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The industrial claim of Ayana Spencer stems from a 2019 incident at an Oakland Unified School District elementary school, when the mother of a third-grader (and, also, a former student) confronted her over her treatment of those children.

This parent was reportedly “known to be using drugs (crack and marijuana and alcohol)” and was familiar to Ms. Spencer from the time the older child began at the school in 2005.

Spencer called the police, who came and escorted the mother from the school. Ms. Spencer left work early, called Kaiser’s mental health facility and, thereafter, her own therapist, who took her off work. Defendant paid temporary disability benefits beginning May 4, 2019, through January 6, 2020, when Spencer returned to a modified position with the school district.

She had an earlier 2008 incident in which a custodian, disguised with wig and sunglasses and reportedly armed with a semi-automatic weapon, attacked her from behind and pistol-whipped her, causing lacerations and lasting psychological trauma diagnosed as post-traumatic stress disorder or PTSD.

Spencer missed relatively little time from work from this earlier incident, however, though she did continue in therapy and took prescription medications for a time. The parties engaged an agreed medical evaluator (AME), Dr. Richard Lieberman, who reported on November 10, 2009, that applicant’s injury had stabilized, with a GAF3 score of 60 or 15% permanent impairment, of which he apportioned 10% to non-industrial causes. The first workers’ compensation case resolved by a stipulated award of 27% permanent disability with a need for further medical treatment.

Dr. Lieberman reëxamined Ms. Spencer in 2016, concluding in his report of June 16, 2016, that she no longer showed signs of PTSD. The AME at this point did find a GAF score of 64 and recommended limiting further treatment.

In the current 2019 case, the parties have engaged a qualified medical evaluator (QME), Dr. Robbins. March 4, 2020, the QME found her maximally improved, with a GAF score of 65, plus additional impairment for sleep difficulties, amounting to 11% whole-person impairment, of which 75% stems from the 2019 injury and the rest from that in 2008.

The WCJ found that the impairment found by this QME did overlap the impairment in the 2008 injury, and thus did not affect different abilities to compete and earn. (Sanchez v. County of Los Angeles (2005) 70 Cal.Comp.Cases 1440 (appeals board en banc). The result was a finding of injury and need for treatment, but no permanent disability as the entirety of permanent disability was apportioned under Labor Code section 4664..

The apportionment was affirmed in the panel decision of Spencer v Oakland Unified School District –ADJ13057141 (May 2024).

The essence of applicant’s argument on reconsideration is that applicant’s disability to the psyche in 2008 does not overlap with the current disability to psyche in 2019, and thus defendant failed to prove apportionment.

The injury to psyche in both cases was post-traumatic stress disorder. Applicant’s disability was rated the exact same way, using the Global Assessment of Functioning (GAF). The diminished future earnings capacity modifier for both cases was 1.4. It is the same body part, same diagnosis, and same rating method in both cases. On these facts the two disabilities clearly overlap. (See, Kopping v. Workers’ Comp. Appeals Bd., (2006), 142 Cal. App. 4th 1099.)

“The WCJ was correct to apply apportionment under section 4664. … There may be cases where separate and independent disabilities occur to the same body part and the analysis of overlap is more intricate. The record here does not support such a finding.”