ADJ11078504 · March 9, 2026

The AME's explanation of apportionment for thoracic spine was sufficient to constitute substantial medical evidence supporting 30% industrial apportionment.

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

Exclusion of defendant's deposition transcripts was proper as they were hearsay and not used for impeachment; typographical error in opinion did not affect exclusion.

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.

Finding of injury to bilateral shoulders was consistent with practice and encompassed scapular winging diagnosis; issue was not raised at trial.

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.

Record did not need further development because applicant was working full time and FCE was not needed to determine employability.

From the decision · page 11I also did not find that the record needed further development on the issue of the applicant's employability. Applicant requested a functional capacity evaluation (FCE) and supplemental reporting from both the AME and applicant's vocational evaluator commenting on the FCE to clarify work restrictions, functional capacity, and employability. The orthopedic AME, Dr. Renbaum, opinioned, in response to two letters from applicant's counsel, that it appeared that he was being asked to complete an FCE regarding applicant's "employability issues." (Joint Exhibit 117, page 3.)

Applicant did not meet burden to rebut permanent disability rating with vocational evidence; applicant was working full time in modified capacity, so vocational expert's opinion was not substantial evidence.

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

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.

Provided apportionment determinations for cervical and thoracic spine; found thoracic spine condition partly industrial and partly nonindustrial; explained apportionment for thoracic spine as substantial medical evidence.

Explained apportionment for thoracic spine based on industrial injury and nonindustrial fall; supported substantial medical evidence for apportionment.

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

Provided psychiatric AME opinion considered in vocational evidence analysis.

From the decision · page 11Despite this history, applicant's vocational expert, Eugene Van de Bittner, opined that the applicant had a diminished labor market access of 97.36 to 100%, and had access to 0% of the jobs in the open labor market based on the reports of Drs. Shalom, Sussman, and Renbaum in his initial reporting. (Applicant's Exhibit 3, page 94.) He did not change his opinion when he prepared a supplemental report of February 23, 2024, even though he was aware that she was working full time when he prepared that report. As applicant was able to persistently seek out and obtain continued employment as a special education teacher, I did not find that his opinions that she had 97.36% to 100% diminished labor market access to be substantial evidence. Nor did I find it credible that she was restricted to a sheltered work environment given that she had been able to find jobs with multiple employers.

Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 621 (Appeals Board en banc)

Substantial medical evidence must be framed in terms of reasonable medical probability, not speculative, based on pertinent facts and adequate examination, with reasoning in support of conclusions.

Applied to evaluate the sufficiency of AME opinions for apportionment and disability rating.

Labor Code section 4660; Milpitas Unified Sch. Dist. v. Workers' Comp. Appeals Bd. (Guzman) (2010) 187 Cal.App.4th 808

Labor Code section 4660(b)(1) requires use of AMA Guides Fifth Edition for permanent disability rating, using Range of Motion method for multiple segments in the same spine region unless substantial evidence supports another method.

Applied to assess adequacy of AME's rating method for cervical spine impairment.

From the decision · page 5The opinions of orthopedic AME Dr. Renbaum are deficient with respect to rating and apportionment of cervical spine disability. Labor Code section 4660, subsection (b)(1) requires the use of the AMA Guides to the Evaluation of Permanent Impairment, Fifth Edition (AMA Guides) in assessing the nature of an injury or disfigurement for purposes of determining a percentage of permanent disability. (Lab. Code, § 4660(b)(1).) Chapter 15 of the AMA Guides requires the use of the Range of Motion (ROM) method instead of a Diagnosis-Related Estimate (DRE) in cases involving more than one segment within the same region of the spine. (AMA Guides, § 15.2, pp. 379-381.) Because applicant had a prior surgery to a separate segment of her cervical spine, the ROM method should have been used to assess whole person impairment (WPI) of the cervical spine, unless the physician provided substantial medical evidence demonstrating how and why a more accurate rating required the use of another method set forth in the AMA Guides, as discussed

Hikida v. Workers' Comp. Appeals Bd. (2017) 12 Cal.App.5th 1249

Disability resulting from industrial medical treatment is not subject to apportionment.

Considered in evaluating apportionment of thoracic spine disability related to industrial surgery.

From the decision · page 6The decision is also deficient with respect to apportionment of thoracic spine disability. Because the AME clearly opined that applicant's thoracic condition was a result of an industrially provided surgery to the cervical spine, the F&A should have included a discussion of the applicability of Hikida v. Workers' Comp. Appeals Bd., (2017) 12 Cal.App.5th 1249 [82 Cal.Comp.Cases 679]. In Hikida, the Court of Appeal held that disability resulting from industrial medical treatment is not subject to apportionment. (Hikida, supra, 12 Cal.App.5th 1249 at 1252 [82 Cal.Comp.Cases 679 at 681].) Based on the holding in Hikida, it appears that apportionment of permanent disability of the thoracic spine should be precluded in this case.

Applicant's ongoing full-time employment as a special education teacher

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