ADJ9417278 — California WCAB decision

What the panel ordered

The August 29, 2022 Findings of Fact and Order is rescinded and the matter is returned to the trial level for further proceedings.

Petition for Reconsideration filed by applicant after the August 29, 2022 Findings of Fact and Order denying benefits from the Subsequent Injuries Benefits Trust Fund; the WCJ prepared a Report and Recommendation to deny the Petition; the WCAB granted reconsideration to further study the issues and now rescinds the prior Findings and returns the matter to the trial level for further proceedings.

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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.

ApportionmentRemandedbilateral hips · bilateral shoulders · orthopedic conditions · fibromyalgia

Applicant failed to prove preexisting labor disabling permanent disability, but the record shows prior medical records noting orthopedic conditions and fibromyalgia, warranting further development of the record.

From the decision · page 1Applicant seeks reconsideration of the August 29, 2022 Findings of Fact and Order, wherein the workers' compensation administrative law judge (WCJ) found, in relevant part, that applicant failed to present evidence substantiating any preexisting labor disabling permanent disability and that applicant is not entitled to benefits from the Subsequent Injuries Benefits Trust Fund (SIBF).

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.

otherRejected

Assigned multiple orthopedic impairments as preexisting the subsequent injury, but opinion was vague and generic without clear explanation of apportionment percentages.

Opinion lacked explanation on how preexisting labor disabling impairment percentages were determined.

From the decision · page 4While Dr. Ambrose reviewed medical records dated prior to the subsequent injury, his assignment of applicant's multiple orthopedic impairments as preexisting the subsequent injury is vague and generic. (Exhibit 8, Dr. Ambrose's report dated October 20, 2020, pp. 42-51.) He repeatedly prefaces his apportionment opinion with the following vague and generic phrase "Based upon my examination and consultation with this applicant, as well as upon my review of the medical records provided and my clinical experience, it is my opinion..." without providing any explanation as to how he came to the opinion that a certain percentage of applicant's impairment was preexisting and labor disabling. (See also, id., at p. 55 ["I came to the above opinions based on the current physical examination [sic] findings, available medical records/diagnostic reports for review, credibility of the patient, historical information as provided by the patients and clinical experience both evaluating and treating individuals with the same or similar conditions."].)

otherRejected · internal medicine

Opined applicant suffered impairment from several conditions but did not clearly establish these were preexisting and labor disabling at the time of the subsequent injury; medical reports reviewed were mostly post-injury.

Unclear if impairments were preexisting and labor disabling at the time of injury; medical reports reviewed were mostly after the injury date.

From the decision · page 4Here, Dr. Markovitz opined that applicant suffered impairment as a result of her seborrhea dermatitis and rosacea, irritable bowel syndrome, residual umbilical hernia, and fibromyalgia. (Exhibit 6, Dr. Markovitz's report dated March 15, 2019, pp. 3-5.) However, it is not clear from Dr. Markovitz's reports that these impairments were preexisting to the 2012 subsequent injury or that they were labor disabling at the time of the subsequent injury. Moreover, it appears that the medical reports that Dr. Markovitz reviewed in support of these internal conditions were dated after the subsequent injury, except for the reports suggesting that applicant suffered from fibromyalgia as early as 2011. (Exhibit 5, Dr. Markovitz's report dated October 22, 2018, p. 3; Exhibit 6, Dr. Markovitz's report dated March 15, 2019, pp. 1-3.)

otherRejected · psychiatry

Psychiatric condition mainly caused by the industrial injury; no opinion on preexisting psychiatric condition.

No opinion on preexisting psychiatric condition; condition mainly caused by industrial injury.

From the decision · page 4Furthermore, Arnold L. Gilberg, M.D., Ph.D., provided a psychiatric evaluation of applicant. He opined that applicant's psychiatric condition was mainly caused by the industrial injury. (Exhibit E, Dr. Gilberg's report dated October 4, 2018, p. 18.) He made no opinions regarding applicant's preexisting psychiatric condition. (Ibid.)

AMEGiven great weight

Found specific injury to bilateral hips and shoulders but no continuous trauma claim.

From the decision · page 2Applicant was evaluated by Richard Scheinberg, M.D., in the capacity of an agreed medical examiner (AME). Dr. Scheinberg found a specific injury to her bilateral hips and bilateral shoulders, but also found applicant did not sustain a continuous trauma claim.

The rules the panel named

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

Hulbert v. Workmen's Comp. Appeals Bd., Gross v. Workmen's Comp. Appeals Bd., Amico v. Workmen's Comp. Appeals Bd., Bookout v. Workmen's Comp. Appeals Bd.

A preexisting disability cannot be established by a retroactive prophylactic work restriction on the preexisting condition placed after the subsequent industrial injury unless the worker was actually restricted prior to the injury.

The panel applied this standard to reject retroactive prophylactic work restrictions as proof of preexisting disability.

From the decision · page 3A preexisting disability cannot be established by a "retroactive prophylactic work restriction" on the preexisting condition placed on the injured after the subsequent industrial injury in absence of evidence to show that the worker was actually restricted in his work activity prior to the industrial injury. (Hulbert v. Workmen's Comp. Appeals Bd., supra, 47 Cal.App.3d 634, 640; Gross v. Workmen's Comp. Appeals Bd., supra, 44 Cal.App.3d 397, 404-405; Amico v. Workmen's Comp. Appeals Bd., supra, 43 Cal.App.3d 592, 606; see also Bookout v. Workmen's Comp. Appeals Bd., supra, 62 Cal.App.3d 214, 224-225.) Where the injured was actually under a prophylactic restriction for a preexisting condition at the time of the industrial injury, apportionment to a preexisting disability is proper. It is only the retroactive application of a prophylactic restriction to an otherwise nonexistent previous disability that is prohibited. (Ibid.)

Apportionment involves a factual inquiry to determine the existence and extent of preexisting disability.

The panel applied this standard to remand for further factual development of preexisting disability evidence.

From the decision · page 4stemming from the industrial injury. (Gross, supra, 44 Cal.App.3d at p. 404.) Applying a prophylactic work restriction retroactively creates "a sort of factual or legal fiction of an otherwise nonexistent previous disability or physical impairment." (Ibid.) Apportionment involves a factual inquiry. (See Mercier v. Workers' Comp. Appeals Bd., supra, 16 Cal.3d 711, 716; see also, State Comp. Ins. Fund v. Workers' Comp. Appeals Bd. (Gaba) (1977) 72 Cal.App.3d 13, 16-17 [139 Cal.Rptr. 802].)

ADJ9417278 · June 16, 2026

What the panel ordered

What was disputed, and how it came out

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The facts that decided it

What the panel did with the medical opinions

The rules the panel named

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