Sacramento, CA - Nohemi Taina suffered a significant injury to her neck and shoulders on 10/4/2011. As a compensable consequence of this injury, she developed psychiatric sequela.
The neck and shoulder injuries were assessed by an AME, David Pang, MD, who rated those disabilities at 48%. There is no dispute at present about the accuracy of this assessment.
The psychiatric consequences were evaluated by AME Joshua Kirz MD, who rated them at 39%, and this assessment is also agreed to have been accurate. Dr. Kirtz reported that applicant's physical and psychiatric impairments do not overlap and that her "physical and psychiatric impairments appear additive" in their effect on permanent disability.
The sole disagreement was whether the overall level of permanent disability was best represented by combining the two values using the Combined Values Chart, which would produce 68% PD, or adding the two, which would produce 87% PD.
The WCJ found that adding the two disabilities was appropriate and awarded 87% Permanent Disability. The Defendant Petitioned for Reconsideration, which was denied in the panel decision of Taina v County of Santa Clara.
"To assure accuracy in the calculation of WPI, a physician may, with proper explanation, deviate from the percentages contained in the applicable chapter of the AMA Guides in order to better express the injured worker's level of WPI in light of the physician's skill, knowledge, and experience, as well as considerations unique to the injury and information derived from extrinsic resources. (Almaraz v.Environmental Recovery Service/Guzman v. Milpitas Unified School District (2009) 74 Cal.Comp.Cases 1084 (Appeals Board en banc)."
"Similarly, in finding permanent disability the WCAB applies its expertise to determine an accurate rating based upon the entirety of the record."
In determining overall permanent disability, it has been recognized that the rating schedules provide only a "guide," and that the final rating should reflect "the entire picture of disability and possibility of employability."
"The disability values of multiple impairments may be added instead of combined using the CVC if that provides an accurate rating, particularly when there is no overlap, and when the synergistic effect of the multiple disabilities support that method of combination."
The WCJ' s decision to add the permanent disability values of applicant's orthopedic and psychiatric conditions is based upon the reporting of the AMEs and is supported by the AMA Guides, as shown by the discussion of the role of the trier of fact that is provided in Chapters 14 and 1.5 on pages 9 and I0 of the AMA Guides, as follows:
"A scientific formula has not been established t o indicate the best way to combine multiple impairments. Given the diversity of impairments and great variability in herein in combining multiple impairments, it is difficult to establish a formula that accounts for all situations. A combination of some impairments could decrease overall functioning more than suggested by just adding the impairment ratings for the separate impairments (eg blindness and inability to use both hands). When other multiple impairments are combined, a less than additive approach may be more appropriate . . ." Read More...