ADJ10792307 · May 16, 2022

The WCJ's finding that the psychiatric injury is compensable as a direct injury and/or a compensable consequence was upheld, and the exceptions to section 4660.1(c) for violent acts and catastrophic injuries applied, supporting the 70% permanent disability rating including psychiatric impairment.

From the decision · page 1UEBTF seeks reconsideration of the December 23, 2021 Findings of Fact and Award, wherein the workers' compensation administrative law judge (WCJ) found, in pertinent part, that applicant is 70% permanently disabled due to his industrial injury.

Applicant sustained injury to his right hand resulting in partial amputation of two fingers, constituting a violent act under Labor Code section 4660.1(c)(2)(A).

Favours Applicant prevailed

This fact supported the exception to the prohibition on increasing permanent disability for psychiatric disorder due to a violent act.

From the decision · page 7Here, applicant's right ring and right middle fingers were partially amputated when he fell off a ladder while holding a running hedge trimmer that he pushed away from his face and torso. Similar to the facts in Lopez, we conclude that the mechanism of applicant's injury here can be characterized as resulting from extreme or intense force, constituting a "violent act" under the exception found in section 4660.1(c)(2)(A).

Applicant's hand injury was catastrophic under Labor Code section 4660.1(c)(2)(B) due to severity, permanent disability, and impact on activities of daily living.

Favours Applicant prevailed

This fact supported the exception to the prohibition on increasing permanent disability for psychiatric disorder due to catastrophic injury.

From the decision · page 8Here, applicant sustained an injury to his dominant right hand, severing three of his fingers, and requiring the partial amputation of his right ring finger and his right middle finger. (Applicant Exhibit 4, Dr. Kipperman's report dated January 6, 2020, p. 2.) He continues to experience constant dull pain and is sensitive to touch where the amputations occurred. (Id. at p. 3.) He has difficulty reaching, gripping, grasping, holding and manipulating with his hands. (Id. at p. 4.) He has difficulty with repetitive motions and forceful activating with his arms and hands. (Ibid.) He has difficulties with ADLs in using the bathroom, brushing his teeth, bathing, washing, trimming nails, dressing, combing his hair, eating, drinking, writing, texting, keyboarding, cooking, cleaning, etc. (Ibid.) He no longer goes fishing or plays soccer because he needs to protect his hand. (Id. at pp. 5-6.) He is no longer able to work and has not worked since the accident. (Id. at

UEBTF failed to raise the issue of Labor Code section 4660.1(c) at trial, making it an improper issue for reconsideration.

Favours Defendant prevailed

This procedural fact led to denial of reconsideration on this issue.

From the decision · page 5UEBTF contends that section 4660.1(c) prohibits increasing applicant's permanent disability because of a psychiatric disorder that is a compensable consequence of a physical injury. (§ 4660.1, subd. (c).) However, as the WCJ points out, this was not an issue raised at trial or in any of UEBTF's pre-trial pleadings. (Report, p. 2; UEBTS Trial Brief dated November 5, 2021.) Due process requires the parties to have notice and a meaningful opportunity to be heard on the issues in disputes. (See Gilbert v. City of Sunnyvale (2005) 130 Cal.App.4th 1264, 1279 ["The essence of procedural due process is notice and an opportunity to respond"]; Rucker v. Workers' Comp. Appeals Bd. (2000) 82 Cal.App.4th 151, 157-158 [65 Cal.Comp.Cases 805]; Gangwish v. Workers' Comp. Appeals Bd. (2001) 89 Cal.App.4th 1284, 1295 [66 Cal. Comp. Cases 584].) A fair hearing includes, but is not limited to, the opportunity to call and cross-examine witnesses; introduce and inspect exhibits; and to offer evidence in rebuttal. (See Gangwish, supra, at p. 1295; Rucker, supra, at pp. 157-158 citing Kaiser Co. v. I.A.C. (Baskin) (1952) 109 Cal.App.2d 54, 58 [17 Cal.Comp.Cases 21]; Katzin v. Workers' Comp. Appeals Bd. (1992) 5 Cal.App.4th 703, 710 [57 Cal.Comp.Cases 230].) Therefore, the issue of section 4660.1(c), is not an appropriate issue for reconsideration here.

Provided psychiatric whole person impairment rating of 29% WPI resulting in 41% psychiatric permanent disability, supporting a combined 70% permanent disability rating with orthopedic impairment.

His report was found to be more substantial medical evidence than the PQME report and was relied upon for the permanent disability rating.

From the decision · page 4Right hand (grip/ROM/peripheral nerve) = 27% WPI. 16.05.04.00-27-[1.4]38-491F-38 = 47% permanent disability (Minutes of Hearing/Summary of Evidence (MOH/SOE) dated December 16, 2021, p. 2:30-36.) The parties disagree as to the rating of applicant's psychiatric injury. Applicant contends that he suffered a 51 GAF score, which results in a 29% WPI, based on the medical opinion of Allan L. Kipperman, M.D., his primary treating physician. (Id. at p. 2:38-43.) This results in a rating string of 14.01.00.00-29-[1.4]41-491D-35 = 44% permanent disability. Combining the 47% orthopedic permanently disability with the 44% psychiatric permanent disability results in 70% permanent disability (47 C 44 = 70%). (Ibid.) UEBTF contends that applicant did not suffer any psychiatric disability based on the PQME report of Gregory Firman, M.D. (Id. at pp. 2:45-3:5.) As such, UEBTF contends applicant is 47% permanently disabled based on his orthopedic impairment. The issues at the December 16, 2021 were as follows: 1. Which report constitutes the more substantial medical evidence and should be relied upon for determination of permanent disability for the psychiatric injury in this case: a. The PQME report of Dr. Firman dated May 2, 2019 (0% psychiatric WPI = 0%

Provided psychiatric whole person impairment rating of 0%, concluding no psychiatric permanent disability.

His report was rejected as less substantial medical evidence compared to Dr. Kipperman.

From the decision · page 4Right hand (grip/ROM/peripheral nerve) = 27% WPI. 16.05.04.00-27-[1.4]38-491F-38 = 47% permanent disability (Minutes of Hearing/Summary of Evidence (MOH/SOE) dated December 16, 2021, p. 2:30-36.) The parties disagree as to the rating of applicant's psychiatric injury. Applicant contends that he suffered a 51 GAF score, which results in a 29% WPI, based on the medical opinion of Allan L. Kipperman, M.D., his primary treating physician. (Id. at p. 2:38-43.) This results in a rating string of 14.01.00.00-29-[1.4]41-491D-35 = 44% permanent disability. Combining the 47% orthopedic permanently disability with the 44% psychiatric permanent disability results in 70% permanent disability (47 C 44 = 70%). (Ibid.) UEBTF contends that applicant did not suffer any psychiatric disability based on the PQME report of Gregory Firman, M.D. (Id. at pp. 2:45-3:5.) As such, UEBTF contends applicant is 47% permanently disabled based on his orthopedic impairment. The issues at the December 16, 2021 were as follows: 1. Which report constitutes the more substantial medical evidence and should be relied upon for determination of permanent disability for the psychiatric injury in this case: a. The PQME report of Dr. Firman dated May 2, 2019 (0% psychiatric WPI = 0%

Provided whole person impairment rating for applicant's right hand injury.

From the decision · page 3PQME Dr. Adam Stoller issues final report providing whole person impairment for Applicant's right hand. (See Defendant's Exhibit C).

California Labor Code

Labor Code section 4660.1(c)

The section was examined to determine if it prohibited increasing permanent disability due to psychiatric disorder as a compensable consequence of physical injury, but exceptions applied.

From the decision · page 5UEBTF contends that section 4660.1(c) prohibits increasing applicant's permanent disability because of a psychiatric disorder that is a compensable consequence of a physical injury. (§ 4660.1, subd. (c).) However, as the WCJ points out, this was not an issue raised at trial or in any of UEBTF's pre-trial pleadings. (Report, p. 2; UEBTS Trial Brief dated November 5, 2021.) Due process requires the parties to have notice and a meaningful opportunity to be heard on the issues in disputes. (See Gilbert v. City of Sunnyvale (2005) 130 Cal.App.4th 1264, 1279 ["The essence of procedural due process is notice and an opportunity to respond"]; Rucker v. Workers' Comp. Appeals Bd. (2000) 82 Cal.App.4th 151, 157-158 [65 Cal.Comp.Cases 805]; Gangwish v. Workers' Comp. Appeals Bd. (2001) 89 Cal.App.4th 1284, 1295 [66 Cal. Comp. Cases 584].) A fair hearing includes, but is not limited to, the opportunity to call and cross-examine witnesses; introduce and inspect exhibits; and to offer evidence in rebuttal. (See Gangwish, supra, at p. 1295; Rucker, supra, at pp. 157-158 citing Kaiser Co. v. I.A.C. (Baskin) (1952) 109 Cal.App.2d 54, 58 [17 Cal.Comp.Cases 21]; Katzin v. Workers' Comp. Appeals Bd. (1992) 5 Cal.App.4th 703, 710 [57 Cal.Comp.Cases 230].) Therefore, the issue of section 4660.1(c), is not an appropriate issue for reconsideration here.

The medical report of Dr. Kipperman was found to be more substantial evidence than the PQME report of Dr. Firman regarding psychiatric injury.

From the decision · page 5The trial court found that the medical report of Dr. Kipperman was more substantial evidence and awarded applicant 70% permanent disability benefits.