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  • Writer's pictureGregory Grinberg

WCAB Rejects Psyche-Based Pain Add-on (and other claims)

Updated: Oct 5, 2022

Who is ready for a blast from the past? Workers’ comp has aged your humble blogger a lot, so while the past might not seem too long ago in the real world, cases from pre-2013 seem like ages ago to your humble blogger.

That being said, who remembers the 15% increase or decrease in permanent disability for dates of injury post 1/1/2005 to pre-1/1/2013? (Labor Code section 4658) Back in the day, if an employer with at least 50 employees failed to make an offer of regular, modified, or alternative work on the appropriate form, the permanent disability was increased by 15% for the periods after the 60 days afforded the employer to make the offer.

There were TONS of cases about the application of this rule, often with ridiculous application. Making an offer in a letter was sometimes insufficient; the burden of proving the number of employees was on the employer; all sorts of craziness too numerous to fully recount. Fortunately, SB-863 did away with this: the 15% increase or decrease in PD was replaced with entitlement to the voucher, and either a no-lost-time or actual return to regular work negated the need to make an offer.

So let’s take a look at the panel decision in the case of Morales v. AO-Cal Poly Corp. There, applicant claimed the right to a 15% increase in PD from her 2008 injury. Defendant contended that there was no basis for the increase because defendant was under the “reasonable, though incorrect belief that applicant had voluntarily left her employment.” Although the WCJ ruled in favor of the defense, the WCAB reversed, reasoning that the actual offer of work is a prerequisite to consideration of employee-termination of employment – whether actual or erroneously perceived.

Aside from the 4658(d) discussion, the Morales panel decision provides a lot of great guidance on other issues as well. Citing Kite for the proposal that impairments can be added rather than combined “when substantial medical evidence supported the notion that the two impairments had a synergistic effect where, in effect, the resultant impairment was more than the sum of the two impairments”, adding impairments was rejected in the Morales case when the psyche QME recommended adding impairment to the orthopedic rating – “here, one specialist is suggesting that we add impairments found by her in her own specialty to impairments in a completely different body system found by a different specialist.”

Finally, the WCAB rejected the psyche QME’s 3% pain add-on, citing Labor Code section 4660’s directive that the AMA Guides (and the 3% pain add-on found therein) are to be used in rating “physical injury or disfigurement.” According, Morales held that the AMA Guides 5th Edition cannot be used to add impairment based on pain to a psychiatric injury, confining the finding of psychiatric impairment to the GAF score system.

If you get a chance, read the Morales panel decision (feel free to shoot me an e-mail for a copy). It’s concise and well-reasoned and addresses some of the more reaching arguments being cooked up.

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