ADJ7358979 · September 28, 2023

The psychiatric AME was unable to parcel out the respective percentages of disability attributable to the injuries, justifying a combined award; the date of injury for the award is April 22, 2009.

From the decision · page 4The WCJ's Report recommends we amend the F&A to reflect April 22, 2009 as the date of injury for the permanent disability rating. (Report, at pp. 5-6.) With respect to the addition rather than combination of the psychiatric disability, the WCJ observes that the rationale provided by the AME is well supported in the record and constitutes substantial evidence. (Id. at p. 7.) With respect to apportionment as between the various claimed injuries, the WCJ noted that the psychiatric AME was unable to parcel out the respective percentages of disability attributable to the injuries, and that applicant is entitled to an unapportioned award as a result. (Id. at pp. 8-9.) The WCJ further notes that the neurology QME identified ratable gait impairment "because of moderate to high- grade cervical stenosis, compression of the spinal cord, and progression of myelopathy in the cervical spine," and that the resulting disability is supported in the medical record. (Id. at pp. 9- 10.) The WCJ also explains that the reporting of applicant's vocational expert was more persuasive than the reporting offered by the defense, in part because defendant's expert opined to impermissible "vocational apportionment," in her analysis. (Id. at p. 11.)

Psychiatric AME Dr. Nehorayan was unable to parcel out the approximate percentages of disability attributable to each distinct industrial injury.

Favours Applicant prevailed

This inability justified a combined permanent disability award rather than separate awards.

From the decision · page 5While I am aware that the applicant has a recognition of specific injuries, as well as the continuous trauma claim, I cannot parcel one injury out from the other, based upon reasonable medical probability. There is an indication of synergistic impact from initially the continuous trauma, which appeared to be further exacerbated by the applicant's specific injuries, and to a point in which the applicant's issues of chronic pain and those associated with creating chronic stress and dysphoria could not be separated from the nature of the perceived harassment and hostilities he endured before that. As a result, there is no way, from a psychiatric standpoint, to be able to parcel out the specific injuries from the applicant's continuous trauma claim.

Favours Applicant prevailed

The vocational report substantiated the permanent disability rating and countered defendant's vocational apportionment argument.

Apportioned orthopedic permanent disability among four dates of injury; identified gait disturbance as derivative of possible cervical myelopathy but deferred myelopathy diagnosis to Dr. Shorr.

The orthopedic AME's apportionment was noted but the psychiatric AME's inability to parcel out psychiatric disability justified a combined award.

From the decision · page 4Defendant avers the WCJ failed to apply the orthopedic apportionment identified by AME Dr. Feiwell. Defendant observes that in his December 5, 2017 report, Dr. Feiwell apportioned the permanent disability as between the four pending dates of injury. (Petition at 6:8, citing Ex. 101,

Unable to parcel out psychiatric disability among the four injuries due to synergistic impact; supports combined award.

The psychiatric AME's opinion that psychiatric disability could not be parceled out was relied upon to justify the combined award.

From the decision · page 5However, the parties' psychiatric AME Dr. Nehorayan has determined that while applicant has sustained psychiatric injury, apportionment as between the various injuries is not possible. Dr. Nehorayan states:

Confirmed sleep impairment and gait disturbance related to cervical spine conditions; supported permanent disability rating.

The QME's findings on sleep and gait disturbance were accepted as substantial evidence supporting disability.

From the decision · page 7Defendant contends the WCJ erred in finding injury and disability arising out of applicant's alleged sleep disturbance. Defendant avers the reporting of AME Dr. Shorr relies on the opinions of the prior AME in psychiatry Dr. Nehamen, who diagnosed the sleep disturbance, but who was ultimately replaced by another AME in psychiatry. The reporting of Dr. Nehamen has not been lodged in evidence. (Petition, at 10:6.) However, the WCJ's Report observes that the sleep impairment identified by Dr. Shorr "coincides with the findings of AME Dr. Marc Nehorayan, who also indicates Applicant has a sleep disorder secondary to a general medical condition, orthopedic condition, and insomnia," and that the reporting of Dr. Shorr confirms applicant's ongoing symptomatology. (Report, at p. 10.) We further note that Dr. Shorr discussed the sleep rating in deposition, and confirmed that former AME Dr. Nehamen's assessment of Class I sleep disturbance was consistent with Dr. Shorr's clinical findings and assessment of applicant. (Ex. 118, Transcript of the Deposition of Robert Shorr, M.D., December 6, 2021, at p. 18:9.) Accordingly, we concur with the WCJ's findings of injury and disability regarding the alleged sleep disturbance.

Labor Code section 4663; Kopping v. Workers' Comp. Appeals Bd. (2006) 142 Cal.App.4th 1107

When the evaluating physician cannot parcel out the approximate percentages to which each distinct industrial injury causally contributed to the employee's overall permanent disability, a combined award of permanent disability may be justified.

Applied to justify combined award due to psychiatric AME's inability to apportion disability among injuries.

From the decision · page 5We also agree that there may be limited circumstances, not present here, when the evaluating physician cannot parcel out, with reasonable medical probability, the approximate percentages to which each distinct industrial injury causally contributed to the employee's overall permanent disability. In such limited circumstances, when the employer has failed to meet its burden of proof, a combined award of permanent disability may still be justified. (See § 4663, subd. (c); Kopping v. Workers' Comp. Appeals Bd., supra, 142 Cal.App.4th at p. 1115 ["the burden of proving apportionment falls on the employer because it is the employer that benefits from apportionment"].)

Benson v. Workers' Comp. Appeals Bd. (2009) 170 Cal.App.4th 1535

The psychiatric disability should be combined with other disabilities rather than added when the psychiatric AME cannot parcel out the respective percentages of causation attributable to the injuries.

Applied to support combined award of psychiatric and non-psychiatric disabilities.

From the decision · page 12combined award pursuant to Benson v. Workers' Comp. Appeals Bd. (2009) 170 Cal.App.4th 1535, 1560 [74 Cal.Comp.Cases 113]. 8b. The date of injury herein for purposes of establishing entitlement to benefits is April 22, 2009.

The psychiatric AME's detailed explanation for inability to parcel out psychiatric disability among injuries

From the decision · page 5While I am aware that the applicant has a recognition of specific injuries, as well as the continuous trauma claim, I cannot parcel one injury out from the other, based upon reasonable medical probability. There is an indication of synergistic impact from initially the continuous trauma, which appeared to be further exacerbated by the applicant's specific injuries, and to a point in which the applicant's issues of chronic pain and those associated with creating chronic stress and dysphoria could not be separated from the nature of the perceived harassment and hostilities he endured before that. As a result, there is no way, from a psychiatric standpoint, to be able to parcel out the specific injuries from the applicant's continuous trauma claim.