ADJ10941537 — California WCAB decision

What the panel ordered

Affirmed WCJ's Findings and Award except deferring permanent disability level issue in ADJ10941537; remanded for further proceedings

Petition for Reconsideration granted to further study factual and legal issues; WCJ's Joint Findings and Award issued August 20, 2021, reviewed

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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.

ApportionmentRemandedlumbar spine · cervical spine · right wrist · ears

Dr. Gagnon's apportionment opinions lack explanation and do not constitute substantial evidence; issue deferred for further development

From the decision · page 6industrial injury and how and why the injury is responsible for the percentage of the disability, as assigned. Further, if a physician concludes that a portion of an employee's disability is caused by a pre-existing condition, the physician must explain the nature of the pre-existing condition, how and why it is causing permanent disability at the time of the evaluation, and how and why it is responsible for the portion of the disability as assigned by the physician. (Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 621 (Appeals Board en banc).) Again, having reviewed all of Dr. Gagnon's reports, we see that he stated his opinions as to what percentage of applicant's disability was caused by the various injuries, but in none of the reports does he explain the basis for his opinions. Thus, the reports do not comply with the requirements stated in Escobedo, supra, and they do not constitute substantial evidence as to the issue of apportionment.

The facts that decided it

What the panel treated as outcome-determinative, and which side it favoured.

Dr. Gagnon's reports do not state that the 2012 injury caused new and further disability.

Favours Defendant prevailed

Lack of medical opinion supporting new and further disability led to denial of new and further disability claim in ADJ8480583.

From the decision · page 4Applicant argues that based on the opinions of Dr. Gagnon, he sustained new and further permanent disability for his low back in case number ADJ8480583. However, in his Report, the WCJ stated, "In none of his fifteen reports did Dr. Gagnon state that the 2012 injury has caused new and further disability." (Report p. 2.) The WCJ later explained:

Hearing loss impairment rating by Dr. Ross was 11%, less than prior 14% award.

Favours Defendant prevailed

Confirmed no new and further hearing loss disability beyond prior award.

From the decision · page 5Based on the section 4664(b) presumption, the permanent disability resulting from a previous industrial injury still existed at the time of the subsequent injury, but the defendant must prove that there is overlap between the prior disability and the current disability. (Kopping v. Workers' Comp. Appeals Bd. (2006) 142 Cal.App.4th 1099, 1107 [71 Cal.Comp.Cases 1229].) Here, the current permanent disability caused by hearing loss/tinnitus clearly overlaps with the prior award of permanent disability caused by hearing loss/tinnitus. In his November 27, 2017 report QME Dr. Ross stated that applicant had 11% impairment due to his hearing loss/tinnitus. (Joint Exh. 2, p. 14.) In the July 8, 2020 report, Dr. Ross agreed that, "[C]ausation of the hearing loss was due to the applicant' work from his date of hire on or about May 23, 1993 through his last day worked on May 10, 2017." (Joint Exh. A1, p. 1.) Since applicant had previously been awarded 14% permanent disability for his hearing loss/tinnitus, the 11% impairment assigned by Dr. Ross does not constitute "new and further" disability.

Dr. Gagnon's apportionment opinions lack explanation and do not comply with Escobedo requirements.

Favours Defendant prevailed

Lack of substantial evidence on apportionment required deferral and remand for further proceedings.

From the decision · page 6industrial injury and how and why the injury is responsible for the percentage of the disability, as assigned. Further, if a physician concludes that a portion of an employee's disability is caused by a pre-existing condition, the physician must explain the nature of the pre-existing condition, how and why it is causing permanent disability at the time of the evaluation, and how and why it is responsible for the portion of the disability as assigned by the physician. (Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 621 (Appeals Board en banc).) Again, having reviewed all of Dr. Gagnon's reports, we see that he stated his opinions as to what percentage of applicant's disability was caused by the various injuries, but in none of the reports does he explain the basis for his opinions. Thus, the reports do not comply with the requirements stated in Escobedo, supra, and they do not constitute substantial evidence as to the issue of apportionment.

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.

QMERejected · chiropractic

Diagnosed lumbar sprain, lumbar radiculopathy, cervical sprain, shoulder sprain; found industrial cumulative injury to lumbar spine and right leg; diagnosed lumbar disc involvement with radicular pain, lumbar instability, chronic low back pain; found new cumulative trauma ending May 10, 2017; assigned impairment percentages and apportionment but did not explain basis for apportionment opinions.

Reports lack explanation for apportionment opinions, thus not substantial evidence.

From the decision · page 6industrial injury and how and why the injury is responsible for the percentage of the disability, as assigned. Further, if a physician concludes that a portion of an employee's disability is caused by a pre-existing condition, the physician must explain the nature of the pre-existing condition, how and why it is causing permanent disability at the time of the evaluation, and how and why it is responsible for the portion of the disability as assigned by the physician. (Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 621 (Appeals Board en banc).) Again, having reviewed all of Dr. Gagnon's reports, we see that he stated his opinions as to what percentage of applicant's disability was caused by the various injuries, but in none of the reports does he explain the basis for his opinions. Thus, the reports do not comply with the requirements stated in Escobedo, supra, and they do not constitute substantial evidence as to the issue of apportionment.

QMERelied upon · otolaryngology

Concluded tinnitus and hearing loss caused 11% WPI, 100% industrial exposure; agreed hearing loss causation from work from May 23, 1993 to May 10, 2017; impairment did not constitute new and further disability.

Impairment rating did not show new and further disability beyond prior award.

From the decision · page 5Based on the section 4664(b) presumption, the permanent disability resulting from a previous industrial injury still existed at the time of the subsequent injury, but the defendant must prove that there is overlap between the prior disability and the current disability. (Kopping v. Workers' Comp. Appeals Bd. (2006) 142 Cal.App.4th 1099, 1107 [71 Cal.Comp.Cases 1229].) Here, the current permanent disability caused by hearing loss/tinnitus clearly overlaps with the prior award of permanent disability caused by hearing loss/tinnitus. In his November 27, 2017 report QME Dr. Ross stated that applicant had 11% impairment due to his hearing loss/tinnitus. (Joint Exh. 2, p. 14.) In the July 8, 2020 report, Dr. Ross agreed that, "[C]ausation of the hearing loss was due to the applicant' work from his date of hire on or about May 23, 1993 through his last day worked on May 10, 2017." (Joint Exh. A1, p. 1.) Since applicant had previously been awarded 14% permanent disability for his hearing loss/tinnitus, the 11% impairment assigned by Dr. Ross does not constitute "new and further" disability.

The rules the panel named

Authorities as the decision cited them, with how this panel applied each one.

Lab. Code, § 5952(d); Lamb v. Workmen's Comp. Appeals Bd. (1974) 11 Cal.3d 274; Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312; LeVesque v. Workmen's Comp. Appeals Bd. (1970) 1 Cal.3d 627

Permanent disability awards must be supported by substantial evidence.

Applied to review of WCJ's Findings and Award.

From the decision · page 4It is well established that any award, order, or decision of the Appeals Board must be supported by substantial evidence. (Lab. Code, § 5952(d); Lamb v. Workmen's Comp. Appeals Bd. (1974) 11 Cal.3d 274, 281 [39 Cal.Comp.Cases 310]; Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312, 317 [35 Cal.Comp.Cases 500]; LeVesque v. Workmen's Comp. Appeals Bd. (1970) 1 Cal.3d 627, 635 [35 Cal.Comp.Cases 16].)

Labor Code § 4664(b); Kopping v. Workers' Comp. Appeals Bd. (2006) 142 Cal.App.4th 1099

If applicant has prior permanent disability award, it is conclusively presumed to exist at time of subsequent injury; defendant must prove overlap.

Applied to hearing loss permanent disability overlap issue.

From the decision · page 5If the applicant has received a prior award of permanent disability, it shall be conclusively presumed that the prior permanent disability exists at the time of any subsequent industrial injury. This presumption is a presumption affecting the burden of proof. (Lab. Code, § 4664.

Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604 (Appeals Board en banc)

Physician must explain causal relationship and basis for apportionment opinions.

Applied to reject Dr. Gagnon's apportionment opinions for lack of explanation.

From the decision · page 6industrial injury and how and why the injury is responsible for the percentage of the disability, as assigned. Further, if a physician concludes that a portion of an employee's disability is caused by a pre-existing condition, the physician must explain the nature of the pre-existing condition, how and why it is causing permanent disability at the time of the evaluation, and how and why it is responsible for the portion of the disability as assigned by the physician. (Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 621 (Appeals Board en banc).) Again, having reviewed all of Dr. Gagnon's reports, we see that he stated his opinions as to what percentage of applicant's disability was caused by the various injuries, but in none of the reports does he explain the basis for his opinions. Thus, the reports do not comply with the requirements stated in Escobedo, supra, and they do not constitute substantial evidence as to the issue of apportionment.

Labor Code §§ 5701, 5906; Tyler v. Workers' Comp. Appeals Bd. (1997) 56 Cal.App.4th 389; McClune v. Workers' Comp. Appeals Bd. (1998) 62 Cal.App.4th 1117; McDuffie v. Los Angeles County Metropolitan Transit Authority (2001) 67 Cal.Comp.Cases 138 (Appeals Board en banc)

Appeals Board has discretionary authority to develop record when substantial evidence lacking.

Applied to defer and remand apportionment issue for further development.

What proof carried it

The evidence the panel weighed, by kind.

Medical recordsfavours Defendant prevailed

Dr. Gagnon's reports lack explanation for apportionment opinions

From the decision · page 6industrial injury and how and why the injury is responsible for the percentage of the disability, as assigned. Further, if a physician concludes that a portion of an employee's disability is caused by a pre-existing condition, the physician must explain the nature of the pre-existing condition, how and why it is causing permanent disability at the time of the evaluation, and how and why it is responsible for the portion of the disability as assigned by the physician. (Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 621 (Appeals Board en banc).) Again, having reviewed all of Dr. Gagnon's reports, we see that he stated his opinions as to what percentage of applicant's disability was caused by the various injuries, but in none of the reports does he explain the basis for his opinions. Thus, the reports do not comply with the requirements stated in Escobedo, supra, and they do not constitute substantial evidence as to the issue of apportionment.

Medical recordsfavours Defendant prevailed

Hearing loss impairment rating by Dr. Ross did not constitute new and further disability

From the decision · page 5Based on the section 4664(b) presumption, the permanent disability resulting from a previous industrial injury still existed at the time of the subsequent injury, but the defendant must prove that there is overlap between the prior disability and the current disability. (Kopping v. Workers' Comp. Appeals Bd. (2006) 142 Cal.App.4th 1099, 1107 [71 Cal.Comp.Cases 1229].) Here, the current permanent disability caused by hearing loss/tinnitus clearly overlaps with the prior award of permanent disability caused by hearing loss/tinnitus. In his November 27, 2017 report QME Dr. Ross stated that applicant had 11% impairment due to his hearing loss/tinnitus. (Joint Exh. 2, p. 14.) In the July 8, 2020 report, Dr. Ross agreed that, "[C]ausation of the hearing loss was due to the applicant' work from his date of hire on or about May 23, 1993 through his last day worked on May 10, 2017." (Joint Exh. A1, p. 1.) Since applicant had previously been awarded 14% permanent disability for his hearing loss/tinnitus, the 11% impairment assigned by Dr. Ross does not constitute "new and further" disability.

ADJ10941537 · January 13, 2022

What the panel ordered

What was disputed, and how it came out

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The facts that decided it

What the panel did with the medical opinions

The rules the panel named

What proof carried it

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