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Access over workers' compensation decisions, including En Banc, Significant Panel Decisions, and writ-denied cases.

Case No. CV-23-1451
Regular Panel Decision
Nov 07, 2024

Matter of Amato v. Patchogue Supermarkets LLC

Domenico Amato, a claimant, sustained work-related injuries to his bilateral shoulders and biceps in May 2019, leading to two arthroscopic surgeries. Following these, medical evaluations for permanency by two orthopedic specialists, Frank Hudak and Lee Kupersmith, yielded differing schedule loss of use (SLU) percentages for Amato's arms. A Workers' Compensation Law Judge initially found a bilateral 42.5% SLU. However, the Workers' Compensation Board subsequently rejected both physicians' permanency opinions, deeming them unreliable due to inconsistent range of motion (ROM) measurements. Instead, the Board relied on earlier ROM measurements from Dr. Kupersmith, taken before Amato reached maximum medical improvement (MMI), to determine a 20% SLU for each arm. Amato appealed this decision. The Appellate Division, Third Department, modified the Board's decision, finding that it was improper for the Board to determine SLU percentages based on premature medical reports that did not confirm MMI or adhere to proper ROM measurement guidelines. Consequently, the matter was remitted to the Workers' Compensation Board for further consideration.

Workers' CompensationSchedule Loss of UseMaximum Medical ImprovementRange of MotionAppellate DivisionThird DepartmentMedical EvidenceBoard ReviewRemittalOrthopedic Surgery
References
8
Case No. MON 0339411
Regular
Jul 21, 2008

Dionisio Jimenez vs. NUPAC APARTMENTS, STATE COMPENSATION INSURANCE FUND

This case involves a dispute over the proper method used to rate the applicant's permanent disability following a back and leg injury. The defendant contends the Agreed Medical Examiner improperly used the Range of Motion (ROM) method instead of the Diagnosis-Related Estimate (DRE) method per the AMA Guides. The Appeals Board rescinded the prior award and returned the case to the trial level for further development of the record. This development will address why the ROM method was used and clarify the appropriate rating methodology.

Workers' Compensation Appeals BoardDionisio JimenezNupac ApartmentsState Compensation Insurance FundMON 0339411Opinion and Decision After ReconsiderationFindings and AwardIndustrial InjuryBack InjuryRight Leg Injury
References
2
Case No. ADJ10489999
Regular
Feb 01, 2019

Sean Lawson vs. Zenith Insurance Company

This case involves a dispute over the permanent disability rating for applicant Sean Lawson's low back injury. The defendant, Zenith Insurance Company, argues that the Range of Motion (ROM) method used by the Qualified Medical Evaluator (QME) was inappropriate, and the Diagnosis-Related Estimates (DRE) method should have been applied as there was only one level of radiculopathy. The Workers' Compensation Appeals Board (WCAB) affirmed the WCJ's finding that the ROM method was appropriate based on the QME's expert opinion and the AMA Guides' provision for its use with multi-level involvement. However, one Commissioner dissented, believing the DRE method was mandated given the lack of evidence for multi-level radiculopathy.

WCABPetition for ReconsiderationPermanent DisabilityApportionmentNon-industrial factorsDiagnosis-Related Estimates (DRE) methodRange of Motion (ROM) methodQualified Medical Evaluator (QME)AMA GuidesMultilevel radiculopathy
References
1
Case No. ADJ9344211
Regular
Dec 01, 2017

Patricia Preston vs. Los Angeles Unified School District, SEDGWICK CLAIMS MANAGEMENT SERVICES

The applicant sought reconsideration of a workers' compensation award, challenging the permanent disability rating primarily based on the chosen medical evaluation method. The applicant argued the Range-of-Motion (ROM) method, favored by her treating physician, should have been used instead of the Diagnosis-Related Estimates (DRE) method employed by a Qualified Medical Evaluator (QME). Additionally, she contended that her vocational expert's opinion supported a finding of total permanent disability. The Board denied reconsideration, affirming the administrative law judge's decision, finding the QME's DRE rating supported by substantial evidence and the applicant's vocational evidence insufficient to prove total disability. A dissenting opinion argued that findings of multi-level spinal involvement supported the use of the ROM method for a potentially higher rating and questioned the QME's justification for choosing DRE.

Workers' Compensation Appeals BoardPatricia PrestonLos Angeles Unified School DistrictSedgwick Claims Management ServicesADJ9344211Permanent Disability RatingRange-of-Motion MethodDiagnosis-Related Estimates MethodApportionmentDr. Fenton
References
6
Case No. ADJ9733920
Regular
Feb 26, 2020

SYLVERIA VILLALOBOS vs. GIUMARRA VINEYARDS, ESIS

The Workers' Compensation Appeals Board affirmed the Administrative Law Judge's decision disallowing a photocopy lien claim. The Board found the lien claimant failed to prove they actually provided the billed "page capture/conversion and processing" services, as the records were provided on CD-ROM by the defendant. Furthermore, the defendant issued a timely and valid Explanation of Review (EOR) with a reduced payment, which the lien claimant did not object to within the statutory period. Consequently, the Board ruled the defendant was not liable for the denied portion of the lien.

Workers' Compensation Appeals BoardLien claimantReconsiderationFindings of Fact and OrderExplanation of ReviewSection 4903.8(d)Declaration of Custodian of RecordsCD-ROMInvoicePage capture/conversion
References
1
Case No. ADJ9376675
Regular
Oct 20, 2015

JESSICA FIELD vs. INGLEWOOD POLICE DEPARTMENT, ADMINSURE

The Workers' Compensation Appeals Board denied the defendant's petition for reconsideration. The defendant challenged the permanent disability rating, arguing the DRE method, rather than the ROM method, was improperly applied by the QME. The Board adopted the WCJ's report, which found the QME's reliance on the DRE method, specifically Category IV, was supported by substantial medical evidence and properly applied under the AMA Guides, Fifth Edition. The defendant's contention that the rating was invalid under *Blackledge* was also rejected, as the QME report met legal and regulatory requirements.

Workers' Compensation Appeals BoardPetition for ReconsiderationDENIEDINGLEWOOD POLICE DEPARTMENTADMINSUREPermanent DisabilityAMA Guides Fifth EditionDRE MethodLumbar Spine Category IVwhole person impairment
References
2
Case No. ADJ8181938; ADJ8702275
Regular
Apr 10, 2023

KAREN MILLER vs. STATE OF CALIFORNIA, VENTURA YOUTH CORRECTIONAL FACILITY, STATE COMPENSATION INSURANCE FUND, STATE CONTRACT SERVICES

The Workers' Compensation Appeals Board denied the defendant's petition for reconsideration. The defendant argued against the statutory 15% increase, the method of evaluating spine impairment, and the inclusion of a sleep disorder. The Board adopted the WCJ's report, finding no error in the application of the 15% increase or the evaluation of the spine impairment using the ROM method as deemed appropriate by the agreed medical examiner. Furthermore, the Board upheld the finding of an industrially caused sleep disorder, noting that formal sleep studies are not always required for diagnosis and that the physician's rating falls within the AMA Guides.

WCABPetition for ReconsiderationDeniedVentura Youth Correctional FacilityAdjudication NumbersOccupational Group 214Cervical SpineLumbar SpineBilateral ShouldersGastrointestinal System
References
1
Case No. ADJ277378 (OAK 0321116)
Regular
Jan 04, 2010

RANDALL MINVIELLE vs. COUNTY OF CONTRA COSTA / CONTRA COSTA FIRE

The Workers' Compensation Appeals Board denied reconsideration, affirming the finding that the applicant sustained industrial injury to his back on November 22, 2004, resulting in 31% permanent disability without apportionment. The employer sought to subtract a prior 1992 award of 27.5% permanent disability under Labor Code section 4664. However, the Board found that the defendant failed to prove "overlap" because the two injuries were rated using different standards (PDRS for the prior injury and AMA Guides/ROM method for the current injury). Since the permanent disability from both injuries could not be calculated under the same standard, apportionment was not permitted.

Workers' Compensation Appeals BoardRandall MinvielleCounty of Contra CostaContra Costa Firelegally uninsuredfirefighterindustrial injuryback injurypermanent disabilityapportionment
References
11
Case No. ADJ6820630
Regular
Mar 19, 2018

MARK COLLINS vs. ENTERTAINMENT PARTNERS, INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA

The WCAB dismissed the Defendant's Petition for Reconsideration because it was not filed from a final order. The Board granted the Defendant's Petition for Removal to rescind the WCJ's order vacating submission and appointing a new physician. The WCJ erred by refusing to accept the AME's rating based on the Diagnosis-Related Estimate (DRE) method, as physicians have discretion to use the most accurate method. However, the AME's own deposition testimony indicated that the Range of Motion (ROM) method, mandated by the WCJ, would yield a higher impairment rating. Therefore, the matter is returned to the trial level for the WCJ to obtain a permanent disability rating using the existing record and potentially consulting a DEU rater.

Workers' Compensation Appeals BoardPetition for ReconsiderationPetition for RemovalAgreed Medical Examiner (AME)Range of Motion (ROM) methodDiagnosis-Related Estimates (DRE) methodAmerican Medical Association's Guides (AMA Guides)Whole Person Impairment (WPI)cumulative traumaspinal injury
References
6
Case No. CV-23-1672
Regular Panel Decision
Apr 24, 2025

In the Matter of the Claim of Jozo Vujeva

Jozo Vujeva, a mechanic, sustained shoulder injuries in March 2021, leading to a workers' compensation claim. His physician assessed a 40% schedule loss of use (SLU) for the right arm and 30% for the left, while the carrier's consultant found a 34.5% SLU for the right arm and 27% for the left. A Workers' Compensation Law Judge (WCLJ) and subsequently the Workers' Compensation Board affirmed the carrier's consultant's findings, rejecting the claimant's physician's report due to non-compliance with 2018 guidelines regarding goniometer use and repeat ROM measurements. The Appellate Division affirmed the Board's decision, concluding that the Board was entitled to discount the claimant's physician's opinion due to methodological deficiencies and to credit the carrier's consultant's findings, which were supported by substantial evidence.

schedule loss of useshoulder injurymaximum medical improvementrange of motiongoniometer usageWorkers' Compensation Board decisionAppellate Division reviewmedical evidence admissibilityexpert medical opinionevidentiary support
References
11
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