ADJ11220615 — California WCAB decision

What the panel ordered

The Board affirmed the Joint Findings and Award of permanent and total disability without apportionment, but amended the award to defer the permanent disability commencement date and associated benefits.

Defendant sought reconsideration of the December 27, 2022 Joint Findings and Award regarding permanent and total disability without apportionment; the WCJ recommended denial of the petition; the Board granted reconsideration solely to defer the issue of permanent disability start date and associated benefits.

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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 ratingApplicant prevailedskin · psyche · knees · low back · colon · hernia · hearing loss · anal leakage · anemia

The Board found the vocational expert's report credible and supported by medical evidence, concluding the applicant is permanently and totally disabled without apportionment, rejecting the defendant's apportionment argument due to lack of substantial evidence.

From the decision · page 1Defendant seeks reconsideration of the December 27, 2022 Joint Findings and Award (F&A), wherein the workers' compensation administrative law judge (WCJ) determined applicant had sustained permanent and total disability, without apportionment.

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.

vocational_expertRelied upon

Concluded applicant is not feasible for vocational retraining due to medical restrictions and testified symptoms, supporting permanent and total disability finding.

Vocational expert's report was found credible and consistent with medical evidence and applicant's testimony, supporting total disability without apportionment.

AMERejected · internal medicine

Diagnosed ulcerative colitis likely industrially aggravated; assessed 45% impairment for colonic disease and 10% for partial fecal incontinence; apportioned 20% to non-industrial rheumatoid arthritis but this apportionment was rejected for lack of substantial evidence.

Apportionment to non-industrial rheumatoid arthritis was not supported by substantial evidence as it did not explain how it caused disability at evaluation time.

From the decision · page 2John Green, M.D. served as the IME in internal medicine. Dr. Green's initial report of April 17, 2018 noted applicant's history of ulcerative colitis, beginning in approximately 2015. (Ex. N, report of Jonathan Green, M.D., dated April 17, 2018, p. 6.) Dr. Green opined that the ulcerative colitis was likely industrially aggravated, but requested additional medical records. (Id. at p. 7.) Following receipt of additional records, Dr. Green confirmed the diagnosis of ulcerative colitis that "required major surgery to remove the colon with the patient then having...multiple complications, surgeries, and dilations." (Ex. M, report of Jonathan Green, M.D., dated December 2, 2018, at pp. 4-5.) Noting that the surgical removal of the colon had resulted in "moderate to severe exacerbations with medications and special dieting as well as constitutional manifestations," Dr. Green assessed 45% impairment as a result of applicant's colonic disease, and 10% impairment as a result of partial fecal incontinence. (Ibid.) Dr. Green's described apportionment as follows:

The rules the panel named

Authorities as the decision cited them, with how this panel applied each one.

Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604

Apportionment requires substantial medical evidence explaining how nonindustrial conditions cause permanent disability at evaluation time.

Applied to reject apportionment based on rheumatoid arthritis due to lack of substantial evidence explaining causation and disability.

From the decision · page 10Defendant correctly observes, however, that the pre-existing conditions need not be labor- disabling to appropriately form the basis of apportionment. (Petition, at 12:5; Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604 [2005 Cal. Wrk. Comp. LEXIS 71] (Appeals. Bd. en banc) [factors of apportionment may include pathology, asymptomatic prior conditions, and retroactive prophylactic work preclusions, provided there is substantial medical evidence establishing that these other factors have caused permanent disability].)

Labor Code section 4660.1; Brodie v. Workers' Comp. Appeals Bd. (2007) 40 Cal.4th 1313; Fitzpatrick (2018) 27 Cal.App.5th 607; Almaraz/Guzman (2009) 74 Cal.Comp.Cases 1084; Milpitas Unified School Dist. v. Workers' Comp. Appeals Bd. (2010) 187 Cal.App.4th 808

Permanent disability is determined by whole person impairment under AMA Guides and PDRS, considering medical record and effect on future earning capacity.

Applied to assess permanent disability and rebuttal of scheduled rating.

Ogilvie v. Workers' Comp. Appeals Bd. (2011) 197 Cal.App.4th 1262; LeBoeuf v. Workers' Comp. Appeals Bd. (1983) 34 Cal.3d 234

Scheduled rating can be rebutted by showing greater diminished future earning capacity or inability to benefit from vocational rehabilitation.

Applied to determine that applicant's inability to benefit from vocational rehabilitation rebutted scheduled rating.

From the decision · page 5Milpitas 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].) The scheduled rating is not absolute. (Fitzpatrick, supra, 27 Cal.App.5th 607, 619-620.) A rating obtained pursuant to the PDRS may be rebutted by showing applicant's diminished future earning capacity is greater than the factor supplied by the PDRS. (Ogilvie v. Workers' Comp. Appeals Bd. (2011) 197 Cal.App.4th 1262 [76 Cal.Comp.Cases 624] (Ogilvie); Contra Costa County v. Workers' Comp. Appeals Bd. (Dahl) (2015) 240 Cal.App.4th 746 [80 Cal.Comp.Cases 119].)

ADJ11220615 · March 20, 2023

What the panel ordered

What was disputed, and how it came out

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The facts that decided it

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