What the panel ordered
Findings and Award of February 4, 2021 affirmed except amended to increase permanent disability rating to 71% without apportionment; award includes life pension and attorney's fee subject to adjustment.
Petition for Reconsideration filed by applicant challenging WCJ's reliance on Dr. Anderson's apportionment opinion; WCJ's Findings and Award of February 4, 2021 reviewed and reconsidered by WCAB panel.
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.
Dr. Anderson's apportionment opinion was found not to be substantial evidence due to lack of detailed reasoning, internal contradictions, and speculative nature, failing the Escobedo standard.
From the decision · page 7In Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604 [Appeals Board en banc], the Board discussed the following requirements for a medical opinion to be considered substantial evidence of apportionment:
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Dr. Anderson's apportionment opinion lacked detailed reasoning and was internally contradictory and speculative.
Favours Applicant prevailed
This led the Board to reject the opinion as substantial evidence, resulting in removal of apportionment and increase of permanent disability rating to 71%.
From the decision · page 7In this case, defendant relies upon Dr. Anderson's opinion on apportionment to meet the burden of proof. However, we are not persuaded that the doctor's opinion is substantial evidence of apportionment per the requirements of Escobedo.
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. Anderson issued multiple reports and deposition testimony on permanent disability and apportionment, but his apportionment opinions were found speculative, lacking detailed reasoning, and internally contradictory, thus not substantial evidence.
Opinion did not meet Escobedo requirements for substantial evidence on apportionment due to speculative and contradictory reasoning.
From the decision · page 2FACTUAL BACKGROUND There is no dispute that applicant sustained industrial injury by way of cumulative trauma through August 17, 2015, to his bilateral shoulders, left hand, neck and low back, and that the injury resulted in permanent disability in each of those body parts. Dr. Anderson, a specialist in neurology and pain medicine, served as the Panel Qualified Medical Evaluator ("PQME"). Dr. Anderson issued five narrative reports, and the doctor was deposed on one occasion. (Joint exhibits AA-FF.) The parties disputed the nature and extent of permanent disability, as well as the issues of apportionment and attorney's fees. These issues were tried before the WCJ on December 7, 2020. (Minutes of Trial Hearing, 12/7/20, p. 2.) In her Opinion on Decision of February 4, 2021, the WCJ stated that based upon the PQME reports and deposition testimony of Dr. Anderson, the record supported a finding that applicant sustained permanent disability of 47%. The WCJ provided the following rating, with the bolded decimal figures representing Dr. Anderson's apportionment percentages:
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604 [Appeals Board en banc]
Dr. Anderson's opinion was evaluated against Escobedo requirements and found lacking in detailed reasoning and substantial evidence.
From the decision · page 7In Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604 [Appeals Board en banc], the Board discussed the following requirements for a medical opinion to be considered substantial evidence of apportionment:
What proof carried it
The evidence the panel weighed, by kind.
Dr. Anderson's apportionment opinion lacked detailed reasoning and was internally contradictory and speculative.
From the decision · page 7In this case, defendant relies upon Dr. Anderson's opinion on apportionment to meet the burden of proof. However, we are not persuaded that the doctor's opinion is substantial evidence of apportionment per the requirements of Escobedo.
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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.
- The injured worker is not named here, and the case caption is not printed. Physicians appear as the decision names them, because a medical opinion is an act in a public proceeding.
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