What the panel ordered
Findings of Fact and Award affirmed except amended to defer the issues of apportionment of applicant's right knee disability, permanent disability caused by applicant's injury, and attorney fees; matter returned to WCJ for further proceedings.
Applicant sought reconsideration of the WCJ's Findings of Fact and Award dated March 13, 2023, regarding apportionment and permanent disability of the right knee; the WCAB granted reconsideration to further study the issues.
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.
Dr. Craemer's opinion on apportionment did not constitute substantial evidence because he failed to explain the basis for attributing 50% of the right knee disability to the 2013 injury and 50% to cumulative trauma; the issue is deferred for further development of the record.
From the decision · page 3Marshalls (2005) 70 Cal.Comp.Cases 604 (Appeals Board en banc).) Also, the physician must explain the nature of the other factors, how and why those factors are 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.) Here, when addressing apportionment of applicant's right knee disability Dr. Craemer stated, "For the right knee, apportionment is 50% to the 6/9/13 injury and 50% to the continuous trauma." (Joint Exh. 1, p. 17.) However, he did not identify the factors of permanent disability
The issue of attorney fees for applicant's attorney is deferred.
From the decision · page 54. The issue of permanent disability caused by applicant's injury is deferred. 5. The issue of apportionment of applicant's right knee disability is deferred; pursuant to Labor Code section 3212, there is no legal apportionment as to the disability caused by applicant's hiatal hernia. 7. The issue of attorney fees for applicant's attorney is deferred.
The issue of permanent disability caused by applicant's injury is deferred pending further development of the record.
From the decision · page 54. The issue of permanent disability caused by applicant's injury is deferred. 5. The issue of apportionment of applicant's right knee disability is deferred; pursuant to Labor Code section 3212, there is no legal apportionment as to the disability caused by applicant's hiatal hernia. 7. The issue of attorney fees for applicant's attorney is deferred.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Dr. Craemer did not explain how the 2013 injury caused current right knee disability or the basis for attributing 50% of disability to it.
Favours Applicant prevailed
This lack of explanation meant his opinion was not substantial evidence, requiring deferral and further development of the record.
From the decision · page 3Marshalls (2005) 70 Cal.Comp.Cases 604 (Appeals Board en banc).) Also, the physician must explain the nature of the other factors, how and why those factors are 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.) Here, when addressing apportionment of applicant's right knee disability Dr. Craemer stated, "For the right knee, apportionment is 50% to the 6/9/13 injury and 50% to the continuous trauma." (Joint Exh. 1, p. 17.) However, he did not identify the factors of permanent disability
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. Craemer opined that apportionment for the right knee was 50% to the 6/9/13 injury and 50% to cumulative trauma, but did not explain the basis for this apportionment or how the 2013 injury contributed to current disability.
The WCAB found Dr. Craemer's opinion was not substantial evidence because it lacked explanation of the basis for apportionment and did not address how the 2013 injury caused current disability.
From the decision · page 3Marshalls (2005) 70 Cal.Comp.Cases 604 (Appeals Board en banc).) Also, the physician must explain the nature of the other factors, how and why those factors are 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.) Here, when addressing apportionment of applicant's right knee disability Dr. Craemer stated, "For the right knee, apportionment is 50% to the 6/9/13 injury and 50% to the continuous trauma." (Joint Exh. 1, p. 17.) However, he did not identify the factors of permanent disability
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Lab. Code § 4663; Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604 (en banc)
A medical opinion must disclose the physician's familiarity with apportionment, identify approximate percentages of disability due to the injury and other factors, and explain the nature, how, and why those factors are causing disability at the time of evaluation.
The WCAB applied this standard to find Dr. Craemer's apportionment opinion was not substantial evidence.
From the decision · page 3Marshalls (2005) 70 Cal.Comp.Cases 604 (Appeals Board en banc).) Also, the physician must explain the nature of the other factors, how and why those factors are 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.) Here, when addressing apportionment of applicant's right knee disability Dr. Craemer stated, "For the right knee, apportionment is 50% to the 6/9/13 injury and 50% to the continuous trauma." (Joint Exh. 1, p. 17.) However, he did not identify the factors of permanent disability
What proof carried it
The evidence the panel weighed, by kind.
Dr. Craemer's medical opinion on apportionment lacked explanation of how the 2013 injury caused current right knee disability, and did not constitute substantial evidence.
From the decision · page 3Marshalls (2005) 70 Cal.Comp.Cases 604 (Appeals Board en banc).) Also, the physician must explain the nature of the other factors, how and why those factors are 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.) Here, when addressing apportionment of applicant's right knee disability Dr. Craemer stated, "For the right knee, apportionment is 50% to the 6/9/13 injury and 50% to the continuous trauma." (Joint Exh. 1, p. 17.) However, he did not identify the factors of permanent disability
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About this page
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