What the panel ordered
The Appeals Board denied defendant's Petition for Reconsideration, affirming the WCJ's Findings and Award of a 27% unapportioned permanent disability rating under DRE Category III with a 2% pain add-on, totaling 27%.
Defendant filed a timely Petition for Reconsideration of the WCJ's Findings and Award issued June 10, 2024, which awarded applicant an unapportioned permanent disability of 27%. The WCJ issued a Report and Recommendation to deny the petition, which the Appeals Board adopted and incorporated.
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 WCJ's 27% permanent disability rating under DRE III with a 2% pain add-on was supported by substantial medical evidence, particularly the well-reasoned report of Dr. Kaisler-the applicant. The apportionment opinions by Dr. Klassen were found conclusory and not substantial evidence under Escobedo, so no apportionment was applied.
From the decision · page 1Defendant seeks reconsideration of the Findings and Award (F&A), issued by the workers' compensation administrative law judge (WCJ) on June 10, 2024, wherein the WCJ found in pertinent part that applicant is entitled to an unapportioned permanent disability award of 27%.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Dr. Kaisler-the applicant's medical reports provided a well-reasoned, substantial medical basis for a 27% permanent disability rating under DRE III with a 2% pain add-on.
Favours Applicant prevailed
The WCJ and Appeals Board relied on his reports as substantial evidence supporting the rating and no apportionment.
From the decision · page 7On 4/18/2024, the parties proceeded to trial. The matter was submitted for decision without testimony. The undersigned found Dr. Kaisler-the applicant's 13% WPI rating under DRE III and the 2% pain add-on to be well supported by the medical record and found his reports to be substantial medical evidence. Dr. Kaisler-the applicant's 11/15/2022 report rates as follows:
Dr. Klassen's apportionment opinions were conclusory and lacked detailed explanation of how degenerative changes caused permanent disability, failing to meet the substantial evidence standard under Escobedo.
Favours Applicant prevailed
This led to rejection of apportionment and an unapportioned award to applicant.
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.
Rated applicant under DRE Category III with 13% WPI plus 2% pain add-on for a total of 15% WPI, opined no apportionment due to lack of prior injury records, and supported the 27% permanent disability rating.
His report was found well supported by the medical record and substantial medical evidence by the WCJ and Appeals Board.
From the decision · page 6On 11/15/2022, applicant's current PTP, Dr. Kaisler-the applicant, issued a comprehensive medical- legal report. He indicated there was no apportionment as he had not been provided with medical records of any prior injury. He rated applicant under DRE Category III, due to radiculopathy and applicant's ADL's. He assigned 13% WPI, plus 2% WPI for pain, for a total of 15% WPI. (Exhibit 2)
Initially opined 20% apportionment to prior injury and 80% to 2021 injury, later modified to 10% apportionment to 2011 injury due to minimal degenerative changes, but opinions were found conclusory and not substantial evidence for apportionment.
Did not adequately support apportionment opinion as required by Escobedo, lacking detailed explanation of how degenerative changes caused disability.
From the decision · page 6WPI. With regard to apportionment, Dr. Klassen opined that, "based upon the fact that she did have a previous injury and the case is still open, I would describe 20% apportionment to the injury in 2012 or 2013 that pre- dated her September 2021 injury, and 80% of her apportionment to the September 9, 2021 injury." (Exhibit B)
Rated applicant under DRE Category II at 5% WPI with no apportionment, documented normal examination but findings supported DRE III rating by Dr. Kaisler-the applicant.
His findings of disc bulging and radiculopathy supported the higher DRE III rating despite his own lower rating.
From the decision · page 5On 3/07/2022, applicant's former PTP, Sherman Tran, M.D. issued a PR-4 report in which he indicated an MRI of the lumbar spine showed disk bulging at L3-S1 with foraminal stenosis. He declared applicant MMI and rated her low back under DRE Category II at 5% WPI, with no apportionment indicated. (Exhibit D)
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604
The Board rejected Dr. Klassen's apportionment opinions as conclusory and not substantial evidence because they lacked detailed explanation of how degenerative changes caused disability.
From the decision · page 1We have not received an Answer from applicant. The WCJ issued a Report and Recommendation on Petition for Reconsideration (Report) recommending that the Petition be denied. We have considered the allegations in the Petition and the contents of the Report with respect thereto. Based on our review of the record, for the reasons stated in the WCJ's Report, which is adopted and incorporated herein, and for the reasons discussed below, we will deny reconsideration. Turning to apportionment, the Appeals Board discussed Labor Code section 4663 with regard to the issue of apportionment of permanent disability based on causation in Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604.
What proof carried it
The evidence the panel weighed, by kind.
Dr. Kaisler-the applicant's well-reasoned report and objective findings supporting DRE III rating
From the decision · page 7On 4/18/2024, the parties proceeded to trial. The matter was submitted for decision without testimony. The undersigned found Dr. Kaisler-the applicant's 13% WPI rating under DRE III and the 2% pain add-on to be well supported by the medical record and found his reports to be substantial medical evidence. Dr. Kaisler-the applicant's 11/15/2022 report rates as follows:
Dr. Klassen's apportionment opinions found conclusory and lacking detailed explanation
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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.
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