ADJ12903013 — California WCAB decision

What the panel ordered

Petition for Reconsideration granted; final decision deferred pending further review of merits and entire record.

Applicant seeks reconsideration of the February 23, 2024 Findings, Award and Orders where the WCJ found admitted industrial injury and 11% permanent disability after apportionment; the WCJ recommended denial of reconsideration; the Appeals Board granted reconsideration and deferred final decision pending further review.

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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.

ApportionmentRemandedcervical spine

The Appeals Board preliminarily found it unclear if substantial medical evidence supported the apportionment finding, warranting reconsideration for further review.

From the decision · page 3In my discussion of the substantialness and legal validity of that opinion in the FA&O, I wrote,

The facts that decided it

What the panel treated as outcome-determinative, and which side it favoured.

Applicant sustained admitted industrial injury to cervical spine on October 21, 2019, with prior multilevel cervical fusion from 2014 injury.

What proof carried it

The evidence the panel weighed, by kind.

Testimony and credibilityfavours Applicant prevailed

Applicant's trial brief argued Dr. Barber's apportionment opinion lacked sufficient explanation under Escobedo and did not review all prior AME reports.

From the decision · page 3"The parties stipulated that the AME's rating after adjustment for age and occupation and before apportionment is 57% PD. (MOH at p. 2, Stipulation No. 6.) Applicant's trial brief at pp. 2-3 argues that Dr. Barber's apportionment opinion is not substantial medical evidence because it does not sufficiently explain how or why she attributes 80% of the current PD to the prior injury under Escobedo. It also asserts that Dr. Barber did not review one of the prior AME reports of Dr. Conrad dated December 6, 2016, when Dr. Conrad provided his own opinion that 10% of the PD from the 2014 injury was apportionable to non-industrial causes, which included a series of earlier motor vehicle accidents and preexisting pathology in the neck. (Joint 102, Report of 12/6/16 pp. 5-6.) It appears from Dr. Barber's initial report dated September 12, 2022 (Joint 102), that although Dr. Barber reviewed two of Dr. Conrad's reports dated September 20, 2016 and February 1, 2017, she did not summarize, and presumably did not review the report of December 6, 2016 where he provides his apportionment opinion.

objective testingfavours Defendant prevailed

Defendant presented MRI evidence predating 2019 injury showing degenerative changes and disc bulges supporting apportionment.

From the decision · page 3As noted, it is the defendant's burden to establish valid apportionment, which must be based on substantial medical evidence. Defendant points out in its trial brief at p. 2, that aside from the obvious multilevel prior fusion, that Dr. Barber reviewed MRIs of the cervical spine dated February 13, 2014, and August 19, 2015, which pre-date the October 21, 2019 date of injury in this case, and document degenerative changes and a annular disc bulge at C4-5, as well as a C5-6 broad based disc bulge with osteophyte complex, prominent on the right. (Joint 101, Report of 9/12/22 at p. 11.) Having reviewed the entire record, I find and conclude that the defendant has met that burden. Dr. Barber, over the course of her two reports, found 80% apportionment to the prior injuries and related multilevel fusion, and did not change her opinion after review of additional records.

ADJ12903013 · May 6, 2024

What the panel ordered

What was disputed, and how it came out

The facts that decided it

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What the panel did with the medical opinions

The rules the panel named

What proof carried it

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