What the panel ordered
Petition for reconsideration granted; WCJ decision affirmed except amended to remove apportionment and increase permanent disability ratings to 69% and 19% for the two injuries.
Applicant sought reconsideration of a WCJ Joint Findings and Award and Order dated January 11, 2024, challenging findings on injury causation and apportionment.
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.
The WCJ found that the apportionment opinions by Dr. Newton and Dr. Sommer lacked sufficient explanation and detail to constitute substantial medical evidence, so apportionment was removed and permanent disability ratings increased accordingly.
From the decision · page 4Here neither Dr. Newton nor Dr. Sommer explained in the requisite detail "how and why" non-industrial conditions were contributing to applicant's permanent disability and did not adequately explain the level of apportionment decided upon. We therefore amend the decision to reflect that applicant is entitled to unapportioned awards of permanent disability in both cases.
The WCJ found substantial medical evidence from agreed medical evaluators Dr. Newton and Dr. Sommer that the neck injury was caused by the October 31, 2016 incident, and no contradictory medical evidence was submitted.
From the decision · page 6Sommer discussed causation of the neck injury, and found it stemmed from the October 31, 2016 injury. (Joint Exhibit J2, page 28; Joint Exhibit 6, pages 4, 45.) No medical evidence was submitted to contradict this. the applicant testified that he injured his neck in 2018 (MOH/SOE, page 5, lines 11 thru 12.) However, the only trial exhibit submitted by the applicant that referenced an injury on August 2, 2018 stated that the applicant injured his right shoulder and back on that date, not the neck. (Applicant's Exhibit 2.) If there is additional evidence, it should be noted that the finding of injury to the applicant's neck on October 31, 2016 does not preclude him from filing an additional claim/case for a neck injury in 2018.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Drs. Newton and Sommer did not adequately explain apportionment to non-industrial causes, failing to meet substantial medical evidence standards.
Favours Applicant prevailed
Led to removal of apportionment and increase in permanent disability ratings.
From the decision · page 4Here neither Dr. Newton nor Dr. Sommer explained in the requisite detail "how and why" non-industrial conditions were contributing to applicant's permanent disability and did not adequately explain the level of apportionment decided upon. We therefore amend the decision to reflect that applicant is entitled to unapportioned awards of permanent disability in both cases.
Drs. Newton and Sommer found causation of the neck injury from the October 31, 2016 incident with no contradictory medical evidence.
Favours Applicant prevailed
Supported the finding that the neck injury was industrial and part of the 2016 injury.
From the decision · page 6Sommer discussed causation of the neck injury, and found it stemmed from the October 31, 2016 injury. (Joint Exhibit J2, page 28; Joint Exhibit 6, pages 4, 45.) No medical evidence was submitted to contradict this. the applicant testified that he injured his neck in 2018 (MOH/SOE, page 5, lines 11 thru 12.) However, the only trial exhibit submitted by the applicant that referenced an injury on August 2, 2018 stated that the applicant injured his right shoulder and back on that date, not the neck. (Applicant's Exhibit 2.) If there is additional evidence, it should be noted that the finding of injury to the applicant's neck on October 31, 2016 does not preclude him from filing an additional claim/case for a neck injury in 2018.
What the panel did with the medical opinions
The role the physician served, and the weight the opinion carried. Physicians are named here as the decision names them; we do not score them.
Causation for the neck injury was due to the October 31, 2016 injury; apportionment of 15% to pre-existing cervical spine pathology was stated but not sufficiently detailed.
Dr. Newton's reports were found substantial for causation but insufficient for apportionment due to lack of detailed explanation.
From the decision · page 2With regard to apportionment of the cervical spine disability, Dr. Newton wrote in his April
Agreed with Dr. Newton on causation of neck injury as progression of right shoulder injury; apportionment of 20% non-industrial causes was stated but lacked sufficient explanation.
Dr. Sommer's reports were found substantial for causation but insufficient for apportionment due to lack of detailed explanation.
From the decision · page 2Dr. Sommer wrote in his August 24, 2022 report:
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Milpitas Unified School District v. WCAB (Guzman) (2010) 75 Cal. Comp. Cases 837
A medical report is not substantial evidence unless it sets forth the reasoning behind the physician's opinion, not merely conclusions.
Applied to evaluate the sufficiency of medical opinions on causation and apportionment.
From the decision · page 6conclusion;... the opinion of an expert is no better than the reasons upon which it is based." People v. Bassett (1968) 69 Cal.2d 122. A medical report is not substantial medical evidence unless it sets forth the reasoning behind the physician's opinion, not merely his or her conclusions." Milpitas Unified School District v. WCAB (Guzman) (2010) 75 Cal. Comp. Cases 837. A finding of AOE/COE must be supported by substantial evidence. (Labor Code section 5952(d).) In this case, causation for the neck (AOE/COE) was not at issue for Trial. The parties stipulated to injury to the right shoulder and neck on October 31, 2016. (MOH/SOE, page 2, lines 7 thru 14.) The issues for Trial were permanent disability, apportionment, and attorney's fees. (Id. at page 3, lines 3 thru 12.) The undersigned WCJ found Drs. Newton and Sommers' reporting to be substantial medical evidence regarding permanent disability, apportionment and applicant's need for future medical care for both the 2016 and 2019 injuries. (Joint Findings and Award, page 4.) As part of the substantial medical evidence analysis, Dr. Newton and Dr.
Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604
Apportionment opinions must explain how and why non-industrial conditions contribute to permanent disability to constitute substantial medical evidence.
Applied to reject apportionment opinions lacking detailed explanation.
From the decision · page 4Here neither Dr. Newton nor Dr. Sommer explained in the requisite detail "how and why" non-industrial conditions were contributing to applicant's permanent disability and did not adequately explain the level of apportionment decided upon. We therefore amend the decision to reflect that applicant is entitled to unapportioned awards of permanent disability in both cases.
What proof carried it
The evidence the panel weighed, by kind.
Applicant's testimony that he injured his neck in 2018 was contradicted by medical evidence showing injury to right shoulder and back, not neck, on that date.
From the decision · page 6Sommer discussed causation of the neck injury, and found it stemmed from the October 31, 2016 injury. (Joint Exhibit J2, page 28; Joint Exhibit 6, pages 4, 45.) No medical evidence was submitted to contradict this. the applicant testified that he injured his neck in 2018 (MOH/SOE, page 5, lines 11 thru 12.) However, the only trial exhibit submitted by the applicant that referenced an injury on August 2, 2018 stated that the applicant injured his right shoulder and back on that date, not the neck. (Applicant's Exhibit 2.) If there is additional evidence, it should be noted that the finding of injury to the applicant's neck on October 31, 2016 does not preclude him from filing an additional claim/case for a neck injury in 2018.
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About this page
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