What the panel ordered
The Board rescinds the WCJ's September 27, 2021 Findings and Award and issues a new Findings and Award granting applicant 57% permanent disability without reduction for apportionment.
Applicant seeks reconsideration of the Findings and Award issued on September 27, 2021, by the WCJ, which found 25% permanent disability after apportionment. The WCJ filed a Report and Recommendation on Petition for Reconsideration recommending denial of reconsideration. The Board rescinds the WCJ's F&A and issues a new F&A awarding 57% permanent disability without apportionment.
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 QME's apportionment opinion did not constitute substantial evidence because it lacked adequate causation analysis, so defendant did not meet burden of proof on apportionment. The Board rescinded the WCJ's apportionment reduction and awarded 57% permanent disability without apportionment.
From the decision · page 1Applicant seeks reconsideration of the "Findings and Award" (F&A) issued on September 27, 2021, by the workers' compensation administrative law judge (WCJ). The WCJ found, in pertinent part, that applicant's permanent disability was 25% after apportionment.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Dr. Fait's apportionment opinion did not adequately explain causation or how prior apportionment applied to changed impairment after cervical fusion surgery.
Favours Applicant prevailed
Without adequate explanation, the opinion did not constitute substantial medical evidence, leading to rejection of apportionment reduction.
From the decision · page 5Dr. Fait's apportionment opinions do not constitute substantial evidence because he does
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 assigned 5% WPI to cervical and lumbar spine, later 25% WPI to cervical after fusion surgery. Opined 70% of lumbar impairment due to preexisting degenerative changes and 30% to industrial injury. Apportionment opinion lacked adequate causation analysis and was rejected as substantial evidence.
The Board found Dr. Fait's apportionment opinion did not adequately explain causation and did not constitute substantial evidence.
From the decision · page 2For applicant's orthopedic injuries he was seen by qualified medical evaluator (QME) James Fait, M.D., who authored three reports in evidence and was deposed. (Defendant's Exhibits C, D, E, and F.) Dr. Fait initially assigned 5% WPI to both the cervical and lumbar spine using the Diagnosis Related Estimate (DRE) chart of the AMA Guides, assigning category II. (Defendant's Exhibit C, Report of James Fait, M.D., December 11, 2017, pp. 12-13. )
Evaluated applicant's headaches and assigned 5% whole-person impairment based on cranial nerve impairment analogy.
From the decision · page 2(Defendant's Exhibit G, Report of Isaac Bakst, M.D. November 14, 2018, p. 1.)
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
Apportionment must be based on reasonable medical probability and causation analysis, and must constitute substantial evidence.
The Board applied this standard to reject the QME's apportionment opinion for lack of adequate causation analysis.
From the decision · page 4In Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604 [2005 Cal. Wrk. Comp. LEXIS 71] (Appeals Board en banc) (Escobedo), we explained:
What proof carried it
The evidence the panel weighed, by kind.
Dr. Fait's apportionment opinion lacked adequate causation analysis and explanation for changed impairment after cervical fusion surgery.
From the decision · page 5Dr. Fait's apportionment opinions do not constitute substantial evidence because he does
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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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