ADJ11614069 — California WCAB decision

ADJ11614069 · March 1, 2024

The WCAB granted reconsideration to amend the Findings to find injury to the left shoulder only, not bilateral shoulders, and otherwise affirmed the Findings and Award, including no substantial evidence for right knee apportionment.

Issues decided

Medical opinions weighed

Authorities named

District office

Van Nuys

What the panel ordered

Defendant sought reconsideration of the Findings and Award issued by the WCJ on December 12, 2023, which the WCJ had found injury arising out of employment to applicant's shoulders, right knee, and right ankle, temporary disability, permanent disability, and apportionment issues.

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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.

ApportionmentApplicant prevailedright knee

Neither QME Dr. Rah nor PTP Dr. Conwisar provided substantial evidence explaining how non-industrial factors caused right knee permanent disability or justified the apportionment percentages, so the defendant did not meet its burden of proof.

From the decision · page 6en banc).) Here, neither the September 16, 2019 report from QME Dr. Rah (Def Exh. C, p. 20), nor the September 1, 2021 report from PTP Dr. Conwisar (App. Exh. 21, p. 12), include an explanation addressing how and why the non-industrial factors were causing right knee permanent disability at the time of the evaluations. Also, neither doctor explained how and why those factors were responsible for the percentages of disability they assigned. Thus, defendant did not meet its burden of proof as to the issue of right knee disability apportionment. (Lab. Code, § 5705; Lantz v. Workers' Comp. Appeals Bd. (2014) 226 Cal.App.4th 298, 313 [79 Cal.Comp.Cases 488]; Hand Rehabilitation Center v. Workers' Comp. Appeals Bd. (Obernier) (1995) 34 Cal.App.4th 1204 [60 Cal.Comp. Cases 289].)

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.

PTPPartially credited · orthopedic

Dr. Conwisar diagnosed left shoulder impingement syndrome with high-grade partial rotator cuff tear, right total knee arthroplasty, and right ankle sprain. He opined on apportionment and permanent disability, including 50% apportionment to industrial injury for right knee and detailed left shoulder impairment and strength deficit.

Dr. Conwisar's apportionment opinion was considered but found lacking substantial evidence for non-industrial factors causing right knee disability.

From the decision · page 3Regarding the right knee, the patient had treatment prior to the industrial injury of January 15, 2017. She clearly had underlying degenerative osteoarthritis prior to the injury of January 15, 2017. I would apportion 50% of the patient's condition to the subject industrial injury of January 15, 2017, and the remaining 50% of the patient's left knee condition to underlying degenerative joint disease. (App. Exh. 21, p. 12.)

QMEPartially credited · orthopedic

Dr. Rah opined that 40% of the right knee impairment was caused by the industrial injury and 60% by other factors such as obesity and arthritis, but did not provide substantial evidence explaining the non-industrial factors' impact at the time of evaluation.

Dr. Rah's apportionment opinion was considered but found lacking substantial evidence for non-industrial factors causing right knee disability.

From the decision · page 2As mentioned earlier, I will accept that the industrial injury that occurred on January 15, 2017 is likely to have accelerated the need for the knee replacement surgery. Conversely, absent the industrial injury that occurred on January 15, 2017, given her underlying obesity and underlying arthritis, she would have required the surgical treatment eventually. In my opinion, 40% of the applicant's present impairment has been caused by the industrial injury of January 15, 2017,

The rules the panel named

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

Labor Code Sections 5903, 5952; Garza v. Workmen's Comp. App. Bd. (1970) 3 Cal.3d 312

An award, order or decision by the Appeals Board must be supported by substantial evidence such as medical opinion and/or testimony in light of the entire record.

Applied to require substantial evidence for apportionment and disability findings.

From the decision · page 5As to the issue of apportionment regarding applicant's right knee disability; an award, order or decision by the Appeals Board must be supported by substantial evidence such as medical opinion and/or testimony in light of the entire record. (§ 5903, 5952; Garza v. Workmen's Comp. App. Bd. (1970) 3 Cal.3d 312, 317-319 [33 Cal.Comp.Cases 500]; LeVesque v. Workmen's Comp. Appeals Bd. (1970) 1 Cal.3d 627, 635-637 [35 Cal.Comp.Cases 16].) In order to constitute substantial evidence on the issue of apportionment, the physician must explain the nature of the non-industrial factors, how and why those factors were causing permanent disability at the time of the evaluation, and how and why those factors are responsible for the percentage of disability assigned by the physician. (Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604 (Appeals Board

Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604 (Appeals Board en banc)

To constitute substantial evidence on apportionment, the physician must explain the nature of the non-industrial factors, how and why those factors were causing permanent disability at the time of the evaluation, and how and why those factors are responsible for the percentage of disability assigned.

Applied to find defendant did not meet burden of proof on right knee apportionment.

From the decision · page 5As to the issue of apportionment regarding applicant's right knee disability; an award, order or decision by the Appeals Board must be supported by substantial evidence such as medical opinion and/or testimony in light of the entire record. (§ 5903, 5952; Garza v. Workmen's Comp. App. Bd. (1970) 3 Cal.3d 312, 317-319 [33 Cal.Comp.Cases 500]; LeVesque v. Workmen's Comp. Appeals Bd. (1970) 1 Cal.3d 627, 635-637 [35 Cal.Comp.Cases 16].) In order to constitute substantial evidence on the issue of apportionment, the physician must explain the nature of the non-industrial factors, how and why those factors were causing permanent disability at the time of the evaluation, and how and why those factors are responsible for the percentage of disability assigned by the physician. (Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604 (Appeals Board

ADJ11614069 · March 1, 2024

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