California: Permanent Total Disability; Combining Multiple Impairments; Psychiatric Injury; Catastrophic Injury

The recent Board panel decision in Lund v. Ryko Solutions, Inc. is a “meaty” decision. It discusses Fitzpatrick and Labor Code § 4662(b), addition of impairments versus combination, and a separate PD rating for the psyche injury based on the catastrophic nature of that injury.

Here are our headnotes for the Lund decision:

Lund v. Ryko Solutions Inc., 2020 Cal. Wrk. Comp. P.D. LEXIS 373. Permanent Disability—Rating—Permanent Total Disability—Combining Multiple Impairments—WCAB affirmed WCJ’s finding that applicant suffered 100 percent permanent disability from 7/8/2014 admitted industrial injury to his lumbar spine and psyche while employed as technician, and found that although language in Labor Code § 4662(b) indicating that permanent total disability is to be determined “in accordance with the fact” does not provide independent method for determining permanent disability rating separate from method provided in Labor Code § 4660, consistent with holding in Dept. of Corrections & Rehabilitation v. W.C.A.B. (Fitzpatrick) (2018) 27 Cal. App. 5th 607, 238 Cal. Rptr. 3d 224, 83 Cal. Comp. Cases 1680, WCJ provided valid alternative bases for reaching his determination by finding that (1) applicant was entitled to separate impairment rating for injury to his psyche based on “catastrophic” nature of his injury as provided in Labor Code § 4660.1(c)(2)(B), (2) opinions of agreed medical evaluators supported use of addition rather than Combined Values Chart (CVC) to combine applicant’s multiple impairments to reach most accurate rating, and there was substantial medical evidence that reliance on CVC would not result in most accurate permanent disability rating due to “minimal overlap” between applicant’s orthopedic and psychiatric impairments, (4) in accordance with Ogilvie v. W.C.A.B. (2011) 197 Cal. App. 4th 1262, 129 Cal. Rptr. 3d 704, 76 Cal. Comp. Cases 624, Contra Costa County v. W.C.A.B. (Dahl) (2015) 240 Cal. App. 4th 746, 193 Cal Rptr. 3d 7, 80 Cal. Comp. Cases 1119, and LeBoeuf v. W.C.A.B. (1983) 34 Cal. 3d 234, 193 Cal. Rptr. 547, 666 P.2d 989, 48 Cal. Comp. Cases 587, scheduled rating was rebutted by opinion of applicant’s vocational expert, who concluded that applicant had total loss of earning capacity and was not amenable to vocational rehabilitation due to synergistic effect of his orthopedic and psychiatric impairments, and that permanent total disability was entirely caused by industrial injury, such that apportionment did not apply.

Psychiatric Injury—Catastrophic Injuries—Increased Permanent Disability—WCAB affirmed WCJ’s finding that applicant who suffered 7/8/2014 admitted industrial injury to his lumbar spine and psyche while employed as technician, was entitled to separate permanent disability rating for injury to his psyche based on “catastrophic” nature of his injury as provided in Labor Code § 4660.1(c)(2)(B), which provides exception to Labor Code § 4660.1(c)(1)’s preclusion against increased impairment rating for psychiatric injuries that arise out of compensable physical injury, when WCAB was persuaded that WCJ properly relied on factors in Wilson v. State of CA Cal Fire (2019) 84 Cal. Comp. Cases 393 (Appeals Board en banc opinion), to determine that applicant’s injury was “catastrophic,” where WCJ identified intensity and seriousness of medical treatment for applicant’s orthopedic injury, two-disc decompression and fusion surgery, and nature and severity of physical injury and its impact on applicant’s activities of daily living, and WCJ also identified functional capacity evaluation and sub rosa evidence as accurately depicting applicant’s significant physical limitations, consistent with his credible testimony.

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