What the panel ordered
Findings & Award amended to reflect 100% permanent disability; attorney fees deferred; otherwise affirmed.
Petition for reconsideration of the Findings & Award issued by the WCJ on September 13, 2022, granted to allow further study of factual and legal issues.
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 WCAB found that the vocational expert opinion supporting 100% permanent disability was substantial evidence, while the apportionment opinion of PQME Dr. Anderson was speculative and legally insufficient, leading to an amendment of the permanent disability rating to 100%.
From the decision · page 1Applicant seeks reconsideration of the Findings & Award (F&A) issued on September 13, 2022, by the workers' compensation administrative law judge (WCJ). The WCJ found, in pertinent part, that applicant sustained industrial injury while employed by defendant on March 19, 2014 to her low back, resulting in 51% permanent disability.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Vocational Expert Frank Diaz concluded applicant is unemployable due to physical limitations and chronic pain causing absenteeism and productivity breaks.
Favours Applicant prevailed
This opinion was credited as substantial evidence supporting 100% permanent disability.
From the decision · page 1Applicant contends that the WCJ erred in rejecting the opinion of Vocational Expert (VE) Frank Diaz, CDMS, who concluded that applicant sustained 100% permanent disability due to lack of amenability to vocational rehabilitation. In addition, applicant contends that the apportionment finding was legally erroneous because defendant failed to carry its burden of proof, as the opinion of Panel Qualified Medical Evaluator (PQME) Wayne E. Anderson, D.O., was not substantial medical evidence.
PQME Dr. Anderson's apportionment opinion lacked detailed 'how and why' reasoning and was speculative, failing to meet legal standards for substantial medical evidence.
Favours Applicant prevailed
This led to rejection of his apportionment opinion and amendment of the permanent disability rating to 100%.
From the decision · page 14In reviewing the medical reports of PQME Dr. Anderson, it is clear that, while he provides an extensive clinical history and a complex rating of permanent disability, his apportionment opinions fail to meet the legal standard for substantial medical evidence. Following the March 19, 2014 industrial rear-end motor vehicle accident, applicant immediately reported neck, thoracic spine, lumbar spine, right shoulder, and right leg pain, eventually leading to a bilateral L4-L5 posterior spinal fusion and right L4-L5 transforaminal lumbar interbody fusion. (App. Ex. 1, pp. 15, 22, 32-33.) PQME Dr. Anderson ultimately determined that applicant suffered 40% WPI based on an analogous gait derangement rating under Almaraz/Guzman II. However, PQME Dr. Anderson's apportionment of this impairment is not legally sufficient because he failed to frame his opinion in terms of reasonable medical probability and failed to provide specific "how and why" reasoning behind his conclusion rather than speculate. In his January 10, 2018 report, PQME Dr. Anderson assigned 10% to preexisting degenerative changes simply by noting that they "play a role in...
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.
Opined 28% whole person impairment (WPI) based on DRE Lumbar Category V, later increased to 40% WPI based on gait derangement rating; assigned 80% industrial causation and 20% preexisting degenerative factors for apportionment but failed to provide legally sufficient reasoning for apportionment.
His apportionment opinion was found speculative and legally insufficient due to lack of detailed 'how and why' reasoning and failure to frame in terms of reasonable medical probability.
From the decision · page 3With respect to permanent disability, PQME Dr. Anderson opined that applicant has 28% whole person impairment (WPI) based on DRE Lumbar Category V under Table 15-3 on page 384 of the AMA Guides to the Evaluation of Permanent Impairment (AMA Guides). She underwent a lumbar fusion, resulting in loss of motion segment integrity that places her in DRE Lumbar Category IV, and developed recurrent radiculopathy with motor weakness supported by MRI findings, placing her in DRE Lumbar Category III. Because both Categories III and IV are present, the AMA Guides directly place her in DRE Lumbar Category V, which allows up to 28% WPI based on limitations in activities of daily living (ADLs). (Id. at p. 48.)
Concluded applicant sustained 100% permanent disability due to lack of amenability to vocational rehabilitation and inability to compete in the open labor market due to physical limitations and chronic pain.
His vocational opinion was credited as substantial evidence supporting 100% permanent disability.
From the decision · page 1Applicant contends that the WCJ erred in rejecting the opinion of Vocational Expert (VE) Frank Diaz, CDMS, who concluded that applicant sustained 100% permanent disability due to lack of amenability to vocational rehabilitation. In addition, applicant contends that the apportionment finding was legally erroneous because defendant failed to carry its burden of proof, as the opinion of Panel Qualified Medical Evaluator (PQME) Wayne E. Anderson, D.O., was not substantial medical evidence.
Concluded applicant effectively retired and did not meet legal criteria to rebut scheduled disability rating; opinion found speculative and legally insufficient due to lack of grounded factual basis and improper substitution of medical judgments.
Her vocational opinion was rejected as speculative and legally insufficient.
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Labor Code §§ 5903, 5952(d); Escobedo v. Marshalls; Lamb v. WCAB; Garza v. WCAB; LeVesque v. WCAB; Hegglin v. WCAB
Substantial evidence standard for medical and vocational opinions requiring reasonable probability, pertinent facts, adequate examination, and explanation of reasoning.
Applied to evaluate the sufficiency of medical and vocational evidence supporting permanent disability and apportionment.
From the decision · page 11Finally, the law requires the Appeals Board to base its decisions on 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 or vocational opinion must state its conclusions in terms of reasonable probability, avoid speculation, rely on pertinent facts and an adequate examination and history, and explain the reasoning supporting its conclusions. (Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 621 (Appeals Board en banc).) Medical or vocational reports and opinions do not constitute substantial evidence when they contain known errors or rely on facts that are no longer germane, inadequate medical histories or examinations, or incorrect legal theories. Likewise, a medical or vocational opinion cannot support the Board's findings if it rests on surmise, speculation, conjecture, or guesswork. (Hegglin v. Workmen's Comp. Appeals Bd. (1971) 4 Cal.3d 162, 169 [36 Cal.Comp.Cases 93].) Accordingly, the Board may reweigh the evidence and reach a decision different from the WCJ's
Apportionment of permanent disability must be based on causation and framed in terms of reasonable medical probability with detailed 'how and why' reasoning.
Applied to evaluate the legal sufficiency of PQME Dr. Anderson's apportionment opinion, which was found speculative and insufficient.
From the decision · page 13The mere fact that a medical report assigns approximate percentages of industrial and nonindustrial causation does not make the report reliable medical evidence by itself. (E.L. Yeager Construction v. Workers' Comp. Appeals Bd. (Gatten) (2006) 145 Cal.App.4th 922, 927-928 [71Cal.Comp.Cases 1687].) Instead, apportionment of permanent disability is "based on causation" and the "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, § 4663(a) and 4664(a).) "The plain reading of `causation' in this context is causation of the permanent disability." (Escobedo, supra, 70 Cal.Comp.Cases at p. 611.) Apportionment now includes pathology, asymptomatic prior conditions, and retroactive prophylactic work preclusions, provided there is substantial evidence establishing that these other factors have caused permanent disability.
What proof carried it
The evidence the panel weighed, by kind.
Applicant's chronic pain syndrome and unpredictable flares causing absenteeism and productivity breaks
The same issues, filtered across the whole corpus — or paste your own facts and let the search rank by factor match.
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.
- The injured worker is not named here, and the case caption is not printed. Physicians appear as the decision names them, because a medical opinion is an act in a public proceeding.
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