What the panel ordered
The WCAB affirms the WCJ's January 10, 2025 First Amended Findings and Award after Order Setting Aside, denying reconsideration for defendant.
Applicant sought reconsideration of the WCJ's First Amended Findings and Award after Order Setting Aside issued January 10, 2025. The WCAB granted reconsideration, studied the issues, and now affirms the WCJ's decision.
This docket was decided more than once. Shown here is the latest released decision; we also hold September 9, 2024.
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 found, and the WCAB affirmed, that the evidence supports adding impairments for both knees under Kite and Vigil, and that defendant did not meet its burden of proof for apportionment to non-industrial or prior industrial factors, as Dr. Graham's opinions were not substantial evidence.
From the decision · page 1Applicant seeks reconsideration of the First Amended Findings and Award after Order Setting Aside issued on January 10, 2025 by the workers' compensation administrative law judge (WCJ). Therein, the WCJ found, based on the parties' stipulation, that applicant sustained injury arising out of and occurring in the course of employment (AOE/COE) to his bilateral knees while employed as a heavy equipment mechanic, during the period from May 12, 2021 to May 12, 2022. The WCJ further found that the injury herein caused 66% permanent disability; that the evidence in this case is consistent with Kite and Vigil and, therefore, impairment in the right and left knees is added; and that there is no legal basis for apportionment.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Applicant continued to have symptoms and treatment for his knees after the 2013 surgery, with no change in work duties, supporting a single continuous cumulative trauma period rather than two distinct injuries.
Favours Applicant prevailed
This fact undermined Dr. Graham's apportionment to a prior cumulative trauma period and supported the finding of one continuous injury.
From the decision · page 4Dr. Graham opined that there were two separate periods of injurious exposure both before and after Applicant's left knee arthroscopy on January 9, 2013 (See Joint Exhibits "Q", "S" pg. 7:16-10:24,"T" pg. 2, and "U" 64:13-20). Based on this, Dr. Graham opines that there are two separate cumulative trauma injuries that permanent disability should be apportioned to. (Id.). However, Dr. Graham also reviewed records demonstrating continued medical treatment for the bilateral knees that occurred in 2021 and 2022 (Exhibit "P" pg. 2). While there is a gap in the record between the first surgery in 2013 and the treatment in 2021, there is no evidence that following applicant's return to work, he changed his work duties. In fact, Applicant testified that he eventually returned to work working full duties (MOH/SOE 3:18-19). As such, as there appears to be treatment both before and after the temporary disability period in 2013 and no evidence of change to Applicant's work duties. Under Western Growers, Dr. Graham's apportionment between two cumulative trauma injuries is unpersuasive.
Dr. Graham's apportionment to non-industrial osteoarthritis was based on epidemiological studies and incomplete records, without adequate explanation or review of relevant treatment records.
Favours Applicant prevailed
This lack of substantial evidence led the WCAB to reject apportionment to non-industrial factors.
From the decision · page 11Dr. Graham's opinion regarding apportionment to nonindustrial osteoarthritis likewise fails. In his March 13, 2023 report, he apportions 50% of the disability for both knees to an underlying degenerative condition (i.e., osteoarthritis). (Dr. Graham's 3/13/23 Report, at p. 14- 15, Joint Exhibit P.) He reasoned that "[e]pidemiological studies indicate that 50% of individuals with this claimant's knee condition are symptomatic, and 50% are asymptomatic. 50% therefore is apportioned to the underlying degenerative condition of his knees." (Id. at p. 14.) However, he noted that his opinion regarding apportionment was subject to modification pending his review of all treatment records pertaining to applicant's arthroscopic procedure. As discussed above, Dr. Graham never reviewed any treatment reports related to the arthroscopic procedure other than the operative report. Equally important, other than stating that "epidemiological studies indicate that 50% of individuals with this claimant's knee condition are symptomatic and 50% are asymptomatic," Dr. Graham failed to explain the relevance of that assertion to the nature of applicant's nonindustrial osteoarthrosis, which would seem impossible to do without having reviewed any treatment reports other than the operative report, nor did he explain how and why the osteoarthritis was responsible for the 50% of disability that he assigned.
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.
Dr. Graham opined 15% WPI for each knee, supported adding impairments under Kite/Vigil, but attributed 50% of disability to non-industrial osteoarthritis and to a prior cumulative injury ending in 2013. His apportionment opinions were rejected as not substantial evidence due to lack of adequate records and explanation.
The WCAB found Dr. Graham's apportionment opinions unpersuasive and not substantial evidence, but credited his impairment ratings for adding disabilities under Kite/Vigil.
From the decision · page 3The parties jointly offered and relied upon the Panel QME Reports and Deposition Transcripts of Dr. Scott Graham. Joint Exhibits "P, Q, R, S, T and U." Dr. Graham diagnosed Applicant with "[s]tatus-post bilateral total knee replacement for end stage osteoarthritis, both knees." Joint Exhibit "P" pg. 12. Dr. Graham examined Applicant's bilateral knees and opined Applicant suffered 15% whole person impairment for each knee. Id. pg. 14.
Dr. Crall is identified as the primary treating physician, but no material opinion is weighed in the decision.
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Lab. Code, § 4663; Benson v. WCAB (2009) 170 Cal.App.4th 1535; Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604
Apportionment of permanent disability must be based on causation, with the defendant bearing the burden of proof for non-industrial factors. Medical opinions must be substantial evidence, based on adequate facts and reasoning.
The WCAB applied these standards to reject Dr. Graham's apportionment opinions as not substantial evidence and to find no basis for apportionment.
From the decision · page 6With regard to the issue of apportionment, section 4663 provides that "[a]pportionment of permanent disability shall be based on causation." (Lab. Code, § 4663(a).) A doctor who prepares a report addressing the issue of permanent disability due to a claimed industrial injury must address the issue of causation of the permanent disability. (Lab. Code, § 4663(b).) Section 4663 requires that the doctor "make an apportionment determination by finding what approximate percentage of the permanent disability was caused by the direct result of injury arising out of and occurring in the course of employment and what approximate percentage of the permanent disability was caused by other factors both before and subsequent to the industrial injury, including prior industrial injuries." (Lab. Code, § 4663(c).) Pursuant to section 4663(c) and section 5705, defendant has the burden of establishing the approximate percentage of permanent disability caused by factors other than the industrial injury. (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, 607 (Appeals Board en banc).)
Athens Administrators v. WCAB (Kite) (2013) 78 Cal.Comp.Cases 213; Vigil v. County of Kern (2024) 89 Cal.Comp.Cases 686
Impairments may be added rather than combined under the CVC when the impact on ADLs is distinct or synergistic, per Kite and Vigil.
The WCAB found the evidence supported adding impairments for both knees under Kite and Vigil.
From the decision · page 3In the intervening time, the [Workers' Compensation Appeals Board (WCAB)] issued an en banc decision explaining the evidence necessary to support rebuttal of the [Combined Values Chart (CVC)] pursuant to Kite. Vigil v. County of Kern (2024) 89 CCC 686, 689-690. The WCAB held that the CVC in the permanent disability ratings schedule (PDRS) can be rebutted and impairments may be added when an applicant establishes the impact of each impairment on the activities of daily living (ADLs) and that either: (1) There is no overlap between the effects on ADLs for the body parts rated. Or (2) There is overlap, but it increases or amplifies the impact on the overlapping ADLs. (Id.).
What proof carried it
The evidence the panel weighed, by kind.
Applicant's testimony and medical records showed continued symptoms and treatment for the knees after the 2013 surgery, with no change in work duties, supporting one continuous cumulative trauma period.
From the decision · page 4Dr. Graham opined that there were two separate periods of injurious exposure both before and after Applicant's left knee arthroscopy on January 9, 2013 (See Joint Exhibits "Q", "S" pg. 7:16-10:24,"T" pg. 2, and "U" 64:13-20). Based on this, Dr. Graham opines that there are two separate cumulative trauma injuries that permanent disability should be apportioned to. (Id.). However, Dr. Graham also reviewed records demonstrating continued medical treatment for the bilateral knees that occurred in 2021 and 2022 (Exhibit "P" pg. 2). While there is a gap in the record between the first surgery in 2013 and the treatment in 2021, there is no evidence that following applicant's return to work, he changed his work duties. In fact, Applicant testified that he eventually returned to work working full duties (MOH/SOE 3:18-19). As such, as there appears to be treatment both before and after the temporary disability period in 2013 and no evidence of change to Applicant's work duties. Under Western Growers, Dr. Graham's apportionment between two cumulative trauma injuries is unpersuasive.
Dr. Graham's apportionment opinions were based on incomplete records and insufficient explanation, undermining their weight as substantial evidence.
From the decision · page 11that it would be helpful to see x-rays from 2013 (id. at p. 77:13-20); and that he did not have any medical records between the January 9, 2013 operative report and an office visit in May 2021. (Depo, 6/14/23, at p. 19:8-12.) In his August 1, 2024 deposition, Dr. Graham confirmed again that he had no source of information for the dates upon which he based his opinion regarding the existence of two cumulative injuries. (Depo, 8/1/24, at p. 54:24 § 55:3.) A medical opinion is not substantial evidence if it is based on facts no longer germane, on inadequate medical histories or examinations, on incorrect legal theories, or on surmise, speculation, conjecture, or guess. (Hegglin, supra, 4 Cal.3d at p. 169; Place v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 372, 378§ 379 [35 Cal.Comp.Cases 525].) Based on this record, Dr. Graham's opinion regarding the existence of a separate cumulative injury ending in 2013, to which disability should be apportioned, is not based on substantial evidence.
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About this page
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