ADJ12953785 · August 22, 2024

The WCAB found that the applicant failed to rebut the PDRS for permanent total disability based on the AME's credible opinion and vocational evidence; however, the defendant failed to meet its burden of proof on apportionment because the AME's opinion was based on generalizations and not specific facts of the case. The applicant's permanent disability was found to be 35%.

From the decision · page 1The WCJ found, in pertinent part, that applicant sustained a cumulative industrial injury to her bilateral wrists and hands, which resulted in 26% permanent partial disability after apportionment.

The AME's apportionment opinion was based on general statistics and assumptions, not specific facts of the case.

Favours Applicant prevailed

This led to the finding that defendant did not meet its burden of proof on apportionment.

From the decision · page 7Next, applicant argues that the apportionment opinion of the AME does not constitute substantial medical evidence. We agree. The AME's apportionment opinion rests upon the generalization that applicant's form of arthritis is common as people age. Even accepting this fact to be true, that does not explain how and why applicant's arthritis is, in-part, age related. The AME's apportionment opinion rests upon assumption and conclusions drawn solely from general statistics, and not on the specific facts of this case. An evaluator is free to explain generalizations of medicine as the starting point of an analysis, but it cannot also be the end point. The evaluator must detail the specific facts of the case that support why the generalized principle applies to the case at bar. The AME did not do this. Accordingly, the AME's apportionment opinion is not substantial medical evidence and defendant did not meet its burden of proof on apportionment.

The applicant's vocational expert relied on an FCE that was found inaccurate and included non-industrial factors.

Favours Defendant prevailed

This supported the finding that applicant failed to rebut the PDRS for permanent total disability.

From the decision · page 6The parties presumably choose an AME because of the AME's expertise and neutrality. (Power v. Workers' Comp. Appeals Bd. (1986) 179 Cal.App.3d 775, 782 [51 Cal.Comp.Cases 114].) The Appeals Board will follow the opinions of the AME unless good cause exists to find his opinion unpersuasive. (Ibid.) Here, the AME found that applicant's FCE evaluation was not accurate and included consideration of non-industrial disability. We agree with the well-reasoned opinion of the AME. Applicant's vocational expert reporting rests upon the FCE opinion, which is not substantial medical evidence. Accordingly, applicant failed to rebut the PDRS.

Dr. Weddington found applicant permanent and stationary without surgery, assigned 9% WPI to right upper extremity and 8% WPI to left, with synergistic amplification of disabilities. He opined applicant is amenable to vocational rehabilitation and disagreed with vocational expert finding of permanent total disability.

The WCAB relied on Dr. Weddington's well-reasoned opinion that the FCE was inaccurate and included non-industrial factors, supporting the finding that applicant failed to rebut the PDRS and that defendant failed on apportionment.

From the decision · page 2FACTS Applicant worked as a registered nurse when she sustained an admitted industrial injury through the cumulative period ending on March 28, 2019, to her bilateral wrists and hands. (Minutes of Hearing and Summary of Evidence, May 8, 2024, p. 2, lines 5-10.) Applicant was examined by agreed medical evaluator (AME) Joel Weddington, M.D., who authored six reports in evidence and was deposed twice. (Joint Exhibits 1 through 8.) Dr. Weddington diagnosed applicant with CMC joint degenerative arthritis in her bilateral upper extremities. (Joint Exhibit 8, Report of Joel Weddington, M.D., January 7, 2021, p. 14.) He initially did not find applicant permanent and stationary and recommended surgical intervention. (See generally, id.) Applicant's attempts to obtain surgery were reported as follows:

Ogilvie v. Workers' Comp. Appeals Bd., 197 Cal. App. 4th 1262; Brodie v. Workers' Comp. Appeals Bd., 40 Cal. 4th 1313

Permanent Disability Ratings Schedule (PDRS) rebuttal standard as explained in Ogilvie and Brodie cases.

Applicant failed to rebut the PDRS based on vocational evidence relying on an inaccurate FCE; defendant failed burden of proof on apportionment due to lack of specific factual support in AME opinion.

From the decision · page 5The court in Ogilvie explained that the PDRS is rebuttable.

Applicant's vocational expert relied on an FCE that was found inaccurate and included non-industrial factors.

From the decision · page 6The parties presumably choose an AME because of the AME's expertise and neutrality. (Power v. Workers' Comp. Appeals Bd. (1986) 179 Cal.App.3d 775, 782 [51 Cal.Comp.Cases 114].) The Appeals Board will follow the opinions of the AME unless good cause exists to find his opinion unpersuasive. (Ibid.) Here, the AME found that applicant's FCE evaluation was not accurate and included consideration of non-industrial disability. We agree with the well-reasoned opinion of the AME. Applicant's vocational expert reporting rests upon the FCE opinion, which is not substantial medical evidence. Accordingly, applicant failed to rebut the PDRS.