What the panel ordered
Petition for Reconsideration denied.
Petition for Reconsideration filed by Defendant and denied by the Appeals Board on February 3, 2025, after review of the WCJ report and record.
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.
Defendant failed to provide substantial medical evidence for non-industrial apportionment; applicant entitled to unapportioned award.
From the decision · page 9Here, Defendant argues that Dr. Woolf's reporting is not substantial medical evidence as to apportionment. The undersigned agrees, in part. Dr. Woolf's opinion provides no substantial medical evidence on which the Board can find any non-industrial apportionment. Instead, Dr. Woolf notes that apportionment is "not indicated." (Exhibit "4" pg. 8). Additionally, Dr. Lira's internal report provides no basis for non-industrial apportionment. (See Exhibit "E"). Defendant has thus provided no substantial medical evidence of apportionable disability. Defendant failed to meet their burden of proof on apportionment from an internal medicine standpoint.
No substantial medical evidence of overlap; combined impairment ratings from both doctors are appropriate.
From the decision · page 11First, Defendant presented no medical opinion to corroborate the alleged overlap. Dr. Maloff reported a whole person impairment according to a GAF score. Dr. Woolf reported a whole person impairment according to the AMA Guides. Neither doctor opined that these impairments overlapped. Absent substantial medical evidence that the permanent disability should be decreased below that opined by the medical evidence, the Applicant is entitled to combined impairment ratings from each doctor.
Dr. Woolf's rating based on continuous medication use and clinical judgment is substantial evidence supporting a 15% whole person impairment rating.
From the decision · page 10In his May 20, 2024 report, Dr. Woolf opined that Applicant best falls into Upper Digestive Tract Class 2, Table 6-3, pg. 121 of the AMA Guides. (Exhibit "4" pg. 8). Dr. Woolf stated "I would give him 15% since he requires continuous treatment with omeprazole daily. I placed him in the lower range of the Class as he has not lost weight. He does not belong in Class I since he is taking acid suppressing medications daily to control his symptoms." (Id.).
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Defendant failed to provide substantial medical evidence for non-industrial apportionment.
Favours Applicant prevailed
Without such evidence, the applicant is entitled to an unapportioned award.
From the decision · page 9Here, Defendant argues that Dr. Woolf's reporting is not substantial medical evidence as to apportionment. The undersigned agrees, in part. Dr. Woolf's opinion provides no substantial medical evidence on which the Board can find any non-industrial apportionment. Instead, Dr. Woolf notes that apportionment is "not indicated." (Exhibit "4" pg. 8). Additionally, Dr. Lira's internal report provides no basis for non-industrial apportionment. (See Exhibit "E"). Defendant has thus provided no substantial medical evidence of apportionable disability. Defendant failed to meet their burden of proof on apportionment from an internal medicine standpoint.
Dr. Woolf's rating complies with AMA Guides and supports a 15% whole person impairment rating.
Favours Applicant prevailed
This rating is substantial medical evidence supporting permanent disability.
From the decision · page 10In his May 20, 2024 report, Dr. Woolf opined that Applicant best falls into Upper Digestive Tract Class 2, Table 6-3, pg. 121 of the AMA Guides. (Exhibit "4" pg. 8). Dr. Woolf stated "I would give him 15% since he requires continuous treatment with omeprazole daily. I placed him in the lower range of the Class as he has not lost weight. He does not belong in Class I since he is taking acid suppressing medications daily to control his symptoms." (Id.).
No substantial medical evidence of overlap between physiological and psychological impairments.
Favours Applicant prevailed
Supports combined impairment ratings from both doctors.
From the decision · page 11First, Defendant presented no medical opinion to corroborate the alleged overlap. Dr. Maloff reported a whole person impairment according to a GAF score. Dr. Woolf reported a whole person impairment according to the AMA Guides. Neither doctor opined that these impairments overlapped. Absent substantial medical evidence that the permanent disability should be decreased below that opined by the medical evidence, the Applicant is entitled to combined impairment ratings from each doctor.
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.
Found no indication for apportionment; rated 15% whole person impairment under AMA Guides Table 6-3 based on continuous medication use despite no weight loss.
Dr. Woolf's opinion provides no substantial medical evidence for non-industrial apportionment; his rating complies with AMA Guides and is substantial evidence for permanent disability rating.
From the decision · page 9Here, Defendant argues that Dr. Woolf's reporting is not substantial medical evidence as to apportionment. The undersigned agrees, in part. Dr. Woolf's opinion provides no substantial medical evidence on which the Board can find any non-industrial apportionment. Instead, Dr. Woolf notes that apportionment is "not indicated." (Exhibit "4" pg. 8). Additionally, Dr. Lira's internal report provides no basis for non-industrial apportionment. (See Exhibit "E"). Defendant has thus provided no substantial medical evidence of apportionable disability. Defendant failed to meet their burden of proof on apportionment from an internal medicine standpoint.
Determined psychiatric injury should not be apportioned due to traumatic childhood and successful coping; no substantial evidence for non-industrial apportionment.
Dr. Maloff's thorough discussion of applicant's history supports no non-industrial apportionment; defendant failed to provide substantial evidence to the contrary.
From the decision · page 10As noted above, Defendant bears the burden of proof on Apportionment. Contrary to Defendant's assertion, Dr. Maloff considered and discussed Applicant's history. (See Exhibits "1- 3"). Dr. Maloff noted a remarkable history of adjustment given Applicant's traumatic childhood (Exhibit "2" pg. 32) noting his successful work life and high school career. (Id.). Dr. Maloff also discussed Applicant's successful coping mechanisms and overall "excellent performance in his position with the California Institution for Men. (Id. pg. 33). Based on Dr. Maloff's thorough discussions of Applicant's history, I found it reasonable for Dr. Maloff to opine that non-industrial apportionment was not indicated. As Defendant did not present substantial medical evidence that there was non-industrial apportionment, they failed to carry their burden. As such, Applicant is entitled to an unapportioned award.
Provided internal report with no basis for non-industrial apportionment.
Dr. Lira's report does not support non-industrial apportionment, supporting defendant's failure to meet burden of proof.
From the decision · page 9Here, Defendant argues that Dr. Woolf's reporting is not substantial medical evidence as to apportionment. The undersigned agrees, in part. Dr. Woolf's opinion provides no substantial medical evidence on which the Board can find any non-industrial apportionment. Instead, Dr. Woolf notes that apportionment is "not indicated." (Exhibit "4" pg. 8). Additionally, Dr. Lira's internal report provides no basis for non-industrial apportionment. (See Exhibit "E"). Defendant has thus provided no substantial medical evidence of apportionable disability. Defendant failed to meet their burden of proof on apportionment from an internal medicine standpoint.
Provided reporting considered in the record but no specific opinion on apportionment detailed.
From the decision · page 8Applicant relied upon reporting of Psychiatric Panel QME Dr. Perry Maloff (Exhibits "1"- "3") and Internal Panel QME, Dr. Graham Woolf (Exhibits "4"-"6"). Defendant relied upon the reports of Dr. Woolf (Exhibits "A" and "B"), Deposition testimony of Dr. Maloff (Exhibit "C"), Defendant's own correspondence to Dr. Maloff (Exhibit "D"), Reporting of internal treating physician, Dr. Alex Lira (Exhibit "E"), Reporting of psyche treating physician, Dr. David Friedman (Exhibits "F" and "G") as well as Benefits and IDL Printouts (Exhibits "H" and "I"). The applicant testified at trial and the matter was submitted on September 9, 2024.
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 shall be based on causation.
The Board requires substantial medical evidence addressing causation and apportionment; defendant bears burden of proof on apportionment.
From the decision · page 9Labor Code 4663 provides that apportionment of permanent disability shall be based upon causation as determined and discussed in the medical report. (Andersen v. Worker's Comp. Appeals Bd. 149 Cal.App.4th 1369 at 1381). Apportionment may be attributed to pathology, asymptomatic prior conditions, and retroactive prophylactic preclusions, provided there is substantial medical evidence establishing these factors have caused permanent disability. (Escobedo v. Marshalls (2005) 70 CCC 604, 612 (en banc)). Defendant bears the burden of proof on apportionment. (Pullman Kellogg v. Workers' Comp. Appeals Bd. (Normand) (1980) 26 Cal. 3d 450, 456; Benson v. Workers' Comp. Appeals Bd. (2009) 170 Cal. App. 4th 1535, 1560; Kopping v. Workers' Comp. Appeals Bd. (2006) 142 Cal. App. 4th 1099, 1115; Escobedo v. Marshalls (2005) 70 Cal. Comp. Cases 604, 613 (Appeals Board en banc).
E.L. Yeager Construction v. Workers' Comp. Appeals Bd. (2006)
Medical opinion must be based on reasonable medical probability, adequate examination, and not speculative.
Medical reports not substantial evidence if based on erroneous facts or speculation; Board must ensure substantial justice and develop record if needed.
From the decision · page 4A WCJ's decision must be supported by substantial evidence in light of the entire record. (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].) "The term `substantial evidence' means evidence which, if true, has probative force on the issues. It is more than a mere scintilla, and means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion...It must be reasonable in nature, credible, and of solid value." (Braewood Convalescent Hosp. v. Workers' Comp. Appeals Bd. (Bolton) (1983) 34 Cal.3d 159, 164 [48 Cal.Comp.Cases 566], emphasis removed and citations omitted.)
AMA Guides to the Evaluation of Permanent Impairment, 5th Edition
Used to rate permanent disability based on symptoms, medication use, and clinical judgment.
From the decision · page 10In his May 20, 2024 report, Dr. Woolf opined that Applicant best falls into Upper Digestive Tract Class 2, Table 6-3, pg. 121 of the AMA Guides. (Exhibit "4" pg. 8). Dr. Woolf stated "I would give him 15% since he requires continuous treatment with omeprazole daily. I placed him in the lower range of the Class as he has not lost weight. He does not belong in Class I since he is taking acid suppressing medications daily to control his symptoms." (Id.).
What proof carried it
The evidence the panel weighed, by kind.
Applicant's need for continuous medication (omeprazole) despite no weight loss
From the decision · page 10In his May 20, 2024 report, Dr. Woolf opined that Applicant best falls into Upper Digestive Tract Class 2, Table 6-3, pg. 121 of the AMA Guides. (Exhibit "4" pg. 8). Dr. Woolf stated "I would give him 15% since he requires continuous treatment with omeprazole daily. I placed him in the lower range of the Class as he has not lost weight. He does not belong in Class I since he is taking acid suppressing medications daily to control his symptoms." (Id.).
Applicant's traumatic childhood and successful coping mechanisms
From the decision · page 10As noted above, Defendant bears the burden of proof on Apportionment. Contrary to Defendant's assertion, Dr. Maloff considered and discussed Applicant's history. (See Exhibits "1- 3"). Dr. Maloff noted a remarkable history of adjustment given Applicant's traumatic childhood (Exhibit "2" pg. 32) noting his successful work life and high school career. (Id.). Dr. Maloff also discussed Applicant's successful coping mechanisms and overall "excellent performance in his position with the California Institution for Men. (Id. pg. 33). Based on Dr. Maloff's thorough discussions of Applicant's history, I found it reasonable for Dr. Maloff to opine that non-industrial apportionment was not indicated. As Defendant did not present substantial medical evidence that there was non-industrial apportionment, they failed to carry their burden. As such, Applicant is entitled to an unapportioned award.
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