ADJ9535221 · August 30, 2023

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.

Reports from Dr. Mahmoudi and Dr. Francis support addition of impairments rather than combination under the Combined Values Chart.

Favours Applicant prevailed

This evidence was relied upon by the WCJ and WCAB to find a permanent total disability rating of 100%.

From the decision · page 4Having reviewed the trial record, we agree with the WCJ that the reports from Dr. Mahmoudi and Dr. Francis are substantial evidence that adding the factors of applicant's disability results in an accurate rating of his disability. In turn, we agree with the WCJ's conclusion that applicant is permanently totally (100%) disabled.

Apportionment was applied as identified by the physicians, and the WCJ included apportionment in the ratings before adding impairments.

Favours Applicant prevailed

This supported the conclusion that the applicant was permanently totally disabled despite apportionment.

From the decision · page 5As the WCJ explained in his Report, "Based upon this evidence, I found the Applicant totally disabled after apportionment was deducted. In doing so, I accepted the rating strings proposed by the parties, which were nearly identical, and which were entirely identical with respect to apportionment." (Report, p. 2.) Clearly, when rating each factor of applicant's disability, the WCJ included the apportionment identified by the reporting physicians. He then determined that the ratings should be added, not combined, and based thereon he concluded that applicant was permanently totally disabled. We agree with the WCJ that defendant's argument, "... has nothing to do with the facts or the law but rather a request that the WCAB use this opportunity to overhaul the entire system by which PD is awarded." Therefore, we see no legal or factual basis for disturbing the WCJ's conclusion that applicant is permanently totally (100%) disabled.

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:

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

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.)

Reports from Dr. Mahmoudi and Dr. Francis supporting addition of impairments rather than combination under the Combined Values Chart.

From the decision · page 4Having reviewed the trial record, we agree with the WCJ that the reports from Dr. Mahmoudi and Dr. Francis are substantial evidence that adding the factors of applicant's disability results in an accurate rating of his disability. In turn, we agree with the WCJ's conclusion that applicant is permanently totally (100%) disabled.