What the panel ordered
The Board rescinded the prior Findings of Fact and Award and issued a new award reflecting 34% permanent disability without apportionment, adjusting attorney fees accordingly.
Applicant sought reconsideration of the Findings of Fact and Award issued on July 28, 2022, by the WCJ, which found 17% permanent disability with 50% apportionment to nonindustrial causes. The WCJ filed a Report recommending denial of reconsideration. The Board granted reconsideration to study the issues further.
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 Board found that the PQME's apportionment opinion lacked substantial medical foundation and did not comply with the required detailed causation analysis, thus defendant failed to meet its burden of proof on apportionment.
From the decision · page 5Here, PQME Dr. Finkelberg identified applicant's underlying congenital pars defects, a condition creating a structural weakness in the vertebrae, which concentrates mechanical stress during normal or repetitive spinal motion. This predisposition can lead to stress fractures of the pars, or spondylolysis, and, over time, allow forward slippage of the vertebra, or spondylolisthesis, and progressive degenerative changes. (AMA Guides, Table 15-3, p. 384.) Although he diagnosed a fracture related to the pars defects, PQME Dr. Finkelberg did not provide the detailed causation analysis required to link it to specific nonindustrial permanent disability. Instead, he concluded that the fracture required a "more serious injury" than pushing chairs or tables, yet offered no clinical evidence supporting his assumption that the disabling symptoms otherwise arose from repetitive, naturally occurring motions.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
PQME Dr. Finkelberg did not provide the detailed causation analysis required to link the congenital pars defects to specific nonindustrial permanent disability.
Favours Applicant prevailed
This omission violated apportionment standards and rendered the apportionment conclusion legally insufficient, leading to rejection of apportionment.
From the decision · page 5Here, PQME Dr. Finkelberg identified applicant's underlying congenital pars defects, a condition creating a structural weakness in the vertebrae, which concentrates mechanical stress during normal or repetitive spinal motion. This predisposition can lead to stress fractures of the pars, or spondylolysis, and, over time, allow forward slippage of the vertebra, or spondylolisthesis, and progressive degenerative changes. (AMA Guides, Table 15-3, p. 384.) Although he diagnosed a fracture related to the pars defects, PQME Dr. Finkelberg did not provide the detailed causation analysis required to link it to specific nonindustrial permanent disability. Instead, he concluded that the fracture required a "more serious injury" than pushing chairs or tables, yet offered no clinical evidence supporting his assumption that the disabling symptoms otherwise arose from repetitive, naturally occurring motions.
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.
Apportioned 50% of permanent disability to nonindustrial degenerative arthritis and congenital pars defects without detailed causation analysis, which was found legally insufficient.
The Board found the apportionment opinion lacked the required detailed causation analysis and substantial medical foundation.
From the decision · page 1Applicant contends that the opinion of Panel Qualified Medical Evaluator (PQME) John Finkelberg, M.D., apportioning 50% of applicant's permanent disability to degenerative arthritis and underlying congenital pars defects does not constitute substantial medical evidence and cannot support the determination of her final permanent disability.
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Labor Code section 4663; Brodie v. Workers' Comp. Appeals Bd. (2007) 40 Cal.4th 1313; Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604 (Appeals Board en banc); Normand (1980) 26 Cal.3d 450
Apportionment requires a detailed causation analysis explaining the 'how and why' of the apportionment opinion, considering all contributing factors to permanent disability.
The Board applied these standards to find the PQME's apportionment opinion legally insufficient and lacking substantial medical foundation.
From the decision · page 4Apportionment is the process utilized to segregate permanent disability or the residuals caused by an industrial injury from those attributable to other industrial injuries or to nonindustrial factors, to allocate legal responsibility fairly. (Brodie v. Workers' Comp. Appeals Bd. (2007) 40 Cal.4th 1313, 1321 [72 Cal.Comp.Cases 565]; Marsh v. Workers'Comp. Appeals Bd. (2005) 130 Cal.App.4th 906, 911 [70 Cal.Comp.Cases 787.].)
What proof carried it
The evidence the panel weighed, by kind.
Applicant's testimony of immediate sharp low back pain while pushing a table at work on January 26, 2018, with no prior low-back problems reported.
From the decision · page 3The parties proceeded to trial on June 1, 2022. Applicant testified in pertinent part that, on January 26, 2018 at 8:30 a.m., while preparing for a faculty retreat at her home, she experienced an immediate sharp pain in her low back while pushing a table with her administrative assistant. The pain caused her to fall to the ground for approximately 25 minutes, after which she was able to stand and continue with the event. She first sought medical treatment the following Monday at defendant's health clinic, denied any prior low-back problems, and did not miss work during the first week after the injury. (Minutes of Hearing / Summary of Evidence (MOH/SOE), 06/01/2022, 5:15-32.) She underwent lumbar surgery and subsequently developed a hematoma and had difficulty walking for one week. (MOH/SOE, 06/01/2022, 6:15-18.)
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About this page
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