ADJ11533485 — California WCAB decision

What was disputed, and how it came out

Each issue the panel decided, with the reasoning it gave. An outcome is what this panel did on this record — not a rule, and not a prediction.

Permanent disability ratingMixedlumbar spine · back

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Compensation Appeals Board that the Findings of Fact, Award, Order, and Opinion on Decision issued on May 14, 2021is RESCINDED, with the following SUBSTITUTED in its place:

Temporary disabilityApplicant prevailedback

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.

The facts that decided it

What the panel treated as outcome-determinative, and which side it favoured.

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:

The rules the panel named

Authorities as the decision cited them, with how this panel applied each one.

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:

ADJ11533485 · January 20, 2026

What was disputed, and how it came out

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The facts that decided it

What the panel did with the medical opinions

The rules the panel named

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