What the panel ordered
Petition for Reconsideration denied
Petition for Reconsideration of the July 2, 2024 Joint Findings of Fact 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 Dr. Graham's apportionment findings were speculative, lacking reasoning, and adopted Dr. Klassen's analysis without basis, thus not substantial medical evidence.
From the decision · page 4In the instant case, in his initial July 13, 2023 report, Dr. Graham indicated that there "will be apportionment" for applicant's lumbar spine given "anticipated degenerative changes." (Joint Exhibit AA, AME Report of Dr. Graham, July 13, 2023, p. 10, emphasis added.) In making this determination, it appears that Dr. Graham had not yet reviewed the medical file in this case. In his subsequent July 24, 2023 report, Dr. Graham found 50% apportionment to the lumbar spine based upon applicant's "preexisting condition." (Joint Exhibit BB, AME Report of Dr. Graham, July 24, 2023, p. 3.) No further explanation was provided. In his final January 2, 2024 report, Dr. Graham explained that his apportionment findings were written "to comport with Dr. Klassen's analysis." (Joint Exhibit CC, AME Report of Dr. Graham, January 2, 2024, p. 3.) Ultimately, Dr. Graham's findings are not only speculative but lacking in reasoning. It appears that rather than provide his own opinions, Dr. Graham opted instead to adopt those of Dr. Klassen with no basis or rationale. We therefore agree with the WCJ that Dr. Graham has failed to provide a "comprehensive explanation" for apportionment and as such, his apportionment findings "do not amount to substantial medical evidence." (Report, pp. 7-8.)
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Dr. Graham's apportionment findings lacked a comprehensive explanation and were speculative, adopting another physician's analysis without basis.
Favours Applicant prevailed
This led the WCJ and Appeals Board to reject the apportionment findings as not substantial medical evidence, resulting in an award without apportionment to the applicant.
From the decision · page 4In the instant case, in his initial July 13, 2023 report, Dr. Graham indicated that there "will be apportionment" for applicant's lumbar spine given "anticipated degenerative changes." (Joint Exhibit AA, AME Report of Dr. Graham, July 13, 2023, p. 10, emphasis added.) In making this determination, it appears that Dr. Graham had not yet reviewed the medical file in this case. In his subsequent July 24, 2023 report, Dr. Graham found 50% apportionment to the lumbar spine based upon applicant's "preexisting condition." (Joint Exhibit BB, AME Report of Dr. Graham, July 24, 2023, p. 3.) No further explanation was provided. In his final January 2, 2024 report, Dr. Graham explained that his apportionment findings were written "to comport with Dr. Klassen's analysis." (Joint Exhibit CC, AME Report of Dr. Graham, January 2, 2024, p. 3.) Ultimately, Dr. Graham's findings are not only speculative but lacking in reasoning. It appears that rather than provide his own opinions, Dr. Graham opted instead to adopt those of Dr. Klassen with no basis or rationale. We therefore agree with the WCJ that Dr. Graham has failed to provide a "comprehensive explanation" for apportionment and as such, his apportionment findings "do not amount to substantial medical evidence." (Report, pp. 7-8.)
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 50% apportionment to lumbar spine based on preexisting condition but provided no further explanation; later reports lacked comprehensive explanation and adopted Dr. Klassen's analysis without rationale.
The WCJ and Appeals Board found Dr. Graham's apportionment findings speculative and lacking substantial medical evidence due to insufficient reasoning and reliance on another physician's analysis without basis.
From the decision · page 4In the instant case, in his initial July 13, 2023 report, Dr. Graham indicated that there "will be apportionment" for applicant's lumbar spine given "anticipated degenerative changes." (Joint Exhibit AA, AME Report of Dr. Graham, July 13, 2023, p. 10, emphasis added.) In making this determination, it appears that Dr. Graham had not yet reviewed the medical file in this case. In his subsequent July 24, 2023 report, Dr. Graham found 50% apportionment to the lumbar spine based upon applicant's "preexisting condition." (Joint Exhibit BB, AME Report of Dr. Graham, July 24, 2023, p. 3.) No further explanation was provided. In his final January 2, 2024 report, Dr. Graham explained that his apportionment findings were written "to comport with Dr. Klassen's analysis." (Joint Exhibit CC, AME Report of Dr. Graham, January 2, 2024, p. 3.) Ultimately, Dr. Graham's findings are not only speculative but lacking in reasoning. It appears that rather than provide his own opinions, Dr. Graham opted instead to adopt those of Dr. Klassen with no basis or rationale. We therefore agree with the WCJ that Dr. Graham has failed to provide a "comprehensive explanation" for apportionment and as such, his apportionment findings "do not amount to substantial medical evidence." (Report, pp. 7-8.)
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Labor Code section 4663; Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604; Nunes v. State of California, Dept. of Motor Vehicles (2023) 88 Cal.Comp.Cases 741
Apportionment must be a determination explaining approximate percentages of permanent disability caused by industrial injury and other factors, with reasoning in terms of reasonable medical probability.
The WCJ and Appeals Board applied these standards to find Dr. Graham's apportionment findings not substantial medical evidence due to lack of reasoning and speculative nature.
From the decision · page 3Turning now to the issue of apportionment, section 4663(c) outlines apportionment requirements for treating or evaluating physicians. Pursuant to this section, in order for a report to be considered "complete on the issue of permanent disability," it must make an apportionment "determination" which explains what "approximate percentage of the permanent disability" was directly caused by "the injury arising out of and occurring in the course of employment" and what "approximate percentage of the permanent disability was caused by other factors both before and subsequent to the industrial injury, including prior industrial injuries." (Id.) If the evaluating physician is unable to make an apportionment determination, the physician is to "state the specific reasons why." (Id.)
What proof carried it
The evidence the panel weighed, by kind.
Dr. Graham's apportionment findings were speculative and lacked reasoning, adopting Dr. Klassen's analysis without basis
From the decision · page 4In the instant case, in his initial July 13, 2023 report, Dr. Graham indicated that there "will be apportionment" for applicant's lumbar spine given "anticipated degenerative changes." (Joint Exhibit AA, AME Report of Dr. Graham, July 13, 2023, p. 10, emphasis added.) In making this determination, it appears that Dr. Graham had not yet reviewed the medical file in this case. In his subsequent July 24, 2023 report, Dr. Graham found 50% apportionment to the lumbar spine based upon applicant's "preexisting condition." (Joint Exhibit BB, AME Report of Dr. Graham, July 24, 2023, p. 3.) No further explanation was provided. In his final January 2, 2024 report, Dr. Graham explained that his apportionment findings were written "to comport with Dr. Klassen's analysis." (Joint Exhibit CC, AME Report of Dr. Graham, January 2, 2024, p. 3.) Ultimately, Dr. Graham's findings are not only speculative but lacking in reasoning. It appears that rather than provide his own opinions, Dr. Graham opted instead to adopt those of Dr. Klassen with no basis or rationale. We therefore agree with the WCJ that Dr. Graham has failed to provide a "comprehensive explanation" for apportionment and as such, his apportionment findings "do not amount to substantial medical evidence." (Report, pp. 7-8.)
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About this page
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