What the panel ordered
Petition for reconsideration granted in part; Findings and Award affirmed except issues of dental injury causation, psychiatric disability percentage, permanent disability level, and attorney fee deferred; matter remanded to WCJ for further proceedings.
Applicant seeks reconsideration of the Findings and Award issued by the WCJ on December 1, 2022, challenging findings on psychiatric injury causation and dental injury claim development.
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.
Deferred pending further development of the record.
From the decision · page 6*** 9. The applicant's attorney is entitled to a fee of 15% of the awarded permanent disability; the amount of the attorney fee is deferred.
No substantial medical evidence directly correlating dental injury to employment; record development deferred for further medical evaluation.
From the decision · page 5As to the issue of applicant's dental injury claim, it has long been recognized that evidence from a lay witness on an issue requiring expert opinion is not substantial evidence, and medical proof is required when issues of diagnosis, prognosis, and treatment are beyond the bounds of ordinary knowledge. (City & County of San Francisco v. Industrial Acc. Com. (Murdock) (1953) 117 Cal.App.2d 455 [18 Cal.Comp.Cases 103]; Bstandig v. Workers' Comp. Appeals Bd. (1977) 68 Cal.App.3d 988 [42 Cal.Comp.Cases 114].) Therefore, applicant's testimony that the medication he has been taking has affected his teeth, is not substantial evidence. As the WCJ stated in his Report, "Dr. Dimmick does not provide an affirmative opinion about the diagnosis's causation but suggests that further evaluations would be appropriate." (Report p.
Deferred pending further development of the record on causation and disability level.
From the decision · page 6*** 7. The issue of the level of permanent disability caused by applicant's industrial injury is deferred.
Dr. Nathan's reports were found not substantial evidence for psychiatric disability apportionment because he did not explain how employment and pre-existing conditions caused the disability percentages assigned.
From the decision · page 4Marshalls, supra, at 621) Further, it is important to note that "the percentage to which an applicant's injury is causally related to his or her employment is not necessarily the same as the percentage to which an applicant's permanent disability is causally related to his or her injury. The analyses of these issues are different and the medical evidence for any percentage conclusions might be different." (Ibid. at 611.) Here, in his December 27, 2010, report, as quoted above, Dr. Nathan concluded that 66- 2/3% of applicant's psychiatric permanent disability was a result of his industrial orthopedic injury and 33-1/3% of his psychiatric disability was a result of his psychopathology "due to his personality functioning, his prior history of Alcohol Abuse and Dependence." (Def. Exh. C, p. 24.) Dr. Nathan did not explain how and why applicant's employment with defendant and his pre- existing alcohol abuse were causing his permanent disability at the time of the evaluation, nor did he explain how and why those factors were responsible for the percentage of disability he assigned. Thus, his reports are not substantial evidence regarding the issue of permanent disability/ apportionment and cannot be the basis for determining applicant's psychiatric disability caused by his industrial injury.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Dr. Nathan's psychiatric apportionment reports did not explain causation percentages
Favours Defendant prevailed
Reports lacked explanation of how employment and pre-existing conditions caused disability percentages, thus not substantial evidence for apportionment
From the decision · page 4Marshalls, supra, at 621) Further, it is important to note that "the percentage to which an applicant's injury is causally related to his or her employment is not necessarily the same as the percentage to which an applicant's permanent disability is causally related to his or her injury. The analyses of these issues are different and the medical evidence for any percentage conclusions might be different." (Ibid. at 611.) Here, in his December 27, 2010, report, as quoted above, Dr. Nathan concluded that 66- 2/3% of applicant's psychiatric permanent disability was a result of his industrial orthopedic injury and 33-1/3% of his psychiatric disability was a result of his psychopathology "due to his personality functioning, his prior history of Alcohol Abuse and Dependence." (Def. Exh. C, p. 24.) Dr. Nathan did not explain how and why applicant's employment with defendant and his pre- existing alcohol abuse were causing his permanent disability at the time of the evaluation, nor did he explain how and why those factors were responsible for the percentage of disability he assigned. Thus, his reports are not substantial evidence regarding the issue of permanent disability/ apportionment and cannot be the basis for determining applicant's psychiatric disability caused by his industrial injury.
No medical report directly correlates dental injury to applicant's medication use
Favours Defendant prevailed
Lack of direct medical causation evidence led to deferral of dental injury claim development
From the decision · page 5As to the issue of applicant's dental injury claim, it has long been recognized that evidence from a lay witness on an issue requiring expert opinion is not substantial evidence, and medical proof is required when issues of diagnosis, prognosis, and treatment are beyond the bounds of ordinary knowledge. (City & County of San Francisco v. Industrial Acc. Com. (Murdock) (1953) 117 Cal.App.2d 455 [18 Cal.Comp.Cases 103]; Bstandig v. Workers' Comp. Appeals Bd. (1977) 68 Cal.App.3d 988 [42 Cal.Comp.Cases 114].) Therefore, applicant's testimony that the medication he has been taking has affected his teeth, is not substantial evidence. As the WCJ stated in his Report, "Dr. Dimmick does not provide an affirmative opinion about the diagnosis's causation but suggests that further evaluations would be appropriate." (Report p.
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.
Concluded 66-2/3% of psychiatric permanent disability caused by industrial injury; 33-1/3% due to personality and prior alcohol abuse; reports found not substantial evidence for apportionment due to lack of explanation.
Did not explain how employment and pre-existing conditions caused the disability percentages assigned.
From the decision · page 4Marshalls, supra, at 621) Further, it is important to note that "the percentage to which an applicant's injury is causally related to his or her employment is not necessarily the same as the percentage to which an applicant's permanent disability is causally related to his or her injury. The analyses of these issues are different and the medical evidence for any percentage conclusions might be different." (Ibid. at 611.) Here, in his December 27, 2010, report, as quoted above, Dr. Nathan concluded that 66- 2/3% of applicant's psychiatric permanent disability was a result of his industrial orthopedic injury and 33-1/3% of his psychiatric disability was a result of his psychopathology "due to his personality functioning, his prior history of Alcohol Abuse and Dependence." (Def. Exh. C, p. 24.) Dr. Nathan did not explain how and why applicant's employment with defendant and his pre- existing alcohol abuse were causing his permanent disability at the time of the evaluation, nor did he explain how and why those factors were responsible for the percentage of disability he assigned. Thus, his reports are not substantial evidence regarding the issue of permanent disability/ apportionment and cannot be the basis for determining applicant's psychiatric disability caused by his industrial injury.
Diagnosed dry mouth and other conditions possibly related to medication; did not provide affirmative causation opinion for dental injury; suggested further evaluations.
No direct medical correlation between dental injury and medication use established.
From the decision · page 5As to the issue of applicant's dental injury claim, it has long been recognized that evidence from a lay witness on an issue requiring expert opinion is not substantial evidence, and medical proof is required when issues of diagnosis, prognosis, and treatment are beyond the bounds of ordinary knowledge. (City & County of San Francisco v. Industrial Acc. Com. (Murdock) (1953) 117 Cal.App.2d 455 [18 Cal.Comp.Cases 103]; Bstandig v. Workers' Comp. Appeals Bd. (1977) 68 Cal.App.3d 988 [42 Cal.Comp.Cases 114].) Therefore, applicant's testimony that the medication he has been taking has affected his teeth, is not substantial evidence. As the WCJ stated in his Report, "Dr. Dimmick does not provide an affirmative opinion about the diagnosis's causation but suggests that further evaluations would be appropriate." (Report p.
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Lab. Code, § 5952(d)
Award, order, or decision must be supported by substantial evidence
Applied to review of medical evidence and apportionment
From the decision · page 4DISCUSSION It is well established that any award, order, or decision of the Appeals Board. must be supported by substantial evidence. (Lab. Code, § 5952(d); Lamb v. Workmen's Comp. Appeals Bd. (1974) 11 Cal.3d 274, 281 [39 Cal.Comp.Cases 310]; Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312, 317 [35 Cal.Comp.Cases 500]; LeVesque v. Workmen's Comp. Appeals Bd. (1970) 1 Cal.3d 627, 635 [35 Cal.Comp.Cases 16].) In order to constitute substantial evidence as to the issue of apportionment, the medical opinion must disclose the reporting physician's familiarity with the concepts of apportionment and must delineate the approximate percentages of permanent disability due to the direct results of the injury and the approximate percentage of permanent disability due to other factors. (Acme Steel v. Workers' Comp. Appeals Bd. (Borman) (2013) 218 Cal.App.4th 1137 [78 Cal.Comp.Cases 751]; Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604 (Appeals Board en banc).) Also, the physician must explain the nature of the other factors, how and why those factors are causing permanent disability at the time of the evaluation, and how and why those factors are responsible for the percentage of disability assigned by the physician. (Escobedo v.
Acme Steel v. Workers' Comp. Appeals Bd. (Borman) (2013) 218 Cal.App.4th 1137
Medical opinion must disclose familiarity with apportionment concepts and explain percentages assigned
Applied to evaluate Dr. Nathan's apportionment opinion
From the decision · page 4DISCUSSION It is well established that any award, order, or decision of the Appeals Board. must be supported by substantial evidence. (Lab. Code, § 5952(d); Lamb v. Workmen's Comp. Appeals Bd. (1974) 11 Cal.3d 274, 281 [39 Cal.Comp.Cases 310]; Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312, 317 [35 Cal.Comp.Cases 500]; LeVesque v. Workmen's Comp. Appeals Bd. (1970) 1 Cal.3d 627, 635 [35 Cal.Comp.Cases 16].) In order to constitute substantial evidence as to the issue of apportionment, the medical opinion must disclose the reporting physician's familiarity with the concepts of apportionment and must delineate the approximate percentages of permanent disability due to the direct results of the injury and the approximate percentage of permanent disability due to other factors. (Acme Steel v. Workers' Comp. Appeals Bd. (Borman) (2013) 218 Cal.App.4th 1137 [78 Cal.Comp.Cases 751]; Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604 (Appeals Board en banc).) Also, the physician must explain the nature of the other factors, how and why those factors are causing permanent disability at the time of the evaluation, and how and why those factors are responsible for the percentage of disability assigned by the physician. (Escobedo v.
City & County of San Francisco v. Industrial Acc. Com. (Murdock) (1953) 117 Cal.App.2d 455
Medical proof required for diagnosis and causation beyond lay knowledge
Applied to dental injury claim requiring expert evidence
From the decision · page 5As to the issue of applicant's dental injury claim, it has long been recognized that evidence from a lay witness on an issue requiring expert opinion is not substantial evidence, and medical proof is required when issues of diagnosis, prognosis, and treatment are beyond the bounds of ordinary knowledge. (City & County of San Francisco v. Industrial Acc. Com. (Murdock) (1953) 117 Cal.App.2d 455 [18 Cal.Comp.Cases 103]; Bstandig v. Workers' Comp. Appeals Bd. (1977) 68 Cal.App.3d 988 [42 Cal.Comp.Cases 114].) Therefore, applicant's testimony that the medication he has been taking has affected his teeth, is not substantial evidence. As the WCJ stated in his Report, "Dr. Dimmick does not provide an affirmative opinion about the diagnosis's causation but suggests that further evaluations would be appropriate." (Report p.
What proof carried it
The evidence the panel weighed, by kind.
Applicant's testimony about medication affecting his teeth
From the decision · page 3Applicant submitted a bill for dental work, because the medication he has been taking has affected his teeth. He has a lot of broken teeth and teeth that have fallen out. This causes him problems, because he now has to plan out his meals due to his inability to chew some foods. (MOH/SOE, p. 8.)
Lack of substantial medical evidence correlating dental injury to employment
From the decision · page 5As to the issue of applicant's dental injury claim, it has long been recognized that evidence from a lay witness on an issue requiring expert opinion is not substantial evidence, and medical proof is required when issues of diagnosis, prognosis, and treatment are beyond the bounds of ordinary knowledge. (City & County of San Francisco v. Industrial Acc. Com. (Murdock) (1953) 117 Cal.App.2d 455 [18 Cal.Comp.Cases 103]; Bstandig v. Workers' Comp. Appeals Bd. (1977) 68 Cal.App.3d 988 [42 Cal.Comp.Cases 114].) Therefore, applicant's testimony that the medication he has been taking has affected his teeth, is not substantial evidence. As the WCJ stated in his Report, "Dr. Dimmick does not provide an affirmative opinion about the diagnosis's causation but suggests that further evaluations would be appropriate." (Report p.
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