Permanent Disability

Tuesdell v. Vons Grocery (BPD) (45 CWCR 67):


The WCJ found the applicant permanent and totally disabled as a result of the cumulative trauma injury based on the report of the Agreed Medical Evaluator.  The WCJ found medical evidence sufficient to award permanent total disability pursuant to Labor Code §4662(b) (in accordance with the fact).


Defendant filed a Petition for Reconsideration.


The WCAB upheld the WCJ.


The WCAB indicated all decisions made by a WCJ or the Appeals Board must be supported by substantial evidence.


Where the parties use an AME, the AME’s opinion should ordinarily be followed.


The applicant has the burden of proof to establish the level of permanent disability through substantial evidence.


In some cases, permanent total disability is presumed; when it is not, the permanent total disability can be proved “in accordance with the fact,” pursuant to Labor Code §4662 (b).


For the date of injury in this case where permanent disability is less than total, the panel indicated that rating was to be per the 2005 PDRS as established by Labor Code §4660.


The PDRS is prima facie evidence of permanent disability but may be rebutted.


In the present case the report of the Agreed Medical Evaluator constituted substantial evidence that the applicant sustained permanent total disability pursuant to Labor Code §4662(b). The factors the AME considered in reaching this conclusion included the applicant’s surgical history, objective evidence from diagnostic testing, clinical testing results, and effects of medication. The evidence of the existence of those conditions, was substantial and well supported.


As to the issue of whether a physician rather than a vocational expert was qualified to give an opinion on permanent total disability the Appeals Board indicated that the WCJ and the Appeals Board could rely on medical evidence alone to find permanent total disability.


The panel noted that physicians routinely provide opinions on work restrictions and capabilities.


The opinion that an applicant is permanently totally disabled from competing in the open labor market can properly be made by a medical expert.


The panel also noted the AME opinion did not stand alone, was was supported by two other physicians reporting in the case.


The WCAB upheld the decision of the WCAB.


Irving v. J.P Morgan Chase (BPD) (2017 Cal. Wrk. Comp. P.D. LEXIS 93):


The WCJ found the applicant’s sleep disability was non-compensable and the medical report of the physician was not substantial evidence on the issue of a sleep injury.


The Appeals Board found the report of the physician was not substantial evidence even though a sleep study was performed. The Appeals Board found the report of the sleep specialists was not substantial evidence because the report lacked a history describing the onset of the applicant’s various sleep disturbances and any treatment provided for them, and merely repeating the applicant’s narrative that the sleep problems began after his industrial injury was not sufficient.


The Appeals Board indicated the report was not substantial evidence because it lacked a history of applicant’s medication usage and a discussion of specific medications he might have taken to treat the industrial injury.


The report was also not based on substantial evidence because it lacked a review of medical records other than the doctors own sleep study.


The WCAB denied the applicant’s allegation that the decision was based on a negative impression of the doctor’s reputation, but added that it was not improper to consider a physician’s reputation in considering whether his or her reports constitute substantial evidence.


The WCAB rejected the applicants request to develop the record on the sleep disorder because they had four years to correct the problems with the sleep specialist reporting and failed to do so.


After deducting the applicant sleep disability, the Appeals Board, reduced the award from 76% permanent disability to 69% permanent disability.


The dissenting Commissioner believe the record should be further developed concerning the sleep disorder.

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