ADJ10483000 — California WCAB decision

What the panel ordered

Findings and Award of December 28, 2020, is affirmed.

Defendant sought reconsideration of the WCJ's Findings and Award issued December 28, 2020, which found injury AOE/COE to lumbar spine, cervical spine, gastrointestinal system, and left shoulder, with 58% permanent disability and non-industrial apportionment only for the gastrointestinal system.

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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.

AOE/COEApplicant prevailedlumbar spine · cervical spine · gastrointestinal system · left shoulder

The WCJ properly relied on the reporting of Dr. Haronian regarding causation for the orthopedic parts, and Dr. Simon for the gastrointestinal system, both of which constituted substantial evidence.

From the decision · page 8The WCJ issued the F&A as outlined above. Applicant's 58% permanent disability rating was based on the reporting of the PTP Dr. Haronian and the internal medicine QME Dr. Simon. The WCJ found no basis for apportionment of permanent disability for the orthopedic parts per Dr. Haronian's reporting.

Permanent disability rating

The facts that decided it

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

Dr. Haronian provided a detailed and credible explanation of how applicant's work activities caused injury to the cervical spine, lumbar spine, and left shoulder, and found no preexisting disability or pathology for orthopedic parts.

Favours Applicant prevailed

This supported the finding of injury AOE/COE and no apportionment for orthopedic permanent disability.

From the decision · page 8The WCJ issued the F&A as outlined above. Applicant's 58% permanent disability rating was based on the reporting of the PTP Dr. Haronian and the internal medicine QME Dr. Simon. The WCJ found no basis for apportionment of permanent disability for the orthopedic parts per Dr. Haronian's reporting.

Dr. Etemad's apportionment opinions for the left shoulder and lumbar spine changed multiple times and lacked adequate explanation for apportionment to non-industrial factors.

Favours Applicant prevailed

This undermined the reliability of his apportionment opinions and supported the WCJ's finding of no apportionment for orthopedic parts.

From the decision · page 14During his deposition, Dr. Etemad again changed his apportionment opinion for the left shoulder after review of additional medical records, ultimately settling on 55% to continuous trauma, 15% to a 2009 injury, 25% to a 2012 injury and 5% to "natural progression." Although a physician may change their opinions based on new evidence, Dr. Etemad's final discussion of apportionment did not include an explanation of how and why there should be apportionment of disability to other factors besides the cumulative trauma injury. His confirmation that his opinion was to a "reasonable medical probability" does not render his opinions substantial evidence upon which a finding of apportionment may be made. As discussed above, the mere fact that a physician makes an apportionment determination does not render their conclusions an opinion which may be relied upon. We thus agree with the WCJ that there is not substantial evidence in the record to support apportionment of permanent disability for the orthopedic parts.

Dr. Simon apportioned 80% of gastrointestinal permanent disability to non-industrial factors and 20% to industrial factors.

Favours Defendant prevailed

This supported the WCJ's finding of non-industrial apportionment only for the gastrointestinal system.

From the decision · page 8Benjamin Simon, M.D. evaluated applicant's gastrointestinal system as the internal medicine QME. He diagnosed applicant with abdominal pain with a history of gastroesophageal reflux disease, hiatal hernia and Helicobacter pylori infection. (Court's Exhibit Y2, Report of PQME Benjamin Simon, M.D., January 5, 2017, p. 7.) Dr. Simon opined that applicant's use of nonsteroidal anti-inflammatory drugs to treat his orthopedic injuries exacerbated his gastrointestinal symptoms. (Id.) He provided a 3% WPI rating for symptoms of upper digestive tract disease. (Id. at p. 8.) Apportionment was 20% industrial and 80% non-industrial. (Id. at p. 9.)

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.

QMERelied upon · internal medicine

Diagnosed gastrointestinal conditions; found 3% WPI for upper digestive tract disease, apportioned 20% industrial and 80% non-industrial.

Relied upon by WCJ and Appeals Board for gastrointestinal rating and apportionment.

From the decision · page 8The WCJ issued the F&A as outlined above. Applicant's 58% permanent disability rating was based on the reporting of the PTP Dr. Haronian and the internal medicine QME Dr. Simon. The WCJ found no basis for apportionment of permanent disability for the orthopedic parts per Dr. Haronian's reporting.

PTPRelied upon

Found injury AOE/COE to cervical spine, lumbar spine, and left shoulder from continuous trauma at work; found 100% of orthopedic disability industrial, with no preexisting disability or pathology.

Relied upon by WCJ and Appeals Board for causation and permanent disability rating for orthopedic parts.

From the decision · page 8The WCJ issued the F&A as outlined above. Applicant's 58% permanent disability rating was based on the reporting of the PTP Dr. Haronian and the internal medicine QME Dr. Simon. The WCJ found no basis for apportionment of permanent disability for the orthopedic parts per Dr. Haronian's reporting.

QMENot substantial evidence · orthopedic

Initially found no industrial lumbar injury, later found continuous trauma lumbar injury with apportionment to pre-existing factors; apportioned left shoulder disability among continuous trauma, prior injuries, and natural progression, but opinions varied and lacked adequate explanation.

Not relied upon for apportionment due to lack of substantial evidence and inconsistent explanations.

From the decision · page 14During his deposition, Dr. Etemad again changed his apportionment opinion for the left shoulder after review of additional medical records, ultimately settling on 55% to continuous trauma, 15% to a 2009 injury, 25% to a 2012 injury and 5% to "natural progression." Although a physician may change their opinions based on new evidence, Dr. Etemad's final discussion of apportionment did not include an explanation of how and why there should be apportionment of disability to other factors besides the cumulative trauma injury. His confirmation that his opinion was to a "reasonable medical probability" does not render his opinions substantial evidence upon which a finding of apportionment may be made. As discussed above, the mere fact that a physician makes an apportionment determination does not render their conclusions an opinion which may be relied upon. We thus agree with the WCJ that there is not substantial evidence in the record to support apportionment of permanent disability for the orthopedic parts.

The rules the panel named

Authorities as the decision cited them, with how this panel applied each one.

Lab. Code, §§ 3600(a), 3202.5; South Coast Framing v. WCAB (Clark); McAllister v. WCAB

Employee bears the burden of proving injury AOE/COE by a preponderance of the evidence; proof of industrial causation must be reasonably probable.

Applied to determine whether applicant's injuries were industrially caused.

From the decision · page 9II. The employee bears the burden of proving injury AOE/COE by a preponderance of the evidence. (South Coast Framing v. Workers' Comp. Appeals Bd. (Clark) (2015) 61 Cal.4th 291, 297-298, 302 [80 Cal.Comp.Cases 489]; Lab. Code, § 3600(a); 3202.5.) The Supreme Court of California has long held that an employee need only show that the "proof of industrial causation is reasonably probable." (McAllister v. Workmen's Comp. Appeals Bd. (1968) 69 Cal.2d 408, 413 [33 Cal.Comp.Cases 660].) Applicant must only show that industrial causation was "not zero" to show sufficient contribution from work exposure. (Clark, supra, 61 Cal.4th at p. 303.) Decisions of 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 v. Workmen's Comp. Appeals Bd. (1970) 1 Cal.3d 627 [35 Cal.Comp.Cases 16].) 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

Lab. Code, §§ 5903, 5952(d); Lamb v. WCAB; Garza v. WCAB; LeVesque v. WCAB; Escobedo v. Marshalls; Hegglin v. WCAB

Decisions must be supported by substantial evidence; medical opinions must be based on reasonable medical probability, pertinent facts, and adequate examination and history.

Applied to weigh the reliability of medical opinions for causation and apportionment.

From the decision · page 10conclusions." (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. Medical opinion also fails to support the Board's findings if it is based on surmise, speculation, conjecture or guess." (Hegglin v. Workmen's Comp. Appeals Bd. (1971) 4 Cal.3d 162, 169 [36 Cal.Comp.Cases 93].)

Lab. Code, § 4660.1

Permanent disability must be determined per section 4660.1 for injuries after January 1, 2013.

Applied to determine method for rating permanent disability.

From the decision · page 11Applicant's injury occurred after January 1, 2013 and therefore his permanent disability must be determined pursuant to section 4660.1. (Lab. Code, § 4660.1.) The WCJ relied on the reporting of Dr. Haronian to rate applicant's permanent disability for the lumbar spine, cervical spine and left shoulder. Defendant contends that Dr. Haronian's impairment rating for the lumbar spine is not substantial evidence because it was purportedly improper for him to apply DRE Lumbar Category IV.

Lab. Code, § 5705; Escobedo v. Marshalls; Pullman Kellogg v. WCAB; Gay v. WCAB

Employer bears the burden of proof to show apportionment of permanent disability to other factors besides the industrial injury.

Applied to determine whether defense proved apportionment for orthopedic injuries.

From the decision · page 12While the employee holds the burden of proof regarding the approximate percentage of permanent disability directly caused by the industrial injury, the employer holds the burden of proof to show apportionment of permanent disability. (Lab. Code, § 5705; see also Escobedo, supra, 70 Cal.Comp.Cases at p. 613, Pullman Kellogg v. Workers' Comp. Appeals Bd. (Normand) (1980) 26 Cal.3d 450 [45 Cal.Comp.Cases 170].) To meet this burden, the employer "must demonstrate that, based upon reasonable medical probability, there is a legal basis for apportionment." (Gay v. Workers' Comp. Appeals Bd. (1979) 96 Cal.App.3d 555, 564 [44 Cal.Comp.Cases 817]; see also Escobedo, supra, 70 Cal.Comp.Cases at p. 620.)

Lab. Code, § 4663(a)-(c)

Apportionment of permanent disability shall be based on causation; physicians must address apportionment in their reports.

Applied to require medical opinions to specify industrial and non-industrial causation for permanent disability.

From the decision · page 12"Apportionment of permanent disability shall be based on causation." (Lab. Code, § 4663(a).) Physicians are required to address apportionment when evaluating permanent impairment. (Lab. Code, § 4663(b)-(c).) Section 4663(c) provides in pertinent part as follows:

What proof carried it

The evidence the panel weighed, by kind.

work activityfavours Applicant prevailed

Detailed description of applicant's work activities and mechanism of injury provided by Dr. Haronian, supporting causation for cervical spine and other orthopedic injuries.

From the decision · page 10It is well-established that the relevant and considered opinion of one physician may constitute substantial evidence, even if inconsistent with other medical opinions. (Place v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 372, 378-379 [35 Cal.Comp.Cases 525].) The WCJ was permitted to follow the PTP's opinion as more persuasive than the QME's opinion regarding causation for the cervical spine. Contrary to defendant's contention otherwise, Dr. Haronian provided a detailed description of the applicant's injurious work activities (infra, p. 2), and explained that applicant's neck condition resulted from "continuous trauma activities that occurred at work." This conclusion is reasonable based on the evidentiary record and work activities that applicant performed. (See Lab. Code, § 3208.1(b) [a cumulative trauma injury occurs from "repetitive mentally or physically traumatic activities extending over a period of time, the combined effect of which causes any disability or need for medical treatment"].) The WCJ therefore properly relied on the reporting of Dr. Haronian regarding causation and the evidence supports a finding of injury AOE/COE to the cervical spine.

expert methodologyfavours Applicant prevailed

Dr. Etemad's apportionment opinions changed multiple times and lacked adequate explanation, undermining their reliability as substantial evidence.

From the decision · page 14During his deposition, Dr. Etemad again changed his apportionment opinion for the left shoulder after review of additional medical records, ultimately settling on 55% to continuous trauma, 15% to a 2009 injury, 25% to a 2012 injury and 5% to "natural progression." Although a physician may change their opinions based on new evidence, Dr. Etemad's final discussion of apportionment did not include an explanation of how and why there should be apportionment of disability to other factors besides the cumulative trauma injury. His confirmation that his opinion was to a "reasonable medical probability" does not render his opinions substantial evidence upon which a finding of apportionment may be made. As discussed above, the mere fact that a physician makes an apportionment determination does not render their conclusions an opinion which may be relied upon. We thus agree with the WCJ that there is not substantial evidence in the record to support apportionment of permanent disability for the orthopedic parts.

ADJ10483000 · September 12, 2022

What the panel ordered

What was disputed, and how it came out

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The facts that decided it

What the panel did with the medical opinions

The rules the panel named

What proof carried it

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