ADJ13332511 · April 14, 2025

Applicant is permanently totally disabled due to medical functional limitations from the industrial injury, including blindness in one eye, loss of depth perception, and need for breaks at will. Vocational and medical expert opinions supporting this were found substantial and persuasive. No apportionment was found.

From the decision · page 4Defendants seek reconsideration of my January 6, 2025 Findings of Fact and Award (hereinafter "the F&A") wherein I found applicant sustained permanent total disability as a result of his industrial injury. In doing so, I followed the opinions of applicant's secondary treating physician and applicant's vocational expert. I rejected the opinions of the Qualified Medical Evaluator (QME) and defendants' vocational expert. On reconsideration, defendants contend that I acted in excess of my powers by relying on reports that do not constitute substantial evidence and that I applied the incorrect legal standard. The petition is timely and verified. Applicant did not file an answer.

Applicant is effectively blind in his left eye with complete loss of depth perception and must take breaks at will due to fatigue and slowness.

Favours Applicant prevailed

These medical functional limitations directly support the finding of permanent total disability.

From the decision · page 38I agree with the analysis in Soormi. The permanent total disability in this case derives from medical limitation, without apportionment. Applicant's lack of language skills and limited education are not disabilities. His total disability is based on medical functional limitations from his work injury. He is effectively blind in one eye. He has no depth perception. He is slow in performing tasks and must take breaks at will. These are the factors and reasons that he is now totally disabled Applicant, an unskilled worker, had a labor market available to him pre-injury and now has none. Following Soormi, I rejected Emily Tincher's opinion. There is no vocational apportionment.

Vocational expert Steve Ramirez's opinions based on Dr. Neger's functional limitations were found substantial evidence supporting permanent total disability.

Favours Applicant prevailed

The vocational expert's opinions confirmed the applicant's inability to return to competitive employment.

Found applicant's condition permanent and stationary with 20% WPI for loss of visual acuity and depth perception loss in left eye. Provided functional limitations including need for breaks and slow work pace.

His opinions on functional limitations formed the basis for vocational expert opinions and were found substantial evidence.

From the decision · page 20Applicant exhibit 5 is a July 31, 2023 Comprehensive Medical Legal Evaluation report prepared by Robert Neger, M.D. Dr. Neger evaluated applicant at the request and designation of his primary treating physician, Michael Newman, D.C. Dr. Neger interviewed applicant, examined him, reviewed medical records and prepared this report regarding applicant's visual disability. Dr. Neger found that the November 14, 2029 work injury caused the eye disability. He felt that there was an initial treatment delay that led to an infection and increased disability. Dr. Neger found applicant's condition permanent and stationary. He provided a 20% WPI rating, under Chapter 12 of the AMA Guides, for loss of visual acuity in the left eye considering the loss of vision and loss of visual field. Dr. Neger considered an increased impairment for loss of stereopsis (depth perception). He stated:

Diagnosed severe left eye injury with multiple complications and work restrictions including breaks and lifting limits. Disagreed with 3% pain add-on by Dr. Neger.

Her work restrictions and medical findings were considered but her pain add-on was disagreed with. Her report was reviewed in the decision.

From the decision · page 17Joint exhibit 1 is a December 15, 2020 Panel QME report from Irina Ganelis, M.D. (Ophthalmology). This 78 page report is Dr. Ganelis initial evaluation report. She met with applicant, took a history, performed an examination, and reviewed extensive medical records. Dr. Ganelis' diagnoses for the left eye, including: ruptured globe, status post corneal laceration repair, corneal scar and opacity, traumatic cataract, tractional retinal detachment, visual loss, pupillary abnormality, visual discomfort, generalized contraction of visual field, and glaucoma secondary to eye trauma. In her discussion, commencing on page 50, Dr. Ganelis stated that the applicant sustained a specific injury when a metal staple flew into his left eye. He developed a ruptured globe with corneal laceration with severe vision loss necessitating a very complicated medical and surgical treatment course.

Diagnosed PTSD with 8% WPI, attributed disability partly to non-industrial causes. Provided GAF score but no work restrictions.

His report contained no work restrictions and was not the basis for vocational opinions.

From the decision · page 19Joint exhibit 4 is a Robert Perez, Ph.D's September 26, 2022 Psychological Panel QME Evaluation report. Dr. Perez evaluated applicant in person on August 20, 2022 and via video on September 26, 2022. Dr. Perez took a history and reviewed medical records. Dr. Perez diagnosed Post-Traumatic Stress Disorder, providing a GAF score of 65 or 8% WPI. Dr. Perez attributed the disability to applicant's November 14, 2019 injury, directly; not as a compensable consequence. He apportioned one-third of the disability to the circumstances of applicant and his wife's immigration to the United States because of religious persecution.

Applicant's total disability is based on medical functional limitations without apportionment; lack of language skills and education are not disabilities.

Labor Code section 4650

Labor Code section 4650 regarding commencement of permanent total disability benefits.

Permanent total disability benefits commence upon last payment of temporary disability.

From the decision · page 39(2014) 79 Cal. Comp. Cases 550. Here, defendants last paid temporary disability benefits on April 19, 2022. Permanent total disability benefits commence the next day, April 20, 2022.

Applicant's testimony and vocational expert Steve Ramirez's reports were found thorough and persuasive, supporting permanent total disability.

From the decision · page 5disability. His testimony is summarized at pages 14 through 17 of the Opinion. I followed Dr. Neger's opinions regarding applicant's disability and functional limitations at work, including complete loss of depth perception, fatigue and slowness and the need to take breaks at will. I followed applicant's vocational expert Steve Ramirez opinions regarding applicant's amenability to vocational rehabilitation and disability. In the Opinion at pages 17 through 24, I stated:

Medical reports from Dr. Neger and Dr. Ganelis provided substantial evidence of functional limitations and permanent disability.

From the decision · page 13Dr. Neger's reports are substantial evidence. Dr. Neger interviewed and examined applicant, reviewed all the records and issued reports addressing all the issues surrounding permanent disability. His conclusions are well reasoned. He addressed disability under the AMA Guides. He provided a thorough explanation of the strict rating, whether or not it was accurate and why an alternate rating was more accurate.