ADJ9535221 — California WCAB decision

What the panel ordered

Petition for Reconsideration denied.

Defendant sought reconsideration of the Findings and Award issued by the WCJ on June 16, 2023, which found applicant permanently totally disabled.

Read the official decision →

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 prevailedhead · eyes · hearing · psyche · neurological system · right shoulder · right arm · right hip

The WCJ and WCAB found substantial evidence in the reports of Dr. Mahmoudi and Dr. Francis supporting addition of impairments rather than combination under the Combined Values Chart, resulting in a permanent total disability rating of 100%. Apportionment was applied as identified by the physicians, and the defendant's arguments to overturn this were rejected.

From the decision · page 1Defendant seeks reconsideration of the Findings and Award (F&A) issued by the workers' compensation administrative law judge (WCJ) on June 16, 2023, wherein the WCJ found in pertinent part that as a result of her October 1, 2011, industrial injury, applicant is permanently totally (100%) disabled.

The facts that decided it

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.

QMERelied upon · internal medicine

Dr. Mahmoudi opined that applicant's impairments (musculoskeletal, gastrointestinal, eyes, ear, psyche) should be added rather than combined using the Combined Values Chart due to no overlap and synergy of impairments, resulting in a more accurate permanent disability rating.

No overlapping of each system with another; synergy of impairments; addition more accurate than combined values chart.

From the decision · page 2BACKGROUND Applicant claimed injury to her head, eyes, hearing, psyche, neurological system, and to her right shoulder, right arm, and right hip on October 1, 2011, while employed by defendant as a residential education coordinator.1 Applicant has had an extensive course of medical treatment (see e.g., Joint Exh. AA, Massoud Mahmoudi D.O., May 7, 2015, pp. 7 § 40, record review; App. Exh. 10, Stephen E. Francis, Ph.D., November 21, 2019, pp. 24 § 98, record review); the medical record relevant to the issues addressed herein is summarized as follows: Applicant was initially evaluated by internal medicine qualified medical examiner (QME) Massoud Mahmoudi D.O., on April 8, 2015. (Joint Exh. AA, Dr. Mahmoudi, May 7, 2015.) Dr. Mahmoudi examined applicant, took a history, reviewed the medical record, and determined that applicant's condition was not permanent and stationary. (Joint Exh. AA, p. 45.) The doctor re- evaluated applicant on July 13, 2016, and submitted several supplemental reports. (See Joint Exhs. BB FF.) In response to a question from applicant's counsel, in his December 19, 2020, report, Dr. Mahmoudi stated:

QMERelied upon · neuropsychology

Dr. Francis supported addition of certain factors of permanent disability rather than combination under the Combined Values Chart, consistent with the Kite decision, resulting in a higher and more accurate rating.

Sensory system impairment affects higher cognitive and emotional functions; addition reflects synergy and is more accurate than combined values chart.

From the decision · page 3On October 7 and 8, 2019, neuropsychology QME Stephen E. Francis, Ph.D., evaluated

The rules the panel named

Authorities as the decision cited them, with how this panel applied each one.

Mihesuah v. Workers' Comp. Appeals Bd. (1976) 55 Cal.App.3d 720

Permanent disability rating should reflect the entire picture of disability and possibility of employability, and the rating schedule is a guide to be employed for accuracy.

The WCJ and WCAB applied this standard to support addition of impairments rather than strict use of the Combined Values Chart.

From the decision · page 4It has long been recognized that a rating schedule like PDRS is only a guide and adding the level of permanent disability caused by an injury to separate body parts is proper to determine the overall level of permanent disability when that results in a more accurate rating than using the CVC to combine them. (Mihesuah v. Workers' Comp. Appeals Bd. (1976) 55 Cal.App.3d 720, 728 [41 Cal.Comp.Cases 81] [schedule "is only a 'guide' to be employed" and the final rating should reflect "the entire picture of disability and possibility of employability"]; Abril v. Workers' Comp. Appeals Bd. (1976) 55 Cal.App.3d 480 [40 Cal.Comp.Cases 804].) Thus, blind adherence to the CVC is improper where a less accurate disability rating results.

PDRS, AMA Guides

The 2005 permanent disability rating schedule (PDRS) generally combines impairments using the formula a + b(1-a) from which the Combined Values Chart (CVC) is derived, but a scientific formula has not been established for all situations.

The WCJ and WCAB recognized the PDRS and AMA Guides guidance on combining impairments and accepted addition of impairments as more accurate in this case.

From the decision · page 3A scientific formula has not been established to indicate the best way to combine multiple impairments. Given the diversity of impairments and great variability inherent in combining multiple impairments, it is difficult to establish a formula that accounts for all situations. A combination of some impairments could decrease overall functioning more than suggested by just adding the impairment ratings for the separate impairments (e.g., blindness and inability to use both hands). When other multiple impairments are combined, a less than additive approach may be more appropriate. States also use different techniques when combining impairments. Many workers' compensation statutes contain provisions that combine impairments to produce a summary rating that is more than additive. Other options are to combine (add, subtract, or multiply) multiple impairments based upon the extent to which they affect an individual's ability to perform activities of daily living. (AMA Guides, p. 10.)

Athens Administrators v. Workers' Comp. Appeals Bd. (Kite) (2013) 78 Cal.Comp.Cases 213

The Kite decision permits addition of impairments rather than combination under the CVC when it results in a more accurate rating.

The WCJ and WCAB relied on Kite to support addition of impairments in this case.

From the decision · page 32 The doctor's reference to "Kite" pertains to the Appeals Board decision (writ denied) affirming the WCJ's opinion that the injured worker's factors of disability should be added, not combined. (Athens Administrators v. Workers' Comp. Appeals Bd. (Kite) (2013) 78 Cal.Comp.Cases 213 [2013 Cal. Wrk. Comp. LEXIS 34] (writ den.).) 3 The WCJ found that the tick bite resulting in a Borrelia Hermsii bacterial infection was an injury AOE/COE. (See Findings and Order, April 25, 2017.)

ADJ9535221 · August 30, 2023

What the panel ordered

What was disputed, and how it came out

The facts that decided it

Your case already resembles someone else’s. Find whose.

What the panel did with the medical opinions

The rules the panel named

What proof carried it

About this page