ADJ4336912 — California WCAB decision

What the panel ordered

Petition for reconsideration denied.

Petition for reconsideration of the Amended Joint Findings of Fact and Award/Order issued by the WCJ on January 31, 2025, denied by the Appeals Board panel on April 21, 2025.

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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.

AOE/COEDefendant prevailedback · psyche · urological system

The WCJ found no injury arising out of and in the course of employment for AIM Transportation based on applicant's credible testimony and medical evidence.

From the decision · page 8that her finding that there was no injury AOE/COE in case ADJ418935 was based only on "the findings of Dr. Einbund and the Applicant's credible testimony that the Applicant did not sustain an industrial injury during his employment with AIM Transportation." (Report, at p. 5.) We observe that it is the findings and orders that are ultimately enforceable as a judgment, not the Opinion. (See Lab. Code, § 5806, 5807.) Here, there is no indication in the findings in either case that the WCJ relied on Dr. Mas as anything other than a vocational expert. (See Nunes v. State of California, Dept. of Motor Vehicles (2023) 88 Cal.Comp.Cases 741 (Nunes I) (Appeals Board en banc); Nunes v. State of California, Dept. of Motor Vehicles (2023) 88 Cal.Comp.Cases 894 (Nunes II) (Appeals Board en banc).) The WCJ's clarification in the Report is thus all that is needed to address defendant's contention.

The facts that decided it

What the panel treated as outcome-determinative, and which side it favoured.

Applicant sustained injury to back, psyche, and urological system arising out of and in the course of employment with Compass at City of Industry on July 17, 2000.

Favours Applicant prevailed

This finding supported the permanent total disability award in case ADJ4336912.

From the decision · page 1Defendant Zurich1 seeks reconsideration of the Amended Joint Findings of Fact and Award/Order (FA&O), issued by the workers' compensation administrative law judge (WCJ) on January 31, 2025. In case number ADJ4336912, the WCJ found in pertinent part that on July 17, 2000, applicant sustained injury to his back, psyche and urological system, arising out of and in

Defendant failed to meet burden of proof to establish apportionment of permanent disability.

Favours Applicant prevailed

This failure led to the denial of defendant's apportionment claim and supported the award of permanent total disability to applicant.

From the decision · page 8We find no legal basis for this request. Defendant holds the burden of proof on apportionment of permanent disability, and here, defendant failed to meet its burden of proof to establish apportionment. (Lab. Code, § 5705; Escobedo, supra, 70 Cal.Comp.Cases at p. 613.) As discussed above, the WCJ concluded that the reporting of applicant's witnesses constituted substantial medical evidence, while the reporting of defendant's medical witnesses did not. (Opinion, at p. 10.) Based on this finding, the WCJ explained that "the more persuasive reports have found that the applicant's disability is 100% apportioned to this industrial injury [in case number ADJ4336912]. Therefore, Defendant's [sic] have failed to meet their burden of proof to establish apportionment." (Opinion, at p. 10.)

Applicant did not sustain injury arising out of and in the course of employment while working for AIM Transportation from October 21, 2002 through January 21, 2003.

Favours Defendant prevailed

This finding resolved the injury claim in case ADJ418935 in favor of defendant.

From the decision · page 8that her finding that there was no injury AOE/COE in case ADJ418935 was based only on "the findings of Dr. Einbund and the Applicant's credible testimony that the Applicant did not sustain an industrial injury during his employment with AIM Transportation." (Report, at p. 5.) We observe that it is the findings and orders that are ultimately enforceable as a judgment, not the Opinion. (See Lab. Code, § 5806, 5807.) Here, there is no indication in the findings in either case that the WCJ relied on Dr. Mas as anything other than a vocational expert. (See Nunes v. State of California, Dept. of Motor Vehicles (2023) 88 Cal.Comp.Cases 741 (Nunes I) (Appeals Board en banc); Nunes v. State of California, Dept. of Motor Vehicles (2023) 88 Cal.Comp.Cases 894 (Nunes II) (Appeals Board en banc).) The WCJ's clarification in the Report is thus all that is needed to address defendant's contention.

The WCJ found applicant's treating physician Dr. Einbund's medical opinions more credible and persuasive than defendant's medical evaluator Dr. Aval.

Favours Applicant prevailed

This credibility determination was key to rejecting defendant's apportionment claim and affirming permanent total disability for applicant.

From the decision · page 7"...[I]n review of the reports from Dr. Michael Einbund, Applicant's Treating Physician and Dr. Soheil Aval, Defendants' Orthopedic Qualified Medical Evaluator, it is found that Dr. Einbund's reporting is more persuasive. Dr. Aval's reporting contained some inconsistencies. Further, Dr. Einbund has been treating the Applicant shortly after his injury of July 17, 2000. He has thus been treating with Dr. Einbund, for quite some time and has seen him dozens of times (MOH/SOE 08/26/2024, page 3, lines 10-12). Given the comprehensive and well- reasoned reporting of Dr. Einbund, the fact that the Applicant's testimony substantiated Dr. Einbund's findings, and Dr. Luis Mas reporting, also supported Dr. Einbund's findings, it is found that Dr. Einbund's opinions, rise to the level [of] substantial medical evidence. Ultimately Dr. Einbund, opines that "...in my medical opinion, the patient is unable to compete in an open labor market at this time as he is on morphine prescribed by his pain management specialist." (Exhibit 2, 3/16/2022, page 27).

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.

PTPRelied upon

Applicant is permanently totally disabled and unable to compete in the open labor market due to morphine use for pain management.

The WCJ found Dr. Einbund's opinion substantial medical evidence and more persuasive than defendant's medical evaluator.

From the decision · page 7"...[I]n review of the reports from Dr. Michael Einbund, Applicant's Treating Physician and Dr. Soheil Aval, Defendants' Orthopedic Qualified Medical Evaluator, it is found that Dr. Einbund's reporting is more persuasive. Dr. Aval's reporting contained some inconsistencies. Further, Dr. Einbund has been treating the Applicant shortly after his injury of July 17, 2000. He has thus been treating with Dr. Einbund, for quite some time and has seen him dozens of times (MOH/SOE 08/26/2024, page 3, lines 10-12). Given the comprehensive and well- reasoned reporting of Dr. Einbund, the fact that the Applicant's testimony substantiated Dr. Einbund's findings, and Dr. Luis Mas reporting, also supported Dr. Einbund's findings, it is found that Dr. Einbund's opinions, rise to the level [of] substantial medical evidence. Ultimately Dr. Einbund, opines that "...in my medical opinion, the patient is unable to compete in an open labor market at this time as he is on morphine prescribed by his pain management specialist." (Exhibit 2, 3/16/2022, page 27).

QMERejected · orthopedic

Defendant's medical evaluator whose reports were found less credible and inconsistent by the WCJ.

The WCJ found Dr. Aval's reports inconsistent and less persuasive than applicant's treating physician.

From the decision · page 7"...[I]n review of the reports from Dr. Michael Einbund, Applicant's Treating Physician and Dr. Soheil Aval, Defendants' Orthopedic Qualified Medical Evaluator, it is found that Dr. Einbund's reporting is more persuasive. Dr. Aval's reporting contained some inconsistencies. Further, Dr. Einbund has been treating the Applicant shortly after his injury of July 17, 2000. He has thus been treating with Dr. Einbund, for quite some time and has seen him dozens of times (MOH/SOE 08/26/2024, page 3, lines 10-12). Given the comprehensive and well- reasoned reporting of Dr. Einbund, the fact that the Applicant's testimony substantiated Dr. Einbund's findings, and Dr. Luis Mas reporting, also supported Dr. Einbund's findings, it is found that Dr. Einbund's opinions, rise to the level [of] substantial medical evidence. Ultimately Dr. Einbund, opines that "...in my medical opinion, the patient is unable to compete in an open labor market at this time as he is on morphine prescribed by his pain management specialist." (Exhibit 2, 3/16/2022, page 27).

QMERelied upon

Medical evaluator whose reports were found more persuasive than defendant's medical evaluators.

The WCJ found Dr. Greenzang's reports more persuasive than defendant's.

From the decision · page 7Additionally, after review of all the medical reporting submitted into evidence, it is found that Applicant's reporting of Dr. Ted Greenzang, and Dr. Garo Tertzakian are also more persuasive than that of Defendants' reporting."

QMERelied upon

Medical evaluator whose reports were found more persuasive than defendant's medical evaluators.

The WCJ found Dr. Tertzakian's reports more persuasive than defendant's.

From the decision · page 7Additionally, after review of all the medical reporting submitted into evidence, it is found that Applicant's reporting of Dr. Ted Greenzang, and Dr. Garo Tertzakian are also more persuasive than that of Defendants' reporting."

vocational_expertRelied upon

Vocational expert who opined applicant cannot be retrained or return to the labor market, supporting permanent total disability finding.

The WCJ gave great weight to Dr. Mas's vocational opinion supporting permanent total disability.

From the decision · page 11We find no basis to question the WCJ's reliance on the vocational reporting of Dr. Mas, who concluded that applicant cannot be retrained for a position on the open labor market, is unable to return to the labor market, and would not be able to pass an employment drug test. (Opinion, at p. 9.) Dr. Einbund agreed with this assessment, noting that "...in my medical opinion, the patient is unable to compete in an open labor market at this time as he is on morphine prescribed by his pain management specialist." (Applicant's Exb. 2, at p. 27.) Applicant has thus presented substantial vocational evidence, which rebuts the scheduled permanent disability rating of 99%. (Nunes I, supra, 88 Cal.Comp.Cases 741.) Accordingly, for the reasons stated in the Report and the Opinion on Decision, we are persuaded that the WCJ's analysis follows the more specific and detailed framework of section 4660 as required by Fitzpatrick and that the WCJ's finding that applicant is permanently totally disabled must be affirmed.

The rules the panel named

Authorities as the decision cited them, with how this panel applied each one.

Lab. Code, 4663(a)

Apportionment of permanent disability shall be based on causation.

The WCJ applied this standard in denying defendant's apportionment claim.

From the decision · page 8We find no legal basis for this request. Defendant holds the burden of proof on apportionment of permanent disability, and here, defendant failed to meet its burden of proof to establish apportionment. (Lab. Code, § 5705; Escobedo, supra, 70 Cal.Comp.Cases at p. 613.) As discussed above, the WCJ concluded that the reporting of applicant's witnesses constituted substantial medical evidence, while the reporting of defendant's medical witnesses did not. (Opinion, at p. 10.) Based on this finding, the WCJ explained that "the more persuasive reports have found that the applicant's disability is 100% apportioned to this industrial injury [in case number ADJ4336912]. Therefore, Defendant's [sic] have failed to meet their burden of proof to establish apportionment." (Opinion, at p. 10.)

Lab. Code, 5705; Escobedo v. Marshalls, 70 Cal.Comp.Cases 604; Gay v. Workers' Comp. Appeals Bd., 96 Cal.App.3d 555

Defendant bears the burden of proof on apportionment of permanent disability and must demonstrate a legal basis based on reasonable medical probability.

The WCJ found defendant failed to meet this burden to establish apportionment.

From the decision · page 8We find no legal basis for this request. Defendant holds the burden of proof on apportionment of permanent disability, and here, defendant failed to meet its burden of proof to establish apportionment. (Lab. Code, § 5705; Escobedo, supra, 70 Cal.Comp.Cases at p. 613.) As discussed above, the WCJ concluded that the reporting of applicant's witnesses constituted substantial medical evidence, while the reporting of defendant's medical witnesses did not. (Opinion, at p. 10.) Based on this finding, the WCJ explained that "the more persuasive reports have found that the applicant's disability is 100% apportioned to this industrial injury [in case number ADJ4336912]. Therefore, Defendant's [sic] have failed to meet their burden of proof to establish apportionment." (Opinion, at p. 10.)

E.L. Yeager Construction v. Workers' Comp. Appeals Bd. (Gatten) (2006) 145 Cal.App.4th 922; McAllister v. Workmen's Comp. Appeals Bd. (1968) 69 Cal.2d 408

A medical opinion must be predicated on reasonable medical probability and not be speculative to constitute substantial evidence.

The WCJ found applicant's medical opinions met this standard and were substantial evidence.

From the decision · page 5To be considered substantial evidence, a medical opinion "must be predicated on reasonable medical probability." (E.L. Yeager Construction v. Workers' Comp. Appeals Bd. (Gatten) (2006) 145 Cal.App.4th 922, 928 [71 Cal.Comp.Cases 1687]; McAllister v. Workmen's Comp. Appeals Bd. (1968) 69 Cal.2d 408, 413, 416§ 417, 419 [33 Cal.Comp.Cases 660].) A physician's report must also 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. (Gatten, supra, 145 Cal.App.4th at p. 928; Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 612 (Appeals Board en banc), 70

ADJ4336912 · April 21, 2025

What the panel ordered

What was disputed, and how it came out

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The facts that decided it

What the panel did with the medical opinions

The rules the panel named

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