What the panel treated as outcome-determinative, and which side it favoured.
Applicant was working full time as a special education teacher in a modified capacity at time of trial.
Favours Defendant prevailed
This undermined vocational expert's opinion of total disability and supported denial of vocational rebuttal to permanent disability rating.
From the decision · page 10Discussion
1. Applicant did not rebut the level of disability through vocational evidence.
Applicant did not meet her burden of proof in rebutting the permanent disability rating of
the AMEs in this case through vocational evidence. I found that the reporting of applicant's expert,
Eugene Van de Bittener, was not substantial evidence.
At the time of trial, the applicant was working full time as a teacher in a modified capacity.
(Summary of Evidence, 13:3-6.) The vocational evidence shows that the applicant consistently
remained employed by a variety of employers in her chosen profession as a special education
teacher. Following her employment with defendant, applicant worked as a special education
teacher for St Vincent's School for Boys from June, 2013 to November 2015, and then for Petaluma
City Schools from November 2015 to November 30, 2018. (Applicant's exhibit 3, page 54.)
Following her 2017 surgery, she worked part time as a substitute special education teacher for San
Rafael City Schools from October 2020 to June 6, 2021, then from January, 2021 to June 6, 2021
as a guest support teach/aide for Ross Valley Schools, and then for the summer session she worked
from June 14 to July 9, 2021. (Id. at page 70.) She also worked as a part time special education
teacher in a long time substitute position, and then from August 2022 to June 2023 she worked as
AME Joel Renbaum provided detailed explanation for apportionment of thoracic spine disability as partly industrial and partly nonindustrial.
Favours Defendant prevailed
Supported substantial medical evidence for apportionment determination by WCJ and WCAB.
From the decision · page 112. Substantial medical evidence supports my apportionment determination.
All three of the AMEs provided apportionment determinations in their reporting. Petitioner
appears to be only challenging my finding that 30% of the applicant's thoracic spine impairment
was due to the industrial injury. In his August 12, 2019 report, Dr. Renbaum stated that the
applicant's thoracic spine began after a nonindustrial fall. (Joint Exhibit 103.) He reiterated that
the pain began after the nonindustrial trip and fall in a subsequent report. (Joint Exhibit 106.,)
However, in a later report following the review of an MRI he opined that as the degeneration in
Applicant did not request finding of specific diagnoses at trial and the WCJ's finding of injury to bilateral shoulders encompassed scapular winging diagnosis.
Favours Defendant prevailed
Supported denial of reconsideration on issue of specific diagnosis finding.
From the decision · page 123. Applicant's request for a finding of injury in the form of specific diagnosis was not
raised as a trial issue.
The parties agreed at the time of trial that one of the issues was injury to parts of body, with
applicant claiming injury to the back, upper extremities and hands. I found that the applicant did
sustain injury to the shoulders, based on the diagnosis of scapular winging, but did not meet her
burden of proof for injury to the back, upper extremities and hands. Applicant is contending that I
should have made a finding of the various diagnosis made by the AME involving the scapular
winging, instead of a finding of injury to the bilateral shoulders. This issue was not raised at the
time of trial. In addition, my finding of injury to the bilateral shoulders encompassed the pathology
identified by the AME.
Exclusion of defendant's deposition transcripts was proper as they were hearsay and not used for impeachment.
Favours Defendant prevailed
Supported denial of reconsideration on exclusion of exhibits issue.
From the decision · page 12My finding of injury to specific body parts, rather than diagnosis, is also
consistent with the practice of finding injury to body parts rather than making a finding on a
specific diagnosis.
4. The Findings and Award properly excluded two of defendant's proffered exhibits.
At the time of trial, transcripts of the applicant's deposition were marked for identification.
As they were not used for impeachment or attempted impeachment of the applicant, I did exclude
them from evidence as impermissible hearsay. I did have a typographical error in my opinion when
identifying the exhibits, however my Findings and Order correctly identified the deposition
transcripts as Exhibit D and Exhibit E, as marked at the time of trial and as identified in the
electronic file management system.