Ortega vs. Building Technologies, Inc – WCAB Panel Decision
W.C.A.B. No. ADJ4361477 (SBR 0336586)—WCAB Panel: Commissioners Zalewski, Sweeney, Deputy Commissioner Dietrich
In this non-binding panel decision filed 6/30/15, the WCAB awarded 56% WPI (53% WPI for visual system impairment, plus 3% WPI for pain related add-on), adjusting to 70% PD:
12.03.00.00 – 56 – 62 – 380H – 68 – 70%
The 53% WPI (for injury to the right eye) included consideration of the effects of a subsequent nonindustrial injury to the left eye, and far exceeded impairment that would be assessed for complete loss of vision of one eye. In this one opinion, the WCAB created new issues in evaluating Permanent Disability in two areas:
The WCAB provided an offering of a “Wilkinson” apportionment, contrary to LC 4663 and 4664, and the Appellate Court’s review of Benson, by including the effects of a subsequent nonindustrial loss of vision of the left eye in the evaluation of the industrially injured right eye.
Chapter 12 of the AMA Guides:
Chapter 12 and the rating of the Visual System when both visual acuity and visual field loss is present, is quite complex. The QME and WCAB failed to consider the overlapping nature of visual acuity and visual field function. In failing to do so, the WPI that was awarded for an injury that was limited to the right eye far exceeds the impairment that would be assessed for complete loss of vision of one eye.
The WCAB noted a “significant injury on October 21, 2004” when a worker sustained a puncture to his “right eye”.
The WCAB confirmed that the industrial injury was limited to the right eye.
The WCAB further noted:
“On the date of injury, applicant’s vision in his left eye was measured as 20/20.”
Unfortunately, but unrelated to the industrial injury:
…applicant subsequently sustained non-industrial injury to the left eye due to both glaucoma and a cataract. This non-industrial injury occurred prior to applicant becoming permanent and stationary in the right eye. When applicant was rated for permanent disability, applicant’s left eye vision was correctable to 20/50.
The WCAB worked through the issue of apportionment and the QME’s efforts to address the subsequent nonindustrial injury by stating:
The QME’s apportionment analysis did not constitute substantial medical evidence…The QME created fictional measurements as if the left eye still had 20/20 vision, as measured on the date of injury.
In effect, the WCAB determined that they would be more skilled at evaluating loss of visual system function than the QME.
The WCAB then created its own hybrid method of assessing industrially related vision loss by using left eye measurements of 20/20 for monocular vision, but also using the current binocular measurements for visual acuity and visual field, each of which reflected the subsequent nonindustrial loss of left eye vision.
Nothing in the record indicated that binocular vision was less than 20/20 following the industrial injury to the right eye, until the “subsequent” nonindustrial worsening of the left eye.
The WCAB discussed apportionment (bold added):
Unlike an arm or a leg, eyesight is unique because the eyes are inherently intertwined and work together as one system. (AMA Guides at p. 277.) The AMA Guides heavily skews impairment of the visual system to the measurement of binocular vision… Due to this unique characteristic, the logic of Wilkinson should apply when determining causation of permanent disability due to successive injury to the eyes. Thus, to apportion disability where successive industrial and non-industrial injuries combine to cause impairment to binocular vision, the evaluator must 1) determine the disability of the vision system as a whole, 2) determine what, if any, disability resulted from the non-industrial injury alone, and then 3) subtract the non-industrial disability from the disability of the whole vision system. (AMA Guides at p. 12.) In determining apportionment to binocular vision, the evaluator must specifically determine whether applicant would have binocular vision impairment but for the industrial injury. In this case, that answer is “no”.
The left eye worsened over time due to non-industrial conditions. The worsening of applicant’s left eye decreased applicant’s total binocular vision scores, which, in turn, increased applicant’s disability. Although applicant’s vision in the non-industrial left eye worsened over time, applicant’s left eye condition would not have resulted in permanent impairment of applicant’s binocular vision without the near total loss of vision to the right. The two eyes are intertwined and work together. The binocular scores are based on the left eye solely because the right eye is severely injured. Thus, the binocular impairment from both eyes is industrial.
There was specific reference to Wilkinson, as discussed in the Benson en banc decision.
“We disapproved of the Wilkinson doctrine in Benson, but noted that in certain cases Wilkinson is still valid.”
However, the First District Court of Appeal also reviewed Benson, subsequent to the WCAB en banc decision, and observed (bold added):
Benson analogizes to Brodie and maintains that neither the plain language of the new apportionment scheme, nor its legislative history, suggests that the Legislature sought to abrogate the 30-year-old Wilkinson decision. We disagree and conclude that the plain language of the new statutory scheme requires apportionment to each cause of a permanent disability, including each distinct industrial injury.
The clear change in the statutory language indicates an intent to invalidate Wilkinson…
We hold that the Wilkinson doctrine is inconsistent with the apportionment reforms enacted by Senate Bill No. 899. We agree with the Board that a system of apportionment based on causation requires that each distinct industrial injury be separately compensated based on its individual contribution to a permanent disability. We also agree that there may be limited circumstances, not present here, when the evaluating physician cannot parcel out, with reasonable medical probability, the approximate percentages to which each distinct industrial injury causally contributed to the employee’s overall permanent disability. In such limited circumstances, when the employer has failed to meet its burden of proof, a combined award of permanent disability may still be justified…
B&B believes that the reference to the WCAB’s consideration of “limited circumstances” is not an endorsement of the use of “Wilkinson”, but reference to the fact the the employer has the burden of proof regarding apportionment. Thus, the WCAB erred by providing an offering of a Wilkinson apportionment (contrary to LC 4663 and 4664) by including the effects of a subsequent nonindustrial injury of the left eye.
Rating visual impairment – Chapter 12 of the Guides:
Chapter 12 of the AMA Guides, which addresses evaluation of the visual system, is arguably the most technical, and most difficult to read chapter in the Guides. Section 12.3, Impairment of the Visual Field, beginning on page 287, is especially challenging. However, it is consistently expressed within Chapter 12 that impairment for the loss of one eye would provide a maximum of 29% WPI.
Table 12-2 page 284, Impairment of Visual Acuity
Total blindness; no light perception correlates to a Visual Acuity Score of 0
Table 12-4 page 285 VAI (Visual Acuity Impairment)
One eye 20/200 or less (legal blindness) = Class 2 – 10% – 29% WPI
Table 12-5 page 289, Impairment of Visual Field
Total blindness; no visual fields correlates to a Visual Field Score of 0
12-7 page 290 VFI (Visual Field Impairment)
One eye lost – Class 2 – 10% – 29% WPI
Table 12-10 page 298 VSI (Visual System Impairment)
One eye lost = Class 2 – 10% – 29% WPI
This correlates well to the “old schedules”, dating back to at least 1978, which provided 25% standard for complete loss of sight in one eye.
The WCAB referenced incomplete instructions from Chapter 12 for evaluating the Visual System:
In the case of Ortega, the QME, and subsequently the WCAB, reviewed incomplete instructions in the Guides with respect to consideration of overlapping elements of Visual Acuity and Visual Field.
The WCAB, using current binocular scores that consider the subsequent nonindustrial left eye injury, rated “applicant’s binocular acuity score is 80. His binocular field score is 70”.
In the attempt to allow some consideration of the nonindustrial nature of the left eye impairment…
we must calculate disability assigning a 20/20 vision score, or 100, to applicant’s monocular vision in the left eye only. We will assign the values as determined by the QME for applicant’s right eye and binocular vision, both of which are industrially injured.
Using the values, including the reduced binocular vision, they correctly determined Function Acuity Score (FAS) of 73; Functional Field Score (FFS) of 65
The WCAB then wrote: “Functional Vision Score (FVS) Calculation per chapter 12.4a.1, p. 296 of AMA Guides…(FAS 73 x FFS 65) / 100 = FVS of 47 = 53% whole person impairment (WPI)”
Although the WCAB referenced section 12.4a.1, page 296, which includes Basic Rule, they did not indicate review 12.4a.2, Additional Rules, or 12.4a3. These sections/ rules discuss the overlap between loss of visual acuity and loss of visual fields (scotomata)
Using the basic formula, central scotomata would be counted twice: once through their effect on visual acuity and once through their effect on the central field. Therefore, an additional rule is needed.
Specifically, Rule 3 states: “If visual acuity is reduced, some central visual field losses will not be counted.”
Thus, the Guides make clear that we do not provide WPI for total blindness in the same eye twice, as could occur if overlap between visual acuity and visual field function was not considered.
The WCAB did not properly convert VSI to WPI:
From the Footnote to Table 12-10, page 298: “VSI < 50%, WPI = VSI. If VSI is > 50%, WPI is adjusted based on the formula WPI = 50 + 0.7 x VSI – 50)”
In this case, the WCAB use of both visual acuity and visual field deficits, and VSI of 53% would result in 52% WPI. While this might be a minimal adjustment, in this case, 52% WPI + 3% WPI for pain would rate: 12.03.00.00 – 55 – 61 – 380H – 67 – 69%, less than life pension value.
Chapter 12 of the Guides, and the rating of the Visual System when both visual acuity and visual field loss is present, is quite complex. In this case, neither the QME nor the WCAB properly considered the overlapping nature of visual acuity and visual field function.
All significant determinations in this case thus cry out for reconsideration.
Tim Mussack is a Senior AMA Analysis & Rating Specialist. Mr. Mussack has been in the workers’ compensation industry since 1988. His background includes training and auditing of claims handling in over 30 jurisdictions. Tim has been an instructor of Permanent Disability Rating since 1991. You can reach Tim at (916) 569-0790 or via email at firstname.lastname@example.org.
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