ADJ8655364 — California WCAB decision

What the panel ordered

Petition for Reconsideration denied; WCJ's permanent disability rating and apportionment upheld.

Applicant sought reconsideration of the Findings & Award issued by the WCJ, challenging the permanent disability rating and apportionment; the WCJ recommended denial of the petition unless further development was appropriate.

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.

Permanent disability ratingDefendant prevailedbilateral knees · bilateral feet · bilateral ankles · right elbow · lower extremities (CRPS)

The WCJ found the AME's opinion on permanent disability and apportionment to be substantial medical evidence and rejected the Applicant's vocational expert's opinions as insufficiently explained and not substantial evidence under Escobedo.

The facts that decided it

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

AME Dr. Post's apportionment opinion constituted substantial medical evidence and was relied upon by the WCJ.

Favours Defendant prevailed

It supported the denial of Applicant's claim for 100% permanent and total disability and upheld the 28% PD rating with 20% apportionment to non-industrial factors.

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.

AMERelied upon

Found permanent disability of 28% with 20% apportionment of CRPS rating to non-industrial factors (diabetes).

His apportionment opinion was found to be substantial medical evidence and was relied upon by the WCJ.

From the decision · page 20Finally, the Petition at p. 16, argues that Dr. Post's apportionment opinion is not substantial medical evidence, and that defendant has failed in its burden to prove apportionment. This also appears to be a new argument, since the legal validity of the AME's apportionment opinion was not listed as an issue for trial, as reflected in the MOH/SOE dated July 25, 2022 at pp. 3-4. In my initial Joint F&O dated October 22, 2022 at page 16, and again in the FA&O dated December 1, 2023 at p. 13, I found that Dr. Post's apportionment opinion constituted substantial medical evidence and would therefore be applied when considering PD. My opinions have not changed since. It also pays to keep in mind that as the AME, Dr. Post's opinions have special significance

vocational_expertRejected

Opined Applicant was not amenable to vocational rehabilitation and had zero access to the labor market; opinion found not sufficiently explained or substantial evidence.

The WCJ found the vocational expert's opinion conclusory and not persuasive under Escobedo.

From the decision · page 1955.) Despite the long and wordy discussion of this issue generally in this section of his report, I do not find this critical opinion on either page to be sufficiently explained under Escobdeo and I therefore do not find it to be substantial medical evidence. The same is true for what in my view is his conclusory statement that the Applicant cannot benefit from vocational services and is therefore not amendable to vocational rehabilitation. (Id. at pp. 53-54.) That is why I did not find Dr. Van de Bittner's opinions to be persuasive even though there is no specific report in evidence from Emily Tincher rebutting those conclusions in that report, and why I did not find the Applicant to be 100% disabled, especially in light of the AME's apportionment opinion, which I found to be substantial medical evidence.

secondary_treaterGiven great weight · D.P.T.

Conducted Functional Capacity Evaluation; findings generally consistent with AME's permanent work restrictions.

The WCJ noted the AME's restrictions were reasonably consistent with Feinberg's FCE.

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 must be framed in terms of reasonable medical probability, not speculative, based on pertinent facts and adequate examination and history, with reasoning supporting conclusions.

The WCJ applied Escobedo to reject vocational expert's opinion as not substantial evidence due to lack of explanation.

From the decision · page 10It is well established that decisions by the Appeals Board must be supported by substantial evidence. (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, supra, 1 Cal.3d 627.) 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.

Power v. Workers' Comp. Appeals Bd. (1986) 179 Cal.App.3d 775

AME opinions have special significance and are ordinarily followed unless found unpersuasive.

The WCJ relied on AME Dr. Post's opinion on PD and apportionment as substantial medical evidence.

From the decision · page 21and will ordinarily be followed by the judge, absent good reason to find them unpersuasive, which in my view is not the case here. (Power v. Workers' Comp. Appeals Bd. (1986) 179 Cal.App.3d 775 [51 Cal.Comp.Cases 114]; Siqueros v. Workers' Comp. Appeals Bd. (1985) 60 Cal.Comp.Cases 150 (writ den.).) To the extent that the Petition seems to argue at p. 16, seemingly for the first time at any point in these proceedings, that because Dr. Post did not review or comment on the vocational evidence, his apportionment opinion cannot be substantial medical evidence, I disagree. Had Applicant felt this way previously, she very easily have raised this as an issue for trial and litigated it at trial.

ADJ8655364 · March 27, 2024

What the panel ordered

What was disputed, and how it came out

The facts that decided it

Your case already resembles someone else’s. Find whose.

What the panel did with the medical opinions

The rules the panel named

What proof carried it

About this page