ADJ7037201 · December 6, 2024

The WCJ's finding of 100% permanent and total disability was initially supported by additive approach medical opinions, but the WCAB found the record incomplete under the en banc Vigil and Nunes decisions requiring further analysis of ADLs and valid medical apportionment. The WCAB rescinded the award and remanded for further proceedings and record development.

From the decision · page 2Pursuant to Findings and Award issued on May 22, 2013, applicant sustained injury to his psyche, cardiovascular system (in the form of hypertension), cervical-thoracic spine, lumbar spine, and in the form of sleep disorder and sexual dysfunction while employed as a police officer by defendant City of Baldwin Park from May 13, 2002 to November 20, 2009. Applicant's injuries resulted in temporary total disability from November 20, 2009 to May 13, 2011, and thereafter in permanent partial disability of 83 percent. (Findings and Award and Order Following Remand After Reconsideration, dated May 22, 2013.)

Medical-legal physicians endorsed additive approach to disability rating and found synergism among applicant's conditions.

Favours Applicant prevailed

Supported initial finding of 100% permanent and total disability by WCJ.

From the decision · page 2On February 16, 2022, the WCJ issued the F&A, finding in relevant part that applicant had sustained 100 percent permanent and total disability (PTD). The WCJ observed that the medical record included the reporting of AMEs, which the parties had presumably chosen for their expertise and neutrality. (Opinion on Decision, at p. 2.) The WCJ found the reporting of the various AMEs to be substantial evidence supporting new and further disability. (Id. at pp. 2-4.) The WCJ also observed that, "Dr. Grodan, Dr. Sones and Dr. Hatch found synergism while Dr. Grodan, Dr. Sones and Dr. Richman found that the additive approach is a more accurate rating of applicant's overall disability," and that "Dr. Hatch did not object to the additive method." (Id. at

Vocational expert reporting relied on invalid 'vocational apportionment' theory and was deemed analytically incomplete.

Favours Defendant prevailed

Undermined support for permanent and total disability finding, leading to remand for further record development.

From the decision · page 10Our decision in Nunes requires the vocational expert reporting to consider valid nonindustrial apportionment and proscribes "vocational apportionment" as inconsistent with section 4663. Here, the vocational reporting is analytically incomplete, and specifically relies on a legal theory of "vocational apportionment" that is invalid. (Nunes, supra, 88 Cal.Comp.Cases at pp. 743-744.)

Endorsed additive approach to rating applicant's overall disability and found synergism among conditions.

From the decision · page 2On February 16, 2022, the WCJ issued the F&A, finding in relevant part that applicant had sustained 100 percent permanent and total disability (PTD). The WCJ observed that the medical record included the reporting of AMEs, which the parties had presumably chosen for their expertise and neutrality. (Opinion on Decision, at p. 2.) The WCJ found the reporting of the various AMEs to be substantial evidence supporting new and further disability. (Id. at pp. 2-4.) The WCJ also observed that, "Dr. Grodan, Dr. Sones and Dr. Hatch found synergism while Dr. Grodan, Dr. Sones and Dr. Richman found that the additive approach is a more accurate rating of applicant's overall disability," and that "Dr. Hatch did not object to the additive method." (Id. at

Endorsed additive approach to rating applicant's overall disability and found synergism among conditions.

From the decision · page 2On February 16, 2022, the WCJ issued the F&A, finding in relevant part that applicant had sustained 100 percent permanent and total disability (PTD). The WCJ observed that the medical record included the reporting of AMEs, which the parties had presumably chosen for their expertise and neutrality. (Opinion on Decision, at p. 2.) The WCJ found the reporting of the various AMEs to be substantial evidence supporting new and further disability. (Id. at pp. 2-4.) The WCJ also observed that, "Dr. Grodan, Dr. Sones and Dr. Hatch found synergism while Dr. Grodan, Dr. Sones and Dr. Richman found that the additive approach is a more accurate rating of applicant's overall disability," and that "Dr. Hatch did not object to the additive method." (Id. at

Did not object to additive method and opined on synergistic effect of applicant's conditions.

From the decision · page 2On February 16, 2022, the WCJ issued the F&A, finding in relevant part that applicant had sustained 100 percent permanent and total disability (PTD). The WCJ observed that the medical record included the reporting of AMEs, which the parties had presumably chosen for their expertise and neutrality. (Opinion on Decision, at p. 2.) The WCJ found the reporting of the various AMEs to be substantial evidence supporting new and further disability. (Id. at pp. 2-4.) The WCJ also observed that, "Dr. Grodan, Dr. Sones and Dr. Hatch found synergism while Dr. Grodan, Dr. Sones and Dr. Richman found that the additive approach is a more accurate rating of applicant's overall disability," and that "Dr. Hatch did not object to the additive method." (Id. at

Found additive approach to be a more accurate rating of applicant's overall disability.

From the decision · page 2On February 16, 2022, the WCJ issued the F&A, finding in relevant part that applicant had sustained 100 percent permanent and total disability (PTD). The WCJ observed that the medical record included the reporting of AMEs, which the parties had presumably chosen for their expertise and neutrality. (Opinion on Decision, at p. 2.) The WCJ found the reporting of the various AMEs to be substantial evidence supporting new and further disability. (Id. at pp. 2-4.) The WCJ also observed that, "Dr. Grodan, Dr. Sones and Dr. Hatch found synergism while Dr. Grodan, Dr. Sones and Dr. Richman found that the additive approach is a more accurate rating of applicant's overall disability," and that "Dr. Hatch did not object to the additive method." (Id. at

Labor Code section 4660; Ogilvie v. Workers' Comp. Appeals Bd. (2011) 197 Cal.App.4th 1262

Permanent Disability Rating Schedule (PDRS) is prima facie evidence of permanent disability; combination of disabilities generally uses Combined Values Chart (CVC) but can be rebutted by reasoned medical opinion within AMA Guides.

Applied to assess combination vs. addition of disabilities.

From the decision · page 4We first address defendant's contentions that the WCJ erred in adding rather than combining applicant's disabilities herein. The Permanent Disability Rating Schedule (PDRS) is prima facie evidence of an injured employee's permanent disability. (Lab. Code, § 4660; cf. Ogilvie v. Workers' Comp. Appeals Bd. (2011) 197 Cal.App.4th 1262, 1274§ 1277 [76 Cal.Comp.Cases 624] (Ogilvie).) The PDRS provides that the ratings for multiple body parts arising out of the same injury are "generally" combined using the Combined Values Chart (CVC), which is appended to the PDRS. (2005 PDRS, at p. 1-10.) Yet, because it is part of the PDRS, the CVC is rebuttable and a reporting physician is not precluded from utilizing a method other than the CVC to determine an employee's whole person impairment so long as the physician's opinion remains within the four comers of the AMA Guides. (Lab. Code, § 4660; Milpitas Unified School Dist. v. Workers' Comp. Appeals Bd. (Guzman) (2010) 187 Cal.App.4th 808, 818§ 829 [75 Cal.Comp.Cases 837].)

Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604 (Appeals Board en banc)

Medical opinion must be framed in reasonable medical probability, not speculative, based on pertinent facts and adequate examination, with reasoning supporting conclusions.

Applied to evaluate validity of additive approach medical opinions.

From the decision · page 7We cannot emphasize enough that to constitute substantial evidence "...a medical opinion must be framed in terms of reasonable medical probability, it must not be speculative, it must be based on pertinent facts and on an adequate examination and history, and it must set forth reasoning in support of its conclusions." (Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 621 (Appeals Board en banc), (emphasis added).) The term `synergy' is not a "magic word" that immediately rebuts the use of the CVC. Instead, a physician must set forth a reasoned analysis explaining how and why synergistic ADL overlap exists. If parties are searching for a magic word to use during a doctor's deposition, that word is "Why?". Rather than focusing on whether a specific term, including the term synergy, was used, it is imperative that parties focus on an analysis that applies critical thinking based on the principles articulated in Escobedo to support a conclusion based on the facts of the case. Such an analysis must include a detailed description of the impact of ADLs and how those ADLs interact.

Nunes v. State of California, Dept. of Motor Vehicles (2023) 88 Cal.Comp.Cases 741 (Appeals Board en banc)

Vocational evidence may rebut PDRS but cannot substitute for valid medical apportionment; 'vocational apportionment' is invalid under Labor Code section 4663.

Applied to reject vocational expert's apportionment theory as invalid.

From the decision · page 9However, following our grant of reconsideration in this matter, we addressed the required analysis of apportionment in the context of vocational expert reporting in Nunes v. State of California, Dept. of Motor Vehicles (2023) 88 Cal.Comp.Cases 741 [2023 Cal. Wrk. Comp. LEXIS 30I] (Appeals Board en banc) (Nunes). Therein, we held that Labor Code2 section 4663 requires a reporting physician to make an apportionment determination and prescribes the standard for apportionment, but that the Labor Code makes no statutory provision for "vocational

Medical opinions endorsing additive approach to disability rating and synergism among conditions.

From the decision · page 2On February 16, 2022, the WCJ issued the F&A, finding in relevant part that applicant had sustained 100 percent permanent and total disability (PTD). The WCJ observed that the medical record included the reporting of AMEs, which the parties had presumably chosen for their expertise and neutrality. (Opinion on Decision, at p. 2.) The WCJ found the reporting of the various AMEs to be substantial evidence supporting new and further disability. (Id. at pp. 2-4.) The WCJ also observed that, "Dr. Grodan, Dr. Sones and Dr. Hatch found synergism while Dr. Grodan, Dr. Sones and Dr. Richman found that the additive approach is a more accurate rating of applicant's overall disability," and that "Dr. Hatch did not object to the additive method." (Id. at

Vocational expert reporting relying on invalid 'vocational apportionment' theory, deemed analytically incomplete.

From the decision · page 10Our decision in Nunes requires the vocational expert reporting to consider valid nonindustrial apportionment and proscribes "vocational apportionment" as inconsistent with section 4663. Here, the vocational reporting is analytically incomplete, and specifically relies on a legal theory of "vocational apportionment" that is invalid. (Nunes, supra, 88 Cal.Comp.Cases at pp. 743-744.)