ADJ9640229 — California WCAB decision

What the panel ordered

Findings and Award rescinded and substituted; permanent disability and attorney fees deferred; matter returned to WCJ for further proceedings.

Petitions for Reconsideration granted to further study factual and legal issues; matter returned to WCJ for further proceedings on permanent disability and attorney fees.

Read the official decision →

This docket was decided more than once. Shown here is the latest released decision; we also hold June 17, 2022.

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 ratingRemandedneck · thoracic spine · low back · psyche · sleep disorder · scars on right thigh

The record lacked substantial evidence on whether to add or combine disability factors; the matter was returned to the WCJ for further development on this issue.

From the decision · page 5The disability values of multiple impairments may be added instead of combined, if adding the impairments provides an accurate rating of the injured worker's disability, particularly when there is no overlap, and when the synergistic or additive effect of the multiple disabilities support that method of rating the overall disability. (Bookout v. Workers' Comp. Appeals Bd. (1976) 62 Cal.App.3d 214 [41 Cal.Comp.Cases 595]; Athens Administrators v. Workers' Comp. Appeals Bd. (Kite) (2013) 78 Cal.Comp.Cases 213 [2013 Cal. Wrk. Comp. LEXIS 34] (writ den.); De La Cerda v. Martin Selko & Co. (2017) 83 Cal.Comp.Cases 567 (writ den.).) In a case similar to the present matter, an Appeals Board panel noted that the psychiatric medical evaluator and the orthopedic medical evaluator agreed that the psychiatric and orthopedic disabilities did not overlap, and that since the disabilities did not overlap, it was appropriate to add the injured worker's factors of disability. (See Nohemi Taina v County of Santa Clara / Valley Medical Center (July 5, 2018 ADJ8268219) [2018 Cal. Wrk. Comp. P.D. LEXIS --] (panel dec.).)

The facts that decided it

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

Psychiatric QME Dr. Nehorayan opined psychiatric impairment should be added to orthopedic impairment.

Favours Applicant prevailed

This opinion supported adding disability factors rather than combining, influencing the need for further record development.

From the decision · page 6Here, psychiatric QME Dr. Nehorayan stated that applicant's psychiatric disability should be added to her orthopedic disability. (App. Exh. 18, p. 7; App. Exh. 20, p. 36.) Also, neurology/ sleep medicine QME Dr. Navab stated, "... [I]t may be more appropriate to add her sleep impairment, pursuant to the Kite case, as this could have a synergistic effect." (App. Exh. 19, p. 2.) However, orthopedic QME Dr. Hay did not address and/or provide an opinion as to whether applicant's orthopedic impairment should be added to, or combined with, her other factors of impairment. Absent the doctor's opinion addressing that issue, the record does not contain substantial evidence regarding the level of permanent disability caused by applicant's injury. Also, Dr. Navab's opinion that it may be appropriate to add her sleep impairment is not substantial evidence on that issue.

Orthopedic QME Dr. Hay did not provide an opinion on adding or combining disability factors.

Favours Defendant prevailed

Lack of this opinion meant no substantial evidence on permanent disability level, requiring remand for further development.

From the decision · page 6Here, psychiatric QME Dr. Nehorayan stated that applicant's psychiatric disability should be added to her orthopedic disability. (App. Exh. 18, p. 7; App. Exh. 20, p. 36.) Also, neurology/ sleep medicine QME Dr. Navab stated, "... [I]t may be more appropriate to add her sleep impairment, pursuant to the Kite case, as this could have a synergistic effect." (App. Exh. 19, p. 2.) However, orthopedic QME Dr. Hay did not address and/or provide an opinion as to whether applicant's orthopedic impairment should be added to, or combined with, her other factors of impairment. Absent the doctor's opinion addressing that issue, the record does not contain substantial evidence regarding the level of permanent disability caused by applicant's injury. Also, Dr. Navab's opinion that it may be appropriate to add her sleep impairment is not substantial evidence on that issue.

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.

QMERelied upon · psychiatry

Applicant's psychiatric disability should be added to her orthopedic disability; psychiatric condition caused by traumatic and violent event, not orthopedic injury.

Supported adding psychiatric impairment to orthopedic impairment; explained PTSD diagnosis and traumatic event cause.

From the decision · page 6Here, psychiatric QME Dr. Nehorayan stated that applicant's psychiatric disability should be added to her orthopedic disability. (App. Exh. 18, p. 7; App. Exh. 20, p. 36.) Also, neurology/ sleep medicine QME Dr. Navab stated, "... [I]t may be more appropriate to add her sleep impairment, pursuant to the Kite case, as this could have a synergistic effect." (App. Exh. 19, p. 2.) However, orthopedic QME Dr. Hay did not address and/or provide an opinion as to whether applicant's orthopedic impairment should be added to, or combined with, her other factors of impairment. Absent the doctor's opinion addressing that issue, the record does not contain substantial evidence regarding the level of permanent disability caused by applicant's injury. Also, Dr. Navab's opinion that it may be appropriate to add her sleep impairment is not substantial evidence on that issue.

QMEPartially credited · neurology/sleep medicine

Sleep impairment may be added to other impairments due to synergistic effect; difficult to separate sleep disorder cause between PTSD and orthopedic injuries.

Suggested adding sleep impairment pursuant to Kite case due to synergistic effect.

From the decision · page 6Here, psychiatric QME Dr. Nehorayan stated that applicant's psychiatric disability should be added to her orthopedic disability. (App. Exh. 18, p. 7; App. Exh. 20, p. 36.) Also, neurology/ sleep medicine QME Dr. Navab stated, "... [I]t may be more appropriate to add her sleep impairment, pursuant to the Kite case, as this could have a synergistic effect." (App. Exh. 19, p. 2.) However, orthopedic QME Dr. Hay did not address and/or provide an opinion as to whether applicant's orthopedic impairment should be added to, or combined with, her other factors of impairment. Absent the doctor's opinion addressing that issue, the record does not contain substantial evidence regarding the level of permanent disability caused by applicant's injury. Also, Dr. Navab's opinion that it may be appropriate to add her sleep impairment is not substantial evidence on that issue.

QMENot substantial evidence · orthopedics

Did not provide opinion on whether orthopedic impairment should be added or combined with other impairments.

Lack of opinion on adding or combining disability factors left record without substantial evidence on permanent disability level.

From the decision · page 6Here, psychiatric QME Dr. Nehorayan stated that applicant's psychiatric disability should be added to her orthopedic disability. (App. Exh. 18, p. 7; App. Exh. 20, p. 36.) Also, neurology/ sleep medicine QME Dr. Navab stated, "... [I]t may be more appropriate to add her sleep impairment, pursuant to the Kite case, as this could have a synergistic effect." (App. Exh. 19, p. 2.) However, orthopedic QME Dr. Hay did not address and/or provide an opinion as to whether applicant's orthopedic impairment should be added to, or combined with, her other factors of impairment. Absent the doctor's opinion addressing that issue, the record does not contain substantial evidence regarding the level of permanent disability caused by applicant's injury. Also, Dr. Navab's opinion that it may be appropriate to add her sleep impairment is not substantial evidence on that issue.

What proof carried it

The evidence the panel weighed, by kind.

Medical recordsfavours Applicant prevailed

Psychiatric QME Dr. Nehorayan's opinion that psychiatric impairment should be added to orthopedic impairment.

From the decision · page 6Here, psychiatric QME Dr. Nehorayan stated that applicant's psychiatric disability should be added to her orthopedic disability. (App. Exh. 18, p. 7; App. Exh. 20, p. 36.) Also, neurology/ sleep medicine QME Dr. Navab stated, "... [I]t may be more appropriate to add her sleep impairment, pursuant to the Kite case, as this could have a synergistic effect." (App. Exh. 19, p. 2.) However, orthopedic QME Dr. Hay did not address and/or provide an opinion as to whether applicant's orthopedic impairment should be added to, or combined with, her other factors of impairment. Absent the doctor's opinion addressing that issue, the record does not contain substantial evidence regarding the level of permanent disability caused by applicant's injury. Also, Dr. Navab's opinion that it may be appropriate to add her sleep impairment is not substantial evidence on that issue.

Medical recordsfavours Applicant prevailed

Neurology/Sleep Medicine QME Dr. Navab's opinion that sleep impairment may be added due to synergistic effect.

From the decision · page 6Here, psychiatric QME Dr. Nehorayan stated that applicant's psychiatric disability should be added to her orthopedic disability. (App. Exh. 18, p. 7; App. Exh. 20, p. 36.) Also, neurology/ sleep medicine QME Dr. Navab stated, "... [I]t may be more appropriate to add her sleep impairment, pursuant to the Kite case, as this could have a synergistic effect." (App. Exh. 19, p. 2.) However, orthopedic QME Dr. Hay did not address and/or provide an opinion as to whether applicant's orthopedic impairment should be added to, or combined with, her other factors of impairment. Absent the doctor's opinion addressing that issue, the record does not contain substantial evidence regarding the level of permanent disability caused by applicant's injury. Also, Dr. Navab's opinion that it may be appropriate to add her sleep impairment is not substantial evidence on that issue.

ADJ9640229 · April 26, 2024

What the panel ordered

What was disputed, and how it came out

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The facts that decided it

What the panel did with the medical opinions

The rules the panel named

What proof carried it

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