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California WCABOrder denying reconsideration

ADJ15549193 · September 30, 2024

Petition for Reconsideration denied

Issues decided: 6
Medical opinions weighed: 2
Authorities named: 2
District office: Santa Barbara

What the panel ordered

Petition for Reconsideration deniedp. 5

Defendant petitioned for reconsideration of WCJ's Findings and Award that rejected apportionment and awarded 88% PD

Read the official decision →

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.

ApportionmentApplicant prevailedcervical spine · right shoulder/upper extremity · CMC arthritis · carpal tunnel

PQME opinion on apportionment not substantial medical evidence; lacks explanation of how and why non-industrial factors caused permanent disability

From the decision · page 3For the reasons stated in the Report and Opinion on Decision, we agree with the WCJ that the opinion of panel qualified medical evaluator (PQME) Michael Tooke, M.D., is not substantial medical evidence supporting a finding of apportionment. ( Hegglin v. Workers’ Comp. Appeals Bd. (1971) 4 Cal.3d 162, 169 [36 Cal.Comp.Cases 93]; Place v.

Permanent disability rating

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SCSIMILARCASE

Factor-based workers' compensation case-law research. Reference information and research assistance, not legal advice.

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ADJ15549193 — California WCAB decision · SimilarCase

Applicant prevailed

88% permanent disability awarded based on PQME findings; no apportionment applied

From the decision · page 10Based on the medical reporting of Michael Tooke, M.D., in his capacity as a PQME, there is no legal basis for apportionment.

Earnings / average weekly earningsApplicant prevailed

Medical treatment / UR / IMRApplicant prevailed

Applicant entitled to reimbursement for self-procured medical expenses based on PQME reporting

From the decision · page 12Based on the medical reporting by Michael Tooke, M.D., in his capacity as a PQME, applicant is entitled to be reimbursed for self-procured medical expenses paid out of her own pocket in an amount to be adjusted by the parties.

Medical treatment / UR / IMRApplicant prevailed

Applicant entitled to future medical care on industrially injured body parts based on PQME reporting

From the decision · page 12Based on the medical reporting by Michael Tooke, M.D., in his capacity as a PQME, applicant is entitled to future medical care on the body parts found to have been injured on an industrial basis.

Temporary disabilityApplicant prevailed

Applicant entitled to difference between TD paid and TD awarded

From the decision · page 9Applicant is not seeking any additional periods of Temporary Disability, merely the difference in the amount paid by defendant and the amount awarded herein.

Reconsideration / removalDefendant prevailed

Petition for Reconsideration denied; WCAB adopted and incorporated WCJ Report and Opinion on Decision

From the decision · page 1Based on our review of the record, and for the reasons stated in the WCJ’s Report and Opinion on Decision, which are both adopted and incorporated herein, and the for the reasons discussed below, we will deny reconsideration.

The facts that decided it

What the panel treated as outcome-determinative, and which side it favoured.

PQME apportionment opinion failed to explain how and why non-industrial factors caused permanent disability or justify 70/30 ratio

Favours Applicant prevailed

Rendered opinion not substantial medical evidence, requiring unapportioned award

From the decision · page 11As to the CRPS, the doctor lists risk factors but never explains the how and why the Permanent Disability is apportionable to the risk factors and what that actually caused in terms of apportionable Permanent Disability. Nor does he ever explain or justify why he used a 70/30 ratio.

Applicant and defense witness both credibly testified to work hours of Monday-Friday 9:00 a.m. to 4:30 p.m. at $17.43/hour

Favours Applicant prevailed

From the decision · page 9Based on the credible testimony of applicant with due regard for her demeanor as a witness, who testified when she was hired, she was advised her hours were Monday through Friday from 9:00 a.m. to 4:30 p.m. at an hourly rate of $17.43.

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.

QMENot substantial evidence · orthopedic

30% apportionment to pre-existing CMC arthritis, 30% to diabetes/obesity, 30% to pre-existing conditions for cervical spine

Opinion lacks explanation of how and why non-industrial factors caused permanent disability and fails to justify 70/30 ratio

From the decision · page 3For the reasons stated in the Report and Opinion on Decision, we agree with the WCJ that the opinion of panel qualified medical evaluator (PQME) Michael Tooke, M.D., is not substantial medical evidence supporting a finding of apportionment. ( Hegglin v. Workers’ Comp. Appeals Bd. (1971) 4 Cal.3d 162, 169 [36 Cal.Comp.Cases 93]; Place v.

PTPNot reached

Single report authored; impairment findings rejected as inaccurate or inadequate

WCJ found PTP impairment determination clearly not accurate or adequate; relied on PQME instead

From the decision · page 7There was a single report from the applicant’s primary treating physician, Robert Ruth, MD.

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

Medical opinion on apportionment must be framed in terms of reasonable medical probability, not speculative, based on pertinent facts and adequate examination/history, and set forth reasoning in support of conclusions

Applied to reject PQME apportionment opinion as not substantial medical evidence

From the decision · page 3[M]ust be framed in terms of reasonable medical probability, it must not be speculative, it must be based on pertinent facts and on an adequate examination and history, and it must set forth reasoning in support of its conclusions.

Garza v. Workmen’s Comp. Appeals Bd. (1970) 3 Cal.3d 312

WCJ credibility determinations given great weight absent evidence of considerable substantiality to reject them

Applied to affirm WCJ's credibility findings on earnings testimony

From the decision · page 4Moreover, we have given the WCJ’s credibility determinations great weight because the WCJ had the opportunity to observe the demeanor of the witness. (Garza v. Workmen’s Comp. Appeals Bd.

What proof carried it

The evidence the panel weighed, by kind.

Evidence weighed

WCJ credibility determinations given great weight; no evidence of considerable substantiality to reject them

From the decision · page 4Moreover, we have given the WCJ’s credibility determinations great weight because the WCJ had the opportunity to observe the demeanor of the witness. (Garza v. Workmen’s Comp. Appeals Bd.

Evidence weighed

PQME Tooke authored five reports and was deposed; only medical evidence submitted

From the decision · page 7The medical reporting and opinion submitted into evidence at trial were those of Michael Tooke, M.D. in the capacity of a PQME. Dr. Tooke authored five (5) medical reports and was deposed following the issuance of those reports.

Find decisions like this oneOrder denying reconsideration

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Apportionment →Permanent disability rating →Earnings / average weekly earnings →Medical treatment / UR / IMR →Temporary disability →Reconsideration / removal →Same office →Search by your own facts →

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.
The injured worker is not named here, and the case caption is not printed. Physicians appear as the decision names them, because a medical opinion is an act in a public proceeding.
Issues, outcomes and weights were extracted by AI and released only where the source passage checked. Read the official decision before relying on anything here. Not legal advice.
If you are named in this decision and want this page removed, write to privacy@similarcase.com.

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