ADJ10232171 · March 25, 2022

The issue of attorney fees was deferred pending further development of the record.

From the decision · page 9Accordingly, we grant reconsideration, and we affirm the F&A including the rating of applicant's disability caused by factors other than that caused by the right knee and left knee injury; and we amend the F&A to defer the issue of the applicant's right and left knee disability; based thereon the issue of applicant's disability caused by the cumulative injury at issue herein is deferred; and the issue of attorney fees is deferred. We amend the Award and Order, and return the matter to the WCJ for further proceedings consistent with this opinion.

Because the knee disability issue was deferred, the issue of disability caused by the cumulative injury was also deferred.

From the decision · page 9Accordingly, we grant reconsideration, and we affirm the F&A including the rating of applicant's disability caused by factors other than that caused by the right knee and left knee injury; and we amend the F&A to defer the issue of the applicant's right and left knee disability; based thereon the issue of applicant's disability caused by the cumulative injury at issue herein is deferred; and the issue of attorney fees is deferred. We amend the Award and Order, and return the matter to the WCJ for further proceedings consistent with this opinion.

The reports from orthopedic QMEs Dr. Einbund and Dr. Danzig were found not to be substantial evidence regarding the applicant's knee disability and apportionment, leading to deferral of the knee disability issue for further development.

From the decision · page 9Accordingly, we grant reconsideration, and we affirm the F&A including the rating of applicant's disability caused by factors other than that caused by the right knee and left knee injury; and we amend the F&A to defer the issue of the applicant's right and left knee disability; based thereon the issue of applicant's disability caused by the cumulative injury at issue herein is deferred; and the issue of attorney fees is deferred. We amend the Award and Order, and return the matter to the WCJ for further proceedings consistent with this opinion.

Reports from Dr. Einbund and Dr. Danzig were not substantial evidence on applicant's knee disability and apportionment.

Favours Defendant prevailed

Led to deferral of knee disability issue for further development.

From the decision · page 9Accordingly, we grant reconsideration, and we affirm the F&A including the rating of applicant's disability caused by factors other than that caused by the right knee and left knee injury; and we amend the F&A to defer the issue of the applicant's right and left knee disability; based thereon the issue of applicant's disability caused by the cumulative injury at issue herein is deferred; and the issue of attorney fees is deferred. We amend the Award and Order, and return the matter to the WCJ for further proceedings consistent with this opinion.

Rated knee impairment based on arthritis and reduced cartilage intervals but did not provide an Almaraz/Guzman analysis; opinion not substantial evidence for knee disability or apportionment.

Did not provide an Almaraz/Guzman analysis explaining why a strict Guides rating does not accurately reflect applicant's disability.

From the decision · page 7Workers' Compensation Appeals Board (2010) 187 Cal.App.4th 808 [75 Cal.Comp.Cases 837].) However, to properly rate an injured worker's disability by applying an Almaraz/Guzman analysis, the doctor is expected to 1) provide a strict rating per the Guides, 2) explain why the strict rating does not accurately reflect the applicant's disability, 3) provide an alternative rating using the four corners of the Guides, and 4) explain why that alternative rating more accurately reflects applicant's level of disability. (Milpitas Unified School Dist. v. Workers' Compensation Appeals Board (2010) 187 Cal.App.4th 808, at 828-829 [75 Cal.Comp.Cases 837].) Dr. Einbund did not provide an Almaraz/Guzman analysis explaining why a strict Guides rating does not accurately reflect applicant's disability, and therefore his opinion is not substantial evidence regarding applicant's disability.

Rated knee disability based on knee flexion contracture and found no impairment rating for arthritis; report not substantial evidence on permanent disability or apportionment.

Did not diagnose or address reduced cartilage interval; inconsistent with Guides Table 17-31; report not substantial evidence.

From the decision · page 8(Def. Exh. BB, p. 69, record review) but he did not diagnose or otherwise address the reduced cartilage interval in his report. Absent a discussion of that condition as it pertains to applicant's disability, Dr. Danzig's report is not substantial evidence on the issue of permanent disability.

Diagnosed sleep disorder secondary to nonrestorative sleep; report found substantial evidence supporting 3% rating for sleep disorder.

Report based on patient sleep history, Epworth Sleepiness Scale, and Fatigue Severity Scale; no contradictory evidence in record; WCJ found report substantial evidence.

From the decision · page 6Dr. Nudleman gave the applicant a 3% rating based upon the evidence from his examination of the applicant including an Epworth study, applicant's patient sleep history, fatigue severity scale and his responses to questions regarding his activities of daily living. I considered Dr. Nudleman's reporting as a whole and its entirety, it was predicated on specific factors enumerated by Dr. Nudleman. I find this evidence relevant and adequate to support Dr. Nudleman's conclusion regarding an assignment of disability. I find Dr. Nudleman's reporting to be substantial evidence. (Report, p. 4.)

Labor Code 4663(c)

Apportionment requires determining the percentage of disability caused by injury arising out of and in the course of employment versus other factors.

Reports from QMEs must accurately determine level of disability to be substantial evidence for apportionment.

From the decision · page 8Finally, on the issue of apportionment, the reporting physician shall determine what percentage of an injured worker's disability "was caused by the direct result of injury arising out of and occurring in the course of employment and what approximate percentage of the permanent disability was caused by other factors..." (Lab. Code, § 4663, subd. (c).) Apportionment is the process utilized to segregate permanent disability caused by an industrial injury from the disability attributable to other industrial injuries or to nonindustrial factors, in order to properly allocate legal responsibility. (Brodie v. Workers' Comp. Appeals Bd. (2007) 40 Cal.4th 1313, 1321 [72 Cal.Comp.Cases 565].) As we explained, the reports from Dr. Einbund and Dr. Danzig are not substantial evidence regarding applicant's permanent disability. Clearly, in order to accurately determine the portion of disability caused by applicant's injury, as opposed to other factors, the doctors must first accurately determine applicant's level of disability. Since the doctors' reports are not substantial evidence as to the issue of permanent disability, they are, in turn, not substantial evidence on the issue of apportionment.

Dr. Nudleman's report including patient sleep history, Epworth Sleepiness Scale, and Fatigue Severity Scale

From the decision · page 6Defendant's argument that, "Dr. Nudleman failed to address or explain applicant's reduced daytime alertness and how applicant's sleep disorder affects his performance of activities of daily [living]" is inconsistent with the doctor's report, including the various documents and test results attached thereto. (See (App. Exh. 1, pp. 8 § 13.) We also note that the trial record contains no evidence contrary to or inconsistent with Dr. Nudleman's opinions. Therefore, we agree with the WCJ's conclusion that Dr. Nudleman's report constitutes substantial evidence.