What the panel ordered
Petition for Reconsideration denied.
Petition for Reconsideration filed by defendants was denied by the WCAB panel after review of the WCJ report and record.
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 panel QME's apportionment opinion was found not to be substantial medical evidence because it was speculative, inadequately explained, and inconsistent with the medical record and principles of apportionment.
From the decision · page 1Labor Code section 4663(a) provides that "[a]pportionment of permanent disability shall be based on causation." (Lab. Code, § 4663(a).) Section 4664(a) states that "[t]he 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, § 4664(a).) The defendant has the burden of proof on the issue of apportionment. (Kopping v. Workers' Comp. Appeals Bd. (2006) 142 Cal.App.4th 1099, 1114 [71 Cal.Comp.Cases 1229].) For the reasons stated by the WCJ in the report, we agree that defendant did not meet that burden here.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
The panel QME's apportionment opinion changed without sufficient explanation and was speculative.
Favours Applicant prevailed
This undermined the credibility and substantiality of the apportionment evidence, leading to rejection of apportionment and favoring the applicant.
From the decision · page 6In his initial report of November 17, 2014, the panel QME opined that the death of the applicant's mother from brain cancer affected the applicant's coping mechanisms and caused 10 percent of the applicant's permanent disability. Dr. Sherman apportioned 10 percent of the psychiatric impairment because the applicant heard the voice of his mother. (Dmitriy Sherman, M.D, report of November 17, 2014, Apportionment pg. 51 [Joint Exh. 3]). In the copious volume of mental health records reviewed by Dr. Sherman, there is no mention of the applicant having problems coping with his mother's passing. The panel QME's interview of the applicant suggests the applicant's dealt well with his mother's passing. Dr. Sherman notes the death of the applicant's mother in 2010 did not cause the applicant overt depression (Dmitriy Sherman, M.D, report of November 17, 2014, Causation pg. 46 [Joint Exh. 3]). The medical records do not mention any mental health treatment or counseling related to the incident.
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.
Initially apportioned 10% of psychiatric impairment to unresolved grief from mother's death and 90% to industrial injury; later retracted apportionment related to mother's death and instead apportioned 10% to hallucinations during cancer radiation treatment, which was found speculative and unsupported.
The opinion was found not to be substantial medical evidence due to lack of adequate explanation and inconsistency with medical records and apportionment principles.
From the decision · page 1The opinion of panel qualified medical examiner (PQME) Dmitriy Sherman, M.D., is not substantial medical evidence supporting a finding of apportionment. (Hegglin v. Workers' Comp. Appeals Bd. (1971) 4 Cal.3d 162, 169 [36 Cal.Comp.Cases 93]; Place v. Workmen's Workers' Comp. Appeals Bd. (1970) 3 Cal.3d 372, 378-379 [35 Cal.Comp.Cases 525]; Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 621 (Appeals Board en banc) [a medical opinion must be framed in terms of reasonable medical probability, it must not be speculative, it must be based
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Labor Code sections 4663(a) and 4664(a); Kopping v. Workers' Comp. Appeals Bd. (2006) 142 Cal.App.4th 1099; 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 medical evidence framed in terms of reasonable medical probability, not speculative, and based on pertinent facts and adequate examination and history.
The panel QME's apportionment opinion was rejected because it failed to meet these standards, being speculative and inadequately explained.
From the decision · page 1Labor Code section 4663(a) provides that "[a]pportionment of permanent disability shall be based on causation." (Lab. Code, § 4663(a).) Section 4664(a) states that "[t]he 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, § 4664(a).) The defendant has the burden of proof on the issue of apportionment. (Kopping v. Workers' Comp. Appeals Bd. (2006) 142 Cal.App.4th 1099, 1114 [71 Cal.Comp.Cases 1229].) For the reasons stated by the WCJ in the report, we agree that defendant did not meet that burden here.
What proof carried it
The evidence the panel weighed, by kind.
The panel QME's apportionment opinion was speculative and inadequately supported by medical records and history.
From the decision · page 6In his initial report of November 17, 2014, the panel QME opined that the death of the applicant's mother from brain cancer affected the applicant's coping mechanisms and caused 10 percent of the applicant's permanent disability. Dr. Sherman apportioned 10 percent of the psychiatric impairment because the applicant heard the voice of his mother. (Dmitriy Sherman, M.D, report of November 17, 2014, Apportionment pg. 51 [Joint Exh. 3]). In the copious volume of mental health records reviewed by Dr. Sherman, there is no mention of the applicant having problems coping with his mother's passing. The panel QME's interview of the applicant suggests the applicant's dealt well with his mother's passing. Dr. Sherman notes the death of the applicant's mother in 2010 did not cause the applicant overt depression (Dmitriy Sherman, M.D, report of November 17, 2014, Causation pg. 46 [Joint Exh. 3]). The medical records do not mention any mental health treatment or counseling related to the incident.
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About this page
- A published decision of the California Workers' Compensation Appeals Board, taken apart by what it turned on. The Board publishes the decision itself; this page adds the extraction and quotes the passage behind every claim.
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