11 May 2023

California: Permanent Disability Rating and Pyramiding

Here’s a noteworthy panel decision on permanent disability rating and pyramiding. Read our headnote below.

CA - NOTEWORTHY PANEL DECISIONS

Terri Glasgow, Applicant v. Massie Diagnostic Imaging, State Compensation Insurance Fund, Defendants

W.C.A.B. Nos. ADJ1651527 (SBR 0314707)—WCAB Panel: Commissioners Dodd, Capurro, Snellings

Workers’ Compensation Appeals Board (Board Panel Decision)

Opinion Filed April 11, 2023

Publication Status: CAUTION: This decision has not been designated as a “significant panel decision” by the Workers’ Compensation Appeals Board. Practitioners should proceed with caution when citing to this panel decision and should also verify the subsequent history of the decision, as these decisions are subject to appeal. WCAB panel decisions are citeable authority, particularly on issues of contemporaneous administrative construction of statutory language [see Griffith v. WCAB (1989) 209 Cal. App. 3d 1260, 1264, fn. 2, 54 Cal. Comp. Cases 145]. However, WCAB panel decisions are not binding precedent, as are en banc decisions, on all other Appeals Board panels and workers’ compensation judges [see Gee v. Workers’ Comp. Appeals Bd. (2002) 96 Cal. App. 4th 1418, 1425 fn. 6, 67 Cal. Comp. Cases 236]. While WCAB panel decisions are not binding, the WCAB will consider these decisions to the extent that it finds their reasoning persuasive [see Guitron v. Santa Fe Extruders (2011) 76 Cal. Comp. Cases 228, fn. 7 (Appeals Board En Banc Opinion)]. LexisNexis editorial consultants have deemed this panel decision noteworthy because it does one or more of the following: (1) Establishes a new rule of law, applies an existing rule to a set of facts significantly different from those stated in other decisions, or modifies, or criticizes with reasons given, an existing rule; (2) Resolves or creates an apparent conflict in the law; (3) Involves a legal issue of continuing public interest; (4) Makes a significant contribution to legal literature by reviewing either the development of workers’ compensation law or the legislative, regulatory, or judicial history of a constitution, statute, regulation, or other written law; and/or (5) Makes a contribution to the body of law available to attorneys, claims personnel, judges, the Board, and others seeking to understand the workers’ compensation law of California.

Disposition: Terri Glasgow’s Petition for Reconsideration is granted, the January 20, 2023 Findings and Award is rescinded, and the matter is returned to the trial level for further proceedings.

Permanent Disability—Rating—Pyramiding—WCAB, granting reconsideration, rescinded WCJ’s finding that applicant who suffered industrial injury to multiple body parts while employed as ultrasound technician from 12/23/2001 through 12/23/2002 incurred 97 percent permanent disability, after apportionment, and WCAB returned matter to trial level for further proceedings on issue of permanent disability, when WCAB found that WCJ incorrectly rated applicant’s bladder disability by folding bladder impairment into impairment assigned to lumbar spine, which WCJ explained was to avoid pyramiding, but WCAB noted that pyramiding formula of adding greatest disability to half lesser disability is for objective disabilities that involves single extremity, and that applicant’s lumbar and bladder restrictions were not objective disabilities (defined as loss of motion or amputation), nor did restrictions involve single extremity; WCAB further found that WCJ must consider opinions of vocational experts in addition to those of medical experts in determining apportionment. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 8.02[4][d], 32.03[8]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 7, §

7.04; The Lawyer’s Guide to the AMA Guides and California Workers’ Compensation, Chs. 2, 4, 5.]