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.
AMERelied upon · physical medicine and rehabilitation
Dr. Miner concluded that the combination of the two motor vehicle accidents rendered the applicant competitively unemployable and noncompetitive in the open labor market even before the second injury.
Her opinion was relied upon by the Board as substantial evidence of permanent disability without apportionment to the second injury.
From the decision · page 16Dr. Maureen D. Miner served as the first AME in the specialty of physical medicine and
rehabilitation. In a report dated April 12, 2018, Dr. Miner concluded that "[f]rom the functional
perspective, it is clear that the combination of the two unfortunate motor vehicle accidents puts
the applicant in a competitively unemployable state." (Applicant's exhibit 9, p. 21.) Before that
report, however, Dr. Miner had testified in her (second) deposition of February 26, 2018 that if
applicant's employer had released him the day before the second accident, the doctor would have
found him noncompetitive in the open labor market. (Applicant's exhibit 11, p. 134.) Dr. Miner
apparently considered applicant incapable of any employment even without considering his brain
injury, which is not within her area of expertise.
vocational_expertRelied upon
Dr. Van de Bittner concluded that the applicant was not able to benefit from vocational rehabilitation and was permanently and totally disabled due to the first injury alone.
His opinion was relied upon by the Board as substantial evidence supporting permanent and total disability from the first injury alone.
From the decision · page 16In an evaluation dated March 15, 2018, applicant's vocational expert, Eugene E. Van de Bittner,
PhD., reviewed the then-extant medical record, including Dr. Miner's reports and depositions. Dr.
Van de Bittner concluded that applicant was not able to benefit from vocational rehabilitation
services and had no capacity to be amenable to rehabilitation. (Applicant's exhibit 24, p. 83.) [...]
In his deposition of May 23, 2018, Dr. Van de Bittner elaborated further, testifying that "it is clear
from the entire combination of medical, neuropsychological, psychological, vocational and labor
market factors that [applicant] was totally disabled based on the effects of the April 26, 2010 injury,
alone." (Applicant's exhibit 51, p. 13.) Dr. Van de Bittner also testified that the job applicant was
doing when he was injured in the second motor vehicle accident was especially designed for him.
AMERejected · neuropsychology
Dr. Munday apportioned 85% of disability to the first injury and 15% to the second injury but provided no medical explanation for this apportionment, which the Board found insufficient as substantial evidence.
The Board rejected Dr. Munday's apportionment opinion for lack of medical explanation and reasoning.
From the decision · page 14As discussed above, Dr. Munday, in his very first report of August 29, 2011, apportioned disability
85% and 15% between the first and second motor vehicle accidents/injuries. Thereafter, the doctor
never changed his mind despite applicant's fluctuating medical condition and the varying opinions
of other medical and vocational evaluators. More importantly, Dr. Munday gave no medical
reason for his 85-15 apportionment percentages in his August 29, 2011 report or in his subsequent
report dated July 9, 2012. In both reports, the doctor referred to the second injury as a "mild
aggravation" of the first injury. From the outset, Dr. Munday's failure to provide medical reasons
for apportionment between the two injuries undermines the substantiality of his opinion, which
does not comply with the requirements of substantial evidence as outlined by the Board in
Escobedo:
AMERejected · Physical Medicine and Rehabilitation
Dr. Feinberg adopted Dr. Munday's apportionment ratio without providing independent justification, which the Board found flawed and insufficient as substantial evidence.
The Board rejected Dr. Feinberg's apportionment opinion for lack of independent reasoning and failure to meet substantial evidence standards.