ADJ9097135 · January 12, 2026

Applicant is permanently and totally disabled with no apportionment; medical and vocational evidence supports no future earning capacity and non-amenability to vocational rehabilitation.

Applicant sustained injuries on October 29, 2008, July 21, 2009, and July 19, 2012, to neck, back, spine, psyche, and low back.

Favours Applicant prevailed

These injuries formed the basis for the permanent total disability award with no apportionment.

Medical and vocational evidence shows applicant is permanently and totally disabled, not amenable to vocational rehabilitation, and has no consistent and stable future earning capacity.

Favours Applicant prevailed

Supported the finding of permanent total disability and rejection of vocational expert's contrary opinion.

From the decision · page 22(Exhibit 16, emphasis added.) She concludes: After careful review and consideration of the applicant's physical and emotional work limitations, the dosage of medications that she is currently taking, and its side effects, along with her transferable skills, determined by SkillTRAN it is my professional opinion that solely based on her industrial related impairments and her industrial physical limitations that were provided in the medical reports of Dr. Stephen M. Pfeiffer, Dr. Gerald H. Markovitz, Dr. Susan Sprau, Dr. Kevin Yoo, and Dr. Raphael Morris, the applicant is not amenable to vocational rehabilitation. the applicant is not able to sustain gainful employment and therefore she is not able to compete in the open labor market. As a direct result of her industrial-related impairments provided by considering her pre-injury capacity and abilities, the applicant has at present no consistent and stable future earning capacity.

Applicant's primary psychological disturbance caused by industrial and slight nonindustrial factors; applicant is permanently totally disabled from working at the prison; apportionment to non-industrial role not supported.

The doctor does not explain apportionment in light of positive aspects of the non-industrial role, making the apportionment opinion not substantial evidence.

From the decision · page 25For psychiatric impairment, however, Dr. Pfeiffer finds 10% apportionment to applicant's non-industrial role as primary caretaker of four grandchildren. This apportionment opinion, however, fails to set forth reasoning in support of its conclusions and therefore defendants fail in meeting their burden to establish psychiatric apportionment. This is because the doctor does not explain apportionment in light of his finding the "responsibility also contributes to her sense of meaning derived from serving the children as well as benefitting to from the love that emanates from the role of parent that she is now integrally involved in their lives." (Exhibit 9.) Dr. Pfieffer's apportionment determination is not substantial. (Escobedo, supra, at p. 607.)

Applicant has persistent low back pain, chronic pain syndrome, unable to perform employment activities, and is incapable of returning to work without surgical intervention.

The WCJ relied on Dr. Yoo's findings regarding applicant's inability to work due to chronic pain.

From the decision · page 530.) Dr. Yoo then stated that: It appears the applicant has persistent low back pain which can aslo [sic] be called a chronic pain syndrome. It appears she has tried to return to work with this condition and failed in continuing to work due to her pain symptoms. For this reason, I agree with Dr. Cleary insofar as her chronic back pain is now advanced to a stage where the patient is unable to perform the activities required of her employment. Without surgical intervention, my professional and medical opinion is that the applicant is, and will be, incapable of returning to work, even with modifications.

Applicant was permanent and stationary for low back injuries as of August 13, 2014.

From the decision · page 4On February 24, 2014, treating physician John Cleary, M.D., issued a report following his examination of applicant for the July 2008 and October 30, 2009 low back injuries. (Exhibit D, John Cleary, M.D., February 24, 2014.) On August 13, 2014, Dr. Cleary issued a report concluding that applicant was permanent and stationary for her low back in the July 2008 and October 30, 2009 injuries. (Exhibit B, John Cleary, M.D., August 13, 2014.)

Applicant is permanently totally disabled from working at the prison.

From the decision · page 4Over ten years ago, in 2015, agreed medical evaluator (AME) in psychiatry, Rapheal Morris, M.D., issued a report of his evaluation of applicant for June 9, 2005 date of injury. (Exhibit F, AME Rapheal Morris, M.D., July 1, 2015.)

Hegglin v. Workmen's Comp. Appeals Bd. (1971) 4 Cal.3d 162

Medical reports and opinions are not substantial evidence if they are known to be erroneous, speculative, or based on inadequate medical histories or incorrect legal theories.

Applied to reject vocational expert's unsupported conclusions.

From the decision · page 23"Medical reports and opinions are not substantial evidence if they are known to be erroneous, or if they are based on facts no longer germane, on inadequate medical histories and examinations, or on incorrect legal theories. Medical opinion also fails to support the Board's findings if it is based on surmise, speculation, conjecture or guess." (Hegglin v. Workmen's Comp. Appeals Bd. (1971) 4 Cal.3d 162, 169 [36 Cal.Comp.Cases 93].

Escobedo v. WCAB (2015) 80 Cal.Comp.Cases 597

A medical opinion on apportionment must be framed in terms of reasonable medical probability, based on pertinent facts and adequate examination, and must set forth reasoning in support of its conclusions.

Applied to evaluate apportionment opinions and reject unsupported psychiatric apportionment.

From the decision · page 25In Escobedo the Appeals Board also held that (1) section 4663 requires the reporting physician to make an apportionment determination; (2) apportionment to other factors allows apportionment to causation, including pathology, prior conditions, and retroactive work restrictions; (3) applicant holds the initial burden to prove industrial injury and also has the added burden of establishing the approximate percentage of permanent disability directly related to the industrial injury; (4) defendant has the burden of establishing the approximate permanent disability caused by other factors; and (5) a medical report addressing apportionment may not be relied upon unless it constitutes substantial evidence. (Escobedo, supra, at p. 607.)

Vocational expert Howard Goldfarb's report found no substantial evidence to support his conclusion that applicant could perform semisedentary and sedentary work, as it lacked explanation and contradicted medical opinions.