Permanent Disability

  1. MONTENEGRO V. CITY OF LA (BPD) (2016 Cal. Wrk. Comp. P.D. LEXIS 128):


Labor Code §4660.1(c)(1) provides there shall be no increase in impairment rating for sleep dysfunction, sexual dysfunction, or psychiatric disorder, or any combination thereof, arising out of a compensable physical injury.


The facts of this case establish that the applicant suffered erectile dysfunction as a result of surgery to remove his prostate to treat his industrial prostate cancer.


The WCAB found that Labor Code §4660.1(c)(1) was created to eliminate questionable claims of disability.


The WCAB ruled that section did not preclude consideration of impairments which are directly related to the injury as opposed to being a consequence of the injury.


The WCAB held that an injury to the prostate, in terms of sexual dysfunction, is not considered a compensable consequence of the physical injury.


  1. Allred v. RST Cranes (BPD) (44 CWCR 138):


The applicant sustained a work-related injury to the left middle and ring fingers.


The parties obtained a Qualified Medical Evaluator in orthopedic surgery.


The physician opined the applicant sustained a 4% whole person impairment as a result of the crush injury.


Applicant requested a supplemental report on the permanent disability rating. The physician in the supplemental report indicated the applicant’s injuries were significant and that he has difficulty using the affected fingers in any type of normal fashion.  The physician noted the maximum impairment value for each affected finger under AMA guides table 16 – 18 and provided a new rating that deviated from a strict application of the guides.


The physician stated that given the significance of the injury suffered it is felt that in considering Almaraz/Guzman allowances an appropriate impairment rating would be 11% for the middle finger and 5% for the ring finger plus a 3% add-on for the pain, and that no other chapter or section of the AMA guides would be more appropriate. The physician observed is 4% whole person impairment opinion have been derived from a strict interpretation of the guides.


The WCJ awarded PD indemnity of 31% disability consistent with the supplemental report of the Qualified Medical Evaluator.


Defendant filed a petition for reconsideration.


The WCAB indicated that a medical report must be based on substantial evidence. The opinion must be predicated on reasonable medical probability. The opinion cannot be based on incorrect legal theories, devoid of factual basis for conclusion and or extend beyond the physician’s expertise.


The Board went on to state whether an opinion is substantial evidence is a case-by case inquiry that must be assessed by reference to the material facts upon which the physician’s opinion was based in by the reasons given for his opinion.


The Board then stated that Labor Code §4660 provides that the schedule for rating permanent disability is prima facie evidence of the percentage of permanent disability to be attributed to each injury covered by the schedule.


The Board then went on to indicate in the en banc decision in Almaraz/Guzman to a departure from the strict interpretation of the rating schedule and the AMA guides is appropriate for cases that do not fit neatly into the diagnostic criteria and descriptions of the guides. The Board reasoned the physician should be allowed to use their clinical judgment to evaluate the impairment most accurately even if that is possible only by resorting to comparable conditions described in the AMA guides.


Any deviation from the guides must be based on substantial evidence. Where a condition is not covered by the AMA guides, a physician should compare the non-covered conditions impairment level to a measurable impairment covered by the AMA guides, including by reference the activities of daily living.


The Board then concluded the medical report of the qualified medical evaluator was not sufficient. The report did not state that the AMA guides did not cover the applicant’s condition, nor did he address whether and to what extent applicant’s activities of daily living are effected by the industrial injury.


Although the physician did state the applicant sustained a significant injury and had difficulty using his fingers in any type of normal fashion, the panel concluded that his reporting was insufficient to support a deviation from the strict rating.


Finding the judge and itself under an obligation to develop the record further where there is insufficient medical evidence on an issue, the panel remanded the case to the trial level with instructions to develop the Qualified Medical Evaluator’s opinion on the issue of permanent disability. The WCAB cited the case of Kuykendall 65 CCC 264 which requires development of the record to ensure substantial justice in all cases.


The WCAB indicated the parties needed to solicit a supplemental explanation or to depose the physician.

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