ADJ6508173 · January 16, 2026

The Board found injury to lungs, upper digestive system (GERD), psyche, and sleep disorder but not to METs, which is a measure of functional limitation, not a body part. The issue of permanent disability, apportionment, and the 15% increase under section 4658(d) was deferred for further development due to incomplete medical opinion and need for further record development.

From the decision · page 2We have considered the allegations in applicant's Petition and defendant's Answer, and the contents of the WCJ's Report with respect thereto. Based upon our review of the record, and for the reasons discussed below, as our Decision After Reconsideration, we will rescind the F&A, and substitute a new F&A that finds that applicant sustained injury to her lungs, upper digestive system (in the form of gastroesophageal reflux disease (GERD), psyche and in the form of a sleep disorder, but not in the form of METs because it is a measure of functional limitation and not a separate body part; and to defer the issue of permanent disability, apportionment and attorney fees, and the issue of whether the increase under section 4658(d) applies.

METs is a measure of functional limitation, not a separate body part, and thus not ratable as a permanent disability.

Favours Defendant prevailed

This led to the correction of findings to exclude METs as an injured body part and deferral of permanent disability rating.

QME Dr. Gillis did not provide a complete discussion supporting addition of all body systems impairments as required by Vigil.

Favours neutral

This incomplete analysis required deferral of permanent disability and apportionment issues for further development.

From the decision · page 8However, QME Dr. Gillis did not provide a complete discussion supporting adding all the body systems pursuant to Vigil, leaving his analysis incomplete. Therefore, QME Dr. Gillis's opinion regarding addition of applicant's impairments requires further development to address our holdings in Vigil.

Defendant failed to meet burden of proof for apportionment to non-industrial factors as QME Dr. Gillis found no basis for such apportionment.

Favours Applicant prevailed

This supported deferral of apportionment issue and favored applicant's claim of industrial causation.

From the decision · page 10Here, defendant failed to meet its burden of proof given that QME Dr. Gillis did not find any basis to apportion applicant's permanent disability for her lungs and upper digestive system to

Diagnosed hypersensitive airway disease with 26% WPI, gastrointestinal abnormalities with 25% WPI, obstructive sleep apnea with 9% WPI, and non-industrial fibromyalgia causing chronic fatigue, depression, insomnia, and headaches with 25% WPI. Did not find basis for apportionment of pulmonary and upper digestive system disability to non-industrial factors.

Dr. Gillis provided detailed medical opinions on applicant's impairments and apportionment, but his opinion on addition of impairments was incomplete, requiring further development.

From the decision · page 5Here, in QME Dr. Gillis's report dated August 29, 2008, based on his evaluation of applicant, he concluded that applicant suffered inhalation exposure at work on August 23, 2007, resulting in a chronic, residual cough, followed by severe headaches, fatigue, nausea, chills and dizziness. (Def. Ex. R at pp. 1; 2-3.) QME Dr. Gillis observed that, after a methacholine challenge analysis, applicant had an abnormally positive response demonstrating a reduced oxygen uptake capacity. He diagnosed applicant with hypersensitive airway disease, resulting in 26% WPI based on the VO

From the decision · page 2BACKGROUND Applicant, while employed on August 23, 2007, as a wraparound counselor, sustained an industrial injury to her lungs and psyche and claimed to have sustained industrial injury to her METs, upper digestive system (in the form of GERD), and in the form of a sleep disorder, due to toxic exposure. The parties utilized QMEs Dr. Gillis and Robert Faguet, M.D., and each authored multiple medical reports in this case, (Def. Exs. A-R; W-II) including depositions of QMEs Dr. Gillis and

Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604 (Appeals Board en banc)

Permanent disability rating must be based on substantial medical evidence and reasonable medical probability, not speculation or incorrect legal theories.

Applied to evaluate the sufficiency of medical opinions on permanent disability and apportionment.

From the decision · page 3It is axiomatic that substantial evidence must support the decisions by the Appeals Board. (Lab. Code, § 5903, 5952(d); Lamb v. Workmen's Comp. Appeals Bd. (1974) 11 Cal.3d 274 [39 Cal.Comp.Cases 310]; Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312 [35 Cal.Comp.Cases 500]; LeVesque v. Workmen's Comp. Appeals Bd. (1970) 1 Cal.3d 627 [35 Cal.Comp.Cases 16].) To constitute substantial evidence "... a medical opinion must 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." (Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 621 (Appeals Board 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].)

Almaraz v. Environmental Recovery Services/Guzman v. Milpitas Unified School District (2009) 74 Cal.Comp.Cases 1084 (Appeals Board en banc)

AMA Guides allow physician judgment and experience in assessing whole person impairment (WPI) beyond rigid application of rating schedules.

Applied to assess the appropriateness of Dr. Gillis's rating method.

From the decision · page 4In addition, while the AMA Guides to the Evaluation of Permanent Impairment (AMA Guides) function as advisory frameworks, they are not strict texts subject to rote or literal application. Instead, an evaluating physician may use their experience and expertise to interpret and apply any portion of the entire AMA Guides. Pursuant to Almaraz/Guzman II 74 Cal.Comp.Cases 1084, the Appeals Board held that:

Labor Code sections 4663(a) and 4664(a); Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604 (Appeals Board en banc)

Apportionment of permanent disability must be based on causation and supported by substantial evidence explaining the 'how and why' of apportionment.

Applied to evaluate apportionment evidence and burden of proof.

From the decision · page 9Apportionment of permanent disability is "based on causation" and the "employer shall only be liable for the percentage of permanent disability directly caused by the injury arising out of and occurring in the course of employment." (Lab.Code, § 4663(a) and 4664(a).) "The plain reading of `causation' in this context is causation of the permanent disability." (Escobedov. Marshalls (2005) 70 Cal.Comp.Cases 604, 611 (Appeals Board enbanc) (Escobedo).) Apportionment now includes pathology, asymptomatic prior conditions, and retroactive prophylactic work preclusions, provided

QME Dr. Gillis's medical opinions supporting a more accurate pulmonary permanent disability rating than the PDRS