ADJ10906751 · January 13, 2025

The defendant did not meet its burden to establish apportionment to nonindustrial factors as the PQME's apportionment opinions were conclusory and lacked substantial evidence.

From the decision · page 39.) The WCJ's Opinion on Decision observed that the apportionment opinions described in the medical-legal reporting of Dr. Galloni were couched in terms of possibility, rather than reasonable medical probability, and in any event, lacked an explanation of how and why the identified factors of apportionment were causing current disability. (Opinion on Decision, at pp.17-18.) Defendant's Petition contends that even if the physician's apportionment analysis is framed in words of conjecture, the report "must be construed in the proper context as statements of medical probability." (Petition, at p. 13:7.) However, we agree with the WCJ that to the extent that Dr. Galloni's apportionment opinions are merely conclusory and do not substantively discuss the medical basis for the physician's conclusions, they do not constitute substantial evidence. Accordingly, defendant has not met its burden of establishing apportionment to nonindustrial factors as a result. (Report, at p. 19; see also Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 620 (Appeals Board en banc) (Escobedo) ["even where a medical report "addresses" the issue of causation of the permanent disability and makes an `apportionment determination' by finding

The PQME found no cumulative trauma injury and the defendant's argument to the contrary was denied as untimely and unsupported.

From the decision · page 20In terms of his finding no CT injury, his opinions also constitute substantial evidence. Preliminarily, however, it must be stated that the defendant had denied injury AOE/COE for the plead CT claim. They now, for the first time on appeal, seek to argue that one should be found by the PQME. The argument should be denied on this ground alone. Aside from that, however, the PQME is clear in finding no CT. Not only do his reports support such a conclusion, so does his testimony. During cross-examination, he testified that it was opinion that here was no CT prior to the specific injury.

The parties stipulated to the EDD payments and the EDD was found entitled to reimbursement based on the medical evidence and stipulations.

The WCJ's report and the PQME's opinions of Dr. Galloni were found to constitute substantial evidence, while the prior PQME Dr. Andrade's opinions were not substantial evidence.

From the decision · page 19right lower extremity, saw her condition deteriorate throughout the years. The applicant's testimony was credible and unrebutted in this regard. As the years had passed, the applicant became reliant upon her cane at almost all times "practically 24/7" as noted by the PQME. As early as August 18, 2021, the PQME opines that should treatment not be provided to the applicant, she would deteriorate and her disability would worsen. Such is the case. The conclusions that do not constitute substantial evidence are those of Dr. Andrade, not those of Dr. Galloni.

The PQME Dr. Galloni's report was found to constitute substantial evidence supporting the findings.

Favours Applicant prevailed

The Appeals Board adopted the WCJ's report relying on Dr. Galloni's opinions, rejecting prior PQME Dr. Andrade's opinions.

From the decision · page 19right lower extremity, saw her condition deteriorate throughout the years. The applicant's testimony was credible and unrebutted in this regard. As the years had passed, the applicant became reliant upon her cane at almost all times "practically 24/7" as noted by the PQME. As early as August 18, 2021, the PQME opines that should treatment not be provided to the applicant, she would deteriorate and her disability would worsen. Such is the case. The conclusions that do not constitute substantial evidence are those of Dr. Andrade, not those of Dr. Galloni.

The defendant did not meet its burden to establish apportionment to nonindustrial factors.

Favours Applicant prevailed

The PQME's apportionment opinions were conclusory and lacked substantial evidence, leading to denial of apportionment.

From the decision · page 39.) The WCJ's Opinion on Decision observed that the apportionment opinions described in the medical-legal reporting of Dr. Galloni were couched in terms of possibility, rather than reasonable medical probability, and in any event, lacked an explanation of how and why the identified factors of apportionment were causing current disability. (Opinion on Decision, at pp.17-18.) Defendant's Petition contends that even if the physician's apportionment analysis is framed in words of conjecture, the report "must be construed in the proper context as statements of medical probability." (Petition, at p. 13:7.) However, we agree with the WCJ that to the extent that Dr. Galloni's apportionment opinions are merely conclusory and do not substantively discuss the medical basis for the physician's conclusions, they do not constitute substantial evidence. Accordingly, defendant has not met its burden of establishing apportionment to nonindustrial factors as a result. (Report, at p. 19; see also Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 620 (Appeals Board en banc) (Escobedo) ["even where a medical report "addresses" the issue of causation of the permanent disability and makes an `apportionment determination' by finding

The PQME found no cumulative trauma injury and the defendant's argument was denied as untimely and unsupported.

Favours Applicant prevailed

The PQME's clear finding of no CT injury was upheld as substantial evidence.

From the decision · page 20In terms of his finding no CT injury, his opinions also constitute substantial evidence. Preliminarily, however, it must be stated that the defendant had denied injury AOE/COE for the plead CT claim. They now, for the first time on appeal, seek to argue that one should be found by the PQME. The argument should be denied on this ground alone. Aside from that, however, the PQME is clear in finding no CT. Not only do his reports support such a conclusion, so does his testimony. During cross-examination, he testified that it was opinion that here was no CT prior to the specific injury.

The parties stipulated to the EDD payments and the EDD was entitled to reimbursement.

Favours Applicant prevailed

The stipulations and medical evidence supported reimbursement to the EDD.

Found no cumulative trauma injury, concluded applicant's disability arose from a specific injury and its consequences, and provided apportionment opinions that were conclusory and lacked substantial evidence.

The WCJ and Appeals Board relied on Dr. Galloni's report as substantial evidence, rejecting prior PQME Dr. Andrade's opinions.

From the decision · page 19right lower extremity, saw her condition deteriorate throughout the years. The applicant's testimony was credible and unrebutted in this regard. As the years had passed, the applicant became reliant upon her cane at almost all times "practically 24/7" as noted by the PQME. As early as August 18, 2021, the PQME opines that should treatment not be provided to the applicant, she would deteriorate and her disability would worsen. Such is the case. The conclusions that do not constitute substantial evidence are those of Dr. Andrade, not those of Dr. Galloni.

Provided opinions that were found not to constitute substantial evidence, including no cumulative trauma injury and apportionment.

The WCJ and Appeals Board found Dr. Andrade's opinions conclusory and not substantial evidence.

From the decision · page 19right lower extremity, saw her condition deteriorate throughout the years. The applicant's testimony was credible and unrebutted in this regard. As the years had passed, the applicant became reliant upon her cane at almost all times "practically 24/7" as noted by the PQME. As early as August 18, 2021, the PQME opines that should treatment not be provided to the applicant, she would deteriorate and her disability would worsen. Such is the case. The conclusions that do not constitute substantial evidence are those of Dr. Andrade, not those of Dr. Galloni.

Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604

A medical report must be framed in terms of reasonable medical probability and not be speculative to constitute substantial evidence for apportionment.

Applied to reject conclusory apportionment opinions lacking explanation.

From the decision · page 39.) The WCJ's Opinion on Decision observed that the apportionment opinions described in the medical-legal reporting of Dr. Galloni were couched in terms of possibility, rather than reasonable medical probability, and in any event, lacked an explanation of how and why the identified factors of apportionment were causing current disability. (Opinion on Decision, at pp.17-18.) Defendant's Petition contends that even if the physician's apportionment analysis is framed in words of conjecture, the report "must be construed in the proper context as statements of medical probability." (Petition, at p. 13:7.) However, we agree with the WCJ that to the extent that Dr. Galloni's apportionment opinions are merely conclusory and do not substantively discuss the medical basis for the physician's conclusions, they do not constitute substantial evidence. Accordingly, defendant has not met its burden of establishing apportionment to nonindustrial factors as a result. (Report, at p. 19; see also Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 620 (Appeals Board en banc) (Escobedo) ["even where a medical report "addresses" the issue of causation of the permanent disability and makes an `apportionment determination' by finding

Labor Code section 5909

The Appeals Board must act on a petition for reconsideration within 60 days of transmission of the case to the Appeals Board.

Applied to procedural posture of petition for reconsideration.

From the decision · page 1Former Labor Code1 section 5909 provided that a petition for reconsideration was deemed denied unless the Appeals Board acted on the petition within 60 days from the date of filing. (Lab. Code, § 5909.) Effective July 2, 2024, section 5909 was amended to state in relevant part that:

Parties stipulated to periods and amounts of temporary and permanent disability indemnity and EDD benefits

From the decision · page 3In addition to the WCJ's comprehensive and well-written report, we observe the following. Defendant contends the WCJ erred in awarding reimbursement to the Employment Development Department (EDD) pursuant to a lien filed for state disability benefits paid to the applicant during a period of temporary disability. (Petition, at p. 15:18.) Defendant acknowledges the EDD filed a lien but asserts that it is inappropriate for the WCJ to adjudicate the lien because the EDD did not participate in trial or offer its lien at trial. However, as the WCJ's Report observes, the parties stipulated to the periods and amounts of temporary and permanent disability indemnity paid by defendant and to the periods and amounts of benefits paid by the EDD. (Report, at p. 22; Minutes of Hearing and Order of Consolidation, dated March 28, 2024, at p.

Applicant's credible and unrebutted testimony about worsening condition and reliance on cane

From the decision · page 19right lower extremity, saw her condition deteriorate throughout the years. The applicant's testimony was credible and unrebutted in this regard. As the years had passed, the applicant became reliant upon her cane at almost all times "practically 24/7" as noted by the PQME. As early as August 18, 2021, the PQME opines that should treatment not be provided to the applicant, she would deteriorate and her disability would worsen. Such is the case. The conclusions that do not constitute substantial evidence are those of Dr. Andrade, not those of Dr. Galloni.