ADJ3359423 — California WCAB decision

What the panel ordered

Petition for Reconsideration denied.

Petition for Reconsideration of Findings and Award in ADJ7688594 and ADJ6732602, challenging apportionment and permanent disability determinations.

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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.

ApportionmentDefendant prevailedlow back

The AME's apportionment determinations were found to constitute substantial evidence, supported by applicant's testimony, medical history, and the AME's reasoning. Vocational evidence and FCE did not rebut the scheduled rating as they did not properly account for apportionment or were not based on correct history.

From the decision · page 8Here, applicant contends that there is no substantial evidence reflecting that he suffered a cumulative trauma through December 26, 2006 (ADJ7688594) and that Hikida precludes apportionment in this matter because his disability is a result of a failed laminectomy. However, at trial, the admitted facts in ADJ7688594 reflected that applicant had a cumulative injury through December 26, 2006. (Minutes of Hearing and Summary of Evidence (MOH/SOE), January 26, 2021, p. 3.) Applicant does not acknowledge that stipulation or provide good cause to set aside that stipulation. (County of Sacramento v. Workers Compensation Appeals Bd., (Weatherall) (2000) 65 Cal. Comp. Cases 1.) Moreover, applicant himself testified that after his 2002 injury he only performed half of his job duties, that his symptoms worsened as a result of working, and that "the work was wearing him down." (MOH/SOE, pp. 8-9, 12.) Similarly, Dr.

The facts that decided it

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

Applicant's testimony and stipulation established cumulative trauma through December 26, 2006, and that his condition worsened as he continued to work after the 2002 injury.

Favours Defendant prevailed

Supported the finding of cumulative trauma and apportionment to multiple injuries.

From the decision · page 8Here, applicant contends that there is no substantial evidence reflecting that he suffered a cumulative trauma through December 26, 2006 (ADJ7688594) and that Hikida precludes apportionment in this matter because his disability is a result of a failed laminectomy. However, at trial, the admitted facts in ADJ7688594 reflected that applicant had a cumulative injury through December 26, 2006. (Minutes of Hearing and Summary of Evidence (MOH/SOE), January 26, 2021, p. 3.) Applicant does not acknowledge that stipulation or provide good cause to set aside that stipulation. (County of Sacramento v. Workers Compensation Appeals Bd., (Weatherall) (2000) 65 Cal. Comp. Cases 1.) Moreover, applicant himself testified that after his 2002 injury he only performed half of his job duties, that his symptoms worsened as a result of working, and that "the work was wearing him down." (MOH/SOE, pp. 8-9, 12.) Similarly, Dr.

Dr. Mandell's apportionment determinations were well-reasoned, based on applicant's medical history and supported by the record.

Favours Defendant prevailed

Provided substantial evidence for apportionment and allocation of permanent disability.

From the decision · page 15Here, Dr. Mandell apportioned 25% of applicant's impairment to applicant's developmental and congenital problems, 10% to the 2002 injury, 10% to the 2005 injury and the remaining 55% to the cumulative injury. (Joint 104 at p. 8.) Applicant argues that Dr. Mandell's opinion regarding the existence of a cumulative trauma is not substantial evidence, and he points to Hikida in support of that argument. Applicant also claims that he sustained an injury in the form of "post laminectomy syndrome," and that Dr. Chen's reports support that diagnosis. (See e.g. applicant's Exhibit 4, p. 3.) Dr. Chen's diagnosis is different than the one Dr. Mandell provided of "symptomatic lumbar disc disease superimposed on sponyloysis and spondylolisthesis, status post two-level fusion from L4 to the sacrum with subsequent removal of hardware." (Exhibit 104 at p. 7.) However, both diagnoses affect applicant's back. Further, Dr.

The rules the panel named

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

Power v. Workers' Comp. Appeals Bd. (1986) 179 Cal.App.3d 775

Opinions of AMEs should be followed unless there is good reason to find them unpersuasive.

The WCAB found no good reason to reject the AME's apportionment determinations.

From the decision · page 14It is well established that parties choose Agreed Medical Evaluators (AME) due to their expertise and neutrality, and that therefore the opinions of those AMEs should be followed unless there is good reason to find their opinion unpersuasive. (Power v. Worker's Comp. Appeals Bd (1986) 179 Cal.App.3d 775.)

Lab. Code §§ 4663, 4664, 5903, 5952(d); Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604 (en banc)

A finding of apportionment must be based on substantial evidence, including a medical opinion framed in terms of reasonable medical probability, based on pertinent facts, adequate examination and history, and set forth reasoning in support of its conclusions.

The WCAB found Dr. Mandell's apportionment determinations met the substantial evidence standard.

From the decision · page 14Further, decisions by the Appeals Board must be supported by substantial evidence. (Lab. Code, § 5903, 5952(d);2 Lamb v. Workmen's Comp. Appeals Bd. (1974) 11 Cal.3d 274 [39 Cal.Comp.Cases 310]; Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312 [35 Cal.Comp.Cases 500]; LeVesque v. Workmen's Comp. Appeals Bd. (1970) 1 Cal.3d 627 [35 Cal.Comp.Cases 16].) 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 v. Marshalls (2005) 70 Cal.Comp.Cases 604, 621 (Appeals Board en banc).) "Medical reports and opinions are not substantial evidence if they are known to be erroneous, or if they are based on facts no longer germane, on inadequate medical histories and examinations, or on incorrect legal theories.

County of Santa Clara v. Workers' Comp. Appeals Bd. (Justice), 49 Cal. App. 5th 605

Hikida precludes apportionment only where industrial medical treatment is the sole cause of permanent disability.

The WCAB found that applicant's disability was caused by various work injuries, not solely by surgery, so Hikida did not preclude apportionment.

From the decision · page 8Bank of America (2010) 75 Cal.Comp.Cases 613 (Appeals Board en banc); Almaraz-Guzman II, supra, 74 Cal.Comp.Cases 1086-1087, 1101.) Moreover, in County of Santa Clara v. Workers' Comp. Appeals Bd. (Justice), 49 Cal. App. 5th 605, 615, the Court of Appeal discussed apportionment as follows, "Although parts of the Hikida opinion can be read to announce a broader rule that there should be no apportionment when medical treatment increases or precedes permanent disability, it is clear that the rule is actually much narrower. Put differently, Hikida precludes apportionment only where the industrial medical treatment is the sole cause of the permanent disability."

What proof carried it

The evidence the panel weighed, by kind.

Testimony and credibilityfavours Defendant prevailed

Applicant's testimony that his condition deteriorated as he continued to perform job duties after the 2002 injury, supporting cumulative trauma and apportionment findings.

From the decision · page 8Here, applicant contends that there is no substantial evidence reflecting that he suffered a cumulative trauma through December 26, 2006 (ADJ7688594) and that Hikida precludes apportionment in this matter because his disability is a result of a failed laminectomy. However, at trial, the admitted facts in ADJ7688594 reflected that applicant had a cumulative injury through December 26, 2006. (Minutes of Hearing and Summary of Evidence (MOH/SOE), January 26, 2021, p. 3.) Applicant does not acknowledge that stipulation or provide good cause to set aside that stipulation. (County of Sacramento v. Workers Compensation Appeals Bd., (Weatherall) (2000) 65 Cal. Comp. Cases 1.) Moreover, applicant himself testified that after his 2002 injury he only performed half of his job duties, that his symptoms worsened as a result of working, and that "the work was wearing him down." (MOH/SOE, pp. 8-9, 12.) Similarly, Dr.

Medical recordsfavours Defendant prevailed

Medical records showing applicant had a history of back pain and disability dating back to at least 1993, supporting apportionment to pre-existing conditions.

From the decision · page 15Dr. stated that in his opinion the 2002 injury caused a whole person impairment of 8% and that he would apportion 10% of applicant's whole person impairment to the 2002 injury. Section 4664 apportionment does not apply to the 2002 injury because the 2002 injury was rated and settled under a different standard. Additionally, Dr. Mandell's retroactive rating was not the basis of the Stipulations with Request for Award. Further, Dr. Mandell did not retract his opinion that the prior industrial injury caused 10% of the current permanent disability. Accordingly, 10% of applicant's impairment is attributed to the 2002 injury. Moreover, Dr. Mandell's other apportionment determinations are also substantial evidence. The medical reports that he and Dr. Chan reviewed document that applicant had a history of back pain which caused disability dating back to at least 1993, and in 1998, applicant was a candidate for lumbar surgery. Additionally, in 2003 applicant's x-rays were "remarkable" for "marked degenerative changes" in the lumbar spine. (Exhibit H, pp. 1.)

ADJ3359423 · April 27, 2021

What the panel ordered

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

What proof carried it

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