ADJ11811846 — California WCAB decision

What the panel ordered

Petition for Reconsideration granted; Findings and Order rescinded and substituted; matter returned to trial level for further proceedings consistent with this decision.

Petition for Reconsideration granted; Findings and Order of October 22, 2024 rescinded and substituted; matter returned to trial level for further proceedings.

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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.

Other disputed issueDeferredbilateral lower extremities

The Board deferred the issues of whether the combined pre-existing and subsequent permanent partial disability is greater than the subsequent permanent partial disability alone, and whether the combined disability equals 70% or more, returning the matter to the trial level for further proceedings.

From the decision · page 14Accordingly, we will substitute a finding that defers those issues. (See San Bernardino Community Hosp. v. Workers' Comp. Appeals Bd. (McKernan) (1999) 74 Cal.App.4th 928 [64 Cal.Comp.Cases 986]; Tyler v. Workers' Comp. Appeals Bd. (1997) 56 Cal.App.4th 389 [62 Cal.Comp.Cases 924] (stating the Appeals Board has the discretionary authority to order development of the record when appropriate to provide due process or fully adjudicate the issues consistent with due process).)

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 · orthopedic

Applicant's subsequent permanent disability to the lumbar spine is 28% WPI, with a pre-existing 5% WPI from a 1990 industrial injury. The 5% pre-existing disability should be subtracted as apportionment, resulting in 23% WPI for the subsequent injury, which when adjusted for FEC equals 32% permanent disability. The Board found the subsequent permanent disability equals 35% or more when considered alone and without regard to occupation or age, excluding apportionment.

The Board relied on Dr. Cremata's report to find the subsequent permanent disability meets the 35% threshold excluding apportionment, consistent with Labor Code section 4751(b) and Bookout precedent.

From the decision · page 2The WCJ admitted exhibits entitled QME Report by Edward Cremata dated October 6,

otherRelied upon

Report supports that applicant had pre-existing disabilities affecting bilateral lower extremities and that the subsequent injury affected opposite and corresponding extremities, with subsequent permanent disability equaling 5% or more of total disability.

The Board found the report unrebutted and supportive of the finding on pre-existing disabilities and subsequent injury effects.

From the decision · page 14Here, the record includes unrebutted evidence that (1) applicant had pre-existing disability in the form of constant pain and stiffness of the lower back with pain, numbness and tingling of the bilateral lower extremities; (2) the subsequent injury affected the opposite and corresponding extremities; and (3) the subsequent permanent disability equals 5% or more of the total disability, when considered alone and without regard to occupation or age. (Ex. Ex. 6, QME Report by Edward Cremata, October 6, 2020, pp. 4,7-11, 21; Ex. 5, Report of Debra Welshons-Cline, May 4, 2022, pp 3-4.)

ADJ11811846 · January 30, 2025

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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