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Reconsideration granted to address errors in permanent disability rating and apportionment. Matter returned for new rating considering walker use and clarifying apportionment.
The applicant sought reconsideration of a denied authorization for Synvisc knee injections. The original Independent Medical Review (IMR) denied the request, finding no documentation of the applicant's osteoarthritis failing to respond to conservative treatment. The Appeals Board found this IMR determination was based on a plainly erroneous finding of fact, as medical records in the file directly contradicted this assertion. Therefore, the Board granted the applicant's appeal, rescinded the WCJ's decision, and remanded the case for a new IMR.
Applicant sought reconsideration of a $23\%$ permanent disability award, arguing the $40\%$ apportionment to non-industrial factors lacked substantial medical evidence. The Workers' Compensation Appeals Board denied reconsideration, adopting the trial judge's report. The Board found the Qualified Medical Evaluator's apportionment was based on substantial medical evidence, including applicant's pre-existing osteoarthritis and a prior knee replacement, which explained the causation for the permanent disability. The Board also confirmed timely action on the petition within the statutory 60-day period.
The Appeals Board rescinded the original award due to an insufficient apportionment of permanent disability. The Board found that the QME's opinion, which attributed 75% of the applicant's left knee disability to pre-existing osteoarthritis, lacked adequate reasoning and was not substantial evidence. Therefore, the case was returned for further development of the record regarding apportionment, specifically concerning the QME's rationale. The Board clarified that while the applicant sustained an admitted injury to her left knee, the extent of permanent disability and its causation require further medical evaluation.
The Appeals Board affirmed the WCJ's decision, finding applicant reached permanent and stationary status on October 3, 2008, based on Agreed Medical Evaluator (AME) Dr. Chun's substantial evidence. The Board also upheld the 90% apportionment of permanent disability to applicant's pre-existing degenerative osteoarthritis, finding Dr. Chun's opinion supported by Dr. Rimoldi's report. The applicant's arguments regarding the P&S date and apportionment were rejected as misplaced or not supported by substantial evidence.
The Workers' Compensation Appeals Board granted reconsideration and rescinded the prior "take nothing" order, remanding the case for further development of the medical record. Applicant alleged a cumulative trauma knee injury, but the Qualified Medical Evaluator's (QME) opinion, relied upon by the judge, was deemed not substantial medical evidence. The Board found the QME failed to adequately inquire into the applicant's job duties or demonstrate a clear understanding of cumulative trauma. The case will be returned for selection of a new QME to re-evaluate the claim.
The Appeals Board affirmed the WCJ's decision, finding that the applicant's right knee injury did not have an indicated permanent disability in 2004 based on treating physician reports, thus requiring the use of the 2005 Permanent Disability Rating Schedule. The majority concluded that Dr. Lim's MRI report, while showing tears, did not explicitly state the existence of permanent disability from the industrial injury, and the treating physician's report at the time showed no physical evidence of permanent impairment. A dissenting opinion argued that Dr. Lim's MRI report, supported by subsequent medical findings and the applicant's ongoing restrictions, indicated permanent disability in 2004, warranting application of the older 1997 rating schedule.
The Appeals Board granted reconsideration and reversed the WCJ's finding that the applicant was permanent and stationary on June 1, 2009. The Board found the Agreed Medical Evaluator's (AME) opinion more persuasive, concluding the applicant was not yet permanent and stationary due to ongoing recovery from knee surgery. Consequently, temporary disability benefits are awarded through October 26, 2009, with further proceedings to determine benefits thereafter.
The Workers' Compensation Appeals Board granted reconsideration and amended a previous award, finding 50% apportionment of the applicant's knee disability to non-industrial factors, specifically overweight and malalignment. This amendment, based on medical opinion and recent case law regarding apportionment by causation, reduced the applicant's overall permanent disability from 54% to 33%. The Board affirmed the original finding regarding the occupational group number.
Reconsideration granted; rescinding the Findings and Award of October 30, 2008, and the Order of November 12, 2008; matter returned to trial level for further development of the medical record.
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