ADJ15603997 — California WCAB decision

What the panel ordered

The Petition for Reconsideration was granted, the October 13, 2023 Findings of Fact and Award were rescinded, and the matter was returned to the WCJ for further proceedings consistent with the opinion.

Applicant sought reconsideration of the Finding of Fact and Award issued on October 13, 2023, challenging the substantiality of medical evidence and the omission of indemnity rates and commencement date in the award. The WCJ recommended granting reconsideration and returning the matter for further record development.

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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.

ApportionmentApplicant prevailedbilateral hands · bilateral shoulders · lumbar spine · right ankle · bilateral knees · neuro · neuropsyche · dental · TMJ · sleep

The apportionment analyses of Drs. Armagan, Nudleman, and Wells were found not to constitute substantial evidence because they lacked detailed explanation and reasoning linking nonindustrial factors to present permanent disability.

From the decision · page 7Here, the F&A awards permanent disability based on the WCJ's ratings, as set forth at pp. 4-5 of the Opinion on Decision. Therein, the WCJ applies apportionment to nonindustrial factors as identified in the field of orthopedics by Dr. Armagan, in neurology by Dr. Nudleman, and in dentistry by Dr. Wells.

The facts that decided it

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

Dr. Hendel's internal medicine report did not address the cumulative injury claim and was based on an inadequate medical history.

Favours Applicant prevailed

This led to the rejection of Dr. Hendel's report as substantial medical evidence and the rescission of the permanent disability award based in part on his report.

From the decision · page 3Applicant further contends that the reporting of Dr. Hendel in the specialty of internal medicine does not constitute substantial medical evidence. Applicant contends that Dr. Hendel evaluated applicant's injury as an alleged specific injury of June 14, 1999, when applicant is pleading a cumulative injury from September 15, 1998 to November 19, 1999. (Petition, at p. 6:14.) Applicant also contends Dr. Hendel reviewed 289 pages of records, while internist Dr. Brautbar reviewed at least 827 pages. Applicant argues the reporting of Dr. Hendel is not based on a complete review of the medical record and is therefore not substantial evidence. Applicant contends that Dr. Hendel's conclusions with respect to applicant's hypertension are not based on the evidence of hypertension located in the medical record, and do not comport with the

The apportionment analyses of Drs. Armagan, Nudleman, and Wells lacked detailed explanation linking nonindustrial factors to present permanent disability.

Favours Applicant prevailed

This led to the finding that these analyses do not constitute substantial evidence and the rescission of the apportionment findings based on them.

From the decision · page 7However, the reporting of Dr. Armagan broadly attributes medical apportionment to applicant's "recreational hockey participation since 2006," and applicant's "post-hockey employments at Best buy (sic) and Amazon." (Ex. B, Report of Osep Armagan, M.D., dated November 21, 2022, at pp. 63-64.) Dr. Armagan's analysis is fundamentally conclusory and does not explain how and why applicant's recreational hockey or employment at Best Buy or Amazon are causative of his permanent disability. Similarly, with respect to applicant's left shoulder injury in 2018, Dr. Armagan does not explain how that injury is presently manifesting in permanent disability, or the interaction of the industrial shoulder injury with applicant's 2018 shoulder injury. Nor does Dr. Armagan explain how he arrived at the percentages of apportionment described in his reporting. Because the reporting of Dr. Armagan does not explain the relationship between the identified factors of apportionment and his present disability, or how and why nonindustrial factors are presently manifesting in permanent disability, the apportionment analysis is not substantial evidence.

The parties did not place earnings in issue at trial, and the WCJ recommended further development of the record to determine indemnity rates and commencement date.

Favours neutral

This led to deferral of the issues of indemnity rates and commencement date for further proceedings.

From the decision · page 3The WCJ's Report observes that the indemnity rates were not fixed as the parties specifically withdrew the issue of earnings from the submitted issues at trial. (Report, at p. 2.) The WCJ also observes with respect to the internal medicine evaluations of applicant, various diagnostic tests were requested but not obtained. Accordingly, the WCJ recommends we grant reconsideration and return the matter to the trial level for development of the record as it pertains to the indemnity rate and the internal medicine reporting. (Ibid.)

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.

QMERejected · internal medicine

Dr. Hendel's report failed to address the cumulative injury claim and was based on an inadequate medical history, thus not constituting substantial medical evidence.

Report did not address cumulative injury and lacked adequate medical history.

From the decision · page 3Applicant further contends that the reporting of Dr. Hendel in the specialty of internal medicine does not constitute substantial medical evidence. Applicant contends that Dr. Hendel evaluated applicant's injury as an alleged specific injury of June 14, 1999, when applicant is pleading a cumulative injury from September 15, 1998 to November 19, 1999. (Petition, at p. 6:14.) Applicant also contends Dr. Hendel reviewed 289 pages of records, while internist Dr. Brautbar reviewed at least 827 pages. Applicant argues the reporting of Dr. Hendel is not based on a complete review of the medical record and is therefore not substantial evidence. Applicant contends that Dr. Hendel's conclusions with respect to applicant's hypertension are not based on the evidence of hypertension located in the medical record, and do not comport with the

QMERelied upon · internal medicine

Dr. Brautbar's report was comprehensive, addressed the cumulative injury, and was found to be substantial medical evidence.

Report addressed cumulative injury and was comprehensive.

From the decision · page 4The reporting of Dr. Brautbar, on the other hand, reflects a correct understanding of the cumulative nature of the injury claimed by applicant, and appropriately discusses the issues of causation of applicant's disability as related to the claimed cumulative injury. (Ex. 14, Report of Nachman Brautbar, M.D., dated April 6, 2022, at p. 23.) The reporting of Dr. Brautbar is premised on a review of applicant's medical history, including at least 853 pages of medical records over four reports. Dr. Brautbar finds multifactorial industrial causation of applicant's sleep apnea and

The rules the panel named

Authorities as the decision cited them, with how this panel applied each one.

Zemke v. Workers' Comp. Appeals Bd. (1968) 68 Cal.2d 794

An expert's opinion which does not rest upon relevant facts or which assumes an incorrect legal theory cannot constitute substantial evidence for apportionment.

The report of Dr. Hendel was rejected because it did not address the cumulative injury and was based on inadequate premises.

From the decision · page 4We agree. Although the Appeals Board must rely on expert medical opinion in resolving the issue of apportionment, an expert's opinion which does not rest upon relevant facts or which assumes an incorrect legal theory cannot constitute substantial evidence upon which the board may base an apportionment finding. (Zemke v. Workers' Comp. Appeals Bd. (1968) 68 Cal.2d 794, 798 [69 Cal.Rptr. 88, 441 P.2d 928].) Such a report "cannot rise to a higher level than its own inadequate premises." (Id. at p. 801.) Here, Dr. Hendel states:

Labor Code section 4663

A physician's report addressing permanent disability must include an apportionment determination explaining the percentages caused by industrial and nonindustrial factors with detailed reasoning.

The apportionment analyses of Drs. Armagan, Nudleman, and Wells were found not to meet these requirements and thus were not substantial evidence.

From the decision · page 5Finally, we observe that following the grant of reconsideration, the Appeals Board has the authority to make new and different findings on issues presented for determination at the trial level, even with respect to issues not raised in the petition for reconsideration before it. (Pasquotto v. Hayward Lumber (2006) 71 Cal.Comp.Cases 223 [2006 Cal. Wrk. Comp. LEXIS 35, 51-17] (Appeals Bd. en banc).) Following our review of the record, we are persuaded that the apportionment analyses of Drs. Armagan, Nudleman and Wells do not constitute substantial evidence. Section 4663 provides, in relevant part, as follows:

Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604

The minimum requirements for an apportionment analysis include reasonable medical probability, non-speculation, pertinent facts, adequate examination and history, and reasoning support.

The apportionment analyses of Drs. Armagan, Nudleman, and Wells failed to meet these standards.

From the decision · page 6In order to comply with section 4663, a physician's report in which permanent disability is

What proof carried it

The evidence the panel weighed, by kind.

Medical recordsfavours Applicant prevailed

Dr. Hendel's report failed to address the cumulative injury claim and was based on an inadequate medical history.

From the decision · page 3Applicant further contends that the reporting of Dr. Hendel in the specialty of internal medicine does not constitute substantial medical evidence. Applicant contends that Dr. Hendel evaluated applicant's injury as an alleged specific injury of June 14, 1999, when applicant is pleading a cumulative injury from September 15, 1998 to November 19, 1999. (Petition, at p. 6:14.) Applicant also contends Dr. Hendel reviewed 289 pages of records, while internist Dr. Brautbar reviewed at least 827 pages. Applicant argues the reporting of Dr. Hendel is not based on a complete review of the medical record and is therefore not substantial evidence. Applicant contends that Dr. Hendel's conclusions with respect to applicant's hypertension are not based on the evidence of hypertension located in the medical record, and do not comport with the

expert methodologyfavours Applicant prevailed