ADJ7810002 · June 7, 2024

The WCJ and WCAB found that the applicant sustained 76 percent permanent disability and that the medical evidence supported a joint award due to inability to apportion disability between specific and cumulative injuries.

The WCJ misapplied the burden of proof regarding the statutory increase, so the issue was deferred for further development and decision.

From the decision · page 9In summary, and with respect to Applicant's Petition, we agree with the WCJ that applicant has not met his burden of rebutting the scheduled rating. We further agree that development of the record with respect to additional injured body parts/systems is not warranted on the current record. With respect to the Defendant's Petition, we are persuaded that the reporting physicians reasonably described why they were unable to parcel out the percentages of permanent disability otherwise attributable to each of the claimed injuries, thus justifying the issuance of a joint award. However, we are persuaded that with respect to the award of a statutory increase of section 4658(d), the WCJ misapplied the burden of proof, and that due process requires that we return the matter to the trial level for development of the record and decision solely on the issue of the applicability, if any, of section 4658(d) to applicant's weekly permanent disability rate.

Both Dr. Cohen and Dr. Majcher explained their inability to apportion permanent disability percentages between specific and cumulative injuries.

Favours Applicant prevailed

This justified the issuance of a joint award under the principles of Benson.

From the decision · page 9Both Dr. Cohen and Dr. Majcher have reasonably explained the basis for their inability to parcel out the permanent disability attributable to each injury and have offered a clear explanation of their reasoning in this regard. Moreover, the validity of their responses is not diminished simply because they responded to interrogatories posed by the parties. Following our independent review of the record occasioned by defendant's Petition, we are not persuaded that the WCJ erred in determining that applicant was entitled to a joint award under the principles espoused in Benson, supra, 170 Cal.App.4th 1535. (See also Nunes, supra, 88 Cal.Comp.Cases 741, 748-749 ["[w]hen a physician considers all appropriate factors of apportionment but nevertheless determines that it is not possible to approximate the percentages of each factor contributing to the employee's overall permanent disability to a reasonable medical probability, the physician has made the apportionment determination required under section 4663(c)."].)

Vocational expert's report was not substantial evidence due to reliance on non-medical-legal evidence and unsupported opinions.

Favours Defendant prevailed

Supported the WCJ's finding that applicant did not rebut the scheduled rating and is not permanently and totally disabled.

WCJ misapplied burden of proof regarding statutory increase under Labor Code section 4658(d).

Favours Defendant prevailed

Required deferral and remand for further development on this issue.

From the decision · page 9In summary, and with respect to Applicant's Petition, we agree with the WCJ that applicant has not met his burden of rebutting the scheduled rating. We further agree that development of the record with respect to additional injured body parts/systems is not warranted on the current record. With respect to the Defendant's Petition, we are persuaded that the reporting physicians reasonably described why they were unable to parcel out the percentages of permanent disability otherwise attributable to each of the claimed injuries, thus justifying the issuance of a joint award. However, we are persuaded that with respect to the award of a statutory increase of section 4658(d), the WCJ misapplied the burden of proof, and that due process requires that we return the matter to the trial level for development of the record and decision solely on the issue of the applicability, if any, of section 4658(d) to applicant's weekly permanent disability rate.

Unable to apportion psychiatric impairment between cumulative and specific injuries due to insufficient medical evidence; apportionment would be speculative.

Dr. Cohen reviewed medical records and concluded apportionment was not medically possible.

From the decision · page 8Here, Dr. Cohen issued a November 16, 2022 supplemental report addressing Benson apportionment. The supplemental report observed that the QME was unable to parcel out the respective percentages corresponding to applicant's specific and cumulative injuries, respectively. (Ex. V, Report of Gregory Cohen, M.D., November 16, 2022, p. 2.) Dr. Cohen observed that a "review of the medical records provided did not show that other treating or evaluating doctors documented any differences in psychiatric symptoms and dysfunction in relation to the cumulative and specific injuries." (Ibid.) Following a review of the entire record, including the submitted medical history, prior clinical examinations, and applicant's deposition testimony, Dr. Cohen concluded that "based upon reasonable medical probability, there is insufficient medical evidence to apportion psychiatric impairment with regard to the cumulative and the specific injury," and that "[t]o do so would be speculative." (Ibid.)

Unable to apportion disability due to intertwined conditions; consulted with Dr. Omar Tirmizi who agreed with this assessment.

Dr. Majcher found data inadequate for apportionment and confirmed with Dr. Tirmizi that issues were intertwined.

From the decision · page 8Dr. Majcher's supplemental report, also dated November 16, 2022, similarly reviewed the applicant's medical history, including the relevant treatment records from 2008 to 2011. (Ex. W, Report of Stanley Majcher, M.D., November 16, 2022, pp. 2-3.) Following this review, the QME observed that "there are numerous references to the comments from the orthopedists regarding subjective complaints but the orthopedists do not specify what subjective issues such as

Orthopedic AME who released applicant to modified or return to work with restrictions.

From the decision · page 2The parties have selected Thomas Fell, M.D., as the Agreed Medical Evaluator (AME) in orthopedic medicine, Gregory Cohen, M.D. as the QME in psychiatry, and Stanley Majcher, M.D. as the QME in internal medicine.

Benson v. Workers' Comp. Appeals Bd. (2009) 170 Cal.App.4th 1535

When a physician cannot apportion permanent disability percentages to a reasonable medical probability, the physician has made the apportionment determination required under Labor Code section 4663(c).

Applied to determine that joint award was justified due to intertwined injuries and inability to apportion disability.

From the decision · page 9Both Dr. Cohen and Dr. Majcher have reasonably explained the basis for their inability to parcel out the permanent disability attributable to each injury and have offered a clear explanation of their reasoning in this regard. Moreover, the validity of their responses is not diminished simply because they responded to interrogatories posed by the parties. Following our independent review of the record occasioned by defendant's Petition, we are not persuaded that the WCJ erred in determining that applicant was entitled to a joint award under the principles espoused in Benson, supra, 170 Cal.App.4th 1535. (See also Nunes, supra, 88 Cal.Comp.Cases 741, 748-749 ["[w]hen a physician considers all appropriate factors of apportionment but nevertheless determines that it is not possible to approximate the percentages of each factor contributing to the employee's overall permanent disability to a reasonable medical probability, the physician has made the apportionment determination required under section 4663(c)."].)

Labor Code section 4658(d)

Labor Code section 4658(d) governs the statutory increase in permanent disability rates.

Issue deferred for further development due to misapplication of burden of proof by WCJ.

From the decision · page 9In summary, and with respect to Applicant's Petition, we agree with the WCJ that applicant has not met his burden of rebutting the scheduled rating. We further agree that development of the record with respect to additional injured body parts/systems is not warranted on the current record. With respect to the Defendant's Petition, we are persuaded that the reporting physicians reasonably described why they were unable to parcel out the percentages of permanent disability otherwise attributable to each of the claimed injuries, thus justifying the issuance of a joint award. However, we are persuaded that with respect to the award of a statutory increase of section 4658(d), the WCJ misapplied the burden of proof, and that due process requires that we return the matter to the trial level for development of the record and decision solely on the issue of the applicability, if any, of section 4658(d) to applicant's weekly permanent disability rate.

Vocational expert Keith Wilkinson's report was found not substantial evidence due to reliance on non-medical-legal evidence and unsupported opinions.

Medical-legal evaluators agreed applicant retained capacity to return to work despite injuries.