What the panel ordered
Petition for reconsideration granted; Findings and Award of May 15, 2023 amended to increase permanent disability from 38% to 44% due to insufficient apportionment evidence.
Applicant seeks reconsideration of a WCJ's Findings and Award of May 15, 2023, regarding permanent disability and apportionment.
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. Assil's apportionment opinion was conclusory and lacked sufficient explanation, thus not substantial medical evidence; defendant did not meet burden of proof for apportionment, entitling applicant to a non-apportioned permanent disability award of 44%.
From the decision · page 3medical evidence. The reports do not describe in detail how non-industrial factors are contributing to applicant's permanent impairment. While we understand that non-industrial obesity may be contributing to applicant's condition, Dr. Assil does not sufficiently explain how obesity is contributing to the permanent impairment. Additionally, even assuming age in and of itself could be a basis for apportionment, there is insufficient explanation regarding how applicant's age (rather than activities or conditions during applicant's lifetime) have contributed to degeneration and how this degeneration has contributed to applicant's permanent impairment.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Dr. Assil did not sufficiently explain how obesity and age contributed to the applicant's permanent impairment.
Favours Applicant prevailed
This lack of explanation meant the apportionment opinion was not substantial medical evidence, leading to rejection of apportionment and increase of permanent disability to 44%.
From the decision · page 3medical evidence. The reports do not describe in detail how non-industrial factors are contributing to applicant's permanent impairment. While we understand that non-industrial obesity may be contributing to applicant's condition, Dr. Assil does not sufficiently explain how obesity is contributing to the permanent impairment. Additionally, even assuming age in and of itself could be a basis for apportionment, there is insufficient explanation regarding how applicant's age (rather than activities or conditions during applicant's lifetime) have contributed to degeneration and how this degeneration has contributed to applicant's permanent impairment.
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.
Rated permanent disability at 44% without apportionment; apportioned 20% of cervical and lumbar spine impairments to non-industrial factors but did not sufficiently explain the apportionment.
The opinion was found conclusory and lacking detailed explanation, thus not substantial medical evidence for apportionment.
From the decision · page 3medical evidence. The reports do not describe in detail how non-industrial factors are contributing to applicant's permanent impairment. While we understand that non-industrial obesity may be contributing to applicant's condition, Dr. Assil does not sufficiently explain how obesity is contributing to the permanent impairment. Additionally, even assuming age in and of itself could be a basis for apportionment, there is insufficient explanation regarding how applicant's age (rather than activities or conditions during applicant's lifetime) have contributed to degeneration and how this degeneration has contributed to applicant's permanent impairment.
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
A medical report is not substantial evidence unless it sets forth the reasoning behind the physician's opinion, not merely conclusions.
The Board found Dr. Assil's apportionment opinion conclusory and lacking sufficient explanation, thus not substantial medical evidence.
From the decision · page 2asymptomatic prior conditions (see, e.g. Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 617 [Appeals Bd. en banc]), an apportionment opinion must still constitute substantial medical evidence. As we explained in Escobedo:
What proof carried it
The evidence the panel weighed, by kind.
Dr. Assil's apportionment opinion was conclusory and lacked detailed explanation on how non-industrial factors contributed to permanent impairment.
From the decision · page 3medical evidence. The reports do not describe in detail how non-industrial factors are contributing to applicant's permanent impairment. While we understand that non-industrial obesity may be contributing to applicant's condition, Dr. Assil does not sufficiently explain how obesity is contributing to the permanent impairment. Additionally, even assuming age in and of itself could be a basis for apportionment, there is insufficient explanation regarding how applicant's age (rather than activities or conditions during applicant's lifetime) have contributed to degeneration and how this degeneration has contributed to applicant's permanent impairment.
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About this page
- A published decision of the California Workers' Compensation Appeals Board, taken apart by what it turned on. The Board publishes the decision itself; this page adds the extraction and quotes the passage behind every claim.
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