ADJ8499651 — California WCAB decision

What the panel ordered

Petition for Reconsideration granted in part; apportionment of right shoulder disability rescinded; permanent disability award amended to 58% without apportionment; other findings affirmed.

Applicant sought reconsideration of the January 21, 2021 Amended Findings of Fact and Order regarding permanent disability and apportionment.

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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 prevailedright shoulder

The WCAB found that the defendant failed to meet the burden of proof for apportionment of the right shoulder disability because the medical opinion did not adequately explain the causal relationship between the prior injury and the assessed disability. Therefore, the apportionment was rescinded and the permanent disability rating was amended to 58% without apportionment.

From the decision · page 15"Apportionment of permanent disability shall be based on causation," and "[t]he employer shall only be liable for the percentage of permanent disability directly caused by the injury arising out of and occurring in the course of employment." (Lab Code, § 4663 and 4664; Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604 (Appeals Board en banc).) It is the defendant's burden to prove a basis for apportionment. (Escobedo, supra; E.L. Yeager Construction v. Workers' Comp. Appeals Bd. (Gatten) (2006) 145 Cal.App.4th 922 [71 Cal.Comp.Cases 1687].)

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.

QMERejected · orthopedics

Opined that the right shoulder condition was industrial due to overuse after left shoulder injury but failed to adequately explain how the prior injury caused 50% of the right shoulder disability.

His testimony did not adequately explain the mechanism by which the prior injury caused the assessed level of right shoulder disability, failing to meet the burden of proof for apportionment.

From the decision · page 16Here, Dr. Gjerdrum opined that applicant's right shoulder condition was industrial because of applicant's overuse of that shoulder after she injured her left shoulder. He identified a pre- existing rotator cuff tear that was present in her right shoulder at the time she began to experience her overuse injury. He testified in his deposition that applicant would not have sustained her compensable consequence injury to her right shoulder if she did not have the pre-existing condition. Despite couching his opinion in terms of using his best clinical judgment, his analysis fails to address the issue presented, that is, how and why the level of impairment he assessed was caused by that prior injury. His testimony that it would be unlikely for applicant to have sustained a derivative injury but for the prior injury does not adequately explain the mechanism by which that prior injury caused 50% of her right shoulder disability.

QMERelied upon · psychiatry

Diagnosed Adjustment Disorder with Mixed Anxiety and Depressed Mood and Pain Disorder, both chronic and industrially caused, with mild permanent impairment (6% WPI) and no need for psychiatric treatment.

From the decision · page 6Applicant's claim for a psychiatric injury was evaluated by QME Dr. Echevarria, who reported on April 24, 2016. He diagnosed applicant as suffering from Adjustment Disorder with Mixed Anxiety and Depressed Mood, and a Pain Disorder Associated with Both Psychological Factors and a General Medical Condition, both chronic, which reached permanent and stationary status as of March 24, 2016. He further concluded that all of applicant's psychiatric injury was caused by her 2011 industrial injury. He scored her GAF at 66. "This GAF score places applicant within the mild symptoms decile (61-70). This is consistent with applicant's current description of symptoms (some continued low mood and anxiety in response to thinking injury, some continued difficulties insomnia, low energy and chronic pain), with some resultant functional difficulties, but generally functioning pretty well with some meaningful interpersonal relationships. (Ex. 12. 4/14/16 Dr. Echevarria Report, p. 159-160.) A GAF score of 66 rates a 6% WPI, which he identified as a mild permanent impairment based on Table 14-1 of the AMA Guides. He noted that applicant had not received, and did not require, any psychiatric or mental health treatment. (Ex. 12, p. 161.)

ADJ8499651 · June 3, 2021

What the panel ordered

What was disputed, and how it came out

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The facts that decided it

What the panel did with the medical opinions

The rules the panel named

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