What the panel treated as outcome-determinative, and which side it favoured.
The case was transmitted to the Appeals Board on April 25, 2025, and the decision was issued on June 24, 2025, within the 60-day period required by Labor Code section 5909.
Favours Defendant prevailed
This timing established the Board's jurisdiction to act on the petition for reconsideration.
From the decision · page 2Here, according to Events, the case was transmitted to the Appeals Board on April 25,
2025, and 60 days from the date of transmission is June 24, 2025. This decision is issued by or on
June 24, 2025, so that we have timely acted on the petition as required by Labor Code section
5909(a).
Dr. Mandell's alternative impairment rating was found to be substantial medical evidence despite defendant's arguments about lack of FCE and EMG.
Favours Defendant prevailed
Supported denial of defendant's petition to exclude the impairment rating.
From the decision · page 6Defendant argues Dr. Mandell cannot make an alternative impairment rating because he
was not provided with a functional capacity evaluation (hereinafter referred to as FCE), and Dr.
Mandell did not review and EMG. Dr. Mandell testified Applicant's problems are in his upper
extremities, and as nearly as he could tell, he was putting forth full effort. But we don't have a
good way of double-checking that short of doing a formal functional capacity evaluation (Dr.
Mandell Deposition Transcript, EAMS Doc ID # 44547195, pg7; 6-10). On page 12; 5-9, Dr.
Mandell was asked if any objective testing was done to confirm Applicant's trouble using zippers
or buttons. Dr. Mandell explained he doesn't have that ability. That's why he was talking about
a functional capacity evaluation. He went on to state that would be nice to have if that's a question.
The subrosa video was excluded as irrelevant for impeachment because defendant failed to show it contradicted applicant's statements to Dr. Mandell.
Favours Defendant prevailed
Supported exclusion of the video and denial of defendant's impeachment argument.
From the decision · page 8AME Dr. Mandell never reviewed the subrosa video at issue. For that reason, the only
possible relevance of the video at trial, with a proper foundation, was impeachment. The Court
explained to Defendant the only potentially relevant impeachment evidence for the subrosa would
be if Applicant was videotaped performing activity he told Dr. Mandell he could not perform. The
Court asked Defendant whether there was any such evidence on the videos. Defendant did not
respond. Therefore, Applicant's relevance objection was sustained. The subrosa video was
determined to be irrelevant and excluded from evidence.
Dr. Mandell's apportionment opinions lacked sufficient reasoning and explanation for the percentages assigned.
Favours Defendant prevailed
Led to rejection of apportionment opinions as not substantial medical evidence.
From the decision · page 8AME Dr. Mandell admits on page 6 of his 3/29/24 report that apportionment in this case is
difficult. Dr. Mandell explains that Applicant did have problems with his shoulders even
preceding the injury of 4/23/21. The medical records show as far back as 2010 he was having
problems with his shoulders. There is a suggestion of shoulder problems in 2019 as well.