ADJ10915228 · August 18, 2021

The Board found the apportionment opinion by Dr. Fortanasce conclusory and lacking substantial medical evidence, thus disallowing apportionment.

From the decision · page 4Defendant next argues that the undersigned erred by disallowing the apportionment indicated by Dr. Fortanasce. Dr. Fortanasce found apportionment of 90% to industrial causation and 10% to "...non-industrial factors which predispose her to the development of carpal tunnel syndrome including activities of daily living and the degeneration and inflammatory [sic] that occurs due to the aging process." (Exhibit B, page 4).

The Board corrected a scrivener's error to specify injury to bilateral wrists (carpal tunnel syndrome) rather than bilateral hands.

From the decision · page 3Defendant first contends an error in the Court's finding of injury to applicant's bilateral hands instead of bilateral [wrists (CTS)]. Review of the Findings and Award reveals a scrivener's error in Finding number 1 that indicates bilateral hands as an injured body part instead of applicant's bilateral [wrists (CTS)]. The Board is asked to amend the Findings and Award to substitute bilateral [wrists (CTS)] in place of bilateral hands. No injury was found to applicant's hands as is indicated in Finding number 2.

The Board relied on Dr. Fortanasce's rating as issued and declined to alter it despite defendant's argument for a higher grade.

From the decision · page 5Defendant's final argument is that the rating provided by Dr. Fortanasce is incorrect in that his rating for carpal tunnel syndrome incorrectly uses a grade 3 sensory deficit whereas a grade 4 deficit was more appropriate. Dr. Fortanasce opined that as applicable to Table 16-10 of the AMA Guides2, "...Grade III is chosen due to the distorted superficial tactile sensibility, abnormal sensation or slight pain that inference with some activities..." and utilized a 50% modifier from the range of 26-60. (Exhibit A, page 3). In his report of November 13, 2019 he indicated that "Post-surgery EMG/Nerve Conduction Study have shown worsening of her carpal tunnel syndrome in spite of conservative treatment and surgery." (Exhibit B, page 2). Diagnostic testing from 2017 to 2019 also indicated deterioration of applicant's median nerve neuropathy. It was also noted in reporting of August 8, 2019 that comparison of the diagnostic studies indicated applicant's right wrist was "consistent with extremely severe right carpal tunnel syndrome which would continue to explain the complaints of paresthesia in the right hand and fingertips. (Exhibit C, page 8).

There was a scrivener's error in the original Findings and Award listing bilateral hands instead of bilateral wrists as injured body parts.

Favours Applicant prevailed

The Board amended the Findings and Award to correctly reflect injury to bilateral wrists (carpal tunnel syndrome).

From the decision · page 3Defendant first contends an error in the Court's finding of injury to applicant's bilateral hands instead of bilateral [wrists (CTS)]. Review of the Findings and Award reveals a scrivener's error in Finding number 1 that indicates bilateral hands as an injured body part instead of applicant's bilateral [wrists (CTS)]. The Board is asked to amend the Findings and Award to substitute bilateral [wrists (CTS)] in place of bilateral hands. No injury was found to applicant's hands as is indicated in Finding number 2.

Dr. Fortanasce's apportionment opinion was conclusory and lacked substantial medical evidence.

Favours Applicant prevailed

This led the Board to disallow apportionment and favor the applicant on that issue.

From the decision · page 4The undersigned found that Dr. Fortanasce's opinion on apportionment is conclusory and fails to point to what non-industrial factors predisposed the applicant to the development of carpal tunnel syndrome and further fails to be substantial medical evidence in that it fails to adequately address the "how and why" aspect of non-industrial apportionment.

Diagnostic testing showed worsening of carpal tunnel syndrome despite surgery and conservative treatment.

Favours Applicant prevailed

Supported the permanent disability rating and the finding of industrial injury to bilateral wrists.

From the decision · page 5Defendant's final argument is that the rating provided by Dr. Fortanasce is incorrect in that his rating for carpal tunnel syndrome incorrectly uses a grade 3 sensory deficit whereas a grade 4 deficit was more appropriate. Dr. Fortanasce opined that as applicable to Table 16-10 of the AMA Guides2, "...Grade III is chosen due to the distorted superficial tactile sensibility, abnormal sensation or slight pain that inference with some activities..." and utilized a 50% modifier from the range of 26-60. (Exhibit A, page 3). In his report of November 13, 2019 he indicated that "Post-surgery EMG/Nerve Conduction Study have shown worsening of her carpal tunnel syndrome in spite of conservative treatment and surgery." (Exhibit B, page 2). Diagnostic testing from 2017 to 2019 also indicated deterioration of applicant's median nerve neuropathy. It was also noted in reporting of August 8, 2019 that comparison of the diagnostic studies indicated applicant's right wrist was "consistent with extremely severe right carpal tunnel syndrome which would continue to explain the complaints of paresthesia in the right hand and fingertips. (Exhibit C, page 8).

Found apportionment of 90% industrial causation and 10% to non-industrial factors but opinion was found conclusory and lacking substantial evidence; provided permanent disability rating using Grade 3 sensory deficit for carpal tunnel syndrome.

The Board found Dr. Fortanasce's apportionment opinion conclusory and lacking substantial medical evidence, and relied on his rating as issued for permanent disability.

From the decision · page 4Defendant next argues that the undersigned erred by disallowing the apportionment indicated by Dr. Fortanasce. Dr. Fortanasce found apportionment of 90% to industrial causation and 10% to "...non-industrial factors which predispose her to the development of carpal tunnel syndrome including activities of daily living and the degeneration and inflammatory [sic] that occurs due to the aging process." (Exhibit B, page 4).

Consulted by Dr. Fortanasce and found no industrial injury to left shoulder and elbow; opinion incorporated by Dr. Fortanasce.

The Board incorporated Dr. Fleming's opinion to find no industrial injury to left shoulder and elbow.

From the decision · page 5Dr. Fortanasce was selected by the parties as the PQME in this matter, and was the only medical report submitted that the undersigned found appropriate off which to base a rating. Dr. Christopher Fleming acted as a consulting physician in orthopedic surgery to whom Dr. Fortanasce deferred opinion on applicant's left shoulder and elbow to an orthopedic surgeon. Dr. Fortanasce subsequently incorporated the opinion of Dr. Fleming into his own reporting, finding that there was no industrial injury to either of these body parts.

Thomas v. Long Beach Unified School, McAllister v. Workmen's Comp. Appeals Bd.

Medical opinion on apportionment must be framed in terms of reasonable medical probability, not speculative, based on pertinent facts and adequate examination, and must set forth reasoning for conclusions.

Applied to reject Dr. Fortanasce's apportionment opinion as conclusory and lacking substantial evidence.

From the decision · page 4The Court's opinion in Thomas v. Long Beach Unified School discusses the requirements for valid apportionment determinations, while quoting McAllister v. Workmen's Comp. Appeals Bd. (1968) 33 Cal.Comp.Cases 660:

Burden of proof for apportionment lies with defendant.

Applied to find defendant failed to meet burden to show valid apportionment.

Diagnostic testing from 2017 to 2019 indicated deterioration of applicant's median nerve neuropathy consistent with severe carpal tunnel syndrome.

From the decision · page 5Defendant's final argument is that the rating provided by Dr. Fortanasce is incorrect in that his rating for carpal tunnel syndrome incorrectly uses a grade 3 sensory deficit whereas a grade 4 deficit was more appropriate. Dr. Fortanasce opined that as applicable to Table 16-10 of the AMA Guides2, "...Grade III is chosen due to the distorted superficial tactile sensibility, abnormal sensation or slight pain that inference with some activities..." and utilized a 50% modifier from the range of 26-60. (Exhibit A, page 3). In his report of November 13, 2019 he indicated that "Post-surgery EMG/Nerve Conduction Study have shown worsening of her carpal tunnel syndrome in spite of conservative treatment and surgery." (Exhibit B, page 2). Diagnostic testing from 2017 to 2019 also indicated deterioration of applicant's median nerve neuropathy. It was also noted in reporting of August 8, 2019 that comparison of the diagnostic studies indicated applicant's right wrist was "consistent with extremely severe right carpal tunnel syndrome which would continue to explain the complaints of paresthesia in the right hand and fingertips. (Exhibit C, page 8).