ADJ12975722 · September 5, 2025

The WCJ's reliance on Dr. Heskiaoff's medical opinion was upheld as substantial evidence, and the defendant failed to meet the burden of proof to apportion increased impairment for hypertension and diabetes to the new injury rather than the cumulative injury.

From the decision · page 1Defendant seeks reconsideration of the May 15, 2025 Joint Findings and Award (F&A) wherein the workers' compensation administrative law judge (WCJ) found that applicant sustained new and further disability to the right hip, hypertension, and diabetes as a result of a cumulative injury during the period from May 13, 2015 through May 13, 2016 (ADJ12975722) which resulted in an increase in permanent disability from 57% to 70%. (F&A, p. 2.) The WCJ also found that applicant sustained a new injury arising out of and in the course of employment (AOE/COE) on February 4, 2020 (ADJ10528292) to the right shoulder resulting in a separate 28% permanent disability.

Dr. Heskiaoff's reports provided adequate reasoning and relied on relevant facts and thorough examinations, constituting substantial evidence.

Favours Applicant prevailed

Supported the WCJ's decision to rely on his findings over Dr. Berman's prior reports, leading to increased permanent disability award.

From the decision · page 6Based upon our review of the evidentiary record, we find that Dr. Heskiaoff provided adequate reasoning in reaching his opinions and relied upon relevant facts and history, including thorough examinations of the applicant and a detailed analysis of various medical records. As such, the reports of Dr. Heskiaoff, including his March 3, 2022 report, are substantial medical evidence. Accordingly, we agree with the WCJ's decision to rely upon the findings of Dr. Heskiaoff over those of prior orthopedic AME, Dr. Berman.

Dr. Lonky's apportionment opinions lacked specificity and reasoning, failing to meet substantial evidence standards.

Favours Applicant prevailed

Led to rejection of defendant's argument to apportion increased impairment for hypertension and diabetes to the new injury, favoring applicant.

From the decision · page 8As noted above, a medical opinion proffered as substantial evidence must set forth reasoning in support of its conclusions and not be speculative. (Gatten, supra, at pp. 922, 928; Escobedo, supra, at p. 604.) Given the lack of specificity, lack of reasoning, and confusion surrounding Dr. Lonky's apportionment findings, we conclude that his opinions on apportionment are not written in accordance with the requirements outlined in Escobedo and Gatten and defendant therefore failed to meet their burden of proof with respect to apportionment of internal permanent disability to the specific injury of February 4, 2020. Accordingly, we agree with the WCJ's decision to allocate the increased impairment from applicant's claims of diabetes and hypertension to the cumulative injury, as per the original Stipulations with Request for Award.

Found new and further disability to right hip and right shoulder with specific apportionment for right shoulder injury; reports are substantial evidence supporting increased permanent disability.

Reports provided adequate reasoning, relied on relevant facts and history, and thorough examinations, making them substantial evidence.

From the decision · page 3Dr. Berman was replaced by new orthopedic AME, Dr. David Heskiaoff. Dr. Heskiaoff evaluated applicant on July 24, 2020, February 23, 2021, and March 3, 2022.

Provided earlier apportionment findings which were rejected in favor of Dr. Heskiaoff's later reports.

Reports were considered but found less persuasive and not relied upon by the WCJ or Appeals Board.

From the decision · page 1Defendant contends that with respect to the increased impairment for the orthopedic body parts in the cumulative injury, the WCJ's reliance on the findings of replacement orthopedic Agreed Medical Evaluator (AME), Dr. David Heskiaoff, is misplaced and that the apportionment findings of prior orthopedic AME, Dr. Jeffrey Berman, should be considered. Defendant also contends that the increased impairment for applicant's internal claims of hypertension and diabetes should be attributed to the February 4, 2020 injury rather than the cumulative injury, based upon reporting from internal panel Qualified Medical Evaluator (PQME), Dr. Stewart Lonky.

Apportionment opinions on hypertension and diabetes were found lacking specificity and reasoning, thus not substantial evidence to support defendant's burden of proof.

Lack of specificity and reasoning in apportionment findings led to rejection of his opinions on apportionment to the new injury.

From the decision · page 1Defendant contends that with respect to the increased impairment for the orthopedic body parts in the cumulative injury, the WCJ's reliance on the findings of replacement orthopedic Agreed Medical Evaluator (AME), Dr. David Heskiaoff, is misplaced and that the apportionment findings of prior orthopedic AME, Dr. Jeffrey Berman, should be considered. Defendant also contends that the increased impairment for applicant's internal claims of hypertension and diabetes should be attributed to the February 4, 2020 injury rather than the cumulative injury, based upon reporting from internal panel Qualified Medical Evaluator (PQME), Dr. Stewart Lonky.

Lab. Code, 5705; Pullman Kellogg v. Workers' Comp. Appeals Bd. (Normand) (1980) 26 Cal.3d 450; Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604

Defendant carries the burden of proof on apportionment issues and must demonstrate a legal basis based on reasonable medical probability.

Applied to evaluate defendant's burden and the sufficiency of medical opinions on apportionment.

From the decision · page 6It is well established that defendant carries the burden of proof on the issue of apportionment. (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.

Lack of specificity and reasoning in Dr. Lonky's apportionment findings on hypertension and diabetes

From the decision · page 8As noted above, a medical opinion proffered as substantial evidence must set forth reasoning in support of its conclusions and not be speculative. (Gatten, supra, at pp. 922, 928; Escobedo, supra, at p. 604.) Given the lack of specificity, lack of reasoning, and confusion surrounding Dr. Lonky's apportionment findings, we conclude that his opinions on apportionment are not written in accordance with the requirements outlined in Escobedo and Gatten and defendant therefore failed to meet their burden of proof with respect to apportionment of internal permanent disability to the specific injury of February 4, 2020. Accordingly, we agree with the WCJ's decision to allocate the increased impairment from applicant's claims of diabetes and hypertension to the cumulative injury, as per the original Stipulations with Request for Award.