What the panel ordered
The WCAB denied the defendant's petition for reconsideration, affirming the WCJ's findings and award.
Defendant sought reconsideration of the First Amended Joint Findings and Award issued by the WCJ on March 21, 2022, challenging the substantial evidence of QME Dr. Hascall's reports on causation and apportionment and requesting further record development.
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 that applicant sustained injury to multiple body parts and conditions arising out of and in the course of employment, supported by substantial evidence including medical reports and applicant's credible testimony.
From the decision · page 1Defendant seeks reconsideration of the First Amended Joint Findings and Award (F&A) issued by the workers' compensation administrative law judge (WCJ) on March 21, 2022, wherein the WCJ found in pertinent part that in case number ADJ8299055 applicant sustained injury arising out of and occurring in the course of employment (AOE/COE) to his neck, right shoulder, bilateral wrists, lumbar spine, bilateral knees, and in the form of hypertension, and sleep disorder; that the injury caused 80% permanent disability; and that 85% of the lumbar and cervical spine permanent disability was the result of the industrial injury.1
The WCJ's rating of 80% permanent disability with 85% industrial causation was upheld despite defendant's challenge to Dr. Hascall's apportionment opinion, as the WCJ did not apply apportionment to the whole person impairment for hypertension and sleep apnea.
From the decision · page 1Defendant seeks reconsideration of the First Amended Joint Findings and Award (F&A) issued by the workers' compensation administrative law judge (WCJ) on March 21, 2022, wherein the WCJ found in pertinent part that in case number ADJ8299055 applicant sustained injury arising out of and occurring in the course of employment (AOE/COE) to his neck, right shoulder, bilateral wrists, lumbar spine, bilateral knees, and in the form of hypertension, and sleep disorder; that the injury caused 80% permanent disability; and that 85% of the lumbar and cervical spine permanent disability was the result of the industrial injury.1
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Applicant's credible testimony and entire record showed the 2001 low back injury did not cause decreased ability to exert himself.
Favours Applicant prevailed
This supported the finding that the cumulative trauma injury, not the 2001 injury, caused the disability and apportionment.
From the decision · page 6The WCJ finds the applicant's testimony and the entire record support that applicant's "ability to perform his work and decreased ability to exert himself" was not caused by the 2001 low back injury, but instead the cumulative trauma injury to the multiple body parts and his discontinuing to work in 2012. Applicant's testimony was that he continued to be active working in the warehouse up to the time he was required to stop working due to shoulder pain.
Defendant failed to meet burden of proof to show apportionment of hypertension and sleep apnea to the 2001 specific injury.
Favours Applicant prevailed
This failure led to denial of defendant's petition for reconsideration and upheld the WCJ's apportionment findings.
From the decision · page 7Defendant had sufficient time from receipt of Dr. Hascall's final report of December 5, 2020 to the date that discovery closed on July 27, 2021 to obtain a second deposition of Dr. Hascall or request answers to interrogatories if they thought they had sufficient evidence to alter Dr. Hascall's opinions. They did not schedule that second deposition of Dr. Hascall. They failed to meet their burden of proving apportionment of the hypertension and sleep to the 2001 specific injury. The question is not a lack of evidence, but a failure to meet their burden of proof.
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.
Found hypertension and sleep apnea potentially secondary to obesity, which was secondary to low back pain and decreased ability to exert himself; however, did not find 2001 low back injury caused obesity.
The WCJ found Dr. Hascall's reports to constitute substantial medical evidence on causation and apportionment issues, despite defendant's challenge.
From the decision · page 5Defendant alleges Panel Qualified Medical Evaluator Thomas Hascall, M.D.'s Internal Medical reporting regarding causation and apportionment is deficient and needs to be clarified, by way of cross-examination and or supplemental report as Dr. Hascall failed to make an independent determination regarding causation and apportionment based on the medicals provided, history provided and applicant's deposition transcript.
Found 85% of lumbar spine disability due to cumulative trauma injury and 15% to non-industrial degenerative disc disease; no impairment from 2001 specific injury.
The WCJ credited Dr. Silbart's report as substantial evidence supporting the apportionment and causation findings.
From the decision · page 5Agreed Medical Evaluator Steven Silbart, M.D. issued an Orthopedic medical report dated September 30, 2016 wherein he found that causation/ apportionment of the Applicant's lumbar spine disability was 15% to non- industrial degenerative disc disease and 85% to Applicant's continuous trauma injury with no demonstrable contribution of permanent impairment from the December 1, 2001 specific back injury. (Joint Exhibit, "HH").
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Benson v. WCAB (1996) 16 Cal.4th 30
Benson apportionment standard for internal medical conditions
Applied to determine apportionment of hypertension and sleep apnea to industrial injury versus other causes.
From the decision · page 6That the record needs to be developed on the issue of Benson apportionment for hypertension and sleep apnea.
What proof carried it
The evidence the panel weighed, by kind.
Applicant's credible testimony and entire record supported that the 2001 low back injury did not cause decreased ability to exert himself; rather, cumulative trauma injury and discontinuing work in 2012 caused disability.
From the decision · page 6The WCJ finds the applicant's testimony and the entire record support that applicant's "ability to perform his work and decreased ability to exert himself" was not caused by the 2001 low back injury, but instead the cumulative trauma injury to the multiple body parts and his discontinuing to work in 2012. Applicant's testimony was that he continued to be active working in the warehouse up to the time he was required to stop working due to shoulder pain.
Defendant failed to meet burden of proof to show apportionment of hypertension and sleep apnea to 2001 specific injury.
From the decision · page 7Defendant had sufficient time from receipt of Dr. Hascall's final report of December 5, 2020 to the date that discovery closed on July 27, 2021 to obtain a second deposition of Dr. Hascall or request answers to interrogatories if they thought they had sufficient evidence to alter Dr. Hascall's opinions. They did not schedule that second deposition of Dr. Hascall. They failed to meet their burden of proving apportionment of the hypertension and sleep to the 2001 specific injury. The question is not a lack of evidence, but a failure to meet their burden of proof.
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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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