RE: GEORGE THE BARTENDER’S DISPATCHES FROM ONLINE HAPPY HOUR – THE RULES OF DETERMINING PD OR CONVERT, ADJUST, COMBINE, RINSE, REPEAT AND ALMOST NEVER DEVIATE
FROM MY BAR AT HOME:
Going on my sixth month being home bound in Pasadena with wife Nancy and dog, Freeway, I had finally been tapped to step up to the plate and add my contribution to George the Bartender.1 I spent the Labor Day holiday weekend pouring over recent panel summaries and decisions in the hopes of finding one that would resonate with me to discuss with our loyal Lobby Bar/Home Bar patrons. Not sure if it was the record-setting heat getting to me or nervousness about producing my first edition, but I was not having any luck.
The morning of my deadline, I decide to beat the heat and walk Freeway at 6:00 am, hoping that this walk would also aid in settling my nerves and assist me in focusing on something that I would want to write about.
As luck would have it, Freeway and I ran into our neighborhood applicant attorney extraordinaire, Steve Brewberry, out walking his dog, Litigate. After exchanging pleasantries, he happened to mention that he had just read a recent panel decision that he did not care for and was curious to know my opinion of it. Judging by his antipathy, I took that to mean the defendant had won.
I told Steve that unfortunately I had read so many recent panel decisions these past few days that he would have to give me a bit of a refresher. Steve said the workers’ compensation judge (WCJ) in this case had found the applicant’s bad knee and bad dermatitis on the same leg were industrial, but that they did not agree with the findings of permanent total disability (PTD) reported by both the orthopedic qualified medical examiner (QME) and the applicant’s vocational evaluator.
The WCJ found 71% permanent disability (PD) rating instead of 100% PTD rating, but that was not a good enough outcome for the applicant, the defendant or as it would turn out the Workers’ Compensation Appeals Board (WCAB). The WCAB found PD of only 69%, which was just below the 70% threshold for a life pension. It was this last aspect of the case which really galled Steve.
After Steve’s brief refresher I realized that I had read this case yesterday! It was Gary Leiterman vs. Barrett Business Service, Inc. (ADJ10048132) published on July 8, 2020.2 I told Steve that I would see him tomorrow and give him my opinion then.2 When Freeway and I returned home I reread the case.
In Leiterman the WCJ had rejected the opinions of the orthopedic QME and the applicant’s vocational expert. The WCJ instead relied on the defense’s vocational expert, who found that the applicant could benefit from vocational services. The WCJ determined that the applicant did not want vocational rehabilitation because the available jobs would require him to “start over” at too low a wage. The WCJ found this was a choice the applicant was making and therefore could not be a basis to find him permanently totally disabled.
Both parties then filed a Petition for Reconsideration contesting the award of 71% PD. The WCAB agreed with the WCJ’s reasoning for not finding for PTD and denied the applicant’s request for a 100% Award, denying their petition and amended the award to reflect PD of 69%.
We should note that applicant might very well have been found PTD but for the opinion of the defense vocational expert. Often we are faced with the question of whether a defendant should obtain a rebuttal by our own defense rehabilitation expert. In this case the defendant made the right decision to use an expert who found the applicant could benefit from vocational services. Without this defense expert, neither the WCJ nor the WCAB would have been able to hold that refusing vocational rehabilitation services for the applicant’s stated reason was not a legitimate cause to award PTD.
I began to think about what had irked Steve. Why did the Appeals Board at least not deny defendant’s petition for reconsideration, keep the PD at 71%, and not reduce it by a tiny but significant 2%? I was sympathetic and thought perhaps the applicant did deserve the 71% rating for his bad knee and bad dermatitis.
However, I then recalled that the defendant correctly argued what the WCJ had done was not permitted by the California Permanent Disability Rating Schedule (PDRS). The WCAB had no choice but to agree with the defendant. Delving into the specifics of Leiterman, the QME in orthopedics found 26% whole person impairment (WPI) and the dermatology QME found 20% WPI.
The WCJ then asked the Disability Evaluation Unit (DEU) for two ratings. First, the DEU was to rate out each of the two impairments separately for age and occupation and combine the results. The results of the two string ratings were PD of 36% and 52% which combined to 69%.
Second, the DEU was to combine the 26% and 20% WPI and use that result in a string rating as long as the result did not exceed a maximum of 40% WPI, which was the value of an amputation at the hip per the AMA Guides to the Evaluation of Permanent Impairment, (Fifth Edition), aka the Guides, Table 17-32 p. 552. These rates combined to 41%, which exceeded 40%. The DEU followed the WCJ’s instructions and rated out at 40% WPI. The result was 71%.
The WCJ chose the second method and awarded the applicant 71% PD. The problem with this was twofold. First, the WCJ’s methodology for getting to 40% has no justification in either the PDRS or the Guides, which say that lower extremity impairment always combines rather than adds (except for toe impairment). Second, they chose this higher rate when the PDRS says to choose the lower of the two. The only time they could have awarded 71% was if the knee and skin impairment string ratings combined to more than 71%.
The WCJ justified their determination citing Cathleen Porter v Coldwater Creek 2014 Cal. Wrk. Comp. P.D. LEXIS 178, filed on April 17, 2014. In Porter the WCJ ordered the DEU to combine orthopedic and dermatology WPI before adjusting for age and occupation but limited the impairment to the value of an amputation (40%) found in Chapter 17 of the Guides.
The WCJs in Porter and Leiterman both used the Guides’ 40% WPI value for amputation at the hip. However, Porter involved a situation opposite to the one found in Leiterman, as the amputation value was used to reduce an award, which is permitted by the PDRS. In Leiterman it was used to increase the award, which the PDRS does not permit.
In Leiterman the WCAB pulled some choice quotes out of the PDRS, which state:
Except as specified below, all impairments are converted to the whole person scale, adjusted, and then combined to determine a final overall disability rating. (PDRS 1-11.)
The composite rating for an extremity (after adjustments) may not exceed the amputation value of the extremity adjusted for earning capacity, occupation and age. (PDRS l-l l.)
These two brief axioms establish that combined impairment for a leg impairment may not exceed the 40% value of an amputation.
Chapter 8, the dermatology chapter in the Guides, discusses a wide range of skin impairments. Some conditions are horrific, which produce extremely high levels of impairment and can exceed 90%. If an applicant had multiple impairments in a single extremity, including one of these terrible skin conditions, would the 40% amputation value apply?
The second quote above from the PDRS provides the answer. A “composite rating” may not exceed the amputation value. However, if there are multiple impairments in an extremity, the applicant would be entitled to a single rating which exceeds 40% adjusted. A case where Chapter 8 is used by a dermatologist to determine skin WPI in only the leg in excess of 40% should not be reduced to a rating of 40% WPI.
I looked forward to discussing my findings with Steve the next morning, and felt pretty confident about producing my very first George the Bartender.
All characters at my home bar are fictional and the storyline is simply a product of my animated imagination.
The 69% versus 71% issue in Leiterman turned on the PDRS, which is presumptively correct. I have a copy of it on my computer desktop in a folder labeled Permanent Disability. I use it for my ratings. They take me more time than a computer rating and I can sometimes make mistakes. However, the rating manual controls. Being fluent with it, particularly the mandates used in Porter and Leiterman, is a worthwhile goal for all of us.
While Leiterman lacks the designation “significant panel decision,” Joe Truce, formerly a managing shareholder at our firm and creator of George the Bartender, always liked to remind me of one of his favorite portions of the Labor Code, subtitled “Specific Additional Evidence Allowed,” §5703(g) which states in relevant part as follows:
The appeals board may receive as evidence either at or subsequent to a hearing, and use as proof of any fact in dispute, the following matters, in addition to sworn testimony presented in open hearing: … (g) Excerpts from expert testimony received by the appeals board upon similar issues of scientific fact in other cases and the prior decisions of the appeals board upon similar issues. (emphasis added)
He would also draw our attention to California Evidence Code §452(d), which provides that judicial notice may be taken of “Records of (1) any court of this state or (2) any court of record of the United States or of any state of the United States.”
We’re still making our own doubles for now, most definitely on the rocks to help cope with the recent heatwave in Southern California. May George guide my hand. Bottoms up, friends, and keep washing your hands.
1 How does a dog come by the name “Freeway” you might ask? When you find them at the intersection of the 110 and 5 freeways leaving downtown Los Angeles, naming them anything else would have been a blunder, but I digress.
2 A copy of Leiterman can be obtained via email request.