ADJ9518215 · June 2, 2026

The WCAB found that the applicant sustained injury arising out of and in the course of employment and is 100% permanently disabled without apportionment, relying on substantial evidence including medical and vocational expert reports. Defendant's challenge to apportionment based on Dr. Levine's findings and sub rosa video footage was rejected as the evidence supported the applicant's total disability without apportionment.

From the decision · page 1Defendant seeks reconsideration of the Findings and Award (F&A) dated February 18, 2026, wherein the workers' compensation arbitrator (WCA) found, in relevant part, that while employed on March 4, 2014 by defendant as a custodian, applicant sustained injury arising out of and occurring in the course of employment (AOE/COE) to the lumbar spine, cervical spine, bilateral shoulders, headaches, vertigo and dizziness, internal, heart, sleep, fibromyalgia, and sexual dysfunction resulting in 100% permanent disability without apportionment.

Applicant sustained injury arising out of and in the course of employment on March 4, 2014, resulting in multiple impairments and 100% permanent disability without apportionment.

Favours Applicant prevailed

This fact supports the applicant's entitlement to benefits and total disability finding.

From the decision · page 1Defendant seeks reconsideration of the Findings and Award (F&A) dated February 18, 2026, wherein the workers' compensation arbitrator (WCA) found, in relevant part, that while employed on March 4, 2014 by defendant as a custodian, applicant sustained injury arising out of and occurring in the course of employment (AOE/COE) to the lumbar spine, cervical spine, bilateral shoulders, headaches, vertigo and dizziness, internal, heart, sleep, fibromyalgia, and sexual dysfunction resulting in 100% permanent disability without apportionment.

Sub rosa video footage did not undermine the substantial medical evidence supporting applicant's total disability.

Favours Applicant prevailed

Supports denial of defendant's challenge to apportionment and disability findings.

Applicant sustained 18% WPI to psyche with 45% apportionment to non-industrial psyche issues and 55% to subject injury.

Medical opinion on impairment and apportionment to psyche issues was part of the record considered in the overall disability determination.

From the decision · page 2In a report dated March 18, 2016, psyche PQME Dr. Sherman opined that due to anxiety and depression, applicant sustained an 18% WPI to the psyche with 45% apportionment to non- industrial psyche issues and the remaining 55% to the subject injury. (Joint Exhibit J, pp. 141- 142.)

Applicant is 100% permanently and totally disabled due to chronic pain syndrome complicated by orthopedic sequelae and failed neck and back syndromes. Fibromyalgia symptoms interfere with activities of daily living. Applicant sustained 15% WPI for sleep and arousal disorder with 50% apportionment to non-industrial issues. Applicant is entitled to add-ons for pain and medication effects. Applicant's permanent disability findings were supported despite sub rosa video footage.

Dr. Levine's opinion was considered but defendant's challenge to his findings based on sub rosa video footage was rejected as the footage did not capture the subjective disabling symptoms. The WCAB found Dr. Levine's findings substantial evidence supporting total disability without apportionment.

From the decision · page 2In a report dated January 5, 2021, rheumatology AME, Dr. Levine, noted that due to applicant's chronic pain syndrome, which is complicated by orthopedic sequelae and failed neck and back syndromes, applicant should be considered "100% permanently and totally disabled." (Joint Exhibit O, p. 85-86.) Dr. Levine recommended referral to a vocational expert and noted that although fibromyalgia is not rated in the AMA Guides, "dissecting out the major symptoms" which

Applicant sustained 5% WPI for headaches and 10% WPI for dizzy spells and vertigo with apportionment to preexisting vestibular problems.

Medical opinion on neurological impairments and apportionment was part of the record considered in the overall disability determination.

From the decision · page 2In a report dated November 11, 2015, neurology PQME Dr. Ratiner opined that applicant sustained a 5% whole person impairment (WPI) under table 13-5 for his headaches as well as 10% WPI under table 11-4 for his dizzy spells and vertigo. (Joint Exhibit K, p. 25.) Dr. Ratiner apportioned 70% of applicant's impairment for dizziness and vertigo to preexisting vestibular problems and the remaining 30% to the subject injury. In a subsequent report dated April 4, 2018, Dr. Ratiner amended his findings to reflect 60% apportionment to preexisting vestibular disorder and 40% to the subject injury after additional medical records showed "severe aggravation" due to the subject injury. (Joint Exhibit M, p. 145.)

Applicant sustained 28% WPI to cervical spine, 23% WPI to lumbar spine, and 5% WPI to right shoulder with work restrictions precluding substantial work (75% loss of pre-injury capacity).

Orthopedic AME opinion on impairment and work restrictions was considered in the overall disability determination.

From the decision · page 4(Id. at p. 38:23-25.) In his report dated March 7, 2024, Dr. Sisto opined that applicant sustained a 28% WPI to

Applicant sustained 30% WPI due to cardiac palpitations and 10% WPI due to medication effects; agreed applicant is permanently and totally disabled musculoskeletally and neurologically.

Internal medicine QME opinion supporting total disability was part of the record considered.

From the decision · page 3In his report dated August 29, 2022, internal PQME, Dr. Kramer, opined that applicant sustained 30% WPI under Almaraz Guzman due to "bouts of cardiac palpitations" resulting from atrial fibrillation and sleep disorder and an additional 10% WPI due to usage of the drug Eliquis which causes an increased risk of bleeding. (Joint Exhibit G, pp. 12-14.) He agreed with Dr. Levine that applicant was "permanent and totally disabled from a musculoskeletal/neurologic standpoint[.]" (Id. at p. 13.) Dr. Kramer noted that applicant's "atrial fibrillation arrhythmia was precipitated by the severe stress he has been under due to his intractable chronic pain state and secondary high anxiety level, coupled with stress emanating from his pain and anxiety-caused sleep deprivation." (Ibid.)

Lab. Code, 5705

Burden of proof rests on party holding affirmative; employee must show employment was contributing cause of injury.

Applied to establish industrial causation.

From the decision · page 7Turning now to the merits of the Petition, it is well established that the burden of proof rests upon the party holding the affirmative of the issue. (Lab. Code, § 5705.) As such, when an employee claims injury AOE/COE, it is the employee (or the lien claimant) who carries the burden of proof in establishing industrial causation and they must show that the employment was a contributing cause. (South Coast Framing v. Workers' Comp. Appeals Bd. (Clark) (2015) 61 Cal.4th 291, 297- 298, 302; Lab. Code, § 5705; 3600.) Pursuant to section 3202.5, the evidentiary

Gay v. Workers' Comp. Appeals Bd. (1979) 96 Cal.App.3d 555

Medical opinion must be based on reasonable medical probability, pertinent facts, adequate examination, and reasoning to support apportionment conclusions.

Applied to evaluate apportionment evidence.

From the decision · page 8With respect to the issue of apportionment, it is well established that defendant carries the burden of proof. (Lab. Code, § 5705; Pullman Kellogg v. Workers' Comp. Appeals Bd. (Normand) (1980) 26 Cal.3d 450, 456 [45 Cal.Comp.Cases 170]; Kopping v. Workers' Comp. Appeals Bd. (2006) 142 Cal.App.4th 1099, 1115 [71 Cal.Comp.Cases 1229]; Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 613 (Appeals Bd. en banc).) To meet this burden, defendant "must demonstrate that, based upon reasonable medical probability, there is a legal basis for apportionment." (Gay v. Workers' Comp. Appeals Bd. (1979) 96 Cal.App.3d 555, 564 [44 Cal.Comp.Cases 817]; see also Escobedo, supra, at p. 620.) Ultimately, however, "[a]pportionment is a factual matter for the appeals board to determine based upon all the evidence[,]" and the WCJ has the authority to determine the appropriate amount of apportionment, if any. (Gay, supra, at p. 564.) As noted above, however, any decision issued by a WCJ must be based upon substantial evidence. (Lab. Code, § 5903, 5952, subd. (d); Lamb v. Workmen's Comp. Appeals Bd. (1974) 11 Cal.3d 274 [39 Cal.Comp.Cases 310]; Garza v. Workmen's Comp. Appeals