ADJ10175606 · August 16, 2022

The WCAB found that the apportionment opinion of Dr. Wolfson was not substantial medical evidence because it lacked explanation of how pre-existing pathology contributed to permanent impairment, thus the applicant was entitled to an unapportioned award. The WCAB affirmed the finding of permanent total disability based on vocational evidence and applicant's credible testimony of unsuccessful return to work attempts.

From the decision · page 1Defendant L. Brand, Inc./Victoria Secret (Defendant) seeks reconsideration of a workers' compensation administrative law judge's (WCJ) Findings, Award and Orders of February 4, 2022, wherein it was found that, while employed as a retail manager during a cumulative period ending July 15, 2013, applicant sustained industrial injury to feet, right ankle, low back, right hip and right knee causing permanent total (100%) disability and the need for further medical treatment.

Dr. Wolfson's apportionment opinion lacked substantial medical evidence explaining how pre-existing degenerative back pathology contributed to permanent impairment.

Favours Applicant prevailed

This led the WCAB to reject apportionment and award permanent total disability without apportionment.

From the decision · page 3While Dr. Wolfson explained that MRIs revealed pre-existing back pathology, he did not explain how that pathology contributed to applicant's permanent impairment. Although Dr. Wofson did explain at his deposition that "the findings that were exhibited on the MRIs that basically showed foraminal narrowing, annular tears, disc protrusion, that conceivably accounted for some of the pain she had." (June 17, 2021 deposition at p. 28 [emphasis added].) However, in order to constitute substantial medical evidence on which a finding of apportionment can be based, "a medical opinion must be predicated on reasonable medical probability." (E.L. Yeager Construction v. Workers' Comp. Appeals Bd. (Gatten) (2006) 145 Cal.App.4th 922, 928 [71 Cal.Comp.Cases 1687].) Since Dr. Wolfson's apportionment determination did not constitute substantial medical evidence, applicant is entitled to an unapportioned award.

Applicant's credible testimony and vocational evidence showed unsuccessful attempts to return to work despite accommodations and retraining efforts.

Favours Applicant prevailed

Supported the finding of permanent total disability and need for further medical treatment.

Medical evidence showed injury to right hip and right knee due to altered gait from accepted right foot and ankle injury.

Favours Applicant prevailed

Supported finding of industrial injury to these body parts and need for medical treatment.

From the decision · page 4With regard to the finding of industrial injury to the right knee and right hip, Dr. Wolfson opined that applicant suffered "severe pain" in the right hip and right knee as a result of altered gait from her accepted right foot and ankle injury. (October 16, 2019 report at p. 2.) In his June 4, 2019 report, Dr. Wolfson wrote that applicant is in "[c]onstant severe pain requiring lon-term opiates." Thus applicant sustained injury to her right knee and right hip in that she requires medical treatment to those body parts as a result of her industrial condition. (Lab. Code, § 3208.1, subd. (b).)

Dr. Wolfson opined apportionment of 5-15% to degenerative back conditions but did not provide substantial medical evidence to support apportionment. He also opined that applicant suffered severe pain in right hip and knee due to altered gait from industrial injury and that applicant is essentially permanently totally disabled.

The WCAB found Dr. Wolfson's apportionment opinion lacked substantial medical evidence and did not explain how pre-existing pathology contributed to permanent impairment, thus rejecting his apportionment analysis. The WCAB relied on vocational evidence over Dr. Wolfson's WPI rating for permanent total disability.

From the decision · page 2Turning to the merits, with regard to the issue of apportionment of permanent disability, Dr. Wolfson wrote in his initial report:

Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 617 [Appeals Bd. en banc]

A medical report is not substantial evidence unless it sets forth the reasoning behind the physician's opinion, not merely conclusions; apportionment opinions must disclose familiarity with apportionment concepts and detail the nature of apportionable disability (Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 617 [Appeals Bd. en banc])

The WCAB applied this standard to reject Dr. Wolfson's apportionment opinion for lack of substantial medical evidence explaining how pre-existing pathology contributed to permanent impairment.

From the decision · page 3While it is now well established that one may properly apportion to pathology and asymptomatic prior conditions (see, e.g. Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 617 [Appeals Bd. en banc]), an apportionment opinion must still constitute substantial medical evidence. As we explained in Escobedo:

Applicant's credible and unrebutted testimony of unsuccessful attempts to return to work with accommodations and vocational testing by Scott Simon supporting permanent total disability

Medical evidence of injury to right hip and right knee due to altered gait from accepted right foot and ankle injury

From the decision · page 4With regard to the finding of industrial injury to the right knee and right hip, Dr. Wolfson opined that applicant suffered "severe pain" in the right hip and right knee as a result of altered gait from her accepted right foot and ankle injury. (October 16, 2019 report at p. 2.) In his June 4, 2019 report, Dr. Wolfson wrote that applicant is in "[c]onstant severe pain requiring lon-term opiates." Thus applicant sustained injury to her right knee and right hip in that she requires medical treatment to those body parts as a result of her industrial condition. (Lab. Code, § 3208.1, subd. (b).)