What the panel ordered
Findings and Award of May 19, 2023 affirmed; petition for reconsideration denied.
Petition for reconsideration filed by defendant City of Oakland, challenging apportionment of permanent disability between injuries and employers, was considered and denied by the WCAB panel after review of the WCJ's Findings and Award and Report.
This docket was decided more than once. Shown here is the latest released decision; we also hold June 21, 2022.
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 rejection of Dr. Mandell's apportionment opinion was upheld because the opinion was found to be speculative, inconsistent, and lacking substantial evidence, and the WCAB is not bound by the AME's opinion.
From the decision · page 2Oakland filed a timely petition for reconsideration of the Findings and Award of May 19, 2023. Oakland contends that apportionment between the injuries, five years apart and at two different employers, is mandated by Benson v. Workers' Comp. Appeals Bd. (2009) 170 Cal.App.4th 1535 [74 Cal.Comp.Cases 113 ("Benson"). Oakland alleges that such apportionment is supported by Dr. Mandell, the Agreed Medical Evaluator ("AME") in orthopedics, who apportioned liability equally between the injuries based on reasonable medical probability, and that Dr. Mandell's opinion is substantial evidence because he performed a comprehensive medical evaluation and explained each of the distinct industrial and non-industrial factors. Finally, Oakland alleges that "the opinion of the WCJ results in administrative chaos where CIGA and the City of Oakland have no basis to determine liability for payment of the award if apportionment between the injuries cannot be determined."
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Dr. Mandell's apportionment opinion was internally inconsistent and speculative, failing to provide adequate reasoning for apportionment percentages.
Favours Defendant prevailed
This undermined the opinion's status as substantial evidence, leading to its rejection by the WCJ and affirmation by the WCAB.
From the decision · page 9founded in speculation. For instance, in testifying that he would apportion five percent of applicant's permanent disability to her "prior [knee] problems before 1989" and twenty percent to obesity, with the remainder equally divided between the 1994 and 1999 injuries, Dr. Mandell hedged that he was "just barely" able to reach this conclusion. When the doctor did provide some reasoning for his conclusions, it was general in nature. Questioned by applicant's attorney in his September 8, 2022 deposition, Dr. Mandell testified, "it's just the medical science that the vast majority of people do develop arthritis from obesity." Yet the doctor conceded: "There are some exceptions. It's not a hundred percent."
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 disability between three injuries and non-industrial factors but opinion found speculative, inconsistent, and lacking substantial evidence.
The WCJ rejected Dr. Mandell's apportionment opinion due to inconsistencies, lack of detailed explanation, and speculative nature, which the WCAB upheld.
From the decision · page 2Oakland filed a timely petition for reconsideration of the Findings and Award of May 19, 2023. Oakland contends that apportionment between the injuries, five years apart and at two different employers, is mandated by Benson v. Workers' Comp. Appeals Bd. (2009) 170 Cal.App.4th 1535 [74 Cal.Comp.Cases 113 ("Benson"). Oakland alleges that such apportionment is supported by Dr. Mandell, the Agreed Medical Evaluator ("AME") in orthopedics, who apportioned liability equally between the injuries based on reasonable medical probability, and that Dr. Mandell's opinion is substantial evidence because he performed a comprehensive medical evaluation and explained each of the distinct industrial and non-industrial factors. Finally, Oakland alleges that "the opinion of the WCJ results in administrative chaos where CIGA and the City of Oakland have no basis to determine liability for payment of the award if apportionment between the injuries cannot be determined."
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Escobido v Marshalls (2005) 70 Cal. Comp. Cases 604
A medical opinion must be framed in terms of reasonable medical probability, not speculative, based on pertinent facts and adequate examination, and must set forth reasoning in support of its conclusions.
Applied to evaluate Dr. Mandell's apportionment opinion and found it lacking substantial evidence.
From the decision · page 21The court in Benson v Workers' Comp. Appeals Bd. (2009) 170 Cal.App.4th 1535 [74 Cal.Comp.Cases 113] stated that "there may be limited circumstances....when the evaluating physician cannot parcel out, with reasonable medical probability, the approximate percentages to which each distinct injury causally contributed to the employee's overall permanent disability. In such limited circumstances, when the employer has failed to meet its burden of proof, a combined award of permanent disability may still be justified." (170 Cal.App.4th at 1560). A medical opinion that does not rise to the level of medical probability, but only presents a possibility of causation, may not be the basis for an award. Substantial medical evidence means "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971). The physician's medical opinion must set forth the how and why and the facts and reasoning (not just his or her conclusions/opinions) that justify the opinion. A medical opinion must be framed in terms of reasonable medical probability, it must not be speculative, it must be based on pertinent facts and on an adequate examination and history, and it must set forth reasoning in support of its conclusions. See Escobido v Marshalls (2005) 70 Cal. Comp. Cases 604.
What proof carried it
The evidence the panel weighed, by kind.
Dr. Mandell's apportionment opinion was speculative and inconsistent, lacking detailed explanation and substantial evidence.
From the decision · page 9founded in speculation. For instance, in testifying that he would apportion five percent of applicant's permanent disability to her "prior [knee] problems before 1989" and twenty percent to obesity, with the remainder equally divided between the 1994 and 1999 injuries, Dr. Mandell hedged that he was "just barely" able to reach this conclusion. When the doctor did provide some reasoning for his conclusions, it was general in nature. Questioned by applicant's attorney in his September 8, 2022 deposition, Dr. Mandell testified, "it's just the medical science that the vast majority of people do develop arthritis from obesity." Yet the doctor conceded: "There are some exceptions. It's not a hundred percent."
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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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