ADJ11253479 · October 2, 2026

The WCAB deferred permanent disability and apportionment issues for further medical clarification due to discrepancies in Dr. Newton's deposition testimony and incomplete medical evidence.

From the decision · page 4The WCAB has a duty to further develop the record when there is a complete absence of (Tyler v. Workers’ Comp. Appeals Bd. (1997) 56 Cal.App.4th 389, 393-395 [62 Cal.Comp.Cases 924]) or even insufficient (McClune v. Workers’ Comp. Appeals Bd. (1998) 62 Cal.App.4th 1117, 1121-1122 [63 Cal.Comp.Cases 261]) medical evidence on an issue. The WCAB has a constitutional mandate to ensure “substantial justice in all cases.” (Kuykendall v. Workers’ Comp. Appeals Bd. (2000) 79 Cal.App.4th 396, 403 [65 Cal.Comp.Cases 264].) In accordance with that mandate, we will grant reconsideration and defer the issues of permanent disability and apportionment pending further development of the medical record and pending further analysis and decision by the WCJ. Since we defer the issue of permanent disability on the basis outlined above, we do not reach the issue of the rating of the alleged headache impairment. The applicant may raise this issue in the further proceedings, and it should be analyzed in light of the authorities and reasoning explained in our Opinion of July 10, 2026, and in light of the further argument and evidence raised by the parties. We express no opinion on the ultimate resolution of any issue in this matter.

Discrepancy in Dr. Newton's deposition testimony regarding apportionment and range of motion

Favours Applicant prevailed

This discrepancy required the WCAB to defer permanent disability and apportionment issues for further medical clarification.

From the decision · page 4However, while applicant characterizes this testimony as a “realization” and a change of opinion, Dr. Newton was not directly asked to revisit his Labor Code section 4663 apportionment determination at the October 15, 2025 deposition. Additionally, “[a]lthough called the range-of- motion method, this evaluation method actually consists of three elements that need to be assessed: (1) the range of motion of the impaired spine region; (2) accompanying diagnoses (Table 15-7); and (3) any spinal nerve deficit.” (AMA Guides, § 15.8 Range-of-Motion Method, p. 398.) Finally, it is well established that one may properly apportion to pathology and asymptomatic prior conditions (see, e.g. Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 617 [Appeals Bd.

Dr. Newton provided an apportionment determination that 40% of the cervical permanent disability was due to pre-existing factors, but his deposition testimony showed discrepancies regarding range of motion and apportionment.

Discrepancies in Dr. Newton's deposition testimony regarding apportionment required further clarification.

From the decision · page 3Turning to the issue of apportionment, in our Opinion and Decision after Reconsideration of July 10, 2026, we relied upon independent medical evaluator orthopedist Peter Newton, M.D.’s opinions as expressed in his April 3, 2024 report and his April 23, 2025 deposition testimony that percent of applicant’s cervical permanent disability was attributable to factors other than the industrial injury. At the April 23, 2025 deposition, Dr. Newton explained that he made his apportionment determination based upon “severe pain and significant limitations” after surgery for the 2012 injury and that he did not think applicant “had full range of motion based on the significant symptoms” applicant had after the 2012 injury. (April 23, 2025 deposition at pp. 18- 20.) However, at the October 15, 2025 deposition, under questioning from applicant’s counsel, Dr. Newton testified that applicant’s range of motion was completely normal after the surgery caused by the 2012 injury and that range of motion loss was due to the later 2017 injury. (October 15, 2025 deposition at pp. 36-37.) He testified that “Dr. Wickman found really very minimal, if any, effects due to the 2012 injury. He had full range of motion. He had very good functions.” (October 15, 2025 deposition at p. 42.)

Labor Code section 4663

Labor Code section 4663 apportionment

The WCAB must base apportionment decisions on substantial medical evidence and may defer for further development if evidence is insufficient.

From the decision · page 4en banc]), so the fact that applicant’s prior condition was not painful or did not result in a marked decrease in range of motion is not dispositive of the issue of apportionment. Nevertheless, any apportionment decision, like any decision of the WCAB, must be based on substantial medical evidence. (Escobedo, supra, 70 Cal.Comp.Cases at p. 621.) The discrepancy raised by applicant is sufficient to require clarification or reformulation by the reporting physician. We also note that we cannot completely analyze the issue of permanent disability because Dr. Newton refers to a computer-generated rating analysis which did not find its way into the electronic adjudication file in this matter.

Labor Code section 5909

Labor Code section 5909 petition for reconsideration timing

The Appeals Board must act on petitions for reconsideration within 60 days of case transmission; notice requirements apply to parties.

From the decision · page 2Petitions for reconsideration filed on or after July 14, 2026 are subject to Labor Code section 5909, which states that:

Discrepancy in Dr. Newton's deposition testimony regarding range of motion and apportionment

From the decision · page 4However, while applicant characterizes this testimony as a “realization” and a change of opinion, Dr. Newton was not directly asked to revisit his Labor Code section 4663 apportionment determination at the October 15, 2025 deposition. Additionally, “[a]lthough called the range-of- motion method, this evaluation method actually consists of three elements that need to be assessed: (1) the range of motion of the impaired spine region; (2) accompanying diagnoses (Table 15-7); and (3) any spinal nerve deficit.” (AMA Guides, § 15.8 Range-of-Motion Method, p. 398.) Finally, it is well established that one may properly apportion to pathology and asymptomatic prior conditions (see, e.g. Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 617 [Appeals Bd.