Sheryl Wilson worked for Kohls Department Store as a retail sales clerk, when she sustained an admitted industrial injury to her lumbar spine, left ankle, and in the form of Complex Regional Pain Syndrome (CRPS) of the left ankle on September 20, 2016.

She had two surgeries to the left ankle resulting in atrophy of the left calf and thigh, and loss of motion of the ankle and subtalar joints.\

She had a history of taking a multitude of medications prior to her industrial injury. Dr. Gupta noted refills of hydrocodone in 2008. And refilled hydrocodone again in 2011, and continued with hydrocodone prescriptions in 2014. She refilled hydrocodone in 2015. Finally, two months prior to her industrial injury, she was prescribed Norco.

She was evaluated by an AME, Mark Anderson, M.D.,who authored nine reports in evidence and was deposed twice. Anuj Gupta, M.D., was selected as a QME for comment upon causation of CRPS. She also obtained reporting from vocational expert P. Steve Ramirez, who authored two reports in evidence. The primary issue for trial was applicant’s level of permanent disability.

The WCJ found that applicant did not sustain a complete loss of future earnings capacity as a result of her industrial injury and awarded her permanent partial disability of 78% after apportionment.

After a review of a comprehensive Report of the WCJ on Reconsideration, which it incorporated by reference, the WCAB affirmed his detailed analysis of the law, and legislative intent in the panel decision of Wilson v Kohl’s Department Store.

The non-amenability to vocational rehabilitation must be due to industrial factors. (Contra Costa County v. Workers’ Comp. Appeals Bd., (Dahl) (2015) 240 Cal. App. 4th 746.) Many of the prescriptions that the AME believe were impacting applicant’s ability to rehabilitate were being prescribed long before applicant’s industrial injury.

After an extremely comprehensive review of the statutes and case law, the WCJ opined, and the WCAB adopted the review as the correct interpretation of law regarding DFEC rebuttal for dates of injury on or after January 1, 2013 is as follows:

1. Applicant cannot rebut the permanent partial disability schedule using a DFEC analysis. (§ 4660.1(a).)
2. Applicant may continue to rebut the schedule to show complete loss of earning capacity, and thus, she is permanently totally disabled in accordance with the fact. (§§ 4660.1(g); 4662(b).)
3. Applicant may continue to obtain vocational expert consultations in all cases and may continue to recover the costs of such evaluations where the procurement of the report is reasonable. (§ 5703(j).)

A complete reading of this decision, and the analysis of the review by the WCJ would serve as a very valuable reiteration of the law of how to determine factors of permanent disability in a complex medical case.