What the panel treated as outcome-determinative, and which side it favoured.
There was no factual basis for credit for temporary disability indemnity overpayment.
Favours Applicant prevailed
This led to denial of defendant's claim for credit, favoring applicant's benefits.
From the decision · page 116. Defendant is not entitled to a credit for any temporary disability
indemnity overpayment.
Dr. Balfour's apportionment determination lacked detailed explanation as required by Escobedo and was rejected.
Favours Applicant prevailed
Lack of detailed causal and factual basis led to rejection of apportionment, favoring applicant's full disability award.
From the decision · page 9With respect to apportionment, the undersigned does not follow the
PQME. This is because the report does not contain the "how and why"
discussion required in the Escobedo vs. Marshalls case [(en banc, 2005) 70 CCC
204.] As the Appeals Board is well aware, this means that the medical-legal
evaluator is required to discuss both the causal links (the "how" element)
between the non-industrial condition and the disability as well as the facts used
(the "why" element) in computing the approximate numeric value in his rating.
In this case, he provided some of the causal links and none of the information
supporting his estimate.
Favours Applicant prevailed
This testimony corrected the previously stipulated lower wage and led to recalculation of temporary disability indemnity.
Dr. Balfour's permanent disability rating of 48% was found to be substantial evidence and more credible than Dr. Ishak's no disability rating.
Favours Applicant prevailed
The WCAB relied on Dr. Balfour's rating to find applicant permanently disabled at 48%.
From the decision · page 5The PQME reports of Dr. Balfour were more complete and were contrary
to the measurements recorded by Dr. Ishak. Dr. Balfour issued two reports
(Exhibits 1 and 2) and his deposition was taken once. Both reports are dated
after applicant's carpal tunnel surgeries occurred. In his first report (Exhibit 2)
Dr. Balfour found flexion and extension to be 70 degrees, bilaterally. Radial
deviation was 15 degrees and ulnar deviation was 30 degrees. Dr. Balfour did
not record pronation and supination in his first report but then these are not
required measurements for the wrist disability but are used instead for measuring
elbow disability. [See AMA Guides at 466 to 470 and 473.] He did conduct
manual nerve testing and found a positive Tinel's sign and a positive wrist
compression test. He also found that the thenar muscle strength was 4.5 / 5
bilaterally and provided ratings based on motor and sensory impairment. These
ratings appear on pp. 10 and 11 of his first report.