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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.

  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.