What the panel ordered
Petition for Reconsideration denied.
Petition for Reconsideration filed and denied by the Appeals Board after review of the WCJ report.
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 court found Dr. Mandell's alternative impairment rating to be substantial medical evidence despite defendant's arguments about lack of FCE and EMG, and rejected defendant's impeachment attempts based on subrosa video.
From the decision · page 54. Petition contents: I. Dr. Mandell's Alternative Impairment Rating is not Substantial Medical Evidence (Listed in Both Petitions) A. Dr. Mandell did not conduct an adequate examination to justify the use of an alternative impairment rating (Only argued in the original Petition) B. Dr. Mandell's alternative impairment rating is speculative (Argued in both Petitions) C. Dr. Mandell's alternative impairment rating is based on facts no longer germane (Only argued in the Amended Petition) II. The subrosa video is relevant and was improperly excluded (Only argued in the Original Petition) III. Dr. Mandell's opinion on apportionment is substantial (Only argued in the Original Petition)
Dr. Mandell's apportionment opinions were found not to be substantial medical evidence due to lack of reasoning and explanation for the percentages assigned.
From the decision · page 8AME Dr. Mandell admits on page 6 of his 3/29/24 report that apportionment in this case is difficult. Dr. Mandell explains that Applicant did have problems with his shoulders even preceding the injury of 4/23/21. The medical records show as far back as 2010 he was having problems with his shoulders. There is a suggestion of shoulder problems in 2019 as well.
The court agreed with the WCJ that the subrosa video was not relevant for impeachment as defendant failed to show the video contradicted applicant's statements to Dr. Mandell.
From the decision · page 3Here, defendant contended in its original Petition that the subrosa video was relevant to impeach applicant's testimony. However, as pointed out by the WCJ, we note that defendant's arguments with respect to the subrosa were only raised in its original Petition and not in its amended Petition after the transcript had been prepared. We agree with the WCJ's analysis that defendant did not demonstrate that the subrosa video was relevant as evidence of impeachment. In addition, we have reviewed the transcript, and it does not change our conclusion that the WCJ's decision is supported by substantial medical evidence.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
The case was transmitted to the Appeals Board on April 25, 2025, and the decision was issued on June 24, 2025, within the 60-day period required by Labor Code section 5909.
Favours Defendant prevailed
This timing established the Board's jurisdiction to act on the petition for reconsideration.
From the decision · page 2Here, according to Events, the case was transmitted to the Appeals Board on April 25, 2025, and 60 days from the date of transmission is June 24, 2025. This decision is issued by or on June 24, 2025, so that we have timely acted on the petition as required by Labor Code section 5909(a).
Dr. Mandell's alternative impairment rating was found to be substantial medical evidence despite defendant's arguments about lack of FCE and EMG.
Favours Defendant prevailed
Supported denial of defendant's petition to exclude the impairment rating.
From the decision · page 6Defendant argues Dr. Mandell cannot make an alternative impairment rating because he was not provided with a functional capacity evaluation (hereinafter referred to as FCE), and Dr. Mandell did not review and EMG. Dr. Mandell testified Applicant's problems are in his upper extremities, and as nearly as he could tell, he was putting forth full effort. But we don't have a good way of double-checking that short of doing a formal functional capacity evaluation (Dr. Mandell Deposition Transcript, EAMS Doc ID # 44547195, pg7; 6-10). On page 12; 5-9, Dr. Mandell was asked if any objective testing was done to confirm Applicant's trouble using zippers or buttons. Dr. Mandell explained he doesn't have that ability. That's why he was talking about a functional capacity evaluation. He went on to state that would be nice to have if that's a question.
The subrosa video was excluded as irrelevant for impeachment because defendant failed to show it contradicted applicant's statements to Dr. Mandell.
Favours Defendant prevailed
Supported exclusion of the video and denial of defendant's impeachment argument.
From the decision · page 8AME Dr. Mandell never reviewed the subrosa video at issue. For that reason, the only possible relevance of the video at trial, with a proper foundation, was impeachment. The Court explained to Defendant the only potentially relevant impeachment evidence for the subrosa would be if Applicant was videotaped performing activity he told Dr. Mandell he could not perform. The Court asked Defendant whether there was any such evidence on the videos. Defendant did not respond. Therefore, Applicant's relevance objection was sustained. The subrosa video was determined to be irrelevant and excluded from evidence.
Dr. Mandell's apportionment opinions lacked sufficient reasoning and explanation for the percentages assigned.
Favours Defendant prevailed
Led to rejection of apportionment opinions as not substantial medical evidence.
From the decision · page 8AME Dr. Mandell admits on page 6 of his 3/29/24 report that apportionment in this case is difficult. Dr. Mandell explains that Applicant did have problems with his shoulders even preceding the injury of 4/23/21. The medical records show as far back as 2010 he was having problems with his shoulders. There is a suggestion of shoulder problems in 2019 as well.
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.
Provided alternative impairment rating and apportionment opinions; found substantial medical evidence for impairment rating but apportionment opinions lacked sufficient reasoning.
The court relied on Dr. Mandell's impairment rating as substantial medical evidence despite challenges.
From the decision · page 6Dr. Peter Mandell is the AME for both cases. Dr. Mandell prepared two reports: 8/19/22, EAMS Doc ID #55457193, and 3/29/24, EAMS Doc ID # 55457194. Dr. Mandell was also deposed on 11/1/24, EAMS Doc ID # 44547195.
Apportionment opinions assigning percentages to injury, diabetes, and cumulative trauma were found not substantial due to lack of explanation.
The court rejected Dr. Mandell's apportionment opinions as not substantial medical evidence.
From the decision · page 8AME Dr. Mandell admits on page 6 of his 3/29/24 report that apportionment in this case is difficult. Dr. Mandell explains that Applicant did have problems with his shoulders even preceding the injury of 4/23/21. The medical records show as far back as 2010 he was having problems with his shoulders. There is a suggestion of shoulder problems in 2019 as well.
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Almaraz/Guzman
Almaraz/Guzman standard for medical evidence and apportionment.
The court applied Almaraz/Guzman to evaluate Dr. Mandell's impairment rating and apportionment opinions.
From the decision · page 7Defendant argued at trial that the Court should review the subrosa and determine whether AME Dr. Mandell's Almaraz/Guzman analysis was correct. This court explained to Defendant the application of Almaraz/Guzman is a medical decision. The Court's responsibility as the fact finder is to determine whether the Almaraz/Guzman analysis amounts to substantial medical evidence.
Labor Code section 5909
Labor Code section 5909 requires the Appeals Board to act on a petition for reconsideration within 60 days of transmission of the case.
The Board acted timely on the petition as the case was transmitted on April 25, 2025, and the decision was issued on June 24, 2025.
From the decision · page 1I. Former Labor Code section 5909 provided that a petition for reconsideration was deemed denied unless the Appeals Board acted on the petition within 60 days from the date of filing. (Lab. Code, § 5909.) Effective July 2, 2024, Labor Code section 5909 was amended to state in relevant part that: (a) A petition for reconsideration is deemed to have been denied by the appeals board unless it is acted upon within 60 days from the date a trial judge transmits a case to the appeals board.
Cal. Code Regs., tit. 8, 10787(c)(6); Hamilton v. Lockheed Corporation (2001) 66 Cal.Comp.Cases 473; Morgan v. United States (1936) 298 U.S. 468
Subrosa video used for impeachment must be in evidence and reviewed by the judge; the one who decides must hear the evidence.
The court reviewed the subrosa video and found it was not relevant for impeachment as defendant failed to show contradiction with applicant's statements.
From the decision · page 3A second use of subrosa occurs where defendant seeks to impeach applicant's credibility through activities seen in the video, which defendant argues are incongruent with applicant's testimony or other evidence. In such cases the video is no longer being used as medical evidence, but instead it is being used as factual evidence of credibility, which requires that the video be in evidence and that the judge review it. (Cal. Code Regs., tit. 8, § 10787(c)(6); Hamilton v. Lockheed Corporation (Hamilton) (2001) 66 Cal.Comp.Cases 473, 478 (Appeals Board en banc); see also Morgan v. United States (1936) 298 U.S. 468, 481["The one who decides must hear."].) When deciding reconsideration, the Appeals Board is required "to achieve a substantial understanding of the record[.]" (Allied Compensation Ins. Co. v. Industrial Acc. Com. (1961) 57 Cal.2d 115, 120.)
What proof carried it
The evidence the panel weighed, by kind.
Subrosa video was excluded as irrelevant for impeachment purposes.
From the decision · page 8AME Dr. Mandell never reviewed the subrosa video at issue. For that reason, the only possible relevance of the video at trial, with a proper foundation, was impeachment. The Court explained to Defendant the only potentially relevant impeachment evidence for the subrosa would be if Applicant was videotaped performing activity he told Dr. Mandell he could not perform. The Court asked Defendant whether there was any such evidence on the videos. Defendant did not respond. Therefore, Applicant's relevance objection was sustained. The subrosa video was determined to be irrelevant and excluded from evidence.
The same issues, filtered across the whole corpus — or paste your own facts and let the search rank by factor match.
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.
- The injured worker is not named here, and the case caption is not printed. Physicians appear as the decision names them, because a medical opinion is an act in a public proceeding.
- Issues, outcomes and weights were extracted by AI and released only where the source passage checked. Read the official decision before relying on anything here. Not legal advice.
- If you are named in this decision and want this page removed, write to privacy@similarcase.com.