A recent noteworthy panel decision provides guidance on the WCJ’s Role vs. the Medical Expert’s role
A California WCAB panel has rescinded a Workers’ Compensation Judge’s (WCJ) finding that an applicant sustained 73 percent permanent disability as result of a 5/29/2009 industrial injury to her neck, back, chest, face, knees, and psyche, and returned the matter to the WCJ for a new permanent disability rating utilizing the Combined Values Chart (CVC) in the 2005 Permanent Disability Rating Schedule.
Here, the WCAB panel found that the WCJ had abused her discretion by not applying the CVC to rate the applicant’s permanent disability, when instead the WCJ had simply added the orthopedic and psychiatric impairments to find permanent disability without evidence from the agreed medical examiner indicating that the additive method provided a more accurate measure of the applicant’s overall level of permanent disability than combining disabilities using the CVC.
The WCAB panel further found that this case was distinguishable from cases in which medical evidence indicates that adding separate disabilities is the best way to combine impairment. Although the 2005 Permanent Disability Rating Schedule provides that methods other than the “generally” applicable CVC may be used to combine multiple disabilities, the WCJ in this case did not provide her reasoning for declining to follow the rating schedule. Absent medical evidence to justify the alternative approach, there was no basis for the WCJ’s rating instruction instructing the rater to add the applicant’s disabilities.
The WCAB panel found that the WCJ had violated the principles set forth in Blackledge v. Bank of America (2010) 75 Cal. Comp. Cases 613 (Appeals Board en banc opinion), by appropriating the role of a medical expert in making a medical determination as to how to combine the applicant’s separate impairments in the absence of specific medical evidence to substantiate using the additive method.
Lastly, the WCAB panel found that the defendant’s failure to move to strike the rating instructions did not preclude the defendant from challenging the ultimate rating, as a final permanent disability rating must be based on substantial evidence and must be subject to review on reconsideration.
See Borela noteworthy panel decision.
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Commentary on Borela Noteworthy Panel Decision
By Robert G. Rassp, Esq., author of The Lawyer’s Guide to the AMA Guides and California Workers’ Compensation (LexisNexis):
We are always on the lookout for interesting WCAB panel decisions like this one in Borela that discuss findings of permanent disability under the AMA Guides. The question of whether or not ignoring the combined values chart (CVC) is problematic for two reasons. First, it is required in the 2005 PDRS to be applied in all cases and, second, the AMA Guides requires physicians to use it within the Guides in specific instances, such as in rating multiple areas of an upper or lower extremity.
Our case law mandates physicians to provide the most accurate rating of permanent disability, and not using the CVC in a given case and adding the WPI ratings instead is one way of applying the case law. In Borela, the WCJ should have developed the record under McDuffie v. Los Angeles County Metropolitan Transit Authority (2002) 67 Cal. Comp. Cases 138 (Appeals Board en banc decision) by asking the physicians to comment upon whether dispensing with the use of the CVC in this case and adding the orthopedic and psychiatric WPI ratings would result in a more accurate rating of permanent disability.
Such medical evidence coming from physicians and not the judge would have been sufficient to rebut the 2005 PDRS that requires a rater's use of the CVC along with the physician's internal use of the CVC in the Guides when calculating the WPI ratings to begin with. In this case, the WCJ exceeded her authority under Blackledge by not obtaining and then relying on medical evidence to justify adding the WPI ratings instead of combining them. The WCAB panel implies that had she relied on medical evidence to do so, then the panel would have upheld her award of permanent disability.
© Copyright 2014 Robert G. Rassp, Esq. All rights reserved. Reprinted with permission.
Rassp, The Lawyer’s Guide to the AMA Guides and California Workers’ Compensation, 2014 Edition (LexisNexis). Purchase here.