ADJ12141593 · September 11, 2026

The WCJ erroneously concluded no preexisting permanent disability due to confusion of issues and lack of substantial evidence. The Appeals Board found the record unclear and deferred the issue for further development.

From the decision · page 11Minkstein’s reporting as to the issue of preexisting permanent disability does not constitute substantial medical evidence. (See Escobedo, supra.) Because the record suggests that applicant had a labor-disabling condition prior to her subsequent injury but is unclear as to whether and to what extent she had preexisting permanent disability of the bilateral hands/wrists and right shoulder, we conclude that the WCJ’s conclusion that applicant does not have preexisting permanent disability was in error. Accordingly, we will rescind the F&O.

Applicant had a labor-disabling restriction prior to the subsequent injury as evidenced by PQME Dr. Cortes's opinion that applicant missed work due to prior injuries in 1997 and 2002.

Favours Applicant prevailed

This fact supported deferral of the issue of preexisting permanent disability for further development.

From the decision · page 11Although not based upon contemporaneous medical records, PQME Dr. Cortes’s opinion in this regard is framed in terms of reasonable medical probability and based on pertinent facts and an adequate examination and history, and, therefore, is substantial evidence that applicant had a labor-disabling restriction prior to the subsequent injury. Because the record evidences that applicant had a labor-disabling restriction prior to the subsequent injury, the question before us is whether applicant had “a preexisting disability which either actually interfered with or would have actually interfered with any type of work activity at the time of subsequent injury.” (Franklin, supra, at p. 238.) In this regard, Dr. Minkstein opined that applicant had preexisting disability of the right wrist/hand, left wrist/hand, and right shoulder, but did not explain how, if at all, the clinical information he obtained supported his conclusions. (Ex. 2, Report of Dr. Minkstein, September 7, 2023, pp.

Assigned 17% whole person impairment to right shoulder and bilateral wrists/hands but did not explain clinical basis or review prior medical records. Findings not credible and speculative.

Did not review medical records prior to subsequent injury or explain grounds for conclusions; findings lacked credibility and substantial evidence.

From the decision · page 11Minkstein’s reporting as to the issue of preexisting permanent disability does not constitute substantial medical evidence. (See Escobedo, supra.) Because the record suggests that applicant had a labor-disabling condition prior to her subsequent injury but is unclear as to whether and to what extent she had preexisting permanent disability of the bilateral hands/wrists and right shoulder, we conclude that the WCJ’s conclusion that applicant does not have preexisting permanent disability was in error. Accordingly, we will rescind the F&O.

Applicant had a prior history of right shoulder industrial injury with surgery and bilateral carpal tunnel surgery, with symptoms resolved. Found no evidence of preexisting condition for apportionment but noted applicant missed work due to prior injuries. Assigned 0% impairment to bilateral hands and 6% to right shoulder.

Opinion framed in reasonable medical probability, based on pertinent facts and adequate examination and history, constituting substantial evidence of labor-disabling restriction prior to subsequent injury.

From the decision · page 11Although not based upon contemporaneous medical records, PQME Dr. Cortes’s opinion in this regard is framed in terms of reasonable medical probability and based on pertinent facts and an adequate examination and history, and, therefore, is substantial evidence that applicant had a labor-disabling restriction prior to the subsequent injury. Because the record evidences that applicant had a labor-disabling restriction prior to the subsequent injury, the question before us is whether applicant had “a preexisting disability which either actually interfered with or would have actually interfered with any type of work activity at the time of subsequent injury.” (Franklin, supra, at p. 238.) In this regard, Dr. Minkstein opined that applicant had preexisting disability of the right wrist/hand, left wrist/hand, and right shoulder, but did not explain how, if at all, the clinical information he obtained supported his conclusions. (Ex. 2, Report of Dr. Minkstein, September 7, 2023, pp.

Escobedo, supra

To constitute substantial evidence, a medical opinion must be framed in terms of reasonable medical probability, not speculative, based on pertinent facts and adequate examination and history, and set forth reasoning in support of conclusions.

The Board found Dr. Cortes's opinion met this standard and Dr. Minkstein's did not.

From the decision · page 10whether it developed from a congenital, developmental, pathological, or traumatic source. (Franklin, supra, at p. 238; see Escobedo v. Marshalls, CNA Ins. Co., (2005) 70 Cal.Comp.Cases 604, 619 (citing Subsequent Injuries Fund v. Workmen's Comp. Appeals Bd. (Talcott) (1970) 2 Cal.3d 56, 62 [35 Cal.Comp.Cases 80].) The first question before us, then, is whether applicant presented substantial medical evidence of preexisting permanent disability under these authorities. (Todd, supra.) To 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, supra.) "Medical opinion … fails to support the Board's findings if it is based on surmise, speculation, conjecture or guess." (Hegglin v. Workmen's Comp. Appeals Bd. (1971) 4 Cal. 3d 162, 169 [36 Cal.Comp.Cases 93, 97].) In this regard, the parties framed the issues for trial to include whether apportionment applies to the 35% or 5% threshold and whether applicant had preexisting permanent disability of unspecified body parts 2 instead of applying the Todd analytical framework. (Minutes of Hearing (Reporter), August 5, 2025, p.

PQME Dr. Cortes's opinion that applicant missed work due to bilateral hands/arms injury in 1997 and right shoulder injury in 2002

From the decision · page 102:14-17.) This framing confused the issues of apportionment with preexisting permanent disability, effectively precluding the WCJ from developing and evaluating the record of whether applicant had preexisting disability of the bilateral hands/wrists and right shoulder. Specifically, the framing led the WCJ to rely upon PQME Dr. Cortes’s apportionment opinion that there was “no evidence of any preexisting condition or pathology that would lead to apportionment” to conclude that there was no “evidence... showing that... applicant was actually restricted in work activity prior to the industrial injury.” (Jt. Ex. C, Report of PQME Zenia Cortes, July 27, 2020, p. 17; Report, p. 5.) But PQME Dr. Cortes opined that applicant “missed work” as a result of her bilateral hands/arms injury (carpal tunnel) in 1997 and her right shoulder injury (rotator cuff) in 2002. (Jt. Ex. A, Report of PQME Zenia Cortes, January 7, 2020, p. 5.)