What the panel ordered
Defendant's Petition for Reconsideration is granted, and issuance of the final decision after reconsideration is deferred pending further review.
Defendant BITCO Insurance/Old Republic General Insurance Corporation sought reconsideration of the Arbitrator's Findings and Award issued on January 15, 2026. The WCAB granted the petition for reconsideration and deferred the final decision pending further review of the merits and the entire 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.
The Appeals Board granted reconsideration and deferred the final decision pending further review of the merits and the entire record due to incomplete record and procedural issues.
From the decision · page 10V. Accordingly, we grant defendant's Petition for Reconsideration, and order that a final decision after reconsideration is deferred pending further review of the merits of the Petition for Reconsideration and further consideration of the entire record in light of the applicable statutory and decisional law. For the foregoing reasons, IT IS ORDERED that defendant's Petition for Reconsideration is GRANTED.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Applicant worked as a Rebar Ironworker for 25 years carrying heavy rebar, causing injuries to multiple body parts.
Favours Applicant prevailed
This fact supported the finding of industrial causation and total disability as found by the arbitrator.
From the decision · page 4is one of the most arduous job in our labor market. When asked by his attorney what his job duties were, he replied, "... It's like you carry a few tons of rebar and then you have to bend over and tie them".... for 25 years! He was not exaggerating about the weight. Depending upon the diameter and length, a rod of re bar can weight over 100 pounds and he does not carry one at a time. Is it realistic to claim that he only hurt his low back and not his thoracic spine, or his right knee but not the left. This is especially true when he complains about pain in all his joints and his QME doctors, Dr. Henri and Dr. Newton have no problems embracing these complaints as being valid. Dr. Newton the AME in neurology found the opinion of Dr. Henri to be more accurate than that of Dr. Xeller. I have absolutely no doubt that applicant's job duties could have caused the injuries in the complaint.
The arbitrator found the medical opinions of Dr. Henri and Dr. Newton credible and supportive of the applicant's injury claims.
Favours Applicant prevailed
These opinions were relied upon to uphold the finding of 100% permanent disability and industrial causation.
From the decision · page 5The bottom line after review of this position is that my decision is supported by Applicant's testimony and the expert medical opinion of Dr. Henri and Dr. Newton (AME-neurology) has not been refuted by defendant. Instead defendant has tried to reshape applicant into something he is not. This attempt taints defendant's entire argument. I see nothing that would compel me to change [my] decision. As Dr. Henri states that the applicant wore out his bone and joints from 25 years of carrying rebar. His physical skills were totally depreciated and he must be rightfully compensated.
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. Henri opined that the applicant's injuries were caused by 25 years of carrying rebar, leading to worn out bones and joints and total depreciation of physical skills.
The arbitrator found Dr. Henri's opinion to be accurate and supported by the applicant's testimony and other medical opinions.
From the decision · page 4is one of the most arduous job in our labor market. When asked by his attorney what his job duties were, he replied, "... It's like you carry a few tons of rebar and then you have to bend over and tie them".... for 25 years! He was not exaggerating about the weight. Depending upon the diameter and length, a rod of re bar can weight over 100 pounds and he does not carry one at a time. Is it realistic to claim that he only hurt his low back and not his thoracic spine, or his right knee but not the left. This is especially true when he complains about pain in all his joints and his QME doctors, Dr. Henri and Dr. Newton have no problems embracing these complaints as being valid. Dr. Newton the AME in neurology found the opinion of Dr. Henri to be more accurate than that of Dr. Xeller. I have absolutely no doubt that applicant's job duties could have caused the injuries in the complaint.
Dr. Kearns found hearing loss 60% related to work and apportioned 40% to preexisting presbycusis, but the arbitrator found no evidence of preexisting hearing loss in the applicant.
The arbitrator rejected Dr. Kearns' apportionment reasoning as unsupported by evidence in the record.
From the decision · page 5The attorney making the applicant into someone he isn't continued into the evaluation of what doctor said in their reports. The classic example is the report of Dr. Kearns' 09/06/25, defendant's hearing specialist. Dr. Kearns found a hearing loss, 60% related to his work, but also noted that a 59 years old nan could be expected to have some decline due to prebycusis. Therefore, without commenting on the logic used to make this finding, Dr. Kearns apportioned 40% of the disability to preexisting prebycusis. Apparently because 40% of the population has non-industrial prebycusis. There was no showing that this problem even existed in applicant, who denies any hearing loss before his work as an ironworker,
Dr. Newton, the AME in neurology, found the opinion of Dr. Henri more accurate than that of Dr. Xeller and supported the finding of injury to multiple body parts.
The arbitrator gave great weight to Dr. Newton's opinion supporting the applicant's injury claims.
From the decision · page 4is one of the most arduous job in our labor market. When asked by his attorney what his job duties were, he replied, "... It's like you carry a few tons of rebar and then you have to bend over and tie them".... for 25 years! He was not exaggerating about the weight. Depending upon the diameter and length, a rod of re bar can weight over 100 pounds and he does not carry one at a time. Is it realistic to claim that he only hurt his low back and not his thoracic spine, or his right knee but not the left. This is especially true when he complains about pain in all his joints and his QME doctors, Dr. Henri and Dr. Newton have no problems embracing these complaints as being valid. Dr. Newton the AME in neurology found the opinion of Dr. Henri to be more accurate than that of Dr. Xeller. I have absolutely no doubt that applicant's job duties could have caused the injuries in the complaint.
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
LeVesque v. Workmen's Comp. Appeals Bd. (1970) 1 Cal.3d 627 [35 Cal. Comp. Cases 16]
Substantial evidence means evidence which, if true, has probative force on the issues and is more than a mere scintilla.
The arbitrator's decision was supported by substantial evidence including medical opinions and applicant's testimony.
From the decision · page 5274 [39 Cal. Comp. Cases 310]; Garza, supra; LeVesque v. Workmen's Comp. Appeals Bd. (1970)
Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 621 (Appeals Board en banc)
A medical opinion must be framed in terms of reasonable medical probability, not speculative, based on pertinent facts and adequate examination, and set forth reasoning in support of conclusions.
The medical opinions relied upon met the standard of reasonable medical probability and were not speculative.
From the decision · page 6removed and citations omitted.) To constitute substantial evidence "... a medical opinion must be framed in terms of reasonable medical probability, it must not be speculative, it must be based on pertinent facts and on an adequate examination and history, and it must set forth reasoning in support of its conclusions." (Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 621 (Appeals Board en banc).)
What proof carried it
The evidence the panel weighed, by kind.
Applicant's testimony and expert medical opinions of Dr. Henri and Dr. Newton supported the finding of injury and disability.
From the decision · page 5The bottom line after review of this position is that my decision is supported by Applicant's testimony and the expert medical opinion of Dr. Henri and Dr. Newton (AME-neurology) has not been refuted by defendant. Instead defendant has tried to reshape applicant into something he is not. This attempt taints defendant's entire argument. I see nothing that would compel me to change [my] decision. As Dr. Henri states that the applicant wore out his bone and joints from 25 years of carrying rebar. His physical skills were totally depreciated and he must be rightfully compensated.
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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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