ADJ953988 · February 22, 2021

The WCJ and panel found the vocational expert's opinion was not substantial evidence to rebut the permanent disability rating based on the AMA Guides and permanent disability rating schedule, as the vocational opinion relied on subjective factors not supported by medical evidence and did not properly segregate non-industrial factors.

From the decision · page 6Applicant asserts that her permanent disability rating should not have been based on a strict application of the AMA Guides, contending that she has rebutted the rating as the medical and vocational evidence in the record establishes she is not amenable to vocational rehabilitation and has experienced a total loss of future earning capacity. Applicant contends that the opinion of her vocational expert, Laura Wilson, supports her claim for permanent total disability on the basis that she is not amenable to vocational rehabilitation due solely to the effects of her industrial injury, and without consideration of impermissible factors.

Dr. Stalberg found applicant's pain complaints exaggerated and rejected total bodily pain complaints, undermining vocational expert's conclusions.

Favours Defendant prevailed

This finding undercut the vocational expert's reliance on subjective pain complaints to establish permanent total disability.

Dr. Berman placed work restrictions only on the right upper extremity and cervical spine, with no limitations on sitting, walking or standing.

Favours Defendant prevailed

This limited scope of restrictions contradicted the vocational expert's broader conclusions about applicant's functional limitations.

Assessed 40% loss of pre-injury capacity in right upper extremity (24% WPI) and 27% WPI for cervical spine; precluded very heavy work and use of right upper extremity for forceful and repetitive activities; did not find applicant unable to return to open labor market.

Dr. Berman's report was reviewed and found not to support permanent total disability or inability to return to the labor market.

Found TMJ internal derangement syndrome caused or contributed by orthopedic pain and psyche issues; did not place work restrictions or find need for vocational rehabilitation based on dental injury.

Panel noted Dr. Gabriel did not place work restrictions or find vocational rehabilitation need for dental injury.

Diagnosed pain disorder with psychological factors and depressive disorder NOS; found 37% whole person impairment; noted exaggeration of pain complaints and rejected total bodily pain complaints; did not conclude inability to return to labor force due to industrial injury but due to Social Security Disability benefits.

Panel found Dr. Stalberg's psychiatric report did not support permanent total disability due to industrial injury, but noted Social Security Disability status.

Labor Code section 4660; Brodie v. Workers' Comp. Appeals Bd. (2007) 40 Cal.4th 1313; Department of Corrections & Rehabilitation v. Workers' Comp. Appeals Bd. (Fitzpatrick) (2018) 27 Cal.App.5th 607; Almaraz v. Environmental Recovery Service/Guzman v. Milpitas Unified School District (2009) 74 Cal.Comp.Cases 1084; Milpitas Unified School Dist. v. Workers' Comp. Appeals Bd. (Guzman) (2010) 187 Cal.App.4th 808; Ogilvie v. Workers' Comp. Appeals Bd. (2011) 197 Cal.App.4th 1262; Contra Costa County v. Workers' Comp. Appeals Bd. (Dahl) (2015) 240 Cal.App.4th 746; LeBoeuf v. Workers' Comp. Appeals Bd. (1983) 34 Cal.3d 234

Permanent disability is determined by whole person impairment within the AMA Guides and the permanent disability rating schedule, considering the effect on future earning capacity.

The panel applied these standards to reject the vocational expert's opinion as insufficient to rebut the permanent disability rating based on AMA Guides and schedule.

From the decision · page 6Labor Code section 4660 provides that permanent disability is determined by consideration of whole person impairment within the four corners of the AMA Guides to the Evaluation of Permanent Impairment, Fifth Edition (AMA Guides), the proper application of the permanent disability rating schedule in light of the medical record and the effect of the injury on the worker's future earning capacity. (Brodie v. Workers' Comp. Appeals Bd. (2007) 40 Cal.4th 1313, 1320 [72 Cal.Comp.Cases 565] ["permanent disability payments are intended to compensate workers for both physical loss and the loss of some or all of their future earning capacity"]; Department of Corrections & Rehabilitation v. Workers' Comp. Appeals Bd. (Fitzpatrick) (2018) 27 Cal.App.5th 607, 614 [83 Cal.Comp.Cases 1680]; Almaraz v. Environmental Recovery Service/Guzman v. Milpitas Unified School District (2009) 74 Cal.Comp.Cases 1084 (Appeals Board en banc) as affirmed by the Court of Appeal in Milpitas Unified School Dist. v. Workers' Comp. Appeals Bd. (Guzman) (2010) 187 Cal.App.4th 808 [75 Cal.Comp.Cases 837].)

Applicant's subjective pain complaints were found exaggerated by Dr. Stalberg, undermining vocational expert's conclusions.

No physician placed limitations on applicant's ability to sit, walk or stand due to industrial injury, contrary to vocational expert's assertions.