What the panel ordered
WCAB affirms the October 19, 2021 Findings and Awards in both ADJ11207109 and ADJ11207111, upholding the 50% apportionment to nonindustrial factors by the QME and WCJ
Petition for Reconsideration filed by applicant challenging apportionment opinion of QME; WCJ decisions issued October 19, 2021; WCAB issued Decision After Reconsideration affirming WCJ decisions
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.
The WCAB found the QME's apportionment opinion to be substantial evidence based on the QME's clinical evaluation, medical expertise, and explanation of obesity as a nonindustrial factor causing permanent disability, thus affirming the 50% apportionment to nonindustrial factors.
From the decision · page 3QME Dr. Kenly has evaluated the applicant and issued four reports. In his initial report of February 5, 2019, Dr. Kenly reviewed the submitted medical records and documented his clinical evaluation of applicant. The QME's report identifies both industrial causation and resulting permanent disability. (Ex. 1, Report of Michael Kenly, M.D., dated February 5, 2019, at p. 10.) With respect to apportionment, the QME states:
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
QME Dr. Kenly identified morbid obesity as a preexisting, nonindustrial factor causing degeneration of spine and knees, contributing to permanent disability.
Favours Defendant prevailed
This clinical explanation supported the apportionment of 50% of permanent disability to nonindustrial causes, which the WCAB found substantial evidence to rely upon.
From the decision · page 5Here, the QME has reasonably explained the basis of his apportionment determination. In
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.
QME Dr. Kenly apportioned 50% of permanent disability to industrial injury and 50% to nonindustrial causes, citing applicant's morbid obesity as inhibiting recovery and causing degeneration of spine and knees.
QME's clinical evaluation, medical expertise, and explanation of obesity as a nonindustrial factor causing permanent disability were relied upon by WCAB to affirm apportionment.
From the decision · page 3QME Dr. Kenly has evaluated the applicant and issued four reports. In his initial report of February 5, 2019, Dr. Kenly reviewed the submitted medical records and documented his clinical evaluation of applicant. The QME's report identifies both industrial causation and resulting permanent disability. (Ex. 1, Report of Michael Kenly, M.D., dated February 5, 2019, at p. 10.) With respect to apportionment, the QME states:
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Labor Code section 4663
Apportionment of permanent disability must be based on causation and include approximate percentages of industrial and nonindustrial factors as required by Labor Code section 4663.
The QME's report addressed causation and apportionment with clinical evaluation and reasoning, meeting the requirements of section 4663.
From the decision · page 3Section 4663 sets out the requirements for the apportionment of permanent disability and provides, in relevant part, as follows:
Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604 (Appeals Board en banc)
A medical opinion on apportionment must be framed in terms of reasonable medical probability, not speculative, and based on pertinent facts and adequate examination as per Escobedo v. Marshalls (2005).
The QME's opinion was based on clinical evaluation, medical expertise, and explanation of obesity as a nonindustrial factor causing permanent disability, satisfying Escobedo requirements.
E.L. Yeager-Construction v. Workers' Comp. Appeals Bd. (Gatten) (2006) 145 Cal.App.4th 922
A physician's judgment based on medical expertise evaluating relevant medical facts will not be held unduly speculative as per E.L. Yeager-Construction v. Workers' Comp. Appeals Bd. (Gatten) (2006).
The QME's apportionment determination was based on medical expertise and clinical judgment, not a random number, consistent with Gatten.
From the decision · page 5In E.L. Yeager-Construction v. Workers' Comp. Appeals Bd. (Gatten) (2006) 145
What proof carried it
The evidence the panel weighed, by kind.
QME's clinical evaluation and deposition testimony explaining obesity as a factor causing degeneration and permanent disability
From the decision · page 5Here, the QME has reasonably explained the basis of his apportionment determination. In
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About this page
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