What the panel ordered
Petition for Reconsideration denied, affirming 11% permanent partial disability with no apportionment.
Defendant sought reconsideration of the Findings and Award issued by the WCJ on August 15, 2023, which found injury AOE/COE, 11% permanent partial disability, and no legal 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. Elias's opinion on 80% apportionment to preexisting degenerative changes was not substantial evidence because he failed to explain the nature and impact of the degenerative disease, so defendant did not meet burden of proof for apportionment.
From the decision · page 1Defendant contends that the opinions of orthopedic qualified medical examiner (QME) Ramy Elias, M.D., as stated in his January 23, 2023 report, are substantial evidence that 80% of applicant's right knee permanent partial disability is the result of pre-existing degenerative changes, and based thereon applicant is entitled to an award of 2% permanent partial disability, after apportionment.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Dr. Elias did not explain the nature of the degenerative disease or how it caused 80% of the disability.
Favours Applicant prevailed
Without this explanation, his apportionment opinion was not substantial evidence, so defendant failed to meet burden of proof for apportionment.
From the decision · page 3As quoted above, Dr. Elias stated that he "would apportion 80% to the underlying preexisting degenerative changes of the right knee, 20% should be apportioned to the industrial injury." (Joint Exh. D, p. 2.) Clearly, Dr. Elias did not explain the nature of the degenerative disease, or how and why it is causing permanent disability at the time of the evaluation. Nor did he explain how and why it is responsible for 80% of applicant's right knee permanent disability. Thus, his opinion does not constitute substantial evidence regarding the issue of apportionment.
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.
Applicant sustained right knee injury on 9/9/2021 causing 5% whole person impairment; 80% of disability due to preexisting degenerative changes, 20% to industrial injury; opinion rejected for apportionment due to lack of explanation.
Dr. Elias did not explain the nature of the degenerative disease or how it caused 80% of the disability, so his apportionment opinion was not substantial evidence.
From the decision · page 1Defendant contends that the opinions of orthopedic qualified medical examiner (QME) Ramy Elias, M.D., as stated in his January 23, 2023 report, are substantial evidence that 80% of applicant's right knee permanent partial disability is the result of pre-existing degenerative changes, and based thereon applicant is entitled to an award of 2% permanent partial disability, after apportionment.
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Granado v. Workers' Comp. Appeals Bd. (1968) 69 Cal.2d 399; Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604 (Appeals Board en banc)
A medical report must set forth reasoning behind the physician's opinion to be substantial evidence, including explanation of degenerative disease and its impact for apportionment.
Dr. Elias's report was rejected for lack of explanation on degenerative disease and apportionment percentages.
From the decision · page 2DISCUSSION A medical report is not substantial evidence unless it sets forth the reasoning behind the physician's opinion, not simply his or her conclusions i.e., a mere legal conclusion does not furnish a basis for a finding. (Granado v. Workers' Comp. Appeals Bd. (1968) 69 Cal.2d 399 [33 Cal.Comp.Cases 647] (); Zemke v. Workmen's Comp. Appeals Bd. (1968) 68 Cal.2d 794, pp. 799, 800§ 801 [33 Cal.Comp.Cases 358].) In order to constitute substantial evidence as to the issue of apportionment, the medical opinion must disclose the reporting physician's familiarity with the concepts of apportionment and must identify the approximate percentages of permanent disability due to the direct results of the injury and the approximate percentage of permanent disability due to other factors. (Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604 (Appeals Board en banc).) If as here, the doctor states that a portion of the injured worker's disability is caused by a degenerative condition, the physician must explain the nature of the degenerative disease, how and
What proof carried it
The evidence the panel weighed, by kind.
Dr. Elias's apportionment opinion lacked explanation of degenerative disease and its impact on disability, undermining its substantiality.
From the decision · page 3As quoted above, Dr. Elias stated that he "would apportion 80% to the underlying preexisting degenerative changes of the right knee, 20% should be apportioned to the industrial injury." (Joint Exh. D, p. 2.) Clearly, Dr. Elias did not explain the nature of the degenerative disease, or how and why it is causing permanent disability at the time of the evaluation. Nor did he explain how and why it is responsible for 80% of applicant's right knee permanent disability. Thus, his opinion does not constitute substantial evidence regarding the issue of apportionment.
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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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