ADJ7814539 · September 25, 2026

The Appeals Board found that the WCJ's prior decision lacked substantial medical evidence on cumulative injury periods, date of injury, and apportionment, requiring further evidentiary development and findings. Therefore, the Board rescinded the prior Findings and Award and deferred all other issues for further proceedings.

From the decision · page 1We previously granted reconsideration to allow us time to further study the factual and legal issues in this case. This is our Opinion and Decision After Reconsideration. Applicant and defendant both seek reconsideration of the Joint Findings & Award (F&A) issued on April 26, 2022, by the workers’ compensation administrative law judge (WCJ). The WCJ found in pertinent part that, while employed as a broccoli cutter for defendant D’Arrigo Bros.

The WCJ's prior decision lacked substantial medical evidence on cumulative injury periods, date of injury, and apportionment.

Favours Applicant prevailed

This deficiency required further evidentiary development and findings, leading to rescission of the prior Findings and Award and deferral of all other issues.

From the decision · page 8a 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.” (Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 621 (Appeals Board en banc).) “Medical reports and opinions are not substantial evidence if they are known to be erroneous, or if they are based on facts no longer germane, on inadequate medical histories and examinations, or on incorrect legal theories. Medical opinion also fails to support the Board’s findings if it is based on surmise, speculation, conjecture or guess.” (Hegglin v. Workmen’s Comp. Appeals Bd. (1971) 4 Cal.3d 162, 169 [36 Cal.Comp.Cases 93]; Place v. Workmen’s Comp. Appeals Bd. (1970) 3 Cal.3d 372, 378 [35 Cal.Comp.Cases 525].) Here, AME Dr. Kaisler-Meza’s opinion that there is one cumulative injury, merging all pled injuries including the prior stipulated award, based on legal inextricability, fails to constitute substantial medical evidence. First, he failed to analyze the issue in accordance with Coltharp and Austin in light of the fragmented periods of disability and overlapping temporal periods between the claims of injury, and his opinions fail to account for the statutory mandate in section 3208.2.

Found 8% whole person impairment for lumbar and thoracic spine based on AMA Guides DRE Category II, with an additional 3% WPI for pain.

Basis for prior stipulated award and permanent disability findings.

From the decision · page 3The parties based their Stipulations on the opinions of Qualified Medical Evaluator (QME) Dennis Sosine, M.D., dated March 14, 2011, who found 8% whole person impairment (WPI) for both the lumbar and thoracic spine based on DRE Category II in Tables 15- (page 384) and 15-4 (page 389) of the AMA Guides to the Evaluation of Permanent Impairment (AMA Guides). (Joint Ex. J-3.) QME Dr. Sosine, in his supplemental report dated July 17, 2011, added 3% WPI for pain. (Joint Ex. J-4.) Applicant filed a timely petition to reopen on April 23, 2013. On January 20, 2022, the parties proceeded to trial. Among the issues submitted were period(s) of injurious exposure, permanent disability and apportionment. The parties submitted the QME reports of Dr. Sosine (Joint Exs. J-2 to J-6), and Matthew Duncan, M.D. (Joint Exs. J-10 to J-13), as well as Agreed Medical Evaluator (AME) reports of Perry Segal, M.D. (Joint Exs. J-7 to J-9) and Allen Kaisler-Meza, M.D. (Joint Exs. J-14 to J-22). AME Allen Kaisler-Meza, M.D., following his evaluation of applicant, stated in his report dated April 5, 2017, that applicant began working for defendant on July 1, 2006 picking broccoli. (Joint Ex. J-14 at p. 2.) After working for Jose Escamilla LLC from April to May 2010, he returned

Diagnosed muscle contraction headaches and gastrointestinal complaints with 2% WPI for upper digestive tract symptoms and 2% WPI for headaches as pain add-on; found no basis for apportionment to nonindustrial factors.

Provided impairment ratings relevant to permanent disability and apportionment.

From the decision · page 5Segal diagnosed applicant with a mild adjustment disorder with depressed mood. (Joint Ex. J-7, Report, 03/20/2015 at p. 12.) He found that applicant had a Global Assessment of Functioning of 62 corresponding to 12% WPI with 100% permanent disability apportioned to the cumulative injuries while employed by D’Arrigo. (Joint Ex. J-5, Report, 12/02/2017 at p. 14.) He further opined adding rather than combining by the CVC applicant’s psychiatric and orthopedic impairments. (Id. at pp. 14-15.) QME Dr. Duncan, in his evaluation report dated October 1, 2015, diagnosed applicant with muscle contraction headaches and gastrointestinal complaints from using medication. (Joint Ex. J-10 at p. 18.) With respect to applicant’s gastrointestinal complaints, he opined that applicant had 2% WPI based on Class I in Table 6-3 (page 121) of the AMA Guides due to upper digestive tract symptoms and, with respect to headaches, he had 2% WPI as a pain add-on. (Id. at p. 25.) He found no basis for apportionment to nonindustrial factors. (Id. at p. 27.) On April 26, 2022, the WCJ issued his Joint F&A, awarding applicant 59% permanent disability, calculated by the CVC, less credit for permanent disability paid under case number

Diagnosed mild adjustment disorder with depressed mood, found 12% WPI psychiatric impairment with 100% permanent disability apportioned to cumulative injuries at D’Arrigo.

Provided psychiatric impairment rating relevant to permanent disability.

From the decision · page 5Segal diagnosed applicant with a mild adjustment disorder with depressed mood. (Joint Ex. J-7, Report, 03/20/2015 at p. 12.) He found that applicant had a Global Assessment of Functioning of 62 corresponding to 12% WPI with 100% permanent disability apportioned to the cumulative injuries while employed by D’Arrigo. (Joint Ex. J-5, Report, 12/02/2017 at p. 14.) He further opined adding rather than combining by the CVC applicant’s psychiatric and orthopedic impairments. (Id. at pp. 14-15.) QME Dr. Duncan, in his evaluation report dated October 1, 2015, diagnosed applicant with muscle contraction headaches and gastrointestinal complaints from using medication. (Joint Ex. J-10 at p. 18.) With respect to applicant’s gastrointestinal complaints, he opined that applicant had 2% WPI based on Class I in Table 6-3 (page 121) of the AMA Guides due to upper digestive tract symptoms and, with respect to headaches, he had 2% WPI as a pain add-on. (Id. at p. 25.) He found no basis for apportionment to nonindustrial factors. (Id. at p. 27.) On April 26, 2022, the WCJ issued his Joint F&A, awarding applicant 59% permanent disability, calculated by the CVC, less credit for permanent disability paid under case number

Concluded cumulative trauma injuries to lumbar spine and separate cumulative trauma to cervical spine, right shoulder, and right wrist; unable to sort out fragmentally pled claims; found maximum medical improvement reached.

Provided cumulative trauma and maximum medical improvement opinions relevant to permanent disability and apportionment.

From the decision · page 43.) Applicant continued to work his usual and customary duties for D’Arrigo until July 22, 2013, when he fell again into a hole causing increased pain in his neck and low back. (Joint Ex. J-14, at p. 5.) He continued working unrestricted on a full-time basis until July 6, 2016, when Lisa Kroopf, M.D., of RehabOne placed him on light duty, which D’Arrigo could not accommodate. (Ibid.) Dr. Kroopf diagnosed applicant with low back pain and a sacroiliac joint sprain, determined he had reached maximum medical improvement, and imposed work restrictions limiting him to working only three days per week, prohibiting lifting over 40 pounds, allowing him to stand or sit as needed, and permitting his use of a lumbar support during heavy lifting. (See Joint Ex. J-26, Progress Report, 09/21/2016, p. 6.) After reevaluation, AME Dr. Kaisler-Meza determined that applicant had reached maximum medical improvement in a September 27, 2017 report. (Joint Ex. J-15.) AME Dr. Kaisler-Meza concluded that applicant’s lumbar spine injury resulted from cumulative trauma from October 2010 to July 6, 2016, and that his cervical spine, right shoulder, and right wrist injuries resulted from a separate cumulative trauma from March 2011 to July 6, 2016. He was unable to sort out the fragmentally pled claims of injury. (Id. at p. 12.) In determining permanent

Labor Code section 5412

Date of injury under Labor Code section 5412 requires evidence of disability and medical advice of industrial causation.

The WCJ must determine the date of injury based on the first date the employee knows of the injury and disability, which may occur before the last injurious exposure.

Labor Code sections 4660.1(c)(1) and 4664

Permanent disability rating and apportionment must consider prior awards and overlap of impairments.

The WCJ must determine if apportionment applies based on overlap between current and prior disabilities, and adjust permanent disability ratings accordingly.

Cal. Code Regs., tit. 8, §§ 10455(a), 10517

The WCJ must further develop the record where evidence is insufficient to determine issues raised for trial.

The WCJ must direct parties to obtain supplemental reporting or deposition testimony to address cumulative injury periods and dates of injury.

From the decision · page 9Appeals Bd. (2000) 79 Cal.App.4th 396, 403-405 [65 Cal.Comp.Cases 264].) “[A]llowing full development of the evidentiary record to enable a complete adjudication of the issues is consistent with due process in connection with workers’ compensation claims” and militates in favor of our presuming the continued vitality of sections 5701 and 5906, absent a clear legislative intention to the contrary. (Tyler, supra, 56 Cal.App.4th at p. 394.) An adequately developed record affords all parties due process of law and further provides for meaningful review by the Appeals Board of a WCJ’s decision. (Evans v. Workers’ Comp. Appeals Bd. (1968) 68 Cal.2d 753, 755 [33 Cal.Comp.Cases 350]; Hernandez v. Staff Leasing (2011) [76 Cal.Comp.Cases 343, 346-347].) Pursuant to sections 5701 and 5906, a WCJ or the Appeals Board may not leave undeveloped issues that, through the exercise of its specialized knowledge, recognizes as requiring further evidentiary development. (Kuykendall, supra, 79 Cal.App.4th at p. 404.) Accordingly, upon return of this matter to the trial level, we recommend the WCJ direct the parties to obtain supplemental reporting or deposition testimony specifically addressing the analysis required under Coltharp and Austin. The WCJ must then determine whether a single

Fragmented periods of disability and overlapping temporal periods between claims of injury

From the decision · page 8a 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.” (Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 621 (Appeals Board en banc).) “Medical reports and opinions are not substantial evidence if they are known to be erroneous, or if they are based on facts no longer germane, on inadequate medical histories and examinations, or on incorrect legal theories. Medical opinion also fails to support the Board’s findings if it is based on surmise, speculation, conjecture or guess.” (Hegglin v. Workmen’s Comp. Appeals Bd. (1971) 4 Cal.3d 162, 169 [36 Cal.Comp.Cases 93]; Place v. Workmen’s Comp. Appeals Bd. (1970) 3 Cal.3d 372, 378 [35 Cal.Comp.Cases 525].) Here, AME Dr. Kaisler-Meza’s opinion that there is one cumulative injury, merging all pled injuries including the prior stipulated award, based on legal inextricability, fails to constitute substantial medical evidence. First, he failed to analyze the issue in accordance with Coltharp and Austin in light of the fragmented periods of disability and overlapping temporal periods between the claims of injury, and his opinions fail to account for the statutory mandate in section 3208.2.

Lack of analysis by AME Dr. Kaisler-Meza in accordance with Coltharp and Austin regarding cumulative injury periods and date of injury

From the decision · page 8a 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.” (Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 621 (Appeals Board en banc).) “Medical reports and opinions are not substantial evidence if they are known to be erroneous, or if they are based on facts no longer germane, on inadequate medical histories and examinations, or on incorrect legal theories. Medical opinion also fails to support the Board’s findings if it is based on surmise, speculation, conjecture or guess.” (Hegglin v. Workmen’s Comp. Appeals Bd. (1971) 4 Cal.3d 162, 169 [36 Cal.Comp.Cases 93]; Place v. Workmen’s Comp. Appeals Bd. (1970) 3 Cal.3d 372, 378 [35 Cal.Comp.Cases 525].) Here, AME Dr. Kaisler-Meza’s opinion that there is one cumulative injury, merging all pled injuries including the prior stipulated award, based on legal inextricability, fails to constitute substantial medical evidence. First, he failed to analyze the issue in accordance with Coltharp and Austin in light of the fragmented periods of disability and overlapping temporal periods between the claims of injury, and his opinions fail to account for the statutory mandate in section 3208.2.

Absence of determination of date of injury under Labor Code section 5412

From the decision · page 9Second, the parties did not raise at trial, AME Dr. Kaisler-Meza did not address, and the WCJ did not determine a “date of injury” pursuant to section 5412, which is essential in determining, among other issues, the applicability of section 4660.1(c)(1) on permanent disability, an issue raised by applicant on reconsideration. Third, section 5500.5(a) places the liability for a cumulative injury on the employers, or carriers, during the one-year immediately preceding either the last date of injurious exposure or the date of injury pursuant to section 5412, whichever comes first. Here, a pending petition for contribution exists as to liability between D’Arrigo and Jose Hernandez, LLP. “[I]n order to ensure reliance on substantial evidence, and a complete adjudication of the issues consistent with due process,” the WCJ and the Appeals Board both have a duty to further develop the record where there is an absence of, or insufficient evidence to determine the issues raised for trial.

Need for further evidentiary development and supplemental medical reporting to determine cumulative injury periods, dates of injury, and apportionment

From the decision · page 9Appeals Bd. (2000) 79 Cal.App.4th 396, 403-405 [65 Cal.Comp.Cases 264].) “[A]llowing full development of the evidentiary record to enable a complete adjudication of the issues is consistent with due process in connection with workers’ compensation claims” and militates in favor of our presuming the continued vitality of sections 5701 and 5906, absent a clear legislative intention to the contrary. (Tyler, supra, 56 Cal.App.4th at p. 394.) An adequately developed record affords all parties due process of law and further provides for meaningful review by the Appeals Board of a WCJ’s decision. (Evans v. Workers’ Comp. Appeals Bd. (1968) 68 Cal.2d 753, 755 [33 Cal.Comp.Cases 350]; Hernandez v. Staff Leasing (2011) [76 Cal.Comp.Cases 343, 346-347].) Pursuant to sections 5701 and 5906, a WCJ or the Appeals Board may not leave undeveloped issues that, through the exercise of its specialized knowledge, recognizes as requiring further evidentiary development. (Kuykendall, supra, 79 Cal.App.4th at p. 404.) Accordingly, upon return of this matter to the trial level, we recommend the WCJ direct the parties to obtain supplemental reporting or deposition testimony specifically addressing the analysis required under Coltharp and Austin. The WCJ must then determine whether a single