What the panel ordered
Findings, Award and Order affirmed as amended: permanent disability increased to 64% without apportionment; value of award deferred pending section 4658(d) determination; no additional TTD or Kite addition method applied.
Applicant sought reconsideration of the WCJ's Findings, Award and Order dated June 21, 2021, which found 54% permanent disability, denied addition method under Kite, found apportionment, and set earnings and TTD periods. The WCAB granted reconsideration to further study the issues.
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.
No evidence of amputation or comparable defect; no basis for additional TTD under Parco.
From the decision · page 11Furthermore, Petitioner argues that applicant should be awarded an additional "490 weeks of TTD" (Pet Recon pg 6, ln 3), without offering any evidence, authority or argument to support this position. Therefore, it is the undersigned's opinion that based on the above, Parco is not applicable in this matter as applicant did not suffer an "amputation" nor did Petitioner offer evidence that supported her contention....
No substantial medical evidence supported addition method; AME did not provide Kite analysis.
From the decision · page 9Petitioner fails to recognize that parties jointly agreed to utilize an Agreed Medical Examiner. It is the AME, Dr. Sofia who is silent on this matter. In fact, every medical report offered is silent as to Kite. In Kite, the WCJ relied upon the opinion of a qualified medical evaluator who found there was a "synergistic effect" of the injury to the bilateral hips versus body parts from different regions. Unlike the QME in Kite, Dr. Sofia provided an impairment and states "I believe the above impairments are accurate and reasonable per the Almaraz-Guzman decision" (Jnt Ex W, pg 10). Dr. Sofia offered no discussion indicating Kite applied. It is well known that the determination as to whether the final permanent disability is rated using the combined values chart versus the addition, is based upon the medical evidence. As in Kite, impairments may be added if substantial medical evidence supports the physician's opinion that adding them will result in a more accurate rating. In this instance, Dr. Sofia did not provide a Kite analysis and was clear that the rating provided was "accurate and reasonable". Even the prior AME, Dr. Zarins provided a strict rating and did not offer a Kite analysis. Therefore, there is no basis to support Petitioner's contention of a "Kite Application".
The AME's apportionment opinions were not substantial evidence; permanent disability rated at 64% without apportionment.
From the decision · page 6Accordingly, we agree with applicant that Dr. Sofia's apportionment conclusions do not constitute substantial evidence. Utilizing the ratings provided by the WCJ in the Opinion on Decision, applicant's permanent disability for the August 8, 2007 specific injury (ADJ6604551) rates as follows without apportionment:5
PTP and vocational reports not substantial evidence; AME did not find 100% disability; no credible evidence of total permanent disability.
From the decision · page 12Now, Petitioner further argues that as to the claim of 100% permanent disability, the applicant's primary treating physician, Dr. Biama is better qualified to assess applicant's condition yet only offered a two paragraph declaration of his conclusion. The Declaration is a simple conclusion and fails to address industrial and non-industrial causation and apportionment, and is silent on any discussion on how he reached that conclusion. Petitioner did not offer any of Dr. Biama's medical reports for review or consideration. Nor did Petitioner offer evidence which includes a discussion of causation by Dr. Biama.... The Court of Appeal in Contra Costa County vs. Workers' Compensation Appeals Board (Dahl) (2015) 80 Cal.Comp.Cases 1119, discussing Ogilvie, stated "[t]he court interpreted LeBoeuf and its progeny as limited in application `to cases where the employee's diminished future earnings are directly attributable to the employee's work-related injury, and not to nonindustrial factors'". In this instance, based on the findings of the Agreed Medical Examiner, Dr. Sofia, the applicant is not found to be 100% disabled. No evidence was offered at Trial, providing any discussion as to a finding of 100% or what contributed to Dr. Biama's conclusions in his Declaration.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Dr. Sofia's apportionment opinions lacked adequate explanation and were not substantial evidence.
Favours Applicant prevailed
Led to rejection of apportionment and rating of 64% permanent disability without apportionment.
From the decision · page 6Accordingly, we agree with applicant that Dr. Sofia's apportionment conclusions do not constitute substantial evidence. Utilizing the ratings provided by the WCJ in the Opinion on Decision, applicant's permanent disability for the August 8, 2007 specific injury (ADJ6604551) rates as follows without apportionment:5
No substantial medical evidence supported addition method under Kite.
Favours Defendant prevailed
Resulted in use of CVC rather than addition method for impairment ratings.
From the decision · page 9Petitioner fails to recognize that parties jointly agreed to utilize an Agreed Medical Examiner. It is the AME, Dr. Sofia who is silent on this matter. In fact, every medical report offered is silent as to Kite. In Kite, the WCJ relied upon the opinion of a qualified medical evaluator who found there was a "synergistic effect" of the injury to the bilateral hips versus body parts from different regions. Unlike the QME in Kite, Dr. Sofia provided an impairment and states "I believe the above impairments are accurate and reasonable per the Almaraz-Guzman decision" (Jnt Ex W, pg 10). Dr. Sofia offered no discussion indicating Kite applied. It is well known that the determination as to whether the final permanent disability is rated using the combined values chart versus the addition, is based upon the medical evidence. As in Kite, impairments may be added if substantial medical evidence supports the physician's opinion that adding them will result in a more accurate rating. In this instance, Dr. Sofia did not provide a Kite analysis and was clear that the rating provided was "accurate and reasonable". Even the prior AME, Dr. Zarins provided a strict rating and did not offer a Kite analysis. Therefore, there is no basis to support Petitioner's contention of a "Kite Application".
No evidence of amputation or comparable defect from knee replacement.
Favours Defendant prevailed
No entitlement to additional TTD under Parco exception.
From the decision · page 11Furthermore, Petitioner argues that applicant should be awarded an additional "490 weeks of TTD" (Pet Recon pg 6, ln 3), without offering any evidence, authority or argument to support this position. Therefore, it is the undersigned's opinion that based on the above, Parco is not applicable in this matter as applicant did not suffer an "amputation" nor did Petitioner offer evidence that supported her contention....
PTP and vocational reports lacked analysis and were not substantial evidence for 100% disability.
Favours Defendant prevailed
Claim for permanent total disability was rejected.
From the decision · page 12Now, Petitioner further argues that as to the claim of 100% permanent disability, the applicant's primary treating physician, Dr. Biama is better qualified to assess applicant's condition yet only offered a two paragraph declaration of his conclusion. The Declaration is a simple conclusion and fails to address industrial and non-industrial causation and apportionment, and is silent on any discussion on how he reached that conclusion. Petitioner did not offer any of Dr. Biama's medical reports for review or consideration. Nor did Petitioner offer evidence which includes a discussion of causation by Dr. Biama.... The Court of Appeal in Contra Costa County vs. Workers' Compensation Appeals Board (Dahl) (2015) 80 Cal.Comp.Cases 1119, discussing Ogilvie, stated "[t]he court interpreted LeBoeuf and its progeny as limited in application `to cases where the employee's diminished future earnings are directly attributable to the employee's work-related injury, and not to nonindustrial factors'". In this instance, based on the findings of the Agreed Medical Examiner, Dr. Sofia, the applicant is not found to be 100% disabled. No evidence was offered at Trial, providing any discussion as to a finding of 100% or what contributed to Dr. Biama's conclusions in his Declaration.
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.
Apportioned 20% of shoulder disability and 25% of knee disability to non-industrial causes, but did not adequately explain basis; did not find 100% disability; did not support Kite addition method.
WCAB found Dr. Sofia's apportionment opinions not substantial evidence; relied on his impairment ratings without apportionment.
From the decision · page 6Accordingly, we agree with applicant that Dr. Sofia's apportionment conclusions do not constitute substantial evidence. Utilizing the ratings provided by the WCJ in the Opinion on Decision, applicant's permanent disability for the August 8, 2007 specific injury (ADJ6604551) rates as follows without apportionment:5
Stated applicant is 100% permanently disabled and needs total knee replacement; opinion not supported by analysis or discussion of causation/apportionment.
WCAB found Dr. Biama's declaration was a simple conclusion, not substantial evidence.
From the decision · page 12Now, Petitioner further argues that as to the claim of 100% permanent disability, the applicant's primary treating physician, Dr. Biama is better qualified to assess applicant's condition yet only offered a two paragraph declaration of his conclusion. The Declaration is a simple conclusion and fails to address industrial and non-industrial causation and apportionment, and is silent on any discussion on how he reached that conclusion. Petitioner did not offer any of Dr. Biama's medical reports for review or consideration. Nor did Petitioner offer evidence which includes a discussion of causation by Dr. Biama.... The Court of Appeal in Contra Costa County vs. Workers' Compensation Appeals Board (Dahl) (2015) 80 Cal.Comp.Cases 1119, discussing Ogilvie, stated "[t]he court interpreted LeBoeuf and its progeny as limited in application `to cases where the employee's diminished future earnings are directly attributable to the employee's work-related injury, and not to nonindustrial factors'". In this instance, based on the findings of the Agreed Medical Examiner, Dr. Sofia, the applicant is not found to be 100% disabled. No evidence was offered at Trial, providing any discussion as to a finding of 100% or what contributed to Dr. Biama's conclusions in his Declaration.
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Exception to 104-week TTD limit applies for amputation or comparable loss.
No evidence of amputation or comparable defect; exception not met.
From the decision · page 11Furthermore, Petitioner argues that applicant should be awarded an additional "490 weeks of TTD" (Pet Recon pg 6, ln 3), without offering any evidence, authority or argument to support this position. Therefore, it is the undersigned's opinion that based on the above, Parco is not applicable in this matter as applicant did not suffer an "amputation" nor did Petitioner offer evidence that supported her contention....
Labor Code section 4663; Escobedo v. Marshalls (2005); Gay v. Workers' Comp. Appeals Bd. (1979)
Employer must prove apportionment based on reasonable medical probability; medical opinions must constitute substantial evidence.
Applied to reject AME's apportionment opinions as not substantial evidence.
From the decision · page 4While the employee holds the burden of proof regarding the approximate percentage of permanent disability directly caused by the industrial injury, the employer holds the burden of proof to show apportionment of permanent disability. (Lab. Code, § 5705; see also Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 613 (Appeals Board en banc), Pullman Kellogg v. Workers' Comp. Appeals Bd. (Normand) (1980) 26 Cal.3d 450 [45 Cal.Comp.Cases 170].) To meet this burden, the employer "must demonstrate that, based upon reasonable medical probability, there is a legal basis for apportionment." (Gay v. Workers' Comp. Appeals Bd. (1979) 96 Cal.App.3d 555, 564 [44 Cal.Comp.Cases 817]; see also Escobedo, supra, 70 Cal.Comp.Cases at p. 620.)
Athens Administrators v. WCAB (Kite)
Impairments may be added if substantial medical evidence supports that addition is more accurate (Kite).
No substantial evidence for addition method; CVC applied.
From the decision · page 9Petitioner fails to recognize that parties jointly agreed to utilize an Agreed Medical Examiner. It is the AME, Dr. Sofia who is silent on this matter. In fact, every medical report offered is silent as to Kite. In Kite, the WCJ relied upon the opinion of a qualified medical evaluator who found there was a "synergistic effect" of the injury to the bilateral hips versus body parts from different regions. Unlike the QME in Kite, Dr. Sofia provided an impairment and states "I believe the above impairments are accurate and reasonable per the Almaraz-Guzman decision" (Jnt Ex W, pg 10). Dr. Sofia offered no discussion indicating Kite applied. It is well known that the determination as to whether the final permanent disability is rated using the combined values chart versus the addition, is based upon the medical evidence. As in Kite, impairments may be added if substantial medical evidence supports the physician's opinion that adding them will result in a more accurate rating. In this instance, Dr. Sofia did not provide a Kite analysis and was clear that the rating provided was "accurate and reasonable". Even the prior AME, Dr. Zarins provided a strict rating and did not offer a Kite analysis. Therefore, there is no basis to support Petitioner's contention of a "Kite Application".
Contra Costa County v. WCAB (Dahl)
Total permanent disability requires credible evidence directly attributable to work injury, not nonindustrial factors.
PTP and vocational reports not substantial evidence; AME did not find 100% disability.
From the decision · page 12Now, Petitioner further argues that as to the claim of 100% permanent disability, the applicant's primary treating physician, Dr. Biama is better qualified to assess applicant's condition yet only offered a two paragraph declaration of his conclusion. The Declaration is a simple conclusion and fails to address industrial and non-industrial causation and apportionment, and is silent on any discussion on how he reached that conclusion. Petitioner did not offer any of Dr. Biama's medical reports for review or consideration. Nor did Petitioner offer evidence which includes a discussion of causation by Dr. Biama.... The Court of Appeal in Contra Costa County vs. Workers' Compensation Appeals Board (Dahl) (2015) 80 Cal.Comp.Cases 1119, discussing Ogilvie, stated "[t]he court interpreted LeBoeuf and its progeny as limited in application `to cases where the employee's diminished future earnings are directly attributable to the employee's work-related injury, and not to nonindustrial factors'". In this instance, based on the findings of the Agreed Medical Examiner, Dr. Sofia, the applicant is not found to be 100% disabled. No evidence was offered at Trial, providing any discussion as to a finding of 100% or what contributed to Dr. Biama's conclusions in his Declaration.
What proof carried it
The evidence the panel weighed, by kind.
Dr. Sofia's apportionment opinions lacked adequate explanation and were not substantial evidence.
From the decision · page 6Accordingly, we agree with applicant that Dr. Sofia's apportionment conclusions do not constitute substantial evidence. Utilizing the ratings provided by the WCJ in the Opinion on Decision, applicant's permanent disability for the August 8, 2007 specific injury (ADJ6604551) rates as follows without apportionment:5
PTP and vocational reports lacked analysis and were not substantial evidence for 100% disability.
From the decision · page 12Now, Petitioner further argues that as to the claim of 100% permanent disability, the applicant's primary treating physician, Dr. Biama is better qualified to assess applicant's condition yet only offered a two paragraph declaration of his conclusion. The Declaration is a simple conclusion and fails to address industrial and non-industrial causation and apportionment, and is silent on any discussion on how he reached that conclusion. Petitioner did not offer any of Dr. Biama's medical reports for review or consideration. Nor did Petitioner offer evidence which includes a discussion of causation by Dr. Biama.... The Court of Appeal in Contra Costa County vs. Workers' Compensation Appeals Board (Dahl) (2015) 80 Cal.Comp.Cases 1119, discussing Ogilvie, stated "[t]he court interpreted LeBoeuf and its progeny as limited in application `to cases where the employee's diminished future earnings are directly attributable to the employee's work-related injury, and not to nonindustrial factors'". In this instance, based on the findings of the Agreed Medical Examiner, Dr. Sofia, the applicant is not found to be 100% disabled. No evidence was offered at Trial, providing any discussion as to a finding of 100% or what contributed to Dr. Biama's conclusions in his Declaration.
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