ADJ8828773 — California WCAB decision

What the panel ordered

The Workers' Compensation Appeals Board affirmed the October 15, 2021 Findings and Award, denying the Petitions for Reconsideration filed by both parties.

Petitions for reconsideration of the October 15, 2021 Findings and Award were filed by both applicant and defendant, and the WCJ prepared separate Reports and Recommendations on the Petitions, recommending denial of both.

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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.

Statute of limitationsApplicant prevailed

The WCJ found the date of injury to be March 24, 2014, based on the first report by Dr. Einbund, and that compensation was not barred by the statute of limitations because the claim was filed within one year of that date.

From the decision · page 2On October 15, 2021, the WCJ issued the F&A, determining in relevant part that applicant had met his burden of establishing injury AOE/COE. (Finding of Fact No. 3.) The WCJ determined that the date of injury was March 24, 2014, and that compensation was not barred by the statute of

Permanent disability rating

The facts that decided it

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

Applicant did not know he had a cumulative trauma injury or that it was work-related until the report of Dr. Einbund on March 24, 2014.

Favours Applicant prevailed

This fact supported the finding that the date of injury was March 24, 2014, and that the claim was not barred by the statute of limitations.

From the decision · page 5This finding was based on applicant's testimony at trial that he did not know what a cumulative trauma injury was or that he sustained a cumulative trauma injury until the time of his appointment with Dr. Einbund. (Summary of Evidence dated July 20, 2021 pages 5 and 15.) The applicant could not have been give notice by the employer for this date of injury.

Defendant did not meet its burden to prove apportionment to nonindustrial factors beyond 5% to a prior injury.

Favours Applicant prevailed

This supported the award of 87% permanent disability with 5% apportionment to a prior injury.

From the decision · page 7Here, the WCJ has relied upon the reporting of applicant's evaluating orthopedist Dr. Einbund and defendant's evaluating neurologist Dr. Glatstein, and based thereon, entered an award of permanent disability. (Finding of Fact No. 8.) The WCJ has further determined that aside from the right knee apportionment, defendant has not met its burden of establishing apportionment to factors other than the industrial injury. (Finding of Fact No. 9.) Other than asserting that the lack of apportionment is per se "unreasonable," Defendant's Petition cites to no medical reporting in evidence that adequately addresses or supports apportionment to prior industrial or nonindustrial

Applicant's testimony and lack of medical evidence supported the finding that temporary total disability from April 14, 1975 to July 13, 1975 was not established.

Favours Defendant prevailed

This supported the denial of temporary total disability benefits for that period.

From the decision · page 9With regard to the claim of temporary total disability for the period April 14, 1975 through July 13, 1975, the Court found the opinions by Applicant QME to be speculative and not based on substantial medical evidence. The applicant testified that while he was off work with the Memphis Sound, he received salary continuation. (Summary of Evidence dated July 20, 2021 page 8) It is unclear what period of time he received salary continuation.

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.

QMERelied upon · orthopedic medicine

Opined that applicant sustained permanent disability and that the condition became permanent and stationary approximately two to three months after retirement from professional basketball, but later noted worsening condition and a new permanent and stationary date in 2019.

From the decision · page 3limitations. (Findings of Fact, Nos. 4, 5.) The WCJ determined that applicant's injuries caused 87 percent permanent partial disability after apportionment of 5 percent of applicant's right knee disability to a prior injury, and that permanent disability indemnity payments commenced on March 24, 2014. (Findings of Fact, Nos. 8, 9.) The WCJ's Opinion on Decision explained that the conclusions reached by applicant's orthopedic evaluator were not substantial evidence to support the award of temporary disability. (Opinion on Decision, at p. 12.) The WCJ reviewed the submitted medical record and ultimately determined that the reports of Drs. Einbund and Glatstein were the most persuasive. Based thereon, the WCJ determined that applicant sustained 87 percent permanent disability with 5 percent apportionment of applicant's right knee disability. (Id. at pp. 15-16.)

QMERelied upon · neurology

One of the most persuasive medical reports relied upon by the WCJ in determining permanent disability and apportionment.

From the decision · page 3limitations. (Findings of Fact, Nos. 4, 5.) The WCJ determined that applicant's injuries caused 87 percent permanent partial disability after apportionment of 5 percent of applicant's right knee disability to a prior injury, and that permanent disability indemnity payments commenced on March 24, 2014. (Findings of Fact, Nos. 8, 9.) The WCJ's Opinion on Decision explained that the conclusions reached by applicant's orthopedic evaluator were not substantial evidence to support the award of temporary disability. (Opinion on Decision, at p. 12.) The WCJ reviewed the submitted medical record and ultimately determined that the reports of Drs. Einbund and Glatstein were the most persuasive. Based thereon, the WCJ determined that applicant sustained 87 percent permanent disability with 5 percent apportionment of applicant's right knee disability. (Id. at pp. 15-16.)

QMENot substantial evidence · orthopedic medicine

Defense QME whose report did not support apportionment to prior industrial or nonindustrial factors beyond that identified by the WCJ.

Report did not support apportionment beyond that found by the WCJ.

From the decision · page 8factors. (Defendant's Petition, at p. 6:23.) And following our independent review of the entire evidentiary record occasioned by defendant's petition, including the November 14, 2019 reporting of defense QME Dr. Nagelberg, we also discern none. (Ex. F, Report of Steven Nagelberg, M.D., dated November 15, 2019, at p. 36.) We therefore decline to disturb the WCJ's determination with respect to both permanent disability and apportionment.

The rules the panel named

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

Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 621 (Appeals Bd. en banc)

A medical opinion must be framed in terms of reasonable medical probability, not be speculative, and be based on pertinent facts and adequate examination and history to constitute substantial evidence.

The WCJ applied this standard to reject the applicant's QME's opinion on temporary disability as speculative and unsupported by substantial evidence.

From the decision · page 8Decisions of the WCJ and the Workers' Compensation Appeals Board must be supported by substantial evidence. (Lab. Code, § 5903, 5952(d); Lamb v. Workmen's Comp. Appeals Bd. (1974) 11 Cal.3d 274 [39 Cal.Comp.Cases 310]; Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312 [35 Cal.Comp.Cases 500]; LeVesque v. Workmen's Comp. Appeals Bd. (1970) 1 Cal.3d 627 [35 Cal.Comp.Cases 16].) To constitute substantial evidence "a medical opinion must 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." (Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 621 (Appeals Board en banc).) Not all expert medical opinion constitutes substantial evidence. (Hegglin v. Workmen's Comp. Appeals Bd. (1971) 4 Cal.3d 162 [36 Cal.Comp.Cases 93, 97]; Place v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 372, 378-379 [35 Cal.Comp.Cases 525].) To constitute substantial evidence, a medical opinion must be predicated on reasonable medical

Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 613 (Appeals Bd. en banc)

The burden of proof for apportionment to nonindustrial factors lies with the defendant, and the WCJ may choose among conflicting medical reports to rely on the most persuasive.

The WCJ applied this standard to find defendant did not meet burden to prove apportionment beyond 5% to a prior injury.

From the decision · page 7Moreover, while applicant bears the burden of establishing the approximate percentage of permanent disability caused by the industrial injury, it is defendant that bears the burden of establishing the approximate percentage of permanent disability caused by factors other than the industrial injury. (Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 613 (Appeals Bd. en banc).) In addition, the WCJ and the Appeals Board are empowered to choose among conflicting medical and vocational reports and rely on that which is deemed most persuasive. (Jones v. Workmen's Comp. Appeals Bd. (1968) 68 Cal.2d 476 [33 Cal.Comp.Cases 221].)

Peter Kiewit Sons v. Industrial Acci. Com. (McLaughlin) (1965) 234 Cal.App.2d 831

Expert medical opinion is generally required to establish causation and compensability of back injuries, as lay judgment is insufficient.

The WCJ relied on expert medical opinion to determine the date of injury and compensability of cumulative trauma injury.

From the decision · page 6four years. Despite applicant describing similar low back complaints arising out of all three employments, the IAC assessed liability to the terminal employer alone. In granting review of the IAC decision, however, the Court of Appeal found "[t]hat issue may run a gamut from the blatantly obvious to the scientifically obscure," and that expert testimony would be necessary. "Back disabilities in particular shout loudly for expert advice... [i]n a field which forces the experts into hypothesis, unaided lay judgment amounts to nothing more than speculation." (Id. at pp. 839-840.) Accordingly, "the medical cause of an ailment is usually a scientific question, requiring a judgment based upon scientific knowledge and inaccessible to the unguided rudimentary capacities of lay arbiters." (Peter Kiewit Sons v. Industrial Acci. Com. (McLaughlin) (1965) 234 Cal.App.2d 831, 839 [30 Cal.Comp.Cases 188].)

What proof carried it

The evidence the panel weighed, by kind.

Testimony and credibilityfavours Applicant prevailed

Applicant's testimony that he did not know what a cumulative trauma injury was or that he sustained one until his appointment with Dr. Einbund.

From the decision · page 5This finding was based on applicant's testimony at trial that he did not know what a cumulative trauma injury was or that he sustained a cumulative trauma injury until the time of his appointment with Dr. Einbund. (Summary of Evidence dated July 20, 2021 pages 5 and 15.) The applicant could not have been give notice by the employer for this date of injury.

Testimony and credibilityfavours Applicant prevailed

Applicant's testimony that he experienced aches and pains during his basketball career but did not consider them severe injuries and thought his worsening condition was due to pain tolerance.

From the decision · page 6Here, applicant testified that prior to filing his claim in 2014, he did not know what a cumulative injury was. (Transcript of Proceedings, dated July 20, 2021, at p.11:23.) Consequently, applicant was unaware that his current problems arose out of a cumulative injury. (Id. at p. 12:1.) On the other hand, applicant acknowledged that over his career in professional sports between 1972 and 1975, he "knew he was wearing down," but also that "I don't know if I would call it injured." (Id. at p. 66:5.) Applicant testified that toward the end of his professional sports career that he "couldn't have played at a level that I wanted to play at." (Id. at p. 64:18.) During his time playing professional basketball, applicant experienced aches and pains, but that "I'd recover and, like I said earlier, I recovered. I felt fine for a while and then gradually, you know, the wear and tear made it worse." (Id. at p. 66:13.) When asked whether he thought contemporaneously that he had sustained an injury to his low back, applicant testified "You know, I had aches and pains, but I didn't think of it as being a severe injury." When asked if he knew his worsening was because of his basketball career, applicant testified "I thought it was more of my pain tolerance." (Id. at p. 66:16.)

Testimony and credibilityfavours Defendant prevailed

Applicant's testimony that he received salary continuation while off work with Memphis Sound and began work with Converse in the same year, conflicting with medical opinion of temporary total disability.