ADJ11533485 · January 20, 2026

The Appeals Board found that the applicant's current permanent disability rating was a progression of a prior rated impairment using the same AMA Guides chart, entitling defendant to apportionment under section 4664(b). The permanent disability was reduced to 2% after apportionment.

From the decision · page 13Applicant's current permanent disability rates as follows: 15.03.01.00 - 8 - [1.4]11 - 491H - 14 = 14% Applicant's disability rating does not require the assistance of a DEU rater in this case. (See Blackledge v. Bank of America (2010), 75 Cal. Comp. Cases 613, 624-625 (Appeals Board en banc).) After apportionment under section 4664, applicant's permanent disability award in this case is 2% (14% - 12%). Accordingly, as our Decision After Reconsideration we will rescind the WCJ's May 14, 2021 F&A and issue a new F&A, which affirms the WCJ's findings as to temporary disability, and finds that applicant's injury caused 2% permanent disability after apportionment. For the foregoing reasons, IT IS ORDERED as the Decision After Reconsideration of the Workers' Compensation Appeals Board that the Findings of Fact, Award, Order, and Opinion on Decision issued on May 14, 2021is RESCINDED, with the following SUBSTITUTED in its place:

The Appeals Board found the AME's opinion persuasive and rejected the primary treater's conclusory opinion on return to work, affirming the award of temporary disability from June 1, 2018 through May 21, 2019 at the corrected rate.

From the decision · page 5Instead, the WCJ followed the opinion of the AME. The parties presumably choose an AME because of the AME's expertise and neutrality. (Power v. Workers' Comp. Appeals Bd. (1986) 179 Cal.App.3d 775, 782 [51 Cal.Comp.Cases 114].) The Appeals Board will follow the opinions of the AME unless good cause exists to find the opinion unpersuasive. (Ibid.) We find the AME's opinion persuasive.

Applicant sustained an admitted industrial injury to his back on May 30, 2018 while working as a milker for Oakview Dairy.

Favours Applicant prevailed

This established the basis for temporary disability and permanent disability claims.

The primary treater's opinion on return to full duty was conclusory and lacked substantial medical evidence.

Favours Applicant prevailed

The WCJ and Appeals Board rejected this opinion, affirming temporary disability based on the AME's opinion.

From the decision · page 5The November 7, 2018 opinion on return to full duty is a conclusory opinion. It contains no discussion as to the records reviewed in reaching its conclusion. It contains minimal reasoning, only to say that an orthopedic spine physician had discharged applicant. Thus, the primary treater's opinion does not constitute substantial medical evidence and the WCJ was correct not to rely upon it.

The AME found applicant permanent and stationary on May 21, 2019, attributing 60% of lumbar spine disability to the May 30, 2018 industrial injury and 40% to preexisting factors.

Favours Applicant prevailed

The Appeals Board relied on this opinion for apportionment and permanent disability rating.

From the decision · page 3AME Dr. Wood found applicant permanent and stationary on May 21, 2019. (Applicant's

The applicant's current permanent disability rating was 14%, with a prior rating of 12%, resulting in a 2% permanent disability award after apportionment under Labor Code section 4664(b).

Favours Defendant prevailed

This legal apportionment reduced the permanent disability award, as applied by the Appeals Board.

From the decision · page 13Applicant's current permanent disability rates as follows: 15.03.01.00 - 8 - [1.4]11 - 491H - 14 = 14% Applicant's disability rating does not require the assistance of a DEU rater in this case. (See Blackledge v. Bank of America (2010), 75 Cal. Comp. Cases 613, 624-625 (Appeals Board en banc).) After apportionment under section 4664, applicant's permanent disability award in this case is 2% (14% - 12%). Accordingly, as our Decision After Reconsideration we will rescind the WCJ's May 14, 2021 F&A and issue a new F&A, which affirms the WCJ's findings as to temporary disability, and finds that applicant's injury caused 2% permanent disability after apportionment. For the foregoing reasons, IT IS ORDERED as the Decision After Reconsideration of the Workers' Compensation Appeals Board that the Findings of Fact, Award, Order, and Opinion on Decision issued on May 14, 2021is RESCINDED, with the following SUBSTITUTED in its place:

Found applicant permanent and stationary on May 21, 2019, and attributed 60% of lumbar spine disability to the May 30, 2018 industrial injury, with 40% due to preexisting factors.

The Appeals Board found the AME's opinion persuasive and relied upon it for both temporary disability and apportionment findings.

Noted a prior injury on July 28, 2013 with lumbar pain and lumbosacral sprain diagnosis.

From the decision · page 3There is a July 30, 2013 Doctor's First Report of Occupational Injury or Illness by Theodore Wyman, M.D. noting a date of injury of July 28, 2013 when the patient was working when he slipped and now had pain in his lower back. He stated that he slipped and caught himself and afterwards he developed pain in his lower back.

Noted a prior injury on April 3, 2015 with lumbar radiculopathy diagnosis and conservative treatment.

From the decision · page 3In 2014, while working for a Bison Ranch in Hanford, California, he was on a machine used to feed the bison. There is also a November 16, 2015 Doctor's First Report of Occupational Injury or Illness by Dennis Miller, M.D. indicating a date of injury of April 3, when he was lifting a bale of alfalfa and hurt his back. He was diagnosed with lumbar radiculopathy. He was treated conservatively with therapy and epidural steroid injections following each injury. He was off work for about one year after each injury and states he was released back to full duties.

Provided prior QME report used in a 2011 Compromise and Release settlement rating applicant at 9% permanent disability.

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

A medical opinion must be framed in terms of reasonable medical probability, not be speculative, be based on pertinent facts and adequate examination, and set forth reasoning in support of conclusions.

The WCJ rejected the primary treater's conclusory opinion for lack of substantial evidence and relied on the AME's opinion.

From the decision · page 5To constitute substantial evidence "... a medical opinion must be framed in terms of reasonable medical probability, it must not be speculative, it must be based on pertinent facts and on an adequate examination and history, and it must set forth reasoning in support of its conclusions." (Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 621 (Appeals Board en banc).) "When the foundation of an expert's testimony is determined to be inadequate as a matter of law, we are not bound by an apparent conflict in the evidence created by his bare conclusions." (People v. Bassett (1968) 69 Cal.2d 122, 139.)

Labor Code section 4664(b)

Apportionment under Labor Code section 4664(b) applies when the current permanent disability rating is a progression of a prior rated impairment using the same AMA Guides chart or table.

The Appeals Board applied section 4664(b) to reduce the permanent disability award from 14% to 2% after apportionment.

From the decision · page 13Applicant's current permanent disability rates as follows: 15.03.01.00 - 8 - [1.4]11 - 491H - 14 = 14% Applicant's disability rating does not require the assistance of a DEU rater in this case. (See Blackledge v. Bank of America (2010), 75 Cal. Comp. Cases 613, 624-625 (Appeals Board en banc).) After apportionment under section 4664, applicant's permanent disability award in this case is 2% (14% - 12%). Accordingly, as our Decision After Reconsideration we will rescind the WCJ's May 14, 2021 F&A and issue a new F&A, which affirms the WCJ's findings as to temporary disability, and finds that applicant's injury caused 2% permanent disability after apportionment. For the foregoing reasons, IT IS ORDERED as the Decision After Reconsideration of the Workers' Compensation Appeals Board that the Findings of Fact, Award, Order, and Opinion on Decision issued on May 14, 2021is RESCINDED, with the following SUBSTITUTED in its place:

The primary treater's opinion on return to full duty was conclusory and lacked substantial medical evidence, favoring the applicant's claim for temporary disability.

From the decision · page 5The November 7, 2018 opinion on return to full duty is a conclusory opinion. It contains no discussion as to the records reviewed in reaching its conclusion. It contains minimal reasoning, only to say that an orthopedic spine physician had discharged applicant. Thus, the primary treater's opinion does not constitute substantial medical evidence and the WCJ was correct not to rely upon it.

The AME's opinion was found persuasive and was relied upon for the award of temporary disability and apportionment.

From the decision · page 5Instead, the WCJ followed the opinion of the AME. The parties presumably choose an AME because of the AME's expertise and neutrality. (Power v. Workers' Comp. Appeals Bd. (1986) 179 Cal.App.3d 775, 782 [51 Cal.Comp.Cases 114].) The Appeals Board will follow the opinions of the AME unless good cause exists to find the opinion unpersuasive. (Ibid.) We find the AME's opinion persuasive.