What the panel ordered
Petition for reconsideration granted; amended award affirmed with modifications to temporary disability indemnity rate and sums payable
Petition for reconsideration granted; decision after reconsideration issued affirming and amending the prior findings and award
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 found the applicant sustained a cumulative injury to the specified body parts during employment, supported by unrebutted AME opinions.
From the decision · page 4portion of the findings and award that required CIGA to pay the Employment Development Department (EDD) for reimbursement of benefits and interest.... Based on the stipulations of the parties at trial, it was found that applicant was employed during the period of October 19, 1979 to June 18, 1991 as a Machine Operator, at Sun Valley, California, by Roy J. Maier Products, whose workers' compensation insurance carrier was Fremont Indemnity Company, which is now in liquidation. Based on the Schedule for Rating Permanent Disabilities issued in July 1988, which is the applicable schedule for this injury, it was found that applicant's Occupational Group Number is 11, which corresponds to a machine or hand cutter of various materials. Based on the findings of Agreed Medical Evaluators (AMEs) Mark Mandel, M.D., Gerald Markovitz, M.D., Brian Jacks, M.D., and Mitchell Silverman, M.D., all of whose opinions are entitled to great weight for their presumed expertise and neutrality as medical experts jointly selected by the parties, it was found that applicant sustained a cumulative injury arising out of and occurring in the course of employment to her bilateral upper extremities, gastritis (GERD), irritable bowel syndrome (IBS), and psyche, arising out of and occurring in the course of her employment by Roy J. Maier Products.
The permanent disability was rated at 53.3% based on unrebutted AME opinions, with apportionment opinions rejected for lack of explanation.
The WCJ found no specific injury to the upper extremities on March 18, 1991, supported by the evidence and AME opinions.
From the decision · page 1Defendant seeks reconsideration of the Amended Joint Findings and Award and Order (F&O) issued on July 3, 2023, wherein the workers' compensation administrative law judge (WCJ) found that (1) while employed by defendant as a machine operator on March 18, 1991, applicant did not sustain a specific injury arising out of and occurring in the course of employment to her upper extremities (ADJ3937323); (2) while employed by defendant as a machine operator during the period of October 19, 1979 to June 18, 1991, applicant sustained a cumulative injury arising out of and occurring in the course of employment to her bilateral upper extremities, gastritis, irritable bowel syndrome, and psyche; (3) applicant'
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Unrebutted AME opinions found cumulative injury to bilateral upper extremities, gastritis, IBS, and psyche arising out of employment.
Favours Applicant prevailed
Supported finding of compensable cumulative injury and entitlement to benefits.
From the decision · page 4portion of the findings and award that required CIGA to pay the Employment Development Department (EDD) for reimbursement of benefits and interest.... Based on the stipulations of the parties at trial, it was found that applicant was employed during the period of October 19, 1979 to June 18, 1991 as a Machine Operator, at Sun Valley, California, by Roy J. Maier Products, whose workers' compensation insurance carrier was Fremont Indemnity Company, which is now in liquidation. Based on the Schedule for Rating Permanent Disabilities issued in July 1988, which is the applicable schedule for this injury, it was found that applicant's Occupational Group Number is 11, which corresponds to a machine or hand cutter of various materials. Based on the findings of Agreed Medical Evaluators (AMEs) Mark Mandel, M.D., Gerald Markovitz, M.D., Brian Jacks, M.D., and Mitchell Silverman, M.D., all of whose opinions are entitled to great weight for their presumed expertise and neutrality as medical experts jointly selected by the parties, it was found that applicant sustained a cumulative injury arising out of and occurring in the course of employment to her bilateral upper extremities, gastritis (GERD), irritable bowel syndrome (IBS), and psyche, arising out of and occurring in the course of her employment by Roy J. Maier Products.
Dr. Mandel's unrebutted opinion found continuous temporary disability from March 19, 1991 to March 22, 2000.
Favours Applicant prevailed
Supported award of temporary disability indemnity for that period.
Dr. Markovitz's apportionment opinion was speculative and insufficiently explained, failing Escobedo standard.
Favours Applicant prevailed
Led to rejection of apportionment and full permanent disability rating awarded.
From the decision · page 6The apportionment opinions of Dr. Markovitz were not applied to the above rating strings because they are speculative and insufficiently explained, and therefore do not constitute substantial medical evidence. As explained by the Appeals Board's en banc opinion in Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604:
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.
Found temporary disability from March 19, 1991 to March 22, 2000, and permanent disability of 53.3% with MMI on March 22, 2000.
Unrebutted opinion relied upon for disability periods and rating.
Permanent disability rating of 53.3% and MMI date of March 22, 2000, supported by other AMEs.
Unrebutted AME opinions supported the rating and MMI date.
Apportionment opinions rejected for lack of explanation and failure to meet Escobedo standard.
Apportionment opinions were speculative and insufficiently explained, failing Escobedo test.
From the decision · page 6The apportionment opinions of Dr. Markovitz were not applied to the above rating strings because they are speculative and insufficiently explained, and therefore do not constitute substantial medical evidence. As explained by the Appeals Board's en banc opinion in Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604:
Supported cumulative injury findings and permanent disability rating.
Unrebutted AME opinions supported findings and rating.
From the decision · page 4portion of the findings and award that required CIGA to pay the Employment Development Department (EDD) for reimbursement of benefits and interest.... Based on the stipulations of the parties at trial, it was found that applicant was employed during the period of October 19, 1979 to June 18, 1991 as a Machine Operator, at Sun Valley, California, by Roy J. Maier Products, whose workers' compensation insurance carrier was Fremont Indemnity Company, which is now in liquidation. Based on the Schedule for Rating Permanent Disabilities issued in July 1988, which is the applicable schedule for this injury, it was found that applicant's Occupational Group Number is 11, which corresponds to a machine or hand cutter of various materials. Based on the findings of Agreed Medical Evaluators (AMEs) Mark Mandel, M.D., Gerald Markovitz, M.D., Brian Jacks, M.D., and Mitchell Silverman, M.D., all of whose opinions are entitled to great weight for their presumed expertise and neutrality as medical experts jointly selected by the parties, it was found that applicant sustained a cumulative injury arising out of and occurring in the course of employment to her bilateral upper extremities, gastritis (GERD), irritable bowel syndrome (IBS), and psyche, arising out of and occurring in the course of her employment by Roy J. Maier Products.
Affirmed temporary disability period and permanent disability rating.
Unrebutted opinion affirmed Dr. Mandel's findings.
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Escobedo v. Marshalls (2007) 70 Cal. Comp. Cases 604
Substantial evidence must support WCAB decisions, including medical opinions based on reasonable medical probability and adequate reasoning.
Applied to reject speculative apportionment opinions and accept unrebutted AME opinions.
From the decision · page 6The apportionment opinions of Dr. Markovitz were not applied to the above rating strings because they are speculative and insufficiently explained, and therefore do not constitute substantial medical evidence. As explained by the Appeals Board's en banc opinion in Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604:
California Labor Code
Labor Code sections 4453 and 4661.5 govern calculation and payment of temporary disability indemnity rates.
Applied to adjust temporary disability indemnity rate to present rate for unpaid periods.
What proof carried it
The evidence the panel weighed, by kind.
Unrebutted AME opinions of Dr. Mandel, Dr. Markovitz, Dr. Jacks, and Dr. Silverman
From the decision · page 4portion of the findings and award that required CIGA to pay the Employment Development Department (EDD) for reimbursement of benefits and interest.... Based on the stipulations of the parties at trial, it was found that applicant was employed during the period of October 19, 1979 to June 18, 1991 as a Machine Operator, at Sun Valley, California, by Roy J. Maier Products, whose workers' compensation insurance carrier was Fremont Indemnity Company, which is now in liquidation. Based on the Schedule for Rating Permanent Disabilities issued in July 1988, which is the applicable schedule for this injury, it was found that applicant's Occupational Group Number is 11, which corresponds to a machine or hand cutter of various materials. Based on the findings of Agreed Medical Evaluators (AMEs) Mark Mandel, M.D., Gerald Markovitz, M.D., Brian Jacks, M.D., and Mitchell Silverman, M.D., all of whose opinions are entitled to great weight for their presumed expertise and neutrality as medical experts jointly selected by the parties, it was found that applicant sustained a cumulative injury arising out of and occurring in the course of employment to her bilateral upper extremities, gastritis (GERD), irritable bowel syndrome (IBS), and psyche, arising out of and occurring in the course of her employment by Roy J. Maier Products.
Lack of explanation in Dr. Markovitz's apportionment opinion failing Escobedo standard
From the decision · page 6The apportionment opinions of Dr. Markovitz were not applied to the above rating strings because they are speculative and insufficiently explained, and therefore do not constitute substantial medical evidence. As explained by the Appeals Board's en banc opinion in Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604:
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