What the panel ordered
The Petition for Reconsideration is granted. The Findings and Award is amended to find 72% permanent disability without apportionment, remove the finding on medical care for bilateral wrists and hands, award attorney's fees from the life pension, commute the attorney's fees, and otherwise affirm the award.
Applicant filed a Petition for Reconsideration in response to the WCJ's Findings and Award issued on February 6, 2026. The WCJ found 66% permanent partial disability after apportionment. The Petition challenged the AME's apportionment opinions as not substantial evidence. The WCJ's Report recommended denial of reconsideration. The Appeals Board granted reconsideration and amended the award.
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 Appeals Board found that the AME's apportionment opinions were not substantial evidence due to lack of reasoning, but ultimately credited the AME's approximate apportionment percentages as meeting the burden of proof for defendant, leading to a grant of reconsideration and amendment of the award to 72% permanent disability without apportionment.
From the decision · page 6A. The burden of proving apportionment of permanent disability falls on the employer because it is the employer that benefits from apportionment. (Benson v. Workers' Comp. Appeals Bd. (2009) 170 Cal.App.4th 1535, 1560 [74 Cal.Comp.Cases 113]; Kopping v. Workers' Comp. Appeals Bd. (2006) 142 Cal.App.4th 1099, 1115 [71 Cal.Comp.Cases 1229]; Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 612 (Appeals Board en banc).) In Escobedo the Appeals Board held: (1) section 4663 requires the reporting physician to make an apportionment determination; (2) apportionment to other factors allows apportionment to causation, including pathology, prior conditions, and retroactive work restrictions; (3) applicant holds the initial burden to prove industrial injury and also has the added burden of establishing the approximate percentage of permanent disability directly related to the industrial injury; (4) defendant has the burden of establishing the approximate permanent disability caused by other factors; and (5) a medical report addressing apportionment may not be relied upon unless it constitutes substantial evidence. (Escobedo, supra, at p. 607.)
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
The AME Dr. Sommer provided approximate percentages of apportionment for the permanent disability.
Favours Defendant prevailed
The Appeals Board credited these approximate percentages as meeting the burden of proof for defendant on apportionment.
From the decision · page 17In the case before us, the AME identified apportionable factors consisting of a significant history of nicotine abuse, a 2011 shoulder injury (Exhibit AA, AME Michael Sommer, M.D., November 5, 2020, p. 33), degenerative changes (Exhibit FF, AME Michael Sommer, M.D., January 26, 2022, p. 6), and conjoined nerve root at L5-S1 (Exhibit GG, AME Michael Sommer, M.D., May 21, 2024, p. 35). The AME then used his medical expertise to provide apportionment by approximate percentages. Nothing further is required. To require more would ignore the legislature's passage of "an urgency measure designed to alleviate a perceived crisis in skyrocketing workers' compensation costs." (Brodie, 40 Cal. 4th at 1323.)
The AME's apportionment opinions lacked detailed reasoning and were initially found not substantial evidence.
Favours Applicant prevailed
This led to reconsideration and amendment of the award to remove apportionment and increase permanent disability to 72%.
From the decision · page 103. For the thoracic spine, AME Dr. Sommer apparently again relies on the statement "[d]isability/ impairment in the spine is approximately 10% non-industrial: nicotine abuse (which is well known to be deleterious to musculoskeletal and neural tissues) and degenerative changes are the cause of this, while approximately 90% is from the fall at work on 11/16/18." (Exhibit FF, AME Michael Sommer, M.D., January 26, 2022, p. 6.) But then goes on to state: "Apportionment considerations are as I earlier described as to the shoulders, which is approximately 15% nonindustrial and approximately 85% a consequence of the injury under discussion. That would be true as well in the thoracic spine." (Exhibit GG, AME Michael Sommer, M.D., May 21, 2024, p. 35.)3 Here again, the doctor does not set forth the required reasoning behind his opinion, merely his conclusions (approximately 15% nonindustrial). The thoracic spine is subject to the same analysis as the cervical spine above, and thus, the failure to set forth the required reasoning behind his opinion renders AME Dr. Sommer's not substantial. (Granado, 69 Cal.2d at p. 407.)
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.
Provided evolving opinions on apportionment for multiple body parts, including cervical, thoracic, lumbar spine, and bilateral shoulders, with approximate percentages of non-industrial and industrial causes.
The Appeals Board reviewed and analyzed Dr. Sommer's evolving apportionment opinions, noting some lacked detailed reasoning but ultimately credited the approximate percentages as meeting the burden of proof.
From the decision · page 8Here, the medical expert apportionment opinions are provided by AME Dr. Sommer. We ordinarily follow the opinion of an AME because it is presumed the AME was chosen by the parties because of their expertise and neutrality. (Power v. Workers' Comp. Appeals Bd. (1986) 179 Cal.App.3d 775, 782 [51 Cal.Comp.Cases 114].) To determine if defendant has met its burden on apportionment, however, we must review AME Dr. Sommer's opinions.
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Benson v. Workers' Comp. Appeals Bd. (2009) 170 Cal.App.4th 1535; Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604; Granado v. Workers' Comp. Appeals Bd. (1970) 69 Cal.2d 399
The burden of proving apportionment of permanent disability falls on the employer, and a medical report must be based on reasonable medical probability and set forth reasoning to be substantial evidence.
The Appeals Board reviewed the AME's apportionment opinions under these standards and found some opinions lacking reasoning but ultimately credited the approximate percentages as substantial evidence.
From the decision · page 6A. The burden of proving apportionment of permanent disability falls on the employer because it is the employer that benefits from apportionment. (Benson v. Workers' Comp. Appeals Bd. (2009) 170 Cal.App.4th 1535, 1560 [74 Cal.Comp.Cases 113]; Kopping v. Workers' Comp. Appeals Bd. (2006) 142 Cal.App.4th 1099, 1115 [71 Cal.Comp.Cases 1229]; Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 612 (Appeals Board en banc).) In Escobedo the Appeals Board held: (1) section 4663 requires the reporting physician to make an apportionment determination; (2) apportionment to other factors allows apportionment to causation, including pathology, prior conditions, and retroactive work restrictions; (3) applicant holds the initial burden to prove industrial injury and also has the added burden of establishing the approximate percentage of permanent disability directly related to the industrial injury; (4) defendant has the burden of establishing the approximate permanent disability caused by other factors; and (5) a medical report addressing apportionment may not be relied upon unless it constitutes substantial evidence. (Escobedo, supra, at p. 607.)
What proof carried it
The evidence the panel weighed, by kind.
The AME's apportionment opinions lacked detailed reasoning and were found not substantial evidence initially.
From the decision · page 103. For the thoracic spine, AME Dr. Sommer apparently again relies on the statement "[d]isability/ impairment in the spine is approximately 10% non-industrial: nicotine abuse (which is well known to be deleterious to musculoskeletal and neural tissues) and degenerative changes are the cause of this, while approximately 90% is from the fall at work on 11/16/18." (Exhibit FF, AME Michael Sommer, M.D., January 26, 2022, p. 6.) But then goes on to state: "Apportionment considerations are as I earlier described as to the shoulders, which is approximately 15% nonindustrial and approximately 85% a consequence of the injury under discussion. That would be true as well in the thoracic spine." (Exhibit GG, AME Michael Sommer, M.D., May 21, 2024, p. 35.)3 Here again, the doctor does not set forth the required reasoning behind his opinion, merely his conclusions (approximately 15% nonindustrial). The thoracic spine is subject to the same analysis as the cervical spine above, and thus, the failure to set forth the required reasoning behind his opinion renders AME Dr. Sommer's not substantial. (Granado, 69 Cal.2d at p. 407.)
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.
- Issues, outcomes and weights were extracted by AI and released only where the source passage checked. Read the official decision before relying on anything here. Not legal advice.
- If you are named in this decision and want this page removed, write to privacy@similarcase.com.