ADJ3937323 — California WCAB decision

What the panel ordered

Petition for reconsideration granted; amended award affirmed with modifications to temporary disability indemnity rate and sums payable

Petition for reconsideration granted; decision after reconsideration issued affirming and amending the prior findings and award

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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.

Cumulative traumaApplicant prevailedbilateral upper extremities · gastritis · irritable bowel syndrome · psyche

The WCJ found the applicant sustained a cumulative injury to the specified body parts during employment, supported by unrebutted AME opinions.

From the decision · page 4portion of the findings and award that required CIGA to pay the Employment Development Department (EDD) for reimbursement of benefits and interest.... Based on the stipulations of the parties at trial, it was found that applicant was employed during the period of October 19, 1979 to June 18, 1991 as a Machine Operator, at Sun Valley, California, by Roy J. Maier Products, whose workers' compensation insurance carrier was Fremont Indemnity Company, which is now in liquidation. Based on the Schedule for Rating Permanent Disabilities issued in July 1988, which is the applicable schedule for this injury, it was found that applicant's Occupational Group Number is 11, which corresponds to a machine or hand cutter of various materials. Based on the findings of Agreed Medical Evaluators (AMEs) Mark Mandel, M.D., Gerald Markovitz, M.D., Brian Jacks, M.D., and Mitchell Silverman, M.D., all of whose opinions are entitled to great weight for their presumed expertise and neutrality as medical experts jointly selected by the parties, it was found that applicant sustained a cumulative injury arising out of and occurring in the course of employment to her bilateral upper extremities, gastritis (GERD), irritable bowel syndrome (IBS), and psyche, arising out of and occurring in the course of her employment by Roy J. Maier Products.

The facts that decided it

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

Unrebutted AME opinions found cumulative injury to bilateral upper extremities, gastritis, IBS, and psyche arising out of employment.

Favours Applicant prevailed

Supported finding of compensable cumulative injury and entitlement to benefits.

From the decision · page 4portion of the findings and award that required CIGA to pay the Employment Development Department (EDD) for reimbursement of benefits and interest.... Based on the stipulations of the parties at trial, it was found that applicant was employed during the period of October 19, 1979 to June 18, 1991 as a Machine Operator, at Sun Valley, California, by Roy J. Maier Products, whose workers' compensation insurance carrier was Fremont Indemnity Company, which is now in liquidation. Based on the Schedule for Rating Permanent Disabilities issued in July 1988, which is the applicable schedule for this injury, it was found that applicant's Occupational Group Number is 11, which corresponds to a machine or hand cutter of various materials. Based on the findings of Agreed Medical Evaluators (AMEs) Mark Mandel, M.D., Gerald Markovitz, M.D., Brian Jacks, M.D., and Mitchell Silverman, M.D., all of whose opinions are entitled to great weight for their presumed expertise and neutrality as medical experts jointly selected by the parties, it was found that applicant sustained a cumulative injury arising out of and occurring in the course of employment to her bilateral upper extremities, gastritis (GERD), irritable bowel syndrome (IBS), and psyche, arising out of and occurring in the course of her employment by Roy J. Maier Products.

Dr. Mandel's unrebutted opinion found continuous temporary disability from March 19, 1991 to March 22, 2000.

Favours Applicant prevailed

Supported award of temporary disability indemnity for that period.

Dr. Markovitz's apportionment opinion was speculative and insufficiently explained, failing Escobedo standard.

Favours Applicant prevailed

Led to rejection of apportionment and full permanent disability rating awarded.

From the decision · page 6The apportionment opinions of Dr. Markovitz were not applied to the above rating strings because they are speculative and insufficiently explained, and therefore do not constitute substantial medical evidence. As explained by the Appeals Board's en banc opinion in Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604:

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.

AMERelied upon

Found temporary disability from March 19, 1991 to March 22, 2000, and permanent disability of 53.3% with MMI on March 22, 2000.

Unrebutted opinion relied upon for disability periods and rating.

AMERelied upon

Permanent disability rating of 53.3% and MMI date of March 22, 2000, supported by other AMEs.

Unrebutted AME opinions supported the rating and MMI date.

AMERejected

Apportionment opinions rejected for lack of explanation and failure to meet Escobedo standard.

Apportionment opinions were speculative and insufficiently explained, failing Escobedo test.

From the decision · page 6The apportionment opinions of Dr. Markovitz were not applied to the above rating strings because they are speculative and insufficiently explained, and therefore do not constitute substantial medical evidence. As explained by the Appeals Board's en banc opinion in Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604:

AMERelied upon

Supported cumulative injury findings and permanent disability rating.

Unrebutted AME opinions supported findings and rating.

From the decision · page 4portion of the findings and award that required CIGA to pay the Employment Development Department (EDD) for reimbursement of benefits and interest.... Based on the stipulations of the parties at trial, it was found that applicant was employed during the period of October 19, 1979 to June 18, 1991 as a Machine Operator, at Sun Valley, California, by Roy J. Maier Products, whose workers' compensation insurance carrier was Fremont Indemnity Company, which is now in liquidation. Based on the Schedule for Rating Permanent Disabilities issued in July 1988, which is the applicable schedule for this injury, it was found that applicant's Occupational Group Number is 11, which corresponds to a machine or hand cutter of various materials. Based on the findings of Agreed Medical Evaluators (AMEs) Mark Mandel, M.D., Gerald Markovitz, M.D., Brian Jacks, M.D., and Mitchell Silverman, M.D., all of whose opinions are entitled to great weight for their presumed expertise and neutrality as medical experts jointly selected by the parties, it was found that applicant sustained a cumulative injury arising out of and occurring in the course of employment to her bilateral upper extremities, gastritis (GERD), irritable bowel syndrome (IBS), and psyche, arising out of and occurring in the course of her employment by Roy J. Maier Products.

AMERelied upon

Affirmed temporary disability period and permanent disability rating.

Unrebutted opinion affirmed Dr. Mandel's findings.

What proof carried it

The evidence the panel weighed, by kind.

Medical recordsfavours Applicant prevailed

Unrebutted AME opinions of Dr. Mandel, Dr. Markovitz, Dr. Jacks, and Dr. Silverman

From the decision · page 4portion of the findings and award that required CIGA to pay the Employment Development Department (EDD) for reimbursement of benefits and interest.... Based on the stipulations of the parties at trial, it was found that applicant was employed during the period of October 19, 1979 to June 18, 1991 as a Machine Operator, at Sun Valley, California, by Roy J. Maier Products, whose workers' compensation insurance carrier was Fremont Indemnity Company, which is now in liquidation. Based on the Schedule for Rating Permanent Disabilities issued in July 1988, which is the applicable schedule for this injury, it was found that applicant's Occupational Group Number is 11, which corresponds to a machine or hand cutter of various materials. Based on the findings of Agreed Medical Evaluators (AMEs) Mark Mandel, M.D., Gerald Markovitz, M.D., Brian Jacks, M.D., and Mitchell Silverman, M.D., all of whose opinions are entitled to great weight for their presumed expertise and neutrality as medical experts jointly selected by the parties, it was found that applicant sustained a cumulative injury arising out of and occurring in the course of employment to her bilateral upper extremities, gastritis (GERD), irritable bowel syndrome (IBS), and psyche, arising out of and occurring in the course of her employment by Roy J. Maier Products.

expert methodologyfavours Applicant prevailed

Lack of explanation in Dr. Markovitz's apportionment opinion failing Escobedo standard

From the decision · page 6The apportionment opinions of Dr. Markovitz were not applied to the above rating strings because they are speculative and insufficiently explained, and therefore do not constitute substantial medical evidence. As explained by the Appeals Board's en banc opinion in Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604:

ADJ3937323 · September 22, 2023

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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