What the panel ordered
The November 8, 2021 Findings, Award, and Order is rescinded and the matter is returned to the WCJ for further proceedings consistent with the opinion to issue a new decision.
Defendant sought reconsideration of the Findings, Award, and Order issued by the WCJ on November 8, 2021, which found that the AME's opinions on apportionment were not substantial evidence and awarded combined permanent disability.
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 WCJ and WCAB found that the AME Dr. Sommer's opinions on apportionment lacked the necessary explanation required by Escobedo to be substantial evidence, leading to rescission and remand for further proceedings.
From the decision · page 4Here, as the WCJ stated in the Opinion on Decision, Dr. Sommer "...does not address the requirements set out in Escobedo, in that his opinions generally leave out,... the necessary explanation of why and how the pathology and prior injury result in the current disability, and why and how these conditions lead him to choose the percentages that he does." (F&A, pp. 7 § 8, Opinion on Decision.) In his Report, the WCJ explained, "Considering that the missing analysis here is required by Escobedo to find that the opinion is substantial evidence, these faults are fatal to the substantiality of his opinion on apportionment of disability in the back." (Report, p. 3.)
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Dr. Sommer's apportionment opinions lacked the necessary explanation required by Escobedo to be substantial evidence.
Favours Defendant prevailed
This led the WCJ and WCAB to reject the opinions and rescind the prior award, requiring further proceedings.
From the decision · page 4Here, as the WCJ stated in the Opinion on Decision, Dr. Sommer "...does not address the requirements set out in Escobedo, in that his opinions generally leave out,... the necessary explanation of why and how the pathology and prior injury result in the current disability, and why and how these conditions lead him to choose the percentages that he does." (F&A, pp. 7 § 8, Opinion on Decision.) In his Report, the WCJ explained, "Considering that the missing analysis here is required by Escobedo to find that the opinion is substantial evidence, these faults are fatal to the substantiality of his opinion on apportionment of disability in the back." (Report, p. 3.)
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.
Initially opined 60% apportionment to the 2013 injury and 40% to a prior injury; later changed opinion to 100% apportionment to prior injury and natural progression; finally opined 30% to recent injury, 10% to subsequent injury, and 60% to prior injury natural progression.
The WCJ and WCAB found Dr. Sommer's apportionment opinions lacked the necessary explanation to be substantial evidence under Escobedo.
From the decision · page 2...[T]he patient's age is such that one would expect, and imaging suggests as well, that there was a pre-existent but apparently clinically silent condition. Given the work that he had done all along, which had certain physical demands involved, I conclude there is a reason for non-industrial apportionment of approximately 10%. Approximately 90% of the disability in the cervical spine and right shoulder is a consequence of the instant 10/23/13 injury. With respect to the low back, items to consider for apportionment are the earlier injury in about 2000 resulting in surgery and an award of disability. About this we know that the patient had ongoing symptoms, required Vicodin three times a day, was receiving shots from Dr Sabet and has described a limitation of lifting at about 40 pounds.... Thus, I find no basis to invoke a cumulative injury mechanism. Rather, the whole apportionment goes between the instant 10/23/13 injury and the prior industrial injury at Grass Manufacturing. Based on the presently available facts, I conclude apportionment is approximately 60% to the instant 10/13 injury and approximately 40% to the pre-existent injury in about 2000. (Joint Exh. A, pp. 9 § 10.)
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Labor Code §§ 5903, 5952
An award must be supported by substantial evidence considering the entire record.
The WCJ and WCAB applied this standard to evaluate the sufficiency of medical opinions on apportionment.
From the decision · page 3An award, order or decision by the Appeals Board must be supported by substantial
Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604 (Appeals Board en banc)
To constitute substantial evidence on apportionment, the medical opinion must disclose familiarity with apportionment concepts and identify approximate percentages of disability due to the injury and other factors, with explanation.
The WCJ and WCAB found Dr. Sommer's opinions did not meet the Escobedo requirements for substantial evidence on apportionment.
From the decision · page 4v. Workers' Comp. Appeals Bd. (2007) 40 Cal.4th 1313, 1321 [72 Cal.Comp.Cases 565].) 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 identify 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. (Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604 (Appeals Board en banc).) The physician must also explain the nature of the other factors, how and why those factors were 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. (Id. at 621.)
Benson v. Workers' Comp. Appeals Bd. (2009) 170 Cal.App.4th 1535
An injured worker may be entitled to combined permanent disability when the physician cannot parcel out approximate percentages caused by successive injuries.
The WCJ and WCAB cited Benson to explain when combined awards are justified if apportionment is not possible.
From the decision · page 1Defendant seeks reconsideration of the Findings, Award, and Order (F&A) issued by the workers' compensation administrative law judge (WCJ) on November 8, 2021, wherein the WCJ found in pertinent part that the opinions of agreed medical examiner (AME) Michael A Sommer M.D., regarding apportionment are not substantial evidence, and therefore "under Benson a combined award of permanent disability is justified;"2 and that applicant's two injuries caused 64% "combined disabilities." (F&A, p. 2.)
What proof carried it
The evidence the panel weighed, by kind.
Dr. Sommer's opinions lacked the necessary explanation required by Escobedo to be substantial evidence on apportionment.
From the decision · page 4Here, as the WCJ stated in the Opinion on Decision, Dr. Sommer "...does not address the requirements set out in Escobedo, in that his opinions generally leave out,... the necessary explanation of why and how the pathology and prior injury result in the current disability, and why and how these conditions lead him to choose the percentages that he does." (F&A, pp. 7 § 8, Opinion on Decision.) In his Report, the WCJ explained, "Considering that the missing analysis here is required by Escobedo to find that the opinion is substantial evidence, these faults are fatal to the substantiality of his opinion on apportionment of disability in the back." (Report, p. 3.)
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About this page
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