What the panel ordered
Petition for Reconsideration granted; Finding of Fact #4 amended to find no apportionment to the right knee; permanent disability increased to 42%; attorney fee awarded
Petition for Reconsideration granted by the Appeals Board after review of the WCJ's Joint Findings and Award
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. Doty's opinion of a minimum 25% nonindustrial apportionment was unsubstantiated and did not meet the substantial medical evidence standard, so the Board found no apportionment to the right knee and increased permanent disability to 42%.
From the decision · page 5Here, the sole contention of the Petition for Reconsideration is that the evidence does not justify the finding of apportionment to degenerative changes in the right knee in case number ADJ10836901. While Dr. Doty does provide an opinion regarding cause of permanent disability of the right knee, he states only that he would apportion "a minimum of" 25 percent of current impairment to "the effects of all nonindustrial activity contributing to the early arthritis first evident on her initial x-rays and MRIs prior to her arthroscopic surgery." (Joint I, Report of Orthopedic PQME Dr. Doty dated July 7, 2020, page 4, paragraph 4.) He does not explain how and why "all nonindustrial activity" and "early arthritis" are causing approximately 25 percent of present disability. This does not meet the standards for substantial medical evidence of apportionment explained in Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604 (Appeals Board en banc):
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Dr. Doty's opinion provided only a minimum 25% nonindustrial apportionment without explanation.
Favours Applicant prevailed
Lacked substantial medical evidence to support apportionment, leading to rejection of apportionment and increase of permanent disability to 42%.
From the decision · page 5Here, the sole contention of the Petition for Reconsideration is that the evidence does not justify the finding of apportionment to degenerative changes in the right knee in case number ADJ10836901. While Dr. Doty does provide an opinion regarding cause of permanent disability of the right knee, he states only that he would apportion "a minimum of" 25 percent of current impairment to "the effects of all nonindustrial activity contributing to the early arthritis first evident on her initial x-rays and MRIs prior to her arthroscopic surgery." (Joint I, Report of Orthopedic PQME Dr. Doty dated July 7, 2020, page 4, paragraph 4.) He does not explain how and why "all nonindustrial activity" and "early arthritis" are causing approximately 25 percent of present disability. This does not meet the standards for substantial medical evidence of apportionment explained in Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604 (Appeals Board en banc):
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.
Initially opined 15% nonindustrial apportionment to right knee disability, later revised to a minimum of 25% nonindustrial apportionment, but did not explain how and why nonindustrial factors caused approximately 25% of disability, failing to meet substantial evidence standards.
From the decision · page 5Here, the sole contention of the Petition for Reconsideration is that the evidence does not justify the finding of apportionment to degenerative changes in the right knee in case number ADJ10836901. While Dr. Doty does provide an opinion regarding cause of permanent disability of the right knee, he states only that he would apportion "a minimum of" 25 percent of current impairment to "the effects of all nonindustrial activity contributing to the early arthritis first evident on her initial x-rays and MRIs prior to her arthroscopic surgery." (Joint I, Report of Orthopedic PQME Dr. Doty dated July 7, 2020, page 4, paragraph 4.) He does not explain how and why "all nonindustrial activity" and "early arthritis" are causing approximately 25 percent of present disability. This does not meet the standards for substantial medical evidence of apportionment explained in Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604 (Appeals Board en banc):
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)
Substantial medical evidence requires explanation of how and why degenerative conditions cause a specific percentage of disability.
Applied to reject Dr. Doty's apportionment opinion for lack of explanation.
From the decision · page 5Here, the sole contention of the Petition for Reconsideration is that the evidence does not justify the finding of apportionment to degenerative changes in the right knee in case number ADJ10836901. While Dr. Doty does provide an opinion regarding cause of permanent disability of the right knee, he states only that he would apportion "a minimum of" 25 percent of current impairment to "the effects of all nonindustrial activity contributing to the early arthritis first evident on her initial x-rays and MRIs prior to her arthroscopic surgery." (Joint I, Report of Orthopedic PQME Dr. Doty dated July 7, 2020, page 4, paragraph 4.) He does not explain how and why "all nonindustrial activity" and "early arthritis" are causing approximately 25 percent of present disability. This does not meet the standards for substantial medical evidence of apportionment explained in Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604 (Appeals Board en banc):
What proof carried it
The evidence the panel weighed, by kind.
Dr. Doty's opinion did not explain how and why nonindustrial activity and early arthritis caused approximately 25% of right knee disability.
From the decision · page 5Because Dr. Doty did not explain how and why the effects of nonindustrial activity and arthritis are causing approximately 25 percent of applicant's present disability of the right knee, as opposed to some greater or lesser percentage, his opinion that these factors caused "a minimum of" 25 percent of current right knee impairment does not constitute substantial medical evidence. (Ibid., page 4, paragraph 4.) As such, the evidence does not justify the finding of apportionment to degenerative changes in the right knee in case number ADJ10836901.
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About this page
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