ADJ9823240 · August 18, 2025

From the decision · page 7(3) If the earnings are at an irregular rate, such as piecework, or on a commission basis, or are specified to be by week, month, or other period, then the average weekly earnings mentioned in subdivision (a) shall be taken as the actual weekly earnings averaged for this period of time, not exceeding one year, as may conveniently be taken to determine an average weekly rate of pay. (4) Where the employment is for less than 30 hours per week, or where for any reason the foregoing methods of arriving at the average weekly earnings cannot reasonably and fairly be applied, the average weekly earnings shall be taken at 100 percent of the sum which reasonably represents the average weekly earning capacity of the injured employee at the time of his or her injury, due consideration being given to his or her actual earnings from all sources and employments. Defendant's proffered Defendant's Exhibit B, Social Security Earnings Records, but provided no corresponding testimony or evidence to show how much of the prior year applicant had actually worked.

The WCJ and Appeals Board gave great weight to AME Dr. Campbell's opinions, finding them substantial medical evidence. Dr. Campbell's use of AMA Guides and reasoning on impairment ratings, including synergy and addition rather than combined values chart, was well reasoned and consistent with precedent.

From the decision · page 3In this case, Dr. Campbell served as the Agreed Medical Evaluator (AME), and his opinions provided the sole medical evidence submitted by the parties. We presume that the AME was chosen by the parties because of his expertise and neutrality, and that his opinions should ordinarily be followed unless there is good reason to find those opinions unpersuasive. (Power v. Workers' Comp. Appeals Bd. (1986) 179 Cal.App.3d 775, 782 [51 Cal.Comp.Cases 114 ].)

Service of the Report and Recommendation on June 18, 2025, constituted notice of transmission to the Appeals Board, starting the 60-day period for acting on the petition

Favours Defendant prevailed

This established the timeliness of the Appeals Board's action on the Petition for Reconsideration, supporting denial of the petition.

From the decision · page 2Here, according to the proof of service for the Report and Recommendation by the WCJ, the Report was served on June 18, 2025, and the case was transmitted to the Appeals Board on June 18, 2025. Service of the Report and transmission of the case to the Appeals Board occurred on the same day. Thus, we conclude that the parties were provided with the notice of transmission required by Labor Code section 5909(b)(1) because service of the Report in compliance with Labor Code section 5909(b)(2) provided them with actual notice as to the commencement of the 60-day period on June 18, 2025.

Applicant's testimony that she anticipated becoming a permanent employee if performing well at her job

Favours Applicant prevailed

Supported the WCJ's calculation of average weekly wage, favoring the applicant's wage claim.

From the decision · page 7(3) If the earnings are at an irregular rate, such as piecework, or on a commission basis, or are specified to be by week, month, or other period, then the average weekly earnings mentioned in subdivision (a) shall be taken as the actual weekly earnings averaged for this period of time, not exceeding one year, as may conveniently be taken to determine an average weekly rate of pay. (4) Where the employment is for less than 30 hours per week, or where for any reason the foregoing methods of arriving at the average weekly earnings cannot reasonably and fairly be applied, the average weekly earnings shall be taken at 100 percent of the sum which reasonably represents the average weekly earning capacity of the injured employee at the time of his or her injury, due consideration being given to his or her actual earnings from all sources and employments. Defendant's proffered Defendant's Exhibit B, Social Security Earnings Records, but provided no corresponding testimony or evidence to show how much of the prior year applicant had actually worked.

AME Dr. Campbell's detailed explanation and application of AMA Guides, including synergy and addition of impairment ratings, was well reasoned and consistent with legal precedent

Favours Applicant prevailed

Supported the finding that Dr. Campbell's opinions constitute substantial medical evidence, favoring the applicant's permanent disability rating.

From the decision · page 3In this case, Dr. Campbell served as the Agreed Medical Evaluator (AME), and his opinions provided the sole medical evidence submitted by the parties. We presume that the AME was chosen by the parties because of his expertise and neutrality, and that his opinions should ordinarily be followed unless there is good reason to find those opinions unpersuasive. (Power v. Workers' Comp. Appeals Bd. (1986) 179 Cal.App.3d 775, 782 [51 Cal.Comp.Cases 114 ].)

Dr. Campbell provided the sole medical evidence and his opinions were given great weight. He used AMA Guides to evaluate permanent impairment, applied clinical judgment to group bilateral upper extremity impairments, and supported addition of impairment values due to synergy rather than using the combined values chart.

The WCJ and Appeals Board found Dr. Campbell's reasoning well supported and consistent with legal standards including Almaraz-Guzman III and Kite.

From the decision · page 3In this case, Dr. Campbell served as the Agreed Medical Evaluator (AME), and his opinions provided the sole medical evidence submitted by the parties. We presume that the AME was chosen by the parties because of his expertise and neutrality, and that his opinions should ordinarily be followed unless there is good reason to find those opinions unpersuasive. (Power v. Workers' Comp. Appeals Bd. (1986) 179 Cal.App.3d 775, 782 [51 Cal.Comp.Cases 114 ].)

Almaraz-Guzman III (2010) 187 Cal.App.4th 808

Scheduled rating is prima facie evidence of permanent disability but rebuttable by showing a more accurate impairment assessment within AMA Guides

The AME used a table within the AMA Guides and clinical judgment to provide an accurate impairment rating, which was accepted as substantial evidence.

From the decision · page 3We agree with the WCJ that the opinions expressed by the AME constitute substantial medical evidence, and that the AME permissibly used Milpitas Unified Sch. Dist. v. Workers' Comp. Appeals Bd. (Guzman) (2010) 187 Cal. App. 4th 808 [75 Cal.Comp.Cases 837] (referred to in the Report as "Almaraz-Guzman III"), because the AME chose a table from within the four corners of the AMA Guides to the Evaluation of Permanent Impairment, Fifth Edition, and applied it in a manner that most accurately reflects the impairment caused by a medical condition. We further note that notwithstanding the fact that the AME refers to the writ denied Kite case, cited supra, and not to the more recent en banc case of Vigil v.

Almaraz-Guzman III (2010) 187 Cal.App.4th 808

Physicians may depart from strict application of AMA Guides if explained and reasoned to achieve accuracy

Dr. Campbell departed from strict application by grouping bilateral upper extremity impairments and explained his reasoning, which was accepted.

From the decision · page 8The Guides itself recognizes that it cannot anticipate and describe every impairment that may be experienced by injured employees. The authors repeatedly caution that notwithstanding its "framework for evaluating new or complex conditions," the "range, evolution, and discovery of new medical conditions" preclude ratings for every possible impairment. (Guides § 1. 5, p. 11.) The Guides ratings do provide a standardized basis for reporting the degree of impairment, but those are "consensus-derived estimates," and some of the given percentages are supported by only limited research data. (Guides, pp. 4, 5.) The Guides also cannot rate syndromes that are "poorly understood and are manifested only by subjective symptoms." (Ibid.) To accommodate those complex or extraordinary cases, the Guides calls for the physician's exercise of clinical judgment to assess the impairment most accurately. (Id. at p. 823.) The AMA Guides is thus not to be literally and mechanically applied.

Athens Administrators v. Workers' Comp. Appeals Bd. (Kite) (2013) 78 Cal.Comp.Cases 213

Addition of impairment ratings is appropriate when synergy and lack of overlap exist, as in Athens Administrators v. Workers' Comp. Appeals Bd. (Kite) (2013) 78 Cal.Comp.Cases 213

Dr. Campbell applied Kite reasoning to add impairment values due to bilateral injuries and synergy, which was accepted.

From the decision · page 9Additionally, Defendant's object to the utilization of addition of the PD rather than use of the CVC for combining. In Athens Administrators v. Workers' Comp. Appeals Bd. (Kite) (2013) 78 Cal.Comp.Cases 213 (writ den.) [2013 Cal. Wrk. Comp. LEXIS 34], the WCJ added separate impairment ratings for the right and left hips rather than combining the ratings using the combined values chart (CVC). This method was based on the qualified medical evaluator's finding that the "synergistic effect of one hip injury upon another opposite hip injury" made addition of the impairment ratings the most accurate reflection of the employee's permanent impairment under the AMA Guides. (Id. at p. 216.)

Applicant's testimony that she anticipated becoming a permanent employee if performing well at her job

From the decision · page 7(3) If the earnings are at an irregular rate, such as piecework, or on a commission basis, or are specified to be by week, month, or other period, then the average weekly earnings mentioned in subdivision (a) shall be taken as the actual weekly earnings averaged for this period of time, not exceeding one year, as may conveniently be taken to determine an average weekly rate of pay. (4) Where the employment is for less than 30 hours per week, or where for any reason the foregoing methods of arriving at the average weekly earnings cannot reasonably and fairly be applied, the average weekly earnings shall be taken at 100 percent of the sum which reasonably represents the average weekly earning capacity of the injured employee at the time of his or her injury, due consideration being given to his or her actual earnings from all sources and employments. Defendant's proffered Defendant's Exhibit B, Social Security Earnings Records, but provided no corresponding testimony or evidence to show how much of the prior year applicant had actually worked.