ADJ12758878 · May 13, 2024

The Board amended the injury findings to include additional body parts based on the QME's medical reports, finding industrial injury to multiple body parts beyond those originally found by the WCJ.

From the decision · page 8For the foregoing reasons, IT IS ORDERED that defendant's Petition for Reconsideration of the February 20, 2024 Findings and Award is GRANTED. IT IS FURTHER ORDERED, as the Decision After Reconsideration of the Workers' Compensation Appeals Board that the February 20, 2024 Findings and Award is AFFIRMED except that Finding number 1 is AMENDED as follows: 1. the applicant, while employed during the period between October 25, 2018 to October 25, 2019 as a housekeeper, occupational group number 340 at Los Angeles, California, by SKYLINE HEALTHCARE AND WELLNESS CENTER LLC, whose workers' compensation insurance carrier was COMP WEST sustained injury arising out of and occurring in the course of employment to thoracic spine, lumbar spine, right and left shoulder, right and left wrist, and right and left knee.

The Board found the permanent disability rating of 43% was supported by substantial evidence including the QME report and formal rating instructions, and apportionment was found to be 100% industrial.

From the decision · page 6The apportionment noted in my February 19, 2021 report stands. "With regard to apportionment, I found that 100% of the permanent disability described herein to have industrial cause. It is medically reasonable to attribute her permanent disability to the injuries arising out of her employment as described herein. Therefore, it was my medical opinion that 100% of the permanent disability for the thoracic spine, lumbar spine and left knee, as described above is the direct result of her injuries and 0% is the result of other factors."

The Board agreed with the WCJ that the applicant had no knowledge of cumulative trauma injury prior to termination, so the post-termination defense did not bar the claim.

From the decision · page 5III. Turning to the merits of the Petition, based on our review of the record we conclude the evidence justifies the finding of the WCJ in this matter. With respect to the issue of applicability of Labor Code section 3600(a)(10), as stated by the WCJ in his Report:

QME Dr. Perry found industrial causation for multiple body parts including thoracic and lumbar spine, shoulders, wrists, and knees.

Favours Applicant prevailed

This medical evidence supported amending the injury findings to include these body parts as industrial injuries.

From the decision · page 3II. As an initial matter, we note that the F&A does not address all of the body parts found to be industrial by the panel QME, Dr. Perry, and upon whose reporting the WCJ relies. QME Dr. Perry found industrial causation for injury to the applicant's thoracic spine, lumbar spine, right and left shoulder, right and left wrist, and right and left knee. (Ex. 1, Report

Applicant had no knowledge of cumulative trauma injury prior to termination and testified to a specific injury incident in 2018.

Favours Applicant prevailed

Supported rejection of the post-termination defense under Labor Code section 3600(a)(10).

From the decision · page 5trauma injury. In fact, the applicant advised the QME and further testified that she had an injury but attributed the cause of her complaints to an incident at work in 2018. Dr. Perry stated he had to explain to the applicant the difference between a specific injury and a continuous trauma. (Ex. 1, p. 68.) Further, it was the QME Dr. Perry, the medical evaluator, who determined that "considering that the applicant worked at this job for 14 years and the mechanism of injury of a fall which could cause acute aggravation of a developing continuous trauma," he found causation for injury to the applicant's thoracic spine, lumbar spine, right and left shoulder, right and left wrists, and right and left knee. (Ex. 1, p. 69.) He left the final determination of causation to the trier of fact. (Ex. 1, p. 69.) He found the causation as industrial with reasonable probability. (Ex. 1, pp. 72, 76).

Dr. Perry's supplemental report opined 100% of permanent disability was industrial with no apportionment to other factors.

Favours Applicant prevailed

Supported the finding of no apportionment and the permanent disability rating of 43%.

From the decision · page 6The apportionment noted in my February 19, 2021 report stands. "With regard to apportionment, I found that 100% of the permanent disability described herein to have industrial cause. It is medically reasonable to attribute her permanent disability to the injuries arising out of her employment as described herein. Therefore, it was my medical opinion that 100% of the permanent disability for the thoracic spine, lumbar spine and left knee, as described above is the direct result of her injuries and 0% is the result of other factors."

Found industrial causation for injury to thoracic spine, lumbar spine, right and left shoulder, right and left wrist, and right and left knee; opined 100% of permanent disability was industrial with no apportionment to other factors.

Dr. Perry's medical reports were relied upon by the WCJ and the Board to find industrial injury to multiple body parts and to support the permanent disability rating and apportionment.

From the decision · page 3II. As an initial matter, we note that the F&A does not address all of the body parts found to be industrial by the panel QME, Dr. Perry, and upon whose reporting the WCJ relies. QME Dr. Perry found industrial causation for injury to the applicant's thoracic spine, lumbar spine, right and left shoulder, right and left wrist, and right and left knee. (Ex. 1, Report

E.L. Yeager Construction v. Workers' Comp. Appeals Bd. (Gatten) (2006) 145 Cal.App.4th 922

Medical opinion must be based on reasonable medical probability, adequate examination and history, and not be speculative; must set forth reasoning to support conclusions.

Applied to evaluate the substantiality of medical evidence from QME Dr. Perry.

From the decision · page 6reasonable medical probability, it must be based on an adequate examination and history, it must not be speculative, and it must set forth reasoning to support the expert conclusions reached. (E.L. Yeager Construction v. Workers' Comp. Appeals Bd. (Gatten) (2006) 145 Cal.App.4th 922, 928 [71 Cal.Comp.Cases 1687]; Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 620-621 (Appeals Bd. en banc).) "Medical reports and opinions are not substantial evidence if they are known to be erroneous, or if they are based on facts no longer germane, on inadequate medical histories and examinations, or on incorrect legal theories. Medical opinion also fails to support the Board's findings if it is based on surmise, speculation, conjecture or guess." (Hegglin v. Workmen's Comp. Appeals Bd. (1971) 4 Cal.3d 162, 169 [36 Cal.Comp.Cases 93].)

Escobedo v. Marshalls, CNA Ins. Co. (2005) 70 Cal.Comp.Cases 604

Apportionment of permanent disability is a factual matter for the trier of fact and must be based on substantial evidence.

Applied to evaluate apportionment evidence from Dr. Perry's supplemental report.

From the decision · page 6IV. A physician addressing the employee's level of permanent disability must address apportionment of permanent disability. (Lab. Code § 4663(c).) However, apportionment is a factual matter to be determined by the trier of fact and must be based on substantial evidence. (See Escobedo v. Marshalls, CNA Ins. Co. (2005) 70 Cal.Comp.Cases 604, 607; see also Gay v. Workers' Comp. Appeals Bd. (1979) 96 Cal.App.3d 555, 564 [44 Cal.Comp.Cases 817] ["Apportionment is a factual matter for the appeals board to determine based upon all the evidence."].) In his supplemental medical report dated September 18, 2023, Dr. Perry advised that:

Applicant's testimony and QME report distinguishing specific injury from cumulative trauma

From the decision · page 5trauma injury. In fact, the applicant advised the QME and further testified that she had an injury but attributed the cause of her complaints to an incident at work in 2018. Dr. Perry stated he had to explain to the applicant the difference between a specific injury and a continuous trauma. (Ex. 1, p. 68.) Further, it was the QME Dr. Perry, the medical evaluator, who determined that "considering that the applicant worked at this job for 14 years and the mechanism of injury of a fall which could cause acute aggravation of a developing continuous trauma," he found causation for injury to the applicant's thoracic spine, lumbar spine, right and left shoulder, right and left wrists, and right and left knee. (Ex. 1, p. 69.) He left the final determination of causation to the trier of fact. (Ex. 1, p. 69.) He found the causation as industrial with reasonable probability. (Ex. 1, pp. 72, 76).