ADJ9372475 — California WCAB decision

What the panel ordered

Joint Findings and Award issued by the WCJ on June 17, 2021 is AFFIRMED.

Defendant Ace sought reconsideration of the Joint Findings and Award issued by the WCJ on June 17, 2021, which found 100% permanent disability and no apportionment. The Board granted reconsideration and now affirms the WCJ's decision.

Read the official decision →

This docket was decided more than once. Shown here is the latest released decision; we also hold March 4, 2021.

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 prevailedlumbar spine

Applicant underwent lumbar spine surgery on March 5, 2013, was placed on temporary disability, and the surgery caused permanent disability. The record supports March 5, 2013 as the date of injury.

From the decision · page 14Applicant underwent lumbar spine surgery on March 5, 2013. She was placed on temporary disability by her doctor and was off work for approximately 10 days following the surgery. The record also demonstrates that the surgery caused permanent disability to her spine. Applicant testified at trial that she was told by her doctor that the surgery was necessary due to her

The facts that decided it

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

Applicant's failed back syndrome was solely caused by surgical treatment for both injuries, making the injuries inextricably intertwined and precluding apportionment.

Favours Applicant prevailed

This fact justified a single permanent disability award without apportionment.

From the decision · page 12In this matter, applicant's failed back syndrome is a new condition that was solely caused by the surgical treatment she underwent for both injuries. Dr. Segil's 80% WPI rating was based on applicant being wheelchair dependent, which is necessary due to her failed back syndrome. Applicant is therefore entitled to a single permanent disability award for her injuries without apportionment both because her two injuries are inextricably intertwined and her treatment was the sole cause of her permanent disability (i.e., the treatment was the sole cause of the condition to which Dr. Segil attributes her permanent disability for the lumbar spine).

Applicant is permanently totally disabled, confined to a wheelchair, and requires assistance for all activities of daily living.

Favours Applicant prevailed

Supported the finding of 100% permanent disability.

From the decision · page 13In any event, Dr. Kanter, Dr. Segil and Dr. Mills all concluded that applicant is permanently totally disabled as a result of her industrial injuries. Applicant is confined to a wheelchair. She requires assistance to perform essentially all activities of daily living. She must wear adult diapers, is in constant pain and has difficulty sleeping. There is therefore substantial evidence in the record to support the WCJ's finding that applicant is permanently totally disabled. (See e.g., LeBoeuf v. Workers' Comp. Appeals Bd. (1983) 34 Cal.3d 234 [48 Cal.Comp.Cases 587]; Ogilvie v. Workers' Comp. Appeals Bd. (2011) 197 Cal.App.4th 1262 [76 Cal.Comp.Cases 624]; see also Lab. Code, § 4662(b).)

Ace waited nearly five years after filing an Answer to request a Panel QME and participated in the AME process.

Favours Applicant prevailed

Justified denial of Ace's request for a QME panel as untimely and unnecessary.

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 · orthopedics

Dr. Segil explained that it would be speculative to parcel out causation for applicant's lumbar spine disability between the 2012 specific injury and the 2013 cumulative trauma injury, and that the injuries are inextricably intertwined. He attributed permanent disability to failed back syndrome caused by surgical treatment for both injuries.

Tribunal credited Dr. Segil's explanation that apportionment was not possible due to intertwined injuries and treatment being the sole cause of permanent disability.

From the decision · page 11substantial evidence].) During his March 26, 2020 deposition, Dr. Segil was provided with additional medical records regarding applicant's spinal condition and treatment. Following review of these records, he explained his conclusion that it would be speculative to parcel out causation for applicant's lumbar spine disability between the 2012 specific injury and the 2013 cumulative trauma injury. He repeated this multiple times and explained that due to the severity of applicant's back condition, which was caused by treatment necessitated by both injuries, he could not parcel out causation of disability between the two injuries without speculating. A medical opinion that is speculative is not substantial evidence. (Id.) Dr. Segil explained to a reasonable medical probability why applicant's injuries are inextricably intertwined and there can thus be no apportionment between the two injuries.

AMERelied upon · orthopedics

Dr. Kanter found industrial causation for multiple body parts, provided WPI ratings, and concluded applicant is eligible for supplemental job displacement benefits but probably cannot participate in retraining due to disability.

Tribunal referenced Dr. Kanter's findings as supporting permanent total disability.

QMERelied upon · psychiatry

Dr. Miles diagnosed major depressive disorder, panic disorder, and somatic symptom disorder, and opined that the predominant cause was applicant's reaction to orthopedic injuries. He assigned a GAF score of 37 (57% WPI).

Tribunal referenced Dr. Miles' findings as supporting permanent total disability.

The rules the panel named

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

Benson v. Workers' Comp. Appeals Bd. (2009) 170 Cal.App.4th 1535, 1560 [74 Cal.Comp.Cases 113]

Permanent disability apportionment must be based on substantial evidence and the physician must parcel out causative sources if possible; if not, a combined award may be justified.

Applied to determine that no apportionment was possible between intertwined injuries, justifying a single award.

From the decision · page 10In determining apportionment, the evaluating physician must "look at the current disability and parcel out its causative sources--nonindustrial, prior industrial, current industrial--and decide the amount directly caused by the current industrial source." (Brodie v. Workers' Comp. Appeals Bd. (2007) 40 Cal.4th 1313, 1328 [72 Cal.Comp.Cases 565].) When two industrial injuries both cause permanent disability, the permanent disability caused by each must be separately awarded, unless the evaluating physician cannot parcel out, with reasonable medical probability, the approximate percentages to which each distinct industrial injury causally contributed to the employee's overall permanent disability. (Benson v. Workers' Comp. Appeals Bd. (2009) 170 Cal.App.4th 1535, 1560 [74 Cal.Comp.Cases 113].) The Court in Benson recognized that a single permanent disability award may be appropriate if the physician cannot parcel out the percentage caused by each industrial injury to a reasonable medical probability. (Id. ["In such limited circumstances, when the employer has failed to meet its burden of proof, a combined award of permanent disability may still be justified."])

Lab. Code, § 4664(a)

Employer is only liable for the percentage of permanent disability directly caused by the industrial injury.

Cited as the general rule for apportionment, but found inapplicable where treatment was the sole cause of permanent disability.

From the decision · page 9Section 4664(a) separately states that the "employer shall only be liable for the percentage of permanent disability directly caused by the injury arising out of and occurring in the course of employment." (Lab. Code, § 4664(a).)

Lab. Code, § 5412

Date of cumulative injury is when the employee first suffers disability and knows it is work related.

Applied to find March 5, 2013 as the date of injury for cumulative trauma claim.

From the decision · page 14Ace contends that the date of injury for the cumulative trauma claim must be April 8, 2013, the last date that applicant worked for the employer. Although the period of liability under section 5500.5 is limited to the last year of injurious exposure, the actual date of injury under section 5412 may be different than an employee's last date of work. "Pursuant to section 5412, the date of a cumulative injury is the date the employee first suffers a `disability' and has reason to know the disability is work related." (Western Growers Ins. Co. v. Workers' Comp. Appeals Bd. (Austin) (1993) 16 Cal.App.4th 227, 238 [58 Cal.Comp.Cases 323], emphasis in original.) Disability has been defined as "an impairment of bodily functions which results in the impairment of earnings capacity." (J.T. Thorp v. Workers' Comp. Appeals Bd. (1984) 153 Cal.App.3d 327, 336 [49 Cal.Comp.Cases 224].) Disability can be either temporary or permanent. (Chavira v. Workers' Comp. Appeals Bd. (1991) 253 Cal.App.3d 463, 474 [56 Cal.Comp.Cases 631].) Whether there is temporary or permanent disability indicating the date for a cumulative trauma injury is a question of fact, which must be supported by substantial evidence. (Austin, supra, 16 Cal.App.4th at pp. 233-235.)

Lab. Code, § 4062.2

A party must timely request a QME panel or risk waiver; delay may justify denial of request.

Applied to deny Ace's late request for a QME panel in orthopedics.

ADJ9372475 · March 14, 2022

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

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