What the panel ordered
Findings and Award amended to reflect 31% permanent disability with no apportionment; Petition for Reconsideration otherwise denied.
Petition for Reconsideration granted in part and denied in part; matter reviewed by WCJ report recommending amendment of Findings and Award to reflect non-apportioned permanent disability and denial of further record development and independent medical examiner appointment.
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 found that the PTP Dr. Paul Burton's apportionment opinion was not framed in terms of reasonable medical probability and lacked adequate explanation, thus failing to meet the legal standard for apportionment. Therefore, no apportionment was made for the right knee injury.
From the decision · page 1Labor Code1 section 4663(a) provides that "[a]pportionment of permanent disability shall be based on causation." (Lab. Code, § 4663(a).) Section 4664(a) states that "[t]he 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).) The defendant has the burden of proof on the issue of apportionment. (Kopping v. Workers' Comp. Appeals Bd. (2006) 142 Cal.App.4th 1099, 1114 [71 Cal.Comp.Cases 1229].)
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Dr. Paul Burton's apportionment opinion was not framed in terms of reasonable medical probability and lacked explanation of how obesity and age contributed to osteoarthritis and disability.
Favours Applicant prevailed
This failure meant the defendant did not meet its burden of proof on apportionment, leading to a non-apportioned permanent disability award.
From the decision · page 1We agree with the WCJ that the opinion of primary treating physician (PTP) Paul Burton, M.D., is not substantial medical evidence supporting a finding of apportionment. (Hegglin v. Workers' Comp. Appeals Bd. (1971) 4 Cal.3d 162, 169 [36 Cal.Comp.Cases 93]; Place v. Workmen's Workers' Comp. Appeals Bd. (1970) 3 Cal.3d 372, 378-379 [35 Cal.Comp.Cases 525]; Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 621 (Appeals Board en banc) [a medical
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. Burton's apportionment opinion was found not to meet the legal standard of reasonable medical probability and lacked sufficient explanation for apportionment of the right knee permanent disability.
The opinion was based on reasonable medical evidence rather than reasonable medical probability and did not adequately explain how obesity and age contributed to osteoarthritis and disability.
From the decision · page 1We agree with the WCJ that the opinion of primary treating physician (PTP) Paul Burton, M.D., is not substantial medical evidence supporting a finding of apportionment. (Hegglin v. Workers' Comp. Appeals Bd. (1971) 4 Cal.3d 162, 169 [36 Cal.Comp.Cases 93]; Place v. Workmen's Workers' Comp. Appeals Bd. (1970) 3 Cal.3d 372, 378-379 [35 Cal.Comp.Cases 525]; Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 621 (Appeals Board en banc) [a medical
Dr. Kolesnik opined that the applicant's osteoarthritis was naturally progressing and that the total knee replacement would have been needed regardless of the industrial injury, but his opinion was not relied upon by the WCJ.
Dr. Kolesnik believed he could make an apportionment determination without reviewing all diagnostic imaging and operative reports, which affected the evidentiary weight of his report but did not demonstrate bias.
From the decision · page 10In the Petition for Reconsideration Applicant asserts that this WCJ failed to consider the argument that Dr. Robert Kolesnik demonstrated bias against the applicant on the issue of apportionment. This WCJ does not believe that Dr. Robert Kolesnik demonstrated bias against the applicant with regard to the issue of apportionment. Dr. Robert Kolesnik expressed his openness to review and comment on the operative report of Dr. Redix which was never made available to him. (Joint Exhibit A-1, Pg. 93 and 99). He later stated that he did not believe he needed to review these reports due to his impression that the applicant did not sustain a significant knee injury based on the applicant having not twisted her knee, and having not fallen to the floor at the time of injury. He noted that applicant had worse osteoarthritis on her uninjured left knee, and also noted that she had stood on her knees equally during her life. Dr.
Dr. Solomon served as PTP for the right wrist; his reports were considered substantial medical evidence by the WCJ.
From the decision · page 8Tyler and McClune are distinguishable from this case. In Tyler, the WCJ did not feel the medical evidence presented at Trial was substantial, and as such it was determined that the WCJ had authority to develop the record. In the instant matter, the medical reporting of Dr. Paul Burton and Dr. Jason Solomon, reports of which this court relied on, constituted substantial medical evidence. Furthermore, neither party raised the issue of Dr. Paul Burton or Dr. Jason Solomon not being substantial medical evidence on the Pre-Trial Conference Statement. The court did not rely on the PQME reporting of Robert Kolesnik and as such the arguments applicant raised as to why his reporting is not substantial evidence are not relevant. As such, unlike in Tyler this court does not see the need to develop the medical record as there is substantial medical evidence that can be relied upon.
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Labor Code sections 4663(a) and 4664(a); Kopping v. Workers' Comp. Appeals Bd. (2006) 142 Cal.App.4th 1099; Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604 (Appeals Board en banc)
Apportionment of permanent disability must be based on causation and framed in terms of reasonable medical probability, not speculation, with adequate reasoning and examination.
The WCJ applied these standards to reject Dr. Burton's apportionment opinion for lack of reasonable medical probability and adequate explanation.
From the decision · page 1Labor Code1 section 4663(a) provides that "[a]pportionment of permanent disability shall be based on causation." (Lab. Code, § 4663(a).) Section 4664(a) states that "[t]he 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).) The defendant has the burden of proof on the issue of apportionment. (Kopping v. Workers' Comp. Appeals Bd. (2006) 142 Cal.App.4th 1099, 1114 [71 Cal.Comp.Cases 1229].)
What proof carried it
The evidence the panel weighed, by kind.
Dr. Paul Burton's apportionment opinion lacked reasonable medical probability and adequate explanation, undermining its evidentiary weight.
From the decision · page 1We agree with the WCJ that the opinion of primary treating physician (PTP) Paul Burton, M.D., is not substantial medical evidence supporting a finding of apportionment. (Hegglin v. Workers' Comp. Appeals Bd. (1971) 4 Cal.3d 162, 169 [36 Cal.Comp.Cases 93]; Place v. Workmen's Workers' Comp. Appeals Bd. (1970) 3 Cal.3d 372, 378-379 [35 Cal.Comp.Cases 525]; Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 621 (Appeals Board en banc) [a medical
Dr. Robert Kolesnik's opinion was not relied upon due to evidentiary weight concerns and lack of bias.
From the decision · page 10In the Petition for Reconsideration Applicant asserts that this WCJ failed to consider the argument that Dr. Robert Kolesnik demonstrated bias against the applicant on the issue of apportionment. This WCJ does not believe that Dr. Robert Kolesnik demonstrated bias against the applicant with regard to the issue of apportionment. Dr. Robert Kolesnik expressed his openness to review and comment on the operative report of Dr. Redix which was never made available to him. (Joint Exhibit A-1, Pg. 93 and 99). He later stated that he did not believe he needed to review these reports due to his impression that the applicant did not sustain a significant knee injury based on the applicant having not twisted her knee, and having not fallen to the floor at the time of injury. He noted that applicant had worse osteoarthritis on her uninjured left knee, and also noted that she had stood on her knees equally during her life. Dr.
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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.
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