What the panel ordered
Findings and Award of May 19, 2023 affirmed; petition for reconsideration denied.
Petition for reconsideration filed by defendant City of Oakland, challenging apportionment of permanent disability between injuries and employers, was considered and denied by the WCAB panel after review of the WCJ's Findings and Award and Report.
This docket was decided more than once. Shown here is the latest released decision; we also hold June 21, 2022.
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 WCJ's rejection of Dr. Mandell's apportionment opinion was upheld because the opinion was found to be speculative, inconsistent, and lacking substantial evidence, and the WCAB is not bound by the AME's opinion.
From the decision · page 2Oakland filed a timely petition for reconsideration of the Findings and Award of May 19, 2023. Oakland contends that apportionment between the injuries, five years apart and at two different employers, is mandated by Benson v. Workers' Comp. Appeals Bd. (2009) 170 Cal.App.4th 1535 [74 Cal.Comp.Cases 113 ("Benson"). Oakland alleges that such apportionment is supported by Dr. Mandell, the Agreed Medical Evaluator ("AME") in orthopedics, who apportioned liability equally between the injuries based on reasonable medical probability, and that Dr. Mandell's opinion is substantial evidence because he performed a comprehensive medical evaluation and explained each of the distinct industrial and non-industrial factors. Finally, Oakland alleges that "the opinion of the WCJ results in administrative chaos where CIGA and the City of Oakland have no basis to determine liability for payment of the award if apportionment between the injuries cannot be determined."