ADJ11705702 · February 2, 2026

The AME corrected an error in his original report but this did not represent new and further disability; the parties stipulated 100% industrial causation for the lumbar spine injury, so no apportionment was warranted.

From the decision · page 6Petitioners contend that AME Dr. Newton's opinion, expressed in cross examination, that only 80% of the Applicant's increase in lumbar spine impairment is attributable to the 8/19/2018 Date of Injury. (See Petition for Reconsideration on page 3, lines 25-28). However, in the AME's cross examination on 4/24/2024 he testified to an error in his original report issued prior to the Award and stated that he should have rated the Applicant in the higher DRE 3 category when he saw the Applicant in 2018 but did not. He then amended his original opinion regarding the impairment to the Applicant's lumbar spine to 12% WPI. This court does not believe that this represents a new and further disability as it is simply a correction by the AME based on his evaluation of the Applicant in 2018. (See Exhibit EE on page 40, lines 6-21).

The court found new and further disability to the thoracic spine based on credible testimony and objective findings; the sub rosa video did not contradict the work restrictions or the impairment rating.

From the decision · page 7As far as any possible apportionment to the Applicant's thoracic spine disability, the AME, in one of his many cross examinations, testified that "just the fact that there is a pathology issue in the adjacent area, I don't think warrants apportionment as a compensable consequence. There were no symptoms of the thoracic spine for many years despite prior documentation of the neck and low back symptoms until the significant injury in 2018, which has rendered him unable to work." (See Exhibit FF on page 53, lines 19-25). The AME goes on to opine that "Had it not been for the 2018 injury, I cannot say that he would have developed pain in the thoracic region because for many years he was working full despite the neck and low back condition without the onset of mid-back pain." (See Exhibit EE on page 54, lines 3 § 7). Therefore, the court found that there was new and further disability to the Applicant's thoracic spine, not subject to any apportionment.

The AME corrected his lumbar spine impairment rating but stated it was not new and further disability.

Favours Defendant prevailed

This correction did not justify reopening or apportionment for the lumbar spine injury.

From the decision · page 6Petitioners contend that AME Dr. Newton's opinion, expressed in cross examination, that only 80% of the Applicant's increase in lumbar spine impairment is attributable to the 8/19/2018 Date of Injury. (See Petition for Reconsideration on page 3, lines 25-28). However, in the AME's cross examination on 4/24/2024 he testified to an error in his original report issued prior to the Award and stated that he should have rated the Applicant in the higher DRE 3 category when he saw the Applicant in 2018 but did not. He then amended his original opinion regarding the impairment to the Applicant's lumbar spine to 12% WPI. This court does not believe that this represents a new and further disability as it is simply a correction by the AME based on his evaluation of the Applicant in 2018. (See Exhibit EE on page 40, lines 6-21).

The Applicant's thoracic spine impairment was supported by credible testimony and objective findings.

Favours Applicant prevailed

Supported the finding of new and further disability to the thoracic spine, justifying the award and denying apportionment.

From the decision · page 8The court does not agree with those assertions. The court found that the Applicant's testimony regarding his pain was credible. (See MOH and Summary of Evidence dated 6/11/2025 on page 6, lines 2-8 and on page 7, lines 6-9). As the AME indicated, as discussed above, there were objective findings to justify thoracic spine impairment.

Opined that 100% of the cervical spine, right wrist, thoracic spine, and lumbar spine conditions/disabilities/impairments are due to the 8/19/2018 industrial injury; corrected lumbar spine impairment rating but did not find new and further disability; found new and further disability to thoracic spine not subject to apportionment.

The AME's correction of the lumbar spine rating was a correction of an error, not new disability; his opinion on thoracic spine disability was credited as new and further disability.

From the decision · page 6Dr. Peter Newton, acting in his capacity as the Agreed Medical Examiner (AME) opined in his report dated 4/19/2022 that the Applicant sustained injury to his cervical spine, right ribs, right wrist, and lumbar spine on 8/19/2018 and has developed a compensable injury to his thoracic spine. He also opined that the increased and additional symptoms are a "natural sequela and deterioration of his original injury". The AME also opined that to a reasonable degree of medical probability, 100% of the Applicant's cervical spine, right wrist, thoracic spine and lumbar spine condition/disability/impairment is apportioned to the 8/19/2018 injury. (See Exhibit CC at page 18).

Labor Code Section 5410

Petition for New and Further Disability requires proof of worsening or change since original award and causation by original injury.

Applied to determine if reopening was warranted based on new and further disability.

From the decision · page 6III DISCUSSION: Under California Labor Code Section 5410 an injured worker can file a Petition for New and Further Disability if they can prove that their condition has worsened or changed since the date of the original Award and that the original injury has caused the new and further disability. (italics added). (See California Highway Patrol v WCAB (Griffin) 75 Cal. Comp. Cases 1241).

Applicant's credible testimony regarding pain and limitations

From the decision · page 8The court does not agree with those assertions. The court found that the Applicant's testimony regarding his pain was credible. (See MOH and Summary of Evidence dated 6/11/2025 on page 6, lines 2-8 and on page 7, lines 6-9). As the AME indicated, as discussed above, there were objective findings to justify thoracic spine impairment.

Sub rosa video showing limited activity consistent with work restrictions

From the decision · page 8Regarding the sub rosa video, the Petitioner contends that this video rebuts the finding that the Applicant suffered a compensable consequence injury to his thoracic spine. (See Petition for Reconsideration on page 4, lines 6-24). The court disagrees with that contention. Petitioners seem to contend that this video is in contradiction to the limitations provided by the AME in his 4/19/2022 report. That report in 2022 gave Applicant work restrictions for the lumbar spine and the thoracic spine of no heavy lifting (15 pounds), no repetitive bending, stooping, twisting, squatting or turning. This video does not contradict these work restrictions in any way. The Applicant is not working in the video, and the court reviewed the video and noted that it is only approximately 18 minutes and 15 seconds with the Applicant only seen for 5 minutes and 36 seconds.