What the panel ordered
Petition for Reconsideration denied.
Petition for Reconsideration filed and denied by the Appeals Board within the 60-day statutory period following transmission of the case.
This docket was decided more than once. Shown here is the latest released decision; we also hold January 3, 2025.
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 defendant failed to meet its burden of proof for apportionment because Dr. Mandell's opinions lacked the required how and why explanations, making them conclusory and not substantial evidence. Therefore, the applicant is entitled to an un-apportioned award of 54%.
From the decision · page 9AME Dr. Mandell discusses apportionment in his 3/3/21 Deposition, Joint Exhibit SS, EAMS Doc ID # 58328787. Dr. Mandell also discusses apportionment in his report dated 3/16/24, Joint Exhibit FF EAMS Doc ID # 58328791. This Court reviewed all of AME Dr. Mandell's remaining reports in this case: joint exhibits GG, HH, II, J, KK, LL, and MM. None of these reports provide any reasoning to support AME Dr. Mandell's non-industrial apportionment opinion. There is no how and why explanation. Defendant failed to meet its burden of proof for this affirmative defense. Therefore, Applicant is entitled to an un-apportioned award of 54%.
The Appeals Board found the applicant's permanent and stationary date to be 7/17/20 based on the unequivocal opinion of Dr. Fletcher and rejected the ambiguous and speculative MMI opinion of Dr. Mandell. Therefore, the defendant is not entitled to credit for any temporary disability overpayment.
From the decision · page 6Furthermore, the inconsistent, ambiguous and speculative characteristics of Dr. Mandell's MMI opinions are summarized in the following questions and answers during the 4/16/25 deposition. Page 15; 21 to page 16; 14: Q. Okay. The problem we're having is you previously testified that it would be reasonable to assign the P & S date to when she went back to work after this procedure just as you did in the 2023 report but now we're back to the one-year status. So I'm a little confused as to what we're going off of to make that decision and is it within a reasonable medical probability? A. Well, I was being abundantly cautious when I said that she was permanent and stationary when she returned to work because obviously, she's back at work, she's not disabled anymore, and so that makes that clear. But if if you want to be more granular about this and zoom in a little more rather than taking the the very high-level views, the one year permanency date is the correct one. Q. In general? A. Yes.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Dr. Mandell's MMI opinions were inconsistent, ambiguous, and speculative, including use of the word 'probably'.
Favours Applicant prevailed
This undermined the credibility of Dr. Mandell's opinion and led to rejection in favor of Dr. Fletcher's unequivocal opinion.
From the decision · page 6Furthermore, the inconsistent, ambiguous and speculative characteristics of Dr. Mandell's MMI opinions are summarized in the following questions and answers during the 4/16/25 deposition. Page 15; 21 to page 16; 14: Q. Okay. The problem we're having is you previously testified that it would be reasonable to assign the P & S date to when she went back to work after this procedure just as you did in the 2023 report but now we're back to the one-year status. So I'm a little confused as to what we're going off of to make that decision and is it within a reasonable medical probability? A. Well, I was being abundantly cautious when I said that she was permanent and stationary when she returned to work because obviously, she's back at work, she's not disabled anymore, and so that makes that clear. But if if you want to be more granular about this and zoom in a little more rather than taking the the very high-level views, the one year permanency date is the correct one. Q. In general? A. Yes.
Dr. Mandell's apportionment opinions lacked reasoning and were conclusory, failing to meet the burden of proof for apportionment.
Favours Applicant prevailed
This failure caused the defendant to lose on the apportionment issue, resulting in an un-apportioned award for the applicant.
From the decision · page 9AME Dr. Mandell discusses apportionment in his 3/3/21 Deposition, Joint Exhibit SS, EAMS Doc ID # 58328787. Dr. Mandell also discusses apportionment in his report dated 3/16/24, Joint Exhibit FF EAMS Doc ID # 58328791. This Court reviewed all of AME Dr. Mandell's remaining reports in this case: joint exhibits GG, HH, II, J, KK, LL, and MM. None of these reports provide any reasoning to support AME Dr. Mandell's non-industrial apportionment opinion. There is no how and why explanation. Defendant failed to meet its burden of proof for this affirmative defense. Therefore, Applicant is entitled to an un-apportioned award of 54%.
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.
Dr. Mandell's MMI opinion was inconsistent, ambiguous, and speculative, including the word 'probably' which made it less credible than Dr. Fletcher's unequivocal opinion. Dr. Mandell's apportionment opinions lacked reasoning and were conclusory, failing to meet the burden of proof for apportionment.
The Appeals Board found Dr. Mandell's MMI opinion inconsistent and speculative, and his apportionment opinions conclusory and lacking required reasoning, thus not substantial evidence.
From the decision · page 6Furthermore, the inconsistent, ambiguous and speculative characteristics of Dr. Mandell's MMI opinions are summarized in the following questions and answers during the 4/16/25 deposition. Page 15; 21 to page 16; 14: Q. Okay. The problem we're having is you previously testified that it would be reasonable to assign the P & S date to when she went back to work after this procedure just as you did in the 2023 report but now we're back to the one-year status. So I'm a little confused as to what we're going off of to make that decision and is it within a reasonable medical probability? A. Well, I was being abundantly cautious when I said that she was permanent and stationary when she returned to work because obviously, she's back at work, she's not disabled anymore, and so that makes that clear. But if if you want to be more granular about this and zoom in a little more rather than taking the the very high-level views, the one year permanency date is the correct one. Q. In general? A. Yes.
Dr. Fletcher provided an unequivocal opinion that the applicant was temporarily totally disabled and supported a permanent and stationary date of 7/17/20.
Dr. Fletcher's unequivocal opinion was credited over Dr. Mandell's ambiguous opinion.
From the decision · page 6Dr. Mandell's record review is at the end of Exhibit J. Dr. Mandell reviewed PTP Dr. Fletcher's report dated 6/19/20. This report lists physical complaints to Applicant's left low back/upper buttock pain; right arm pain to elbow as well as neck and thoracic back area pain. Dr. Fletcher completed a thorough exam. Dr. Fletcher diagnosed Applicant with tear of left medial meniscus, left knee pain, right shoulder rotator cuff tear or rupture, pain in left foot, and acute pain due to trauma. Dr. Fletcher opined Applicant was TTD.
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Braewood Convalescent Hosp. v. Workers' Comp. Appeals Bd. (Bolton) (1983) 34 Cal.3d 159
Substantial evidence must be reasonable, credible, and of solid value, and medical opinions must be framed in terms of reasonable medical probability with adequate reasoning and examination.
Applied to evaluate the sufficiency of medical opinions by Dr. Mandell and Dr. Fletcher.
From the decision · page 2II. It is well established that decisions by the Appeals Board must be supported by substantial evidence. (Lab. Code, § 5903, 5952(d); Lamb v. Workmen's Comp. Appeals Bd. (1974) 11 Cal.3d 274 [39 Cal. Comp. Cases 310]; Garza, supra; LeVesque v. Workmen's Comp. Appeals Bd. (1970) 1 Cal.3d 627 [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.) To constitute substantial evidence "... a medical opinion must be
Defendant has the burden of proof on apportionment and must demonstrate a legal basis for apportionment based on reasonable medical probability with how and why explanations.
Applied to assess the adequacy of Dr. Mandell's apportionment opinions.
What proof carried it
The evidence the panel weighed, by kind.
Inconsistent, ambiguous, and speculative MMI opinions of Dr. Mandell
From the decision · page 6Furthermore, the inconsistent, ambiguous and speculative characteristics of Dr. Mandell's MMI opinions are summarized in the following questions and answers during the 4/16/25 deposition. Page 15; 21 to page 16; 14: Q. Okay. The problem we're having is you previously testified that it would be reasonable to assign the P & S date to when she went back to work after this procedure just as you did in the 2023 report but now we're back to the one-year status. So I'm a little confused as to what we're going off of to make that decision and is it within a reasonable medical probability? A. Well, I was being abundantly cautious when I said that she was permanent and stationary when she returned to work because obviously, she's back at work, she's not disabled anymore, and so that makes that clear. But if if you want to be more granular about this and zoom in a little more rather than taking the the very high-level views, the one year permanency date is the correct one. Q. In general? A. Yes.
Lack of reasoning in Dr. Mandell's apportionment opinions
From the decision · page 9AME Dr. Mandell discusses apportionment in his 3/3/21 Deposition, Joint Exhibit SS, EAMS Doc ID # 58328787. Dr. Mandell also discusses apportionment in his report dated 3/16/24, Joint Exhibit FF EAMS Doc ID # 58328791. This Court reviewed all of AME Dr. Mandell's remaining reports in this case: joint exhibits GG, HH, II, J, KK, LL, and MM. None of these reports provide any reasoning to support AME Dr. Mandell's non-industrial apportionment opinion. There is no how and why explanation. Defendant failed to meet its burden of proof for this affirmative defense. Therefore, Applicant is entitled to an un-apportioned award of 54%.
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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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