Opinion
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JESSICA MEANOR, Applicant v. CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION, legally uninsured; SCIF STATE EMPLOYEES, Defendants No. ADJ9352174 Workers' Compensation Appeals Board State of California February 20, 2024Sacramento District Office
OPINION AND ORDER DENYING PETITION FOR RECONSIDERATION
JOSEPH V. CAPURRO, COMMISSIONER
Defendant seeks reconsideration of the Findings of Fact, Awards and Orders (F&O) issued on November 30, 2023, wherein the workers' compensation administrative law judge (WCJ) found in pertinent part that (1) while employed as a supervising cook on June 20, 2012, applicant sustained injury to her right upper extremity, neck, teeth and psyche, with a sequela to her left wrist; (2) applicant requires further medical care to cure or relieve the effects of her industrial injury; (3) applicant sustained permanent disability of 100 percent after adjustments as a result of her industrial injury; (4) the date for commencement of permanent disability benefits was June 19, 2014; and (5) applicant's attorney provided valuable services on applicant's claim.
The WCJ awarded applicant (1) further medical care as reasonably required to cure or relieve the effects of her industrial injury; (2) lifetime payments of permanent total disability benefits commencing June 19, 2014, at the rate of $526.86 per week, with appropriate statutory adjustments, less a reasonable attorney's fee of 15 percent, or $339,983.94, to be paid by commutation, with defendant ordered to hold this amount in trust pending resolution of attorney's fee lien issues; and (3) an attorney's fee in the amount of $339,983.94, as provided above.
Defendant contends that the reports of PQME Drs. Egert, Piciucco, and Villafuerte do not constitute substantial medical evidence because they opine on areas outside their medical/dental specialties and fail to support their findings that applicant's adjusted impairments should be added instead of combined. Defendant further contends that Dr. Egert's opinion that the most accurate
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way to assess applicant's CRPS impairment is by analogy to the AMA Guides' rating for disarticulation of the arm at the shoulder joint is without support.
We received an Answer from applicant.
We received a Report and Recommendation on Petition for Reconsideration (Report) from the WCJ recommending that the Petition be denied.
We have reviewed the contents of the Petition, the Answer, and the Report. Based upon our review of the record, and for the reasons set forth below, we will deny the Petition.
FACTUAL BACKGROUND
In the Opinion on Decision, the WCJ states:
APPLICANT WAS SHOWN BY A PREPONDERANCE OF THE EVIDENCE TO HAVE 100% IN PERMANENT TOTAL DISABILITY AFTER APPROPRIRIATE ADJUSTMENTS AS A RESULT OF HER INDUSTRIAL INJURY
Applicant suffered an admitted injury to her right upper extremity on June 20, 2012, that resulted in further injury to her neck, teeth, psyche and left wrist.
Applicant was evaluated by Dr. John Santaniello, M.D. as a Panel Qualified Medical Examiner in the specialty of Orthopedic Surgery. Dr. Santaniello examined Applicant on June 5, 2013, February 20, 2018, and November 2, 2020, and issued reports dated June 5, 2013, February 20, 2018, November 2, 2020, December 11, 2020, April 18, 2022, and December 18, 2022. (Joint Ex. 4, 5, 6, 7, 8 &9) Dr. Santaniello gave his expert medical opinion that Applicant has CRPS in her right upper extremity resulting in 39% Whole Person Impairment (WPI) based on Chapter 13, Table 13-22 of the AMA Guidelines 5th Edition, 5% WPI for her cervical condition based on Chapter 15, Table 15-5 and no WPI for her left upper extremity. (Joint Ex. 9 Pages 13 - 15) Dr. Santaniello also gave his expert opinion that Applicant's permanent disability in her right upper extremity and cervical spine were 100% apportioned to the industrial injury and should be combined with Applicant's psychiatric and T/jaw disability by addition rather than the CVC as there is no overlap between the systems or impairments. (Joint Ex. 8 Pages 3 - 4) Dr. Santaniello's WPI findings adjust as follows:
CRPS/Chronic Pain 13.11.01.01-39-[5] 50-322G-53-47
Cervical 15.01.01.00-5-[5] 6-322F-6-5 47 C 5 = 50
Applicant was evaluated by Dr. Robert Egert, M.D., as a Panel Qualified Medical Examiner in the specialty of Physical Medicine &Rehabilitation/Pain Management. Dr. Egert examined Applicant on July 14, 2016, September 27, 2017, October 22, 2020, and August 9, 2021, and issued reports dated July 14, 2016,
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September 27, 2017, October 22, 2020, December 2, 2020, January 27, 2021, April 2, 2021, and August 9, 2021. (Joint Ex. 12, 13, 14, 15, 16, 17 &18) Dr. Egert provided his expert medical opinion regarding Applicant's CRPS. Dr. Egert determined Applicant's right upper extremity CRPS results in an essentially nonfunctional limb nearly equivalent to a shoulder disarticulation that equates to 100% upper extremity impairment and 60% WPI pursuant to Table 16-4 of the AMA Guides 5th Edition. Dr. Egert gave his expert medical opinion that Applicant has cervical impairment based on Tables 15-12, 15-13 &15-14 of the AMA Guides 5th Edition that equates 14% WPI based on ROM and Table 15-7 subsection II.b soft tissue lesion equal to 4% WPI which should be combined using the CVC. (Joint Ex. 12 Pages 13 - 15) Dr. Egert also gives his expert opinion that Applicant's disability is 100% apportioned to the industrial injury and that Applicant's psychological impairment and teeth/jaw impairment should be added to physical impairment from the CRPS and cervical facet syndrome. Dr. Egert's WPI findings adjust as follows:
CRPS/Chronic Pain 13.11.01.01-60-[5] 76-322G-78-74
Cervical (ROM) 15.01.02.01-14-[5] 18-322F-18-15
Cervical (Soft Tissue) 15.01.02.02-4-[5] 5-322F-5-4
74 C 15 C 4 = 79
Applicant credibly testified at trial that the symptoms in her right arm cause her to rely on her left arm to perform day-to-day life activities. She is limited to lifting two pounds with her right arm but she will use her left arm to shift and steer while she is driving. On some days she could carry a cup of water and on other days she cannot do anything with her right hand. Based on Applicant's credible testimony Dr. Egert's use of Table 16-4 to establish 60% WPI is found more accurate and persuasive than Dr. Santaniello's use of Table 13-22.[fn.] Therefore, Dr. Egert's disability analysis is found to be more persuasive than Dr. Santaniello's and will be used for determination of Applicant's permanent disability.
Applicant was evaluated by Dr. Luigi Piciucco, Ph. D. as the Panel Qualified Medical Examiner for psychological issues. Dr. Piciucco examined Applicant on November 20, 2020, and issued reports dated November 23, 2020, and January 13, 2021. (Joint Ex. 10 &11) He gave his expert medical opinion that Applicant has a GAF Score of 55 which equates to 23% WPI. He also determined that Applicant's psychological injury was caused by the industrial injury and that 100% of the psychological disability was apportioned to the industrial injury. (Joint Ex. 11) He also gives his expert opinion that the psychological disability should be added to the other disabilities as it is separate and distinct from the disabilities given by other specialists. He identified the psychiatric injury impacting Applicant's activities of daily living as moderate impairment reflected by sleep disturbance and sexual
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dysfunction which are separate from the impacted activities of daily living described by Dr. Egert or Dr. Villafuerte. Dr. Piciucco's WPI adjusts as follows:
Psych (GAF 55) 14.01.00.00-23-[8] 32-322G-35-30
Applicant was evaluated by Dr. Ernesto Villafuerte, D.D.S. as the Panel Qualified Medical Examiner for dental issues. Dr. Villafuerte examined Applicant on April 8, 2016, and October 27, 2020, and issued reports dated April 8, 2016, October 27, 2020, and January10, 2021. (Joint Ex. 1, 2 &3) Applicant's use of pain medications to relieve the symptoms of her industrial injury led to tooth decay resulting in extraction of all of her teeth. She now wears permanent upper and lower fixed prosthesis over 4 implants in the upper arch and 4 implants in the lower arch. He gave his expert opinion that Applicant has 7% WPI based on Applicant's problems with chewing pursuant to Table 11-7 of the AMA Guides 5th Edition. He determined Applicant's industrial injury caused the problems with her teeth and apportioned all of the disability to the industrial injury. (Joint Ex. 2) He also gave his expert medical opinion that the disability related to Applicant's oral issues was separate from that established by other specialties and should be added to them and that the CVC should not be used. (Joint Ex. 1 page 2) The activities of daily living affected by the oral problems are also distinct from those caused by her orthopedic and psychiatric problems. (Joint Ex. 2 Page 3) Dr. Villafuerte's WPI adjusts as follows:
Eating/Chewing 11.03.02.00-7-[2] 8-322G-9-7
Based on all the QMEs indicating the psychiatric and oral disabilities should be added to the disability from the right upper extremity CRPS and the cervical disabilities and the disabilities impacting different activities of daily living the disabilities combine as follows:
74 C 15 C 4 = 79; 79 + 30 + 7 = 116 = 100% permanent total disability
Based on the parties' stipulations at trial Applicant would be entitled to Permanent Total Disability Indemnity lifetime payments beginning June 19, 2014, at the rate of $526.86 per week plus appropriate statutory adjustments.
(Opinion on Decision, pp. 3-5.) In the Report, the WCJ states:
THE MEDICAL RECORD COMBINED WITH APPLICANT'S CREDIBLE TESTIMONY ESTABLISHED BY A PREPONDERANCE OF THE EVIDENCE THAT APPLICANT HAS 60% WPI FOR HER RIGHT UPPER EXTREMITY
Jessica Meanor (Applicant) was twenty-two (22) years old and employed as a supervising cook by the California Department of Corrections and Rehabilitation -High Desert State Prison (Defendant) on June 20, 2012, when she sustained an
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injury arising out of and occurring in the course of her employment. Applicant's first injury was to her right hand when it was crushed between a cart and a wall. The right hand injury progressed to Complex Regional Pain Syndrome (CRPS) of the right upper extremity that was treated with multiple medications. Applicant's use of medications resulted in tooth decay that led to extraction of all of her teeth, and she now uses permanent upper and lower fixed prosthesis secured by implants. Applicant suffered an admitted psychiatric injury as a result of her original physical injury. Applicant also suffered an admitted injury to her cervical spine caused by injection treatments that resulted in Whole Person Impairment separate and distinct from the impairment in her right upper extremity.
Applicant's right upper extremity and cervical problems were evaluated by Dr. John Santaniello, M.D. as a specialist in Orthopedic Surgery and by Dr. Robert Egert, M.D. as a specialist in Physical Medicine &Rehabilitation/Pain Management. These doctors have given different expert opinions regarding Applicant's levels of Whole Person Impairment for her right upper extremity CRPS and cervical problems. Dr. Egert provided his expert medical opinion that Applicant has 60% WPI based on complete loss of her use for her right upper extremity. Applicant's credible testimony at trial that she does not use her right arm for activities of daily living and has learned to rely on her left arm was found to support Dr. Egert's expert medical opinion. The limitations identified by Applicant at trial also exceed those identified by Dr. Santaniello. Therefore, Dr. Egert's expert opinion was found to be more persuasive and was used for determination of Applicant's WPI for her right upper extremity and cervical injury.
THE USE OF ADDITION TO COMBINE APPLICANT'S PSYCHIATRIC DISABILITY AND ORAL DISABILITY WITH HER CRPS CERVICAL DISABILITY IS SUPPORTED BY THE MEDICAL RECORD AS DIFFERENT ACTIVITIES OF DAILY LIVING WERE RESTRICTED
Applicant's disabilities for her right upper extremity and cervical region affected the same activities of daily living and were combined using the Combined Values Chart as follows:
CRPS/Chronic Pain 13.11.01.01-60-[5] 76-322G-78-74
Cervical (ROM) 15.01.02.01-14-[5] 18-322F-18-15
Cervical (Soft Tissue) 15.01.02.02-4-[5] 5-322F-5-4
74 C 15 C 4 = 79
Applicant was evaluated by Dr. Luigi Piciucco, Ph. D. for psychological issues. Dr. Piciucco determined Applicant has a psychiatric injury as a result of her industrial injury causing sleep disturbance and sexual dysfunction resulting in a GAF score of 55 which rates as follows:
Psych (GAF 55) 14.01.00.00-23-[8] 32-322G-35-30
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Applicant was evaluated by Dr. Ernesto Villafuerte, D.D.S. for dental issues. Dr. Villafuerte gave his expert medical opinion that Applicant has problems chewing as a result of her industrial injury that equates to 7% WPI. His WPI finding adjusts as follows:
Eating/Chewing 11.03.02.00-7-[2] 8-322G-9-7
Dr. Egert, Dr. Piciucco and Dr. Villafuerte all gave their expert medical opinions that Applicant's psychiatric and dental disability should be added to her CRPS/Cervical disability. Dr. Egert examined Applicant on July 14, 2016, September 27, 2017, October 22, 2020, and August 9, 2021, and issued reports dated July 14, 2016, September 27, 2017, October 22, 2020, December 2, 2020, January 27, 2021, April 2, 2021, and August 9, 2021. (Joint Ex. 12, 13, 14, 15, 16, 17 &18) Dr. Piciucco examined Applicant on November 20, 2020, and issued reports dated November 23, 2020, and January 13, 2021. (Joint Ex. 10 &11) Dr. Villafuerte examined Applicant on April 8, 2016, and October 27, 2020, and issued reports dated April 8, 2016, October 27, 2020, and January 10, 2021. (Joint Ex. 1, 2 &3) The medical record established by a preponderance of the evidence that specific WPI findings of each specialist identify different activities of daily living being impacted. Applicant's right upper extremity and cervical problems restrict physical activities such as getting dressed, driving and performing basic domestic chores. Her oral impairment interferes with eating and her psychiatric impairment interferes with social interactions. (MOH-SOE Pages 5 - 7)
Applicant's credible testimony at trial regarding her physical limitations and that she has not been able to work over the last eleven years supports the expert medical opinions that the disabilities should be combined by addition as follows:
74 C 15 C 4 = 79; 79 + 30 + 7 = 116 = 100% permanent total disability[fn.]
Therefore, the evidence does support the findings of fact which do support the Award of Permanent Total Disability Indemnity and the Petition should be denied.
(Report, pp. 2-4.)
DISCUSSION
Defendant contends that the reports of PQME Drs. Egert, Piciucco, and Villafuerte do not constitute substantial medical evidence because they opine on areas outside their medical/dental specialties and fail to support their findings that applicant's adjusted impairments should be added instead of combined.
We observe that all decisions by a WCJ must be supported by substantial evidence. (Lamb v. Workmen's Comp. Appeals Bd. (1974) 11 Cal.3d 274 [113 Cal.Rptr. 162, 520 P.2d 978, 39 Cal.Comp.Cases 310]; LeVesque v. Workmen's Comp. Appeals Bd. (1970) 1 Cal.3d 627 [83 Cal.Rptr. 208, 463 P.2d 432, 35 Cal.Comp.Cases 16]; Bracken v. Workers' Comp. Appeals Bd. (1989) 214 Cal.App.3d 246 [262 Cal.Rptr. 537, 54 Cal.Comp.Cases 349].) Substantial evidence has been
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described as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion and must be more than a mere scintilla. (Braewood Convalescent Hosp. v. Workers' Comp. Appeals Bd. (Bolton) (1983) 34 Cal.3d 159 [48 Cal.Comp.Cases 566].) To constitute substantial evidence "... a medical opinion must be framed in terms of reasonable medical probability, it must not be speculative, it must be based on pertinent facts and on an adequate examination and history, and it must set forth reasoning in support of its conclusions." (Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 621 (Appeals Board en banc).) "Medical reports and opinions are not substantial evidence if they are known to be erroneous, or if they are based on facts no longer germane, on inadequate medical histories and examinations, or on incorrect legal theories. Medical opinion also fails to support the Board's findings if it is based on surmise, speculation, conjecture or guess." (Hegglin v. Workmen's Comp. Appeals Bd. (1971) 4 Cal.3d 162, 169 [93 Cal.Rptr. 15, 480 P.2d 967, 36 Cal.Comp.Cases 93, 97].)
Here, as stated in the Opinion on Decision, Dr. Egert, the PQME in physical medicine and rehabilitation/pain management, opined that applicant's CRPS and cervical facet syndrome impairments should be combined using the CVC, and that these combined impairments should be added to the psychological and teeth/jaw impairments; Dr Piciucco, the PQME in psychology, also opined that applicant's psychological impairment should be added to the combined CRPS and cervical facet syndrome impairments; and Dr. Villafuerte, the PQME in dentistry, also opined that applicant's teeth/jaw impairments should be added to the combined CRPS and cervical facet syndrome impairments. (Opinion on Decision, pp. 4-5.)
PQME Drs. Egert, Piciuccio, and Villafuerte based these opinions upon the separate and distinct effects each category of impairments had on applicant's activities of daily living; e.g., on the limitations in getting dressed, driving, and performing basic domestic chores that result from CRPS and cervical facet syndrome; the restrictions on eating that result from the teeth/jaw impairments, and the sleep disturbance and sexual dysfunction that result from the psychiatric impairments. (Id.; Report, p. 4.)
These opinions are not only consistent with each PQME's area of specialty, but with the opinions of the other PQMEs and applicant's testimony regarding her physical limitations, which the WCJ deemed credible. (See Garza, supra, at pp. 318-319; Bracken v. Workers' Comp. Appeals Bd. (1989) 214 Cal.App.3d 246, 254-256 [262 Cal.Rptr. 537, 54 Cal.Comp.Cases 349] (stating
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that credibility determinations of the WCJ are entitled to great weight and not to be rejected without evidence of considerable substantiality).)
We therefore conclude that the reports of PQME Drs. Egert, Piciucco, and Villafuerte are supported by the medical record and adequately support their findings that applicant's adjusted impairments should be added. Accordingly, we are persuaded that they constitute substantial medical evidence.
Although we have determined that the reports of PQME Drs. Egert, Piciucco, and Villafuerte constitute substantial medical evidence, we nevertheless address defendant's argument that the WCJ was precluded from relying upon them based upon Athens Administrators v. Workers' Comp. Appeals. Bd. (Kite), (2013) 78 Cal.Comp.Cases 213 (writ den.), as applied by panel decisions Martinez v. Sousa Tire Serv., 2022 Cal. Wrk. Comp. P.D. LEXIS 70 and Burton v. Motel 6, 2022 Cal. Wrk. Comp. P.D. LEXIS 246.
Unlike en banc decisions, panel decisions are not binding precedent on other Appeals Board panels and WCJs. (See
In Kite, the court concluded that impairments may be added where substantial medical evidence supports a physician's opinion that adding impairments will result in a more accurate rating of the level of disability than the rating that results from using the CVC. (See also De La Cerda v. Martin Selko &Co. (2017) 83 Cal.Comp.Cases 567 (writ den.) (stating that a physician's opinion as to the most accurate rating method should be followed if she or he provides a reasonably articulated medical basis for doing so); see also Johnson v. Wayman Ranches, 2016 Cal.Wrk.Comp. P.D. LEXIS 235.)
In Martinez, the panel rescinded the WCJ's finding that applicant suffered 100 percent permanent disability as a result of orthopedic and psychiatric injuries where the WCJ added the applicant's psychiatric impairment to his combined orthopedic impairments based solely upon a one page report by applicant's treating psychologist that did not present any reason for adding the applicant's impairments other than that the impairments did not overlap, a reason which the panel found not pertinent to the issue of whether the impairments should be combined or added.
In Burton, the panel affirmed the WCJ's decision to combine the applicant's orthopedic, internal medicine and dental permanent impairments where the evaluating physicians added the
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impairments they found to impairments found by other specialists without explaining how the resulting impairment was "more than the sum of the two impairments." (Burton, supra, at * 5.)
In the present case, as we have explained, the PQME reports provide well-reasoned explanations for rating applicant's impairments by adding the psychological and teeth/jaw impairments to the combined CRPS and cervical facet syndrome impairment. In other words, unlike Martinez and Burton, the record before us includes compelling reasons for adding impairments.
Accordingly, we are unable to discern support for the argument that the WCJ was precluded from relying on the reports of PQME Drs. Egert, Piciucco based upon Martinez and Burton.
We next address defendant's contention that Dr. Egert's reporting fails to support his opinion that the most accurate way to assess applicant's CRPS impairment is by analogy to the AMA Guides' rating for disarticulation of the arm at the shoulder joint. Specifically, defendant argues that the reporting does not adequately explain Dr. Egert's reasons for rating applicant's CRTS under chapter 16 instead of chapter 13 of the Guides.
In Almaraz v. Environmental Recovery Services/Guzman v. Milpitas Unified School District (2009) 74 Cal.Comp.Cases 1084, 1086 (Appeals Board en banc) (Almaraz/Guzman II).), the Appeals Board stated that "when determining an injured employee's WPI, it is not permissible to go outside the four comers of the AMA Guides; however, a physician may utilize any chapter, table, or method in the AMA Guides that most accurately reflects the injured employee's impairment. (Id. at p. 1086.)
In Milpitas Unified School District v. Workers' Comp. Appeals Bd. ((2010) 187 Cal.App.4th 808 [75 Cal.Comp.Cases 837] (Almarez/Guzman III), the Court found that the overarching goal of rating permanent impairment is to achieve accuracy, stating:
The Guides itself recognizes that it cannot anticipate and describe every impairment that may be experienced by injured employees. The authors repeatedly caution that notwithstanding its "framework for evaluating new or complex conditions," the "range, evolution, and discovery of new medical conditions" preclude ratings for every possible impairment. (Guides § 1.5, p. 11.) The Guides ratings do provide a standardized basis for reporting the degree of impairment, but those are "consensus-derived estimates," and some of the given percentages are supported by only limited research data. (Guides, pp. 4, 5.) The Guides also cannot rate syndromes that are "poorly understood and are manifested only by subjective symptoms." (Ibid.)
To accommodate those complex or extraordinary cases, the Guides calls for the physician's exercise of clinical judgment to assess the impairment most accurately.
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(Id. at pp. 822-823.)
In other words, a physician "is not inescapably locked into any specific paradigm for evaluating WPI under the Guides, [and . . . is not] relegate[d] . . . to the role of taking a few objective measurements and then mechanically and uncritically assigning a WPI that is based on a rigid and standardized protocol and that is devoid of any clinical judgement. Instead, the AMA Guides expressly contemplates that a physician will use his or her judgment, experience, training, and skill is assessing WPI." (Id., at p. 853.)
Here, Dr. Egert exercised his clinical judgment and found applicant's "essentially nonfunctional limb nearly equivalent to a shoulder disarticulation that equates to 100% upper extremity impairment and 60% WPI pursuant to Table 16-4 of the AMA Guides 5th Edition." (Opinion on Decision, pp. 3-4.) The extent of this loss of use of the right upper extremity, the WCJ reasoned, was consistent with applicant's credible testimony that she does not use her right arm for activities of daily living and has learned to rely on her left arm. (Report, p. 3.)
By contrast, Dr. Santaniello's reporting failed to account for the extent of the loss of use of the right arm; and, as such, the WCJ found Dr. Egbert's reporting the more persuasive for determination of her right upper extremity impairment. (Id.)
In view of the record in its entirety, we concur that Dr. Egbert's reporting is the more accurate way to rate applicant's right upper extremity impairment. Accordingly, we are unable to discern merit to the contention that Dr. Egert's reporting fails to show that the most accurate way to assess applicant's CRPS impairment is by analogy to the AMA Guides' rating for disarticulation of the arm at the shoulder joint.
Accordingly, we will deny the Petition.
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For the foregoing reasons,
IT IS ORDERED that the Petition for Reconsideration of the Findings of Fact, Awards and Orders issued on November 30, 2023 is DENIED.
I CONCUR,
CRAIG SNELLINGS, COMMISSIONER
ANNE SCHMITZ, DEPUTY COMMISSIONER
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