ADJ13011053 — California WCAB decision

What the panel ordered

Petition for reconsideration denied

Petition for reconsideration of Findings and Award denied

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 prevailedhypertension

Apportionment of hypertension disability to non-industrial factors rejected due to lack of explanation; overall permanent disability remains 100%.

From the decision · page 17In the instant case, Dr. Lonky reported that applicant's permanent disability resulting from hypertension should be apportioned at 30% to non-industrial factors, including cigarette smoking and poorly controlled diabetes. (Ex. BB, PQME Report of Dr. Lonky dated December 4, 2023, pp. 21-22.) In doing so, however, he did not explain how and why these non-industrial pathologies caused the extent of the disability, suggesting that his apportionment was based on surmise, conjecture or guess. (See Escobedo, supra; Hegglin v. Workmen's Comp. Appeals Bd. (1971) 4 Cal.3d 162, 169 [36 Cal.Comp.Cases 93, 97].) Therefore, Dr. Lonky's reporting as to apportionment of applicant's permanent disability resulting from hypertension is not to be relied upon.

AOE/COE

The facts that decided it

What the panel treated as outcome-determinative, and which side it favoured.

Applicant sustained injury to multiple body parts arising out of and in the course of employment

Favours Applicant prevailed

Supported by medical and testimonial evidence establishing compensability

From the decision · page 10Based upon applicant's credible testimony and the medical report(s) of Dr. Rodney Gabriel, Dr. Stewart Lonky, Dr. Thomas Lim, Dr. Dorian, and Dr. Grewal, it is found that applicant sustained injury to his psyche, lower GI, cervical spine, thoracic spine, lumbar spine, bilateral shoulders, left foot amputation, left ankle, lower extremities/gait, hypertension, kidneys, anemia, and diabetes arising out of and occurring in the course of employment.... PERMANENT DISABILITY

Applicant found to be 100% permanently disabled based on combined ratings and medical evidence

Favours Applicant prevailed

Medical evidence and ratings support total permanent disability without vocational evaluation

Apportionment of hypertension disability to non-industrial factors rejected due to lack of explanation

Favours Applicant prevailed

Lack of medical explanation undermines apportionment credibility, sustaining full disability award

From the decision · page 17In the instant case, Dr. Lonky reported that applicant's permanent disability resulting from hypertension should be apportioned at 30% to non-industrial factors, including cigarette smoking and poorly controlled diabetes. (Ex. BB, PQME Report of Dr. Lonky dated December 4, 2023, pp. 21-22.) In doing so, however, he did not explain how and why these non-industrial pathologies caused the extent of the disability, suggesting that his apportionment was based on surmise, conjecture or guess. (See Escobedo, supra; Hegglin v. Workmen's Comp. Appeals Bd. (1971) 4 Cal.3d 162, 169 [36 Cal.Comp.Cases 93, 97].) Therefore, Dr. Lonky's reporting as to apportionment of applicant's permanent disability resulting from hypertension is not to be relied upon.

Applicant will require further medical treatment for injuries to multiple body parts

Favours Applicant prevailed

Medical findings indicate ongoing need for treatment to cure or relieve injury effects

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.

QMERelied upon · internal medicine

Reported that adding impairments is more accurate than combining using CVC due to overlapping effects of hypertension, diabetes, and dialysis on disability.

Based on complete history and medical probability, impacts overlap and amplify effects.

From the decision · page 15In this case, however, Dr. Lonky's reporting was based upon a complete history of applicant's injury and demonstrates that the impacts of the internal medicine conditions overlapped with the impacts of his orthopedic and podiatric conditions in a manner which amplified their effects. (Opinion on Decision, pp. 11-12, 17; Ex. BB, PQME Report of Dr. Lonky dated December 4, 2023, pp. 21-22.) More specifically, Dr. Lonky reported that adding impairments would be the more accurate method to rate the level of disability based upon applicant's "significant hypertension, significant diabetes, and most of all, the fact that he is on dialysis" because "[p]atients with dialysis have very specific needs, including protecting bone reabsorption, muscle fatigue, and other factors that would further intensify what he would have based on his orthopedic disability by itself." (Ex. BB, PQME Report of Dr. Lonky dated December 4, 2023, pp. 21-22.) In addition, as defendant states in the Petition, Dr. Lonky testified that the "diabetes makes his HTN worse [and] his foot ulcer made his diabetes worse." (Petition, p. 6:16-18 (citing Joint Exhibit EE page 20: 12-15.)

QMERejected · internal medicine

Apportioned 30% of hypertension disability to non-industrial factors but failed to explain basis, so apportionment not relied upon.

Lack of explanation for apportionment to non-industrial factors.

From the decision · page 17In the instant case, Dr. Lonky reported that applicant's permanent disability resulting from hypertension should be apportioned at 30% to non-industrial factors, including cigarette smoking and poorly controlled diabetes. (Ex. BB, PQME Report of Dr. Lonky dated December 4, 2023, pp. 21-22.) In doing so, however, he did not explain how and why these non-industrial pathologies caused the extent of the disability, suggesting that his apportionment was based on surmise, conjecture or guess. (See Escobedo, supra; Hegglin v. Workmen's Comp. Appeals Bd. (1971) 4 Cal.3d 162, 169 [36 Cal.Comp.Cases 93, 97].) Therefore, Dr. Lonky's reporting as to apportionment of applicant's permanent disability resulting from hypertension is not to be relied upon.

PTPRelied upon · psychiatry

Psychiatric injury is 100% due to emotional response to orthopedic injuries and is industrially compensable as a derivative injury.

Orthopedic injuries and associated disability are greater than 50% industrial, making psychiatric injury industrially compensable.

From the decision · page 9In my opinion, the patient has sustained a mild Depressive Disorder (Not Otherwise Specified) and anxiety Disorder (Not Otherwise Specified) the cause of which has been 100% due to the emotional response to the orthopedic injuries/pain/disability. Therefore, if the orthopedic injuries and associated disability are considered to be greater than 50% due to industrial causes, then actual events of patient's employment have been the predominant cause of the derivative psychiatric injury, and the psychiatric injury is industrially compensable pursuant to Labor Code Section 3208.3, as clarified by the Lockheed Gildardo decision. This is not a separate work stress injury, but is a derivative psychiatric injury arising from the emotional effects of physical injuries.

The rules the panel named

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

Vigil v. County of Kern (2024) 89 Cal.Comp.Cases 686 (En Banc)

Permanent disability rating using additive method as per Vigil v. County of Kern (2024) 89 Cal.Comp.Cases 686 (En Banc)

Additive method used over CVC for more accurate rating based on medical evidence.

Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 621 (Appeals Board en banc)

Substantial medical evidence must be framed in terms of reasonable medical probability and supported by reasoning

Used to evaluate the reliability of medical opinions on apportionment and disability.

From the decision · page 17In Escobedo, supra, the Appeals Board held that (1) section 4663 requires the reporting physician to make an apportionment determination; (2) apportionment to other factors allows apportionment to causation, including pathology, prior conditions, and retroactive work restrictions; (3) applicant holds the initial burden to prove industrial injury and also has the added burden of establishing the approximate percentage of permanent disability directly related to the industrial injury; (4) defendant has the burden of establishing the approximate permanent disability caused by other factors; and (5) a medical report addressing apportionment may not be relied upon unless it constitutes substantial evidence. (Escobedo, supra, at p. 612.)

Labor Code Section 3208.3

Psychiatric injury compensability under Labor Code Section 3208.3 and Lockheed Gildardo decision

Psychiatric injury found industrially compensable as derivative of physical injuries.

From the decision · page 9In my opinion, the patient has sustained a mild Depressive Disorder (Not Otherwise Specified) and anxiety Disorder (Not Otherwise Specified) the cause of which has been 100% due to the emotional response to the orthopedic injuries/pain/disability. Therefore, if the orthopedic injuries and associated disability are considered to be greater than 50% due to industrial causes, then actual events of patient's employment have been the predominant cause of the derivative psychiatric injury, and the psychiatric injury is industrially compensable pursuant to Labor Code Section 3208.3, as clarified by the Lockheed Gildardo decision. This is not a separate work stress injury, but is a derivative psychiatric injury arising from the emotional effects of physical injuries.

ADJ13011053 · September 8, 2025

What the panel ordered

What was disputed, and how it came out

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The facts that decided it

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