ADJ10413544 · December 9, 2025

The WCJ's non-industrial apportionment findings lacked substantial medical evidence and were conclusory; further development of the record is necessary.

From the decision · page 9Defendant further contends that the apportionment findings for the left wrist are inaccurate. (Petition, p. 5.) As noted above, Dr. Graham relied upon the "Framingham osteoarthritis study" to apportion 25% of applicant's wrist impairment to "the degenerative process." (Exhibit CC, pp. 2- 3.) For the right wrist, the remaining 75% was apportioned to the cumulative injury through January 27, 2016. For the left wrist, the remaining 75% was apportioned, 25% to the cumulative injury through January 27, 2016, and 50% to the January 13, 2015 specific injury. (Id. at p. 3.) Unfortunately, further analysis was not provided, and copies of the study were not found in the evidentiary record.

The record lacks sufficient findings on the periods of temporary disability entitlement and permanent and stationary dates to support the credit order; further proceedings are required.

From the decision · page 11these two claims] with respect to injury to the left upper extremity." (Report, p. 12.) Although we agree with the WCJ that an overlap as to injured body parts exists, sufficient findings to support his Order for credit is lacking. The period or periods during which applicant was entitled to temporary disability and basis for said periods were not determined nor were permanent and stationary dates. Absent these findings, we are unable to fully address the issue of defendant's entitlement to credit for the alleged temporary disability indemnity overpayment.

Applicant successfully rebutted the CVC by showing synergistic effects on ADLs, supporting use of the addition method for impairment rating.

From the decision · page 7Turning now to the merits of the Petition, in Athens Administrators v. Workers' Comp. Appeals Bd. (Kite) (2013) 78 Cal.Comp.Cases 213 (writ den.), the Appeals Board held that if there is substantial medical evidence that two or more impairments have a synergistic effect which causes the resulting impairment to be greater than that reflected through use of the CVC, the impairments should be added for purposes of accuracy. In Kite, the applicant underwent bilateral hip replacement surgeries and the orthopedic QME opined that due to a "synergistic effect of the injury to the same body parts bilaterally versus body parts from different regions of the body," "the best way to combine the impairments to the right and left hips would be to add them versus using the combined values chart, which would result in a lower whole person impairment." (Id. at p. 5.) Accordingly, the WCJ in Kite found that the impairment for the applicant's hips should be added rather than combined.

Dr. Graham's non-industrial apportionment findings for the left wrist were conclusory and lacked substantial medical evidence.

Favours Applicant prevailed

Led to the rescission of the apportionment findings and remand for further development.

From the decision · page 9In his F&A, the WCJ found apportionment to be based upon "substantial medical evidence." (F&A, p. 5.) However, in his Opinion on Decision (OOD), he concluded the opposite, finding that Dr. Graham's non-industrial apportionment findings did "not meet the Escobedo standard because the opinions were wholly conclusory, lacking the requisite `how and why' explanation[.]" (F&A and OOD, pp. 5, 13.) The WCJ now admits he made an error and agrees to removal of the non-industrial apportionment due to lack of substantial medical evidence. (Report, pp. 9-10.) However, it is unclear how the 25% should now be allocated. Defendant and the WCJ argue that for the left wrist, the 12% WPI should be split evenly between the January 13, 2015 specific injury and the cumulative injury ending on January 27, 2016, but there is no evidence to suggest that this is appropriate. Further development of the record is necessary.

Applicant successfully rebutted the combined values chart (CVC) by showing synergistic effects on activities of daily living (ADLs) from multiple impairments.

Favours Applicant prevailed

Supported the use of the addition method for impairment rating, favoring applicant's permanent disability rating.

From the decision · page 8ultimately caused "enhanced deleterious effects on [applicant's] ADLs" including problems with physical activities and increasing limitations on applicant's ability to walk on uneven ground, sit, rise from a seated position, recline, bend, squat, and stoop, and kneel. (Exhibit GG, p. 2.)

The record lacks sufficient findings on the periods of temporary disability entitlement and permanent and stationary dates to support the credit order for alleged temporary disability overpayments.

Favours Applicant prevailed

Required remand for further proceedings to properly determine credit entitlement.

From the decision · page 11these two claims] with respect to injury to the left upper extremity." (Report, p. 12.) Although we agree with the WCJ that an overlap as to injured body parts exists, sufficient findings to support his Order for credit is lacking. The period or periods during which applicant was entitled to temporary disability and basis for said periods were not determined nor were permanent and stationary dates. Absent these findings, we are unable to fully address the issue of defendant's entitlement to credit for the alleged temporary disability indemnity overpayment.

Concluded that applicant's injuries to left wrist, carpal tunnel, knee, ankle, bilateral tarsal tunnel, right shoulder, elbows, wrists, hands, and thumbs were industrial; opined that impairments should be added rather than combined due to synergistic effects on ADLs.

Dr. Graham's reports and opinions were relied upon to affirm the use of the addition method over the CVC for impairment rating due to synergistic effects on ADLs.

From the decision · page 3In his September 23, 2020 report, Dr. Graham diagnosed applicant with tarsal tunnel syndrome, failed tarsal tunnel decompression, chronic right elbow lateral condylitis, bilateral wrist osteoarthritis, bilateral carpal tunnel, left wrist fusion surgery, multiple right wrist surgeries (including a failed carpal tunnel release), bilateral thumb CMC reconstruction, left knee patellofemoral chondromalacia, and a left ankle sprain with "residuals[.]" (Exhibit AA, p. 20.) Based upon "a reasonable degree of medical probability[,]" Dr. Graham concluded that applicant's left wrist, carpal tunnel, knee, and ankle conditions were the result of the January 13, 2015 injury, applicant's bilateral tarsal tunnel conditions were the result of the cumulative injury through February 5, 2014, and applicant's right shoulder, elbow, wrist, hand, and carpal tunnel conditions were the result of the cumulative injury through January 27, 2016. (Id. at pp.

Labor Code section 5909 (amended July 2, 2024)

A petition for reconsideration is deemed denied unless acted upon within 60 days from the date a trial judge transmits a case to the appeals board.

Applied to procedural posture of the petition for reconsideration.

From the decision · page 6Preliminarily, former section 5909 provided that a petition for reconsideration was deemed denied unless the Appeals Board acted on the petition within 60 days from the date of filing. (Lab. Code, § 5909.) Effective July 2, 2024, section 5909 was amended to state in relevant part that:

Athens Administrators v. Workers' Comp. Appeals Bd. (Kite) (2013) 78 Cal.Comp.Cases 213

If there is substantial medical evidence that two or more impairments have a synergistic effect causing the resulting impairment to be greater than that reflected through use of the CVC, the impairments should be added for accuracy.

Applied to affirm the use of the addition method for impairment rating in ADJ10413544.

From the decision · page 7Turning now to the merits of the Petition, in Athens Administrators v. Workers' Comp. Appeals Bd. (Kite) (2013) 78 Cal.Comp.Cases 213 (writ den.), the Appeals Board held that if there is substantial medical evidence that two or more impairments have a synergistic effect which causes the resulting impairment to be greater than that reflected through use of the CVC, the impairments should be added for purposes of accuracy. In Kite, the applicant underwent bilateral hip replacement surgeries and the orthopedic QME opined that due to a "synergistic effect of the injury to the same body parts bilaterally versus body parts from different regions of the body," "the best way to combine the impairments to the right and left hips would be to add them versus using the combined values chart, which would result in a lower whole person impairment." (Id. at p. 5.) Accordingly, the WCJ in Kite found that the impairment for the applicant's hips should be added rather than combined.

Vigil v. County of Kern (2024) 89 Cal.Comp.Cases 686 (Appeals Bd., en banc)

To rebut the CVC and add rather than combine impairments, the applicant must establish the ADLs impacted by each impairment and that the ADLs either do not overlap or overlap in a way that increases the impact.

Applied to determine that applicant successfully rebutted the CVC and supported the addition method.

From the decision · page 7Subsequent to Kite, the Appeals Board issued its en banc decision in Vigil wherein it was determined that if an applicant seeks to rebut the CVC and add rather than combine impairments, the applicant must establish 1) The ADLs impacted by each impairment, and 2) That the ADLs either do not overlap, or overlap in such a way that it increases or amplifies the impact of the overlapping ADLs. (Vigil, supra, at pp. 688-689.)

Kuykendall v. Workers' Comp. Appeals Bd. (2000) 79 Cal.App.4th 396

The Appeals Board has a constitutional mandate to ensure substantial justice and may not leave matters undeveloped where additional discovery is needed.

Applied to remand the apportionment issue for further development.

From the decision · page 9As the parties are aware, the Appeals Board has a constitutional mandate to ensure "substantial justice in all cases" and may not leave matters undeveloped where it is clear that additional discovery is needed. (Kuykendall v. Workers' Comp. Appeals Bd. (2000) 79 Cal.App.4th 396, 403-404.) When the record requires further development, the preferred procedure is to allow supplementation of the medical record by the physicians who have already reported in the case. (McDuffie v. L.A. County Metro. Transit Authority, 67 Cal.Comp.Cases 138, 141-143 (Appeals Bd. en banc.) As such, the parties should return to Dr. Graham.

Hamilton v. Lockheed Corporation (2001) 66 Cal.Comp.Cases 473 (Appeals Bd. en banc)

The WCJ must base decisions on admitted evidence and substantial evidence, clearly designating the evidence forming the basis of the decision.

Applied to require further findings and evidence for the credit order on temporary disability overpayment.

From the decision · page 11As explained in Hamilton v. Lockheed Corporation (Hamilton) (2001) 66 Cal.Comp.Cases 473, 476 (Appeals Bd. en banc), a decision "must be based on admitted evidence in the record" (Id. at p. 478) and must be supported by substantial evidence. (Lab. Code, § 5903, 5952, subd. (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. Workers' Comp. Appeals Bd. (1970) 1 Cal.3d 627 [35 Cal.Comp.Cases 16].) As required by section 5313 and explained in Hamilton, "the WCJ is charged with the responsibility of referring to the evidence in the opinion on decision, and of clearly designating the evidence that forms the basis of the decision." (Id. at p. 475.) This "enables the parties, and the Board if reconsideration is sought, to ascertain the basis for the decision, and makes the right of seeking reconsideration more meaningful." (Id. at p. 476, citing Evans v. Workmen's Comp. Appeals Bd. (1968) 68 Cal.2d 753, 755 [33 Cal.Comp.Cases 350, 351].)

Labor Code section 4909; Herrera v. Workmen's Comp. Appeals Bd. (1969); Cordes v. General Dynamics-Astronautics (1966); Maples v. Workers' Comp. Appeals Bd. (1980)

The Appeals Board may allow credit for payments made when not due or disputed, but such credit is discretionary and must consider equitable principles.

Applied to the issue of credit for temporary disability overpayment, requiring discretion and equity considerations.

From the decision · page 11Further, on the issue of credit towards permanent disability, pursuant to section 4909, the Appeals Board is allowed to "take[] into account," (i.e., to allow a credit) for any payment, allowance, or benefit paid by the defendant to the injured employee when it was not then due and payable or when there was a dispute or question concerning the right to compensation. (Lab. Code, § 4909.) The Supreme Court has stated that the allowance of credit is within the Appeals Board's discretion. (Herrera v. Workmen's Comp. Appeals Bd. (1969) 71 Cal.2d 254, 258 [34 Cal.Comp.Cases 382].) An Appeals Board panel stated that "[w]hether a credit is to be allowed is a matter directed to the discretionary authority of the trier of fact to be weighed in the light of the circumstances of the particular case and should not be subjected to a harsh dictate that avoids the equities presented." (Cordes v. General Dynamics-Astronautics (1966) 31 Cal.Comp.Cases 429.) Thus, the allowance of a credit is a matter of discretion and not a legal entitlement. In Maples v. Workers' Comp. Appeals Bd. (1980) 111 Cal.App.3d 827 [45 Cal.Comp.Cases 1106], the Court of Appeal stated that equitable principles are frequently applied to workers' compensation matters,

Dr. Graham's detailed reports on applicant's limitations in activities of daily living (ADLs) due to bilateral injuries

From the decision · page 8ultimately caused "enhanced deleterious effects on [applicant's] ADLs" including problems with physical activities and increasing limitations on applicant's ability to walk on uneven ground, sit, rise from a seated position, recline, bend, squat, and stoop, and kneel. (Exhibit GG, p. 2.)