries but found it speculative to rate prior injuries under the AMA Guides.
Dr. Yung's use of Table 13-17 and Almaraz/Guzman analysis was found appropriate and justified by the WCJ and the panel, providing a more accurate measure of impairment than the strict AMA Guides rating.
From the decision · page 3Jeffrey Yung, M.D. was utilized as the Panel Qualified Medical Evaluator for the May 19, 2014 industrial injury. Over the course of this claim, he issued five evaluating reports, eight supplemental reports, and availed himself to two depositions.
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Labor Code section 4663
Labor Code section 4663 governs apportionment of permanent disability to prior industrial injuries or conditions.
Applied to apportion permanent disability based on Dr. Yung's opinion.
From the decision · page 5B. THE COURT PROPERLY APPLIED APPORTIONMENT SOLELY ACCORDING TO LABOR CODE § 4663.
Labor Code section 4664
Labor Code section 4664 provides a presumption affecting the burden of proof for overlap of disability from prior awards.
Rejected application of section 4664 apportionment due to lack of substantial evidence of overlap.
From the decision · page 5Petitioner contends that the applicant's prior award of 34.5% should be conclusively presun1ed to exist and be subtracted from the current award of permanent disability. (Petition p. 10, lines 8-10.)
Milpitas Unified School District v. Workers' Comp. Appeals Bd. (Guzman) (2010) 187 Cal.App.4th 808
A physician may utilize any chapter, table or method in the AMA Guides that most accurately reflects the injured employee's impairment.
Allows deviation from strict AMA Guides rating based on activities of daily living limitations.
From the decision · page 4This argument ignores the basic tenet of Almaraz/Guzman. The plain language in the holding of Almaraz/Guzman, states that a physician may use any chapter, table, or method within the "four corners" of the Guides that most accurately affects the injured employee's impairment. The account to be taken of the nature of an employee's injury does not limit the examining physician to any particular chapter, table, or method of the guides. In reaching an impairment opinion that is not based on a strict application of the AMA Guides a physician may consider a wide variety of medical and non-medical information, including the applicant's subjective complaints.
What proof carried it
The evidence the panel weighed, by kind.
Applicant's testimony about limitations in activities of daily living such as difficulty lifting, grasping, and performing household tasks, and pain in right shoulder and upper extremities.
From the decision · page 3The applicant testified at trial in substance as follows. During her last year at Santa Rosa Tile she had difficulty lifting, putting items on shelves and concentrating because she hurt so bad, mostly in her right elbow. (MOH/SOE, p. 5, line 45- p. 6, line 2.) She used to be able to vacuum, dust, scrub tile and the bathtub and get down on the floor on her hands and knees to clean. She's not
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About this page
- A published decision of the California Workers' Compensation Appeals Board, taken apart by what it turned on. The Board publishes the decision itself; this page adds the extraction and quotes the passage behind every claim.
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