What the panel ordered
The Board affirmed its prior Decision After Reconsideration of March 2, 2023, finding the applicant permanently and totally disabled from the April 26, 2010 injury without apportionment to the July 14, 2011 injury, and rejected apportionment evidence from Dr. Munday and Dr. Feinberg.
The Appeals Board granted reconsideration to study the factual and legal issues and issued a Decision After Reconsideration affirming in part and rescinding in part the WCJ's findings.
This docket was decided more than once. Shown here is the latest released decision; we also hold March 2, 2023.
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.
The Board found that the medical opinions of Dr. Munday and Dr. Feinberg did not meet the substantial evidence standard for apportionment because they failed to provide detailed reasoning and medical explanation for their apportionment percentages.
From the decision · page 14We conclude that defendants have not met their burden of proof. We reach this conclusion for two reasons. First, the medical opinions of Dr. Munday and Dr. Feinberg do not rise to the level of substantial evidence of apportionment under Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604 [Appeals Board en banc]. Secondly, there is substantial evidence that the injuries sustained by applicant in the first motor vehicle accident left him permanently and totally disabled even before the second accident happened.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Dr. Munday's apportionment opinion lacked medical explanation and reasoning.
Favours Applicant prevailed
This failure undermined the substantiality of his opinion, leading the Board to reject it as substantial evidence of apportionment.
From the decision · page 14As discussed above, Dr. Munday, in his very first report of August 29, 2011, apportioned disability 85% and 15% between the first and second motor vehicle accidents/injuries. Thereafter, the doctor never changed his mind despite applicant's fluctuating medical condition and the varying opinions of other medical and vocational evaluators. More importantly, Dr. Munday gave no medical reason for his 85-15 apportionment percentages in his August 29, 2011 report or in his subsequent report dated July 9, 2012. In both reports, the doctor referred to the second injury as a "mild aggravation" of the first injury. From the outset, Dr. Munday's failure to provide medical reasons for apportionment between the two injuries undermines the substantiality of his opinion, which does not comply with the requirements of substantial evidence as outlined by the Board in Escobedo:
Dr. Feinberg adopted Dr. Munday's apportionment ratio without independent justification.
Favours Applicant prevailed
The Board found this approach flawed and insufficient to constitute substantial evidence, favoring the applicant's position.
Dr. Miner and Dr. Van de Bittner provided substantial evidence that the applicant was permanently and totally disabled from the first injury alone.
Favours Applicant prevailed
The Board relied on their opinions to affirm permanent and total disability without apportionment to the second injury.
From the decision · page 16Dr. Maureen D. Miner served as the first AME in the specialty of physical medicine and rehabilitation. In a report dated April 12, 2018, Dr. Miner concluded that "[f]rom the functional perspective, it is clear that the combination of the two unfortunate motor vehicle accidents puts the applicant in a competitively unemployable state." (Applicant's exhibit 9, p. 21.) Before that report, however, Dr. Miner had testified in her (second) deposition of February 26, 2018 that if applicant's employer had released him the day before the second accident, the doctor would have found him noncompetitive in the open labor market. (Applicant's exhibit 11, p. 134.) Dr. Miner apparently considered applicant incapable of any employment even without considering his brain injury, which is not within her area of expertise.
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.
Dr. Miner concluded that the combination of the two motor vehicle accidents rendered the applicant competitively unemployable and noncompetitive in the open labor market even before the second injury.
Her opinion was relied upon by the Board as substantial evidence of permanent disability without apportionment to the second injury.
From the decision · page 16Dr. Maureen D. Miner served as the first AME in the specialty of physical medicine and rehabilitation. In a report dated April 12, 2018, Dr. Miner concluded that "[f]rom the functional perspective, it is clear that the combination of the two unfortunate motor vehicle accidents puts the applicant in a competitively unemployable state." (Applicant's exhibit 9, p. 21.) Before that report, however, Dr. Miner had testified in her (second) deposition of February 26, 2018 that if applicant's employer had released him the day before the second accident, the doctor would have found him noncompetitive in the open labor market. (Applicant's exhibit 11, p. 134.) Dr. Miner apparently considered applicant incapable of any employment even without considering his brain injury, which is not within her area of expertise.
Dr. Van de Bittner concluded that the applicant was not able to benefit from vocational rehabilitation and was permanently and totally disabled due to the first injury alone.
His opinion was relied upon by the Board as substantial evidence supporting permanent and total disability from the first injury alone.
From the decision · page 16In an evaluation dated March 15, 2018, applicant's vocational expert, Eugene E. Van de Bittner, PhD., reviewed the then-extant medical record, including Dr. Miner's reports and depositions. Dr. Van de Bittner concluded that applicant was not able to benefit from vocational rehabilitation services and had no capacity to be amenable to rehabilitation. (Applicant's exhibit 24, p. 83.) [...] In his deposition of May 23, 2018, Dr. Van de Bittner elaborated further, testifying that "it is clear from the entire combination of medical, neuropsychological, psychological, vocational and labor market factors that [applicant] was totally disabled based on the effects of the April 26, 2010 injury, alone." (Applicant's exhibit 51, p. 13.) Dr. Van de Bittner also testified that the job applicant was doing when he was injured in the second motor vehicle accident was especially designed for him.
Dr. Munday apportioned 85% of disability to the first injury and 15% to the second injury but provided no medical explanation for this apportionment, which the Board found insufficient as substantial evidence.
The Board rejected Dr. Munday's apportionment opinion for lack of medical explanation and reasoning.
From the decision · page 14As discussed above, Dr. Munday, in his very first report of August 29, 2011, apportioned disability 85% and 15% between the first and second motor vehicle accidents/injuries. Thereafter, the doctor never changed his mind despite applicant's fluctuating medical condition and the varying opinions of other medical and vocational evaluators. More importantly, Dr. Munday gave no medical reason for his 85-15 apportionment percentages in his August 29, 2011 report or in his subsequent report dated July 9, 2012. In both reports, the doctor referred to the second injury as a "mild aggravation" of the first injury. From the outset, Dr. Munday's failure to provide medical reasons for apportionment between the two injuries undermines the substantiality of his opinion, which does not comply with the requirements of substantial evidence as outlined by the Board in Escobedo:
Dr. Feinberg adopted Dr. Munday's apportionment ratio without providing independent justification, which the Board found flawed and insufficient as substantial evidence.
The Board rejected Dr. Feinberg's apportionment opinion for lack of independent reasoning and failure to meet substantial evidence standards.
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604
A medical opinion must disclose familiarity with apportionment concepts, describe the apportionable disability in detail, and provide reasoning to be substantial evidence.
The Board applied this standard to reject the apportionment opinions of Dr. Munday and Dr. Feinberg for lack of detailed reasoning and medical explanation.
From the decision · page 5Feinberg's indifference as an "insignificant" error, curable by "a sentence...synthesizing [the] facts into his own view of apportionment, [so that] his reports, findings, and opinions would no doubt constitute substantial medical evidence." (Petition for Reconsideration, p. 19:12-21.) This allegation reflects a misunderstanding of the requirements of substantial evidence set out in Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 621 [Appeals Board en banc]. Therein the Board explained that a medical opinion must disclose familiarity with the concepts of apportionment, describe in detail the exact nature of the apportionable disability, and set forth the basis for the opinion, so that the Board can determine whether the physician is properly apportioning under correct legal principles.
What proof carried it
The evidence the panel weighed, by kind.
Dr. Munday's failure to provide medical reasons for apportionment percentages
From the decision · page 14As discussed above, Dr. Munday, in his very first report of August 29, 2011, apportioned disability 85% and 15% between the first and second motor vehicle accidents/injuries. Thereafter, the doctor never changed his mind despite applicant's fluctuating medical condition and the varying opinions of other medical and vocational evaluators. More importantly, Dr. Munday gave no medical reason for his 85-15 apportionment percentages in his August 29, 2011 report or in his subsequent report dated July 9, 2012. In both reports, the doctor referred to the second injury as a "mild aggravation" of the first injury. From the outset, Dr. Munday's failure to provide medical reasons for apportionment between the two injuries undermines the substantiality of his opinion, which does not comply with the requirements of substantial evidence as outlined by the Board in Escobedo:
Dr. Feinberg's failure to provide independent justification for apportionment
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About this page
- A published decision of the California Workers' Compensation Appeals Board, taken apart by what it turned on. The Board publishes the decision itself; this page adds the extraction and quotes the passage behind every claim.
- The injured worker is not named here, and the case caption is not printed. Physicians appear as the decision names them, because a medical opinion is an act in a public proceeding.
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