ADJ9384866 · July 22, 2022

The psychiatric QME Dr. Egan's apportionment opinion was found not substantial because it failed to explain the nature of the nonindustrial conditions, how and why they caused disability, and was not framed in reasonable medical probability. The deposition further undermined the opinion, confirming the applicant likely would not have had a psychiatric condition but for the industrial injury.

From the decision · page 3"In regard to the applicant's injury to the psyche, I find that I must concur with the defense position that the final reporting of Dr. Blount does not carry the persuasive weight as do the final opinions of the Panel QME, Dr. Egan, as to the applicant's GAF score and whole person impairment, but I agree with applicant that Dr. Egan's opinion on the issue of apportionment to pre-existing factors is not substantial. To be valid apportionment, the doctor must explain the nature of the disease process or condition to which apportionment is applied, must explain how and why it is causing permanent disability at the time of the evaluation, and must explain how and why it is responsible for the percentage of disability to which apportionment is applied. Dr. Egan does not do this. In fact, upon cross-examination at deposition, Dr. Egan invalidated the prior opinion on apportionment by stating, "...in my medical opinion, this Applicant likely would not have had a psychiatric condition that would have happened if that accident had not occurred." {Reference, Exhibit B, Page 58, Lines 6 § 9. On that basis, I find applicant has sustained a psychiatric injury leaving applicant

Dr. Egan's apportionment opinion did not explain the nature of the nonindustrial conditions or how and why they caused disability at the time of evaluation.

Favours Applicant prevailed

This failure meant the opinion was not substantial evidence for apportionment, favoring the applicant's position that the psychiatric injury was industrially caused.

From the decision · page 7Yet, in her discussion of apportionment, Dr. Egan opined that "20% of the applicant's psychiatric injury was the result of pre-existing poor coping skills and impaired distress tolerance combined with a nonindustrial stress burden, which predisposed him to psychiatric decompensation in the face of stress." Yet, she does not explain the how or why for this opinion in the face of applicant's traumatic leg amputation, nor does she explain the nature of these conditions and how or why they were causing disability at the time of the permanent and stationary evaluation nor did she explain the how or why they are responsible for the percentage of disability attributed to them.

Dr. Egan's deposition testimony confirmed the applicant likely would not have had a psychiatric condition but for the industrial injury.

Favours Applicant prevailed

This testimony invalidated the prior apportionment opinion and supported denial of apportionment to nonindustrial factors, favoring the applicant.

From the decision · page 3"In regard to the applicant's injury to the psyche, I find that I must concur with the defense position that the final reporting of Dr. Blount does not carry the persuasive weight as do the final opinions of the Panel QME, Dr. Egan, as to the applicant's GAF score and whole person impairment, but I agree with applicant that Dr. Egan's opinion on the issue of apportionment to pre-existing factors is not substantial. To be valid apportionment, the doctor must explain the nature of the disease process or condition to which apportionment is applied, must explain how and why it is causing permanent disability at the time of the evaluation, and must explain how and why it is responsible for the percentage of disability to which apportionment is applied. Dr. Egan does not do this. In fact, upon cross-examination at deposition, Dr. Egan invalidated the prior opinion on apportionment by stating, "...in my medical opinion, this Applicant likely would not have had a psychiatric condition that would have happened if that accident had not occurred." {Reference, Exhibit B, Page 58, Lines 6 § 9. On that basis, I find applicant has sustained a psychiatric injury leaving applicant

Dr. Egan opined that 20% of applicant's psychiatric disability was due to nonindustrial factors (poor coping skills and nonindustrial stressors) but did not adequately explain how or why these caused disability or were responsible for the percentage of disability. Dr. Egan confirmed no relevant psychiatric history and stated the applicant likely would not have had a psychiatric condition but for the industrial injury.

The opinion was found not substantial because it lacked explanation of the nature of the nonindustrial conditions, causation of disability, and was not framed in reasonable medical probability. The deposition further undermined the opinion.

From the decision · page 3"In regard to the applicant's injury to the psyche, I find that I must concur with the defense position that the final reporting of Dr. Blount does not carry the persuasive weight as do the final opinions of the Panel QME, Dr. Egan, as to the applicant's GAF score and whole person impairment, but I agree with applicant that Dr. Egan's opinion on the issue of apportionment to pre-existing factors is not substantial. To be valid apportionment, the doctor must explain the nature of the disease process or condition to which apportionment is applied, must explain how and why it is causing permanent disability at the time of the evaluation, and must explain how and why it is responsible for the percentage of disability to which apportionment is applied. Dr. Egan does not do this. In fact, upon cross-examination at deposition, Dr. Egan invalidated the prior opinion on apportionment by stating, "...in my medical opinion, this Applicant likely would not have had a psychiatric condition that would have happened if that accident had not occurred." {Reference, Exhibit B, Page 58, Lines 6 § 9. On that basis, I find applicant has sustained a psychiatric injury leaving applicant

Escobedo v. Marshalls and CNA Insurance Co. (2005) 70 CCC 604

Apportionment under Labor Code Sections 4663 and 4664 requires substantial medical evidence explaining the nature of the apportionable disability, how and why it causes permanent disability, and the percentage attributed to nonindustrial factors, framed in reasonable medical probability.

The Board applied Escobedo to find Dr. Egan's apportionment opinion not substantial because it lacked explanation and reasoning as required by the standard.

From the decision · page 4The WCAB en banc decision in Escobedo v. Marshalls and CNA Insurance Co. (issued April 19, 2005), 70 CCC 604, has provided guidance in how to address issues related to apportionment under Labor Code Sections 4663 and 4664. After reviewing the facts of that case and the relevant statutory and case law, the Board held that:

Dr. Egan's deposition testimony effectively challenged and invalidated her prior apportionment opinion on psychiatric disability.

From the decision · page 7Additionally, upon being deposed, when asked whether applicant had a pre- existing psychological disability, Dr. Egan responded, "not that was diagnosed. Well not to my knowledge, that was diagnosed by a medical doctor." (Exhibit B, Page 55, Lines 4 § 7). Dr. Egan also confirmed in her deposition that the nonindustrial factors of poor coping skills and nonindustrial stressors were risk factors (Exhibit B, Page 56, Lines 3 § 15). She finally stated that "in my medical opinion, this Applicant likely would not have had a psychiatric condition that would have happened if that accident had not occurred." (Exhibit B, Page 58, Lines 6 § 9.