ADJ9174544 · September 29, 2025

The Appeals Board rescinded the left shoulder PD finding due to lack of substantial evidence and affirmed a final PD rating of 89% for the cumulative trauma injury based on the medical opinions of Dr. Abelow and Dr. Kearns.

From the decision · page 5(F&A, p.1.) However, when calculating the total PD for the cumulative trauma injury, the WCJ included an 11% WPI for the left shoulder which rates to 26% PD. (Opinion, p.6.) The WCJ did not offer any explanation as why she rated the left shoulder using an 11% WPI when the AME Dr. Abelow had found 6% WPI for the left shoulder. Moreover, the WCJ did not explain why she included the left shoulder impairment in the rating for the cumulative trauma injury when AME Dr. Abelow found 100% of the left shoulder impairment to be due to the prior industrial injury. (Applicant Exhibit 1, p.22.) The present record lacks substantial medical evidence to find impairment for the left shoulder as part of the cumulative trauma injury. There is also no evidence that the parties stipulated to the left shoulder as being accepted and that the left shoulder was ever a disputed body part. (MOH/SOE, p.2.) Thus, the finding of PD for the left shoulder must be rescinded and the final PD for the cumulative trauma injury is 89%.

Applicant sustained specific injury to left eye and cumulative trauma injury to cervical spine, lumbar spine, right shoulder, bilateral knees, and bilateral hearing loss.

Favours Applicant prevailed

This established the scope of injuries for which disability and benefits were awarded.

From the decision · page 1In the Findings and Award of December 1, 2021 (F&A), the workers' compensation administrative law judge (WCJ) found, in relevant part, that the applicant, while employed as an industrial painter by F.D. Thomas, Inc., sustained industrial injury to his left eye in ADJ9174557 (specific injury) and also sustained industrial injury to his cervical spine, lumbar spine, right shoulder, bilateral knees, and bilateral hearing loss in ADJ9174544 (cumulative trauma injury). The WCJ found that applicant's injuries entitled applicant to periods of temporary total disability (TTD), permanent disability (PD), and future medical treatment.

Medical evidence from Dr. Abelow and Dr. Kearns supported a permanent disability rating of 92%, but left shoulder PD was rescinded due to lack of substantial evidence.

Favours Applicant prevailed

This led to the final PD rating of 89% for the cumulative trauma injury.

From the decision · page 5(F&A, p.1.) However, when calculating the total PD for the cumulative trauma injury, the WCJ included an 11% WPI for the left shoulder which rates to 26% PD. (Opinion, p.6.) The WCJ did not offer any explanation as why she rated the left shoulder using an 11% WPI when the AME Dr. Abelow had found 6% WPI for the left shoulder. Moreover, the WCJ did not explain why she included the left shoulder impairment in the rating for the cumulative trauma injury when AME Dr. Abelow found 100% of the left shoulder impairment to be due to the prior industrial injury. (Applicant Exhibit 1, p.22.) The present record lacks substantial medical evidence to find impairment for the left shoulder as part of the cumulative trauma injury. There is also no evidence that the parties stipulated to the left shoulder as being accepted and that the left shoulder was ever a disputed body part. (MOH/SOE, p.2.) Thus, the finding of PD for the left shoulder must be rescinded and the final PD for the cumulative trauma injury is 89%.

Favours Applicant prevailed

This amended the temporary disability period and amount payable.

Found industrial injury to cervical spine, lumbar spine, right shoulder, left elbow, and bilateral knees due to cumulative trauma through August 21, 2013.

Initial AME report, later replaced by Dr. Abelow.

From the decision · page 2FACTS Applicant sustained a specific injury on August 14, 2013 to his left eye and a cumulative trauma injury through August 14, 2013 to his cervical spine, lumbar spine, right shoulder, bilateral knees, and bilateral hearing loss. (F&A, p.1.) Applicant was evaluated by various medical evaluators for his injuries. Parties initially agreed to orthopedic surgeon, Dr. Max Moses, as the Agreed Medical Evaluator (AME). Dr. Moses issued a narrative report dated August 13, 2014 and found industrial injury to applicant's cervical spine, lumbar spine, right shoulder, left elbow, and the bilateral knees due to the cumulative trauma injury through August 21, 2013. (Joint Exhibit CC, p.13.) However, Dr. Moses was subsequently replaced by Dr. Stephen Abelow, who served as the new orthopedic surgery AME. Dr. Abelow issued two narrative reports dated July 26, 2020 and October 11, 2020. In the initial report, Dr.

Found cumulative job trauma to neck, upper back, midback, lower back, right shoulder, and knees through 8/14/13; opined left shoulder and elbow disability 100% due to prior injury before employment with F.D. Thomas.

More persuasive than Dr. Moses; parties agreed to use Dr. Abelow as AME.

From the decision · page 2FACTS Applicant sustained a specific injury on August 14, 2013 to his left eye and a cumulative trauma injury through August 14, 2013 to his cervical spine, lumbar spine, right shoulder, bilateral knees, and bilateral hearing loss. (F&A, p.1.) Applicant was evaluated by various medical evaluators for his injuries. Parties initially agreed to orthopedic surgeon, Dr. Max Moses, as the Agreed Medical Evaluator (AME). Dr. Moses issued a narrative report dated August 13, 2014 and found industrial injury to applicant's cervical spine, lumbar spine, right shoulder, left elbow, and the bilateral knees due to the cumulative trauma injury through August 21, 2013. (Joint Exhibit CC, p.13.) However, Dr. Moses was subsequently replaced by Dr. Stephen Abelow, who served as the new orthopedic surgery AME. Dr. Abelow issued two narrative reports dated July 26, 2020 and October 11, 2020. In the initial report, Dr.

Diagnosed visual impairment caused by specific injury to left eye; found 5% WPI and TTD from August 14, 2013 through September 14, 2013.

Supported temporary disability and permanent disability for left eye injury.

From the decision · page 3Parties also proceeded with Dr. Philip Edington as the panel qualified medical evaluator (QME) in ophthalmology who issued one narrative report dated January 31, 2018. Dr. Edington opined applicant's visual impairment was caused by the August 14, 2013 specific injury. (Joint Exhibit AA, p.6.) He found applicant TTD from August 14, 2013 through September 14, 2013. (Id.)

Found industrial injury to hearing loss; apportioned 51% to presbycusis and 43% to occupational noise exposure, with 40% attributable to F.D. Thomas.

Supported permanent disability rating for hearing loss with partial apportionment to age-related hearing loss.

From the decision · page 3Applicant saw QME Dr. Michael Kearns for an evaluation in otolaryngology on March 21, 2018. Dr. Kearns found industrial injury to applicant's hearing loss and noted applicant "has a long history of occupational noise exposure in his long career as a commercial painter." (Joint Exhibit BB, p.7.)

Lab. Code, §§ 5903, 5952(d); Lamb v. Workmen's Comp. Appeals Bd. (1974) 11 Cal.3d 274; Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312; LeVesque v. Workers' Comp. Appeals Bd. (1970) 1 Cal.3d 627; E.L. Yeager v. Workers' Comp. Appeals Bd. (Gatten) (2006) 145 Cal.App.4th 922; Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604 (Appeals Board en banc); Hegglin v. Workmen's Comp. Appeals Bd. (1971) 4 Cal.3d 162; National Convenience Stores v. Workers' Comp. Appeals Bd. (Kesser) (1981) 121 Cal.App.3d 420; Turner v. Workers' Comp. Appeals Bd. (1974) 42 Cal.App.3d 1036

An award must be supported by substantial evidence including expert medical opinion based on reasonable medical probability and accurate history.

Applied to evaluate the sufficiency and credibility of medical opinions supporting disability findings.

From the decision · page 4DISCUSSION It is well established that any award, order, or decision of the Appeals Board, including decisions by WCJs, 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. Workers' Comp. Appeals Bd. (1970) 1 Cal.3d 627 [35 Cal.Comp.Cases 16].) To constitute substantial evidence, an expert medical opinion must be framed in terms of reasonable medical probability, be based on an accurate history and examination, and must set forth reasoning to support the expert conclusions reached. (E.L. Yeager v. Workers' Comp. Appeals Bd. (Gatten) (2006) 145 Cal.App.4th 922, 928 [71 Cal.Comp.Cases 1687]; Escobedo v.

Labor Code section 4656(c)(2)

Labor Code section 4656(c)(2) limits temporary disability benefits to 104 weeks for two dates of injury with concurrent periods running concurrently.

Applied to limit temporary disability period and allow credit for overlap.

From the decision · page 1On December 27, 2021, the defendant timely filed his Petition for Reconsideration (Petition) of the WCJ's decision. Defendant contends the WCJ's award of TTD was in excess of its powers and contravenes Labor Code section 4656(c)(2)2, the WCJ's failure to apportion permanent disability conflicts with the evidence and with existing law, and the WCJ's failure to

Labor Code section 3208.2

Labor Code section 3208.2 requires separate determination of disability and apportionment for combined effects of specific and cumulative injuries.

Applied to address apportionment and separate treatment of specific and cumulative injuries.

From the decision · page 13Defendant raises an anti-merger argument and Labor Code section 3208.2 however Defendant accepted a specific injury and a cumulative trauma consistent with the findings of Dr. Edington, Dr. Kearns, and Dr. Abelow, and the injuries are addressed separately. Section 3208.2 states as follows:

Applicant's credible testimony and QME Dr. Edington's report supported temporary disability from August 14, 2013 to September 14, 2013.

Lack of substantial evidence to support left shoulder PD as part of cumulative trauma injury.

From the decision · page 5(F&A, p.1.) However, when calculating the total PD for the cumulative trauma injury, the WCJ included an 11% WPI for the left shoulder which rates to 26% PD. (Opinion, p.6.) The WCJ did not offer any explanation as why she rated the left shoulder using an 11% WPI when the AME Dr. Abelow had found 6% WPI for the left shoulder. Moreover, the WCJ did not explain why she included the left shoulder impairment in the rating for the cumulative trauma injury when AME Dr. Abelow found 100% of the left shoulder impairment to be due to the prior industrial injury. (Applicant Exhibit 1, p.22.) The present record lacks substantial medical evidence to find impairment for the left shoulder as part of the cumulative trauma injury. There is also no evidence that the parties stipulated to the left shoulder as being accepted and that the left shoulder was ever a disputed body part. (MOH/SOE, p.2.) Thus, the finding of PD for the left shoulder must be rescinded and the final PD for the cumulative trauma injury is 89%.